When conducting a reference, the New Zealand Law Commission keeps in mind two principal goals: providing New Zealanders with better access to justice; and providing New Zealand with a modern legal infrastructure.
This Issues Paper combines both of these aims in advocating for the enactment of a new Crown Civil Proceedings Act to replace the current Crown Proceedings Act 1950. Although the Crown Proceedings Act sounds as if it is simply dry “lawyer’s law”, it has the important purpose of reflecting New Zealand’s commitment to ensuring that people are able to seek appropriate legal redress against their government. It forms an important pillar of the rule of law.
The new statute that we are proposing is designed to be fit for purpose in 21st century New Zealand. As we explore in the Paper, although the general principles around which the Crown Proceedings Act is constructed remain the same in the draft Bill, especially that the Crown and citizens ought to be equal before the courts, much has changed in government since 1950. We need a modern Act that reflects those realities.
The current statute is, in our view, convoluted and difficult to follow. Simplifying the statute would greatly assist the conduct of litigation against the Crown. We hasten to add, however, that this project is not about increasing the Crown’s liabilities per se, but ensuring that where the Crown has breached an obligation that ought to be compensated at law, the procedure is clear and effective. We are seeking submissions on whether our proposals have achieved that.
The Paper also deals with matters of considerable public importance, such as the circumstances in which the Crown can be forced to make a discovery of information the government considers to relate to a matter of national security. We seek views as to the appropriate way to balance the needs of justice that require all relevant material will be revealed on the one hand, and on the other, the legitimate national security concern that some things simply cannot be revealed.
Sir Grant Hammond