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Applying an Act to the Crown
This is a single section from Chapter 11. Read the full chapter here.
Is there a need for immunity from civil liability?
Any immunity from civil liability should be separately justified and should not be overly broad.
Immunities conflict with the central principle that the Government should be under the same law as everyone else. If immunities are given, consideration should be given to other ways in which those exercising a power can be held to account.
Section 86 of the State Sector Act 1988 protects public servants from liability so long as they have acted in good faith. Concerns about subjecting individual public servants to personal liability, therefore, are not a justification for immunity. Section 86 only covers public service employees, and consideration ought to be given to others who might be exercising a public power. The need for such an immunity should be carefully justified and consideration given as to how to compensate an affected person. For example, government departments and Crown entities remain liable even though their employees are immune.
Immunities will often not be necessary if the public power being exercised is properly described, including ancillary matters such as a power to seize or take samples attached to a power of entry.
There may be circumstances where creating a private law action is not intended, but the courts nevertheless imply one into legislation. The inclusion of an appropriate provision (such as section 179A of the Reserve Bank of New Zealand Act 1989) in legislation can reduce the likelihood of the courts imposing liability, but sufficient justification must exist for doing so.