User:BWalley/sandbox

Remedies under the Bill of Rights Act 1990
The Bill of Rights Act 1990 does not provide express remedies for when one of the rights contained in the Act has been breached. Despite this, the New Zealand Court of Appeal has held on several occasions that it has the jurisdiction to develop remedies. The focus of Bill of Rights Act remedies is to provide vindication in such a way that upholds the importance of the right, rather than invokes punishment for its breach. As such, court decisions can often include a combination of remedies in order for the breached right to be properly vindicated.

Exclusion of Evidence
A common remedy to the Bill of Rights Act 1990 is that the evidence obtained through breaching a right is inadmissible in court. This developed in the courts as a presumption of exclusion but was then lessened to a balancing exercise where various factors are weighed up to determine the admissibility of evidence tainted by a breach of the Bill of Rights Act 1990. This remedy is now reflected in section 30 of the Evidence Act 2006.

Reduction in Sentence
A reduction in sentence can be granted as a remedy in cases where s25(b) of the Bill of Rights Act 1990 has been breached: the right to be tried without undue delay. In Williams v R [2009] NZSC 41, the New Zealand Supreme Court held that a reduction in sentence was a more appropriate remedy than a stay of proceedings, except for extremely minor offending.

Costs
The regular rule that costs will follow the event is not always the case under the Bill of Rights Act 1990. In some cases, the court can reduce costs for claims under the Act that were worthy, even if they were ultimately unsuccessful.

Compensation
In Simpson v Attorney-General (Baigent’s Case) (1994) 1 HRNZ 42, the Court of Appeal awarded compensation under the Bill of Rights Act 1990. This was a new remedy under the Act. In this case, the plaintiffs were seeking damages for a search warrant executed on their place of residence that was obtained on incorrect information. This was told to the police but they continued with the search nonetheless. The Court of Appeal held that they had an inherent jurisdiction to develop remedies under the Bill of Rights Act 1990, and that compensation was an appropriate remedy in this case. Cooke P stated that the court would “fail in our duty if we did not give an effective remedy to a person whose legislatively affirmed rights have been infringed.” The Court of Appeal thus held that there is a public law action available against the crown for a breach of the Bill of Rights Act 1990. It is likely to only be available to those who do not attain a suitable alternative remedy for a breach of the Act

It is often cited that exemplary damages are an inappropriate remedy under the Act, because the focus should be on compensation rather than punishment Exemplary damages were awarded in Archbold v Attorney-General [2003] NZAR 563, but the William Young J qualified this remedy by stating that he would alternatively have awarded the same amount as public law compensation for the breach. Whether a court can award exemplary damages for a public claim of a breach of the Bill of Rights Act 1990 is therefore uncertain.

Declaration of Inconsistency
A declaration of inconsistency is a remedy in the form of a formal declaration by a court of law that legislation is inconsistent with a right contained in the Bill of Rights Act 1990. It was made available as a remedy following the litigation in Taylor v Attorney General [2015] 3 NZLR.

History
The first suggestion that a declaration of inconsistency could be available was in 1992 Following this, Temese v Police (1992) C CRNZ 425 and Quilter v Attorney-General (1998) 1 NZLR 153 both suggested that it could be available in the appropriate case, but fell short of making a declaration. In Moonen v Film and Literature Board of Review [2000] 2 NZLR 9, Tipping J stated that the courts had a duty to indicate when legislation was inconsistent with the Bill of Rights Act 1990, but it was unclear whether he meant a formal declaration of inconsistency or a mere indication of inconsistency contained within the judgement. In R v Poumako [2000] 2 NZLR 695, Thomas J dissented by making a formal declaration of inconsistency. It followed in Zaoui v Attorney-General [2005] 1 NZLR 577 that the court held that Moonen and Poumako had established a jurisdiction for courts to issue a formal declaration of inconsistency. However, in R v Hansen [2007] NZSC 7, the Court of Appeal held that while courts could inquire into the consistency of legislation with the Bill of Rights Act 1990, they did not have the jurisdiction to issue declarations of inconsistency.

Taylor Litigation
In 2016, Heath J in Taylor v Attorney-General [2015] 3 NZLR 791 issued a declaration of inconsistency between s80(1)(d) Electoral Act 1993 and s12(a) Bill of Rights Act 1990. This was the first declaration of inconsistency in New Zealand. It was appealed to the Court of Appeal and was dismissed. The Attorney-General argued that the Court had no jurisdiction to issue a declaration of inconsistency unless it was expressly authorised by legislation. The Court of Appeal called this a “bold argument” and concluded that “inconsistency between statutes is a question of interpretation…and it lies within the province of the courts.” As such, declarations of inconsistency are an available remedy under the Bill of Rights Act 1990.

Other Remedies
Several other remedies were suggested to be available in R v Taylor (1996) 14 CRNZ 426. These included a reduction in the penalty, police disciplinary proceedings, criminal prosecution, a declaration, or future-looking relief Other remedies have included special jury directions, and orders that witness testimony be disregarded. It can often depend on the nature of the right breached as to what remedy will be appropriate to vindicate that breach.

The future of Bill of Rights Remedies
Article 2(3) of the International Covenant on Civil and Political Rights requires parties to the treaty to ensure that any person whose rights and freedoms had been breached had an effective remedy. It is often argued that the lack express remedies in the Act does not meet this requirement. One such express remedy is a judicial power to strike down legislation that is inconsistent with the Bill of Rights Act 1990.

It is an on-going conversation amongst legal academics in New Zealand as to whether there should be an entrenched constitutional bill of rights that gives the court the power to strike down inconsistent legislation. This would provide a remedy to breaches of the Bill of Rights Act 1990 as the courts could then uphold the right, rather than finding it to be subservient under s4. The UN Human Rights Committee criticised New Zealand for the lack of court power to strike down legislation inconsistent with the Bill of Rights Act 1990. They equated this lack of power with a lack of human rights protection Geoffrey Palmer and Andrew Butler published a book in 2016 entitled A Constitution for Aotearoa New Zealand that laid out a proposed entrenched bill of rights, including a judicial power of strike down. This was intended to start a conversation in New Zealand as to whether entrenching their bill of rights in a constitution was the way forward.

The resistance to an entrenched bill of rights in New Zealand is because the country is governed by parliamentary sovereignty. Giving the courts the power to strike down Parliament’s legislation would be contrary to the doctrine of parliamentary supremacy. There is also resistance because the protection of human rights is not the courts’ responsibility and should involve all branches of government.