New Zealand Law Society - Government responds to Law Commission reports

Government responds to Law Commission reports

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The Government Response to Part A of the Law Commission's report The Crown in Court: A Review of the Crown Proceedings Act and National Security Information in Proceedings has been tabled in Parliament.

The response relates only to the first part of the report, relating to the Review of the Crown

Proceedings Act 1950. The Government says it will respond to Part B of the report separately.

Included in the Government's response is a rejection of the Law Commission's recommendation that the Crown should be able to be sued in tort as a private individual and be held directly liable.

"While conscious of the Law Commission's reasons for its proposal, the Government considers the proposed extension of liability to raise significant constitutional and fiscal issues rather than being a procedural change" the response reads.

"The Government disagrees with the Law Commission's proposal and believes that:

  • the proposal may lead to an extension of the scope of Crown liability at common law, particularly when coupled with other Law Commission recommendations
  • treating the Government differently from other litigants, especially corporations, can be justified, because the Crown serves the public as a whole as a matter of duty;
  • the Crown owes international obligations that require it to act in ways that may be to the detriment of private citizens;
  • individual department responsibility for indemnity could disrupt a department's work programme or business as usual functions; and
  • the Crown is different to individuals and corporations in that it cannot be 'wound up'.

Also tabled this week was the Government Response to the Law Commission report on The Justice Response to Victims of Sexual Violence: Criminal Trials and Alternative Processes.

The report had recommended:

  • changes to court processes, procedures, and physical environment including the suitability and feasibility of a specialist sexual violence court;
  • out-of-court processes to obtain resolution and justice for victims who will not engage with the criminal justice system; and
  • improving social support for victims of sexual violence so that they are better equipped to engage with the justice system.

In its response the Government says it accepts the Law Commission's position that reform would improve the justice response for victims of sexual violence.

"Given the complexity of the issues and deeply sensitive nature of this area (particularly for victims for sexual violence)," the Government says, "further analysis is needed to establish an achievable and effective programme for change".

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