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NEW ZEALAND LAW COMMISSION

TE AKA MATUA O TE TURE

Report 37

Crown Liability and Judicial Immunity

A response to Baigent’s case and Harvey v Derrick

May 1997

Wellington, New Zealand

Table of Contents

The Law Commission is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled, and accessible, and that reflects the heritage and aspirations of the peoples of New Zealand.

The Commissioners are:

The Honourable Justice Baragwanath – President
Leslie H Atkins qc
Joanne Morris obe
Judge Margaret Lee

The Director of the Law Commission is Robert Buchanan.

The office is at 89 The Terrace, Wellington.
Postal address: po Box 2590, Wellington 6001, New Zealand.
Document Exchange Number SP 23534.
Telephone: (04) 473 3453. Facsimile: (04) 471 0959.
E-mail: com@lawcom.govt.nz

Report/Law Commission, Wellington, 1997

issn 0113-2334

isbn 1–877187–00–3

This report may be cited as: nzlc r37

Also published as Parliamentary Paper E 31Z

19 May 1997

Dear Minister

I am pleased to submit to you Report No 37 of the Law Commission, Crown Liability and Judicial Immunity: A Response to Baigent’s case and Harvey v Derrick.

This report forms an important part of the Commission’s reference to examine the legal position of the Crown, the basis of which is to give further effect to the principle that the state is under the law. Work on the remaining aspects of the reference, including the criminal liability of the Crown and reform of the Crown Proceedings Act 1950, is continuing.

The Commission has concluded that there should be no general legislation removing or circumscribing the remedy for breach of the New Zealand Bill of Rights Act 1990, which Baigent’s case held to be available. It considers that legislation should, however, be enacted to prevent actions against the Crown (or judges themselves) for breaches of the Bill of Rights Act by judges of the Court of Appeal, High Court, Employment Court, District Court (including the Environment Court) and Mäori Land Court. The policy reasons underlying the current law of judicial immunity, in particular the need for finality in litigation and the availability of adequate rights of appeal, also weigh against allowing Bill of Rights Act litigation in respect of judicial conduct.

In view of the Court of Appeal’s decision in Harvey v Derrick, the Commission also recommends that the immunity of District Court judges, and judges of the Environment Court and Mäori Land Court, be expanded to equate with that of High Court judges.

The Commission proposes that there be a systematic review of existing legislation which confers on the Crown and public bodies powers not enjoyed by citizens, and immunities from liability to which they would otherwise be subject, to ensure that those provisions are no wider than necessary to attain their purpose.

Finally, the Commission recommends that consideration be given to enacting legislation to compensate citizens who have suffered punishment as the result of a miscarriage of justice, in accordance with article 14(6) of the International Covenant on Civil and Political Rights.

Yours sincerely

The Hon Justice Baragwanath
President

Hon Douglas Graham MP
Minister of Justice
Parliament Buildings
Wellington