Two separate Law Commission references are completed by this Report. The unifying feature is that both references address the position of the Crown in the courts and advance the same two principal goals: providing New Zealanders with better access to justice; and providing New Zealand with a modern legal infrastructure.
Part 1 of the Report, A new Crown Civil Proceedings Act, recommends replacing the Crown Proceedings Act 1950 with modernised legislation. While the Crown Proceedings Act sounds as if it is dry “lawyer’s law”, it has the important purpose of reflecting New Zealand’s commitment to ensuring that people are able to seek appropriate legal redress against their Government. It forms an important pillar of the rule of law. It is therefore vital that it remains up to date.
The new Act we are recommending is designed to be fit for purpose in 21st century New Zealand. Although the general principles around which the Crown Proceedings Act is constructed remain the same in the draft Bill, especially that Crown and citizen ought to be equal before the courts, much has changed in Government since 1950. We need a modernised and simplified Act that reflects those realities and assists with the conduct of litigation against the Crown. We hasten to add, however, that Part 1 is not about increasing the Crown’s liabilities but ensuring that, where the Crown has breached an existing obligation that ought to be compensated at law, the procedure is clear and effective.
In Part 2 of the Report, National security information in proceedings, the Commission grapples with the same two goals – access to justice and ensuring that New Zealand’s legal structure is robust enough to adapt to the changing needs of modern society. Here, we review how information that poses a threat to national security is dealt with in court proceedings.
New Zealand, like other countries, needs to put legal structures in place to manage cases involving information that, if disclosed, would threaten national security. Our current law in this area has gaps and inconsistencies that should be addressed. There is no doubt that, in some situations, the need to protect national security means that information cannot be dealt with in open courts. However, the protection of the rights to natural justice and open justice must be preserved, as far as possible, as these are values that lie at the heart of our democratic framework and way of life.
The recommendations in Part 2 aim at maintaining a proper balance between the necessity of protecting national security interests and upholding rights to natural justice and open justice.
Sir Grant Hammond