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Endnotes

^[1] We use this expression to refer to a possible liability on the Crown for breaches of the Act by someone other than the Crown or its servants. We do not use the term to characterise Baigent liability as being such as can only be imposed if tort remedies have been exhausted (as has been suggested by some commentators).

^[2] The status of judges of the Employment Court is not defined in the Employment Contracts Act 1991 or elsewhere in statute.

^[3] The exception of the substantial multi-national organisation with a New Zealand presence does not affect the general point.

^[4] See discussion in Cooper v Attorney-General [1996] 3 NZLR 480, 485_486.

^[5] See, for example, Fitzgerald v Muldoon [1976] 2 NZLR 615; Professional Promotions and Services Ltd v Attorney-General [1990] 1 NZLR 501; R v Goodwin (No 2) [1993] 2 NZLR 390; and Baigent's case itself.

^[6] See, for example, Council of Civil Service Unions [1985] AC 324; Burt v Governor-General of New Zealand [1992] 3 NZLR 678; R v Secretary of State for the Home Department, ex p Bentley [1974] QB 349. The courts may be expected, in their development of the common law relating to judicial review of the prerogative, to recognise the importance of allowing the Crown to continue to exercise its public responsibilities without unnecessary constraint. An example is provided by the Immigration Act 1987 which in s 13A, 13B and 13C refers to the Crown's prerogative of controlling entry into New Zealand: Patel v Chief Executive of the Department of Labour [1997] 1 NZLR 102. In the area of the prerogative, as in that of statute law, we would expect the law to develop in accordance with the necessity test.

Where the Crown is exercising public functions the judge-made common law does not at present provide compensation for those injured by invalid administrative action, unless the officer deliberately or recklessly acted outside the power conferred, and either knew that that conduct would cause damage to the plaintiff or was recklessly indifferent to the consequences: Bourgoin v Minister of Agriculture Fisheries and Food [1986] QB 716 (cf Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd [1993] AC 227, 281); Rowling v Takaro Properties Ltd [1988] AC 473 (PC); Garrett v Attorney-General [1993] 3 NZLR 600, 603_604; Whithair v Attorney-General [1996] 2 NZLR 45, 55_56; Elguzouli-Dat v Commissioner of Police [1995] 1 All ER 833_840; Bennett v Metropolitan Police Commissioner [1995] 2 All ER 1, 14; Three Rivers v Bank of England (No 2) [1996] 2 All ER 363. The Court of Appeal has reviewed the elements of the tort of misfeasance in public office in Garrett v Attorney-General (unreported, Court of Appeal, 19 December 1996, CA 129/96). In Rawlinson v Rice (unreported, Court of Appeal, 19 March 1997, CA 246/96), the Court of Appeal held that an action for misfeasance in public office against a retired District Court judge should not be struck out, but referred to a Court of Appeal bench of five judges, the question whether the tort of misfeasance in public office can apply to a holder of a judicial office.

In its report No 226, Administrative Law: Judicial Review and Statutory Appeals (9 September 1994) para 2.32, the Law Commission of England and Wales observed:

The fact that English law does not provide for such compensation has long been the subject of criticism, and a number of factors, including developments in European Community law, suggest that the general unavailability of compensation against public authorities for invalid administrative action requires reconsideration. However, whether compensation should be available and, if so, what its scope should be calls for deeper study than we could conveniently give it in the present exercise. We agree, however, with those consultees to our consultation paper who said that the time is now ripe for such study.

^[7] De Latournerie, "The Law of France" in Bell and Bradley (eds), Governmental Liability: A Comparative Study (United Kingdom National Committee of Comparative Law, London, 1991).

^[8] Abraham, The Judicial Process (6th ed, Oxford University Press, New York, 1993), 385. See also de Latournerie, note 7 above, and Bell, "English Law and French Law: Not so Different?" [1995] 2 Current Legal Problems 63, 96_97.

^[9] Ahmedouamar, "The Liability of the Government as a Consequence of its Legal Activities" (1983) 11 Int J of Legal Information 1, 6.

^[10] Brasserie du Pêcheur SA v Germany; Reg v Secretary of State for Transport, ex p Factortame Ltd (No 4) [1996] QB 404; R v Ministry of Agriculture, Fisheries and Food, ex p Hedley Lomas (Ireland) Ltd [1996] 2 CMLR 391. In Brasserie the Advocate General stated in relation to English law:

In contrast, where the breach falls solely within the ambit of public law, liability may be claimed only for misfeasance in public office. This is the only tort which covers relations between private persons, but specifically the public authorities. However, the requirement of intentional unlawful conduct makes the possibility of obtaining damages a remote one, even where the loss or damage arises out of infringements of Community law . . . (438)

He continued:

The idea of state liability for loss or damage caused by legislative activity does not seem at all surprising. The basic principle of most of the civil rules on non-contractual liability is neminem laedere, as variously interpreted and limited, under which everyone is bound to make good loss or damage arising as a result of his conduct in breach of a legal duty. (Albeit that principle does not have the same general scope in all the legal systems _ suffice it to cite the British system, in which there is a limit in terms of the (restricted) scope of the duty of care _ it nonetheless remains that, in as much as it refers to the idea of wrongful damage, it may be regarded as the starting point for any discussion of liability.) It is undeniable that reference is made to that principle by the various rules, mostly created by the courts, governing liability on the part of the public authorities, even though that liability has special features peculiar to itself in view of the activities carried out by those authorities, in particular in the case of legislative activity. Liability of the public authorities is also closely, if not indeed necessarily,

connected to wrongful damage by the fact of its having to have been caused by the unlawful conduct; in a manner of speaking, this is the other side of the coin.

Admittedly, in the case of the public authorities, precisely because of the nature of the activity which they perform and of the consequences which would ensue were there held to be liability and an obligation to compensation generally, the tendency has invariably been to limit the scope of liability in various ways. The extent of that limitation, which may be encapsulated, by way of initial approximation, in the well known formula according to which the liability in question is `neither general, nor absolute' (judgment of the French Tribunal des Conflits of 8 February 1873 in Blanco, D 1873, II, 20) is consequently related to the need to balance the opposing, competing interests at stake: on the one hand, the injured party's interest in obtaining at least financial restitution for the loss or damage he sustained as the result of an activity _ in particular legislative activity _ of the state; on the other, the state's interest in not having to answer invariably and in any event for loss or damage caused by the activities of its organs in performing the institutional tasks entrusted to them.

Manifestly, over time significant changes have taken place with regard to the limitation of the scope of responsibility, varying according to the legal system considered. In particular the emergence of the state governed by the rule of law has resulted in an increasing shift of emphasis, at least in the more advanced legal systems, from the conduct of the perpetrator of the damage to the rights of the injured party, as in the case of liability generally. From this point of view, state liability and the resulting obligation to make reparation have ended up by becoming a means of penalising unlawful and/or, in any event, harmful conduct and thereby of achieving effective protection for individuals' rights. (440_441)

^[11] Craig, "Once More unto the Breach: The Community, the State and Damages Liability" (1997) 113 LQR 67, 69.

^[12] 28 USC s 1346(b). The Federal Tort Claims Act is concerned only with tort claims, rather than breaches of the Constitution per se. A claim under the Act is against the United States and is based on vicarious liability. For the liability of State and Federal officials for breaches of the Constitution see appendix B.

^[13] See Craig, "Francovich: Remedies and the Scope of Liability" (1993) 109 LQR 595, discussing the implications of the European jurisprudence.

^[14] The House of Lords held that a local authority should not be subjected to liability for failure to improve a dangerous intersection because of the need for it to evaluate budgetary priorities among its commitments. See also Garrett v Attorney-General (unreported, Court of Appeal, 19 December 1996, CA
129/96), in which the Court of Appeal observed:

In any modern society administration of central or local government is complex. Overly punitive civil laws may oftentimes deter a common sense approach by officials to the use or enforcement of rules or regulations. (30)

^[15] As noted in para 26 the Bill of Rights Act does not conform exactly with the International Covenant.

^[16] In Baigent's case Cooke P (677) and Hardie Boys J (698_699) linked the removal of the remedies clause to a rejection of the concepts of superior law and judicial power to strike down legislation.

^[17] Human Rights in New Zealand: Report to the United Nations Human Rights Committee under the International Covenant on Civil and Political Rights (MFAT Information Bulletin No 54, Wellington, June 1995), 36.

^[18] See, for example, the contribution of Lord Taylor CJ to the debate on a proposed Bill of Rights for the United Kingdom which was introduced by Lord Lester qc and given all three readings in the House of Lords: [1995] Public Law 198.

^[19] For example, the power of the courts to declare State action to be unlawful or to reject evidence obtained unlawfully, or the remedies in the Electoral Act 1993 in the case of the right to vote.

^[20] See New Zealand Apple and Pear Marketing Board v Watts and Attorney-General [1967] NZLR 205. The ultimate responsibility of the Crown to secure performance of the Act may lead the courts in some cases to apply the principle of New Zealand Mäori Council v Attorney-General (Broadcasting case) [1994] 1 NZLR 513 (PC), that Crown power to rectify a state of affairs which is not exercised may engage responsibility. This is the law of England (and was, before the accident compensation legislation, the law of New Zealand) in respect of occupier's liability: Wheat v Lacon [1966] AC 552.

^[21] For example MOT v Noort [1992] 3 NZLR 260; R v Goodwin (No 2) [1993] 2 NZLR 390; Martin v Tauranga District Court [1995] 2 NZLR 419; R v Grayson and Taylor (unreported, Court of Appeal, 28 November 1996, CA 256/96).

^[22] The police have autonomy for many purposes but for the purposes of the Act fall clearly within s 3(a) rather than s 3(b).

^[23] For recent discussion, see Percy v Hall [1996] 4 All ER 523, which held police not liable for wrongful arrest and false imprisonment when acting in reasonable belief that the plaintiffs were committing an offence under bylaws, even though those bylaws were subsequently held to be invalid.

^[24] See Petterson v Royal Oak Hotel [1948] NZLR 136; Launchbury v Morgans [1973] AC 127; Commercial Union Assurance Co of NZ Ltd v Lamont [1989] 3 NZLR 187; Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7.

^[25] The Court of Appeal in Harvey v Derrick concluded that a District Court judge who acted in bad faith could properly be characterised as acting without jurisdiction, and would accordingly fall outside the immunity afforded by the Summary Proceedings Act s 193. As this report went to press, the Court of Appeal handed down its decision in Rawlinson v Rice (unreported, Court of Appeal, 19 March 1997, CA 246/96), an appeal from a decision of the High Court striking out a claim for misfeasance in public office against a retired District Court judge. The Court of Appeal reversed the High Court judge's conclusion that a finding of malice or reckless indifference was open to a jury, but referred to a court of five judges the question whether the tort of misfeasance in public office can apply to a judicial officer.

^[26] Olowofoyeku, Suing Judges: A Study of Judicial Immunity (Clarendon Press, Oxford, 1993), 33

^[27] That element was present at that time for inferior court judges by virtue of s 284 of the Justices of the Peace Act 1882, a provision which can be traced back in New Zealand at least to the Justices Protection Act 1866 and s 2 of the Justices Protection Act 1848 (UK): see Harvey v Derrick, 321.

^[28] For a recent case in which this situation was considered, see Warren v Warren [1996] 4 All ER 664.

^[29] In Rawlinson v Rice (unreported, Court of Appeal, 19 March 1997, CA 246/96), the Crown accepted liability for damages for breach by a District Court judge of the right to observance of principles of natural justice in s 27 of the Bill of Rights Act, notwithstanding that the plaintiff had abandoned this cause of action by the time the case reached the Court of Appeal. The members of the court accepted but did not discuss in any detail the availability of damages under the Bill of Rights Act in respect of the judge's conduct.

^[30] Environment Court judges are judges of the District Court under s 249 of the Resource Management Act 1991: accordingly they would under our proposals also enjoy increased immunity.

^[31] We would however make an exception in the case of judges of the Mäori Land Court who are, by virtue of s 7(3) of Te Ture Whenua Mäori_Mäori Land Act 1993, deemed to be justices of the peace. In light of their judicial functions and the status and jurisdiction of the Mäori Land Court, we consider it appropriate that their immunity be equivalent to that of District Court judges.

^[32] Section 35 of the Coroners Act 1988 defines coroners' immunity by reference to that enjoyed by a District Court judge exercising jurisdiction under the Summary Proceedings Act 1957. This section will need to be amended to equate the immunity of coroners instead to that enjoyed by justices.

^[33] See Percy v Hall [1996] 4 All ER 523.

^[34] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[35] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[36] Sections 48 and 52_60 are not listed here: ss 48 and 52_58 provide justifications or immunities for acts in defence of person or property; ss 59_60 authorise certain private persons to administer discipline.

^[37] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[38] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[39] Note also the defence under s 56(2) of compliance with approved plans, operational instructions, codes of practice and with relevant requirements and instructions should any action be brought.

^[40] Under ss 129(2) and 129(4), proceedings may only be brought within 6 months of the act or damage complained of with the leave of a judge of the High Court, who must be satisfied that there is substantial ground for the contention of bad faith or lack of reasonable care. Under s 129(3) the intended defendant must be given notice of any application and is entitled to be heard against it. Section 129(5) provides that leave may be granted subject to a time limit.

^[41] Under s 13F(2) and 13F(4), proceedings may only be brought within 6 months of the act or damage complained of with the leave of a judge of the High Court, who must be satisfied that there is substantial ground for the contention of bad faith or lack of reasonable care. Under s 13F(3) the intended defendant must be given notice of any application and, if entitled, be allowed to be heard against it. Section 13F(5) provides that leave may be granted subject to a time limit.

^[42] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[43] Under ss 30(2) and 30(4), proceedings may only be brought within 12 months of the act or damage complained of with the leave of a judge of the High Court, who must be satisfied that there is substantial ground for the contention of bad faith or lack of reasonable care. Under s 30(3) the intended defendant must be given notice of any application and is entitled to be heard against it. Section 30(5) provides that leave may be granted subject to a time limit.

^[44] Under ss 16(2) and 16(4), proceedings may only be brought within 6 months of the act or damage complained of with the leave of a judge of the High Court, who must be satisfied that there is substantial ground for the contention of bad faith or lack of reasonable care. Under s 16(3), the intended defendant must be given notice of any application and is entitled to be heard against it. A time limit of leave may be imposed under s 16(5).

^[45] Exception under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[46] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[47] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[48] Provided that where a contract or arrangement is concerned, the welfare guardian disclosed at that time that he or she was acting in that capacity (s 20(2)).

^[49] Provided that where a contract or arrangement is concerned, the manager disclosed at that time that he or she was acting in that capacity (s 20(2)).

^[50] Under s 98(3), no information received under s 96 shall be admissible in evidence in any proceedings against the auditor concerned.

^[51] Note that the provision is without prejudice to any liability that the Crown may incur for the acts and omissions of Crown agents or employees.

^[52] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[53] Including alternate members holding office immediately before 6 November 1986.

^[54] Section 35(5) provides that the section does not affect any provision of the Crown Proceedings Act 1950 or the Crimes Act 1961 relating to the liability of the Crown or to matters of justification or excuse.

^[55] See s 49 of the Serious Fraud Office Act 1990 for liability relating to omission.

^[56] Section 66 provides for the appointment of a suitable organisation to maintain the register.

^[57] Except under ss 78, 78A, 105 and 105A of the Crimes Act 1961 (offences relating to breach of confidentiality and corruption).

^[58] Under s 22(2), a member may refute allegations of bad faith if it is shown that he or she opposed, or was not aware of, the action complained of.

^[59] Proceedings may only be brought with the leave of a High Court judge satisfied that there is substantial ground for allegations of bad faith or lack of reasonable care. The intended defendant must be given notice of any application for leave and may be heard against it. Applications must be made within 6 months of the action or the ceasing of the damage complained of and may be given subject to a time limit.

^[60] R v Grayson and Taylor (unreported, Court of Appeal, 28 November 1996, CA 255/96; 256/96).