This paper charts the development of the damages remedy under the New Zealand Bill of Rights, from its inception in Baigent‘s Case, to one that looked as though it may develop along tort-based lines in the case of Dunlea, and more recently towards what might be described as an ‘administrative law’ or ‘public interest’ conception of the remedy, in the wake of the Supreme Court decision in Taunoa. This public interest conception is based in a particular view of the goals of public law, which more or less equates public law with administrative law i.e. the common law of judicial review. Within this conception public law is not principally concerned with individual rights and the protection of personal interests, but with ensuring public power is properly exercised for the good of society as a whole. The remedial approach within such conception of public law is, like that in administrative law, one focused upon declaratory and specific-type relief. Damages, being a remedy conceptualised traditionally as redressing setbacks to personal interests, is a conceptual outlier and therefore marginalised. The decision whether to award damages is guided principally by public interest concerns, with concerns of individual justice being pushed to the periphery and subordinated to wider concerns over how public power ought to be exercised. The result is an approach to damages far more restrictive than that which prevails in other fields of law which protect rights equivalent to or lesser in importance than those under the Bill of Rights.
The paper is critical of the administrative law approach. Most significantly, such approach confuses the distinctive nature of human rights law, producing incoherence within that field, and stymies the principal function of human rights law: protection of the individual. On the other hand, a tort-based approach, such as that mooted in the Court of Appeal decision in Dunlea, is consonant with and gives effect to the underlying concerns of human rights law. The paper argues that one of the principal reasons for the turn from tort to administrative law is that legal development has been rested on the deeply problematic idea of a grand normative distinction between public law and private law. The paper considers the use of this distinction to shape the damages jurisprudence.
Varuhas, Jason NE, The Evolution of the Damages Remedy Under the New Zealand Bill of Rights Act 1990: From Torts to Administrative Law (February 24, 2015).