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APPENDIX A

Likely Consequences of Baigent’s Case in Fact: The New Zealand position

A1 _The Commission has considered the number of proceedings

pending or threatened in which a breach of the Bill of Rights Act is alleged, as well as the quantum of damages claimed.

Number of proceedings

A2 Material collected by the Ministry of Justice indicated approximately 40 sets of proceedings as at August 1995.

A3 Table 1 lists departments and organisations which indicated that proceedings had been issued against them, and the number of proceedings identified by each.

A4 The Department for Courts and the Department of Corrections also indicated threatened proceedings (1 and 3 respectively).

Contingent liability

A5 As is evident from the number of proceedings, the nature of police activities makes their actions the most likely source of claims based on breach of the Act.

A6 The police report a rise in contingent liability, a significant proportion of which is attributable to Bill of Rights Act liability. These figures are shown in tables 2 and 3.

A7 The contingent liability figures relate essentially to tort actions. The Bill of Rights Act component is calculated by totalling the amounts claimed for breach of the Act, even where other causes of action are pleaded in respect of the same facts. This means that there may be some double counting.

A8 Three of the proceedings listed in table 1 seek declarations and other orders and do not claim damages. Where damages are claimed they range from $40 000 (for an alleged unlawful strip-search of school students) to $250 000 (sought in respect of the alleged false imprisonment of two women mistaken for their sisters who were subject to removal orders under the Immigration Act 1987).

A9 It is difficult to make an assessment of the extent of the contingent liability that will be realised, given that:

• the amounts claimed in individual proceedings are not indicative of the strength of the claim that there has been a breach of the Bill of Rights Act; and
• the amounts claimed, especially for exemplary or punitive damages, do not indicate any scale reflecting the harm caused by the breach or the relative severity of the breach.

It is also difficult to assess what liability is actually created by the new cause of action. That is, what claims can be brought or will succeed which would not have been brought or would not have succeeded in tort (see para A15).

Scope of the new public law action

A10 Most of the proceedings involve alleged breaches of ss 21–24 of the Act. The rights contained in these sections are the right to be secure against unreasonable search or seizure (s 21); the right not to be arbitrarily arrested or detained (s 22); rights of persons who have been arrested or detained (s 23), such as the right of silence and a requirement that the person be treated with respect; and rights of persons charged (s 24), including right to time and facilities to prepare a defence, and the right to consult and instruct a lawyer. The statements of claim also plead related torts of assault, false imprisonment, and trespass – these pleadings in tort could, of course, have been made in the absence of the Bill of Rights Act. The proceedings against the police can be grouped as challenges to:

• the grounds for issuing a search warrant;
• the grounds for conducting a search without a warrant;
• the manner in which a search was conducted;
• the grounds for arrest (this challenge is brought in cases where the person charged is acquitted, discharged, or where charges are withdrawn); and
• decisions about police bail.

A11 There are other proceedings alleging conspiracy and misfeasance in public office, challenging the conduct of police officers involved in the transporting of a mentally ill person, and seeking damages for the diminution in value of goods seized by the police for the purposes of prosecution.

A12 The case identified by the Department of Labour involves the detention of two women subject to removal orders (see para A8). One of the cases identified by the Ministry of Education involves an alleged unlawful search of a school student. Two of the three cases identified by the New Zealand Customs Service involve challenges to powers of search.

A13 The proceedings that do not involve the exercise of powers of search or detention concern:

• an action against Housing New Zealand challenging changes to state housing rentals in which breaches of ss 8 (right to life) and 18 (freedom of movement) were alleged; the action was unsuccessful: see Lawson v Housing New Zealand & Ors (unreported, High Court, Auckland, 29 October 1996, M538/94);
• an application for judicial review of a decision to suspend a student in which breach of s 27 (right to natural justice) is alleged; and
• an application for an interim order excusing the applicant from complying with requisitions to produce documents under s 218 of the Customs Act 1966 on the basis that they are in breach of ss 22 and 27 of the Act.

A14 The proceedings appear to be largely co-extensive with traditional tort actions or applications for judicial review. We have held discussions with the Crown Law Office and lawyers who might act for potential plaintiffs, and they share this sense of the scope of the Baigent action. Among lawyers acting for plaintiffs there is caution about the fact that the remedy for breach of the Bill of Rights Act is discretionary: they see the value of invoking the traditional remedies with their well-established rules relating, for instance, to the measurement of damages.

A15 Examples of claims that might be made under the Act that could not readily be brought in tort are:

• a claim by a prisoner that treatment breached the right to be treated with humanity and respect where the treatment complained of does not involve an assault (eg, neglect); and
• claims based on the rights of persons arrested, detained, or charged.

A16 The latter of these claims will often be met by non-monetary awards but could potentially involve damages. There is a case pending against the police in which damages for breach of the right to legal advice have been sought. It is alleged the failure led to name suppression not being sought which affected the charged person’s employment as a teacher.

A17 The Human Rights Act 1993 prohibition on discrimination contains detailed exceptions and also a limit on the application of the Act to the Crown in s 151. In contrast, the Bill of Rights Act s 19 states the right to freedom from discrimination more starkly. This may lead to claims being brought in the courts for breach of s 19 in preference to making a claim under the Human Rights Act.

A18 In many cases the same facts would support either an action in tort or a claim for breach of the Bill of Rights Act. There are, however, some important differences between the two actions. These differences may mean that the action based on the Act is more likely to succeed or to result in greater damages being awarded than an action in tort.

A19 The key difference between the two actions is that statutory powers or immunities conferred on individual employees, officers or bodies do not seem to be available to the Crown as a defence to a Bill of Rights Act claim. This is because Baigent’s case held that liability for breach of the Act is direct.

A20 The principles that apply to awards of damages for breach of the Act were not fully discussed in Baigent’s case, but the following observations were made:

• compensation for intangible harm is available;
• the need to “emphasise the importance of the affirmed rights and to deter breaches” are proper considerations; and
• emphasis should be given to compensating, so as to affirm the right breached, rather than to punishing the transgressor.
• ([1994] 3 NZLR 667, 678, 692, 703, 718)

Inferences from these comments are that an award that does more than compensate might be justified to emphasise the rights, and punitive damages may be available at least in some cases. The following comment made by Cooke P can be interpreted as a sign that damages for breaches of the Act could be substantial:

[F]or a brief but serious invasion of the plaintiff’s rights such as may have occurred [in Baigent’s case], where no physical harm or lasting consequences appear to have ensued, an award of somewhat less than $70 000 [the amount claimed] would be sufficient vindication on all or any causes of action. (678)

In contrast, in Maharaj v Attorney-General of Trinidad and Tobago (No 2 ) [1979] AC 385, it was suggested the compensation might be less than that recoverable in tort (400).

A21 A third aspect of a claim based on the Act is the speculation that its characterisation as “compensation” rather than damages might mean the statutory bar on proceedings for damages in the ACC legislation and the limits on damages in the Law Reform Act 1936 are avoided. These issues did not arise for consideration in Baigent’s case and can only be considered uncertain possibilities at this stage.

A22 The potential liability credited by the direct action (avoiding statutory immunities) and the uncertainty about other aspects of the action is likely to lead to an increase in the number of claims made. Even if these claims are not substantiated, there are costs in managing them, particularly while the scope of the action, and the likely range of awards, are uncertain.

A23 Although proceedings to date relate in the main to breaches of ss 21–24 of the Act, the police consider that claims will “dramatically increase” and suggest claims may arise under the other sections in the following circumstances:

• section 8: arbitrary deprivation of life – whenever there is a fatal car accident involving a police vehicle, or where police shoot an offender;
• section 9: torture and cruel treatment – whenever police use unreasonable force to arrest;
• section 11: refusal to undergo medical treatment – where police give medical treatment to a person who has attempted suicide in police custody;
• section 14: freedom of expression – all arrests for inciting criminal behaviour or offensive language;
• sections 16–18: freedom of peaceful assembly, association, and movement – all police action at scenes of protest;
• sections 19–20: freedom from discrimination, and minorities’ rights – coercive police action;
• sections 21–24: search, personal liberty, and rights of criminal suspects – these sections are used where the accused is not convicted, or if a person claims that he or she was not granted the proper bail;
• section 25: minimum standards of criminal procedure – action for damages for time on remand.

A24 This prediction of a “dramatic increase” must be taken seriously. But what is the strength of the prediction? Three comments must be made in response. The first is one of fact: the proceedings actually filed against the police are essentially limited to those in the traditional law enforcement areas covered by ss 21–24. If the facts alleged in those proceedings are made out there would be, in almost all conceivable cases, a remedy in damages under the established law – for assault, or wrongful arrest, or false imprisonment, or trespass. The second is that the rights and freedoms in question are not absolute. Particular freedoms have limits written into them: freedom of peaceful assembly (s 16), and the right not to be arbitrarily arrested or detained (s 22). There is also a general recognition in s 5 that the rights and freedoms might be subject to reasonable limits which can be demonstrably justified in a free and democratic society. The third related comment is that, with only limited exceptions (and then mainly by way of greater precision rather than through the establishment of new rights), the rights and freedoms affirmed, protected, and promoted by the Bill of Rights Act existed before 1990. Over the centuries, Parliament and the courts have established the rights and freedoms, and have provided remedies in respect of them. That appears very clearly from the dissenting judgment in Baigent’s case. The limited, residual character of the compensation remedy is supported by the fact that similar, additional remedies in comparable countries have not produced a major increase in state liability.

A25 The Commission sought views from departments and Crown entities about whether they considered that the action for breach of the Bill of Rights Act extended the liability they would otherwise face.

A26 The Police Complaints Authority, the Securities Commission, the New Zealand Police, the New Zealand Fire Service, the Ministry of Education, the Ministry of Fisheries, the Department for Courts, the State Services Commission, and the Department of Conservation considered that the liability of the Crown has been extended. The extension of liability arises because of:

• the creation of direct liability of the Crown;
• the attraction that a potential damages award might have to those who would otherwise have only administrative law remedies (eg, students who are suspended);
• the fact that there is an additional cause of action even if the facts support a tort action (this could be important if there are economic incentives to challenge actions of fisheries officers for instance); and
• the possibility that actions (such as a search) might be held lawful yet unreasonable.

A27 The Ministry of Health, the Inland Revenue Department, the Department of Internal Affairs, the Maritime Safety Authority, Healthlink South, South Auckland Health, and Trans Power New Zealand Limited also considered an increase in liability was possible but did not comment specifically on whether that liability would attach to the Crown, or entities, or individuals.

A28 Other respondents (Department of Statistics, Ministry of Defence, Broadcasting Standards Authority, Parliamentary Commissioner for the Environment, The Treasury, Department of Survey and Land Information, Ministry of Cultural Affairs, Office of Controller and Auditor-General, New Zealand Tourism Board, Education Review Office, Blood Transfusion Trust, Crown Company Monitoring Advisory Unit, Department of Labour, Ministry of Commerce, and Ministry of Foreign Affairs and Trade) did not envisage an increase in the number of claims against them.

A29 To our knowledge there have been, at the time of writing, only two cases in which damages have been awarded for breach of the Act on the authority of Baigent’s case. These are discussed in paras 68–71.