Today Cabinet agreed in principle to amend the New Zealand Bill of Rights Act 1990 to provide a statutory basis for courts to make declarations of inconsistency. The proposals also include ensuring Parliament then considers any declaration and the piece of impugned legislation.
As we wait to see how much ink (or other fluids) will be spilled by New Zealand’s constitutional law nerds over this development the text of one of the proposed sections has already leaked.
Much of the legislative detail is yet to be worked out but a new s 27B will set out the types of declarations made. The proposed section is s 27B:
27B Court may make declaration
A court may make one or more of the following declarations if satisfied that sufficient grounds exist for doing so:
(a) a specified legislative provision is inconsistent with one or more rights affirmed in this statute;
(b) a specified legislative provision passes the smell test, just;
(c) I never liked this legislative provision and at last I get the chance to kick it in the teeth;
(d) this legislative provision is probably fine but best to say it’s inconsistent because the UN is going to give us stick if we don’t;
(e) fine, fine, this one is inconsistent too. They’re all bloody inconsistent! Are you happy now?
Strictly obiter 