Judges not Politicians: Why Declarations of Inconsistency are not a Discretionary Remedy

Abstract

Declarations of Inconsistency (DoIs) are formal declarations that certain legislation is inconsistent with the New Zealand Bill of Rights Act 1990 (the Bill of Rights). In Make It 16 Inc v Attorney-General [2021] NZCA 681, [2022] 2 NZLR 440 the Court of Appeal said at [60] that it was “well-established” that DoIs are a discretionary remedy. On appeal, the Supreme Court (Make It 16 Inc v Attorney-General [2022] NZSC 134 at [62]) left open the question of the approach to discretion in DoIs. This paper argues the Court of Appeal’s suggestion of a “well-established” discretion was mistaken, and that the Supreme Court should not have let that suggestion hang in the air. DoIs are not a discretionary remedy: where a legislative inconsistency with the Bill of Rights has been found, a declaration must always follow. Discretion does not fit with the purpose of DoIs, which is to provide accountability in the language of the law as part of a human rights dialogue. Discretion is too uncertain and results in courts considering broader political issues, which is inappropriate and contrary to the purpose of DoIs. The remaining reasons for exercising discretion against a DoI are either redundant or mistaken. Because there are no good reasons to refuse a DoI using the discretion, the discretion is in practice illusory. The Courts should clarify that DoIs are not discretionary.