Contents

Chapter 4
Draft Crown Civil Proceedings Bill and commentary

Preliminary provisions

Clause 3 – Purpose

3 Purpose

The purpose of this Act is to clarify and reform the law about civil proceedings involving the Crown, including by—
(a) enabling the Crown to sue and be sued in the same way as any other person:
(b) making civil proceedings involving the Crown as similar as possible to other civil proceedings:
(c) providing that the Crown may itself be directly liable in tort (rather than only vicariously liable):
(d) reforming the law about public interest immunity.

Commentary

Clause 3 identifies the purposes of the Bill. It confirms our intention to give the Crown clear legal personality to sue and be sued in civil proceedings. It enacts the principle that the Crown should be in as similar a position as possible to private individuals in civil proceedings (sometimes referred to as the equality principle). It also confirms the intention to abolish any legal rule or procedure that prevents the Crown from being sued directly (as opposed to only vicariously) in tort.

Clause 4 – DefinitionsTop

Civil proceedings

4 Interpretation

(1) In this Act, unless the context otherwise requires,—
civil proceedings means any proceedings in any court that are not criminal proceedings—
(a) including proceedings for relief for a breach of the New Zealand Bill of Rights Act 1990; but
(b) excluding applications for review under Part 1 of the Judicature Amendment Act 1972 and applications for habeas corpus, mandamus, prohibition, or certiorari
(2) Unless the context otherwise requires, a reference to civil proceedings against the Crown includes a set-off or counterclaim against the Crown, and a reference to civil proceedings by the Crown includes a set-off or counterclaim by the Crown.
Commentary
The definition differentiates the coverage of the Bill. Criminal proceedings and judicial reviews are excluded and will be unaffected by the reforms in the Bill.
Proceedings for breaches of the New Zealand Bill of Rights Act are included in the definition of civil proceedings in a similar manner to section 12(2) of the Limitation Act 2010. This will bring all claims for monetary relief that can be made against the Crown under the single set of procedural provisions in the Bill.

Court

court means—
(a) the Supreme Court, the Court of Appeal, the High Court, or a District Court; or
(b) the Disputes Tribunal, the Employment Court, the Employment Relations Authority, the Environment Court, the Human Rights Review Tribunal, the Māori Appellate Court, the Māori Land Court, the Motor Vehicle Disputes Tribunal, the Tenancy Tribunal, and the Weathertight Homes Tribunal
Commentary
The provisions of this Bill will apply to proceedings before the courts of general jurisdiction and specified specialist courts and tribunals that may hear civil proceedings involving the Crown.

Crown, Crown employee, department

Crown means the Crown in right of New Zealand, which is the Sovereign in right of New Zealand, Ministers of the Crown, and departments
Crown employee means a person employed by a department (whether paid by salary, wages, or otherwise), or a member, chief executive, or other office holder of a department, but does not include—
(a) an independent contractor; or
(b) for the avoidance of doubt,—
(i) the Governor-General or any Judge, District Court Judge, Justice of the Peace, or Community Magistrate; or
(ii) a person to the extent that the person has responsibilities of a judicial nature
department means—
(a) a department specified in Schedule 1 of the State Sector Act 1988:
(b) the New Zealand Defence Force (within the meaning of that term in section 11(1) of the Defence Act 1990):
(c) the New Zealand Police (within the meaning of that term in section 7 of the Policing Act 2008):
(d) the New Zealand Security Intelligence Service (within the meaning of that term in section 3 of the New Zealand Security Intelligence Service Act 1969).

Commentary

It was evident from the submissions received in response to our Issues Paper that there were a variety of ways in which to conceptualise and describe the Crown in legislation and how we should approach the notion of the Crown in the context of our reform.

We considered all of the feedback received and concluded that the definitions of Crown, Crown employee and department should primarily focus on clearly identifying who the procedural provisions in the Bill apply to. The included definitions will reduce the prospect of constitutional debate around the composition of the Crown from impeding the efficient conduct of civil proceedings involving the Crown. The definitions also reflect the way in which central government has been structured since the reforms of the 1980s, which aimed to modernise and simplify the legal basis for the public service in areas like liability, immunity, indemnity, accountability and transparency.

The definition of Crown is deliberately broad. It includes those persons and bodies that are traditionally thought of as comprising central government but that do not have a clear legal personality for the purposes of civil proceedings. We considered including a more detailed definition of Crown that set out specific bodies (for example, Parliamentary bodies) that are included and excluded from the definition. However, we believe that our proposed definition of Crown provides the required certainty and clarity as to whom the provisions of the Bill are intended to apply. We have retained the phrase “Crown in right of New Zealand” in the definition of the Crown. In our view, these words do not require further definition. Although slightly archaic, the phrase is used throughout the statute book of New Zealand and is generally acknowledged as a mechanism to distinguish the Crown’s constitutional role between the different jurisdictions in which the Sovereign is head of state.

We have used a definition of department that is wider than the definition in section 27(1) of the State Sector Act 1988. The definition also includes the Defence Force, the Police and the New Zealand Security Intelligence Service, all of which are traditionally thought of as making up part of the executive government but are not “departments” within the terms of the State Sector Act.

Crown entities and State Owned Enterprises are not covered by our Bill as they do not require additional legal infrastructure to enable them to sue and be sued in civil proceedings. Crown entities are bodies corporate under the Crown Entities Act 2004, and State Owned Enterprises have legal personality under the Companies Act 1993.

The definitions do not affect the interpretation of section 3 of the New Zealand Bill of Rights Act or the ability to bring proceedings for breaches of it. The identify of a defendant and their potential liability for breaches of the New Zealand Bill of Rights Act will continue to be determined in accordance with the Bill of Rights Act. This Bill only affects the procedure by which those claims against the Crown as defined in this Bill are to be determined.

Crown employee is an umbrella term used to cover employees and the various office holders that work within departments for which the Crown should rightly be held accountable. This means that the actions of a statutory office holder within a department, as well as the actions of members of the New Zealand Defence Force, Police and New Zealand Security Intelligence Service, will be covered for the purposes of civil proceedings involving the Crown.

Clause 5 – Transitional, savings, and related provisionsTop

5 Transitional, savings, and related provisions

The transitional, savings, and related provisions set out in Schedule 1 have effect according to their terms.

Clause 6 – Act binds the CrownTop

6 Act binds the Crown

This Act binds the Crown.

Commentary

Clause 6 confirms that all of the provisions in the Bill will bind the Crown. It has been included to address the presumption in section 27 of the Interpretation Act 1999 that an Act binds the Crown only if it expressly provides the Crown is bound.