measure is not to be approached as if it did no more than preserve the status quo. [31] There have been a number of cases in which a formal declaration of inconsistency has been sought but, until the present case, no declaration has been made.29 There is however no dispute that courts can conclude as part of the reasoning process that legislation is inconsistent with the Bill of Rights. The classic illustration of this is provided by this Court’s decision in R v Hansen which found that the reverse onus presumption of supply in the Misuse of Drugs Act 1975, applying to those in possession of controlled drugs above the specified amounts, was inconsistent with the presumption of innocence in s 25(c) of the Bill of Rights and that this could not be justified.30 [32] In Hansen, McGrath J noted that the court should not “shirk its responsibility to indicate” its view legislation is inconsistent with the Bill of Rights and that the need in those situations to rely on s 4 normally will be “sufficiently apparent from the Court’s statement of its reasoning”.31 And the Court of Appeal in Moonen v Film and Literature Board of Review used the language of “indications” or “declarations” interchangeably.32 In other cases the possibility of making a formal declaration has been flagged.33 [33] Boscawen v Attorney-General exemplifies the high point of the authority against the availability of a power to make a formal declaration.34 That case dealt with a challenge to the omission of the Attorney-General to report an apparent inconsistency with the Bill of Rights to the House of Representatives under s 7 of the Bill of Rights. The Court of Appeal outlined reasons which the Court considered told against there being jurisdiction for the High Court “to make a declaration of inconsistency in the abstract”.35 29 30 31 32 33 34 35 Those factors included the adoption of the Heath J discusses some of the cases: Taylor (HC), above n 3, at [41]–[42] and [45]; and see the discussion in Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [28.6.1]–[28.7.12]. R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1. At [253]. See also the comments at [254] and [259]. Moonen v Film and Literature Board of Review [2000] 2 NZLR 9 (CA) at [19]–[20]. See, for example, R v Poumako [2000] 2 NZLR 695 (CA). In that case Thomas J (dissenting) would have granted a declaration: at [70] and [106]–[107]. Henry J also expressly left open the possibility of making a formal declaration: at [68]. Boscawen v Attorney-General [2009] NZCA 12, [2009] 2 NZLR 229. At [55] per O’Regan J for the Court.