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110 All existing public sector protections and immunities should be reviewed in the light of the principles of the Bill of Rights Act and Baigent’s case. This substantial task is perhaps best approached by inviting each department to review the statutory powers and immunities, and like provisions, in legislation which it is responsible for administering (see appendix C). Departments should consider the justifications for the power or immunity in terms of the necessity test, or suggest possible deletion of or amendments to the relevant provisions. A decision may then be made as to how the necessary reforms can be made systematically and efficiently. In the meantime, existing statutory protections and immunities will continue to have effect insofar as, on their proper construction, they give protection from Baigent claims.
111 The statute book contains hundreds of provisions giving protection from liability or legal suit in respect of the exercise of statutory power. We have collected those provisions and commented on them in appendix C. That commentary also raises some broader issues as the protection provisions vary greatly in the following ways:
(1) Whether they are included at all: For instance, most labour legislation does not include protection provisions but confers powers on inspectors in what are presumably considered adequate terms. The consequence is that action outside those powers, for instance by way of search or seizure, might be the subject of civil proceedings for trespass.
(2) Who is protected: Provisions may protect one or more of the persons exercising the power, the body to which they belong or by which they are employed, the members of the body, or the Crown. Baigent’s case suggests the possible significance of the differences. Section 6(5) of the Crown Proceedings Act protected the Crown from tort proceedings under that Act in respect of the execution of judicial process (in Baigent’s case a search warrant). By contrast, other relevant provisions, for instance in the Crimes Act 1961, protected the officials (the police officers) and not necessarily the Crown – but see the next point.
(3) The thing in respect of which protection is afforded: Section 6(5) of the Crown Proceedings Act gives protection from tort proceedings. A Bill of Rights Act action, however, would not be covered by that protection. Another significant difference in the provisions is that some merely prevent legal proceedings being brought against the individual, but leave that individual’s substantive liability unaffected, with the consequence that an employer (such as the Crown) may still have vicarious liability. The provisions also vary in respect of the protection they give against criminal and disciplinary liability.
(4) The actions in respect of which protection is afforded: Sometimes the act must be in exercise of the power, while in other provisions acts in purported exercise of the power are also protected. The restructuring statutes (see para 114(4)) protect things effected or authorised by or under the reorganising legislation.
(5) The requirement (or not) of good faith or due care or both, if protection is to be accorded: The courts sometimes read such requirements (especially that of good faith) into an apparently broader protective provision. The interpretative direction in s 6 of the Bill of Rights Act is sometimes available to assist that process. Such a process will sometimes lead to essentially the same practical result as the Baigent remedy, as the judgment of Gault J (who dissented on the availability of a Bill of Rights Act remedy) in that case shows.
112 The cumulative requirements of some of the provisions suggest that they accord little real protection. If (4) and (5) are combined, as they often are, the person seeking protection must be acting in accordance with the legislation, in good faith, and with reasonable care. It would be unusual for such a person to be liable in the absence of such a “protective” provision.23
113 To the extent that a protective provision is truly protective and prevents the plaintiff proceeding, even though a tort or other breach of rights is alleged to have occurred, the question arises whether that effect can be justified.
114 As indicated in para 111, we have found it convenient, when considering the mass of protective provisions, to classify them in various ways. Another way is by reference to the subject-matter of the powers or functions they protect:
(1) Powers of law enforcement, including investigation, inspection, search, arrest, detention, and imprisonment: these were the powers in issue in Baigent.
(2) Judicial and related functions, where the protections relate not just to the judicial and other official participants, but also to witnesses, parties, and counsel, as in Harvey v Derrick.
(3) Powers (sometimes duties) of reporting, for example, of possible public or private dangers (such as the health or well-being of a child) or in the general course of a public responsibility.
(4) Transfer of property in the context of the restructuring of public and other bodies, as in a number of recent statutes.
(5) General functions: any act of any person or specified persons in exercise of the functions set out in the Act.
115 The protective provision in the Law Commission Act 1985 (First Schedule, cl 14) helps illustrate aspects of (3) and (5) in para 114. In addition, it helps raise some of the relevant issues of principle. The provision follows a fairly standard form:
14 Proceedings privileged
(1) No proceedings, civil or criminal, shall lie against the Commission for anything it may do or fail to do in the course of the exercise or intended exercise of its functions, unless it is shown that it acted in bad faith.
(2) No proceedings, civil or criminal, shall lie against any member of the Commission for anything the member may do or say or fail to do or say in the course of the operation of the Commission, unless it is shown that the member acted in bad faith.
(3) No member of the Commission, or officer or employee thereof, or person appointed or engaged under clause 3 of this Schedule, shall be required to give evidence in any Court, or in any proceedings of a judicial nature, in respect of anything coming to the knowledge of the member, officer, employee, or person in the course of the operations of the Commission.
(4) Anything said or any information supplied or any document produced by any person in the course of any proceedings before the Commission shall be privileged in the same manner as if the proceedings were proceedings in a Court.
(5) For the purposes of clause 3 of Part II of the First Schedule to the Defamation Act 1992, any report made by the Commission in the course of the exercise or intended exercise of its functions shall be deemed to be an official report made by a person holding an inquiry under the authority of the Parliament of New Zealand.
116 The effect of subcl (5) is to accord qualified privilege in defamation to reports of the Commission. Subclauses (1) and (2) have that effect, as well, for the Commission and its members (but not its staff or consultants). Subclause (4) also appears to reflect that idea, although the concept of “proceedings before the Commission” is more apt for a court, a tribunal, or a body investigating a complaint than it is for the Law Commission.
117 But the broad provisions of subcls (1) and (2) could apply well beyond actions relating to speech (including, for example, breach of copyright or confidence as well as defamation). On a literal interpretation they could even apply to administrative actions under the Law Commission Act, relating, for example, to contracts for the supply of goods or services and contracts of employment – although a court would be reluctant to reach such a conclusion. A large number of bodies have that protection in respect of their management functions. There does not appear to be good reason for those bodies (as distinct from their officers and staff) being protected from the ordinary course of law in respect of regular administrative transactions. The principle of equality before the law would strongly argue otherwise. Moreover, it will be a valid question, to be considered in the context of each specific provision, whether statutory powers are in fact needed to perform certain administrative and management functions. Accordingly, the Commission proposes that broad protective provisions such as these should be narrowed.
118 In our later discussion of judicial immunity (see chapter 6) we recommend a personal immunity for officers involved in the administration of justice, if they act in good faith, but liability of the Crown if there has been a breach of a plaintiff’s rights under the Act. Such a potential distinction is made in Percy v Hall [1996] 4 All ER 523, 542 and 545. It may in some cases be desirable to extend this approach to other spheres.
119 Section 86 of the State Sector Act 1988 grants very broad protection to employees in the state sector and, when read with section 6(4) of the Crown Proceedings Act, may defeat any general vicarious liability of the Crown in tort. The narrower type of provision which we favour would continue to protect individual wrongdoers from civil proceedings when acting in good faith. It would, however, leave the person injured with a remedy against the person or body (usually the employer) who is responsible for those individuals and their actions in respect of:
120 The result would be a primary liability on the employer for the conduct of its operations beyond the protected sphere of due performance. Its liability would be in respect of the acts and omissions of its officers, staff, and (within the limits of the common law) independent contractors. Whether the conduct is of the employer, or outside its sphere, will entail a value judgment.24 Such judgment would be made by the court unless it is considered, when a particular empowering provision is revised, that the liability can be codified.
121 For example, members of the board of trustees of a school might be protected so long as they act in good faith, with the board remaining liable. An express legislative statement of that protection might be important in encouraging possible candidates for such public service. It may also prevent risk-averse actions (or omissions) by those who are in office and who have responsibilities to promote the public interest. The use of such provisions is supported by Professor Peter Hogg in Liability of the Crown (2nd ed, Carswell, Ontario, 1989), and in his report for the Ontario Law Reform Commission on Liability of the Crown (OLRC, Toronto, 1989).
122 As noted above, some of the protective provisions do not have complete preventative effect. Rather, they protect the individual who has taken the action, while leaving the person injured with a remedy against someone else (see para 111(3)). This depends on, first, the identity of the person who is protected (the wider the description, the wider the protection); second, on whether vicarious liability is unaffected by the protective provision; and third, on whether, in any event, the principal is directly liable.
123 Protecting the individual wrongdoer, while permitting an action against someone else, might also be achieved in practice without protective legislation, by the principal agreeing to indemnify the wrongdoer. There will, however, sometimes be good reason for Parliament to provide express statutory protection rather than an indemnity. For instance, it may not be practicable to provide the indemnity by agreement when people volunteer or are required to help in an emergency. More generally, as already stated, the protection may be important in encouraging citizens to undertake public responsibilities and to pursue them positively. In addition, s 59(5) of the Public Finance Act 1989 inhibits the use of indemnity agreements in major areas of public activity.
124 To return to the protective provision of the Law Commission Act, subcl (3) provides in broad terms an immunity in respect of giving evidence, apparently on the model of judicial immunity. At least eight other officials and bodies (the Ombudsmen, Human Rights Commission, Privacy Commissioner, Commissioner for Children, Health and Disability Commissioner, Police Complaints Authority, Securities Commission, and the Intelligence and Security Committee) have similar broad protection (although with exceptions in respect of certain crimes such as corruption). Unlike the Law Commission, they also have the responsibility to investigate particular complaints, and have related coercive powers and sometimes a mediation function. An application of the necessity test is appropriate when each case is considered. A judgment is required as to whether the body needs to be able to assure potential informants that their confidence will be respected so that the information flow does not cease. An alternative is to rely on s 35 of the Evidence Amendment Act (No 2) 1980 and the safeguards of the Official Information Act 1982 and the Privacy Act 1993: see Evidence Law: Privilege (NZLC PP23, 1994). We are at present considering the issues in the context of our evidence and Official Information Act references and defer further comment at this stage.
125 The need for adequate breadth is apparent from such authorities as Geddis v Proprietors of Bann Reservoir (1878) 3 App Cas 430. The recent decision of the House of Lords in X v Bedfordshire County Council [1995] 2 AC 633 illustrates the competing interests which the law seeks to balance. Statutory authorisation to undertake an act, or a class of acts, provides a general defence to an action for nuisance, and may or may not go further. As Lord Browne-Wilkinson stated in X v Bedfordshire County Council, however, statutory authority provides a defence only “where the loss suffered by the plaintiff is the inevitable consequence of the proper exercise of the statutory power or duty” (733). The defence requires that the operation be conducted with all reasonable regard and care for the interests of other persons. As the limits of the defence developed in the nineteenth century, Parliament, faced with the spectre of residuary liability, decided that greater protection for the statutory body was required in some cases. Accordingly, it deliberately cut across the common law by stating that there would be no liability in given situations, provided there was absence of bad faith. Other operations were evaluated differently: sometimes the statutory immunity existed only if the operations were conducted with reasonable care. The immunity served the dual purpose of freeing the operator of inhibition in performing its activities and eliminating the uncertainty, which existed at common law, as to whether the defence of statutory authorisation extended beyond the tort of nuisance.
126 Several submissions on our draft report rightly recognised that an immunity can provide an extra layer of protection (in respect of negligent conduct) which stand-alone powers cannot, because of the limits of the defence of statutory authority noted in para 125. But it is in our view desirable to focus in particular cases on whether officials should be protected even where they have failed to exercise reasonable care. The issue requires consideration in the course of the overall review of statutory powers and immunities which we recommend.
127 We turn now to the first group of powers listed in para 114: powers of law enforcement, including investigation, inspection, search, arrest, detention, and imprisonment. They are the subject of extensive discussion in appendix C. The powers and protective provisions in Baigent’s case and the associated case fall into this group.
128 In most situations, the starting point is the statutory power. This may directly confer coercive power, eg, on police officers to arrest a person whom they suspect, on reasonable grounds, has committed certain (usually imprisonable) offences. Or it may authorise such powers to be conferred, as when a judicial officer issues a search warrant on being satisfied that there are reasonable grounds for believing that evidence of certain offences exists at a particular address. Some, but not all, of these powers – conferred widely across the statute book – are paralleled by protective provisions. There is no generally applicable reason why protections or immunity provisions are needed along with those powers if the powers are sufficiently broad. We are satisfied that the need for a special protection on policy grounds must be considered case by case.
129 If the protective provision matches the power exactly (as some do), it has no legal effect. If it extends beyond the power, the questions must be asked, first, whether the power was conferred in sufficiently ample terms in the first place; and second, whether it should be extended to include the extra areas of protection. If the power is not extended, there is the prospect that the illegal character of the action in the protected area will have a consequence despite the protection. If the protection is from proceedings, and not from liability, the employer might still be vicariously liable (see para 111(3)), and the illegality, for instance of the taking of evidence, might affect the admissibility of that evidence. Those possible effects are relevant to any possible argument about incentives.
130 The conclusion which the Commission has reached is that, in general, law enforcement powers – like general powers of administration when required (see para 117) – should stand alone. Power should be conferred in appropriate terms in the first place. The Submarine Cables and Pipelines Protection Act 1996 offers a useful model of empowering provisions sufficiently wide not to require separate immunity provisions. Section 17(1) provides:
If a protection officer believes on reasonable grounds that a ship or equipment belonging to a ship is being used in a protected area in the commission of an offence against section 13 of this Act, the protection officer may, by any means of communication, order the master of the ship to remove the ship from that area. [Emphasis added]
131 An officer who acts reasonably and honestly is protected from civil liability because he or she has acted within the scope of the statutory power. There is no need for an immunity provision in the same terms, and the 1996 Act does not provide one.
132 Accordingly, the Law Commission recommends that current powers, protective provisions, and immunities be systematically reviewed, initially by ministries and departments, and that all such future provisions be considered in the light of the following principles:
(1) Broad protective provisions should be narrowed so as to conform to the necessity principle. In particular, powers or provisions should not protect a public body in the exercise of management or administrative functions (para 117).
(2) If a protective provision is justified in order to encourage provision of a public service, it should not prevent proceedings against another appropriate defendant (such as the employer) by the person whose rights have been breached (paras 118–121).
(3) The power conferred should be adequate to the purpose; a protective provision should not, in general, be included as well (paras 127–131).
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