Part 1 Review of the Crown Proceedings Act
Chapter 2 Why a new Crown Civil Proceedings Act?
R1 The Crown Civil Proceedings Bill attached to this Report, which modernises the Crown Proceedings Act 1950, should be considered for enactment.
Chapter 3 Resolving central policy issuesTop
R2The Crown should be able to be sued in tort as a private individual and be held directly liable.
R3Existing immunity provisions that apply to Crown employees and that currently have the effect of immunising the Crown should be included in a schedule in the new Act and continue to apply to immunise the Crown against liability.
R4The substantive law of torts, including what kinds of torts the Crown should be liable for, should continue to be developed by the courts. We are not recommending a legislative response at this time.
R5We recommend the retention of statutory immunity for Crown employees in respect of good-faith actions or omissions in pursuance or intended pursuance of their duties, functions or powers.
R6The immunities provided for Crown employees should not prevent the courts from holding the Crown itself liable in tort in respect of the actions or omissions of a Crown employee covered by an immunity.
R7A statutory indemnity should be enacted for ministers of the Crown to replace the current indemnity procedure in the Cabinet Manual. Under the new provision, the Crown would be required to indemnify ministers for costs and damages in civil proceedings in respect of good-faith actions or omissions in pursuance or intended pursuance of their duties, functions or powers.
R8 The indemnity should be paid by the department that is responsible for the subject matter of the civil proceedings, and departments should be required to include a statement in their annual financial statements itemising all amounts paid to indemnify a minister under the enacted indemnity. Confidential and personal information would be protected when reporting.
R9We recommend that a court should be able to grant any remedy in civil proceedings against the Crown.
R10Where the public interest requires, the court must make a declaratory order about any party’s rights or entitlements instead of ordering against the Crown any of:
(a) an injunction;
(b) an attachment;
(c) specific performance; or
(d) the conveyance of land or property.
R11The new legislation should continue the exclusion in the Crown Proceedings Act against bringing in rem proceedings against the Crown and should provide that the Crown’s ships or aircraft and related property cannot be arrested or made subject to any of the consequences of in rem proceedings.