BORA reform is stalled

Eighteen months ago, the government promised to strengthen the Bill of Rights Act, by explicitly affirming the power of the courts to issue declarations of inconsistency and requiring Parliament to formally respond to them. So how's that going?

I was curious, so I asked for all advice about the proposal. You can read the response here. And the short version is that the proposal appears to be stalled. The documents leading to the announced in-principle decision suggested consultation with experts, with Cabinet approval by October 2018, and legislation in early 2019. But after that, everything stalled. There was a briefing on the outcome of Attorney-General v Taylor, in which the Supreme Court upheld its inherent jurisdiction to issue declarations of inconsistency, a briefing on options, and (in April) a draft Cabinet paper with the Attorney-General (both sadly withheld). But that paper does not appear to have been submitted to Cabinet.

As for why, who knows? Maybe Winston has vetoed an effective Bill of Rights Act, or maybe the government has just chickened out like they did over the capital gains tax. Alternatively, there's a screaming hint in the early briefing material, where they repeatedly push the idea that Crown law could mention an in-principle decision to allow declarations to the Supreme Court, and that "this could be viewed favourably by the Court... and could be relevant to the Court's deliberations". In other words, this was being pushed as a shoddy legal tactic, and now that that tactic has failed, the government sees no need to push it any further. Which is a pretty shitty way to do constitutional change.

Of course, that may not be the reason at all. But if the government insists on withholding information, then people are entitled to read between the lines and assume the worst. And if they don't want us to do that, they have an easy solution: front up and explain why an apparently serious proposal for real constitutional change has apparently been shitcanned.