recommendation of the Attorney-General’s advisory group on the establishment of the Supreme Court not to give the Court the power to give advisory opinions. The Court also noted the courts are “not well placed to give opinions without a specific factual background to assess the inconsistencies”.36 However, the Court made no final decision on the point.37 Similarly, the Court left open the question of the availability of a declaration of inconsistency in a disputed case.38 [34] In other cases, for various reasons, the court has decided not to make a declaration but has left the possibility of doing so open. For example, the possibility of making a declaration was left open in R v Manawatu.39 The Court said that that was not a case where a declaration would be made even if there was jurisdiction where the Court’s position that the provision in the relevant legislation 40 should be repealed had been accepted and legislation to implement repeal introduced.41 [35] The Court of Appeal in Belcher v The Chief Executive of the Department of Corrections declined to make a declaration of inconsistency in relation to the extended supervision order regime.42 The Court considered it had no jurisdiction because it was being asked to exercise an originating jurisdiction.43 The Court also concluded there was no power to make a declaration of inconsistency in a criminal proceeding.44 [36] In a similar vein, in R v Exley, the Court of Appeal said there was no jurisdiction to make a declaration of inconsistency in the context of an appeal against sentence.45 36 37 38 39 40 41 42 43 44 45 At [54]. At [55]. At [56]. R v Manawatu (2006) 23 CRNZ 833 (CA) at [13]. Crimes Act 1961, s 398 affecting the ability for dissenting judgments in criminal appeals. See also the interlocutory decision in Taunoa v Attorney-General [2006] NZSC 95 where the Court noted that there is no jurisdiction where the legislation in relation to which the declaration is sought is not in force at the relevant time. Belcher v The Chief Executive of the Department of Corrections [2007] NZCA 174. At [12]. At [13]–[16]. Leave to appeal declined: Belcher v The Chief Executive of the Department of Corrections [2007] NZSC 54. R v Exley [2007] NZCA 393 at [21]. Leave to appeal declined: Exley v R [2007] NZSC 104.