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.
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.
5 Transitional, savings, and related provisions
6 Act binds the Crown
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.