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133 We turn finally to the important question of whether, and if so, how, rights under the Bill of Rights Act should be enforceable against, or in respect of conduct by, judges and other participants in the justice system. This in turn raises questions as to the immunity of judges, justices, and others who exercise judicial functions.
134 The present law is that superior court (Court of Appeal and High Court) judges, like legislators, effectively have total immunity from suit, so long as they are purportedly acting in their judicial capacity. The status and immunity of judges of the Employment Court is not defined by statute.
135 District Court judges and justices of the peace have protection so long as they are acting within jurisdiction. There is certain immunity for quasi-judicial adjudicators and registrars exercising judicial functions, but no protection where the function is not characterised as judicial. Protection of registrars, sheriffs and bailiffs is limited and uneven in its coverage.
136 Our draft report recommended that the immunities at present possessed by superior court judges should be extended to District Court judges and justices of the peace. No respondent to the draft report argued for removal of the immunity of superior court judges. Some respondents were, however, of the view that there should be a remedy against the Crown as exists in Trinidad and Tobago: see Maharaj v Attorney-General of Trinidad and Tobago (No 2) [1979] AC 385 which was relied on by the Court of Appeal in Baigent’s case. We discuss in paras 154–159 the desirability of such a remedy in New Zealand.
137 Although the detail of judicial immunity varies from court to court and country to country and over time, the central importance of the principle is well established. For instance, in 1988 the United Nations General Assembly endorsed the following propositions included in the declaration of Basic Principles on the Independence of the Judiciary (GA Resns 40/32 and 40/146):
Professional secrecy and immunity
15 The judiciary shall be bound by professional secrecy with regard to their deliberations and the confidential information acquired in the course of their duties other than in public proceedings, and shall not be compelled to testify on such matters.
16 Without prejudice to any disciplinary procedure or to any right of appeal or to compensation from the State in accordance with national law, judges should enjoy personal immunity from civil suits for monetary damages for improper acts or omissions in the exercise of their judicial functions.
In Warren v Warren [1996] 3 WLR 1129 it was held that a judge – whether of the High Court or of any other court – is not a compellable witness in relation to the exercise of that judge’s judicial functions, although the judge is competent to give evidence.
138 The reasons for the protection accorded by judicial immunity include:
139 Different weight can be and is given to these reasons. The more general rationale for immunity is that, in exposing judges of the superior courts to liability to suit, the costs of prevention would be greater than the value of the cure. In Nahkla v McCarthy [1978] 1 NZLR 291 a disgruntled litigant sued the President of the Court of Appeal. The President’s successor had sat on the case complained of and elected not to sit on the appeal. The principles were stated by Woodhouse J:
An action complaining of the judicial work of a superior court judge is probably unique in New Zealand. In the United Kingdom the number of recorded attempts to bring a similar action during the past 150 years or more can be counted on the fingers of one hand. None has succeeded.
It is not necessary to search for the reason. It lies in the right of men and women to feel that when discharging his judicial responsibilities a judge will have no more reason to be affected by fear than he will allow himself to be subjected to influences of favour. Thus he is surrounded with an absolute immunity from civil proceedings for acts done or words spoken in the exercise of his judicial office. But that immunity is in no sense a private right which might be regarded as having been conferred upon him and which he then might be said to enjoy. He is merely the repository of a public right which is designed to ensure that the administration of justice will be untrammelled by the collateral attacks of disappointed or disaffected litigants. That simple concept is gladly accepted, we believe, by the citizen and lawyer alike. And its strength extends to preventing civil proceedings against the judge in respect of his exercise of jurisdiction even though he may act with gross carelessness or be moved by reasons of actual malice or even hatred . . .
A judge can, of course, be made to answer, and in a proper case pay dearly, for any criminal misconduct. Like any other citizen criminal proceedings may be brought against him. If the need arose steps could be taken in the Parliament to have him dismissed from office. If in the course of his work he should fall into error the matter can become the subject of appeal. If he should wrongly deprive a man of his freedom then altogether apart from appeal, there is the remedy of habeas corpus. But in relation to the performance of his judicial office the judge is immune from attack in civil proceedings. (293–294)
140 Judicial immunity must be seen in context. There is a range of remedies available to those aggrieved, which reinforces the responsibility and accountability of judges. They include:
141 That list indicates that references to “absolute judicial immunity” are misleading. Other participants who benefit from judicial immunity are also subject to sanction, eg, witnesses, counsel, and litigants may be the subject of perjury and contempt proceedings.
142 We now turn to the more confined area of immunity from civil liability or civil process. We have to consider a number of variables in respect of:
143 Judicial officers are but one kind of actor in the chain of actors involved in making and giving effect to judicial decisions. Where, as a matter of policy, judicial powers (especially lesser judicial powers) are exercised not by judges but by court staff, these staff also require protection as persons exercising judicial functions. In Crispin v Registrar of the District Court [1986] 2 NZLR 246, McGechan J regarded a District Court deputy registrar exercising a power to enter judgment by default, and performing the consequent duty to record an entry made in the civil record book, as performing a function which was judicial in nature. McGechan J stated that “if the law gives a registrar a judicial function, all policy considerations which dictate immunity for a judge or quasi-judicial adjudicator apply with equal force to protect that registrar”.
144 There must be a common law immunity in respect of a judicial function. If, on the other hand, the function is not characterised as judicial, the officer might be held liable. So, in Seatrans (Fiji) Ltd v Attorney-General [1986] 2 NZLR 240, Hillyer J held that the failure of a court registrar to give effect to a court order to pay money into an interest-bearing account could be the subject of proceedings. In particular, it was not protected by s 6(5) of the Crown Proceedings Act 1950 (see para 10). No judicial element or indeed execution, was involved.
145 In Baigent’s case the Court held – in the context of proceedings against the Crown alone – that the execution by police officers of a search warrant issued by a judicial officer came within the scope of “judicial process” in s 6(5) of the Crown Proceedings Act.
146 The subject matter of the immunity calls for only two brief comments at this stage, as the privilege relating to the giving of evidence is relevant to the Commission’s work on evidence law. Whether the immunity is from liability, or only from suit, could be significant if there is a body or person who has vicarious liability. This is probably, however, highly unlikely in the case of independent judicial bodies: see also the Crown Proceedings Act 1950 s 6(5). Such liability might remain and not be affected by the immunity from suit of the judicial officer.
147 The area of jurisdiction has caused the greatest controversy under the existing law. For members of courts of superior jurisdiction the protection is said to be absolute. This results, it is argued, from their unquestioned power to determine the limits of their own jurisdiction. Thus, the erroneous exercise of that power cannot lead to their losing jurisdiction. This error is to be corrected by further proceedings relating to the decision, and not by proceedings against the judicial officer. By contrast, and indeed by definition, a court of limited jurisdiction can move outside that jurisdiction with the result that actions can be brought against the judicial officer in respect of any decision so taken. That common law rule is reflected in s 193(1) of the Summary Proceedings Act 1957:
No action shall be brought against any District Court Judge or Justice for any act done by him, unless he has exceeded his jurisdiction or acted without jurisdiction.
148 That provision also applies to civil proceedings in the District Courts and to other judicial officers: see the District Courts Act 1947 s 119; the Coroners Act 1988 s 35; the Disputes Tribunals Act 1988 s 58; the Employment Contracts Act 1991 s 92 (in relation to the Employment Tribunal); and the Residential Tenancies Act 1986 s 70.
149 The Court of Appeal in Harvey v Derrick read the reference to “jurisdiction” in s 193(1) of the Summary Proceedings Act in a way which gives greater protection to the judge against civil suit than the protection accorded to the decisions themselves by privative clauses. Richardson J in particular highlighted the different meanings of “jurisdiction” depending on its statutory context (323–324). The court held that under s 193(1), judges would be protected from suit so long as they had acted in good faith and without gross negligence, even though they had acted outside jurisdiction in an administrative law sense.
150 The fourth matter noted in para 142 – good or bad faith, malice or knowledge – has sometimes been said to be irrelevant to the civil liability of superior court judges.25 According to one passage in a recent comprehensive study, the immunity applies “even if the judges are alleged to have been corrupt, malicious or negligent”.26 Woodhouse J in Nahkla also saw malice as not affecting the immunity of superior court judges (see para 139). That rule is said to have the advantage of preventing litigation, or stopping it at a very early stage (although it did not in Nahkla itself). By contrast, Lord Bridge in Re McC [1985] AC 540 considered it “clear that the holder of any judicial office who acts in bad faith, doing what he has no power to do, is liable in damages”. This statement was doubted by Cooke P in Harvey v Derrick (317).
151 Good faith is an explicit statutory requirement for immunity in the case of commissions of inquiry and the many bodies which are subject to the Commissions of Inquiry Act 1908. Section 3 deals with the members:
So long as any member of any such Commission acts bona fide in the discharge of his duties, no action shall lie against him for anything he may report or say in the course of the inquiry. [Emphasis added]
152 In addition to the good faith limit, the phrases “in the discharge of his duties” and “in the course of the inquiry” also place some limit on the protection similar to the jurisdictional limit which exists for courts of limited jurisdiction. The good faith, qualified privilege limit reflects the common law as stated by a majority of the Supreme Court the year before the quoted provision was enacted: Jellicoe v Haselden (1902) 22 NZLR 343.27 If a sitting or former High Court judge is a member of the commission, the judge and the commission have, for the purposes of the inquiry, the same privileges and immunities as High Court judges in the exercise of their civil jurisdiction: Commissions of Inquiry Act 1908 s 13. So far as defamation is concerned, those specific provisions would appear to override the more generous absolute privilege conferred in respect of the proceedings of statutory tribunals and authorities with the power to summon witnesses or a duty to act judicially: Defamation Act 1992 s 14(5).
153 Indemnity provisions are relevant to the incentives which are often said to be at work in this area of law. To adapt Lord Denning’s colourful phrase, the judge who knows the indemnity is there should not be turning the pages of the books with trembling fingers, fearing personal liability in damages if a wrong step is taken: Sirros v Moore [1975] QB 118, 136 (CA). The indemnity provisions also manifest the acceptance by the state that errors will occur in the administration of the law and that the community as a whole should bear the cost. For other Crown indemnities, see, for example, the Proceeds of Crime Act 1991 s 62; the Reserve Bank of New Zealand Act 1989 s 146; the Corporations (Investigation and Management) Act 1989 s 63; and the Serious Fraud Office Act 1990 s 35. In those cases it is not, in the end, the individual judicial officer who is liable, even if the form of the legal proceedings might suggest that.
154 Section 3(a) of the Bill of Rights Act states that it applies to acts done by the three branches of government – including the judiciary. We noted in chapter 2 the importance, as a matter of principle, of providing remedies for breaches of the Act. In respect of the judiciary, however, this principle is in conflict with the policy considerations which justify the doctrine of judicial immunity (see para 138). These considerations lead us to conclude that a remedy for breach of the Bill of Rights Act should not be available in respect of the conduct of superior court, Employment Court, District Court (including Environment Court), and Mäori Land Court judges.
155 As key considerations underlying our conclusion, we emphasise in particular the availability of adequate rights of appeal, and the need to achieve finality in litigation. We also see it as undesirable for judges to have to appear as witnesses in cases concerning their own conduct,28 with their evidence subject to findings of credibility, as would inevitably happen in actions against the Crown for breaches of the Act by judges. The credibility of judges should not in our view be put in issue merely on the assertion of a disgruntled litigant, whose remedy should generally be that of appeal. If the credibility of a judge is indeed in issue, this can be addressed in other ways (see para 140).
156 We appreciate that our conclusion entails rejection in New Zealand of Maharaj which was the main authority relied on by the Court of Appeal in Baigent for the availability of a remedy against the Crown for breach of the Bill of Rights Act. In Maharaj, a High Court judge had committed the plaintiff to prison for 7 days for contempt but had failed to observe a fundamental rule of natural justice – that persons accused of an offence should be told what they are said to have done plainly enough to give them an opportunity to put forward any explanation or excuse that they may wish to advance. The Judicial Committee held that the plaintiff was entitled to compensation from the Crown. It was submitted by several respondents to the draft report that the quid pro quo of judicial immunity should be Crown liability for breaches of the Act by judges, as was held in Maharaj. We also acknowledge that Maharaj was effectively applied by the High Court in Upton v Green (see para 68), although it was not referred to in the judgment of Tompkins J.29 But we are satisfied that the interests of finality of litigation, except by way of appeal, should predominate.
157 The Privy Council in Maharaj clearly stated that as the remedy was against the State, the principle of judicial immunity was not affected. Consequently, in New Zealand, the absolute immunity of superior court judges would prevent an action against such judges personally for breach of the Act. Under our proposal for increased immunity (summarised in para 186), District Court and Mäori Land Court judges would also be protected. Legislation is, however, required to prevent an action against the Crown in respect of the conduct of judges.
158 Accordingly, we propose that legislation be introduced providing that a remedy for breach of the Bill of Rights Act is not available in respect of the conduct of superior court, Employment Court, District Court and Mäori Land Court judges. Compensation for miscarriage of justice resulting in conviction for a criminal offence would be dealt with in the manner proposed in paras 177–185. We recognise that there will be some cases where the obligation to ensure provision of an “effective remedy” stipulated by article 2(3) of the International Covenant on Civil and Political Rights is not satisfied by either the right of appeal, or our proposed legislation providing for compensation for miscarriage of justice which is limited to the results of wrongful conviction (see para 181). That legislation would not, for example, cover the facts which arose in Upton v Green or for that matter Harvey v Derrick. Article 2(3) must, however, be balanced against the need for finality in litigation, and the other considerations noted in para 155.
159 We would, however, propose that such immunity of the Crown be limited to cases involving judges mentioned in the previous paragraph. There is, as was apparent from submissions received on the draft report, less reason for confidence that the skills and experience of justices of the peace and other judicial officers warrant their complete immunity from suit. The following discussion contains reasons for not extending the immunities of justices and other judicial officers. Those reasons also lead us to consider that a Baigent remedy against the Crown should be preserved in respect of breaches committed by justices and certain other judicial officers.
160 Having considered the possible liability of the Crown under the principle in Baigent’s case, we now turn to the question, raised by the proposed legislative response to Harvey v Derrick, of how, if at all, the present law of judicial immunity should be reformed. Our principal question concerns the differences between the protections. The differences relate especially to the jurisdictional constraint which limits the protection given to courts and tribunals of limited jurisdiction, and to the requirement of good faith which is sometimes made expressly applicable to those courts and tribunals. Courts of unlimited or inherent jurisdiction – the High Court and Court of Appeal – are often said not to be subject to those limits. We have already pointed out the qualifications to the proposition that the immunity of the judges of those courts is absolute (see paras 140–141).
161 Under the present law it is open to the Solicitor-General to apply before trial to strike out a proceeding against a superior court judge as an abuse of the processes of the court. We consider that the public interest in avoiding collateral attacks on the work of superior court judges and judges of the Employment Court justifies the continuation of the immunity from suit. Such attacks, in general, evade the process of appeal; the other factors in paras 138 and 139 also justify continuation of the immunity. Moreover, as mentioned previously, their actions should not be the subject of any remedy against the Crown under the Bill of Rights Act.
162 When the Law Commission considered the position of District Court judges in 1989, it indicated that their protection should be the same, or almost the same, as that of High Court judges:
Some of these matters are probably best considered in a broader examination of the legal liability of the Crown and of officers of the Crown. (One wider issue for instance is the right of a person who has been found in appropriate proceedings, including the exercise of the prerogative of mercy, to have been wrongly imprisoned under a court order, not just to be released but also to have compensation.) For the moment, however, we propose that the distinction in respect of immunity between the judges of the superior courts and the District Court should be removed or at least narrowed, see for instance Sirros v Moore [1975] QB 118 (CA). In large parts of their business they are dealing with matters which can come before the High Court, that will be the more so if our proposals are adopted and, as already indicated, there are remedies available to those aggrieved (including in extreme cases remedies against the judge). The legislation relating to retired High Court judges acting as temporary judges and to the Masters provides models. (The Structure of the Courts (NZLC R7, 1989), para 588)
163 Given the changes which have since been made to confer more extensive jurisdiction on the District Courts – a jurisdiction which often overlaps with that of the High Court – we confirm the opinion we expressed in 1989. The increased jurisdiction and status of the District Court has also improved the quality of representation and argument in that court, and hence the whole decision-making process. Accordingly, we recommend that the District Court judges should be in the same position as superior court judges so far as civil immunity is concerned.30
164 We would not propose that the extent of the immunity of District Court judges should be the subject of explicit provision (as, for instance, in the Summary Proceedings Amendment Bill (No 2) 1995). Rather, the legislation should simply refer to the protections, privileges, and immunities of High Court judges (see, for example, the Judicature Act 1908 ss 11A(4) and 26Q, the details of which differ, possibly significantly). There would still be the question of the outer limits which do, of course, vary from one judicial officer to another. It is not feasible to attempt to chart the boundary of such limits: the possible eventualities entail questions of degree which are best left to the common law to appraise in the rare cases where they arise. The references to District Court judges in ss 193–196 of the Summary Proceedings Act will need to be deleted, and section 196A repealed. We return to ss 193–196 below when discussing justices of the peace.
165 As discussed earlier, we also recommend the enactment of a statutory provision to prevent actions against the Crown for alleged breaches of the Bill of Rights Act by District Court judges.
166 We note finally that the power of imprisonment which was exercised in Harvey v Derrick can now be exercised only if the defendant is actually present in court and is, or has had the opportunity to be, legally represented. Those requirements greatly reduce the possibility of the repetition of the error which occurred in that case, and they facilitate speedy correction should an error occur: Summary Proceedings Act 1957 s 106E(2); Criminal Justice Act 1985 s 10.
167 In terms of the people protected from liability or suit in judicial matters, there remain the cases of justices of the peace and of other judicial officers (see para 171). Justices at present share the protection afforded to District Court judges. Under s 193 of the Summary Proceedings Act, no action shall be brought against a District Court judge or a justice unless he or she has exceeded or acted outside jurisdiction. Under s 197, a justice against whom a judgment to pay damages has been entered, is indemnified by the Crown on production of a certificate from a High Court judge stating that the justice acted in good faith under the belief that he or she had jurisdiction, and that in the judge’s opinion the justice ought fairly and reasonably to be excused.
168 In our draft report we concluded that justices of the peace should acquire alongside District Court judges the same immunity as High Court judges. This met with some concern from respondents as to whether justices’ work is of sufficient quality, and whether they have sufficient training and experience, to effectively be given blanket immunity from suit. The submissions also pointed out that the main argument for equating the protections afforded to High Court and District Court judges (overlapping jurisdiction), did not apply to justices, whose jurisdiction remains limited. Nor do the arguments about the overall improvement in the decision-making process, which we make in respect of the District Court in para 163, apply to justices.
169 In light of the concerns expressed in these submissions, we have revised our earlier recommendation that justices be granted the same immunity as High Court judges.31 Instead, we propose no change to the general law concerning the immunity and entitlement to indemnity of justices. Accordingly, ss 193–196 and s 197 of the Summary Proceedings Act should still remain on the statute book to provide for the civil immunity of justices and for the circumstances in which they are entitled to an indemnity. However, because we propose new provisions concerning the immunity of District Court judges, the references to District Court judges in ss 193–196 will need to be deleted. The wider issue, whether justices should be relieved of personal liability for other causes of action if acting in good faith, warrants consideration when the general legislation concerning the courts is reviewed.
170 Legislation is, however, required to provide:
171 Other judicial officers, such as tribunal members who are not District Court judges, disputes tribunal referees, and coroners, should receive the same protection as justices of the peace from personal liability for breach of the Act if they act in good faith, although a remedy against the Crown should be preserved. We propose no other changes to the existing immunities of these officers.32
172 We propose that other participants in the process of administration of justice, such as registrars and bailiffs, should be treated similarly in respect of Bill of Rights Act liability. Again there should remain a remedy against the Crown in respect of breach of the Act by these officers.
173 Some provisions protect registrars, sheriffs and bailiffs: for example, the Judicature Act 1908 s 32; the District Courts Act 1947 ss 105–108 (see also s 17(2) relating only to bailiffs); and the Summary Proceedings Act 1957 s 102 (relating to wheel clamping). In general, Parliament appears to have considered that the warrant, or other court order, itself provides a sufficient authority, but that if the action exceeds that authority then liability will arise. In practice, an official might be indemnified and expect to be.
174 Further issues arise where the order under which the officer is acting is itself unlawful, and the officer, acting in accordance with the order, has no reason to know of that unlawfulness. The person subject to the order should, of course, be able to challenge the order and have it set aside. But should the officer be liable or subject to suit?33 Parliament has sometimes answered that question in the negative. The protective legislation contains, as well, an express limitation to the effect that if the official knew or ought to have known that the court issuing the order had no authority, the protection does not apply: Crimes Act 1961 ss 26–29; Police Act 1958 s 39. This is an application of the general principle that a patently unlawful order is no defence: see, for example, the Crimes Act ss 45 and 47.
175 The position of officials executing court process does appear to call for systematic attention, even if it appears to have caused only limited difficulties to date. That could be undertaken as part of the preparation of new courts legislation.
176 The result of one aspect of such a review can be anticipated. The Public and Administrative Law Reform Committee, in paras 37 and 41 of its 1980 report Damages in Administrative Law, recommended that the final phrase of s 6(5) of the Crown Proceedings Act be deleted. That phrase, it will be recalled, protects the Crown (but not the officer) in respect of the carrying out of “any responsibilities which [the officer] has in connection with the execution of judicial process”. We agree with that recommendation, generally for the reasons which the Committee gave and especially the need to examine specific situations which might be covered by such a broad protection; particular provisions, possibly limited to protecting the individual, might be appropriate. We note that a similar protection is not available in respect of an official exercising direct statutory powers, eg, of search. We also note that, notwithstanding occasional judicial statements to the contrary, the protection in s 6(5) appears to leave open an action against the officers themselves.
177 Appeal and review processes are generally capable of averting detrimental consequences of impugned decisions. Allegedly defamatory statements can also be corrected – if not forestalled – by appeal and review.
178 There may, however, be cases in which a miscarriage of justice is recognised to have occurred, resulting in the deprivation of a person’s liberty, where the quashing of the conviction will not, in itself, provide a remedy. Judicial immunity of superior court judges will prevent an action against the judge; and under our proposed reforms District Court and Mäori Land Court judges would also be protected. As discussed in para 161, we are of the view that the public interest in the finality of litigation makes it inappropriate that the conduct of business by a senior judicial officer should be subject to challenge in the courts other than on appeal.
179 The international community has addressed this matter in the International Covenant on Civil and Political Rights. Article 14(6) provides:
When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.
180 New Zealand made a reservation to that provision when it ratified the Covenant in 1978. It is therefore not under an obligation at international law to enact legislation giving effect to article 14(6). Nevertheless, in light of the detriment to those who have suffered a miscarriage of justice, and the absence (for good reason) of other redress owing to the doctrine of judicial immunity being applied, there would appear to be a gap in our current law.
181 Consideration ought to be given to reviewing the decision to reserve, and to enacting legislation giving effect to article 14(6). The United Kingdom took that step in 1988 enacting the Criminal Justice Act 1988 s 133 which states:
(1) Subject to subsection (2) below, when a person has been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows beyond reasonable doubt that there has been a miscarriage of justice, the Secretary of State shall pay compensation for the miscarriage of justice to the person who has suffered punishment as a result of such conviction or, if he is dead, to his personal representatives, unless the non-disclosure of the unknown fact was wholly or partly attributable to the person convicted.
(2) No payment of compensation under this section shall be made unless an application for such compensation has been made to the Secretary of State.
(3) The question whether there is a right to compensation under this section shall be determined by the Secretary of State.
(4) If the Secretary of State determines that there is a right to such compensation, the amount of the compensation shall be assessed by an assessor appointed by the Secretary of State.
(5) In this section “reversed” shall be construed as referring to a conviction having been quashed
(a) on an appeal out of time, or
(b) on a reference
(i) under section 17 of the Criminal Appeal Act 1968,
(ii) [applies to Scotland only], or
(iii) under section 14 of the Criminal Appeal (Northern Ireland) Act 1980.
(6) For the purposes of this section a person suffers punishment as a result of a conviction when sentence is passed on him for the offence of which he was convicted.
(7) Schedule 12 shall have effect.
182 The English provision provides only for compensation by the Secretary of State, representing the executive branch of government, after determination
183 According to subs (3) the question of whether there is a right to compensation under the section is determined by the Secretary of State: under subs (4) and assessor sets the level of compensation. Such decisions are however susceptible to judicial review if they are unreasonable or otherwise contrary to administrative law principles. In R v Home Secretary, ex p Howse and R v Home Secretary, ex p Bateman [1994] TLR 1 July 1994, the Court of Appeal upheld the refusal of applications for judicial review of the Home Secretary’s decision not to pay compensation after the applicants’ convictions had been reversed. The Court held that where a conviction had been reversed on the ground that particular evidence was inadmissible or that certain regulations were ultra vires, the reversal was a legal ruling on a point of law, rather than a newly discovered fact in terms of s 133. In each case the facts had been known all along. These cases clearly show how the requirement of a “new or newly discovered fact” prevents compensation from being payable simply because a conviction has been reversed.
184 It is fundamental to the rule of law that determinations of rights are made by the judiciary rather than the executive. This section is provided by way of exception, so as to avoid leaving the citizen without compensation, for a miscarriage of justice, and to prevent in effect a further trial of the determination of a superior (or District) court judge.
185 If an equivalent provision were adopted in New Zealand, the entitlement – a recognition by the state of its general responsibility – would stand quite separately from the immunity of the judicial officer. That immunity would remain unaffected. Lord Templeman proposed such a dual approach in Re McC [1985] AC 528, 559.
186 The Law Commission’s conclusions and recommendations are:
(1) To avoid the reopening of decided cases, which should as a rule occur only on appeal, legislation should state that a remedy is not available against the Crown for breaches of the Bill of Rights Act by Court of Appeal, High Court, Employment Court and District Court (which includes Environment Court) judges, and judges of the Mäori Land Court. (Judges themselves would be protected from suit by their immunity, as defined in subpara (2) below.) Legislation should also specify that a remedy is available against the Crown for breaches of the Act by justices of the peace and other judicial officers but that they are not personally liable if acting in good faith.
(2) The civil immunity of District Court and Mäori Land Court judges should be stated by reference to that of superior court judges. Although there would remain the issue in particular cases of where the outer limits of the protection lie, there should be no attempt to define that immunity. Sections 193–196 of the Summary Proceedings Act 1957 require consequential amendment and s 196A should be repealed.
(3) Sections 193–196 and 197 of the Summary Proceedings Act should remain to deal with the immunity and entitlement to indemnity of justices.
(4) The civil immunity of other participants in judicial processes – tribunal members, parties, counsel, witnesses, registrars, and other court officials – does not, in practice, appear to be causing any difficulty. However, when new courts legislation is prepared some of the current gaps, uncertainties, and inconsistencies should be addressed. That opportunity will also arise when legislation in respect of tribunals and commissions of inquiry is prepared.
(5) Consideration should be given to providing a remedy for those who have suffered punishment as a result of a miscarriage of justice, as provided for in article 14(6) of the International Covenant on Civil and Political Rights. That would balance, in the more serious cases, the absence of a Baigent remedy in respect of judicial conduct.
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