New Zealand Case Law: Decisions & Judgments

Topic

Declaration of inconsistency

Legal area

Court

16 Oct 2023

MATARA v ATTORNEY-GENERAL [2023] NZHC 2888

Citation

[2023] NZHC 2888
Court

High Court

The plaintiff's claims are dismissed: declarations of inconsistency were not relevant because Fitzgerald and subsequent Court of Appeal reinterpretation corrected the sentence and the legislation has been repealed; s9 was not breached because the 18‑month parole delay did not cause unjustified detention and the claimant was ultimately denied parole; s22 was not breached for the same reasons; although the three strikes regime as initially applied risked breaching s25(a) by removing substantive judicial assessment, the breach was remedied by appeal in this case and no further relief is required…
7 Aug 2023

WAIRARAPA MOANA KI POUĀKANI INC v ATTORNEY-GENERAL [2023] NZHC 2086

Citation

[2023] NZHC 2086
Court

High Court

Parliament did not definitively oust the High Court's jurisdiction to make declarations of inconsistency by s15(4); however, the Court should decline to exercise that jurisdiction in this case because adjudication would necessarily re-open, evaluate and effectively re-litigate a final Treaty settlement, entail complex social and political judgments inappropriate for judicial determination, and contravene Parliament's evident intent to achieve finality for the settlement.
17 Feb 2023

HOBAN v ATTORNEY-GENERAL [2023] NZHC 222

Citation

[2023] NZHC 222
Court

High Court

Leave to appeal was granted because the proposed appeal raises genuine questions of law of general and public importance — namely the application of s 19(1), s 19(2) and s 5 of BORA to under-inclusive hate speech provisions — and those questions merit authoritative determination by the Court of Appeal.
21 Nov 2022

MAKE IT 16 INCORPORATED v ATTORNEY-GENERAL [2022] NZSC 134

Citation

[2022] 1 NZLR 683
Court

Supreme Court

The Supreme Court (majority) held that the statutory minimum voting age of 18 in the Electoral Act 1993 and the Local Electoral Act 2001 discriminates against 16 and 17 year olds contrary to s 19 of the NZBORA and that the Attorney-General had not demonstrated the discrimination was a justified limit under s 5; accordingly a declaration of inconsistency should be made (while recognising Parliament retains sole power to decide any legislative response and that s 12 does not preclude such a declaration in this context).
18 Nov 2022

PAULINE JANICE HARRISON v ADRIENNE HARRISON AND GRAEME ROSS HARRISON [2022] NZSC 135

Citation

[2022] NZSC 135
Court

Supreme Court

The application for leave failed the statutory threshold because it raised no matter of public importance and presented no real risk of miscarriage of justice; the Court correctly required security for costs, declined to waive it given the vexatious and unmeritorious nature of the proposed appeal, and dismissed the leave application and ordered costs when security was not provided.
22 Jun 2022

ATTORNEY-GENERAL v MARK DAVID CHISNALL [2022] NZSC 77

Citation

[2022] NZSC 77
Court

Supreme Court

The Supreme Court granted leave to appeal and cross‑appeal and framed the certified questions for determination: whether the Court of Appeal was correct to declare the statutory schemes inconsistent with s 26(2) of the NZBORA and whether it was correct not to make declarations under other specified Bill of Rights provisions; the Attorney‑General's principal contention is that interpretive remedies can and should be applied to avoid declarations.
22 Feb 2022

CHISNALL v THE ATTORNEY-GENERAL (NO 2) [2022] NZCA 24

Citation

(2022) 13 HRNZ 107
Court

Court of Appeal

The Court concluded that Part 1A of the Parole Act 2002 and the Public Safety (Public Protection Orders) Act 2014 are inconsistent with s26(2) of the New Zealand Bill of Rights Act 1990 because they permit deprivations of liberty without the requisite safeguards, and those inconsistencies are not justified under s5, warranting formal declarations of inconsistency.
14 Dec 2021

MAKE IT 16 INCORPORATED v ATTORNEY-GENERAL [2021] NZCA 681

Citation

[2021] NZCA 681
Court

Court of Appeal

Sections 12 and 19 of the Bill of Rights Act can be read compatibly; the Attorney-General did not discharge the burden under s5 to justify the exclusion of 16–17 year olds from the franchise as a reasonable demonstrably justified limit, but the Court exercised restraint and declined to grant declarations of inconsistency; appeal dismissed.
11 Jun 2021

BOUWER v POLICE [2021] NZHC 1388

Citation

[2021] NZHC 1388
Court

High Court

The Court assumed inconsistency between s 77 LTA and s 25(c) NZBORA (the Crown did not advance a s 5 justification) but concluded it was bound by prevailing appellate authority that formal declarations of inconsistency are not made in criminal proceedings and must be sought in a civil High Court proceeding; even if jurisdiction existed the Court would decline to grant a declaration on these facts because Parliament was already aware (Attorney‑General s7 report), the inconsistency was recorded in the reasons, no s5 evidence was advanced and a declaration would provide no practical utility to t…
3 Mar 2021

M (SC 82/2020) v ATTORNEY-GENERAL (IN RESPECT OF THE MINISTRY OF HEALTH) [2021] NZSC 15

Citation

[2021] NZSC 15
Court

Supreme Court

The application for reconsideration is dismissed because the reasons for declining leave on the discrimination ground remain valid: the discrimination issue was not pleaded or considered in the Courts below and the appellant was detained under the repealed Criminal Justice Act 1985 rather than the CP(MIP) Act, making this case inappropriate for the Court to decide that issue on reconsideration.