The ability of citizens to bring civil legal proceedings against the Crown and its servants is an important part of New Zealand’s constitution, and is protected by the New Zealand Bill of Rights Act 1990. The Crown Proceedings Act 1950 is the principal statute that governs the civil liability of the Crown. It is based on a 1947 United Kingdom Act. It was designed to solve problems with the law as it stood at that time in the United Kingdom, and does not reflect the way in which New Zealand is now governed or modern court practice. As a result, the current Act presents procedural and substantive difficulties for both plaintiffs seeking to sue the Crown, and for the Crown in defending those actions.
The purpose of this review was to modernise and simplify the Crown Proceedings Act so as to provide a better mechanism for citizens to bring just claims against the Crown, and to allow the Crown to appropriately defend claims. The review will also consider the relationship between the Crown Proceedings Act, and provisions that seek to immunise or indemnify the Crown or its servants, such as s 86 of the State Sector Act 1988. This review is not intended to review the underlying civil law (tort and contract) through which people seek to bring the Crown to account. This review will include consultation with the Crown Law Office, other Government Departments and the profession.
The Commission released the Issues Paper, A New Crown Civil Proceedings Act for New Zealand (NZLC IP35) in April 2014. The Paper included a draft Bill. Submissions on the Issues Paper and draft Bill closed in September 2014 and the Commission is now preparing its final report on this review.
A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014)
The Issues Paper, A New Crown Civil Proceedings Act for New Zealand (NZLC IP35, 2014) is in two parts. Part 1 contains chapters outlining the most significant issues raised by the review, including: the interaction of tort law and Crown liability; the relationship of the Act to public law; compulsory enforcement against the Crown; the accountability of the Crown and its employees; and issues with disclosure, including public interest immunity.
Part 2 contains the proposed draft Crown Civil Procedure Bill and includes a commentary discussing most sections.
The Crown in Court: A review of the Crown Proceedings Act and national security information in proceedings (NZLC R135, 2015)
The Law Commission has completed the review of the Crown Proceedings Act 1950 and the review of the use of national security information in proceedings. Both references are about improving infrastructure that supports the Crown’s involvement in litigation. We have therefore presented the recommendations for these two reviews as Part 1 and 2 of a single report.
Part 1 of the Report, A new Crown Civil Proceedings Act, recommends replacing the Crown Proceedings Act 1950 with modernised legislation. Although the general principles around which the Crown Proceedings Act is constructed remain the same in the draft Bill, especially that Crown and citizen ought to be equal before the courts, much has changed in Government since 1950. We need a modernised and simplified Act that reflects those realities and assists with the conduct of litigation against the Crown and thereby enables people to seek effective legal redress when the Crown has breached a legal obligation.
In Part 2 of the Report, National security information in proceedings, the Commission makes recommendations around how information that might pose a threat to national security if released to the public should be dealt with in court proceedings. The central policy issue we grapple with is how to manage proceedings where classified and security sensitive information may be relevant to the issue at hand but its disclosure might prejudice national security, while ensuring that fair trial rights and the principles of natural justice are upheld.
The Government responded to Part A of the Commission's report The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings (NZLC R135, 2015).
Summary of the Commission’s recommendations
The Commission recommended in its report introducing a modern Crown Civil Proceedings Bill to replace the Crown Proceedings Act 1950. The report noted that the Crown Proceedings Act is a statute of considerable constitutional significance so it is important to keep it current and relevant. The Act is outdated and is also somewhat confusing and convoluted. A draft Crown Civil Proceedings Bill to replace the current Act was included in the Report.
A key recommendation in the Report was that the Crown should be able to be sued directly in tort, rather than (as the law currently stands) only being vicariously liable for the acts and omissions of its employees. This change would provide a mechanism through which existing obligations can be enforced against the Crown. The scope of Crown liability would continue to be determined by the courts through the normal processes of the common law, and Parliament through statutes. The change recommended by the Commission would, however, enable litigants and the courts to focus on substantive issues of tort liability. It would also reduce the likelihood that an individual would be prevented from seeking legal redress from the Crown simply because they are unable to identify a particular Crown employee responsible for the conduct that caused them harm or because their claim is that the Crown itself has caused them harm. The change would mean that the courts, like the Supreme Court in the Couch case, would not have to work around an out of date statute.
Summary of the Government response to the recommendations
- The Government rejected the Law Commission’s recommendation for direct liability of the Crown.
- The Government agreed with the Law Commission that it would be desirable for the Crown Proceedings Act 1950 to be modernised and simplified, however, the Government considered that a new Act was not warranted at the time.
- The Government will look at what aspects of the report can be legislatively implemented, alongside modernisation of the Act, as and when appropriate vehicles become available.
- The Government deferred consideration of the recommendation that where the public interest requires, the court must make a declaratory order about the party’s rights and entitlements.
- The Government agreed with the recommendation that the exclusion against bringing in rem proceedings against the Crown should be retained.