1.1This Issues Paper seeks submissions on a draft Crown Civil Proceedings Bill, which would replace the Crown Proceedings Act 1950 with a modernised and simplified statute.
1.2The terms of reference for this review are as follows:
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 is 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 it 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.
1.3The Crown Proceedings Act is a statute of considerable constitutional significance. It is an important part of the rule of law that citizens ought to be able to obtain legal redress when the government has breached those citizens’ legal rights, and in appropriate circumstances to receive compensation and other remedies. This is recognised by section 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides:
Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
To give fuller effect to the principle that the State is under the law and 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 -The issue of the criminal liability of the Crown was partially dealt with by the Crown Organisations (Criminal Liability) Act 2002.
1 the civil liability of the Crown, its officers and agencies, and in particular special rules limiting or excluding that liability
2 the Crown Proceedings Act 1950, with a view to its reform and simplification
3 the criminal liability of the Crown, its officers and agencies, and relevant procedures,
and to make recommendations accordingly.