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IN THE COURT OF APPEAL OF NEW ZEALAND
CA433/2008
[2009] NZCA 12BETWEENJOHN SPENCER BOSCAWEN
First AppellantANDGARTH NEIL MCVICAR
Second AppellantANDRODNEY 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…
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- AGLC
- Boscawen v Attorney-General [2009] NZCA 12
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- [2009] NZCA 12
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