Why a new Crown Civil Proceedings Act?
Principles underpinning the review
2.7In undertaking this review and preparing our Report, the Commission has applied the following principles, some of which are new and some of which are already present in the Crown Proceedings Act:
- The Crown ought to be able to sue, and be sued, as others can. This means that, as far as possible, the Crown ought to be in the same position in litigation as a private individual would be. Any departure from that principle ought to be demonstrably justifiable in a free and democratic society. This principle reflects the rule of law and section 27(3) of NZBORA.
- The Act should enable access to justice by making the procedure for bringing civil litigation against the Crown clear.
- The Act should continue to be a procedural statute that does not seek to define the substantive rights of the Crown, or those that litigate against it, but rather seeks to provide a mechanism by which courts can determine those substantive rights.
- The Act ought to apply to the Crown, as opposed to “government” in general. At its root, the principal problem the statute needs to solve is how to enable suits that would otherwise not be possible because the Crown lacks a distinct legal personality.
- It is the role of Parliament in passing particular statutes, and judges in interpreting statutes and in applying the common law, to define the nature of the Crown’s obligations and whether the breach of those obligations gives rise to a right to compensation.
- The new statute should cover all monetary and civil claims against the Crown.
- The procedure in the Act should reflect the realities of modern New Zealand government.
- The procedures in the Act should reflect the need for departments to be accountable for the liabilities they incur.