The new law establishes a statutory response mechanism for declarations of inconsistency
Parliament has approved on third reading a bill seeking to provide a statutory response mechanism for declarations of inconsistency, Justice Minister Kiri Allan announced.
The New Zealand Bill of Rights Amendment Bill (Bill 230-2) establishes a mechanism for the government to consider and respond to a declaration of inconsistency made under the New Zealand Bill of Rights Act or the Human Rights Act.
According to Allan, a declaration of inconsistency is a formal statement by a court or tribunal that a legislation is inconsistent with fundamental human rights protected by the New Zealand Bill of Rights Act. A declaration does not, however, affect the validity of a legislation or anything done lawfully thereunder.
“When the senior courts make such a declaration, there is currently no mechanism to bring the matter to the attention of the House of Representatives,” Allan said. “This means lawmakers may not have full regard for the declaration and breaches of rights might go unaddressed.”
In particular, the bill amends the New Zealand Bill of Rights Act to require the Attorney-General to notify the House of a declaration of inconsistency within six sitting days after it becomes final.
The bill also requires the government to present its response to the declaration within six months from notifying the House. This requirement intends to ensure that declarations are given due consideration by the executive branch and responded to publicly.
However, Allan pointed out that the bill does not explicitly set out the process for Parliament to respond to declarations of inconsistency. Instead, the Attorney-General notifying the House of the declaration “would trigger a parliamentary process under its standing orders.” This parliamentary process would involve the following:
- a declaration of inconsistency being referred to a select committee
- the select committee considering and reporting on the declaration within four months
- a debate in the House on the declaration, the select committee report, and the government response to the declaration
Moreover, the bill amends the Human Rights Act so that the response to a declaration of inconsistency by the Human Rights Review Tribunal is the same as the response to a declaration under the Bill of Rights Act.