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APPENDIX C

Provisions protecting public bodies, officials and others acting under statute

CONTENTS

Introduction

C1 _About 200 statutes contain one or more provisions which

specifically protect the persons who act under them from legal proceedings or legal liability. Relevant provisions are included in a schedule to this appendix. In addition, the general law similarly protects those exercising certain powers, especially in the judicial field: see the common law of judicial immunity and of absolute privilege in defamation, and related provisions of the Summary Proceedings Act 1957 Part VII, 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, the Residential Tenancies Act 1986 s 70, the Commissions of Inquiry Act 1908 ss 3 and 13 (which apply to more than 100 other bodies and persons), and the Defamation Act 1992 ss 14–19. The final set of provisions, as well as those in the Commissions of Inquiry Act, also remind us of the rules protecting legislative processes as stated in the Bill of Rights 1688 (UK) and reflected in the Legislature Act 1908.

C2 These provisions are to be related to, and contrasted with, provisions which do not protect the person from legal proceedings but rather protect the thing – the decisions and actions taken by the person:

• provisions stating that the fact that a deputy, officer or member is acting is conclusive evidence that the occasion for their appointment arose;
• conclusive evidence provisions (eg, giving notice in the Gazette of a code is conclusive evidence that the required procedures have been followed);
• regular privative or ouster clauses (eg, “a decision is not to be challenged . . .”);
• finality provisions (eg, “a decision is final . . .”);
• legislation preventing pending or prospective legal proceedings which challenge administrative action or even override judgments already given which have upset the action;
• provisions requiring use of the statutory appellate or review process rather than or ahead of judicial review; and
• provisions requiring any review proceeding to be brought within a fixed period.

C3 These provisions relate to first, the legality of the appointment of the person acting, second, the process they have followed, and third the substance of the decision; stated another way, to the three questions of who? how? and what? The provisions can be related in their substance or in effect to similar common law doctrines and practices, such as the de facto officer doctrine, the presumption of the regularity of official acts, waiver, and discretions to defer to specific statutory remedies or to refuse relief in the case of delay.

C4 All the provisions and doctrines mentioned so far are designed to prevent attacks against, and to protect, decisions and processes which may appear to be unlawful or irregular in some respect. They assume the existence of a power or function of some kind, the exercise of which is in question.

C5 Many of the provisions and doctrines also assume that the person affected by the action in question has a civil cause of action (generally in damages), or that the person taking the action might be committing a criminal offence, or both. So a police officer arresting a person might be committing the tort and crime of assault. Alternatively, an official issuing a statement about a public health risk might be defaming a person or breaching a confidence owed at law (and also be subject to professional discipline). Those two situations help identify the three relevant parts of the law:

• the apparently unlawful act – especially a civil wrong, criminal offence, or disciplinary offence;
• the statutory power or duty which might authorise and make lawful the apparently unlawful act; and
• legislation and common law rules which protect the actor.

Generally there will be a protective provision as well as an empowering provision, but in some cases the protective provision will stand alone.

C6 Although this appendix is principally concerned with protections, in particular those provided by legislation, we should not neglect the other two matters noted in para C5. Indeed, a basic proposition expressed here and in this report is that a major effort in preparing, applying, and interpreting legislation should go into the positive statement of the power which is to be exercised. The statement of the positive power should be appropriate to the relevant public interest and purpose. Once that is done, there is no apparent justification for an immediate rush to provide statutory protection against arguments that the statutory power has been exceeded.

C7 Another issue which should be regularly considered, along with the proposal to confer power, is whether the legislation should itself explicitly provide for compensatory and other remedies to those who are affected by the exercise of that power, by actions affecting its operation, or by breaches of the law. Statutory remedial provisions exist in a variety of circumstances:

(1) Powers to impose criminal penalties are sometimes accompanied by powers to order the payment of compensation to those affected by the breach: eg, the Criminal Justice Act 1985, the Land Transfer Act 1952, the Marine Farming Act 1971, the Animals Protection Act 1960, the Armed Forces Discipline Act 1971, the Student Loans Act 1992, the Child Support Act 1991, and the Health and Safety in Employment Act 1992.

(2) Rights and obligations relating to commercial transactions may be supported by explicit remedies for those whose rights are infringed by breach: eg, the Takeovers Act 1992, the Consumer Guarantees Act 1993, and the Securities Act 1988.

(3) Human rights legislation generally includes specific remedial provisions as part of the overall scheme: eg, the Human Rights Act 1993, the Privacy Act 1993, and the Health and Disability Commissioner Act 1994.

(4) Compulsory registration of title legislation provides for compensation for losses caused by errors in the administration of the registry: eg, the Land Transfer Act 1952, the Motor Vehicles Securities Act 1989, and the Radiocommunications Act 1989; see also the liability of private individuals for loss caused by the abusive use of the caveat provisions of the Land Transfer Act 1952 and the Ship Registration Act 1992.

(5) Powers to take action relating to land (and sometimes other property) are subject to an obligation to pay compensation for the taking or injurious affection: eg, the Public Works Act 1981, the Local Government Act 1974, the Soil Conservation and Rivers Control Act 1941, the Telecommunications Act 1987, the Crown Minerals Act 1991, the Railway Safety and Corridor Management Act 1992, the Gas Act 1992, and the Electricity Act 1992.

(6) Legislation requiring or authorising rescue and salvage actions may provide that the rescuer is entitled to compensation: eg, the Maritime Transport Act 1994, the Civil Defence Act 1983, and the Biosecurity Act 1993.

(7) Legislation conferring emergency powers may also provide for compensation to those whose property has been requisitioned or damaged in the course of the response to the emergency, as in the statutes noted under (6) and the Health Act 1956, the Defence Act 1990 and the International Terrorism (Emergency Powers) Act 1987; see also the Toxic Substances Act 1979, and the Pesticides Act 1979.

(8) Among other relevant entitlements are those of individuals whose property is damaged by escaping prisoners: the Penal Institutions Act 1954; and of a land owner who has assisted in identifying straying cattle: the Animal Identification Act 1993.

C8 In addition to providing an explicit remedy, these provisions have at least three important characteristics:

• Some are based on fault or error ((1)–(4)), others on reward ((6)), while those in the third category are based on community responsibility or cost sharing ((5), (7) and (8)). In respect of the latter group of provisions, Parliament has made the judgment that it would not be just for the injured party to carry the cost. In such cases the act is in the general interest (eg, the killing of stock to prevent the spread of an animal disease, or the taking of land for a motorway); only one person or a limited number of persons has suffered the damage; and the damage is substantial and a result of the government’s act (see Bell and Bradley, Governmental Liability: A Comparative Study (UKNCCL, London, 1991), 9, citing a 1984 recommendation of the Committee of Ministers of the Council of Europe). The remedy in these cases is not, of course, dependent on a showing of unlawful action by the state; on the contrary, it will usually be acting lawfully.
• The legislative schemes may put the obligations on private bodies or persons as well as on public bodies. Sometimes, as with the land transfer system, the state may be able to recover from the private wrongdoers the payment it has made to the innocent victim.
• This specific legislative technique allows a judgment to be made in the particular case of the entitlement to compensation and its scope. The resulting statutory system might involve rules which can be applied relatively automatically – as with aspects of war pensions. Alternatively, the system might involve rules which require judgment of competing considerations or disputed facts – as in some salvage situations, or in decisions about compensation for miscarriages of justice: see Criminal Justice Act 1988 (UK) s 133 (quoted in para 181).

C9 But many statutes do not expressly draw civil remedial consequences from the statements of duties which they impose. The matter is left unaddressed. Compare the recommendations of the United Kingdom Law Commissions, The Interpretation of Statutes (LAW COM No 21, SCOT LAW COM No 11, HMSO, London, 1969), paras 38, 78 and 81(c) and cl 4 of the draft provisions (p 51), and the recommendations of the Public and Administrative Law Reform Committee in its 1980 report, Damages in Administrative Law (Report No 14, Wellington, 1980). When remedies are provided, it is sometimes implicit that the provision containing the remedy is exhaustive. In other cases that is made explicit, eg, the Resource Management Act 1991 s 23(2); in still other cases the matter is not clear, as with the Securities Act 1988 (see para C14).

C10 One long-standing provision denying civil liability can be conveniently mentioned here. The Postal Services Act 1987 s 6 provides that:

No person shall have any right to compensation and no liability shall be imposed upon New Zealand Post Ltd by reason of any loss, default, delay, or omission in relation to any letter except in relation to a letter to which section 3(2) of this Act applies.

(For an earlier version, see Post Office Act 1881 s 77.)

Section 3(2) sets out the exceptions to the New Zealand Post monopoly which is being phased out, and with it the protection from liability. In that area of competition the general law, especially of negligence or contract, would apply. This statutory denial of liability presumably reflects the legislative judgment that an efficient public mail system could be impeded by imposing standards of care with an associated very extensive potential liability for economic loss: compare DHL International (NZ) Ltd v Richmond Ltd [1993] 3 NZLR 10 CA. (Neglect by those with responsibility to deliver the post has, however, sometimes resulted in criminal liability.)

C11 Whether a protective provision can be justified in addition to the positive statement of power has to be related to the extent and nature of that power, to principle, to statutory practice, and to particular matters considered here and in the report. The many protective provisions and the related common law rules strongly suggest that it is too simple to say that such provisions should never be enacted. The report considers when they can be justified and proposes answers. This appendix provides a basis for that consideration by analysing the terms of the protective provisions.

The apparently unlawful act

C12 Before turning to the protective provisions, we return briefly to the initial element listed in para C5 – the original act which is alleged to be unlawful and is the subject both of the civil or criminal proceedings and the protective provisions. The main cases can be identified readily enough. They include the torts (and sometimes the associated crimes) of assault, trespass, defamation, negligence, and breach of statutory duty. They also include breach of confidence and of copyright, and breach of contract.

C13 The torts of negligence and breach of statutory duty present larger difficulties than do the others. Although these difficulties are not the main concerns of the appendix, it is helpful to mention them since they may be central to both the drafting and the effect of protection provisions. The difficulties reinforce the point made in para C9 about the value of explicit provisions for compensation for damage caused by the exercise or breach of statutory powers. The straightforward legislative entitlement to compensation provided for in the Penal Institutions Act (para C7(8)) can be contrasted with the complex arguments (lasting at least 9 days) and lengthy judgments in Dorset Yacht Co v Home Office [1970] AC 1004. (Compare also the compensation provisions in the compulsory title provisions (para C7(4)) with Ministry of Housing v Sharp [1970] 2 QB 223 (QBD and CA).) The issues which arise in the absence of legislation can also be highlighted by recent decisions of the Court of Appeal and the House of Lords.

C14 In Fleming v Securities Commission [1995] 2 NZLR 514, some members of the Court of Appeal rejected claims by disappointed investors that the Securities Commission owed them a duty of care in respect of the supervision of irregular newspaper advertisements offering high interest securities. (Some members of the court also held that the plaintiffs had not established that the breaches of the alleged duty caused their losses.) The assessment of whether a duty of care existed had regard to the legislative provisions and the responsibilities of the Securities Commission. For one judge, the protective provision with its express reasonable care limit “shows that Parliament contemplated the possibility of negligence liability” (519). Another judge did not specifically identify negligence as a cause of action contemplated by the provision. Rather, “the statute recognises that in some circumstances civil proceedings may lie against the Commission when it has not acted with reasonable care” (529). It is interesting that a provision which is designed to protect the public body from legal action is seen as implying the opposite; that is, that an action might be brought.

C15 Recent House of Lords decisions have concerned proceedings brought against local authorities by child abuse victims, by a child who had been put in care and her mother, and by children complaining about schooling – in all cases for negligence and all but one for breach of statutory duty: X & Ors (minors) v Bedfordshire CC [1995] 2 AC 633. For the most part, the proceedings were struck out. Lord Browne-Wilkinson, in the leading speech, distinguished between four categories of private law claims for damages where statutory duties are imposed on public authorities:

(A) Actions for breach of statutory duty simpliciter (ie, irrespective of carelessness);

(B) Actions based solely on the careless performance of a statutory duty in the absence of any other common law right of action;

(C) Actions based on a common law duty of care arising either from the imposition of the statutory duty or from the performance of it;

(D) Misfeasance in public office; ie, the failure to exercise, or the exercise of, statutory powers either with the intention to injure the plaintiff or in the knowledge that the conduct is unlawful. (730–731)

C16 So far as (A) was concerned, he noted that it was significant that the court was

not referred to any case where it had been held that statutory provisions establishing a regulatory system or a scheme of social welfare for the benefit of the public at large had been held to give rise to a private right of action for damages for breach of statutory duty. Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefit of society in general . . .

The cases where a private right of action for breach of statutory duty have been held to arise are all cases in which the statutory duty has been very limited and specific as opposed to general administrative functions imposed on public bodies and involving the exercise of administrative discretions. (731–732)

C17 He then turned to (B) and considered

cases in which the plaintiff alleges (A) the statutory duty and (B) the “negligent” breach of that duty but does not allege that the defendant was under a common law duty of care to the plaintiff. It is the use of the word “negligent” in this context which gives rise to confusion: it is sometimes used to connote mere carelessness (there being no common law duty of care) and sometimes to import the concept of a common law duty of care. In my judgment it is important in considering the authorities to distinguish between the two concepts: as will appear, in my view the careless performance of a statutory duty does not in itself give rise to any cause of action in the absence of either a statutory right of action (category (A) above) or a common law duty of care (category (C) below). (732)

He quoted from the judgment of Lord Wilberforce in Allen v Gulf Oil Refining Ltd [1981] AC 1001, 1011:

It is now well settled that where Parliament by express direction or by necessary implication has authorised the construction and use of an undertaking or works, that carries with it an authority to do what is authorised with immunity from any action based on nuisance. The right of action is taken away: Hammersmith and City Railway Co v Brand (1869) LR4 HL 171, 215, Lord Cairns. To this there is made the qualification, or condition, that the statutory powers are exercised without “negligence” – that word here being used in a special sense so as to require the undertaker, as a condition of obtaining immunity from action, to carry out the work and conduct the operation with all reasonable regard and care for the interests of other persons . . . (733)

Lord Browne-Wilkinson concluded his decision on this point in this way:

In my judgment the correct view is that in order to found a cause of action flowing from the careless exercise of statutory powers or duties, the plaintiff has to show that the circumstances are such as to raise a duty of care at common law. The mere assertion of the careless exercise of a statutory power or duty is not sufficient. (734–735)

C18 It followed, misfeasance – (D) – not being pleaded, that the House of Lords considered only (A) actions for breach of statutory duty and (C) actions based on a common law duty of care.

The protective provisions

C19 The protective provisions can be roughly grouped according to the range of subject matter:

• general functions: any act of any person or specified persons in exercise of the functions set out in the Act;
• powers of law enforcement: these powers include investigation, inspection, search, and arrest;
• judicial and related functions: in this context these protections relate not just to the judicial and other official participants, but also to witnesses, parties, and counsel;
• powers (sometimes duties) of reporting: for example, of possible public dangers; and
• transfer of property: for example, in the context of the reorganisation of public and other bodies.

C20 That rough grouping and the lists of statutes which have been prepared are problematic in that they do not record the omissions. For example, exercises of the powers of labour inspectors are not protected (and appear never to have been, eg, Factories Act 1892), while those in the transport area are. Arbitrators under the Crown Minerals Act 1991 get express protection while those under the Resource Management Act 1991 do not. Protections under the (now repealed) Customs Act 1966 were extended in 1971 to include liability in respect of loss of or damage to goods: it must have been thought that the earlier protection was inadequate.

C21 This appendix concerns the provisions included in the schedule of statutory protection provisions. Table 4 (pages 98–164) summarises protective and immunity provisions which in general protect persons acting under legislation from liability or proceedings. Those provisions have a long history while those in tables 5 and 6 (pages 171 and 172) are much more recent. The newer provisions state, among other things, that those carrying out certain actions under restructuring legislation are not committing a “civil wrong”.

C22 The elements of many of the provisions can be divided into four. To take a provision in a recent statute, the Biosecurity Act 1993 s 163:

• inspectors appointed under the Act
• are protected from liability
• in respect of actions under the Act
• so long as the actions were taken in good faith and with reasonable care.

C23 We shall see that there are several possibilities in respect of each element. We have already noted the possibility that no protective provision might be included at all, perhaps because the powers in question have been conferred in sufficient amplitude or the general protective law mentioned in para C1 is thought to be adequate.

The person protected ...

C24 Statutory protections are conferred on one or more of the following:

• any person (usually qualified by referring to those acting under the legislation);
• the relevant statutory body;
• the Crown;
• an identified official;
• members of the relevant body, its advisers, officers, and employees;
• categories of persons (such as members of the police, inspectors, and aircraft commanders); and
• participants in legal proceedings (witnesses, counsel, and tribunal members).

C25 A preliminary comparison of the provisions raises a number of questions. For instance, sometimes statutory bodies and their members (and others) are protected, while in other cases the body is not included. This could be a very significant difference. In the latter case, the injured plaintiff may still have a remedy against the body itself with the members alone being protected. Such provisions might be seen as rightly protecting the individual wrongdoer from financial cost while leaving the injured person with their remedy against another body or person such as the statutory body or the Crown by way of the Attorney-General. In that category of case, whether the remedy is available may turn on whether the body itself committed the wrong or on whether it can be held responsible for the action of the protected wrongdoer. By contrast, those protective provisions extending to “any person” might be seen as including and therefore protecting the statutory body as well as the individual, given the comprehensive definition of “person” in s 4 of the Acts Interpretation Act 1924; the plaintiff might be completely defeated. Some provisions extend to staff, while others are limited to the members of the body. The latter provisions might leave the plaintiff with a remedy, in this case against that staff member, if the unlawful act is that of a staff member.

... from liability or proceedings ...

C26 Statutory protective provisions use four main formulas:

• the person has no liability;
• no action or proceeding may be brought;
• the person is to be indemnified; and
• the person is not to be regarded as being in breach of contract or confidence, or guilty of a civil wrong.

C27 A further formula may have features of both the first and second formula: the person is not liable to civil proceedings (as opposed to not having a civil liability) nor guilty of an offence.

C28 A handful of provisions also require court leave before proceedings are brought, and have special limitation periods. They include provisions relating to health, local government, and securities. The Commission has already recommended that these provisions be repealed: Limitation Defences in Civil Proceedings (NZLC R6, 1988), draft Limitation Defences Act ss 37–38 and 46.

C29 The first formula in para C26 takes at least six different forms:

• no liability;
• no civil liability;
• no personal liability;
• not liable for damages;
• no criminal liability;
• no civil or criminal liability.

C30 The second formula varies somewhat similarly:

• no proceedings;
• no action or proceedings;
• no action or proceedings to recover damages;
• no civil proceedings;
• no civil or professional proceedings;
• no civil or criminal proceedings;
• no civil, criminal, or disciplinary proceedings.

C31 There is a significant difference between the “no liability” provisions and the “no proceedings” provisions. The first formula means that the person is not committing a legal wrong: the person is not bound by the relevant law (generally of tort) and is not subject to the relevant substantive obligation. By contrast, the second set of provisions does not deny the liability of the person or the wrongfulness of the action; nor does it deny that the person is subject to an obligation. Rather, it states that no proceedings may be brought against that person for that (wrong) action or breach of obligation. That is to say, the first set of provisions is concerned with a lack of duty, the second only with an immunity from jurisdiction. The distinction parallels that recognised in the law of diplomatic immunity where it is established that diplomatic immunity “does not import immunity from legal liability, but only exemption from local jurisdiction”: Dickinson v Del Solar [1930] 1 KB 376, 380, Lord Hewart CJ (see also articles 31–32 and 41 of the Vienna Convention on Diplomatic Relations and Empson v Smith [1966] 1 QB 426, 434–435, 438–439).

C32 Similarly, the English Court of Appeal held that legislation which provided that a wife or husband was not “entitled to sue the other for a tort” did not stand in the way of an action by the wife against their employer for the husband’s negligence which caused her injury. That act was still unlawful and was a tort by the husband for which the employer was liable. “Others may not hide behind the skirts [!] of his [the husband’s] immunity”: Broom v Morgan [1953] 1 QB 597, 606. The New Zealand Court of Appeal has made the same point about accident compensation legislation. The statement that “no proceedings for damages” are to be brought in respect of personal injury prohibits suits for damages but it does not abolish a cause of action: Donselaar v Donselaar [1982] 1 NZLR 97, 109, 116.

C33 But, if by contrast the legislation goes further and provides that the employee is “not liable”, the Crown or other employer cannot be vicariously liable for the employee’s action: that original action is not tortious. The Crown Proceedings Act 1950 makes the point very clearly. The Crown is made responsible for “torts committed by its servants and agents” (s 6(1)(a)) and, as well (and apparently redundantly), it can benefit from enactments which negative the liability of any officer in respect of any tort (s 6(4) – see para C68); see also the proviso to s 6(1)(a) set out in para C67. Note, however, the important limit placed on the vicarious element by s 6(3).

C34 Section 86 of the State Sector Act 1988 appears to be a major instance of such a non-liability provision. That provision’s broad denial of the liability of state employees appears (when read in conjunction with the Crown Proceedings Act s 6(4)) to place very extensive limits on the vicarious tort liability of the state. We understand that it has not, in practice, been applied in that fashion.

C35 We say in para C27 that a further formula may have features of the two formulas which have just been considered: the person is not liable to civil proceedings or guilty of an offence. The first half of the formula may leave the civil liability in effect (and grant an immunity only from proceedings) while the second half fully denies criminal liability. On that basis, the vicarious civil liability of the Crown (or other employer) would still exist. But it may be that that view depends too much on accidental variations in language over the last century, in different countries and in different statutory contexts. The uncertainty may be important since the formula is used in several provisions of the Crimes Act 1961 relating to general law enforcement activities (see further para C66).

C36 Both the “no liability” provisions and the “no proceedings” provisions present the same questions about their scope of application to different types of liability or proceedings. Some make it explicit that the provisions extend beyond civil matters to criminal. The references to discipline are a recent addition: it is not clear whether a general reference to proceedings or liability or to civil proceedings or liability would cover professional discipline. (For a discussion of the issue in a common law context, see Dentice v Valuers Registration Board [1992] 1 NZLR 720, 723–724.) Other provisions are limited to either civil or criminal matters. Those which refer only to “liability” (or personal liability) or to “proceedings” or “action or proceedings” might or might not extend to civil or criminal matters or both. (“Action” is probably a clear indication that civil process is intended.) There may also be a question whether the provision, if not expressly referring to damages, applies to prevent attacks on the decision in issue; ie, whether it is also a privative clause in the standard sense (see para C2). That wider view was taken in Hutchins v Broadcasting Corporation [1981] 2 NZLR 593, 597–598. It is to be noted, however, that the court – plainly mistakenly – thought that the expression “shall be under no civil liability” was an unusual one. Furthermore, there is a distinct standard set of formulas for privative clauses; there is no need for the drafter to draw on another set.

C37 The third formula noted in para C26 confers an indemnity. This is conferred on the basis that the individual can be held liable and the injured party compensated either by the wrongdoer or the indemnifier. Such provisions recognise, as well, that the appropriate way of reflecting the competing interests is not to deny the rights of the injured person, but to move the cost from the wrongdoer to the indemnifier – often the taxpayer. It should be noted, however, that the word “indemnity” is sometimes wrongly used in provisions which confer immunity. Note also the surprising provisions of s 59(5) of the Public Finance Act 1989 in respect of “indemnities” given under that section: the person who apparently is indemnified must repay the Crown. The word “indemnity” has lost its meaning in that case. Consider its application to the passages in the Cabinet Office Manual (Cabinet Office, Department of Prime Minister and Cabinet, Wellington, August 1996), chapter 5, paras 5.112–5.113, relating to litigation involving Ministers:

[I]t is a convention of government that Ministers should be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their Ministerial duties. . . . The Crown normally gives such an indemnity to all its servants; and Ministers are servants of the Crown.

C38 The fourth formula noted in para C26 appears to be a new one introduced from 1986 in restructuring legislation. The persons in question are not to be regarded as being in breach of the relevant obligation. Since the restructuring legislation has either effected the change in the legal obligation and the legal position generally, or authorises the change, the protective provisions appear to be unnecessary.

... in respect of certain acts ...

C39 There are six main variants. The protection is in respect of:

• any act under the statute (or other source of authority);
• acts effected or authorised by the legislation (especially under the restructuring legislation);
• any act in the course of the operations of the body;
• any act under the statute or intended to be under the statute;
• any act done for the purpose of carrying out the provisions of the statute; and
• the giving of evidence or the provision of information under the statute.

C40 In some statutes, defaults (or omissions) are included along with acts (or actions) or stand alone. In at least one case, the reference to omissions was added by a later amendment, suggesting doubt in that case and possibly in others whether “acts” or “actions” alone would include omissions. The acts might also be stated more precisely in terms of the particular statutory context, eg, disclosure of information, furnishing of reports, or words spoken or written in a proceeding.

C41 The statutes are sometimes explicit that the protection is from proceedings or liability “on any ground” or, more fully, “on any ground including want of jurisdiction or mistake of law or fact”. It is not clear that those words add to the protection. It may be that the explicit reference to want of jurisdiction would lead to wider protection.

C42 Some of the protections expressly exclude criminal proceedings for corruption and unlawful release of information under the Crimes Act 1961 ss 78–78A, and 105–105A.

C43 The principal question raised by the variations is whether under some of them, given their strict wording, the protection is available only if the act in question conforms with the statute. If so, what is the point of the provision? If the act is lawful – authorised by the statute – can it be the subject of legal proceedings? (See, however, para C50.) Much of the wording does appear to require conformity with the statute – the action must be “under the Act” or “in the exercise of the powers” conferred. The new restructuring provisions appear to have no effect for the same reason: nothing effected or authorised by the Act is regarded as placing any person in breach of contract or confidence, or guilty of a civil wrong.

C44 That narrow literal reading appears to be supported by the apparently deliberate double structure of many other provisions: acts done in execution or intended execution of the Act or in pursuance or intended pursuance of the Act; and by provisions which protect acts done for the purpose of carrying out the Act. The literal meaning would have the consequence that no protection is given by that large group of provisions: if the action complies with the Act and is accordingly lawful, can action be brought in any event? The English Court of Appeal has, however, read apparently strict empowering language (someone “committing an offence” could be arrested) as providing greater power and accordingly wider protection against a tort action (someone “apparently committing an offence” could be arrested): Wiltshire v Barrett [1966] 1 QB 312, approved in Walker v Lovell [1975] 1 WLR 1131 (HL). There is a question whether protective provisions, as opposed to empowering provisions, would be construed in this less than literal way, especially if careful distinctions are shown between them, as in the Crimes Act 1961 ss 27–38 (see paras C55–C64 and also para C51).

C45 The wording protecting court and related processes does not, of course, require conformity with the relevant legislation (except in one sense). Indeed, it cannot require such conformity: witnesses, parties and counsel are to give their evidence and argue their cases as they understand the situation, and the court or tribunal is to reach its own judgment or decision according to its view of the law and the facts. The exception is the outer limit of the jurisdiction in issue: action outside jurisdiction is generally not protected. “Jurisdiction” is read broadly in this context, as providing greater protection than when it appears in a privative clause designed to prevent an attack on the decision rather than an action for damages against the judicial officer: see Harvey v Derrick [1995] 1 NZLR 314 (CA).

... so long as the actions were taken in good faith ...

C46 Almost all the provisions require that the person be acting in good faith or sometimes that bad faith not be shown. The good faith requirement is replaced by an absence of malice in provisions which parallel qualified privilege in defamation.

C47 In addition, many of the provisions require reasonable care (or, in a few cases, reasonable cause).

C48 If the action is in bad faith, it may be that the preceding element will also not have been satisfied: the action was not in pursuance or intended pursuance of the statute in question. But that is not necessarily so, since the actor might have dual motives or motives may not be relevant once the threshold test for the exercise of the power is satisfied. As well, some of those protected by the provisions may not be acting “in pursuance” of statutory powers since they are, for instance, giving evidence to a court or tribunal. For them the good faith element may be a significant extra element to be established.

C49 It is relatively unusual for a good faith element not to be expressly stated, although it was removed from the legislation relating to justices of the peace in 1957. In the defamation context, it also does not appear for courts and tribunals in the Defamation Act 1992. That contrasts with the Commissions of Inquiry Act 1908. After some controversy the good faith requirement was included in the Commissioners Act 1903 and carried over into the 1908 Act; accordingly, it is now applicable to many tribunal and related powers. (See also para C63 for the variations in the Crimes Act.) That extensive legislative practice of including explicit provisions has not, however, prevented the courts reading the requirement into an Act which is silent. In Baigent’s case, the limit was read into silent Crimes Act provisions (ss 26(3) and 27), so that a police officer who exceeds the scope of the search warrant and knows that the search is beyond the purpose for which it was issued, is not protected: [1994] 3 NZLR 667, 673, 688, 716.

C50 The reasonable care element does appear to be more significant: if the potential defendant has acted with reasonable care and has also complied with the statute, it is not at all clear what protection – if any – the protective provision provides. Indeed, to return to the question in para C43, is not compliance with the statute itself a defence to any proceedings? To establish a defence, should it be necessary to show as well that reasonable care has been exercised? Clerk and Lindsell on Torts (17th ed, Sweet and Maxwell, London, 1995), 3–65, states that “in order that statutory authority shall succeed as a defence, the defendant must have acted without negligence, for it is not within the realm of reality that a statute would ever authorise negligence”, citing Geddis v Proprietors of the Bann Reservoir (1878) 3 App Cas 430. The House of Lords relied on Geddis in X & Ors (minors) v Bedfordshire CC (see paras C15–C18). Geddis makes it clear that an argument based on negligence requires that there be a duty of care: a lack of care in the exercise of the power without the duty is not enough (see para C17).

C51 While in Baigent’s case the Court of Appeal did not make a clear decision on whether reasonable care was to be read into the protection provisions in issue, there are strong indications in support of that position. The frequent express inclusion of a reasonable care limit does, however, raise doubts about whether it should be implied into a silent text. But the cases do show that apparently wide provisions – either conferring power or granting protection – might be read more narrowly than a first reading suggests. And in some areas covered by the Bill of Rights Act, especially powers of arrest, and search and seizure, the interpretative direction in s 6 of the Act might well lead to that result.

Comment

A more consistent, principled approach?

C52 At first, the great variety and huge mass of the statutory provisions make any general conclusion difficult to draw. But three points can usefully be made at this stage:

• The apparent confusion over whether provisions are to be included or not and, if they are, how they are worded, should be removed so far as possible by a more consistent approach – consistent in both principle and drafting.
• The need for that approach is supported by the limited or, apparently, even complete lack of effect of some of the provisions. In addition to the doubts about their effect raised in previous paragraphs, the law reports suggest that the provisions are not often invoked.
• That more consistent approach should have regard both to the scope and nature of the power, duty or functions conferred and to the rights or interests of individuals which might be affected by the exercise of the power.

C53 To return to the point made at the outset in para C6, in many areas of administration and of law enforcement it would appear sufficient to address this matter directly and positively through the statement of the power or function in issue, and that alone.

C54 There does not appear to be any reason to confer a power, for instance of search, and then to confer as well a protection on the person allegedly exercising the power. If the latter is to serve the purpose of preventing legal proceedings, it will have to be wider than the former; and, if it is, the question must arise why the original power was not conferred in more ample terms. If the answer is that an action outside the power but inside the protection remains unlawful so that the person injured can still sue (for instance, the Crown or other employer), the two preferable techniques would be to either leave the initial liability unaffected and protect the individual wrongdoer, or provide for an indemnity under contract or statute. (So far as a contractual indemnity by the Crown is concerned, the difficulties apparently caused by the Public Finance Act 1989 s 59(5) should be recalled (see para C37).)

The Crimes Act as a test: “protections without powers”

C55 Provisions in the Crimes Act 1961 help illuminate some of the issues and add one further statutory variation to those already considered. The variation is the conferral of a protection when no power exists. Section 315 makes it clear that powers of arrest exist only under statute; there are no common law powers of arrest. This section confers powers of arrest on constables, notably when they have good cause to suspect that the person arrested has committed an imprisonable offence (s 315(2)(b)). Section 31 can be read with that power. It provides that constables are justified in arresting a person in accordance with the provisions of s 315 or in accordance with any other enactment conferring an arrest power. (“Justified” is defined as meaning not guilty of an offence and not liable to a civil proceeding: s 2.) Section 31 appears to have no protective effect at all: constables have had the power conferred on them by the separate provision of s 315.

C56 In contrast to constables, members of the public are not given powers of arrest by the Crimes Act. Rather, they continue to have the benefit of the 1893 protection provisions which remain in the part of the Act concerned with matters of justification and excuse. Those provisions do provide real protection. Members of the public are justified in arresting a person they find either committing an offence against the Crimes Act which is punishable by 3 years of imprisonment or more, or committing an offence against the Act at night: s 35. The protection in the latter case is reduced to denying criminal responsibility if the circumstances afford reasonable and probable grounds for belief that the Crimes Act is being breached (presumably when the person arrested has not, in fact, committed the offence: s 36).

C57 To return to constables, s 32, in contrast to s 31, does serve a purpose: a constable who has authority under an enactment to arrest a person who has committed an offence is justified in arresting a person whom the constable believes on reasonable and probable grounds to have committed that offence, whether the offence has been committed or not, and whether the person committed it or not. The effect of this provision is to limit the absolute nature of the empowering provision (s 315) and to achieve part of what was achieved by a judicial gloss in the Wiltshire case (para C44). This is achieved only in part, first, because the statutory ground (belief on reasonable and probable grounds) appears to be more difficult to satisfy than the gloss (apparently committing an offence); and second, because the provision does not confer a power, but only a protection.

C58 One consequence of the second characteristic appears to be that the protection provision cannot be used in support of a provision which requires the existence of a power (or duty). Consider, for instance, whether an action falling within the protection provision is an action in the course of the constable’s duty for the purpose of the offence of obstructing constables in the course of their duty. There may also be a question whether the Crown continues to be liable nonetheless: the protection may do no more than prevent proceedings against the constables while leaving intact their liability and the related liability of the Crown under s 6(3) of the Crown Proceedings Act 1950.

C59 The approach of giving protection rather than conferring a power appears in several other of the provisions of the Crimes Act; for instance:

• Persons executing an erroneous sentence, process or warrant issued by a court

– having authority to impose such a sentence, etc, but which lacked authority in the particular case, or
– not having authority to impose such a sentence, etc,
are protected from criminal liability in both cases but from civil proceedings only in the first case (ss 27–28).

• Where the warrant or process is bad on its face, a person who believes, in good faith and without culpable ignorance or negligence, that the warrant or process is good in law, is protected from criminal liability (s 29).
• Anyone arresting the wrong person under a warrant, believing in good faith on reasonable and probable grounds that the person is the person named in the warrant, is protected from criminal liability (s 30).
• Anyone assisting a constable or officer to arrest a suspect is protected from both criminal liability and civil proceedings unless the person knows there is no reasonable ground for the belief or suspicion (s 34).

By contrast, the more recent s 39 of the Summary Offences Act 1981 simply and directly empowers constables to arrest persons they have good cause to suspect of having committed an offence against specified provisions of the Act.

C60 The above arrest provisions, taken from just two major criminal statutes, take four forms:

• the power of arrest is conferred (Summary Offences Act s 39);
• that power is exactly matched by a protection provision (Crimes Act s 31, matching s 315);
• that power is paralleled by a protection provision which also gives greater protection than the power conferred (Crimes Act ss 32 and 317(1)(a) – the person arrested is “committing” an imprisonable offence);
• only a protection provision is included (Crimes Act ss 27–28).

C61 In the case of arrest for an apparent offence, there is no manifest difficulty in proceeding simply as in s 39 of the Summary Offences Act. Note, however, that even the exactly matching general protection provision of s 31 of the Crimes Act would also apply as this section is not confined to powers conferred by the Crimes Act.

C62 In respect of these arrest provisions, we consider:

• an exactly matching protection provision serves no purpose at all;
• the substance of a wider protection provision which can be justified should be incorporated into the power itself; and
• the power should be conferred directly.

C63 The variations appear as well in the grounds for arrest or protection, or both:

• the offence must have been committed and the arrested person must be the offender;
• the offence must have been committed and there must be belief that the arrested person is the offender;
• there must be belief both that the offence was committed and that the arrested person is the offender;
• the mental element (if included) varies,

– belief or suspicion,
– good (or reasonable) grounds (or cause) for the belief or suspicion, or reasonable and probable grounds, or
– good faith is explicit in some provisions but not in others.

Some of those differences may well be deliberate. For instance, the good faith element is included in eight of the empowering or protective provisions in the Crimes Act which include mental elements, but not in at least another ten such provisions: eg, ss 32, 34, 36, 37, 38, 312B, 315, 317, 317A, 317B. While it might be thought that that difference is significant, Baigent’s case indicates that may not be so (see para C49). Consider also the line drawn between belief and suspicion: the former is frequently further constrained by the requirement that the grounds or cause must be probable as well as reasonable.

C64 The differences might also be partly explained by history with, for instance, the protection provisions dating back to the times of common law powers of arrest: see Stephen, A History of the Criminal Law of England (MacMillan, London, 1883), vol 1, 193–194, who, in preparing the criminal code, took them for granted. The belief–suspicion distinction appears to be historical as well, with the former being used in 1893 and the (easier) suspicion ground being added in 1961 and later.

C65 The legislative practice certainly does not support with any consistency the proposition that there must, in general, be protective provisions extending beyond the enforcement powers conferred.

Baigent’s case

C66 The analysis and arguments can be further tested by reference to the four protective provisions at issue in Baigent’s case. The discussion also highlights the limited or nil effect of the protective provisions when they are tested. The following three provisions – which on their face protect the police officers – were invoked as also protecting the Crown:

• Section 26(3) of the Crimes Act 1961 states that

Everyone duly authorised to execute a lawful warrant issued by any ... person having jurisdiction to issue the warrant ... is justified in executing the warrant ...
(“Justified” means not guilty of an offence and not liable to a civil proceeding.)

• Section 27 further states that

if a warrant is issued by a ... person having jurisdiction under any circumstances to issue such a warrant, the ... warrant issued shall be sufficient to justify the execution of it by every officer ... or other person authorised to execute it, notwithstanding that
...
(b) ... [the] person issuing the warrant had no jurisdiction to issue it, or exceeded ... his jurisdiction in issuing it, in the particular case.

• Section 39(1) of the Police Act 1958 states

Where any process has been issued out of any court ... no member of the police doing anything in obedience to any such process shall be responsible for any irregularity in the issuing of the process, or for any want of jurisdiction in the issuing of the same.

C67 A fourth provision (s 6(5) of the Crown Proceedings Act 1950) does not, on its face, protect the officer. Rather it denies the Crown’s vicarious liability for certain torts committed by the officer. Section 6(1) makes the Crown subject

to all those liabilities in tort to which, if it were a private person of full age and capacity, it would be subject

(a) In respect of torts committed by its servants or agents; . . .

A proviso to that s 6(1) emphasises that

no proceedings shall lie against the Crown by virtue of paragraph (a) . . . in respect of any act or omission of a servant or agent of the Crown unless the act or omission would apart from the provisions of this Act have given rise to a cause of action in tort against that servant or his estate.

C68 Section 6(4) gives further emphasis to the proposition that the Crown can stand in the protective shoes of an official:

Any enactment which negatives or limits the amount of the liability of any Government Department or officer of the Crown in respect of any tort committed by that Department or officer shall, in the case of proceedings against the Crown under this section in respect of a tort committed by that Department or officer, apply in relation to the Crown as it would have applied in relation to that Department or officer if the proceedings against the Crown had been proceedings against that Department or officer.

C69 In that context, we turn now to s 6(5) which was the protective provision centrally in issue in Baigent’s case:

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

C70 If we begin with the hypothesis – accepted for the purposes of the striking-out action – that the police officers in Baigent’s case were committing torts of trespass because they were acting outside the scope of their positive authority under the warrant, what is, or what ought to be, the role of the four protective provisions set out? Both the is question and the ought question can be answered briefly because the Court of Appeal has ruled on most aspects of them. The four provisions are considered in turn in the following paragraphs.

C71 Section 26(3) of the Crimes Act appears to provide no protection if, on the plaintiff’s hypothesis, the officer was not “executing the warrant”. The provision appears to be redundant in any event. If it does not deny the liability of the police officers but only prevents proceedings against them, the Crown’s liability might continue unaffected (see para C35).

C72 Section 27 of the Crimes Act also appears to be of no help to the Crown since there is no allegation that the warrant was issued without authority. In the situation to which it is directed, the provision does appear to have a perfectly proper role: a person directed or authorised to execute a warrant should not be at risk due to the issuer of the warrant, although having general authority to issue such a warrant, acting without authority in the particular case – unless, of course, the person executing the warrant knows of the particular lack of authority.

C73 That last comment is to be related to the willingness of the judges in Baigent’s case either to read into such provisions limits of reasonableness and good faith (notwithstanding the “pointed” omissions of such limits from some particular provisions in contrast to others), or to use the knowledge of the officers to conclude that they were not “executing” the warrant and, accordingly, had stepped outside the protection.

C74 The points relate as well to s 39(1) of the Police Act. On the assumed facts in para C70, the police were not “doing anything in obedience to . . . [the] process”; they were doing things outside it. Also, the limits of good faith and reasonableness are again seen as constraining the exercise of the power or the scope of the protective provision. Like s 27 of the Crimes Act, s 39(1) appears to have what may be considered an entirely proper purpose of protecting those executing court process from earlier errors in the issuing of the process – again, so long as the officers did not know of the errors.

C75 The possible area of application of the final provision – s 6(5) of the Crown Proceedings Act – is narrowed by the following considerations:

• that judicial immunity already provides wide protection to those exercising judicial functions;
• that most of those exercising “responsibilities of a judicial nature” are not “servants” or “agents” of the Crown within the definitions in s 2 of the Crown Proceedings Act – accordingly s 6(1)(a) does not apply; and
• that the provision does not, expressly at any rate, prevent action directly against the person who discharges the responsibility in question: for instance, in Baigent’s case it does not protect the police officer.

C76 To move to the ought question, to the extent that the provision protects the Crown in respect of the action of the police, why should the existence of that protection depend on whether the police officers are claiming to act directly under a statutory power of search (eg, the powers to stop and search cars in the Crimes Act s 317A), or – as in Baigent’s case – under a search warrant issued under statutory power? We recall the 1980 recommendation of the Public and Administrative Law Reform Committee that the final phrase of s 6(5) of the Crown Proceedings Act (“or any responsibilities which he has in connection with the execution of judicial process”) should be deleted. As the report indicates, we support that recommendation (see para 176).

C77 The foregoing discussion might first suggest a category of protective provisions – provisions protecting an officer who is acting under the authority of another or to give effect to the directions of another – where that authority has been unlawfully exercised by that other. The argument would be that in the absence of knowledge or imputed knowledge, the subordinate should not be personally liable. Such a protection would be in conformity with the principle that a manifestly unlawful order is no defence to criminal proceedings, with the consequence that an apparently lawful order is a defence, even if a court later holds it to have been unlawful: eg, Crimes Act ss 45 and 47; compare the Armed Forces Discipline Act 1971 ss 37–40 (“unlawful” order). Protecting the innocent subordinate or officer would not affect the ability to sue the person who ordered the issue of the process (although judicial immunity would generally defeat that) or the Crown if no other appropriate remedy (eg, an appeal or review) was available.

C78 The second suggestion arising from this discussion might be that many protective provisions should be repealed or modified. Many are not effective; they might even be counter-productive. To the extent that they are effective, they are difficult to reconcile with principle. The reason is that they completely prevent a person who has been unlawfully deprived of liberty, assaulted, or has been the subject of unlawful trespass, from obtaining the judgment in damages to which that person would otherwise be entitled. However, a provision of the kind suggested in para C77, which protects an innocent officer, but leaves the main cause of action available against another defendant (the person or body principally responsible, or the Crown), can be seen differently. That matter, too, is further considered in the report (see paras 118–120).

C79 To conclude the discussion in this appendix, it is convenient to mention an important argument of principle for the repeal or narrowing of many of the protective provisions. It is discussed in chapter 2 of the report. The principle is equality before the law: the state should not, in terms of remedies, have a preferred position. The Bill of Rights Act s 27(3), the International Covenant on Civil and Political Rights, the Crown Proceedings Act 1950, the criteria stated by the Cabinet Strategy Committee, and the Ministerial terms of reference on the Crown project, all support the equation of the state with individuals in this respect. That matter is considered by the Commission in its Final Report on Emergencies (NZLC R22, 1991), paras 5.162–5.164. The principle that the state be subject to the law in the same manner as an individual is also part of Dicey’s concept of the rule of law:

It means, again, equality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary law courts; the “rule of law” in this sense excludes the idea of any exemption of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals . . . (Dicey, Introduction to the Study of the Law of the Constitution (10th ed, MacMillan, London, 1959), 202–203)

C80 This equality is emphatically not a reference to equality of powers. As the preface to this report recognises, the state has numerous powers which the individual does not. Rather, the principle of equality in this case means that when those powers are exercised the state should be liable for wrongdoing in the same way as an individual.

“Civil wrong” provisions

C81 The majority of the provisions that preclude “civil wrongs” relate to the transfer of assets and are usually accompanied by provisions to the effect that no illegal act or discharge of responsibility arises from the transfer. These provisions are listed in table 5.

C82 Further provisions relate to the imposition of a new statutory or administrative structure. These are listed in table 6.

Other provisions

C83 Sections 280D, 28ZN, 28ZP and 28ZQ of the Fisheries Act 1983 include “no civil wrong” provisions related to the reduction or cancellation of fishing quota allocations. Section 20 of the Waterfront Industry Reform Act 1989 makes similar provision for property leases and licenses.

C84 Section 8 of the Forests Amendment Act 1993 provides that no civil wrong or cause for compensation arises from the actions of the Minister of Customs in restricting the export of indigenous timber.

C85 Sections 386, 390, 435, 446(4) and 457 of the Local Government Act provide for no compensation in certain cases of discontinuance of water supply and drainage.