Content

Executive summary

3 This report concludes -

(a) in relation to the question posed by section 28(1)(a) of the Interpretation Act that it is not desirable to change the law so that all enactments bind the Crown unless otherwise provided. Instead, there should be a requirement that all Cabinet papers seeking policy approval for proposals that will result in Government bills must address the issue of whether the legislation is to bind the Crown;

(b) in relation to the question posed by section 28(1)(b), changes in the law would be required to impose criminal liability on the Crown. However, as with Crown immunity in relation to enactments generally, the issue of Crown criminal liability should be considered on a case by case basis.

PART I

BACKGROUND

4 The aim of an interpretation statute is to provide rules for the interpretation of legislation, to enable language in other statutes to be shortened and to promote consistency in the language and form of legislation. New Zealand has had an interpretation statute since 1888.

5 Section 27 of the Interpretation Act 1999 provides that -

"No enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment."

6 An equivalent provision was contained in the predecessor to the Interpretation Act, the Acts Interpretation Act 1924 and earlier New Zealand interpretation statutes. Section 5(k) of the Acts Interpretation Act 1924 provided -

"No provision or enactment in any Act shall in any manner affect the rights of Her Majesty, her heirs or successors, unless it is expressly stated therein that Her Majesty shall be bound thereby."

7 These provisions reflect the common law position that a statute binds the Crown only if such an intention is clear from its terms. Despite the reference to the word "expressly" in the current and the earlier provisions, it is clear from a number of New Zealand cases that an intention to bind the Crown can be implied from the terms of a statute e.g. Re Buckingham [1922] NZLR 771.

8 Historically, the presumption against the Crown being bound by statute appears to have applied only to statutes that would strip the King of his prerogative, that is, the rights, powers, privileges or immunities that were peculiar to him. However, over time the presumption eventually came to be applied to all statutes whether or not they affected the King's prerogative and irrespective of their purpose (P W Hogg Liability of the Crown, 3rd ed. p. 276).

Law Commission 1990 Report

9 In 1990 the Law Commission published a report entitled "A New Interpretation Act: To Avoid 'Prolixity and Tautology'" (New Zealand Law Commission Report 17, Wellington, 1990). The report was a response to a ministerial reference on legislation given to the Commission. The purpose of the reference was twofold:

(a)To propose ways of making legislation as understandable and accessible as practicable and of ensuring that it is kept under review in a systematic way.

(b)To ascertain what changes, if any, are necessary and desirable in the law relating to the interpretation of legislation.

10 The Commission was asked to examine and review, inter alia, the provisions of the Acts Interpretation Act 1924 and, where appropriate, to recommend changes.

11 One of the issues the Report examined was whether section 5(k) of the Acts Interpretation Act should be amended. The report proposed that the principle espoused in section 5(k) be reversed ("the reversal of the presumption") so that every enactment binds the Crown unless provided otherwise "or the context requires". The Law Commission gave the following two principal reasons for the reversal of the presumption:

(a) In principle, the Crown should be subject to the general law of the land, including the statute law - the rule of fairness requires that; and

(b) The present law is unclear and confusing.

12 The Law Commission rejected the idea of limiting reversing the presumption for future statutes only, on the grounds that there was a successful precedent for a full reversal of the presumption (British Columbia in Canada), and because having two opposing regimes operating at the same time would create unnecessary confusion.

13 The Law Commission also rejected the idea that there should be a general exemption for the Crown from criminal liability. It noted that departments have legally separate appropriations and that the public finance legislation and practices emphasise the responsibility of individual departments. It thought the imposition of financial penalties would make formal the condemnation of a particular agency that breached the law, and would help promote future compliance with the law.

Interpretation Bill 1999

14 The Ministry of Justice developed an Interpretation Bill to implement the recommendations made by the Law Commission in its 1990 report. During this development process the Ministry extensively examined the proposal to reverse the presumption. The Ministry received comments from the Treasury, the Office of the Clerk of the House of Representatives and the New Zealand Law Society that indicated that the application of the reversed presumption to existing statutes could have some undesirable and unforeseen effects. In particular, it had not been possible to quantify the precise effects (fiscal and otherwise) of implementing the recommendation to reverse the presumption. Consequently, clause 27 of the Bill as introduced in the House on 25 November 1997 contained a provision re-enacting section 5(k) of the Acts Interpretation Act. The Bill was referred to the Justice and Law Reform Committee on 2 December 1997.

New Zealand Law Society

15 The New Zealand Law Society made a submission on the Bill. The submission proposed reversing the presumption in respect of future enactments - ie those enacted after the enactment of the Interpretation Bill. The reasons for this proposal were:

  • The importance of the basic constitutional assumption that the Crown is under the law;
  • There is little incentive for the Crown to address the issue of whether it should be bound; and
  • It appears that the issue of whether the Crown should be bound has, in a number of cases, been overlooked in the process of preparing legislation.

16 In summary, the Society argued:

"A requirement that the Crown include a provision in legislation expressly stating that it will not be bound would be a salutary discipline on drafters and officials alike to address the issue."

Advice to Select Committee

17 The Ministry of Justice and the Law Commission provided extensive advice to the Select Committee on the bill. During the Select Committee process, a general consensus was reached between the Ministry, the Law Commission, the New Zealand Law Society and Parliamentary Counsel Office that a reversal of the presumption contained in section 5(k) of the Interpretation Act 1924 was too complex an issue to address in the context of an interpretation statute. This was because the reversal of the presumption would have the following practical effects:

  • Uncertainty in law, especially on the question of Crown criminal liability;
  • Uncertainty about fiscal and other risks the Crown could face arising from error or inadequate consideration of whether the Crown should be bound by legislation;
  • Special attention (and probably an exemption) would be required in relation to amendment acts if the reversal of the presumption only applied to new acts.

18 Consequently, the Committee recommended that section 5(k) of the Acts Interpretation Act be reenacted in the Bill. However, the Committee also recommended the addition of a provision that became section 28 of the Interpretation Act to "ensure that the question of whether the presumption is reversed is addressed, while allowing for careful consideration of the wider issues involved".

Other reports

19 Section 28(3) of the Interpretation Act requires the Ministry to consider any reports prepared by the Law Commission or any other body relating to the liability of the Crown in the preparation of this report.

20 In December 2000, the Law Commission produced a further publication on this issue. Study Paper 6 entitled "To Bind Their Kings in Chains - An Advisory Report to the Ministry of Justice" ("the Kings Report") examines the two matters referred to in section 28(1)(a) and (1)(b). With respect to the issue referred to in section 28(1)(a), the Kings Report rejects the proposal contained in the Law Commission's 1990 report to reverse the presumption so that the Crown would be bound by all statutes unless otherwise provided. The Law Commission's main reasons for rejecting its earlier proposal were that:

  • while in principle, the Crown should be subject to the general law, governments must be allowed to govern, therefore in some circumstances it will be appropriate that the Crown be bound by some or all provisions of a statute, in others it will not;
  • the logical corollary of this is that any rule, even a rebuttable one, imposing blanket liability is insupportable;
  • the optimum solution is that each statute should expressly address the question of whether and to what extent the Crown is bound;
  • reversing the presumption would not make the law any less uncertain.

21 The report recommended that the Cabinet Office Manual be amended to require that every proposed Bill should expressly state whether and to what extent the Crown is to be bound by the Bill, and to the extent that it is not, the reasons.

22 With respect to the issue of whether changes in the law are required to impose criminal liability on the Crown for a breach of a statute (section 28(1)(b) of the Interpretation Act), the Law Commission concluded as follows:

  • no changes in basic constitutional law are needed to impose criminal liability on the Crown;
  • however, it would be necessary to define what is meant by the Crown for this purpose, and sensible for issues relating to such matters as procedure and penalties and mens rea (a guilty intention) to be dealt with.

23 The Law Commission also suggested that an alternative approach might be to impose substantial pecuniary penalties on the Crown in a civil process as a disciplinary device, rather than impose criminal liability.

Crown Organisations (Criminal Liability) Bill 2001

24 A further development since the enactment of section 28 of the Interpretation Act is the introduction on 10 April 2001 of the Crown Organisations (Criminal Liability) Bill. This Bill implements the recommendation in Judge Noble's report into the Cave Creek tragedy, that the Crown's exemption from prosecution for offences under the Building Act 1991 and the Health and Safety in Employment Act 1992 be removed. This marks a significant change in the longstanding principle that the Crown is indivisible and immune from criminal prosecution and establishes a precedent for Crown criminal liability.

25 The key elements of the Bill are: -

  • Government departments, Crown entities and other Crown-related organisations ("Crown organisations") can be prosecuted for offences under the above two Acts;
  • Separate legal personality is conferred on Crown organisations, where necessary, for the purposes of a prosecution and they will be prosecuted in their own name and not in the name of the Crown;
  • On conviction, a Crown organisation will be liable to the same penalties that can be imposed on a body corporate (ie pecuniary penalties) convicted of the same offence.

PART II

REVERSAL OF SECTION 27 PRESUMPTION

26 Section 28(1)(a) of the Interpretation Act requires consideration of whether the presumption contained in section 27 that the Crown is not bound by an enactment unless the enactment expressly provides otherwise, be reversed.

Reasons for reversing the presumption

27 The principal arguments in favour of reversing the presumption in section 27 are:

  • that the Crown should be subject to the law and the same legal processes as everyone else, - in other words, there should be equality before the law;
  • it would reduce the uncertainty of the current law;
  • it would increase the incentives to address the issue of whether statutes should bind the Crown.

Principle of equality before the law

28 Reversing the presumption could be seen as providing greater consistency with the principle of equality before the law. Over the last century the scope of both government activity and legislative regulation has increased considerably. It can be argued that where the Crown engages in an activity that is controlled by statute, it should generally be subject to those statutory controls.

29 However, the issue is not so much about the principle as how it may be given practical effect. There appear to be few examples where the current presumption that the Crown is not bound has had a substantial detrimental impact on citizens. Possible examples are in the area of rating and income tax laws and the Crown's exemption from payment of some local authority rates and from income tax. With regard to income tax, government departments do not generally receive income other than from Parliamentary appropriations - that could properly be the subject of income tax, and in any event departments must pay GST like anyone else.

30 Ultimately, it must be acknowledged that the Crown has special powers and responsibilities and it is undeniable that it does in some circumstances require special statutory provisions and immunities in order to govern effectively. Governments will wish to ensure that the Crown is not bound in these circumstances, regardless of how the presumption is expressed in legislation. Reversing the presumption would therefore not of itself achieve in any practical sense equality between the Crown and citizens under statute law.

Removing uncertainty

31 Currently a large number of statutes in force in New Zealand do not expressly state that they bind the Crown. As the Law Commission noted in its 1990 report, a number of these statutes do, however, clearly bind the Crown because they confer powers and rights on the Crown that plainly bind it. In other cases, it is possible that application may be implied by the content of legislation (such as when the central purpose of the legislation would otherwise be frustrated). While the lack of clarity in some statutes on whether the Crown is bound may be seen as creating uncertainty, in practice there appear to have been only a small number of cases in New Zealand where the matter has been in issue.

32 However, it is not considered that simply reversing the presumption will by itself remove the perceived uncertainty in the current law. Whether the Interpretation Act provides that no enactment binds the Crown unless it expressly provides that the Crown is bound, or that every enactment binds the Crown unless it provides otherwise or the context otherwise requires (the form of words suggested by the 1990 Law Commission report), the interpretation of statutes will ultimately remain a matter for the courts. The word "expressly" in the current provision includes the concept of necessary implication. Whatever form of words is used, it is likely that the courts will still have to grapple with the issue of whether, in light of the particular words used in the statute, or having regard to its scheme, Parliament intended to depart from the presumption set out in the interpretation legislation. In relation to this issue, the Kings Report states that "We do not accept that either presumption results in avoidable uncertainty. There is nothing in the uncertainty point".

33 It should be noted in particular, that a reversal of the presumption, will not provide certainty on the issue of the extent to which the Crown is criminally liable under a particular enactment. The Crimes Act 1961 contains an express statement that it binds the Crown but as noted in the Kings Report this has not resulted in prosecutions of the Crown. Case law in New Zealand has held that a statement that an enactment binds the Crown is not sufficient to impose criminal liability on the Crown (Southland Acclimatisation Society v Anderson and the Minister of Mines [1978] 1 NZLR 838). In that case, the court held that the Crown is only to become criminally liable where it is clear that the legislature intended that result. Faced with a simple reversal of the current presumption, it is likely that the courts will conclude that this is an insufficient indication of Parliament's intention. (The issue of Crown criminal liability is discussed further below.)

Increase incentives to consider whether statutes bind the Crown

34 It is highly desirable that each statute should state whether and to what extent it binds the Crown. To ensure that the issue is properly addressed it should be a matter that is considered early in the policy development stage. Reversing the presumption would provide greater incentives to officials to ensure that this take place. However, reversing the presumption is not the only way to achieve this. As is recommended later in this report, the Cabinet Office Cabinet and Cabinet Committee Processes - Step by Step Guide 2001 could be amended to require all policy papers that will result in Government bills to expressly state whether and to what extent the proposed legislation is to bind the Crown. This would ensure that the issue is specifically addressed in every case. In addition, this approach should lessen risks for the Crown that may arise if the presumption is simply reversed and inadequate consideration is given to whether the Crown should be bound by a particular piece of legislation.

Risks in reversing the presumption

35 Reversing the presumption in respect of all legislation (including existing legislation) would create fiscal and other risks to the Crown unless a global assessment of all legislation is undertaken prior to the change being made. Without such a prior assessment being made, the Crown may well find itself bound by legislation for which there is good reason for it to be immune. Assessing the scope and extent of the risks is likely to be a difficult and resource intensive project. The recent exercise carried out in relation to the likely cost implications of imposing criminal liability on the Crown under the Building Act 1991 and the Health and Safety in Employment Act 1992 indicated the extensive input required, and the difficulty in obtaining accurate cost assessments.

36 However, it should be acknowledged that in the Canadian jurisdictions of British Columbia and Prince Edward Island and in South Australia and the Australian Capital Territory the presumption has been reversed, without, so far as we can ascertain, causing difficulties in practice. In British Columbia the reversal was applied to all legislation. However, in the other jurisdictions, the reversal was prospective (that is, only applies to legislation passed after the coming into force of the relevant provision).

Reversal of presumption in respect of future legislation only

37 An alternative to reversing the presumption for all legislation would be to apply the reversed presumption to future legislation only. Prospective application of the presumption would obviate the need to perform the task of assessing individually all existing statutes thereby removing the risks and resource implications associated with such an exercise. However, it would give rise to the following practical consequences:

  • there would be a dual regime for the application of enactments to the Crown that could cause legal confusion and uncertainty;
  • special attention would have to be given to amendment Acts.

38 The application of different presumptions depending on the date of enactment of a particular statute could cause legal confusion and uncertainty. However, a regime based on a distinction as to when a particular statute was enacted would simply require a factual inquiry as to the date of the relevant enactment. Over time, potential difficulties would diminish because the two regimes would merge as existing statutes were consolidated or replaced with measures incorporating the new "rule".

39 If the presumption were reversed in respect of future legislation, the effect of such a reversal on amendment Acts would also need to be addressed. If specific provision were not made for amendment Acts, the effect of a reversed presumption might be to create uncertainty as to whether a new amendment Act that does not specify that it binds the Crown, has the effect of causing the entire parent Act to bind the Crown, whether or not that was intended. South Australia has addressed the issue by providing that the reversed presumption is restricted to Acts passed since the reversal of the presumption, and does not apply to amendments of pre-existing Acts. In Prince Edward Island the position appears more complex as the reversed presumption applies to both new Acts and new amendments to pre-existing statutes with the result that in some circumstances a new amendment may bind the Crown, but older provisions of the same statute may not. These approaches suggest that even where the issue of amendment Acts is addressed, a further layer of complexity is added to legislation.

40 In summary, applying a reversed presumption prospectively would remove the need for all existing legislation to be examined before the reversal was implemented. However, it would result, at least for some time, in dual regimes operating. In addition, the application of the presumption to acts amending pre-existing legislation would need to be addressed which would add complexity and possibly create uncertainty.

An alternative approach

41 As already indicated, we agree with the general principle that there should be equality before the law between the Crown and other persons. However, it must also be accepted that there are some circumstances when it will not be appropriate for the Crown to be bound. We also consider that it is highly desirable that the issue of whether the Crown is bound by legislation should be considered on a case by case basis, and at an early stage in the development of new legislation. However, for the reasons outlined above, we do not think that simply reversing the current presumption is the best way to ensure that this occurs.

42 Instead we consider that there should be a requirement that the issue be dealt with as part of the Cabinet policy approval process for new legislation. This approach is also supported by the Law Commission in its Kings Report.

43 Currently, the Cabinet Office Cabinet and Cabinet Committee Processes - Step by Step Guide 2001 requires Ministers to confirm compliance with certain principles, obligations and guidelines in a number of areas when bids are made for inclusion of bills in the legislation programme and when a bill is subsequently submitted to the Cabinet Legislation Committee for introduction. Section 3 of the Step by Step Guide also requires ministers to provide information on several other matters when submitting policy papers for approval, namely a regulatory impact statement (for policy proposals that result in bills and regulations), a statement on consistency with the Human Rights Act 1993, and a statement relating to gender implications (for certain policy proposals).

44 We propose that the Step by Step Guide be amended to require that all policy papers submitted to Cabinet Committees or Cabinet which will result in government bills must address the issue of whether or not a new statute is to bind the Crown, and to the extent that it does not, the reasons why. This would mean that agencies responsible for promoting legislation will have to focus specifically on the issue early in the policy development stage, and should ensure that a more systematic approach is taken to consideration of whether a particular enactment is to bind the Crown.[1]

45 While this approach will mean that the position of existing statutes will not be considered immediately, over time as these acts are consolidated or replaced, the issue will be addressed. In any event, the approach recommended does not preclude a global review of existing legislation taking place as resources permit if that is desired.

Conclusion

46 Accordingly, our response to the question posed by section 28(1)(a) of the Interpretation Act is that we do not consider that it is desirable to change the law so that all enactments bind the Crown unless otherwise provided. Instead, the Step by Step Guide should be amended to require that all Cabinet papers seeking policy approval for matters that will result in government bills must address the issue and recommend to Cabinet whether the proposed legislation should bind the Crown, and to the extent that it does not, must provide reasons why.

PART III

CRIMINAL LIABILITY

47 Section 28(1)(b) of the Interpretation Act requires consideration of "Whether changes in the law may be required to impose criminal liability on the Crown for the breach of any enactment".

48 The question of whether the Crown is liable to prosecution under the criminal law has not frequently arisen for decision. The position at common law appears to have been that the Crown could not be subject to criminal prosecution. This presumption rested on the maxim that the "the King could do no wrong" - to allow the Crown to be prosecuted would be inconsistent with this principle.

49 However, it seems that it is possible for criminal liability to be imposed on the Crown by statute. In Cain v Doyle (1946) 72 CLR 409, the High Court of Australia considered whether the Crown was criminally liable under a statute which expressly stated that it applied to the Crown. The Court held that the language in the statute in question was not clear enough to indicate an intention to impose criminal liability on the Crown but nevertheless established the proposition that the Crown may be criminally liable if there are apt words in the statute to that effect. The Supreme Court of Canada in Canadian Broadcasting Corp v AG (1959) 16 DLR 609 subsequently adopted the same premise.

50 This approach has been followed in New Zealand. In Southland Acclimatisation Society v Anderson, the Crown was charged with an offence under the Water and Soil Conservation Act which expressly bound the Crown. The Court cited Cain v Doyle and held there could be no prosecution because there was no clear indication in the statute that the Crown was intended to be criminally liable. (A further point made in the case was that, as the Crown was not bound by the Summary Proceedings Act, there was no machinery to prosecute the Crown.)

51 As previously noted, the inclusion of a provision in the Crimes Act 1961 stating that it binds the Crown has not resulted in prosecutions of the Crown under that Act.

52 The position in New Zealand is therefore, that the Crown may be criminally liable, but there must be very clear words in legislation to that effect. This view is supported by the Law Commission's Kings Report.

53 But as the Kings Report also notes if criminal liability is to be imposed on the Crown, a number of other issues need to be addressed including -

  • who is the Crown for the purposes of a prosecution;
  • who should prosecute the Crown;
  • what procedures should apply;
  • what penalties should be imposed on the Crown upon successful conviction.

54 The Crown Organisations (Criminal Liability) Bill (CO(CL) Bill) which imposes criminal liability on the Crown under the Building and HSE Acts provides a precedent for dealing with these.

Who is the Crown

55 "The Crown" is not a precise term but is used loosely to embrace most of those entities which exercise central public authority. While the term is most commonly understood to be a reference to the Executive branch of Government, there needs to be a named defendant if criminal proceedings are to be taken against the Crown. Possibilities include the responsible Minister, the specific department, the relevant chief executive or the Attorney-General in a representative capacity. Issues arise in relation to each of these possibilities including with respect to departments, the lack of separate legal personality which means they cannot be prosecuted on their own account unless given legal status for that purpose.

56 The CO(CL) Bill addresses these matters in the following manner. The Crown organisations that may be prosecuted are defined to include departments, crown entities and other specified crown-related organisations. Where necessary separate legal status is conferred on those organisations for the purposes of prosecution. The organisations will be prosecuted in their own name, and a conviction entered against the individual organisation.

Who should prosecute

57 The Attorney-General and Solicitor-General have ultimate responsibility for all criminal prosecutions on behalf of the Crown. If the Crown is to be criminally liable, who is responsible in practical terms for prosecuting and defending the Crown needs to be addressed. There may also be issues as to possible conflicts of interest between the role of the Solicitor-General in supervising prosecutions on the one hand and giving legal advice to the Crown on the other.

58 Under the CO(CL) Bill Crown organisations will be prosecuted under the current departmental and local government prosecution mechanisms that apply to all other persons (ie. by territorial authorities under the Building Act and by OSH inspectors under the HSE Act). However, it should be noted that specific prosecution mechanisms such as those found in the above two Acts will not necessarily be available in other legislation creating offences which would leave open the question as to who is to prosecute the Crown.

Procedures

59 The procedure for giving effect to Crown criminal liability need consideration. As already noted, the Summary Proceedings Act which provides the machinery for bringing summary offences does not apply to the Crown therefore amendments would be needed to establish a mechanism for prosecuting the Crown. Amendments to the Crimes Act would be required if the Crown were to be liable for indictable offences. There is also the question of whether the Crown should be entitled to all the rights and privileges available to other persons or organisations prosecuted for offences.

60 The CO(CL) Bill addresses these matters by amending the Summary Proceedings Act to apply to prosecutions of Crown organisations under the Building and HSE Acts. The Bill also expressly provides that Crown organisations will be entitled to the same rights and privileges as a body corporate charged with an offence except that the privilege against self-incrimination will not be able to be invoked on behalf of a Crown organisation.

Penalties

61 If the Crown is to be criminally liable, the appropriate penalties need to be considered. Fines or other monetary penalties are available. However, there may be an issue as to whether imposing fines on Crown organisations is the most effective form of penalty. This is because in effect it will result in payments being made from one part of the Crown to another. On the other hand, the imposition of fines against a particular Crown organisation is likely to emphasise responsibility for the criminal act and increase incentives for individual organisations to comply with the law.

62 The CO(CL) Bill provides that where Crown organisations are convicted of offences under the Building and HSE Acts, the penalties that can be imposed on private sector organisations for the same offences will be able to be imposed on Crown organisations. The Bill also amends the Criminal Justice Act to allow the court to order part of any fine imposed to be paid to the victim, and for reparation orders to be made.

Strict liability/mens rea offences

63 If a statute may, by a clear expression of intent, make the Crown criminally liable, strict liability offences may not pose particular difficulties providing it is made clear who is to be prosecuted and the procedural issues referred to above are addressed. Strict liability offences are those for which the prosecution does not have to prove a blameworthy state of mind. They are commonly found in "public welfare" statutes such as those regulating occupational health and safety, building standards, protecting the environment or other public welfare purposes.

64 However, as the Kings Report notes, the position is more problematic in the case of mens rea offences (ie those for which the prosecution is required to prove the requisite mental element). There are difficulties in practice in successfully prosecuting corporations for such offences, difficulties which would also apply in relation to Crown organisations. As a general rule an accused person cannot be liable for mens rea offences unless the accused personally had the requisite state of mind. In the case of corporations, a prosecution would have to proceed on the basis the corporation was vicariously liable for the conduct of its employees of a sufficiently high level for the conduct to be attributed to it (Tesco Supermarkets Ltd v Nattrass [1971] 2 All ER 127 and Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7). In addition, the Crimes Act specifically provides that homicide, which includes manslaughter, can only be committed by a natural person.

Alternative to criminal liability

65 The Law Commission's Kings Report suggests that as an alternative to imposing criminal liability on the Crown, a civil process in which substantial pecuniary penalties could be imposed may be more appropriate.

66 This suggestion arises from preliminary work by the Law Commission following the Cave Creek tragedy referred to as a review of Systemic Safety. The review was intended to examine the liability of those (including the Crown) whose conduct is likely to put the public at risk and would involve the imposition of a defined duty of care. A description of the proposal by a Law Commissioner in the New Zealand Law Journal [2000] 389 acknowledges that the proposal would be wide ranging in its effect and that if it were to proceed, a number of issues would need to be addressed.

Conclusion

67 We agree with the conclusion in the Law Commission's Kings Report that no changes in basic constitutional law are necessary in order to impose criminal liability on the Crown. Nevertheless, our answer to the question in section 28(1)(b) of the Interpretation Act "Whether changes in the law may be required to impose criminal liability on the Crown for the breach of any enactment" is yes.

68 This is because first, the current law in New Zealand is that even where a statute states that it binds the Crown, this will not of itself be sufficient to impose criminal liability on the Crown. The courts will require clear words to the effect that the Crown is to be criminally liable before imposing such liability. In light of this, even if the current presumption that the Crown is not bound by statute was reversed, we do not consider that this would by itself provide clarity on the question of Crown criminal liability.

69 Second, if criminal liability is to be imposed on the Crown, a number of other issues need to be addressed including what is meant by the Crown for the purposes of a particular prosecution, what procedural mechanisms are to apply and what penalties should be able to be imposed.

70 Accordingly, as is the case with Crown immunity in relation to statutes generally, we consider that whether the Crown should be criminally liable needs to be considered on a case by case basis.


Footnote

1 The process for amending the Step by Step Guide for the inclusion of this requirement is as follows:

  • The relevant Minister submits a paper to the Cabinet Legislation Committee recommending the inclusion of the new requirement in cabinet papers. Once the Cabinet Legislation Committee and Cabinet have agreed to the change, the Cabinet Office issues a circular outlining the changes. The circular is then incorporated in the website (and next hard copy) update of the Step by Step Guide.