7 The Crown may sue and be sued in civil proceedings
Clause 7 enacts the principle of equality that is at the heart of the Bill and ensures that the Crown can sue and be sued in civil proceedings as others can. This approach creates less complexity than the “laundry list” approach found in section 3 of the Crown Proceedings Act, which defines in detail what claims may be brought against the Crown.
8 Tort liability of the Crown
Clause 8 makes it clear that the courts may find the Crown directly liable in tort. This is a logical effect of clause 7, but as it represents a change to the status quo (the Crown may for the most part only be found vicariously liable in tort), we have included a separate clause to avoid any doubt as to this intended effect.
Clause 8 also confirms that the existence of an immunity granted to a Crown employee will not affect the ability of the courts to find the Crown liable.
9 The Crown may take advantage of general statutory provisions
Clause 9 confirms that the Crown may rely on any statutory provision of general application even if it is not specifically named in that provision. Enabling the Crown to rely on the same statutory defences as any other person (providing the necessary elements of the defence are satisfied) is a necessary feature of ensuring that civil proceedings involving the Crown are conducted in as similar a manner as possible to civil proceedings between individuals.
10 Remedies against the Crown
Clause 10 replaces section 17 of the Crown Proceedings Act. It establishes as the new default position that a court can grant the same remedies against the Crown as it can grant against an ordinary person. Unlike section 17, clause 10 does not place any restriction on the kind of orders that can be made against the Crown. However, sub-clause (2) does recognise that, in some cases, the public interest may require the court not to make a binding order but instead make a declaratory order as to any party’s rights. Sub-clause (3) prohibits the court from making an order against a minister or Crown employee if making such an order would effectively result in a remedy that could not be obtained from the Crown (i.e. because the court had already decided that the public interest prevented an order being made against the Crown).
11 Admiralty proceedings against the Crown
Clause 11 retains the exclusion currently in section 28 of the Crown Proceedings Act against bringing in rem proceedings against the Crown. Clause 11 also ensures that specified Crown 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.
12 Contribution and indemnity
Clause 12 replicates section 8(1) of the Crown Proceedings Act. It is included out of caution, as almost certainly, the common law position that contribution and indemnity could not be sought against the Crown would itself be abrogated by the general provision in clause 7.
13 Immunity for Crown employees
Clause 13 continues to provide immunity from civil proceedings for public servants. The clause extends immunity to all Crown employees covered by the Bill where they have acted in good faith in the performance of their duties. The immunity will apply regardless of whether or not the Crown employee is also covered by the immunity in section 86 of the State Sector Act.
Since the new clause covers all Crown employees who are currently immune under section 86, that section of the State Sector Act could be repealed at some stage.
14 Indemnity for Ministers
Clause 14 creates a statutory requirement for the Crown to indemnify ministers for costs and damages incurred by the minister in civil proceedings that arise in the performance of their ministerial duties. The indemnity only applies to good-faith actions or omissions. Indemnities must be paid from the funds allocated to the department that was involved with the subject matter of the proceedings that gave rise to the indemnity.
15 Existing immunity provisions
Clause 15 ensures that the existing employee immunities listed in Schedule 2 will continue to provide immunity to the Crown. Clause 15 is necessary to maintain the status quo in respect of Crown immunity because, with the change to direct liability implemented by clause 7, existing immunity provisions that immunise various Crown officers and employees will no longer afford the Crown vicarious immunity in tort. In the future, legislation will need to address the question of whether or not immunity should be granted to the Crown.
16 The Crown immune from liability in tort in relation to judicial process
17 Amendment to Constitution Act 1986
Clauses 16 and 17 preserve the essential characteristics of the current immunity in section 6(5) of the Crown Proceedings Act, namely that the Crown should be immune for liability in tort for acts or omissions arising from the discharging of responsibilities of a judicial nature or responsibilities in connection with the execution of the judicial process.
Clause 16 applies to any person discharging responsibilities in connection with the execution of the judicial process. It covers Crown employees who play a role in the judicial process, for example, Police officers and bailiffs. Clause 17 applies to a person exercising responsibilities of a judicial nature. It applies primarily to judges and other judicial officers.
Having two separate clauses emphasises the separation of powers between those exercising executive powers in connection with the execution of the judicial process and those exercising judicial responsibilities. Further emphasising the separation of powers, clause 17 (the immunity relating to judicial powers) will be a provision in the Constitution Act 1986.
Clauses 16 and 17 only grant immunity in respect of tort claims. Claims under the New Zealand Bill of Rights Act are not affected.