2.3The Crown Proceedings Act is a statute of considerable constitutional significance. It is an important part of the rule of law that citizens ought to be able to obtain legal redress when the government has breached those citizens’ legal rights and, in appropriate circumstances, to receive compensation and other remedies. This is recognised by section 27(3) of the New Zealand Bill of Rights Act 1990 (NZBORA), which provides:
Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
2.5It is because of its importance that the Crown Proceedings Act now needs to be updated. The Act does not reflect the concerns of contemporary New Zealand or the way in which New Zealand is now governed. The public service went through large-scale changes in recent decades, while the 1950 Act changed little to reflect this. The State Sector Act 1988 and the Public Finance Act 1989 created a new legal architecture for the New Zealand public service, and the Crown Entities Act 2004 consolidated the law relating to the many government entities that have their own corporate personality.
2.6The Crown Proceedings Act is also somewhat confusing and convoluted. For example, in most cases, a plaintiff attempting to sue the Crown in tort must first establish that an employee of the Crown has committed a tort. This requirement creates significant difficulties when it is alleged that the Crown or a government department as a whole has breached its obligations (systemic negligence). The way in which the 1950 Act was drafted means that, in some areas, it has also not kept up to date with changes in court procedure.