For these reasons, we consider the text and purpose of the Bill of Rights overall
[50]
supports the court exercising its usual range of remedies of which a declaration is a
part.
[51]
The Attorney-General also placed some reliance on the absence of any of the
mechanics that would usually be associated with provision for the making of a
declaration such as ensuring notice is given to the Attorney-General and so on.63 We
agree that is the usual course in equivalent overseas legislation. But the absence of
the mechanics does not mean the absence of a power.
Consistency with judicial function?
[52]
The second of the Solicitor-General’s two principal submissions was that there
was no jurisdiction to make a declaration because the judicial function is adjudicatory.
Here, where there is no controversy over the interpretation of the 2010 Amendment
and no action can be taken in relation to the declaration, the submission is that the
High Court’s action is purely advisory. This submission is made in the context of the
statement by the Court of Appeal that a declaration of inconsistency:64
… is not a declaration of right. It determines no legal rights and conveys no
legal consequences as between the parties.
[53]
But a declaration that s 80(1)(d) is inconsistent with the Bill of Rights is a
formal declaration of the law and, in particular, of the effect of the 2010 Amendment
on the respondents’ rights and status. It provides formal confirmation they are persons
who are disqualified to vote by a provision inconsistent with their rights. Further, the
courts may make a declaration under the Declaratory Judgments Act 1908 even when
there is no lis.65 Finally, the making of such a declaration is consistent with the usual
function of the courts.
63
64
65
Comparable statutes make provision for example for the Attorney-General to present the
declaration to Parliament and prepare a response to it within given time-frames: Human Rights
Act 2004 (ACT), s 33; and Charter of Human Rights and Responsibilities Act 2006 (Vic), s 37.
There are also powers for the Minister to take remedial action: Human Rights Act 1998 (UK),
s 10; and provision for the possibility of paying compensation: European Convention on Human
Rights Act 2003 (Republic of Ireland), s 5.
Taylor (CA), above n 4, at [66].
Mandic v Cornwall Park Trust Board [2011] NZSC 135, [2012] 2 NZLR 194 at [5]–[9] per
Elias CJ and [82] per Blanchard, Tipping, McGrath and William Young JJ.
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