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Preface

This report is a response to the following reference, given to the Law Commission by the Minister of Justice in August 1989:

To give further effect to the principle that the state is under the law to ensure that as far as practicable legal procedures relating to and remedies against the Crown (as representing the State) are the same as those which apply to ordinary persons.
With this in mind the Law Commission is asked to examine aspects of the legal position of the Crown, including but not limited to,
(i) the civil liability of the Crown, its officers and agencies, and in particular special rules limiting or excluding that liability
(ii) the Crown Proceedings Act 1950, with a view to its reform and simplification
(iii) the criminal liability of the Crown, its officers and agencies, and relevant procedures,
and to make recommendations accordingly.

The Commission’s initial work in response to this reference was undertaken in the context of its review of s 5(k) of the Acts Interpretation Act 1924 and its report on that Act in 1990. In the following years the Commission was unable to give comprehensive attention to the reference in light of other priorities. However, the Commission completed related advisory work during the 1991–1992 financial year, in particular advice pertaining to the constitutional status of the Auditor-General and the nature of Parliament’s coercive powers, and reviewed the law of public interest immunity in connection with its work on privilege, under its evidence project. The Commission also continued to give attention from time to time to other aspects of the reference in the course of its advice to Ministers on a range of constitutional issues.

Simpson v Attorney-General (Baigent’s case) [1994] 3 NZLR 667 was decided by the Court of Appeal in July 1994. In September 1995, as part of the Government’s consideration of issues raised by Baigent’s case, the Minister of Justice asked the Law Commission to give priority to its review of the Crown Proceedings Act 1950, and to include within that review a discussion of issues relating to Crown liability under the New Zealand Bill of Rights Act 1990.

The Commission consulted extensively within the public sector on the impact of Baigent’s case, before issuing a draft report on 1 April 1996. The draft report – written by the then President of the Commission, Hon Sir Kenneth Keith, with assistance from DianeStephenson, a senior researcher at the Commission – was then circulated to government departments and ministries, Crown entities, the New Zealand Law Society, and certain legal academics and practitioners.

We are grateful for the thoughtful responses we have received, which have confirmed most of the proposals contained in the draft report, and led to the modification of some others. Appendices A–C contain only minor alterations from the earlier draft; the decision in R v Grayson and Taylor CA 255/96; 256/96 28 November 1996, part of which is reproduced as appendix D, was delivered after the draft report was circulated. A list of contributors is annexed to the report as appendix E. Assistance in completing the report was received from Padraig McNamara, a Commission researcher.

In this report, we have considered the liability of the Crown and public bodies for breaches of the Bill of Rights Act. Questions as to the need for, and the scope of, public sector powers and immunities are at the heart of this issue. Consequently the report also includes recommendations arising from the Court of Appeal’s decision in Harvey v Derrick [1995] 1 NZLR 314, which concerned judicial immunity and, in particular, the statutory provisions relating to the immunity of District Court judges. Legislation reversing the effect of this decision is currently before Parliament: Summary Proceedings Amendment Bill (No 2) 1995.

Chapter 2 of the report presents a discussion of the principle of equality as well as the principles expressed in the Bill of Rights Act. Chapter 3 suggests possible consequences in law and fact of Baigent’s case. Chapter 4 considers whether a legislative response to the decision is required. In chapter 5 we recommend a review of existing powers and immunities vested in the Crown and public bodies, including those of law enforcement which were at issue in Baigent’s case. Finally, chapter 6 of the report examines more specifically the position of judges and other participants in the justice system, paying particular attention to judicial immunity.

We have confined the report to those aspects of the civil liability of the Crown which are of particular urgency and interest. The 1989 terms of reference raise wider issues of public sector liability which also need to be addressed. In particular, over and above the review of statutory powers and immunities which we recommend, the Crown Proceedings Act requires reform and simplification. We intend to report further on the Crown Proceedings Act.

The third aspect of the original reference, with which this report is not concerned, is the criminal liability of the Crown. The Commission’s report entitled A New Interpretation Act (NZLC R17, 1990) recommended reversing the presumption in the Acts Interpretation Act 1924 s 5(k) that legislation does not affect the rights of the Crown. The Commission gave further consideration to this issue in advice to the Attorney-General in July 1996, in response to the report of the Commission of Inquiry into the Cave Creek tragedy. However, additional work on the criminal liability of the Crown is still required, and the Commission proposes to report further on this aspect of its reference.