Boscawen v Attorney-General

[2009] NZCA 12

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA433/2008
[2009] NZCA 12

BETWEENJOHN SPENCER BOSCAWEN

First Appellant

ANDGARTH NEIL MCVICAR

Second Appellant

ANDRODNEY PHILIP HIDE

Third Appellant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

Respondent

Hearing:23 October 2008

Court:Glazebrook, O'Regan and Arnold JJ

Counsel:N Pender, P Butler and M P Patterson for Appellants

J C Pike, C C Inglis and L M Fong for Respondent

Judgment:17 February 2009 at 11.30 am

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BThe appellants must pay to the respondent costs for a standard appeal on a band A basis and usual disbursements.

REASONS OF THE COURT

(Given by O’Regan J)

Introduction

[1]       This is an appeal against the decision of Clifford J to strike out the claim made by the appellants for judicial review of the decision of the Attorney-General not to bring to the attention of the House of Representatives provisions in the Electoral Finance Bill 2007 which the appellants said were inconsistent with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 (NZBORA).  The appellants contend that the Attorney-General failed to discharge the duty imposed on him by s 7 of the NZBORA.  The decision under appeal is now reported as Boscawen v Attorney-General(No 2) [2008] NZAR 468.

[2]       The appellants sought declarations in the High Court that:

(a)the Attorney-General breached s 7 in not bringing to the attention of the House, on the introduction of the Bill, provisions in the Bill which appeared to be inconsistent with the rights and freedoms contained in the NZBORA;

(b)the Attorney-General was also in breach of that duty in not bringing those apparent inconsistencies to the attention of the House later in the legislative process;

(c)the Electoral Finance Act 2007 was inconsistent with the NZBORA in numerous specified respects.

[3]       Clifford J struck out the claim on the basis that it was clearly untenable because:

(a)The Attorney-General’s exercise of statutory power under s 7 of the NZBORA was non-justiciable by virtue of art 9 of the Bill of Rights 1688 (Imp.) and the principle of comity between the Courts and Parliament;

(b)The Attorney-General’s obligation to report under s 7 arises only once, on the introduction of a Bill, and is not a continuing obligation;

(c)There was no jurisdiction under the Declaratory Judgments Act 1908 to make the declarations sought by the appellants.

[4]       There was no dispute before us that the Judge applied the appropriate test for strike out, by reference to the decision of this Court in Attorney-General v Prince and Gardner [1998] 1 NZLR 262 at 267. However, the appellants say the Judge was wrong to find their claims to be untenable. They seek the reinstatement of their claim, in modified form. They now wish to pursue:

(a)An application for a declaration of inconsistency in respect of the Electoral Finance Act;

(b)An application for a declaration that the Attorney-General breached his statutory duty by not alerting the House to the apparent inconsistencies between provisions of the Electoral Finance Bill and the NZBORA.

Section 7 of NZBORA and art 9 of the Bill of Rights 1688

[5]       Section 7 of the NZBORA provides:

7        Attorney-General to report to Parliament where Bill appears to be inconsistent with Bill of Rights

Where any Bill is introduced into the House of Representatives, the Attorney-General shall,—

(a)       In the case of a Government Bill, on the introduction of that Bill; or

(b)In any other case, as soon as practicable after the introduction of the Bill,—

bring to the attention of the House of Representatives any provision in the Bill that appears to be inconsistent with any of the rights and freedoms contained in this Bill of Rights.

[6]       Article 9 of the Bill of Rights 1688 (Imp) provides:

Freedom of Speech—That the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament:

Issues

[7]       The issues which arise in connection with the appeal are:

(a)Is the Attorney-General’s reporting function under s 7 of the NZBORA reviewable by the Courts, having regard to art 9 of the Bill of Rights 1688 and the principle of comity between the Courts and Parliament?

(b)Does the reporting function of the Attorney-General under s 7 arise only on the introduction of a Bill?

(c)Is there jurisdiction under either the Declaratory Judgments Act or the NZBORA for the Court to make a declaration of inconsistency to the effect that a provision of an Act is inconsistent with one or more of the rights and freedoms referred to in the NZBORA:

(i)        in the abstract?

(ii)       where there is a dispute between the parties?

The appellants

[8]       The first appellant, Mr Boscawen, was a parliamentary candidate for the ACT party in the 2008 election, and has, since the hearing of the appeal, become a Member of Parliament.  The second appellant, Mr McVicar, leads a sentencing advocacy group and the third appellant, Mr Hide, was at the time the proceedings were commenced an MP representing the ACT party, of which he is the leader, and has since the hearing of the appeal been re-elected and become a Minister outside Cabinet.

Background

[9]       The background is comprehensively set out in the judgment under appeal and we will not repeat that narrative.  The appellants originally sought declaratory relief while the Electoral Finance Bill was passing through the legislative process, but altered their statement of claim after the Bill was passed and became the Electoral Finance Act.  They say that the Electoral Finance Act is inconsistent with the NZBORA in the following respects:

(a)The complexity of the regulatory regime obstructs participation in parliamentary democracy and political speech, which they say is contrary to s 12 (right to vote) and s 14 (freedom of expression) of the NZBORA;

(b)It creates offences for non-compliance with a regulatory regime that is complicated, confusing and uncertain, which is also said to be contrary to ss 12 and 14;

(c)It imposes limits on the amount of money that can be spent in relation to political advocacy and public debate, which is also seen as inconsistent with ss 12 and 14;

(d)It imposes a regulated period between 1 January of an election year and the close of polling day during which political speech is curtailed, also said to be contrary to ss 12 and 14;

(e)When read with the Appropriation (Continuation of an Interim Meaning of Funding for Parliamentary Purposes) Act 2007 and the Parliamentary Service Act 2000, it has the effect of advancing candidates who are incumbent members of Parliament over candidates who are not, which is seen as contrary to s 12.

[10]     The appellants say that none of these restrictions is demonstrably justified in a free and democratic society, in terms of s 5 of the NZBORA.

[11]     We refer to the Electoral Finance Act in this judgment in the present tense.  But we record that the Electoral Amendment Bill currently before Parliament includes a provision to repeal the Electoral Finance Act.

The Attorney-General’s duty to report under s 7

[12]     As the Attorney-General did not bring to the attention of the House of Representatives any provisions in the Electoral Finance Bill, it can be assumed that he considered that none of the provisions appeared to be inconsistent with any of the rights and freedoms contained in the NZBORA.  The appellants say the Attorney-General was wrong in law to hold that view.  They did not suggest any wilful refusal to comply with s 7 or any want of good faith on the part of the Attorney-General. 

[13] The obligation under s 7 is not a general reporting obligation; it arises only when the Attorney-General considers there is something to report. However, it is a matter of public record that the Attorney-General took advice from officials in the present case. The Crown counsel who gave the advice concluded that the provisions of the Electoral Finance Bill were not inconsistent with the NZBORA, either because they did not interfere with the rights, or if they did place limitations on the rights, then such limitations were justifiable under s 5. However, the advice did include a comment that the s 14 issues were finely balanced, particularly those relating to the regulated period referred to at [9](d) above, and an observation that “the regulation of the electoral system ultimately depends upon political judgments and is an area in which a wide margin of appreciation is afforded to Parliament”.

[14]     There is a well established practice that officials of the Ministry of Justice (or of Crown Law in relation to Bills promoted by the Ministry of Justice) advise the Attorney-General in relation to his or her s 7 obligation for every Bill introduced to the House: Cabinet Office Cabinet Manual 2008 (Wellington, 2008) at [7.62].

[15]     Since 1 January 2003 the advice provided to the Attorney-General has then been posted on a government website: Although the Attorney-General can theoretically claim legal professional privilege and thus decide not to publish the advice, privilege has been claimed, as far as we are aware, only on one occasion.  In that instance the Attorney-General’s reasons for concluding there was no apparent inconsistency with the NZBORA were published instead.  That means that, even where the Attorney-General makes no report under s 7, the advice of officials, or in rare cases the reasons of Attorney-General, as to whether any provision in a Bill appears to be inconsistent with the rights and freedoms contained in the NZBORA are available both publicly and, of course, to Members of Parliament.  The practice that the Attorney-General takes advice on s 7 matters and that that advice is published on the internet supplements s 7 itself.

[16]     Additionally, the public availability of the advice given to the Attorney-General means that both members of the public and Members of Parliament are able to challenge or support that advice in submissions made to the select committee considering the relevant Bill.  This allows further contribution to and participation in the NZBORA debate during the legislative process.  Where there are differing views on possible inconsistency with NZBORA rights and as to whether any limitations on any NZBORA right is justified in a free and democratic society, it is appropriate that those issues should be debated in Parliament.

[17]     There are a number of other requirements relating to proposed Bills that supplement s 7.  Among other things, the Cabinet Office Manual requires Ministers to confirm that a proposed Bill is consistent with the NZBORA when seeking a place for it in the Government’s legislative programme and prior to receiving approval for introduction of the Bill: Cabinet Manual 2008 at [7.60] — [7.61].  Chapter 4 of the Legislation Advisory Committee Guidelines (2001) also sets out guidelines for Ministries to ensure Bills are compliant with the NZBORA.

[18]     As noted earlier, the essence of the appellants’ case is that the Attorney-General’s view that the Electoral Finance Bill was not inconsistent with the rights and freedoms in the NZBORA was wrong.  The underlying assumption was that, if the Court reviewed that assessment, it would come to a different and, inferentially, better view.  That approach fails to acknowledge that opinions can legitimately vary on human rights issues, particularly on the issue of whether any limitations on rights are justified in a free and democratic society and on assessing the appropriate balance between rights and between rights and other values (such as privacy) where these may be apparently in conflict.

[19]     We refer to one well known case, discussed in Rishworth and others The New Zealand Bill of Rights (2003) at 200 – 201, where Parliament effectively rejected the Attorney-General’s view.  The Attorney-General reported to the House that a Bill providing for random breath-testing of motorists conflicted with the NZBORA. However Parliament took a different view, based on independent legal advice the select committee received from the President of the Legislation Advisory Committee, and passed the Bill on the basis that Attorney-General’s view was incorrect.

[20]     In an environment where there is room for genuine differences of view, we remind ourselves that Parliament entrusted the s 7 judgment and reporting obligation to the Attorney-General, not to the Courts.  The objective of s 7 is to ensure that Parliament has the benefit of the Attorney-General’s assessment.  There may be room for different views, but the view which Parliament is to be provided with under s 7 is the genuinely held view of the Attorney-General, whether others consider that view to be right or wrong. 

Can the Court review the s 7 duty?

[21]     In the High Court, Clifford J found that the s 7 duty was not justiciable because judicial review of the Attorney-General’s performance of his or her s 7 duty would be contrary to art 9 of the Bill of Rights 1688 and the principle of comity between the Courts and Parliament.  The Bill of Rights 1688 is part of the law of New Zealand: s 3 of the Imperial Laws Application Act 1988 and s 242 of the Legislature Act 1908.  That conclusion was in line with the position taken in both the leading texts on the NZBORA.  Rishworth and others conclude at 201 that the Attorney-General is answerable only to Parliament for the quality of the advice he or she provides in exercising the s 7 reporting duty.  Butler and Butler New Zealand Bill of Rights Act: A Commentary (2005) states at [8.11] that the Attorney-General’s decision as to whether or not to make a report under s 7 “is not a matter that is justiciable in any Court of law”.

[22]     Article 9 has been described as a manifestation of a wider principle, “that the Courts and Parliament are both astute to recognise their respective constitutional roles”: Prebble v Television New Zealand Ltd [1994] 3 NZLR 1 at 7 (PC).

[23]     That wider principle was described by Cooke P in Te Runanga o Wharekauri Rekohu Inc v Attorney-General [1993] 2 NZLR 301 at 307 – 308 (CA) as follows:

There is an established principle of non-interference by the Courts in parliamentary proceedings.  Its exact scope and qualifications are open to debate, as is its exact basis.  Sometimes it is put as a matter of jurisdiction, but more often it has been seen as a rule of practice;…. However it be precisely formulated and whatever its limits, we cannot doubt that it applies so as to require the Courts to refrain from prohibiting a Minister from introducing a Bill into Parliament.

[24]     The application of art 9 and the comity principle to the s 7 reporting function of the Attorney-General has already been considered in both the High Court and this Court.  In Mangawaro Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 (HC), Gallen J found that the Attorney-General’s actions under s 7 were “proceedings in Parliament” and encompassed by art 9. That view was endorsed in an obiter comment in the majority judgment of this Court in Awatere Huata v Prebble [2004] 3 NZLR 359 at [55] where McGrath J said:

That a statutory power is being exercised does not of itself take a matter outside of internal parliamentary procedures.  For instance, s 7 of the New Zealand Bill of Rights Act 1990 imposes a duty on the Attorney-General, on the introduction of a Bill to the House, to bring to its attention any provision that is inconsistent with that Act.  Although that is the exercise of a statutory power by a Minister it is an internal parliamentary matter, within the area covered by privilege (Mangawara Enterprises Ltd v Attorney-General [1994] 2 NZLR 451 per Gallen J). The statutory duty is of course binding on the Attorney-General, but its discharge is administered by the House rather than by the Courts.

[25]     This Court’s decision was reversed by the Supreme Court, but that Court did not revisit this issue: Awatere Huata v Prebble [2005] 1 NZLR 289 at [26].

[26]     The history and purpose of art 9 is explained in the judgment of the majority in Buchanan v Jennings [2002] 3 NZLR 145 at [19] – [24] (CA). As the Court noted at [28], there is considerable uncertainty about the meaning of art 9, especially about the scope of the term “proceedings in Parliament”. The Court went on to discuss at some length the difficulties in defining the boundaries of art 9 and the comity principle (although the case was appealed to the Privy Council, the appeal was dismissed and the views of the majority of this Court were upheld: [2005] 2 NZLR 577). We do not propose to revisit that exercise here because, for the reasons which follow, it is not necessary in the circumstances of this case.

[27]     Mr Pike argued that the role of the Attorney-General under s 7 is a role which he or she undertakes in his or her capacity as a Member of Parliament, not as a member of the executive.  He said that his appearance in this Court on behalf of the Attorney-General was made subject to a reservation of the Attorney-General’s right of free speech in Parliament, with which the Courts could not interfere.

[28]     However it is at least arguable that the Attorney-General’s role under s 7 is not that of a Member of Parliament.  It is a role entrusted to him or her by Parliament because of his or her position as the senior law officer of the Crown, qualified to make the legal assessments required by s 7: see McGrath “Principles for Sharing Law Officer Power – The Role of the New Zealand Solicitor-General” (1998) 18 NZULR 197 at 202 — 204.  On the face of it, that is an executive role.

[29]     As noted earlier, the Attorney-General relies on advice from officials of either the Ministry of Justice or Crown Law in undertaking the s 7 role, which again indicates an executive role as being undertaken.  That is also supported by the description of the Attorney-General’s role in the Cabinet Manual 2008 at [4.3] and [4.4].  That description refers to the Attorney-General’s general responsibility for maintaining a rule of law, and notes the requirement under s 7 to report to the House of Representatives if a Bill appears to be inconsistent with the NZBORA.  It states that the Attorney-General is not to be influenced by party political considerations and that, when acting in the law officer role, the Attorney-General is not subject to the collective responsibility otherwise applying to Cabinet Ministers.  This indicates a recognition that the s 7 role of the Attorney-General has the same character as his or her other roles which are exercised as a member of the Executive.

[30]     We do not see the characterisation of the Attorney-General’s role under s 7 as that of a member of the Executive or as Parliamentary as particularly significant in the present context, however, because as has often been noted, it is the nature, not the source of power that is relevant: R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815 (CA).

[31]     We consider that the present situation has many parallels to that described in the Te Runanga o Wharekauri Rekohu case by Cooke P.  In that case, the Court found that it could not interfere with the introduction of a Bill by a Minister, a member of the Executive.  Although the Minister is part of the Executive, the role he or she is performing is parliamentary.  In our view, the same can be said of the Attorney-General’s role under s 7.

[32]     The Attorney-General’s reporting role under s 7 is part of the legislative process and therefore covered by the principle of comity.  The s 7 function has been embodied in Parliament’s standing orders (SO 261), though in slightly different terms to those used in s 7.  Standing Order 261 requires that the report under s 7 must be made by presentation of a paper which, once presented, is published under the authority of the House (SO 261(3) – (4)).  The s 7 function is designed to ensure that Parliament is aware when a Bill has been introduced that the Attorney-General considers there appears to be an inconsistency with the NZBORA so that any reduction in the rights contained in the NZBORA can be debated.  This is clear from the introductory speech of the Hon Geoffrey Palmer on the Report from the Select Committee on the Bill which was enacted as the NZBORA ((17 July 1990) 509 NZPD 2802) and on the third reading ((21 August 1990) 510 NZPD 3760).

[33]     It is not strictly necessary to make a finding on the application of art 9 itself, given our clear view that the comity principle is engaged.  But we acknowledge Mr Pike’s point that any finding by the Court that the Attorney-General had wrongly taken the view that legislation did not appear to be inconsistent with any of the rights and freedoms contained in the NZBORA would, at least inferentially, require him or her to make a report to the House that there does appear to be such an inconsistency, i.e. to speak in Parliament in a manner contrary to his or her own wishes.  A finding that the Attorney-General failed to speak in the House (report under s 7) when he or she does not believe it proper to do so could be seen as equally problematic as impeaching what he or she does say in Parliament, something which art 9 clearly prohibits.

[34]     It only requires a contemplation of the implications of a decision in favour of the appellants on this aspect of the case to realise how untenable the position they advocate would be.  What the appellants initially sought was for the Court to effectively act as an appeal body from the Attorney-General’s s 7 assessment, and to make a declaration that, contrary to the Attorney-General’s view, the Bill as introduced appeared to be inconsistent with certain provisions of the NZBORA.  Most significantly, the appellants also sought a declaration that the Attorney-General should recommend to the House that the Bill be reintroduced so that the apparent inconsistencies with NZBORA could be debated on the first reading. 

[35]     Given the expansive basis on which the inconsistencies are said to exist in this case (see [9] above), any review of the legislation by the Courts would have involved a major undertaking and if Parliament were to be required to await the Court’s decision, it would be a major impediment to the legislative process.  This was seen as a telling factor against judicial intervention in the workings of Parliament in Canada(House of Commons) v Vaid [2005] 1 SCR 667 at [20]. Furthermore, if Parliament did not delay the legislative process, the Bill could well have changed before the Court had released its decision.

[36] More importantly, it would place the Court at the heart of a political debate actually being carried on in the House. It would effectively force a confrontation between the Attorney-General and the Courts, on a topic in which Parliament has entrusted the required assessment to the Attorney-General, not to the Courts. If the Court took a different view from that of the Attorney-General, it is hard to see how it could require the Attorney-General to make a report to Parliament which the Attorney-General considered to be incorrect, as we explained at [33]. A declaration that the Attorney-General should recommend that the Bill be reintroduced would be an even greater interference with the political and legislative processes of the House. In short, a review of the s 7 duty in this manner would be the antithesis of the comity principle.

[37]     A further problem would arise if there was a later challenge to a provision on the basis of its inconsistency with the NZBORA.  If the Court had expressed a view one way or the other in the course of proceedings related to s 7, and had effectively “advised” the Attorney-General on his or her s 7 obligation, the Court and the parties would need to confront how that advice would affect the later proceedings.

[38]     Furthermore, the particular factual situation may raise inconsistencies that were not considered by the Court when evaluating the consistency of the Bill with the NZBORA for s 7 purposes.  The Courts are poorly placed to undertake a broad review of a whole piece of legislation, as such as a review would take place in an abstract setting with limited evidence and no ability to act in an inquisitorial manner.  The Court would in effect be largely limited to considering what was abstractly put before it by the parties and, as a result, would be unlikely to take into account all the possible inconsistencies that may arise from a statute.

[39]     The appellants argued that the view expressed by this Court in Awatere Huata that the discharge of the s 7 duty “is administered by the House rather than by the Courts” could not be substantiated, and that only the Courts could independently hold the Attorney-General accountable for the proper assessment of proposed legislation as s 7 requires.  In particular they pointed to the fact that there is no select committee responsible for scrutiny of human rights issues, as had been originally mooted when the NZBORA itself was under consideration in Parliament.  We do not consider that it is for the courts to evaluate the efficacy of Parliament’s internal processes.  In our view, the majority’s assessment in Awatere Huata was correct.

[40]     We were asked to consider the hypothetical possibility of an Attorney-General who steadfastly refused to make a report to Parliament in the face of legislation clearly interfering with rights contained in the NZBORA despite advice to the contrary and in plain dereliction of duty.  We did not find that hypothetical helpful to the analysis of the present situation, where the Attorney-General has formed a legal view consistent with expert advice provided to him by officials and made the assessment which Parliament entrusted to him.  The hypothetical example raises issues of process, but the present case raises only a difference of view about the legal assessment made by the Attorney-General.

[41]     As Mr Pike rightly noted, if the situation postulated in the hypothetical arose, it would be likely that there would be a constitutional crisis of some magnitude and that may well be one of the less significant aspects of it.  We agree with Mr Pike that the Court’s response to such a crisis is best left for decision when it arises, rather than as a matter of speculation in the course of litigation which simply does not come near the hypothetical situation postulated.  Nothing we say in this judgment should be seen as limiting the way in which a Court could approach a situation of the kind described in the appellants’ hypothetical example.

[42]     We conclude that it would be contrary to the comity principle for the Court to intervene in the Attorney-General’s role under s 7 in the circumstances of this case.  The High Court Judge rightly refused to engage with the appellants’ claim for a declaration that the Attorney-General had breached his duty under s 7.

Is the s 7 duty a continuous one?

[43]     The appellants argued in the High Court that the Attorney-General was required to report to the House under s 7 of the NZBORA not only on the introduction of a Bill, but also at the time of subsequent amendments such as after the reporting back from a Select Committee or at the time a supplementary order paper is promoted.

[44]     Clifford J rejected this.  He said that s 7 was clear in its terms, and that the obligation to report arose only on the occasion of the introduction of the Bill.

[45] In this Court, Ms Pender said that Clifford J had failed to interpret s 7 in light of its purpose (as required by s 5 of the Interpretation Act 1999), and in terms of s 16(2) of the Interpretation Act, which provides that a duty or function imposed by an Act may be performed from time to time. She argued that the purpose of s 7 is to ensure that the House is warned at the earliest opportunity of any aspect of draft legislation which appears to be inconsistent with any of the rights and freedoms contained in the NZBORA and that this need for notification arises not only on the introduction of the Bill but at other stages of the legislative process. This “gap” was identified by this Court in R v Poumako [2000] 2 NZLR 695.

[46]     That argument confuses purposive interpretation with advocacy for legislative change.  It may well be that there is a case to argue that s 7 should require the Attorney-General to report at other stages in the legislative process.  But, as Clifford J correctly observed, s 7 is clear and unambiguous in its terms.  Purposive interpretation does not extend to rewriting the statute book.  Similarly, the application of s 16(2) cannot affect the interpretation of s 7.  Section 16(2) applies where a provision imposes a duty, without specifying that the duty must be undertaken at a particular point of time or on the happening of a certain event.  In the present case, s 7 not only imposes the duty, but says when it must be performed (on the introduction of the Bill).  A Bill can be introduced only once.  That means that the duty arises only once.

[47]     We uphold the decision of Clifford J in this respect. 

Declaration of inconsistency

[48]     Our earlier conclusions make it unnecessary to deal with the issues relating to declarations of inconsistency.  We therefore comment only briefly.  The case made by the appellants for a declaration of inconsistency (that the Electoral Finance Act, or certain provisions of it, were inconsistent with the NZBORA) was rejected by Clifford J because:

(a)The questions raised in the case before him were abstract in nature, unrelated to an actual dispute or lis between an individual and the State or between individuals;

(b)The declarations were sought under the Declaratory Judgments Act not the NZBORA;

(c)This Court did not make such a declaration in R v Poumako; and

(d)Declarations of inconsistency had been accepted in other jurisdictions only where there had been a constitutional or statutory power to grant them.

[49]     Ms Pender accepted that the declarations sought in the High Court should have been sought as a remedy under the NZBORA itself, rather than under the Declaratory Judgments Act.  We will therefore evaluate her submission on the basis that the declaration is sought as a remedy under the NZBORA. 

Jurisdiction to make declarations of inconsistency in the abstract

[50]     The issue of whether the courts have the jurisdiction to grant a declaration of inconsistency in the abstract, without there being an underlying factual dispute between the parties, has not been considered before by the courts. 

[51]     Ms Pender argued that the Judge took too narrow a view of the Court’s powers to issue declarations of inconsistency in the abstract.  She pointed to the statutory power to make a declaration of inconsistency in s 92J of the Human Rights Act 1993 (that power is given to the Human Rights Review Tribunal) as an indicator that Parliament has accepted the concept, and that it should be implied that such a power existed within the NZBORA framework.  Although there is no corresponding provision in the NZBORA, Ms Pender submitted that since it was held in Simpson v Attorney-General [Baigent's Case] [1994] 3 NZLR 667 (CA) that the absence of an express remedies provision in the NZBORA did not prohibit the courts from granting effective remedies in appropriate cases, Parliament does not need to expressly confer the jurisdiction to grant a declaration of inconsistency in relation to a particular statutory provision even where the application of that provision to a particular factual situation is not in issue.

[52]     Ms Pender pointed to passages in the decision of this Court in Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 at [19] and [20] and of the Supreme Court in R v Hansen [2007] 3 NZLR 1 at [253], [254] and [259] (per McGrath J) and [267] and [268] (per Anderson J) in support of her submission that a declaration could be made in this case. However, neither Moonen nor Hansen refers to declarations of inconsistency, but rather to findings that a particular provision is inconsistent with the NZBORA.  And neither was considering a statutory provision in the abstract.

[53]     Ms Pender argued that the New Zealand Courts should assert a power similar to those given by statute or constitution to the Constitutional Court of Germany, the Constitutional Court of South Africa and the Supreme Court of the State of Rhode Island to issue what are in effect advisory opinions.  It is not clear to us why the fact that those Courts have specific constitutional or statutory jurisdiction should lead to the conclusion that New Zealand Courts should assert such jurisdiction in the absence of any statutory authority, presumably as a component of the inherent jurisdiction of the High Court. 

[54]     It is notable that the Attorney-General’s Advisory Group on the establishment of a Supreme Court in New Zealand recommended that the Supreme Court not be given the power to give advisory opinions: Replacing the Privy Council: A New Supreme Court (April 2002) at 48 – 49.  That recommendation was later accepted in the Supreme Court Act 2003.  In light of that, it would seem unusual if the High Court or this Court were therefore able simply to assert this jurisdiction.  Furthermore, as we explained above at [38], the Courts are not well-placed to give opinions without a specific factual background to assess the inconsistencies.

[55]     All of these factors count against there being jurisdiction for the High Court to make a declaration of inconsistency in the abstract.  But, ultimately, because of our views on the non-justiciability of the s 7 obligation, there is no need to make a final decision on this aspect of the case and so we leave the point open.

Jurisdiction to make declarations of inconsistency where there is a dispute

[56]     We do not need to comment on the availability of a declaration of inconsistency in a case where there is a dispute between the parties, (whether in a case commenced for the purpose of seeking the declaration as a standalone remedy or in the course of a criminal or civil proceeding) for the simple reason that this is not such a case.  Clifford J did not express a view on this aspect of the case either.  The question as to whether a declaration of inconsistency is an available remedy under the NZBORA is still to be resolved: see the discussion in Geiringer, “An Update on Implied Declarations of Inconsistency under the New Zealand Bill of Rights Act” (Paper presented at “Celebrating 60 years of the Universal Declaration of Human Rights”, Wellington, 9 and 10 December 2008).  We prefer to leave the question to be decided in a case in which the outcome depends on the answer, as this Court did in R v Poumako and the Supreme Court did in Belcher v The Chief Executive of the Department of Corrections [2007] NZSC 54.

Result

[57]     We conclude, for reasons which are broadly the same as those of the High Court Judge, that the appellants’ case was untenable and ought to have been struck out.  We dismiss their appeal.

Costs

[58]     The respondent sought costs.  We see no reason to differ from the normal principle that the winning party should receive an award of costs.  We therefore award to the respondent costs for a standard appeal on a band A basis and usual disbursements.  The appellants are jointly and severally liable for those costs and disbursements.

Solicitors:
Kiely Thompson Caisley, Wellington for Appellants
Crown Law Office, Wellington for Respondent