Steven Price

My book

Media Minefield

Guide to NZ Media Law

Official Information Act

Official Information Act

Bill of Rights Act

Media law resources

Feeds (RSS)

« | Main | »

Boscawen appeal fails

By Steven | February 17, 2009

The Court of Appeal has thrown out the Bill of Rights challenge to the Electoral Finance Act. That’s not to say that they thought the EFA was consistent with the BORA. Just that they wouldn’t consider the issue.

I’m not too surprised that they threw out the challenge to the Attorney-General’s decision not to report to Parliament that the bill appeared to be inconsistent with the BORA. I didn’t think that the courts would want to wade into something so closely associated with the proceedings of Parliament.

But the Court of Appeal also whiffed on the second, more interesting and important point: do the courts have power to issue declarations of inconsistency with the legislation itself? The Court of Appeal leaves the question open (but suggests the answer will be no). Why didn’t it even address the question? Because:

Our earlier conclusions make it unnecessary to deal with the issues relating to declarations of inconsistency…. because of our views on the non-justiciability of the s. 7 obligation, there is no need to make a decision on this aspect of the case…

I don’t understand this. The earlier conclusions were about the Attorney-General’s report to Parliament. They were mostly about the reasons the courts shouldn’t mess with that process. But once the Bill is law, the ballgame is different. The question of declarations of inconsistency is a separate question, and it’s not self-evident that the answer to one determines the answer to the other.

Anyway, the flavour of the judgment is that the courts will be reluctant to address “abstract” issues (ie BORA questions that don’t arise in the course of a separate dispute). They even leave to another day whether a declaration will be available as a remedy in separate-dispute cases. I’m inclined to think this is a shame.

Topics: Electoral speech, General, NZ Bill of Rights Act | 11 Comments »

11 Responses to “Boscawen appeal fails”

  1. Andrew Geddis Says:
    February 17th, 2009 at 4:07 pm

    I agree – the general declaration of inconsistency in no way hinged on the availability of review of the A.G.’s original decision. However, I think the C. of A.’s judgment reflected a weakness in the pleadings and a misstep by the plaintiffs at the H.Ct level. Rather than focus on the A.G.’s act/omission under s.7 (always a loser, IMHO), they should have gone for a straight BORA declaration from the start. By appearing to mix the two issues, they ended up confusing them (and the court).

    As for the broader issue (can you ever get a BORA declaration ?), the answer increasingly is looking like “in theory maybe, in practice never.” While the courts keep leaving the door slightly ajar, the fact no-one has worked out how to get a toe into that crack yet is (I think) revealing. I also don’t get the court’s distinction between a declaration “in the abstract” (ie “without there being an underlying factual dispute between the parties”) and one where there is “a dispute between the parties” (ie “a case commenced for the purpose of seeking the declaration as a standalone remedy”). Why wasn’t Boscawen an example of the latter, rather than the former?

  2. Graeme Edgeler Says:
    February 17th, 2009 at 9:21 pm

    Andrew – I’d missed that statement in my first reading of the judgment. It is very odd. I’d assumed that they had considered this an abstract case, and the alternative, which they were still leaving open (at least in theory) was as an adjunct to some other case – for example, when someone was prosecuted under the EFA, they might be able to ask for a declaration of inconsistency.

    However, they really do seem to consider that “a case commenced for the purpose of seeking the declaration as a standalone remedy” might still be enough.

    The best I can come up with is that when they are discussing a case commences for the purpose of getting a declaration as a standalone remedy, that that case would still require some specific factual underpinning – a dispute. For example, as follows (using the EFA):

    Person X wishes to publish during a regulated period an advertisement criticising some policy. They wish to publish it across the country, and spend more than $120,000 on it. They are not sure whether this would be legal, because they are unsure whether their proposed advertisement falls within the definition of election advertisement.

    They make an application under s 3 of the Declaratory Judgments Act 1908 asking the court to declare that they would not be breaking the law in promoting their advertisement, or that if they would be breaking the law that the law be declared to be inconsistent with freedom of expression.

    p.s. for this purpose, s 3 of the Declaratory Judgments Act states:

    Where any person … desires to do any act the … legality… of which depends on the construction or validity of [a] statute …

    such person may apply to the High Court by originating summons for a declaratory order determining any question as to the construction or validity of such statute … or of any part thereof.

  3. DMPK Says:
    October 2nd, 2017 at 8:51 am

    … [Trackback]

    […] Find More on|Find More|Find More Informations here|There you will find 44408 more Informations|Informations to that Topic: […]

  4. article source Says:
    October 5th, 2017 at 11:33 am

    … [Trackback]

    […] Find More here|Find More|Find More Infos here|Here you can find 88159 additional Infos|Informations on that Topic: […]

  5. agen bola sbobet Says:
    October 24th, 2017 at 4:39 pm

    … [Trackback]

    […] Find More on|Find More|Read More Informations here|Here you can find 83850 more Informations|Informations on that Topic: […]

  6. iraq political & Law Says:
    October 28th, 2017 at 11:07 am

    … [Trackback]

    […] Find More here|Find More|Read More Infos here|Here you will find 76678 more Infos|Infos on that Topic: […]

  7. slot machines Says:
    November 2nd, 2017 at 3:44 am

    … [Trackback]

    […] Find More here|Find More|Find More Infos here|There you will find 9510 additional Infos|Informations to that Topic: […]

  8. cpns 2018 jatim Says:
    November 21st, 2017 at 4:22 am

    … [Trackback]

    […] Find More here|Find More|Find More Infos here|There you can find 61883 additional Infos|Informations on that Topic: […]

  9. here are the findings Says:
    November 25th, 2017 at 1:21 pm

    … [Trackback]

    […] Read More on|Read More|Find More Infos here|There you can find 58023 additional Infos|Infos on that Topic: […]

  10. satta matka Says:
    December 2nd, 2017 at 1:35 am

    … [Trackback]

    […] Read More here|Read More|Read More Informations here|There you can find 41109 more Informations|Informations to that Topic: […]

  11. Engineer X Says:
    December 6th, 2017 at 4:28 am

    … [Trackback]

    […] Find More on|Find More|Find More Infos here|Here you can find 58696 more Infos|Informations on that Topic: […]


You must be logged in to post a comment.