Chapter 2
Why is a Crown Civil Proceedings Bill needed?

The new Act and its limitations

2.6The proposed replacement statute achieves the core task of giving the Crown legal personality to be sued. In a number of respects it goes further than the current statute: it recognises direct tort liability, rather than relying on the Crown being vicariously liable, and it provides for compulsory enforcement. However, the proposed statute is not designed to increase the liability of the Crown. It does not seek to create liability, but rather to recognise that the Crown can be sued, and can sue, in the same way as others can. Courts, through the normal processes of the common law, and Parliament, through statutes, will continue to decide in what circumstances the Crown will be liable. The proposed statute does not create obligations in and of itself; rather, it provides a mechanism through which existing obligations can be enforced.

2.7Therefore, the proposed statute does not alter the essential framework for civil proceedings against the Crown. The basic principle remains the same: the Crown ought to be able to sue, and be sued, as others can. The way in which the draft Bill would do this, however, is considerably simpler than under the current Act, and more in line with the realities of the way New Zealand organises its central government. The result is a Bill that looks forward rather than one that looks backward.