of powers that the High Court of Australia considered s 36 of the Charter in Momcilovic. [63] The observations in Momcilovic should be seen in light of this feature of the way the Constitution is interpreted. But, in any event, as we have said, we consider making a declaration which confirms rights and status is a part of the judicial function in the New Zealand context.86 A further distinguishing feature in terms of the New Zealand position is s 3 of the Bill of Rights which has no equivalent in the Charter. [64] Nor do we see A v Secretary of State as supporting the argument the making of a declaration of inconsistency is outside of judicial function. Indeed, the case overall provides support for the approach we take in that it confirmed the court had a role in scrutinising the proportionality of measures taken in derogation of obligations under the European Convention on Human Rights. That was so despite recognition that the decision that had been made about the existence of a threat to national security involved political judgement. Against that background, the majority decided that the response adopted here was not a proportionate one and was unjustifiably discriminatory on prohibited grounds. The order was quashed. [65] We accordingly conclude that there is power to make a declaration of inconsistency and that such a power is consistent with judicial function. [66] We add that in its reasoning towards the conclusion there was power for the higher courts to make a declaration of inconsistency, the Court of Appeal canvassed the relationship between the political and judicial branches of government and the role of the higher courts under the New Zealand constitution.87 As is apparent, we have not found it necessary to undertake a similar exercise. We are accordingly not to be taken as endorsing the Court of Appeal’s approach towards these matters. 86 87 See also Ngāti Whātua Ōrākei Trust v Attorney-General [2018] NZSC 84 at [46]. Taylor (CA), above n 4, at [149]–[156] and [164]. We add that we are inclined to agree with the Chief Justice below at [107] that the declaration is a response to those whose rights are affected, and not, as the Court of Appeal suggested, to assist Parliament in its role.