Principles for reform
1.7The Commission believes that the following principles, some that are new and some that are present in the current legislation, ought to be adopted in this review:
- The Crown ought to be able to sue, and be sued, as others can. This means that, as far as possible, the Crown ought to be in the same position in litigation as a private individual would be. Any departure from that principle ought to be demonstrably justifiable in a free and democratic society.
- The Act should enable access to justice by making the procedure for bringing civil litigation against the Crown clear.
- The Act should continue to be a procedural statute that does not seek to define the substantive rights of the Crown, or those that litigate against it, but rather seeks to provide a mechanism by which courts can determine those substantive rights.
- The Act ought to apply to the Crown, as opposed to “government” in general. At its root the principal problem the statute needs to solve is how to enable suits that would, because of the Crown’s lack of legal personality at common law, otherwise not be possible.
- It is the role of Parliament in passing particular statutes, and judges in interpreting statutes and in applying the common law, to define the nature of the Crown’s obligations and whether the breach of those obligations gives rise to a right to compensation.
- The statute should cover all monetary and civil claims against the Crown.
- The procedure in the Act should reflect the realities of modern New Zealand government.
- The procedure in the Act should reflect the need for departments to be accountable for the liabilities they incur.
1.8This review is focused on a narrower task than the reform of government or state liability in general. Important issues remain, such as the substantive law concerning liability for administrative failings, and the appropriate immunities from liability for activities that are shared by a range of central and local government agencies as well as the Crown. At times this Paper touches on those issues, but it does not seek to resolve them.