When Power Goes Wrong · Liability & Remedy Ledger · Part 07

When does a Bill of Rights breach produce damages?

NZBORA does not contain a general damages section, but New Zealand courts developed public-law remedies. Damages are available in appropriate cases where necessary to vindicate rights; declarations may be sufficient where monetary compensation is not proportionate or necessary.

Baigent's Case established that a breach of NZBORA can attract monetary compensation even though the Act does not expressly list damages.

Later cases refined the approach. In Attorney-General v Taylor [2018] NZSC 104, the Supreme Court confirmed judicial power to make a declaration that legislation is inconsistent with NZBORA. Parliament has since enacted ss 7A–7B requiring formal notification and a Government response to declarations of inconsistency.

Modern cases emphasise proportional vindication rather than automatic money. In Attorney-General v Parore [2025] NZCA 328, a declaration was granted for a fair-trial breach but damages were refused because the declaration adequately vindicated the right. The Court noted that public-law damages for fair-trial breaches are likely to be appropriate only in limited, serious cases.

Rights breach ≠ automatic damages.The court asks what combination of remedies is effective and proportionate: declaration, stay, exclusion, reconsideration, apology/change in practice, or monetary compensation where other remedies are insufficient.

Possible remediesDeclaration, public-law damages, criminal-process relief, interpretation or other case-specific relief.

Leading lineBaigent → Taunoa → Taylor → Morrison/Parore.

Judicial limitChapman held there is no public-law compensation claim against the Crown for judicial acts covered by judicial immunity in the circumstances of that case.

Current principleVindication is contextual, not automatic.

The remedy is chosen to vindicate the right, not simply to punish the state.

Supreme CourtAttorney-General v Taylor [2018] NZSC 104; Attorney-General v Chapman [2011] NZSC 110.

Court of AppealAttorney-General v Parore [2025] NZCA 328.

StatuteNew Zealand Bill of Rights Act 1990.

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