Contents

Chapter 8
Crown Civil Proceedings Bill and commentary

Crown Civil Proceedings Bill Part 1 – Preliminary provisions

Clause 1 − Title

1 Title
​This Act is the Crown Civil Proceedings Act 201X.

Commentary

In our view it is best to set out in the title of this Act what properly falls within the scope of the Bill. The Bill, like the current 1950 Act does not deal with judicial review proceedings or criminal proceedings. The Act enables civil proceedings by and against the Crown and the title should reflect that.

Clause 2 − CommencementTop

2 Commencement
This Act comes into force on the day after the date on which it receives the Royal assent.

Clause 3 − PurposeTop

3 Purpose
The purpose of this Act is to restate, clarify, and reform the law about civil proceedings involving the Crown, including by—
(a) providing that the Crown may sue and be sued;
(b) promoting executive accountability; and
(c) making civil proceedings involving the Crown as similar as possible to other civil proceedings.

Commentary

This short purpose statement confirms that, rather than being revolutionary, the Bill restates, clarifies and only partially reforms the current law. The primary purpose of the Bill remains to give the Crown sufficient personality to sue and be sued, and to enact as far as possible the equality principle. We have added executive accountability to these traditional purposes of Crown proceedings statutes, to reflect the changes that we are recommending to the way in which settlements and judgments are to be paid, and disclosed.

Clause 4 − DefinitionsTop

Civil proceedings

4 Interpretation
(1) In this Act, unless the context otherwise requires,—
civil proceedings means any proceedings in any court (including proceedings for monetary or declaratory relief for a breach of the New Zealand Bill of Rights Act 1990), except for—
(a) criminal proceedings; and
(b) proceedings in relation to habeas corpus, mandamus, prohibition, or certiorari, or proceedings by way of an application for review under Part 1 of the Judicature Amendment Act 1972 to the extent that any relief sought in the application is in the nature of mandamus, prohibition, or certiorari

Commentary

As discussed, the intention of this definition of civil proceedings is to differentiate the coverage of this Bill from criminal proceedings and proceedings for judicial review. The definition is inclusive of claims for compensation or applications for declaration of breaches of the New Zealand Bill of Rights Act 1990 (NZBORA), which means that monetary claims against the Crown will be dealt with in the same way.136

Court

court means—
(a) the Supreme Court, the Court of Appeal, the High Court, or a District Court; or
(b) any of the following specialist courts: the Disputes Tribunal, the Employment Court, the Environment Court, the Māori Appellate Court, and the Māori Land Court; or
(c) for the purposes of this Act, the Human Rights Review Tribunal

Commentary

This provision restricts the application of the Bill to traditional courts. It does not apply to most tribunals. A number of tribunals are administrative in nature, or determine obligations under particular statutes. It would add little, and create confusion, to style these as civil proceedings.

Most of the legislation establishing the jurisdiction of tribunals that decide on civil matters where the Crown may be a party does not include provisions establishing the legal personality of the Crown to be a party to those proceedings.137 This appears not to have been an issue under the present law. In a couple of special cases reference is made to the Crown Proceedings Act in legislation that establishes tribunals.138 Proceedings in the Disputes Tribunal may involve the Crown. The Disputes Tribunal Act 1988 makes it clear that that Act does not restrict the Crown Proceedings Act and the definition of “court” in the Crown Proceedings Act explicitly includes the Disputes Tribunal. Rather than a blanket rule of including tribunals within the definition of court, it seems to us better that in future individual statutes that establish tribunals specify not just that an Act binds the Crown, but whether proceedings brought before a tribunal ought to be considered as “crown civil proceedings” when they involve the Crown.
A difficult case is the Human Rights Review Tribunal under Part 1A of the Human Rights Act 1993. That Act refers to proceedings before the Tribunal that arise from complaints as “civil proceedings”.139 The Tribunal has interpreted section 95 of the Human Rights Act to permit mandatory orders and interim declarations against the Crown in Part 1A cases where government policy or practice is impugned.140 The Tribunal does not consider claims under Part 1A of the Human Rights Act to be “civil proceedings” as defined by section 2 of the Crown Proceedings Act,141 and so the limitations on available remedies created by section 17 of the Crown Proceedings Act are not applicable.142

It is our preliminary view that proceedings before the Tribunal are best characterised as civil proceedings, and should accordingly be subject to the Act. The general civil remedies are available. The key distinction that was at issue in IDEA Services Ltd v Attorney-General, the inability to give interim relief under the Crown Proceedings Act, is being removed by the proposed Crown Civil Proceedings Bill. It might be argued that the ability to make declarations about the incompatibility of statutes is more akin to judicial review, but the existence of the other remedies for a complaint makes the application of this Act desirable.

Crown, crown employee and department

Crown means the Crown in right of New Zealand, which is Ministers of the Crown and departments
Crown employee means a person employed by a department (whether paid by salary, wages, or otherwise), or a member, chief executive, or other office holder of a department, but does not include—
(a) an independent contractor; or
(b) for the avoidance of doubt, the Governor-General or any Judge, District Court Judge, Justice of the Peace, Community Magistrate, or other person with responsibilities of a judicial nature
department means—
(a) a department specified in Schedule 1 of the State Sector Act 1988;
(b) the New Zealand Defence Force (within the meaning of that term in section 11(1) of the Defence Act 1990);
(c) the New Zealand Police (within the meaning of that term in section 7 of the Policing Act 2008); or
(d) the New Zealand Security Intelligence Service (within the meaning of that term in section 3 of the New Zealand Security Intelligence Service Act 1969)

Commentary

These definitions are intended to reflect the restructuring of the central government since the 1980s. Central government can be divided into the Crown and a plethora of other entities which, although part of the central government, are not constitutionally considered to be the Crown, such as bodies corporate that are Crown entities and state owned enterprises. Because these entities have their own corporate identity, it is unnecessary to use the Crown Proceedings Act to ensure they have sufficient legal identity to be sued. Crown entities are bodies corporate under the Crown Entities Act 2004, while state owned enterprises have legal personality under the Companies Act 1993.143 This is consistent with a number of cases that have made it clear that the Crown Proceedings Act does not apply to proceedings involving Crown entities.144

In contrast, New Zealand departments do not have a distinct legal personality that would enable them to sue or to be sued in their own right.

For the sake of completeness, three bodies that are not listed in the State Sector Act as departments are expressly included here: the New Zealand Defence Force, New Zealand Police Force, which is described by the Policing Act 2008 as an instrument of the Crown,145 and the New Zealand Security Intelligence Service. This is not a change from the current legal position but it would clarify that they are subject to the Act.

This definition of the “Crown” would not include “the courts”.

The 1950 Act talks of crown “servants” and “officers”.146 In light of the terminology of the State Sector Act, we have used the more modern “employees of government departments” as an umbrella term, but included within it “chief executives”, “office holders” and “members” to cover particular circumstances. In particular, the actions of a statutory office holder who is also an employee will be covered, as will the actions of members of the New Zealand Defence Force, even though members of the Defence Force are not, for other purposes, employees.

Why the Crown and not “state”?

The Crown Proceedings Act, like earlier New Zealand statutes, was mostly concerned with distinguishing the New Zealand Crown from the United Kingdom or Imperial Crown. The 1871, 1877 and 1908 Acts all used variants of “claims against her or his Majesty within the colony of New Zealand”. Crown proceedings statutes in other jurisdictions often distinguish between the particular Crown which is being made subject to the liability. For example, Canadian statutes expressly state that the particular Act applies to the province in question, in the case of the federal Canadian statutes.

Such a distinction is not necessary in New Zealand in 2014. The more relevant distinction is between those parts of the central government that make up the Crown and are subject to the Crown Proceedings Act, and those organisations that are outside the Crown, and have their own legal personality.

The term “Crown” in our system of government is often used as shorthand for the central government. The use of the word Crown rather than “government” or “state” is a reflection of our constitutional history but also the relative reluctance of lawyers in the common law to give legal personality to the central government or to the departments that largely make it up.147
We have made a deliberate choice not to use terms such as “the government” or “the state”.148

The Crown may be an amorphous term, but it is one that has been long used and continues to be used across the New Zealand statute book. Using a phrase such as “the Government of New Zealand” or “state”, might risk opening up a debate that might be academically interesting but that would ultimately distract from the emphasis of this project, which is on providing a workable procedural tool by which the Crown can take part in civil proceedings. However, what we do propose is that the definition of the Crown in the Crown Proceedings Act is made clearer so as to better guide potential litigants.

We are mindful of the observations by Elias CJ in Attorney-General v Chapman (Chapman) (dissenting) that in the context of NZBORA, the term Crown is arguably too narrow because it only includes the Executive, but we consider that our task is only part of defining that liability.149

It may be that what we are proposing is to treat the Crown as a subset of a wider version of the state. It would not include, for instance, the courts. Nor would it include agencies that are not part of the central government and that are constituted as Crown entities or are otherwise not government departments. It would not include local government, even though it is an important part of the way that New Zealand governs itself.

New Zealand

New Zealand means the land and the waters enclosed by the outer limits of the territorial sea of New Zealand (as described in section 3 of the Territorial Sea, Contiguous Zone, and Exclusive Economic Zone Act 1977).

Commentary

This definition is designed to make it clear that the new statute will apply only to the actions of the New Zealand Government.

The Realm of New Zealand includes not only New Zealand but also the self-governing states of the Cook Islands and Niue, Tokelau and the Ross Dependency.150 The Interpretation Act, nevertheless, excludes the Cook Islands, Niue and the Ross Dependency from the definition of New Zealand.151

Currently, section 35(2) of the Crown Proceedings Act provides that nothing in the Act shall:

(b) authorise proceedings to be taken against the Crown under or in accordance with this Act in respect of any alleged liability of the Crown arising otherwise than in respect of the Sovereign’s Government in New Zealand, or affect proceedings against the Crown in respect of any such alleged liability as aforesaid;
This section was inherited from the United Kingdom Crown Proceedings Act 1947, where it was designed to exclude liability in the United Kingdom for actions committed by colonial governments. It seems to us that rather than relying on the Interpretation Act 1999 to flesh out the definition, it should be explicitly stated in the Crown Proceedings Act that it applies to the Crown in right of New Zealand, excluding the self-governing countries of the Cook Islands, Niue and its dependency Tokelau. The Cook Islands has its own law concerning Crown proceedings within its territory,152 as does Niue as a result of having adopted the Crown Proceedings Act.153 New Zealand has no power to legislate for either country. There is no Crown Proceedings Act in relation to Tokelau, and the application of the 1950 Act to Tokelau is excluded by the way in which New Zealand is defined by the Interpretation Act.154 While New Zealand has the capacity to legislate for Tokelau, the convention has been that New Zealand does not do so, and would not do so without Tokelauan consent.

Counterclaim

4 Interpretation

(2) Unless the context otherwise requires, a reference to civil proceedings against the Crown includes a set-off or counterclaim against the Crown, and a reference to civil proceedings by the Crown includes a set-off or counterclaim by the Crown.

Clause 5 − Binding the CrownTop

5 Act binds the Crown
This Act binds the Crown.
136See ch 4.
137For instance, the Weathertight Homes Tribunal under the Weathertight Homes Resolution Services Act 2006; the Tenancy Tribunal under the Residential Tenancies Act 1986; and the Alcohol Licensing Authority under the Sale and Supply of Alcohol Act 2012.
138Section 65 of the Copyright Act 1994 provides that where the Crown infringes copyright, proceedings lie against the Crown under the Crown Proceedings Act, rather than before the Copyright Tribunal.
139Human Rights Act 1993, s 92B.
140IDEA Services Ltd v Attorney-General [2013] NZHRRT 24 at [35] [IDEA Services].
141Section 2 defines civil proceedings as “any proceedings in any court other than criminal proceedings; but does not include proceedings in relation to habeas corpus, mandamus, prohibition, or certiorari or proceedings by way of an application for review under Part 1 of the Judicature Amendment Act 1972 to the extent that any relief sought in the application is in the nature of mandamus, prohibition, or certiorari”.
142IDEA Services, above n 140, at [46.1].
143Companies Act 1993, ss 15−16.
144See Crown Entities Act, s 15.
145Policing Act 2008, s 7.
146Crown Proceedings Act 1950, s 2:
officer, in relation to the Crown, includes any servant of the Sovereign, and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minister of the Crown; and a member of the New Zealand armed forces; but does not include the Governor-General, or any Judge, District Court Judge, Justice of the Peace, Community Magistrate, or other judicial officer: ...
servant, in relation to the Crown, means any servant of the Sovereign, and accordingly (but without prejudice to the generality of the foregoing provision) includes a Minister of the Crown, and a member of the New Zealand armed forces; but does not include the Governor-General, or any Judge, District Court Judge, Justice of the Peace, Community Magistrate, or other judicial officer:
147See generally Martin Loughlin “The State, the Crown, and the Law” in Maurice Sunkin and Sebastian Payne (eds) The nature of the Crown; A legal and political analysis (Oxford University Press, Oxford, 1999) 33. See also the use of the word “state” in the judgment of Sedley LJ in Home Office v Mohammed [2011] EWCA Civ 351, [2011] 1 WLR 2862.
148Compare the approach of David Cohen “Thinking about the State: Law Reform and the Crown in Canada” (1986) 24 Osgoode Hall LJ 379.
149Attorney-General v Chapman [2011] NZSC 110, [2012] 1 NZLR 462 at [14].
150See Letters Patent Constituting the Office of Governor-General of New Zealand 1983, cl 1.
151Interpretation Act 1999, s 29:
New Zealand or similar words referring to New Zealand, when used as a territorial description, mean the islands and territories within the Realm of New Zealand; but do not include the self-governing state of the Cook Islands, the self-governing State of Niue, Tokelau, or the Ross Dependency:
152The Cook Island Act 1915, s 350 extended the Crown Proceedings Act to the Cook Islands with amendments. The Crown Proceedings Act is still in force.
153The Niue Act 1966, s 321 extended the Crown Proceedings Act to Niue with amendments. The Crown Proceedings Act is still in force in Niue with further amendments.
154The Tokelau Act 1948, s 6 deals with New Zealand Acts in force in Tokelau. The Crown Proceedings Act has never been extended to Tokelau.