3 The Bill of Rights Act, Baigent’s case and its implications

THE NORMATIVE, EDUCATIVE AND INCENTIVE ROLEs OF THE BILL OF RIGHTS ACT

42 We have observed that the Bill of Rights Act confers rights which are both fundamental and, for the most part, well established at common law.

43 A major achievement of the Act was to bring together into a coherent set of principles the most important rights of the citizen. The result is both educative – by informing the public of what their rights are – and normative – by influencing conduct so as to conform with these rights.

44 Before Baigent the Court of Appeal in Minister of Transport v Noort & Ors [1992] 3 NZLR 260, R v Goodwin (No 2) [1993] 2 NZLR 390, and other decisions, had given effect to the rights conferred by the Act by developing standards to be applied by the police and other arresting authorities. These have been generally accepted.

45 One effect of Baigent’s case is to provide a disincentive to breaching the rights, by allowing for damages for breach. The Bill of Rights Act contains no express remedies clause, however, failure by the courts to recognise the rights would have made the Act toothless. Just as the European Court of Justice has created remedies to give effect to the rights established by the EEC treaty (see para 37), so the New Zealand courts have given effect to the Act and to aspects of the International Covenant which the Act affirms.¹⁵

THE POSSIBLE CONSEQUENCES IN LAW OF BAIGENT’S CASE

46 The principal possible consequences in law of the Baigent decision are the following:

Since some of the rights stated in the Bill of Rights Act might not ordinarily be supported by a remedy (particularly a monetary remedy) under the general law, the Baigent action would fill that gap. A possible instance is the right of those deprived of liberty to be treated with humanity and with respect for their inherent dignity: s 23(5). Moreover, the monetary remedy may be in addition to a remedy already available in the exercise of other judicial process, eg, the remedy of stay ordered in Martin v District Court of Tauranga [1995] 2 NZLR 419. The decision points the way to other remedies, such as injunctions, which may be added to those of stay of proceedings and exclusion of evidence that had been employed prior to Baigent’s case.
A legislative or common law protection of a public official might be avoided by the Baigent action. An instance is the immunity of District Court judges from suit – which was in issue in Harvey v Derrick – or s 6(5) of the Crown Proceedings Act – which was pleaded by the Crown in Baigent’s case.
It may be argued that an action is available against the Crown (in some broad sense as a “guarantor” of the Bill of Rights Act) instead of, or in addition to, the person or body who breached the right, even though the Crown would not otherwise be liable. We discuss this possibility in paras 94–107.

47 Each of these possible consequences has been seen to entail direct challenges to Parliament’s declared intent:

Parliament, in 1990, did not include an express remedies provision in the Act. That omission can be considered the more significant given that the 1985 draft did include such a provision, with, according to the White Paper para 10.186, “a residual role – but an important one, nonetheless”.
Parliament, in many statutes, has protected those acting under them, and others who might be liable, from liability or suit in varyingly defined circumstances. The Baigent remedy against the Crown might avoid that expressly conferred protection.
Parliament has set up many bodies distinct from the Crown and protected them from control or direction by Ministers and departments. General Crown legal responsibility for their actions would be likely to bring pressure for corresponding Crown powers of control – a pressure contrary to Parliament’s design.

We consider each of these three issues in turn.

Parliament did not include an express remedies provision in the Act

48 Several respondents challenged our draft report on the basis that Parliament itself had refrained from legislating so as to provide a remedy, so why should the courts now provide for it? We do not agree with the challenges, but accept that they warrant consideration.

49 Parliament did address the issue of whether to provide a remedies clause. The White Paper recommended both that the rights recorded in the Bill of Rights should constitute superior law, overriding all inconsistent laws, and that the courts should have power to strike down or disapply inconsistent legislation. Parliament rejected the concept of superior law and did not adopt the proposal for judicial power to strike down, nor enact the remedies clause.¹⁶

50 In responses to the draft report it was argued with force (but, notably, by only one department) that Parliament should be taken to have rejected the judicial enforcement of any provisions of the Bill of Rights Act; they should be treated as standards but not as justiciable.

51 It does not necessarily follow that, because Parliament rejected the concept of superior law and its enforcement or failed to enact a remedies clause, Baigent’s case was decided contrary to its will. It is true that Parliament could, had it chosen, have expressly conferred power on the courts to give effect to the Bill of Rights Act, but did not do so. However, the courts acted conventionally in declining to strike out the plea in Baigent’s case alleging violation of the Act. It is the constitutional function of the judicial branch of government both to construe statutes enacted by Parliament as the legislative branch and to develop and enforce the judge-made common law which makes up a high proportion of our legal system. It is the courts’ function to decide cases: to do so they must determine what is the law. It would be inconsistent with principle, and in many instances undemocratic, for the courts to maintain a common law which is outmoded and inconsistent with Parliament’s policies as expressed in current legislation: see Ervin Warnink BV v J Townend & Sons (Hull) Ltd [1979] AC 731. Through the Act, Parliament established rights, and it was in accordance with conventional practice for the courts to apply the principle that where there is a right the law will provide a remedy: Ashby v White (1703) 2 Ld Raym 938; 92 ER 126. Irrespective of whether Baigent’s case is seen as being contrary to Parliament’s intention in passing the Bill of Rights Act, it is of course open to Parliament to limit or override the judge-made law which emerges from the Court of Appeal’s decision.

The Baigent remedy might avoid protective provisions

52 Some respondents criticised the Baigent decision as being inconsistent with, and circumventing, statutory immunity provisions. They suggested it opened the door to wholesale avoidance of statutory protections in respect of Crown conduct. We do not accept these arguments.

53 It is important to emphasise, as did Cooke P in Baigent, that the judicial branch of government, like the legislative and executive branches, has been subjected by Parliament to the Bill of Rights Act: s 3(a). It follows that, where they may legitimately do so, the courts must apply the Act in performance of their functions in order to give effect to the will of Parliament. Those functions include the construction of legislation. Where the legislation falling to be construed is a provision conferring a power or an immunity, the courts will construe it in the light of all relevant pointers to construction, which now include the expressions of Parliament’s will in the Bill of Rights Act. Among those expressions are the presumption that, in the construction of legislation, the Bill of Rights Act provisions will be given effect (s 6), and the direction that the courts will not decline to apply any provision by reason only that it is inconsistent with a provision of the Bill of Rights Act (s 4). The courts must determine in any given context which result better conforms with Parliament’s expression of its intention in the three provisions: the provision being construed, s 6, and s 4.

54 Such a process is not novel but part of the everyday business of the courts. In Baigent Gault J was of the opinion that, having regard to s 4, the immunity provision in s 6(5) of the Crown Proceedings Act should not be circumvented by a Bill of Rights Act claim (708). The majority were of a different opinion, placing greater weight on s 6 of the Bill of Rights Act in determining the scope of the immunity in s 6(5) of the Crown Proceedings Act: see comments by Cooke P (674).

55 In performing the function of construction, as in all other aspects of their work, it is frequently necessary for the courts to weigh competing public values and make a judgment between them. Baigent is not to be interpreted as a judicial reversal of all powers and immunity provisions; as each case comes before it, the courts will assess the competing values and make a balanced judgment as to how they should apply. Until Parliament has completed the task we propose of reviewing such clauses, it will be necessary for the courts to continue seeking to strike the correct balance in each case. In doing so, they should bear in mind both the values that led to the conferment of the original power or immunity and the propriety (or otherwise) of a construction that would lead the Bill of Rights Act to override it.

56 Existing protection and immunity provisions contained in the statute book are listed in appendix C, and are considered in chapter 5. It is apparent that they have been enacted without regard to any systematic principle, and in terms of the necessity test some are too wide and some are too narrow. In chapter 5 we recommend a review of all such provisions.

Likely pressure for increasing Crown powers in respect of bodies distinct from the Crown

57 We later recommend that public bodies carry primary responsibility for their breaches of the Bill of Rights Act while exercising their public functions. Except where the Crown is a party to such conduct it will not be liable, unless it is decided that there should be a residual Crown liability in the unusual case where the public body is unable to make compensation. We do not see any such residual liability as contradicting to any significant extent the substantial removal of Crown responsibilities to, for example, State-Owned Enterprises.

The merits

58 The fundamental question in our view is not whether it was open to the Court of Appeal to adjudicate as it did, but whether the public interest should lead Parliament to view the matter differently. That issue was the major focus of our draft report, which concluded that Parliament should refrain from doing so. In this report, we confirm that view.

THE LIKELY CONSEQUENCES IN FACT

59 In assessing the consequences of Baigent’s case we note:

In almost all proceedings (actual and anticipated) where Baigent compensation is sought, a remedy in tort under the general law appears also to be available. It would be surprising were that not so, given that the rights in the Bill of Rights Act have, in general, long existed in our law and the courts have developed monetary and other remedies to give effect to the rights the law recognises and confers. The great bulk of the current proceedings concern law enforcement powers where common law tort remedies are generally available. In practice, the most relevant remedy sought has been, and is likely to continue to be, the rejection of illegally obtained evidence in the event that criminal proceedings are brought. It is when criminal proceedings are not brought – as in Baigent and similar cases – or fail, that a monetary remedy becomes more significant.
Baigent’s case was decided in 1994; since then only two awards based on that case have, we understand, been given by a court (see paras 68–70). Other claims have been settled before reaching trial.
The experience in other comparable legal systems (set out in appendix B) indicates that the impact of the Baigent remedy might be quite limited. In Canada the Charter of Rights and Freedoms has, for 14 years, enabled those whose rights under the Charter have been infringed or denied, to apply for such remedy as the court considers appropriate and just in the circumstances. The conclusion of the extensive study done for the Commission is that the damages aspect of that remedy has not been significant; American and Caribbean experience is similar.

Incentive effect

60 It was argued by some respondents to the draft report that the Baigent remedy deters law enforcement agencies from undertaking legitimate action to protect the public. This argument, in general, assumes that the officer is acting outside the power conferred, but within the extra range of a protection provision. If that extra protection can be justified in terms of the essential role of law enforcement, then it should be included directly in the grant of power as we propose later (paras 127–131). If it is not included, it is possible, for example, that evidence taken outside the power (but within the protection) has been taken unlawfully and, accordingly, might be held inadmissible. As well, depending on the wording of the protection, the Crown might still be vicariously liable, in which case the protective provision may not completely deny a remedy to the aggrieved person. We record in paras 118–121 our view that in some cases a limited provision, protecting only the individual wrongdoer, might be justified. If there is no protective provision the official acting outside the statutory power is subject to liability in tort, as is the Crown. In that situation, as well as where the protective provision does not prevent the action, the Baigent remedy does not have to be invoked.

61 Some law and economics proponents assert that negligence rules tend to help ensure careful behaviour. Protective provisions might undermine that incentive. On the other hand, it may be argued that immunities are needed so as not to “chill” efforts at law enforcement. We mention that argument when proposing that the individual might be protected for actions taken in good faith, while leaving the aggrieved person with a remedy. This second version of the incentive argument may be more significant for volunteers; for instance in emergencies and, indeed, more broadly, with members of public bodies such as school boards of trustees. Consider, also, the position of the citizen who is obliged to help the police (see the Police Act 1958 s 53).

62 The possible incentive effect of tort law has to be seen in context. In the case of judges and others exercising decision-making power, the continued integrity of the decision-making process and concern for personal reputation are critical spurs to the exercise of best judgment. So, too, are the careful processes of adjudication. There is, further, the prospect of being overturned on appeal or review.

63 For state employees who are carrying out the functions, the effect of poor job performance on employment prospects and promotion is likely to be a more immediate concern than the threat of tort action. Performance appraisal should also be more effective in correcting and preventing shortcomings in performance that might be tortious.

64 What studies there have been of the effect on behaviour of the law of negligence do not in fact suggest that, in general, that law has a strong impact: see, for example, Donald Harris “Can the Law of Torts Fulfil its Aims?” (1990) 14 NZULR 113, which drew on major recent research. The impact of insurance and the costs involved in bringing proceedings are likely to distort incentives which might otherwise be felt. The law of tort is, of course, not the only mechanism the law provides for encouraging safe behaviour. Regulatory requirements about food, vehicle maintenance, the provision of health care, and the suitability of building materials are only examples of a vast array of legal rules prescribing minimum standards of compliance. The importance of accreditation, or continued compliance with the standards of professional licensing and disciplinary bodies, can also operate as strong practical incentives to professional behaviour.

65 However, even if the threat of tort liability does not provide strong behavioural incentives for individuals, the availability of tort actions against those exercising statutory powers carries an important message. It gives effect to the principle that the state must act within the law. We recall the principle of equality before the law. As a practical matter, the tort action or an action for compensation provides relief to plaintiffs injured by unlawful acts breaching their rights and causing them loss.

An increase in the Crown’s liability?

66 Also relevant to any assessment of the likely consequences are, first, the Crown’s contingent liability, especially as stated by the police in their submission (appendix A); second, predictions made by the police of “a dramatic increase” in claims which they say are being borne out; and, third, the cost of processing the claims. Consideration of these matters has to take account of the matters listed in para 59: for instance, allegations of an unlawful search or arrest would, in general, appear likely to give rise to an action for damages whether the Baigent action was available or not. Whether the Baigent remedy leads to significantly higher total payments of damages than have been made in past tort actions remains to be seen. The costs of processing claims are partly caused by uncertainty as to the scope and application of the new remedy. It can be expected that those uncertainties, and the associated costs, will lessen over time. Potential plaintiffs may also seek to avoid some of those uncertainties by emphasising the traditional torts and their standard remedies, although we accept that they cannot be compelled to do so.

67 There is one qualification to the point that a remedy in tort will usually be available anyway in circumstances in which Baigent compensation is claimed. Where a protective provision exists, and it is limited to tort liability (eg, Crown Proceedings Act s 6(5)), it will be avoided by the Baigent action.

AWARDS OF DAMAGES SINCE BAIGENT’S CASE

68 In assessing the likely consequences of Baigent’s case it is worth looking at two later cases in which courts have awarded damages. In Upton v Green (unreported, High Court, Christchurch, 10 October 1996, CP 91/94), the plaintiff alleged a breach of the right to a fair and public hearing under s 25 of the Act, and breach of natural justice under s 27 of the Act, after he was allegedly denied the opportunity to be heard before being sentenced by the first defendant, a District Court judge. Tompkins J was unable to conclude whether, if the plaintiff had been fairly and fully heard, the District Court judge would have imposed a lesser sentence. Tompkins J awarded $15 000 on the basis that the plaintiff had suffered loss of a chance; ie, that of persuading the District Court judge to impose a lesser sentence. The reasonable possibility that the District Court judge might have been persuaded to impose a lesser sentence was sufficient to lead to the award of compensation. Tompkins J noted that the compensation awarded “must be substantially less than would be appropriate for damages for wrongful imprisonment”. The observation recognised the possibility of higher awards where, unlike the case in question, the imprisonment had been imposed without jurisdiction.

69 The second case in which damages have been awarded for a breach of the Bill of Rights Act is Kerr v Attorney-General (unreported, District Court, Timaru, 7 August 1996, NP 233/95). In that case, the plaintiff gang member was awarded $20 for breach of the right to freedom of movement, after being prevented from travelling further down State Highway 1. The nominal sum reflected in part the absence of any suggestion of actual or measurable loss as a result of the breach, but also the judge’s view that “an assessment of damages in these circumstances must endeavour to reflect the general standing of a plaintiff in the community”; thus the plaintiff should recover less than “a clearly decent and law-abiding person”.

70 We consider that the latter approach is inconsistent with the objective emphasised by members of the Court of Appeal in Baigent – providing a remedy to “vindicate human rights”. The availability of those rights does not depend upon the identity or the character of the plaintiff. The amount awarded was insufficient to provide any effective vindication of the right breached.

PRINCIPLES GOVERNING THE BAIGENT REMEDY AND LEVELS OF COMPENSATION

71 Many of the submissions we received on our draft report expressed concern about the levels of monetary compensation which may be awarded pursuant to Baigent’s case. This concern may stem from the remarks of Cooke P that in the case before him “an award of somewhat less than $70 000 would be sufficient vindication on all or any causes of action” (678). Some have interpreted this statement as implying that a substantial award of damages would have been appropriate in that case; while in cases of more serious breach an award of $70 000 or more would be appropriate. The position has not been clarified by the Upton and Kerr cases. In Upton, the damages awarded were higher than has been the courts’ practice in respect of tort claims, while in Kerr the amount awarded was nominal and not, we think, a helpful basis for future awards.

72 Nevertheless, we do not accept the arguments that the Commission in this report, or Parliament by statute, should seek to develop principles governing levels of compensation or otherwise limit the Baigent remedy. The scope of the Act is so wide and the range of potential situations which it will encounter so large that it is, in our view, not practicable to propose rules to control judicial decision-making. We consider that the preferable course is for Parliament to delegate that function in the first instance to the courts, which have taken particular care to handle the issues sensitively. The Court of Appeal’s reasoned approach, carefully balancing all relevant factors, is illustrated by R v Grayson and Taylor (unreported, Court of Appeal, 28 November 1996, CA 255/96; CA 256/96). Appendix D includes the Court’s discussion of the principles governing remedies for breach. If Parliament takes a different view as to policy from that developed by the courts, it may then intervene with the benefit of specific cases on which to focus.

73 The development of a principled Bill of Rights jurisprudence will also be assisted by the Attorney-General (or in criminal cases the relevant Crown Solicitor) being served with all Bill of Rights proceedings, and having the right to apply to be made a party and to be heard, whether or not there is potential liability of the Crown. We accept the advice of the Solicitor-General that small agencies lack the resources required to defend complicated claims, let alone to meet large compensation awards. The regular presence of the Australian Solicitor-General in constitutional litigation before the High Court of Australia should, in our view, be paralleled by an opportunity for the New Zealand Solicitor-General to do likewise in Bill of Rights Act litigation.

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