Friday, November 09, 2018


Back in 2016, the High Court declared that National's 2010 prisoner voting ban (the one which was so shabby and shoddily passed that it brought Parliament into disrepute) was inconsistent with the Bill of Rights Act. The case has worked its way through the courts, and today it was finally settled by the Supreme Court. Their ruling? That the courts have the power to issue declarations of inconsistency with the BORA. Their reasoning is pretty obvious: declarations are part of the usual arsenal of remedies available to the court, and so are available, just as damages were (the Chief Justice throws in specific statutory authorisation from the Declaratory Judgements Act 1908 as well). While the BORA states that laws are binding despite such a declaration - something else which the court takes as justifying their existence - that does not mean declarations are a worthless remedy. Instead, they are a clear vindication of the right, an explicit statement of the law, and potentially useful in international litigation e.g. before the UN Human Rights Committee. As for the Attorney-General's argument that inconsistent legislation wasn't really inconsistent because it altered the rights in the BORA, that was treated with the contempt it deserves.

What happens next? Nothing much. Because despite its shoddy arguments in this case, the government has already yielded the point and announced plans to give the BORA tiny teeth by explicitly recognising such declarations of inconsistency and requiring Parliament to formally respond to them. Again, that won't allow laws to be overturned - but will force the politicians who pass them (or more likely, their political successors) to rethink the matter and publicly justify themselves. Which is a start. But while they're at it, there's another obvious way they could improve things: by requiring every enactment passed despite a s7 declaration of inconsistency from the Attorney-General to undergo periodic review to determine whether it is still necessary. Which might help Parliament fix its own messes before the judiciary has to put them on formal notice.