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Rameka v New Zealand
Rameka v New Zealand was a challenge to New Zealand’s preventive detention regime. It was also the first case where the Human Rights Committee found that New Zealand had breached the International Covenant on Civil and Political Rights. The Committee found that New Zealand had breached article 9(4) of the ICCPR in relation to one of the three authors of the communication. This was because he did not have the power to take proceedings to challenge the lawfulness of his detention. The decision was notable because of the substantial disagreement amongst Committee members. Commentator Claudia Geiringer has noted that Rameka highlights how consensus decision making can lead to “lowest common denominator” outcomes.

The appeal
The Attorney-General appealed this decision, and the case was reconsidered by the Court of Appeal in May 2017. The central issue on appeal was whether the High Court should have made a declaration of inconsistency. The Court of Appeal reviewed both the jurisdiction of the courts to make such a declaration and its suitability in the circumstances, and affirmed the decision of the High Court. Furthermore, the Speaker of the House of Representatives challenged the use of parliamentary proceedings in the High Court decision, arguing that this was a breach of parliamentary privilege. The Court concluded that no such breach had occurred.

Jurisdiction for declarations
The Attorney-General argued that a declaration was not within the jurisdiction of the courts because it had not been expressly authorised by Parliament. He contended that the | Declaratory Judgments Act 1908 had sufficiently covered the area, and that this effectively ruled out such a remedy at common law. The Court disagreed: it stated that the Declaratory Judgments Act did not exclude jurisdiction of the courts, and went on to establish multiple sources conferring jurisdiction.

The first source of jurisdiction considered by the Court was the Bill of Rights Act itself. The Bill of Rights does not expressly grant the power to make declarations, nor does it exclude such a power. The Attorney-General accepted that sections 2-6 of the Bill allow the courts to identify inconsistencies between protected rights and other statutes, but said that this is limited to simply making indications of incompatibility, not formal declarations. The Court did not accept this jurisdictional limit. It held that the Bill of Rights intended the courts to point out unjustified limitations on rights, and that to exclude declarations would be contrary to both this purpose and to New Zealand’s obligations under the International Covenant on Civil and Political Rights. Furthermore, a declaration would provide a domestic remedy prior to any available internationally. The Court cited Baigent’s Case in stating that it would make no sense for Parliament to contemplate that New Zealand citizens could seek redress from the United Nations Human Rights Committee, but not from their own courts.

Next the Court turned to a number of cases that suggested the jurisdiction to make declarations should exist. Temese showed acceptance of such a possibility as early as 1992, supported by Baigent’s Case two years later. In Quilter v Attorney-General, the Court held that the Marriage Act 1955 was an unjustified limitation on the right to freedom from discrimination of same sex couples. The Court in Quilter stated: "… once Parliament has charged the Courts with the task of giving meaning and effect to the fundamental rights and freedoms affirmed in the Bill of Rights, it would be a serious error not to proclaim a violation if and when a violation is found to exist in the law." } The Court of Appeal in Attorney-General v Taylor saw this as further acknowledgment of the jurisdiction to make a declaration. Subsequently, Zaoui v Attorney-General included an argument by the Crown that the Court did not have the jurisdiction to make a declaration of inconsistency, and although the High Court did not consider such a declaration appropriate in the circumstances, it acknowledged that the jurisdiction to do so clearly existed. Finally, the most recent case R v Hansen observed that: "a major purpose of a Bill of Rights (entrenched or otherwise) is to prevent minority interests from being overridden by an oppressive or overzealous majority." These precedents were taken by the Court of Appeal as convincing support for the jurisdiction of declarations of inconsistency.

Finally, the Court of Appeal supported the finding of Heath J that section 92J of the Human Rights Act 1993 shows a Parliamentary acceptance of a court’s jurisdiction to make declarations of inconsistency. This section gives the Human Rights Review Tribunal the power to declare that an enactment is inconsistent with section 19 of the Bill of Rights, which protects the right to freedom from discrimination. In Taylor v Attorney-General, Heath J stated that it would be difficult to comprehend that Parliament would confer this declaratory power on the Tribunal but not on a more senior court. This is reinforced by the fact that the statute also allows a right of appeal from the Tribunal to the High Court about such declarations. The Court of Appeal agreed with this reasoning.

When a declaration should be made
Having determined that declarations of inconsistency are within the jurisdiction of the High Court, the Court of Appeal went on to consider when such declarations should be made. It stated that the remedy is one of discretion, and is not available as of right. In most cases an indication of incompatibility would suffice, rather than a formal declaration. However the Court accepted that there would certainly be times when a declaration should be used: A court will consider a DoI only where it is satisfied that the enactment impinges further on a protected right than can be justified in a free and democratic society, and such a conclusion can be reached only after evaluating the policy underlying the enactment and assessing any invitation to defer to another branch of government.

The Court held that in the case before them, a declaration was the appropriate remedy. The reasons for this were: the right to vote is an essential element of a free and democratic society; the limitation on this right was not justified; the legislature was aware of the inconsistency at the time of enactment; and there were no overseas developments that may cause Parliament to reconsider the Act independently. The Court of Appeal did state that Mr Taylor should not have been granted a declaration by himself because the Act in question did not affect him, but as the declaration was made in a single proceeding with joint plaintiffs who were affected, it was correct of the High Court to do so.

Parliamentary privilege
The Speaker of the House of Representatives raised a second challenge to the High Court’s declaration by arguing that the High Court had breached parliamentary privilege. In coming to his decision, Heath J had examined the section 7 report before reaching the same conclusion, and the Speaker was concerned that he had effectively reviewed a parliamentary proceeding in doing so. This could be a breach of parliamentary privilege if the Court had questioned Parliament’s treatment of the issues. However the Court of Appeal held that Heath J had not done so; he had merely described the parliamentary processes and noted the report’s existence before coming to his own conclusion about the same subject matter. This was an acceptable purpose for using such material. The Court also noted that the same situation had occurred in R v Hansen by members of the Supreme Court. Therefore this second challenge was also dispensed with, as parliamentary privilege had not been breached by the declaration.