Chapter 2
Why a new Crown Civil Proceedings Act?

Recommending a new Act

2.8The Commission recommends in this Report that a new Crown Civil Proceedings Act be enacted to replace the current Crown Proceedings Act. In Chapter 4, we set out a draft Bill that would give effect to the recommendations in this Report. Such a new Act has two core tasks. First, it must enable the Crown to sue and be sued, and second, it should, with a few justified departures, subject the Crown to the same law, procedure and rules as other litigants.

2.9The Commission considers that some circumstances do remain where different law, procedures or rules continue to be justified. This is not because of any desire to protect the Crown but rather as recognition that the Crown is not simply another litigant. Where different treatment is justified, it is important for the policy behind such a departure from principle to be clear and for the exception to be no more than necessary to give effect to that policy. The draft Crown Civil Proceedings Bill in Chapter 4 reflects this approach.

2.10The draft Bill achieves the core task of giving the Crown legal personality in order to be sued. In a number of respects, it goes further than the current Act. It recognises direct tort liability, rather than relying on the Crown being vicariously liable, and it provides for compulsory enforcement. However, the proposed statute is not designed to increase the liability of the Crown. It does not seek to create liability but rather to recognise that the Crown can be sued, and can sue, in the same way as others can.

2.11The Bill does not create obligations in and of itself; rather, it provides a mechanism through which existing obligations can be enforced. Therefore, it does not alter the essential framework for civil proceedings against the Crown. The basic principle remains the same: the Crown ought to be able to sue, and be sued, as others can. The way in which the draft Bill does this, however, is considerably simpler than under the current Act and is more in line with the realities of the way New Zealand organises its central government. The courts, through the normal processes of the common law, and Parliament, through statutes, will continue to decide in what circumstances the Crown will be liable.