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74 We return to the question whether the Baigent remedy should be altered or abolished by legislation. We do not think that it should be, for three main reasons:
75 First, we recall the reasons accepted by Parliament for enacting the Bill of Rights Act in the first place. They are stated in broad terms in the long title to the Act (see para 23).
76 While the Act does state new rights, in very large measure it restates existing rights, although at times giving them greater precision. In most, but not all cases of breach, the courts will be able to provide a remedy from their existing armoury. The Court of Appeal in Baigent’s case took the view that provision of an appropriate remedy is a critical aspect of giving substance to the Act. Without appropriate remedies, the Act would not be what the executive proposed and Parliament purported to enact: a statement of fundamental rights of New Zealanders, which would constrain the power of the state (in the absence, of course, of legislation inconsistent with the Act – s 4). Appropriate remedies – including the rejection of evidence, the ordering of habeas corpus, the terminating of a trial, the declaration of illegality, the award of a monetary remedy – are all essential means of emphasising that the state is subject to the law. The provision of sanctions adds to the recognition of the Act as an overarching set of principles by which all New Zealanders, including decision-makers, are guided and protected.
77 Gault J, dissenting in Baigent, expressed the view:
The dynamics of the common law will not cease with the enactment of the Bill of Rights. There will continue to be the evolution of rights with consequential questions as to the interrelationship between the various rights recognised in the law in different ways. (709)
78 The Commission agrees, but is of the view that the argument supports our second reason why Parliament should not intervene. The common law may be expected, in time, to develop in areas where it does not currently provide remedies for interferences with rights and interests of the kind expressed in the Bill of Rights Act. In this way, common law will reflect the courts’ view of society’s current priorities and needs. The resulting remedies would be unlikely to be very different from the remedies provided for a breach of the Act itself. During the period of development of the common law, however, there would be considerable uncertainty which could be resolved only by successive proceedings. Hardie Boys J recognised this:
While it might be argued that the conventional common law doctrines must needs be developed in accordance with the spirit and intendment of the Bill of Rights, that would at best be a piecemeal approach, conducive to much uncertainty. (698)
79 It is the obligation of any state to ensure that, by the rule of law, its laws are sufficiently stable to allow citizens to be guided by their knowledge of the content of the law: Finnis, Natural Law and Natural Rights (Clarendon Press, Oxford, 1980), 270. The cost and uncertainty in working out common law rights that would result from reversal of Baigent can, and in our view should, be avoided.
80 The third principle that supports the maintenance of the Baigent remedy is the central principle that where there is a right there should be a remedy. This principle was traced by McKay J back to the thirteenth century. It is also expressed in article 2(3) of the International Covenant on Civil and Political Rights (see para 25; see also articles 9(5) and 14(1) and (6) of the Covenant; the latter is quoted in para 179). The significance of the international obligation is given added force by the comment, made in 1995 by the Human Rights Committee elected under the Covenant, on the most recent New Zealand report on its compliance with the Covenant.
81 The Committee knew about the decisions of the Court of Appeal in Baigent’s case and the related Auckland Unemployed Workers’ Rights Centre case (see para 9).17 Nevertheless, in its comment on the New Zealand report, the Committee expressed concern at para 12 about the absence of express provision for remedies for all those whose rights under the Covenant or the Bill of Rights Act have been violated.
82 That concern about the lack of an express remedy appears in para 19 of the Committee’s suggestions and recommendations:
The Committee recommends that the State Party take appropriate measures . . . to provide remedies for all persons whose rights under the Covenant have been violated.
83 The response might be made to the Committee that the way in which the remedy is made available – by constitutional provision, legislation, administrative act, or court decision – is not the Committee’s concern. All that international law requires is that there be an effective remedy. In our legal system, like many others, the matter of remedies has, in large measure, been left in the hands of the courts.18 That historical development makes it clear that express constitutional and legislative remedies are not the only, or even the main, remedies. The basic requirement is that an effective remedy be available, as article 2(3) makes clear. Baigent’s case indicated that, in limited circumstances, the courts might once again supplement the remedies they have traditionally made available.
84 The Commission accordingly concludes that no legislation should be introduced to remove the general remedy for breach of the Bill of Rights Act that the Court of Appeal held to be available in Baigent’s case. As a matter of principle and international obligation, a remedy should be available for breach of a right protected by the Act which tort law, or other law,19 does not already adequately remedy.
85 We now turn to the question of who bears liability for breach of the Act. This depends not only upon who has actually committed the breach, but also upon the characterisation of the Crown’s liability in Baigent’s case.
86 The Crown is primarily liable under s 3(a) 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. In Baigent the Court of Appeal accepted that the Crown could be liable for breaches of the Act by the police. The members of the court did not expressly rely, to reach this conclusion, on the statement in s 3(a) that the Act binds acts of the three branches of government. Instead it relied on Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 (PC), and in particular the statement in that case that a breach of the constitution created a liability in public law of the state itself. Nevertheless, for reasons which we outline below, we do not accept that a breach of the Bill of Rights Act, by any person or body exercising a public function, can of itself lead to the Crown being liable. Only McKay J appears to give express support to this proposition (718). We prefer to read the Court of Appeal’s decision as simply recognising that the actions of the police were clearly those of the Crown.
87 We have recorded that conduct of public bodies other than the executive is subject to the Bill of Rights Act by reason of s 3(b). We see no reason in principle why Baigent liability should not extend to breaches of the Act for which those bodies are responsible. We note, however, that there are, as yet, no decided cases in which a court has granted a Baigent remedy against a public body rather than the Crown itself. We attribute this to the cases so far not having concerned public bodies which are distinct from the Crown, rather than to any principle that the remedy is available only against the Crown.
88 We consider that public bodies’ liability in terms of Baigent’s case should match the scope of their public functions, powers and duties. Where there has been devolution of such public authority and responsibility, whether to local government, to State-Owned Enterprises, or otherwise, that public body is the appropriate defendant to a Baigent claim in respect of its conduct. It would be inappropriate to cut across the Public Finance Act 1989 by relieving public bodies of legal and financial liability for their own breaches. Imposing liability would strengthen the incentives for public bodies to comply with the Act. The Crown should not be subject to primary liability in such cases, unless it is party to the relevant conduct.
89 The degree of supervision and control exerted by the Crown over different public bodies varies considerably. In some instances the Crown appoints officers of the public body, or some of them; in others the Crown may give directions. It is appropriate to leave the courts to determine whether the Crown’s conduct is such as to make it liable as principal or as a party; it is a conventional function of the courts to apportion liability. Relevant considerations are likely to include the nature and extent of the Crown’s powers of supervision and control in relation to the public body, and the way in which those powers have been exercised leading up to the breach. The courts might also be expected to consider the respective moral blameworthiness and causative potency of the conduct of the Crown and the public body.20 Regard could be had to decisions in analogous spheres such as Kuwait Asia Bank EC v National Mutual Life Nominees Ltd [1990] 3 NZLR 512, in which the Privy Council rejected the imposition of liability on the appointor of directors to a company’s board. The indications in Baigent that Bill of Rights Act cases should not be tried before a jury (678, 692) show the courts’ awareness of the need for care and sensitivity in applying its principles.
90 We prefer that the proposals which we advance be achieved by judicial rather than legislative clarification. A preference for the former method could point to the facts of Baigent’s case and the associated case: neither concerned a public body distinct from the Crown. In a case which did concern a public body the points we have made above could be stated and no doubt developed. Further, it has been for the courts in general to develop and refine the remedies that they award to protect rights. A statutory expression of principles governing when the Crown is liable as a party for breaches of the Act by a public body may hinder a court’s ability to do justice in a particular case. Finally, as discussed in the previous paragraph, there is such variation in the control the Crown exerts over public bodies, that it would in our view be impracticable to develop principles in legislation as to when the Crown would be liable for breaches of the Act by public bodies, based on an underlying concept of control. As observed at para 72, however, Parliament retains full authority to intervene if it sees reason to do so.
91 In para 12 we raised the question whether Baigent liability could be characterised as strict liability. In Whithair v Attorney-General [1996] 2 NZLR 45, 57, Eichelbaum CJ considered that there was no principled basis for the courts to circumscribe a remedy for breach of the Act by imposing an additional requirement that the breach be intentional or reckless. The Act’s focus on the position of the citizen whose right is affected makes it in our view appropriate that there should be strict liability. This conclusion is consistent with the “rights-centred” approach of the Court of Appeal in several cases.21
92 A point of principle is that the development of a satisfactory Bill of Rights Act jurisprudence requires systematic consideration of the issues by the courts. The most efficient course, supported by the Solicitor-General, is to require all such proceedings to be served on the Crown Law Office or (in criminal cases) on the relevant Crown Solicitor (see para 73).
93 In the meantime, consideration could be given to amending s 6 of the Crown Proceedings Act to make the Crown directly liable for all the torts and civil wrongs for which it is responsible; at present its liability is mainly vicarious and there are gaps in the coverage. There are very helpful proposals by the Ontario Law Reform Commission in its report The Liability of the Crown (1989), Professor Peter Hogg qc oc (who has also written about the related New Zealand position) in Liability of the Crown (2nd ed, Carswell, Ontario, 1989), and the Public and Administrative Law Reform Committee in its 1980 report on Damages in Administrative Law (Report No 14). Earlier New Zealand legislation is also instructive. The Crown Suits Amendment Act 1910, for instance, provided that proceedings could be brought, independent of contract, against the Crown for a wrong or injury for which an action for damages would lie if the defendant was a subject of His Majesty.
94 Statements in Baigent’s case can be, and have been, read as indicating that the Crown is, in a sense, a total guarantor of the Bill of Rights Act. In particular, McKay J stated that where “a right is infringed by a branch of government or a public functionary, the remedy under the Act must be against the Crown” (718). On this reading, any breach of the Act might be the subject of proceedings or a remedy against the Crown, either alone or against the wrongdoer as well; and regardless of whether the Crown (essentially Ministers and departments – see para 6) had anything to do with the matter at all.
95 We reject this as the correct statement of principle to emerge from Baigent, which imposed direct liability on the Crown on the grounds of breach by an element of the executive in terms of s 3(a).22 We do not consider that such a broad principle of Crown residual liability can be justified. First, Baigent’s case and the associated case did not involve public bodies which are distinct from the Crown; the general liability of the Crown for unlawful police actions was not in any doubt. Compare, for instance, cases involving a school board of trustees.
96 Second, any general guarantor proposition faces major hurdles in respect of non-monetary relief. For instance, a declaratory order (rather than an injunction) under s 17 of the Crown Proceedings Act issued against the Crown, which may have no relevant powers of control or direction over the body which has acted unlawfully, could be of no direct effect in the particular case. The same is true of the remedies available in the regular course of criminal proceedings (eg, the rejection of evidence or the ending of the trial), especially if central government is not the prosecutor. In that context a remedy against the Crown as “guarantor” does not appear to have any point.
97 A third comment concerns the undertaking of each state party to the International Covenant on Civil and Political Rights to ensure that any person whose rights or freedoms are violated has an effective remedy (article 2(3) – see para 25). These provisions reflect the essential principle that where there is a right there is a remedy. They do not, however, say that the remedy must in every case be against the state party. Rather, the state party, through its own constitutional processes, must ensure that there is an appropriate remedy against an appropriate defendant.
98 Finally, it would be inconsistent with the structure of government worked out over our nation’s history – especially in the last 10 years – for the Crown to have a general responsibility under the law to ensure that all who are subject to the Bill of Rights Act comply with it, and also to have a correlative duty to pay monetary compensation for breach. More particularly it would be inconsistent with the financial autonomy of public sector bodies under the Public Finance Act 1989. Parliament has made deliberate decisions about that structure, dividing the power of the state and placing limits on the authority of central government (particularly Ministers) in respect of the separate parts. If there is to be Crown responsibility, then there must, in general, be power to meet the responsibility as well. But given the structural decisions that have been taken, there cannot be such power. That responsibility and the pressure for a related power would also extend to private bodies and persons exercising public power: see s 3(b) of the Bill of Rights Act.
99 The significance of a general guarantor proposition is demonstrated by the principal case cited in support of it. In Maharaj v Attorney-General of Trinidad and Tobago (No 2) the Privy Council held that the plaintiff, who had been deprived of his liberty for contempt of court, without due process of law and in breach of the Constitution, had a claim in public law against the state to monetary compensation. That direct claim, based on the Constitution which included a specific remedy provision (a precedent for the remedies clause in the 1985 White Paper), avoided the immunity of the High Court judge from liability or legal proceedings.
100 Judicial immunity is an example of the public interest justifying protection of an individual officer performing a public function. But there is a competing public interest in providing a remedy for someone whose rights have been breached. The solution offered by Maharaj was a direct liability on the state.
101 The provisional view expressed in our draft report was that the Crown (or to use Cooke P’s term in Baigent, “the state”) should not in general be liable for breaches of the Bill of Rights Act when it does not have relevant powers of direction and control over the body or persons whose action is challenged.
102 We have revisited our original total rejection of Crown residual liability and invite the Government to give further consideration to this topic. There is force in the argument that, for normative and educative reasons, and also to ensure that the citizen’s right is not empty, the Crown should assume a residual liability where there would otherwise be no effective remedy. This would be subject to the application of any relevant immunity clause. Further, it may be argued that in terms of article 2(3) of the International Covenant on Civil and Political Rights (see para 25) it is desirable that the state – which is ultimately responsible for the whole of the system of government – should have both the incentive and the opportunity to ensure that the Bill of Rights Act is effective. It is emphasised that the Act applies in relation to acts of the legislative, executive and judicial branches; accordingly, any gap in the system of protection is likely to entail breach by New Zealand of its international responsibility.
103 A concept of residual liability and the requirement that the Attorney-General (or in criminal cases the relevant Crown Solicitor) be served, and have rights of audience, would add emphasis to the status of the Bill of Rights Act as an overarching constitutional measure. The existence of an effective remedy would provide a sanction for breach; a remedy to the person affected; and evidence that the rights are taken seriously within New Zealand institutions. The total result would afford increasing recognition within the public sector of the importance of the Bill of Rights Act norms and the need for public sector conduct to conform with them.
104 On the basis that the Crown’s liability would be residual only, and limited to cases where there was no effective remedy against the public body, the costs would be substantially contained. The prospect of a State-Owned Enterprise becoming insolvent is remote; there is greater prospect of impecuniosity in relation to such entities as the 2 600 school boards of trustees.
105 If it were considered desirable to provide for residual liability on the Crown, the following provision could be inserted into the Act:
If a person or body (not being the Crown) found liable under section 3(b) for a breach of this Act is unable to make redress, the Court may direct provision of redress by the Crown in such manner as the Court may think just.
106 The question whether the Crown should assume a residual responsibility is finely balanced. To support it would give a clear message that the rights are indeed recognised as fundamental in society. Looked at from the standpoint of the citizen whose rights are breached, it may be said that the state must either provide an effective remedy or itself accept the responsibility for failing to do so. This is the result reached in the European cases (see para 37). The opposing argument focuses rather on the position of the infringing party, and asks why the taxpayer should have to assume responsibility for conduct to which the Crown did not contribute.
107 The topic was not raised in our draft report and so we do not have the advantage of others’ views on it. We mention it for consideration at this stage and will return to it in the course of further work on the Crown reference.
108 To summarise, the Law Commission has concluded:
(1) No legislation should be introduced to remove the general remedy for breach of the Bill of Rights Act established in Baigent’s case.
(2) The Crown is liable for its breaches of the Act, and those of its servants and agents: s 3(a). Public bodies are liable for their breaches, and those of their servants and agents: s 3(b).
(3) The Crown should not be primarily liable for breaches of the Act by public bodies when its conduct is not such as to make it liable as a principal or as a party.
(4) Residual Crown liability warrants consideration where there would otherwise be no effective remedy for a breach of the Act.
109 It would follow from propositions (2) and (3) that the Crown would not be primarily liable for, say, the actions of a State-Owned Enterprise. That consequence would have no effect on the entitlement of the plaintiff to seek monetary relief from the State-Owned Enterprise.
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