Arguments for and against the current prohibition
5.3There has been considerable controversy over the retention of the prohibition on mandatory orders in the Crown Proceedings Act and a similar immunity against compulsory orders in judicial review. For example, in 2001 the then President of the Law Commission authored a Study Paper that argued for mandatory orders to be granted in judicial review proceedings and was consequently critical of section 17 of the Crown Proceedings Act. The principal argument in favour of abolishing section 17, and indeed of enabling mandatory orders, is that the rule of law, and section 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA), require that the Crown be subject to court orders as if it were an individual. A number of arguments oppose abolishing the immunity from compulsory enforcement. The most important is that it is unnecessary, as the Crown will almost always comply even if compliance is not mandatory, but that there may be unforeseeable situations where in the public interest the Crown should be able to decline to comply.
5.4The effect of this provision is actually much narrower than might be supposed. There is no prohibition against making officers or indeed ministers liable when a duty is cast directly onto them. Moreover there is, at least according to the House of Lords in M v Home Office, no difficulty in holding a minister responsible for contempt if he or she breaches an undertaking or an order.
5.5In the 2001 Study Paper, the then President of the Law Commission noted in the foreword that his conclusion was not the view of the Commission. A real question exists as to whether the prohibition on injunctions, or indeed the prohibition on other remedies like specific performance to compel a particular course of action should be continued in new legislation. Our preliminary view is that we should not bring the prohibition into this new Act in the same form. It would be difficult to argue that section 17 or any equivalent does not breach section 27(3) of NZBORA. While section 5 of NZBORA allows limitations that are justifiable in a free and democratic society, it is not clear that the current broad limitation on injunctions is proportionate to the need to provide the Crown with the ability not to comply with injunctions in extreme cases.
5.6Consideration needs to be given, however, to the interface of this prohibition with the inability to give mandatory orders in judicial review proceedings. Those seeking mandatory orders might be tempted to recast what might otherwise be a judicial case within the rubric of civil proceedings.