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Civil or criminal immunity

It is a well accepted principle of the rule of law that legislation should apply to all persons equally. An immunity prevents the law applying to the person who receives the benefit of the immunity and is, in principle, inconsistent with the equal application of the law.

Question 4.5

4.5.  Does this Bill create or amend a civil or criminal immunity for any person? [YES/NO]

What matters are covered by the question?

Immunities are usually conveyed in one of two forms; they are either an immunity from proceedings or an immunity from liability.

An immunity from proceedings could be from all civil proceedings or it could be just in respect of particular proceedings, for example, defamation proceedings.

An immunity from liability is usually an immunity from civil liability only. An immunity from criminal liability will only be justified for very specific offences that were closely identified with the statutory powers and functions the person is required to exercise.

The principle is that an Act does not bind the Crown unless the Act expressly says so. So, where a Bill is silent as to whether it applies to the Crown, no disclosure is required.[43]

What is the nature of the further information sought?

If the answer is YES, please:

  • identify the provision(s) that create or amend the immunity;
  • explain why the immunity is necessary (you will need to first describe the conduct or act that immunity is provided for and then explain why the immunity is necessary for that conduct or act);
  • identify and explain the nature of any features that will mitigate the potential adverse effects of the immunity.

As a general rule, an immunity should only apply to acts in good faith and without negligence. An immunity for reckless or bad faith acts would be extremely difficult to justify.

Situations where it may be acceptable to confer an immunity on a person include:

  • persons acting judicially. The system of appeals and review is designed to address any issues relating to errors committed by judges and immunities are commonly granted for persons acting judicially to ensure they can make decisions free from the risk of proceedings being brought against them personally for decisions they have made;[44]
  • persons exercising intrusive statutory powers, particularly where those powers have the potential to cause significant loss to a person if exercised improperly, for example, emergency or disaster relief powers; or
  • persons disclosing wrongdoing to a statutory body, so as to encourage such disclosures.

It is important to note that just because a person is exercising a statutory power it does not mean they will be liable and so is not a reason for an immunity. A person exercising a statutory power will not generally be liable as long as the person acts within the scope of the powers. It was for this reason that the Law Commission recommended that specific civil immunities should not generally be included in legislation but instead it should be ensured that statutory powers are adequate for the purpose.[45]

An important mitigating feature for an immunity is to ensure that the immunity extends only to the person and not to their employer or the organisation they are appointed by, so as not to prevent proceedings being brought against the statutory body. This was the conclusion reached by the Law Commission that if an immunity could be justified it should not prevent proceedings against another appropriate defendant such as an employer.[46]

Example: (for a YES answer, concerning the Judicial Matters Bill 2003)

Clause 9 will apply the provisions of Part 1 of Schedule 1 to the Judicial Conduct Commissioner, and clause 4 of Part 1 contains an immunity from proceedings for the Commissioner.

The immunity is from both civil and criminal proceedings and covers anything the Judicial Conduct Commissioner may do or say or report in the intended exercise of their duties under the Act unless acting in bad faith.  The Commissioner will be responsible for receiving and processing complaints against members of the judiciary, and deciding whether to recommend a Judicial Conduct Panel be appointed to inquire into a complaint.  The benefits of an independent judicial complaints function and a Commissioner who is free to consider complaints against the judiciary without the threat of legal proceedings against the Commissioner personally by complainants who are dissatisfied with the way their complaint is handled are considered to outweigh the rights of complainants to be able to commence legal proceedings against the Commissioner.  Decisions by the Commissioner will remain subject to judicial review and that is an appropriate check on the Commissioner's powers and functions.

The immunity does not apply to proceedings for the following offences under the Crimes Act 1961: espionage; wrongful communication retention, or copying of official information; corruption and bribery of an official; corrupt use of official information; or use or disclosure of personal information wrongfully disclosed.

If the answer is NO, no further information is required.

Notes

  • [43]Crown immunity arises by virtue of s 27 of the Interpretation Act 1999, which provides: “No enactment binds the Crown unless the enactment expressly provides that the Crown is bound by the enactment.”
  • [44]See, for example, s 261 of the Resource Management Act 1991, which provides that “no action lies against any member of the Environment Court for anything they say, do, or omit to say or do, while acting in good faith in the performance of their duties.”
  • [45]Crown Liability and Judicial Immunity - A response to Baigent's case and Harvey v Derrick NZLC, Wellington 1997 [132].
  • [46]Ibid.
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