This is an important contribution to the rights discourse in New Zealand. The HRC also notes that if a reconstructed Proceedings Commissioner s office were to be empowered to conduct BORA challenges, this ought to be in addition to the existing right of private action rather than in substitution for it. A substantial resource may be involved in BORA litigation compared with HRA procedures which limit litigation costs. There is another aspect of New Zealand s human rights laws which was not addressed in the Report but which bears mention. Both the HRA and the BORA contain anti-discrimination provisions yet neither contains a general equal protection clause.
Many constitutions have a general equality and equal protection clause.
Such clauses have been a fertile source of constructive development of the relevant law. The primacy issue is a vexed one. The present position reflects some disynchronicity between the HRA and BORA and New Zealand s unsystematic constitutional development. In all the circumstances, including the merits of incremental reform toward a more satisfactory constitutional framework, the HRC supports the proposal that the BORA be amended to provide for the making of a declaration of inconsistency. There is one respect in which a minor change to the primacy position would significantly improve the current, weak, position.