Contents

Chapter 3
Resolving central policy issues

Compulsory enforcement

Introduction

3.97Historically in common law countries, the courts have declined to grant injunctions or make mandatory orders against the Crown.57 In keeping with this position, the Crown Proceedings Act does not allow injunctions to be made against the Crown.58

3.98In this section, we address the policy question of whether the current restriction or some lesser restriction on the granting of injunctions and mandatory orders against the Crown should be included in new legislation to replace the Crown Proceedings Act.

Current lawTop

3.99Under section 17 of the Crown Proceedings Act, the court has power to award the same relief against the Crown as against a subject, save for the fact that it prohibits the making of mandatory orders of injunction, specific performance and recovery of land or property, limiting relief to a declaration of the applicant’s rights against the Crown.

3.100The court is also prohibited from granting an injunction or making any other order against an officer of the Crown if such an injunction or order would, in effect, be granted against the Crown. Moreover, there is, at least according to the House of Lords in M v Home Office,59 no difficulty in holding a minister responsible for contempt if he or she breaches an undertaking or an order. There is otherwise no prohibition against making officers or indeed ministers liable when a duty is cast directly onto them.60

Should the current prohibition be retained?Top

3.101A key principle underpinning our review is that the Crown ought to be able to sue, and be sued, as others can. As far as possible, the Crown ought to be in the same position in litigation as a private individual would be. The rule of law and section 27(3) of NZBORA require that the Crown be subject to court orders as if it were an individual.

3.102Under the current prohibition, the Crown is treated differently than private individuals. Unless there are specific public policy reasons for an exception, it should be removed. Section 5 of NZBORA allows limitations that are justifiable in a free and democratic society.61 Tipping J summarised in R v Hansen that “whether a limit on a right or freedom is justified under section 5 is essentially an inquiry into whether a justified end is achieved by proportionate means”.62

Justification for different treatment

3.103A number of arguments are put forward justifying the current prohibition on mandatory orders. Historically, it is part of the general immunity the Crown had previously enjoyed at common law in litigation under the old English maxim “the King can do no wrong”. It was thought to be constitutionally incompatible for the Sovereign’s courts to be issuing orders against the Sovereign. However, this concern over one branch of government, the courts, commanding another branch, the executive, is now largely anachronistic, and the privileged position the Crown previously enjoyed has largely been abolished.63

3.104However, the most important and relevant argument that can be made to justify the prohibition is that mandatory orders are unnecessary because the remedy of a declaration is available against the Crown. The Crown will almost always comply with a declaration even if compliance is not mandatory. This is, however, a double-edged argument, because if the Crown always complies with declarations, why is it necessary to treat the Crown differently from other litigants?

3.105The answer given is that there may be unforeseeable situations where it is in the public interest for the Crown to be able to decline to comply. It is argued that the Crown ought to be free to disobey where compelling public interests require this, for example, in an emergency. Declarations allow this. However, addressing this possibility does not require precluding mandatory relief. Provided the courts have discretion over whether or not to issue mandatory orders against the Crown, they can take account of any compelling public interests that could be injured by any such order. The special nature of the Crown and the policy factors that may arise in proceedings do not justify the blanket substitution of declarations for mandatory orders.

The rule of law

3.106Section 27(3) of NZBORA provides that every person has the right to bring proceedings against the Crown and have these heard according to law in the same way as civil claims between individuals. This provides a strong argument in favour of allowing mandatory orders against the Crown. As a matter of principle, it is undesirable to have a special regime of remedial law applicable to the Crown, which is the effect of a regime that substitutes the declaration for the injunction in proceedings against the Crown. Any departure from this principle must be demonstrably justified in a free and democratic society.

3.107The current broad limitation on injunctions is difficult to justify in terms of the rule of law and arguably does not meet the justifiable limitation test in section 5 of NZBORA. In our view, the need to provide the Crown with the ability not to comply with injunctions in extreme cases does not mean that mandatory orders should be prohibited. Our assessment is that the current broad prohibition should not be retained in new legislation.

Options for reformTop

3.108In the Issues Paper, we started from the principle that the Crown as a litigant should, as far as possible, be in the same position as subjects of the Crown who are also litigants. Any departure from this principle should be limited to the extent necessary to accommodate the special nature of the Crown and any unique policy factors that may arise in proceedings.

3.109We included two alternative options for the draft Bill in the Issues Paper.

3.110When considering option (b), consideration also needs to be given to the interface of the prohibition with the inability to give mandatory orders in judicial review proceedings. If the prohibition is completely repealed, those seeking mandatory orders might be tempted to recast what might otherwise be a judicial review case within the rubric of civil proceedings.

Submissions

3.111Submitters favoured treating the Crown and other litigants similarly unless there are justifiable reasons why that should not be so. Some favoured option (a) because it provides the court with a discretion to act in the public interest and enables the special position of the Crown (including its property) to be protected when necessary. Crown Law said this option would enable the Crown to put before the Court all the factors that support its position in the circumstances of the case, so the court can then take these into account and make an appropriate order.

3.112Russell McVeagh also supported the availability of mandatory relief for claims against the Crown to the extent that certain considerations can be addressed in the proposed law. They favoured option (a) because it creates the presumption that all remedies are available to the courts when dealing with the Crown in litigation, but it does also acknowledge that judges should retain the option of declaratory relief, given the special nature of the Crown and the policy factors that may arise in proceedings. They consider that the presumption should be that litigants are entitled to the full range of remedies despite the retention of declaratory relief, and the courts should not fall back and use declaratory relief unless a clear case exists.

3.113Russell McVeagh identified considerations that should inform the assessment of whether the public interest standard is met. They considered that there was a risk that the contrast between mandatory and declaratory relief may erode the significance of declaratory orders (which Crown actors obey as a matter of constitutional convention). The extension of mandatory orders should not in any way affect or impinge upon the courts’ well developed remedial jurisdiction in respect of claims brought under NZBORA.

3.114The NZLS also considers it appropriate that injunctions and mandatory orders be available against the Crown in the same way that they are available against any other defendant in civil proceedings. They said that, while there may have been constitutional reasons in the past for the Crown not to be subject to compulsory enforcement remedies, these reasons no longer hold in New Zealand’s modern constitutional framework and in light of NZBORA. Removing the existing exception from compulsory enforcement would be consistent with the rule of law.

3.115While the NZLS noted it has full confidence that the Crown would honour any declarations against it, it is possible that circumstances could arise in future where the Crown is torn between complying with a declaration or continuing along its originally intended path. This could arise, for example, for political reasons where a particular action that is challenged is central to the programme of the government of the day. Giving the courts the power to impose compulsory enforcement remedies provides an important constitutional safeguard. It is also important that the Crown be seen by the public to be equal to other defendants.

3.116The NZLS also took the view that any considerations weighing against imposing compulsory enforcement remedies against the Crown should be considered by the court in exercising its discretion to impose such remedies. For the sake of transparency and objective judicial decision-making, this approach is to be preferred to the Crown making its own decision as to whether or not it will comply with a declaration. While it made a strong case for treating the Crown in the same way as an individual litigant, the NZLS did accept that there could be some limited situations in which compulsory enforcement remedies should still be excepted, such as for defence vessels or crucial defence land.

Retain a narrow exception – courts might issue a declaration

3.117The general consensus from submitters has been that the Crown should be subject to compulsory enforcement remedies but that the courts should have discretion to make an exception in some cases. We agree that a narrow exception can be justified. We favour option (a) because it gives the court the option of declaratory relief in situations where the special nature of the Crown and policy factors that may arise in proceedings make granting an injunction inappropriate. While the court would have discretion not to grant an injunction under option (b) – because compulsory orders are discretionary – the court would not have the alternative of declaratory relief.

3.118Under clause 10, which replaces section 17 of the Crown Proceedings Act, the default position would be that the same remedies may be granted against the Crown as might be awarded against private individuals. The intention of the replacement provision is to be enabling so that the Crown is at least subject to the remedies that other litigants might be. The provision should not, for instance, prevent the award of public law compensation on the basis that it, arguably, cannot be awarded against private parties, and nor should the provision be taken as preventing remedies that are otherwise peculiar to the Crown being awarded, if such a remedy might otherwise survive.

3.119However, in circumstances in which some remedies are inappropriate (especially those that involve the transfer of property or the compelling of certain actions, injunctions, attachment, specific performance or the conveyance of land or property), these might be denied by the court on the grounds of public interest. The court could, in such circumstances, give declaratory relief. This seems to us a much more tailored ground for disparate treatment than the broad exemption of the Crown from such remedies.

Retaining an in rem exclusion

3.120The exclusion currently in section 28 of the Crown Proceedings Act against bringing in rem proceedings against the Crown should be retained. The replacement provision should ensure that the Crown’s ships or aircraft and related property, the majority of which would be used by the Defence Force, cannot be arrested or made subject to any of the consequences of in rem proceedings.

Recommendations

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.
57However, such orders were traditionally granted in Scotland. See the discussion in Davidson v Scottish Ministers (No 1) [2005] UKHL 74 at [60] per Lord Rodger.
58The Judicature Amendment Act 1972, s 8, also contains a similar prohibition on the granting of interim orders in relation to the Crown. Amending that provision is not within the scope of this project. In its report Review of the Judicature Act 1908: Towards a New Courts Act, the Commission said a substantive review of provisions in the Judicature Amendment Act 1972 was beyond the scope of its project and should be the subject of a separate review. See Law Commission Review of the Judicature Act 1908: Towards a New Courts Act (NZLC R126, 2012) at [2.18].
59M v Home Office [1993] UKHL 5, [1994] 1 AC 377.
60See HWR Wade “Injunctive Relief against the Crown and Ministers” (1991) 107 LQR 4.
61The New Zealand courts have commonly adopted the test set out by the Supreme Court of Canada in R v Oakes [1986] 1 SCR 103 for what amounts to a reasonable limit that can be demonstrably justified: see R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [64] per Blanchard J and at [103]–[104] per Tipping J.
62Hansen, above n 61, at [123] per Tipping J.
63Ontario Law Reform Commission Report on the Liability of the Crown (OLRC, 1989, Toronto) at 51.