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• Introduction
• Conclusions
• Terminology
• The Decisions Considered
• Baigent’s Case
• Harvey V Derrick

1 Summary and context

INTRODUCTION

1 _The New Zealand Bill of Rights Act 1990 (“the Bill of Rights Act” or “the Act”) states fundamental rights and freedoms of New Zealanders. In this report we make recommendations concerning the enforceability of rights conferred by the Act. We also make recommendations regarding the scope of public sector powers and immunities, the immunity from suit of judges and others in the judicial process, and the provision of compensation for those wrongly convicted of a criminal offence.

2 In September 1995 the Law Commission was asked to advise, in the context of its work on the liability of the Crown, what legislative response (if any) should be made to Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR 667 (CA) (see paras 9–13). On 1 April 1996 we issued a draft report which was circulated to Government departments, Crown agencies, the New Zealand Law Society and certain legal academics and practitioners. We express our appreciation for the thoughtful responses, which have confirmed our major ideas and have led to the modification of others.

3 We have considered the position of the Crown and also of public bodies which are bound by the Bill of Rights Act. Since issues of public sector liability and immunity are at the heart of the question, the Commission has included within its examination the Court of Appeal decision in Harvey v Derrick [1995] 1 NZLR 314 (see para 14). Legislation which is before Parliament would reverse the effect of Harvey v Derrick: Summary Proceedings Amendment Bill (No 2) 1995. Consideration of that topic raises in turn New Zealand’s compliance, in cases of wrongful conviction, with article 14(6) of the International Covenant on Civil and Political Rights, to which the Bill of Rights Act refers.

CONCLUSIONS

4 We have reached the following conclusions:

• No legislation should be introduced to remove the general remedy for breach of the Bill of Rights Act held to be available in Baigent’s case.
• The Crown is liable under s 3(a) of the Bill of Rights Act for breaches of the Act by the Executive, insofar as those breaches may be considered acts of the Crown, eg, breaches by Ministers and departments. Public bodies, other than the Crown, performing “public functions” in terms of s 3(b) of the Act should have primary responsibility for their own conduct and that of their personnel which entails breach. The Crown should be liable only to the extent that it was a party to the relevant conduct of the public body.
• The Attorney-General (or in criminal cases the relevant Crown Solicitor) should be served with, and have standing to appear in, all proceedings involving construction or application of the Act. Consideration should be given to whether the Crown should be subject to residual liability¹ for breaches of the Act by public bodies where the redress available is deficient.
• There should be systematic review of existing legislation conferring on the Crown and public bodies powers not enjoyed by citizens and also immunities from suit or liability to which citizens would be subject. Such a review should ensure that such powers and immunities are effective to attain their purpose and that they are of the minimum extent possible to do so. The review should extend to existing Crown prerogative powers and immunities.
• The present immunity from suit of High Court judges should be extended to judges of the District Court (including Environment Court judges) and Mäori Land Court judges.
• Legislation should be enacted preventing actions against the Crown for breach of the Act by judges of superior courts, the Employment Court,² the District Court (including Environment Court) and the Mäori Land Court. Legislation should also specify that the Crown is liable for breaches of the Act by justices of the peace, registrars, bailiffs and other officials participating in the judicial process, and relieve those persons of personal liability for breach of the Act if acting in good faith.
• Consideration should be given to enacting legislation to compensate citizens who have suffered punishment as the result of a miscarriage of justice. That course would bring New Zealand law into compliance with article 14(6) of the International Covenant on Civil and Political Rights.

TERMINOLOGY

5 Throughout this report we use the term “the Crown”. That term is often used to refer to the executive branch of government. However, it has a more specific meaning in law, which includes the Queen in right of New Zealand, Ministers, and departments of state. This meaning is reflected in the definition contained in s 2 of the Public Finance Act 1989:

Crown or Her Majesty
(a) means Her Majesty the Queen in right of New Zealand, and
(b) includes all Ministers of the Crown and all departments, but
(c) does not include
(i) an Office of Parliament, or
(ii) a Crown entity, or
(iii) a State enterprise named in the First Schedule to the State-Owned Enterprises Act 1986.

6 In addition, legislation may deem a person or body to be the Crown or its servant or agent in particular circumstances. Nevertheless, the question “who is the Crown?” can sometimes be difficult to answer: see A New Interpretation Act (NZLC R17, 1990), para 152. In this report, we refer to “the Crown” in terms of the definition contained in the Public Finance Act.

7 Section 3(a) of the Bill of Rights Act states that the Act applies to acts done by the legislative, executive and judicial branches of government. Section 3(b) extends the operation of the Act to:

any person or body in the performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law.

8 Whether or not a person or body is carrying out a public function may involve difficult questions of interpretation of s 3(b). We use the term “public body” in this report to refer to any body with public functions, recognising that such a body may be a Crown entity, a State-Owned Enterprise, an office of Parliament, or indeed (in some limited circumstances), a private organisation.

THE DECISIONS CONSIDERED

Baigent’s case

9 In Baigent’s case and the related case, Auckland Unemployed Workers’ Rights Centre Inc v Attorney-General [1994] 3 NZLR 720, the plaintiffs sought damages for the established tort (wrong) of trespass, as well as for breach of the right under the Bill of Rights Act to be secure from unreasonable search and seizure. The plaintiffs in Baigent pleaded that an unlawful search of Mrs Baigent’s house was performed by police officers, and alleged that an officer asserted in a telephone conversation to Mrs Baigent’s daughter: “[w]e often get it wrong, but while we are here we will have a look around anyway”.

10 The plaintiffs pleaded that in entering, remaining on, or searching the property in the circumstances, the officers conducted an unreasonable search in violation of s 21 of the Act. The Crown denied that the Bill of Rights Act gave rise to a cause of action in damages. It also pleaded that statutory immunity was available to the Crown under s 6(5) of the Crown Proceedings Act 1950, which provides:

No proceeding shall lie against the Crown by virtue of this section in respect of anything done or omitted to be done by any person while discharging or purporting to discharge any responsibilities of a judicial nature vested in him, or any responsibilities which he has in connection with the execution of judicial process.

11 The Crown contended that the search warrant was judicial process and therefore the Crown was not vicariously liable under s 6. The Court of Appeal – by a majority – held that, on the facts as pleaded, the Crown was liable not only vicariously but also directly for the conduct of the police. Section 6(5) did not provide a defence, because the Court was prepared to read in a requirement of good faith in executing the search warrant, which was not met on the pleaded facts ([1994] 3 NZLR 667, 674, 690, 696, 716). The alleged infringement of the Bill of Rights Act provisions entitled the plaintiffs to claim damages for the breach.

12 The case raises two particular issues. First, all four judges of the majority in Baigent emphasised that the action for breach of the Act was one of public law, rather than one of tort (and vicarious liability in particular). This raises a question as to the precise nature of the liability. In particular, may such liability be seen as strict liability; and if the Crown is to be held liable for the breach, what is the relevance, if any, of the Crown’s powers of responsibility and control over the person committing the breach of the Act? We address these questions in paras 89–92.

13 Second, Cooke P characterised the remedy as being against the state (677), while McKay J referred to an “independent cause of action against the Crown” (718). In the only two cases in which damages have been awarded since Baigent’s case, the awards were against the Crown. However, the conduct in each case was by officers (the police and a judge respectively) whose conduct would clearly be considered that of the Crown in terms of the wide conception in s 3(a) of the Act. This raises the question (which we address in paras 87–88) whether the Crown’s liability extends beyond breaches by those who would conventionally be considered part of the Crown, to include breaches by any public body referred to in s 3(b). It also leaves open the question whether s 3(a) and (b) may be seen as defining the scope of liability for the Crown and public bodies, respectively, for breaches of the Act.

Harvey v Derrick

14 In Harvey v Derrick the plaintiff alleged that the defendant, a District Court judge, had directed the issue of a warrant of committal under which the plaintiff was imprisoned for 12 days, without complying with preconditions laid down by law. The proceedings alleged false imprisonment and negligence against the judge. The defendant pleaded the provisions of s 193(1) of the Summary Proceedings Act 1957: that no action should be brought against a District Court judge or justice of the peace for any act done by that person “unless he has exceeded his jurisdiction or has acted without jurisdiction”. The Court of Appeal held that the conduct would, if proved, render the judge liable for acting in excess of, or without, jurisdiction.