Law

Statutes with problems

Property (Relationships) Act 1976

Family Proceedings Act 1980

Health and Safety in Employment Act 1992

Land Transport Act 1998

Wills Act 2007

Unit Titles Act 2010

Telecommunications Act 2011

RS Bill submission 2025

SUBMISSION on Principles of the Treaty of Waitangi Bill

Property (Relationships) Act 1976

The Law Commission published its final report on the Property (Relationships) Act 1976 (PRA) on 23 July 2019. If any of the Law Commission’s recommendations are to be implemented, a bill will be needed.

The content of the bill will be determined by a complex process, during which ministers will be advised by officials. Since the PRA is administered by the Ministry of Justice (MoJ), MoJ officials will play a major role in giving the advice.

The structure and language of the bill will also be determined by a complex process, during which instructions will be given by MoJ officials to a law drafter. The law drafter will play a major role in making the decisions about the way the bill is drafted.

There are 2 matters that must not be lost sight of during these processes.

The first matter concerns the content of the bill. The specific issue is the relationship between the PRA and section 182 of the Family Proceedings Act 1980. This issue was first raised in 1997 (see Family Proceedings Act 1980) and should have been tackled then. The MoJ officials’ reasoning for not dealing with it in 1997 or 1999 or 2000 is lazy and pusillanimous and nothing can be done about it after all this time. What is important now is making sure that an obvious mismatch between 2 family law statutes is resolved at last.

The second matter concerns the structure and language of the bill. In 2008, I read some disapproving judicial comment about the way in which the Matrimonial Property Act 1976 was extended to cover the division of property on death. This caused me to look carefully at the PRA and I was dismayed by what I found. It seemed to me that the law drafter who worked on the PRA had been casually inconsistent in framing and expressing the amendments. I wrote an article suggesting how the PRA could be tidied up (Property (Relationships) Act 1976: minor structural adjustments (2008) 88 NZLawyer 28) . The suggestions in the article will not necessarily be relevant to the new bill; what is relevant is making sure that the article’s message of the necessity for close attention to structure and language is heeded this time around.

2019

Family Proceedings Act 1980

The relationship between section 182 of the Family Proceedings Act 1980 (FPA) and what became section 44C of the Property (Relationships) Act 1976 (PRA) was raised when section 44C was being drafted.

In her 23 December 1997 draft, the law drafter at that time asked the Ministry of Justice (MoJ) officials “Does something need to be done to align this provision and section 182 of the Family Proceedings Act 1980?” The obvious answer was “Yes” – but the MoJ officials said “No”. This article records the drafting history since the question was asked.

On 4 February 1998, the law drafter and the MoJ officials met to discuss the draft . The note taken by the law drafter of the officials’ response to the question was “No – area of cross-over is small – can exist side by side”.

The draft became a bill (“amendment bill”), which was introduced to parliament and sent to a select committee for the hearing of submissions. Two submissions suggested that section 182 of the FPA should be incorporated into the [PRA] (57 – W R Atkin and 104 – Family Law Section of the NZLS). One submission commented that the provisions must be flexible enough to capture attempts to create new ways of avoiding the [PRA] and that section 182 of the FPA needed consequential amendment (95 – Wendy Parker).

In the 2 March 1999 departmental report on the submissions, the MoJ officials commented-

“As mentioned in our separate report on trusts (MPA/MJ/103), the original predecessor of section 182 of the Family Proceedings Act 1980 was intended to avoid injustice arising out of fault-based divorce by preventing the “guilty” spouse continuing to enjoy property provision made for him or her by the other on the assumption that the marriage would continue. In recent years, section 182 has been utilised to permit the variation of trusts in which the applicant spouse is a discretionary beneficiary. It is not clear, however, whether the application of section 182 to discretionary trusts would be upheld by the Court of Appeal.

We do not favour redrafting section 182 and incorporating it into the [PRA]. The proposed new sections 44A – 44F recognise that the transfer of property to a trust may occur for legitimate reasons but can have an adverse impact on the claim or right of a spouse. They seek to preserve the trust to fulfil those legitimate purposes by not permitting the transfer of capital from the trust but providing an alternative means of compensating the affected spouse.

In addition, we note that under section 33(3)(m), the Court has power to vary the terms of any trust or settlement in order to give effect to the principal orders it makes under the 1976 Act, including the new trusts and companies provisions. This power does not seem to have been used by the Courts in any reported cases, although there are some obiter comments suggesting the manner in which the power could be used (Dick v Dick [1995] NZFLR 972). With the incorporation of the new sections 44A – 44F, the Court may feel less constrained in its use of section 33(3)(m).”

The amendment bill was the subject of a Supplementary Order Paper (No.25), on which submissions were called. One submission stated that it would be useful for the power in section 182 to adjust property settlements to be available when a marriage is effectively at an end, not just on the legal termination of marriage (165 – Janice Lowe).

In the 16 August 2000 departmental report on the submissions, the MoJ officials commented-

“Section 182 allows the court on the dissolution of a marriage to inquire into any property or maintenance agreement between the spouses, or any ante-nuptial or post-nuptial settlement on the parties, and make orders concerning the application of property settled or vary the terms of any settlement. The provision has a long history dating back to a 1859 English statute. It was originally intended to avoid injustice arising out of fault-based divorce. In recent years it has been used by the courts to vary the terms of a trust in which the applicant spouse was a beneficiary. However, there are indications that the application of the provision to discretionary trusts may not be upheld by the Court of Appeal. We therefore have reservations about extending its scope.”

In its 23 July 2019 report, the Law Commission said in paragraph 11.25-

“Section 182 of the Family Proceedings Act is … out of step with the
PRA’s principles and procedures. Section 182 gives the court a very wide discretion to
vary a trust, in contrast to the much narrower jurisdiction under section 44C of the PRA,
which prevents a court from interfering with the capital of a trust, but section 182 only
applies to partners who were married or in a civil union. It does not apply to de facto
relationships as the PRA does. Further, a court can only make orders under section 182
after making an order dissolving the marriage or civil union. In contrast, a court can
make orders under the PRA after the partners have separated but before formal
dissolution. “

Since the Government’s Response to the Law Commission’s report was not to implement its recommendations, the issue of the intersection of section 182 of the FPA and section 44C of the PRA is not going to be resolved any time soon. However, the Law Commission’s report does ensure that MoJ officials must at least think before saying “No” to the question “Does something need to be done to align this provision and section 182 of the Family Proceedings Act 1980?”.

2019

Health and Safety in Employment Act 1992

The Royal Commission on the Pike River Coal Mine Tragedy published its report in 2012. In Volume 1, page 33, the Royal Commission said-

“The Health and Safety in Employment (Mining – Underground) Regulations 1999 often provide that the employer must ‘take all practicable steps’ to comply with the regulations. This formula, which makes sense in the HSE Act [Health and Safety in Employment Act 1992], makes no sense when applied to the mandatory requirements of the regulations, such as the requirement to provide a second egress from the mine.”

This was a surprising thing for the commission to say. It indicated that neither the commission nor its staff had heard of the legal principle that regulations must fall within the scope of the statute under which they are made or of the legal consequence that regulations falling outside the scope of the statute are disallowable.

Regulation-making powers in the HSE Act

The regulation-making powers in the HSE Act were contained in sections 21 to 23.

Sections 21(1)(a), 22, and 23 were a package. Section 21(1)(a) said that regulations could be made imposing duties relating to health or safety on specified people; section 22 described the specified people in more detail; and section 23 stated the 14 (in 1999) areas to which the regulations could relate. The 14 areas are set out at the end of this article.

Section 21(1)(b) empowered the making of regulations providing for any other matters contemplated by, or necessary for giving full effect to, the HSE Act.

How the regulation-making powers were used to make the Health and Safety in Employment (Mining – Underground) Regulations 1999

As an example, take the proposal for a regulation imposing a duty to provide every mine with a second egress.

Was there power to make such a regulation under section 21(1)(a)? There was not, because none of the language describing the 14 areas could be stretched to cover the requiring of a second egress from every mine.

Was there power to make such a regulation under section 21(1)(b)? Regulations made under that provision could provide for matters contemplated by, or necessary for giving full effect to, the HSE Act. Providing a second egress in every mine could be seen as contemplated by section 6(a), which said that every employer “shall take all practicable steps to provide and maintain … a safe working environment”. What is immediately apparent is that section 6(a) did not say that every employer “must provide and maintain … a safe working environment”. What is also immediately apparent is that “shall take all practicable steps”-

• is not the same as “must”
• describes a different obligation from that connoted by “must”
• describes a lesser obligation than that connoted by “must”.

So could the Health and Safety in Employment (Mining – Underground) Regulations 1999 have said that every employer must provide a second egress? Obviously, they could not, because there was no regulation-making power to do so. The only regulation-making power there was required the regulations to say that every employer shall take all practicable steps to provide a second egress. If the regulations had said that every employer must provide a second egress, they would have been outside the power given by the Act and open to disallowance.

Somebody should have pointed out to the commission, before it published its report, that it was making a recommendation that could not lawfully be implemented.

Section 23’s 14 areas: none could be stretched to cover the requiring of a second egress from every mine

(a) the registration, licensing, or certification of plant, and places of work:

(b) the recording, notification, and investigation of the occurrence in places of work of events that might have caused a person serious harm:

(c) the notification of the use of plant, places of work, substances, or work, of a particular kind:

(d) the notification of the use of plant, places of work, or substances in a particular manner or for a particular purpose:

(e) persons engaged in particular work or activities to hold, or employ people holding, certificates of competence or registration:

(f) the issue, renewal, cancellation, and suspension of certificates of competence, and the examination of applicants for certificates of competence:

(g) the recognition and withdrawal of recognition of organisations issuing certificates empowering other organisations, and individuals, to undertake functions and tasks:

(h) the issue, renewal, cancellation, and suspension by recognised organisations of certificates empowering other organisations, and individuals, to undertake functions and tasks:

(I) the undertaking of functions and tasks by the holders of certificates issued by recognised organisations:

(j) the payment of fees in respect of—

(i) matters provided for in this Act; and

(ii) acts performed and services provided under this Act:

(k) the granting of exemption from any obligation or requirement under the regulations:

(l) the approval, and withdrawal of approval, of testing institutions:

(m) the procedures of inquiries under section 27:

(n) the provision of accommodation for employees, contractors, subcontractors, or employees of contractors or subcontractors.

2012

Land Transport Act 1998

Section 2(1) of the Land Transport Act 1998 (LTA) contains the following definitions-

“blood specimen collecting instrument means …

(b) an instrument of a kind designed for the taking of blood specimens approved by the Minister of Police (after consulting the Science Minister and the Minister of Transport) by notice in the Gazette

blood specimen collecting procedure means the taking of a blood specimen by a blood specimen collecting instrument in a manner prescribed by the Minister of Police by notice in the Gazette”.

(italicisation added)

These definitions make you think that you can search the Gazette to find notices approving an instrument and prescribing a manner. If you do search the Gazette, though, you do not find such notices. What you find, in Gazette notice number 2014 dl6573 published in issue 130 on 23 October 2014, is a notice of the making of the Land Transport (Blood Specimen Collecting Instrument and Procedure) Notice 2014 (2014/319) (BSCIP notice). The BSCIP notice purports to do the approving and prescribing that the LTA definitions require to be done by notice in the Gazette.

No Act defines “notice in the Gazette”. The plain meaning of the term and the fact that the Gazette is the government’s newspaper suggest that a notice in the Gazette will contain the text of the matter being notified. On this approach, the BSCIP notice is not a notice in the Gazette. What the BSCIP notice seems to be is a legislative instrument – it fits paragraph (b) of the definition of “legislative instrument” in section 4 of the Legislation Act 2012 (LA) and its making was notified in the Gazette as is required for legislative instruments by section 12 of the LA.

The upshot is that the police are using a blood specimen collecting instrument and blood specimen collecting procedure that have not been respectively approved and prescribed as Parliament intended.

Some may dismiss this point as a case of form over substance, but that is not so. There are real differences in the drafting and making of notices in the Gazette, on the one hand, and legislative instruments, on the other. When Parliament specifies which law-making document it wants used, it is signalling a substantive choice that officials cannot lawfully ignore.

2016

Wills Act 2007

Introduction

It should be possible to make wills with digital signatures in New Zealand.

The Wills Act 2007 already departs from the traditional rules on will-making and the digital signatures idea builds on that departure.

It seems that very few people are aware that the law on will-making has changed. For instance, the Perpetual Guardian website says “For a Will to be valid in New Zealand, three people need to be involved in the signing process – the Will maker and two independent adult witnesses. All three need to be present at the same time so that the Will maker can sign in the presence of the two witnesses and the witnesses can sign in the presence of the Will maker and each other”.

In fact, the sentence “All three need to be present at the same time so that the Will maker can sign in the presence of the two witnesses and the witnesses can sign in the presence of the Will maker and each other” is wrong. It does not reflect the new section 11(4)(a)(ii) inserted in the Wills Act in 2012.

Traditional rules

The traditional rules were, first, that the will-maker had to be together with 2 other people when a will was made; second, that the 2 people were there to witness the will-maker signing the will; and, third, that the 2 people signed the will as evidence of what they saw. Some narrow exceptions were made in the nineteenth century, partly in statute law and partly in case law.

How traditional rules have changed

New section 11(4)(a)(ii) turns all this on its head. The exceptions have become rules in themselves and are placed alongside the traditional rules as equally valid ways of making wills.

It is now permissible for the will-maker to sign the will at any time. The will is valid if the will-maker later acknowledges to 2 people that the signature is his or her own. It is also permissible for someone else to sign the will. The will is valid if the will-maker later acknowledges to 2 people that the will-maker directed the other person to sign. The 2 people sign the will as evidence that an oral, visual, or other acknowledgement took place. No-one has to write anything on the will explaining what went on.

Why they were changed

The Ministry of Justice advised that the rules should be turned upside-down in this way. The reason was its desire to help young people make wills. The Ministry officials’ report of 18 May 2011 to the parliamentary select committee gives these examples of the persons who would benefit-

“Example A

Julia receives her will by post from her lawyer. She is excited to get it and signs it immediately. She then reads in her lawyer’s letter that her signature must be witnessed. Julia doesn’t want to make the will look messy by signing it again and also doesn’t want to incur extra fees by asking for a new copy from her lawyer. She shows her two flatmates the will and explains what she’s done. Her flatmates are satisfied that it’s her will and her signature is on it. The flatmates sign the will as her witnesses.”

“Example B

In June 2007 Bill was running late for a flight to the UK but he wanted to make sure his new will was in place before he got on the plane. He dashed into his lawyer’s office with the will he had already signed to save time. Bill’s lawyer was familiar with case law that said a will-maker can acknowledge a pre-existing signature on a will. Since her client was in a hurry, she checked that the signature on the will was Bill’s own and asked that he acknowledge it in the presence of her and another witness. The two witnesses then signed the will.”

The Wills Act 2007 as it was before the 2012 changes expressed the traditional rules in plain language and so protected all will-makers, young and old. However, once the Act was passed, the Ministry came under pressure to prefer the needs of the young.  Academia largely lead the charge on the Act, decrying whatever it did not like as “drafting errors” and ignoring other law that got in its way (such as section 17(1)(e) of the Interpretation Act 1999 preserving the effect of the Wills Amendment Act 1852 for persons dying on or after 1 November 2007).

 As a result, the law-making rules now focus on what is convenient for young people and create yet another avenue by which older people can be subjected to financial abuse.

Conclusion

Having taken its youth-favouring approach, the Ministry now needs to stand behind it.  Since the 2012 law change is unknown – as amply demonstrated by the Perpetual Guardian website – something more is needed. Surely welcoming the idea of digital signatures for wills fits the Ministry’s specifications.

2015

The next 2 articles explain in detail the risks resulting from the 2012 amendments.

19 March 2010 (NZ Lawyer Issue 132)

Statutes Amendment Bill hides gold-digger’s charter

Margaret Nixon is concerned about elder abuse

The Statutes Amendment Bill (“SAB”) that is currently before the Government Administration select committee amends section 11 of the Wills Act 2007 by replacing this –

“(3) The will-maker must –

(a) sign the document; or

(b) acknowledge that a person directed by the will-maker signed the document in the will-maker’s presence.

(4) At least 2 witnesses must –

(a) be together in the will-maker’s presence when the will-maker complies with subsection (3); and

(b) each state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with subsection (3); and

(c) each sign the document in the will-maker’s presence.”

(“existing section 11”)

with this –

“(3) The will-maker must –

(a) sign the document; or

(b) direct another person to sign the document on his or her behalf in his or her presence.

(4) At least 2 witnesses must –

(a) be together in the will-maker’s presence when the will-maker –

(i) complies with subsection (3); or

(ii) acknowledges that –

(A) he or she signed the document earlier and that the signature on the document in his or her own; or

(B) another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) each sign the document in the will-maker’s presence.”

(“proposed section 11”).

The amendment is in clause 196(1), which is in Part 47 of the SAB.

There are objections to this amendment that the select committee will not be told about. This article records the objections.

Background

The Wills Act 2007 (“2007 Act”) came into force on 1 November 2007. It replaced the statute that previously governed will-making in New Zealand, the UK Wills Act 1837 (“1837 Act”).

The High Court Rules (“HCR”) on wills were also amended. The amendments applied to persons who died on or after 1 November 2007. The un-amended rules continued to apply to persons who died before 1 November 2007. The HCR were completely replaced on 1 February 2009, which means that the new rules on wills have different numbers. In this article, the HCR on wills are referred to as the “old rules” (rules as on 31 October 2007), the “new rules” (rules as on and after 1 November 2007), and the “2009 rules” (rules as on and after 1 February 2009).

Purpose of section 11

The purpose of section 11 of the 2007 Act is to repeat the elements of section 9 of the 1837 Act. Section 9 reads –

“No will shall be valid unless it shall be in writing, and executed in manner hereinafter mentioned; (that is to say), it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary.”

Proposed section 11(4)(a)(ii)(A)

Proposed section 11(4)(a)(ii)(A) is not found in section 9.

Section 9 deals first with signing a will. It says that the will “shall be signed…by the testator, or by some other person in his presence and by his direction”. These words establish that the section concerns 2 situations – the will-maker signs the will or another person signs the will as directed by the will-maker. The section goes on to deal with witnessing. It says “such signature shall be made … by the testator in the presence of …witnesses”, referring to the will- maker signing the will, and “such signature shall be … acknowledged by the testator in the presence of … witnesses”, referring to the will-maker acknowledging the other person’s signature in the presence of witnesses.

However, English judges decided in the nineteenth century that section 9 allowed a will- maker to acknowledge in the presence of witnesses a signature already on the will as his or hers. The judges turned the 2 situations in the first part of the sentence – the will-maker signing or directing signature – into 3 situations in the second part of the sentence – the will- maker signing, the will-maker acknowledging the directed signature, and the will-maker acknowledging a signature as his or hers.

Nineteenth century New Zealand courts followed the English ones (In the will of Campbell (1895) 13 NZLR 340).

The New Zealand government signalled in 1909 that the proper interpretation of section 9 was that the will-maker must, in the presence of witnesses, sign the will either personally or by acknowledging another person’s signing on the will-maker’s behalf. It did this by way of an amendment to the Code of Civil Procedure in the Judicature Act 1908. The 1908 Code contained form 34, Affidavits before the Granting of Probate, which did not require the deponent to swear anything about how the will-maker signed the will. Form 34 was replaced in 1909. The new form 34 required the deponent to swear “That the testator executed the said will … by signing his name at the foot or end thereof in the presence of me and of … the other subscribed witness thereto, both of us being present at the same time, and we thereupon attested and subscribed the said will … in the presence of the said testator” (Gazette, 1909, p.647). Form 34 was eventually slightly modified to become form 62 of the old rules.

Proposed section 11(4)(a)(ii)(A) ignores the New Zealand government’s amendment in the twentieth century in favour of the approach of English judges in the nineteenth century. Reverting to the nineteenth century is a bad idea for twenty first century New Zealand.

It is bad because New Zealand currently has a burgeoning population of elderly people. Many of them live in retirement villages or alone in their own homes, under the influence – perhaps at the mercy – of caregivers and relatives. If a caregiver says “This is your signature, isn’t it, dear?”, some elderly people will automatically say “Yes”. Two other caregivers standing nearby can sign as witnesses – and the will is validly executed. Who is to know whether or not the caregiver put the signature there?

The will could be challenged on the ground that the elderly person did not have will-making capacity, but not enough is known about the mental abilities of the elderly to make it safe to rely on challenges to wills based on what the person understood at a particular point in time. The mental responsiveness of elderly people can vary from day-to-day and at different times of the day. Physical ailments that are common in elderly people, such as urinary tract infections and kidney failure, can affect their mental state.

The idea is just as bad for younger people. There is no need for them to be able to acknowledge a signature already on their will as theirs. Literacy levels are high enough in New Zealand in the twenty first century for will-makers to understand a written instruction that they must sign their wills in the presence of witnesses.

Finally, it is a bad idea to make incorrect judicial statutory interpretation into statute law. Legislation should restore Parliament’s original intention, if the common law has not corrected the misinterpretation in later cases.

Proposed section 11(4)(a)(ii)(B)

Proposed section 11(4)(a)(ii)(B) resolves an ambiguity in section 9 that is preserved in existing section 11. The ambiguity is whether a person signing at the direction of the will- maker must do so in the presence of the witnesses or may do so in the presence only of the will-maker.

One way to resolve the ambiguity is to require the will-maker to both direct the person to sign and acknowledge the signature in the presence of witnesses. This is the tenor of the changes to form 34 made in 1909.

The other way is to recognise, as a valid method of executing a will, a will-maker acknowledging in the presence of witnesses a signature on a will put there earlier by some other person. This is the way adopted by proposed section 11(4)(a)(ii)(B).

The way chosen to resolve the ambiguity makes life even easier for the caregivers and relatives of elderly people. They can simply say “You got me to sign this for you this morning, didn’t you, dear?” and, with the addition of a couple of signatures from bystanders who see the elderly person blink in reply, the person’s will is validly executed.

Existing section 11(4)(b)

Section 9 says that the witnesses must bear witness to (“attest”), and sign (“subscribe”), the will in the will-maker’s presence. The section then says that “no form of attestation shall be necessary”.

The English courts decided in the nineteenth century that section 9 meant that a will is valid even if no statement about the witnesses’ attestation appears on the document. Again, the New Zealand courts followed the English ones.

However, to reach this interpretation, the courts had to ignore the fact that the section says that the witnesses must attest the will; consequently, “no form of attestation shall be necessary” could only be a legislative instruction that the attestation did not have to take a particular form.

The 2007 Act restores Parliament’s intention by expressing the attestation requirement in section 114(4)(b).

Proposed section 11 drops the attestation requirement. Dropping the requirement ignores the interpretation that New Zealand courts in the twenty-first century have given to subsection (4)(b). In In the estate of Kenneth Stevenson, His Honour Justice MacKenzie said –

“…on applying s 11(4)(b), the Court should adopt a liberal approach to the requirement to state on the document the fact of presence. No particular form of words should be required. That approach is consistent with other decisions of this Court to which I have been referred. Particular forms of attestation clause were held to comply with s 11(4)(b), by Asher J in R Lincoln High Court AK CIV-2009-404-003402 17 July 2009 and by Allan J in Re Fry High Court NEL CIV-2009-442-298 21 September 2009. Both of these decisions reflect an approach which does not place emphasis on technicalities as to the wording of the attestation clause.” (HC NP CIV-2009-443-432 22 October 2009, paragraph 11).

Effect on HCR

Proposed section 11 is deemed to have come into force on 1 November 2007 (clause 169(2)). However, the new rules and the 2009 rules implement existing section 11 and the old rules implement section 9 as it is stated in existing section 11. Until the old rules, the new rules, and the 2009 rules are aligned retrospectively with proposed section 11, the rules and the section will be inconsistent.

The changes required are as follows –

632 (new)/127.2 (2009)

The language “signed … as described in section 11(3)” in the definition of “executed” will need amendment. This is because the only way there can be evidence that the will-maker actually signed the will or actually directed some other person to sign it is if the witnesses were present when either of these actions was done. There can be no evidence that the will-maker actually signed the will or actually directed some other person to sign it if the only thing the witnesses see or her is the will-maker acknowledging that he or she signed the will earlier or directed some other person to sign the will earlier.

647 (new) /27.17 (2009)

The language “evidence given under rule 646 satisfying the Court that the will complies with section 11(3)” will need amendment. The only persons who can give evidence under the rule are an attesting witness or a person present when the will was executed (664 (old)/646(2)(new)/27.16(2) (2009)). If the will was executed by the will-maker acknowledging that he or she signed the will earlier or directed some other person to sign the will earlier, the attesting witness or a person present cannot give evidence that the will-maker actually signed the will earlier or actually directed some other person to sign the will earlier.

Form 62 (old)/Form 62(new)/Form PR 12 (2009)

Paragraph 1 – the language “I am one of the witnesses to/I was present at the signing of” will need amendment. If the will is executed by the will-maker acknowledging that he or she signed the will earlier or directed some other person to sign the will earlier, the fact that a person was present at the signing is not relevant. The person has to be present when the will-maker acknowledges to other people that he or she signed the will earlier or directed some other person to sign the will earlier.

Paragraph 2 – new statements BA, BB, E, and F will be needed to cover the situations of the will-maker acknowledging that he or she signed the will earlier or directed some other person to sign the will earlier.

Paragraph 3 – the lead-in words will need to be amended to refer to the new statements in paragraphs 2 and 3.

New statements will be needed to cover the situations of the witnesses being present not at “The signing” but at “The acknowledging”.

The amendment that is needed

Proposed section 11(4)(a)(ii)(A) and (B) favour a statutory interpretation made by English judges in the nineteenth century over a decision made by the New Zealand government in the twentieth century. They expose elderly people to fraud or coercion, ignore the fact that New Zealand is a literate country, necessitate amendments to the HCR, and create inconsistency until the amendments are made.

The dropping of existing section 11(4)(b) favours a statutory interpretation made by nineteenth century English judges over decisions made by twenty first century New Zealand judges.

All this is undesirable and unnecessary. Our own High Court judges have told us that the amendment needed to the 2007 Act is to extend section 14 to wills made before 1 November 2007.

Section 14 reads-

14 High Court may declare will valid

(1) This section applies to a document that –

(a) appears to be a will; and

(b) does not comply with section 11; and

(c) came into existence in or out of New Zealand.

(2) The High Court may make an order declaring the document valid, if it is satisfied that

the document expresses the deceased person’s testamentary intentions.

(3) The Court may consider –

(a) the document; and

(b) evidence on the signing and witnessing of the document; and

(c) evidence on the deceased person’s testamentary intentions; and

(d) evidence of statements made by the deceased person.

The section was new in the 2007 Act. If the nineteenth century English judges had had a power like that in section 14 available to them, perhaps they would not have had to interpret section 9 of the 1837 Act in ways that do not accord with its language.

The problem with section 14 is that it does not apply to wills made before 1 November 2007. This is because section 40(2)(k) of the 2007 Act says it does not.

[Section 40(2)(k) should not have been in the Act as passed. However, Ministry of Justice officials refused to take the law drafter’s advice to remove it. The drafter told the junior official that the Supplementary Order Paper on the Wills Bill should omit clause 40(2)(k). Her reply was “[Her team leader] says no” and so the paragraph stayed. This example of officials’ intransigence is sufficient to illustrate why legislation is sometimes not fit for purpose.]

Section 40(2)(k) should be repealed, which is, in fact, what twenty-first century New Zealand judges have asked for. In In the estate of Kenneth Stevenson, His Honour Justice MacKenzie said –

“I note that both Asher J in Re Lincoln and Allan J in Re Fry have drawn attention to the inability of the Court to declare valid a will executed prior to November 2007, to which I have also referred. Both have expressed the view that there is an apparently unintended gap which requires legislative attention. I join with them in that expression of view.” (paragraph 16)

12 December 2008 (NZ Lawyer Issue 103)

The Wills Act 2007: The First Year

The Wills Act 2007 commenced on 1 November 2007, replacing the Wills Act 1837 (UK).

Margaret Nixon considers how that first year has been.

The High Court Amendment (Wills Act 2007) Rules 2007 (the 2007 rules) updated the wills rules and forms in the High Court Rules (HCR). The 2007 rules were necessary because convention prevents HCR amendments being included in bills. A legislative package cannot consist of Act amendments and the necessary consequential HCR amendments. For wills matters at least, this approach should be revisited.

Plain language

The Wills Act 2007 (the 2007 Act) and the new rules and forms use plain language. Plain language does not always please practitioners; the word “overrides” in section 8(6), for example, greatly puzzled one senior partner. However, Dobbie’s Probate and Administration Practice (LexisNexis, Fifth edition, 2008) welcomes the language, saying, “Non-lawyers, presented with an [old form] affidavit in convoluted and archaic language, could be excused for wondering whether they had stepped through a time portal back to a time before the 1914-18 War (The First World War). It is surely not too much for clients to expect to be able to read and understand important documents such as affidavits given to them for signing.”

Section 11(3)

Section 11(3) of the 2007 Act reads:

“(3) The will-maker must –

(a) sign the document; or

(b) acknowledge that a person directed by the will-maker signed the document in the will-maker’s presence.”

Critics say section 9 of the Wills Act 1837 (UK) (the 1837 Act) allows the will-maker to acknowledge a signature already on the will as the will-maker’s, but section 11(3) does not. Analysis of the former statutory language, in section 9 and old Form 62, and the common law produces different answers to the question of what was allowed.

Section 9 says a will “shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction; and such signature shall be made or acknowledged by the testator in the presence of [two] or more witnesses”.

The words “shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction” show that the section concerns two situations: where the will-maker signs the will, or another person signs the will as directed by the will-maker. The words “such signature shall be made … by the testator” mean that the will-maker may sign the will. The words “such signature shall be … acknowledged by the testator” mean that the will-maker may acknowledge the other person’s signature. But must the words also mean that the will-maker may acknowledge the will-maker’s own signature?

To interpret the words that way turns the two situations of the will-maker signing the will or another person signing the will into three situations: the will-maker signing the will, the will-maker acknowledging the other person’s signature, and the will-maker acknowledging the will-maker’s own signature. A more obvious interpretation is that the two situations of the first part of the sentence stay two situations in the second part, allowing the will-maker only to sign the will or to acknowledge the other person’s signature.

The language of old Form 62 (the affidavit of due execution) recognises only one means of proper execution, ie the will-maker signing the will. It does not recognise the will-maker acknowledging another person’s signature or the will-maker acknowledging the will-maker’s own signature.

English common law established that a will is properly executed if a will-maker acknowledges a signature already on the will as the will-maker’s. New Zealand common law followed (Re Campbell (1895) 13 NZLR 340). The cases show that the situation of a will- maker acknowledging an existing signature arises in a great variety of circumstances.

On the question of whether a will is properly executed by the will-maker acknowledging a signature already on the will as the will-maker’s, the former statutory language does not give a clear answer; the common law says “yes”, and section 11(3) of the 2007 Act says “no”. Is it such a bad thing that section 11(3) says no? There are reasons for saying that the subsection is fine as it is.

First, most people in New Zealand are literate enough now to understand an instruction not to sign a will until they are in the presence of their witnesses.

Second, the risks of coercion and fraud are greatly reduced if proper execution does not include a will-maker acknowledging a signature already on a will as his or hers. Our burgeoning population of elderly people living in retirement villages or alone in their own homes deserves as much protection as possible from these risks.

Finally, section 14 of the 2007 Act gives the High Court a new power to declare a will valid even if it was not properly executed. The great variety of circumstances for which the common law developed the rule that proper execution includes a will-maker acknowledging a signature already on the will as the will-maker’s can now be considered under section 14.

If these reasons are ignored and section 11(3) is amended, old Form 62 and new Form 62 (Affidavit of valid execution) will need amendment also (preferably in the amending bill).

Section 11(4)(b)

Section 11(4)(b) reads –

“(4) At least 2 witnesses must – …

(b) each state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with subsection (3)…”

Critics say section 9 of the 1837 Act does not require the witnesses to state on the document, in the will-maker’s presence, that they were present when the will-maker signed the will or acknowledged a signature on the will. Again, the statutory language and the common law have diverged.

Section 9 says the witnesses “shall attest and shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary”.

Section 9 says the witnesses must bear witness to (“attest”), and sign (“subscribe”), the will in the will-maker’s presence. The section then says “no form of attestation shall be necessary”. Since the witnesses must in fact attest the will, the words mean that the attestation does not have to take a particular form.

The common law has interpreted section 9 as saying that a will is valid even if no statement about the witnesses’ attestation appears on the document.

Is it such a bad thing if section 11(4)(b) explicitly requires a will’s witnesses to state on the document, in the will-maker’s presence, that they were present when the will-maker signed the will or acknowledged a signature on the will? Section 11(4)(b) does not require that the statement take a particular form, but a model is available in Practice Note (1969) NZLR 1075. For the cases in which section 11(4)(b) is not observed, section 14 is available.

Section 13

Section 13 concerns witnesses affected by dispositions made to them.

The Law Commission recommended in its 2002 report, Some Problems in the Law of Trusts, that “we should stop pretending that charging provisions in wills are legacies” (NZLCR 79, 2002, paragraph 19). The New Zealand Law Society made the same point in its submission on clause 13 of the Wills Bill.

The Select Committee did not recommend a change to the bill, and the Supplementary Order Paper on the bill did not include the change. Instead, the Trustee Amendment Bill introduced in September 2007 amended section 13. The Trustee Amendment Bill had not been passed when Parliament was dissolved in October 2008.

This noncontroversial change to the law could have been made while the Wills Bill was before Parliament. It is to be hoped that it will be made eventually.

Section 15

The language of section 21 of the 1837 Act does not allow changes to a will to be made in a document separate from the will itself.

Section 15 rewrites section 21. Because section 21 does not allow changes to a will to be made in a separate document, section 15 does not either. However, the old forms were applied as if section 21 did allow changes to a will to be made in a separate document. This came about because of the reference to codicils in old Form 51 (Affidavit to lead grant of probate) and old Form 52 (Affidavit to lead grant of letters of administration with will annexed). A codicil means a document that supplements a will. Supplementary documents that changed wills were accepted as making valid changes.

Section 15 does not reflect a practice that the old forms recognised. The only way to deal with this situation in the new forms was to ignore section 15 and recognise the practice. Accordingly, new Forms 51 and 52 say, “There is a separate document associated with the will. I/We* believe the document dated [date] and marked ‘[specify]’ now produced and shown to me/us* is the separate document.”

Section 15 should be amended to give a statutory basis for the paragraph in the forms by the insertion of the following paragraph:

“(ba) the change is described in a document –

(i) associated with the will; and

(ii) signed and witnessed as described in section 11(3) and (4)…”

It is to be hoped that this straightforward amendment will be made. At the same time, the word “codicil” should be removed from the 2007 Act to avoid any further confusion. The reference in section 8(3)(e) can be replaced by “a document that supplements a will” and the reference in section 17(1)(b) can be replaced by “writes a document”.

Section 18(2)(a)

Section 18(2) lists the provisions that override or qualify the rule that a will is revoked by a subsequent marriage or civil union. The subsection is sensible in itself, but it is odd that section 18(2)(a) has to refer back to section 10 (persons under 18 who agree to marry or enter civil union). Section 10 is about both the capacity to make a will and the effect on a will of entering a marriage or civil union. It should be split up, with the capacity elements being included in section 9 and the effect elements being included in section 18. All three paragraphs of section 18(2) could then refer forward. It is to be hoped that this simple drafting amendment will be made.

Section 32

Section 32 is new. It allows the Court to use external evidence to interpret words in a will that make the will or part of it meaningless, ambiguous, or uncertain. The section was applied in Glass v Anthony (9 July 2008, High Court, Christchurch CIV 2008-409-000455, Justice Fogarty). Counsel submitted that the section “possibly extends the case law”. The decision contains no information on the way in which the section may extend the case law. In any event, the Court had no difficulty in applying the section to the facts of the case.

Section 33

Section 33 defines a military or seagoing person as –

“(a) a member of the Armed Forces –

(i) on operational service; or

(ii) at sea; or

(b) a seafarer at sea…”.

Section 4(b) of the Wills Amendment Act 1955 describes the equivalent persons as:

“(i) A member of any emergency force; or

(ii) A member of any part of the New Zealand armed forces, or of any Commonwealth or Allied armed force, who is serving in operations against an enemy; or

(iii) A member of any armed force who is in actual military service or who is so circumstanced that if he were a soldier he would be in actual military service; or

(iv) A mariner or seaman who is at sea…”.

The law permits these persons to make wills that are acceptable even though they do not comply with the statutory formalities.

Section 4(b) allows two groups to make informal wills. One group – subparagraphs (i) to (iii) – is armed forces personnel when war or other military operations are imminent, and the other group – subparagraph (iv) – is naval forces, the merchant service, and civilians employed at sea (Nevill”s Laws of Trusts, Wills and Administration, ninth edition, 2004, page 316). The 2007 Act extends the first group. Members of the Army or Air Force for whom no war or other military operations are imminent but who are travelling by sea may now make informal wills.

While this extension does no harm, it does raise questions. If Army or Air Force personnel can make informal wills just because they are at sea, what about customs, fisheries, immigration, and police officers who spend periods at sea in the course of their duties – should they not also be allowed to make informal wills? Where should the line be drawn?

Conclusion

The 2007 Act, with some minor amendments, should last until developments in communications technology force some rethinking about the formalities of will-making.

Sequel

In fact, none of the minor amendments recommended in this article were made. Instead, in 2012, the completely unnecessary amendments described in the preceding article were made. And, in 2013, this amendment was made to the section 40A inserted in 2012-

“Section 40A amended (Application of Wills (Validity) Amendment Act 2012)

In the heading to section 40A, delete ‘(Validity)‘.”

(Wills Amendment Act 2013 No 138).

Since the drafter of the 2012 amendments could not get right the name of the bill he was drafting, one has to question the quality of the amendments to the Wills Act 2007 that he drafted.

One such amendment was the replacement of section 11(4)(b) with section 11(5) and (6). Section 11(4)(b) read-

“(4) At least 2 witnesses must – …

(b) each state on the document, in the will-maker’s presence, that the witness was present when the will-maker complied with subsection (3)…”.

Section 11(5) and (6) read-

“As evidence of compliance with subsection (4), at least 2 witnesses may each state on the document, in the will-maker’s presence, the following:

(a) that he or she was present with the other witnesses when the will-maker—

(i) signed the document; or

(ii) acknowledged that he or she signed the document earlier and that the signature on the document is his or her own; or

(iii) directed another person whose signature appears on the document to sign the document on his or her behalf in his or her presence; or

(iv) acknowledged that another person directed by him or her signed the document earlier on his or her behalf in his or her presence; and

(b) that he or she signed the document in the will-maker’s presence.

(6) No particular form of words is required for the purposes of subsection (5)”.

Section 11(5) and (6) were included because of the squawks of practising and academic lawyers who were outraged that section 11(4)(b) carried forward the requirement in section 9 of the Wills Act 1837 that a will must be attested. However, instead of simply removing the requirement for a will to be attested, the drafter included 2 pointless subsections of non-law. Subsection (5) tells people what they “may” do and subsection (6) tells people that, when they are doing what they like, they can use any words to do it.

These 2 pieces of information have no place in a statute. All they achieve is confusion. Eight years after the Wills Amendment Act 2012, a case before the High Court involved applicants who went to court because they thought that “may” in section 11(5) might mean “must” (Estate of Andrew William Day (Lowe v Day) [2020] NZHC 2101 [19 August 2020]. One has to wonder if the squawkers are proud of getting confusing non-law onto the statute book.

Unit Titles Act 2010

Insuring units separately

The following 2 methods are available for unit owners who wish to insure their units separately—

1. method 1: the body corporate takes out a principal insurance policy as required by section 135(1) of the Unit Titles Act 2010 (the Act) and the unit owner takes out an additional individual insurance policy as allowed by section 137(1)(a);
2. method 2: section 137(2)(a) is applied and each unit owner takes out his, her, or its individual insurance policy.

Method 1

The Act imposes a duty as to insurance on the body corporate, ie, all the unit owners (section 76(1)). The body corporate must take out a principal insurance policy that insures all the buildings and other improvements on the base land to their full insurable value (section 135(1)).

The Act gives a discretion – which it describes as a “right” – as to insurance to unit owners. Section 137(1)(a) says—

“(1) Nothing in section 84, 134, or 136 limits the right—

(a) of a unit owner to take out an insurance policy against destruction of or damage to the unit owner’s unit”.

The discretion/right is limited.

The first limit is that the unit owner must not do anything that breaches or in any way undermines any policy of insurance in the name of the body corporate (section 80(1)(k)). It is hard to know what this limit means. The discretion/right authorises double insurance, which seems to be a perfect example of the breaching or undermining of one insurance policy by another.

The second limit is that the policy must be against destruction of or damage to the unit. It appears that the unit owner cannot take out an insurance policy simply against loss of rent. Presumably, though, loss of rent resulting from the destruction of or damage to the unit could be covered. As with the previous limit, this one is a bit odd.

The third limit is that the policy must be for the “unit owner’s unit”. The “unit owner’s unit” must mean, at least, the unit owner’s principal unit. It probably also includes any accessory unit in the unit owner’s name, since an “accessory unit” is a subset of a “unit”, as both terms are defined in section 5.

However, does the “unit owner’s unit” also include an accessory unit that is not solely in the unit owner’s name but is held in shares with other unit owners? And, taking that question further, does the Act allow unit owners to own shares in an accessory unit?

These questions arise because of the definitions of “accessory unit” and “unit” in section 5. They read, with emphasis added,—

“accessory unit means a unit that is designed for use with any principal unit (including, without limitation, a garden, garage, car parking space, storage space, swimming pool, laundry, stairway, or passage) and that is shown on a unit plan as an accessory unit”.

“unit, in relation to any land, means a part of the land consisting of a space of any shape situated below, on, or above the surface of the land, or partly in one such situation and partly in another or others, all the dimensions of which are limited, and that is designed for separate ownership”.

An accessory unit is a unit. A unit is a part of land that (among other things) is designed for separate ownership. The Act does not define “separate ownership” but the plain meaning of the term connotes ownership either by one person or by two or more persons as joint tenants or tenants in common.

For a unit owner to own a share in an accessory unit, there would have to be other unit owners of the rest of the shares. But that would not be separate ownership of the accessory unit. Since a unit owner cannot own a share in an accessory unit, a section 137(1)(a) insurance policy cannot cover the so-called share.

If this conclusion is right, the unit owner’s half share in an accessory unit cannot be covered by its separate insurance policy.

However, the matter goes deeper than what can be insured, right to the question of the status of accessory units owned in shares. If the Act does not allow accessory units to be owned in shares, what is their legal status? For example, if the accessory units are driveways owned in shares, what is the legal status of the driveways?

A practical approach would be to act as if the driveways were common property. It is likely that valuers, insurance brokers, and insurance companies would do the same, since their businesses would not normally have to consider driveways owned as shares in accessory units. Treating driveways as common property means that all unit owners would share repair costs equally. That makes sense, as they would all benefit from not only having the driveways in good repair but also looking in a well-maintained state.

The best approach would, therefore, be to treat the driveways as common property, keeping the issue of the legal status of the driveways in mind but not pursuing a resolution unless it becomes vital to do so.

Method 2

Section 137(2)(a) provides—

“(2) Despite section 135(1),—

(a) if the principal and accessory units in the unit plan are stand-alone units, a body corporate may, by special resolution at a general meeting, require each unit owner to insure all the improvements within the boundaries of his or her unit (the body corporate remaining responsible for insuring all improvements within the common property boundaries)”.

The requirements of section 137(2)(a) are as follows.

First, the principal units and accessory units must be stand-alone units. A “stand-alone unit” is defined in section 5 as meaning that “no part of any building in the unit is attached in any way to any building in any other unit”.

Second, a general meeting must be held. A general meeting is either an annual general meeting or extraordinary general meeting (section 88(2)). There is a lot of law to be complied with when organising and holding general meetings (sections 89 to 104).

Third, a special resolution must be passed. This means that 75% of the eligible voters who vote on the resolution must vote in favour of it (section 98(4)).

Fourth, the passing of the special resolution means that the body corporate requires each unit owner to insure all the improvements within the boundaries of his or her unit. “Each” is underlined to emphasise that acting under section 137(2)(a) does not mean that just one unit can be taken out of the principal insurance policy; rather, if one is out, all are out.

Fifth, the body corporate remains responsible for insuring all improvements within the common property boundaries.

If a body corporate were to seek to apply section 137(2)(a), it would have to organise a general meeting attended by all unit owners or their representatives. If only one unit owner wants to insure separately, the effort is likely to be wasted as a 75% majority would not happen. Alternatively, the unit owners could arrange for at least a 75% majority to happen, on the basis that the single unit owner could then do what it liked and the other unit owners could stay with the same insurance company under individual insurance contracts.

However, these questions arise—

• would the insurance company want the unit owners’ business under these circumstances? They would present as individual units but the insurance risk cannot be assessed individually if they share infrastructure – for example, service pipes going up one driveway, across the top, and down the other driveway. Moreover, a unit that shares the infrastructure would be insured by a different insurer;
• since property insurance is difficult to get in Wellington now, why would the unit owners risk their long-term record with a long-held insurance company solely to please a single unit owner?;
• what is the legal status of driveways divided into accessory units in which various unit owners have various shares? This would seem to take them out of the definition of “common property” in section 5, ie, “all the land and associated fixtures that are part of the unit title development but are not contained in a principal unit [or] accessory unit”. However, as discussed above, the Act does not appear to allow unit owners to own shares in accessory units. This issue is purely academic while there is a principal insurance policy that covers “all buildings and other improvements on the base land” (section 135(1)) but the question of what to do about the driveways would at least arise if individual insurance contracts on the units were to be entered into;
• what is the legal status of boundary fences, front brick fences, and letterboxes? If they are common property, would the body corporate be required to insure them? Is that what section 137(2)(a) means by the words “the body corporate remaining responsible for insuring all improvements within the common property boundaries”? What does “within” mean here? Does common property have boundaries?

Section 137(2)(a) presents practical and legal difficulties for bodies corporate and the best approach would, therefore, be not to facilitate its application.

The real answer to these questions lies with MBIE getting the legislative process started by advising the relevant Minister to promote an amendment to the Act repealing section 137(1)(a) and section 137(2)(a). Should MBIE actually do its job, what happens next could be anything (including nothing).

It seems obvious that unit owners should not be able to insure separately from the body corporate. It is likely that section 137(1)(a) and (2)(a) are in the Act because the insurance industry in the 1970s (1972 Act) and the 2000s (2010 Act) made a fuss about losing business (although their argument was probably a pseudo-ethical one about customers having a right to choose their insurer given their duty of utmost good faith). It is likely that the awkward limitations on the discretion/right in section 137(1)(a) came about in a policy or drafting effort to somehow make the obvious double insurance work. However, the Insurance Council of New Zealand did eventually come to its senses in 2013, when it recommended to MBIE that section 137(2)(a) should be repealed (see below). Nothing has so far come of that recommendation.

Comment of 14 February 2013 on MBIE’s Unit Titles Amendment Bill Consultation Document (Pages 2 to 3)

“Following the Canterbury earthquake, multi unit … properties have experienced major difficulties as a result of unit holders insuring separately from the other owners. The problems include:

– Different policy coverage for attached units which pay different amounts for damage (eg: replacement v indemnity value or different levels of excess).

– Coordination difficulties with multiple insurers at claims time with resulting inefficiencies, and delays

– Coordination difficulties with unit holders with different levels of health, wealth, understanding and dependency

– Difficulties with uninsured or under underinsured unit holders

… the move to allow unit title property owners to insure separately from the body corporate will only increase their problems at claim time.

We see the following problems for unit title properties when the whole property suffers severe damage in, for example, a catastrophe event or fire:

– Parts of the property being uninsured or underinsured because of confusion over what unit holders or the body corporate are required to insure. This could particularly apply to common areas.

– Options for unit holders to insure separately from the body corporate resulting in some unit holders not insuring at all. This impedes the repair of the whole property.

– Different policy wordings providing different levels of cover which result in varying standards of repair.

– Insurers or EQC offering cash settlements to the unit owners, resulting in the potential for varying levels of repair.

– Duplication of resources with different insurers insuring different units.

These problems will affect all unit title properties where unit holders insure their properties separate from the body corporate.

Recommendation

The Insurance Council recommends the proposal to amend the definition of stand alone unit to allow more unit holders to insure separately from their body corporate be dropped and that Section 137(2)(a) be repealed.”

2019

Telecommunications Act 2011

The Telecommunications Act 2011, Part 4, subpart 3, deals with the installation of ultra-fast broadband (UFB). It gives statutory rights of access to install UFB in body corporate administered properties (among others).

The first general precondition for the statutory rights to apply is that a person has placed an order with a retail provider for a fibre-to-the-premises (FTTP) service to be installed (section 155J(1)(a)). The question of who is “a person who places an order for an FTTP service to be installed” is dealt with in section 155D(2).

Section 155D(2) tells us that, in the case of a body corporate administered property, “a person who places an order for an FTTP service to be installed” is the unit owner to which the order relates, regardless of whether the owner places the order himself or herself or authorises another person to place the order as agent on the owner’s behalf.

The words “regardless of whether the owner places the order himself or herself” raise a question. What if the unit owner is an unincorporated body (such as a trust), a body corporate (such as a company), or a corporation sole (such as a Roman Catholic Bishop)? None of these entities is a “himself” or a “herself”. Each one is an “it”.

Section 155D(2) could have said “regardless of whether the owner places the order himself or herself or itself”. The fact that it does not must have been deliberate, because all law drafters know that a non-individual is an “it”.

The inevitable conclusion is that only individual owners of units in body corporate administered properties may place an order for an FTTP service to be installed.

2019

2025 RS Bill submission

This submission—

• was written by a human being; and 
• was made before 1.00 pm on 23 June 2025.

Scope of submission

This submission comments on only 3 provisions in the bill: clause 8(b), clause 8(l), and clause 12. The narrowness of the submission’s scope cannot be taken as support for the rest of the bill’s provisions. The submission concludes by identifying the major fault in the bill.

Clause 8(b)

An obvious problem with the language of clause 8(b) is its conflict with section 22, read together with section 3, of the New Zealand Bill of Rights Act 1990.  

Clause 8(b) says “legislation should not unduly diminish a person’s liberty … except as is necessary to provide for, or protect, any such liberty … of another person”.  

Sections 22 and 3 say “Everyone has the right not to be arbitrarily arrested or detained”, “subject only to reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.

The tests for detention in clause 8(b) and sections 22 and 3 are different.  So what principle is going to apply to legislation proposing arbitrary detention?  Allowed if it is necessary to provide for or protect another person’s liberty, as per clause 8(b), or allowed if it is a reasonble limit prescribed by law as can be demonstrably justified in a free and democratic society, as per the New Zealand Bill of Rights Act 1990?

The language of clause 8(b) creates other problems.

As already quoted, clause 8(b) says “legislation should not unduly diminish a person’s liberty … except as is necessary to provide for, or protect, any such liberty … of another person”.  

Many existing legislative provisions specify that an offence is punishable by imprisonment.  Imprisonment diminishes an offender’s liberty.  Under current legislation, the rationale for imprisoning an offender is that it is a proportionate punishment for the particular offence committed by the particular offender.

However, clause 8(b) will require future legislation to allow the imprisonment of an offender only if it is necessary to provide for or protect the liberty of another person.  The result is that, until all legislation regulating imprisonment is amended to align with clause 8(b), there will be 2 different kinds of prisoner in New Zealand, ie, those whose imprisonment is a proportionate punishment and those whose imprisonment provides for or protects the liberty of other persons.  Ultimately, the only offenders left in prison will be those who need to be locked away to protect the liberty of other persons, ie, kidnappers; all other offenders who should be in prison will be free in the community.

Clause 8(b) also provides that “legislation should not unduly diminish a person’s … rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such right … of another person”.

Many existing legislative provisions limit a person’s right to own, use, and dispose of property.  Examples are— 

• Misuse of Drugs Act 1975, section 7 Possession and use of controlled drugs;  
• Summary Offences Act 1981, section 13A Possession of knives
• Arms Act 1983, section 44 Selling or supplying pistol or restricted weapon to person who does not hold permit to import or permit to possess. 

However, clause 8(b) will not allow future legislation to put controls on the owning, using, or disposing of anti-social or dangerous property such as drugs, knives, and firearms unless doing so provides for or protects the right of another person to own, use, or dispose of them. Once again, until all legislation imposing controls on anti-social and dangerous property is aligned with clause 8(b), there will be 2 different regimes in New Zealand, ie, current anti-social and dangerous property will be controlled, while future anti-social and dangerous property will not.  Ultimately, there will be large amounts and kinds of anti-social and dangerous property freely available in the community.

If clause 8(b) is supposed to have effects different from those discussed in the previous paragraphs, it clearly needs a rewrite.

Separate consideration is needed of the word “unduly” in the phrases—  

• “legislation should not unduly diminish a person’s liberty … except as is necessary to provide for, or protect, any such liberty … of another person”; and 
• “legislation should not unduly diminish a person’s … rights to own, use, and dispose of property, except as is necessary to provide for, or protect, any such right … of another person”.  

The plain meaning of “unduly” here is that it is acceptable for legislation to diminish a person’s liberty or property rights inordinately if doing so is necessary  to provide for or protect another person’s liberty or property rights.  But why should legislation ever be allowed to diminish a person’s liberty or property rights inordinately or – using Oxford English Dictionary and Cambridge Dictionary synonyms – to an unwarranted degree or more than is necessary, acceptable, or reasonable?  Surely a principled approach would require that such legislation never be made?  

If the word “unduly” is supposed to have an effect different from that just discussed, its purpose needs to made much more clear when clause 8(b) is rewritten.

If clause 8(b) cannot be rewitten to clarify its relationship with sections 22 and 3 of the New Zealand Bill of Rights Act 1990 and to make its meaning clear, the committee should consider recommending that it be omitted from the bill.

Clause 8(l)

This paragraph provides that one of the principles of responsible regulation is that “legislation should be the most effective, efficient, and proportionate response to the issue concerned that is available”.   It is fair to ask whether this bill passes this test.

To consider this question properly, committee members need to know that public servants developing policy and drafting legislation are already subject to a myriad of documents telling them how to do their jobs.  There are 5 core documents, some of which refer users to other documents.  In addition, every government agency involved in the legislative process has its own in-house documents that its public servants must obey to the letter, eg, there used to be a rule that the word “internet” had to be spelled with a capital “I” as “Internet”.

The policy and drafting documents have not come about according to any system.  They are like plants in a wildflower garden, where things with a great variety of names spring up wherever they like.  It would be impossible to tell the committee about all of them but a brief description of each core document can be given. 

In the absence of any other orderly system, the descriptions below are presented alphabetically.

CabGuide

This is published by the Department of the Prime Minister and Cabinet. This is how it describes itself—

“The CabGuide provides practical information and advice for public servants and Ministers’ offices on the procedures and operation of the New Zealand Cabinet, Cabinet committees, and the Executive Council.”

The CabGuide refers readers to the procedural information available in the Cabinet Manual, Cabinet Office circulars, and Cabinet Office notices.

Cabinet Manual 2023

This is also published by the Department of the Prime Minister and Cabinet.  This is how it describes itself—

“The Cabinet Manual is an authoritative guide to central government decision making for Ministers, their offices, and those working within the public service. … The content of the Cabinet Manual includes … how legislation is developed”.

How legislation is developed is the subject of Chapter 7 of the Cabinet Manual, entitled “The Executive, Legislation, and the House”.  The chapter introduces itself by saying “This chapter provides an overview of the main principles and procedures concerning the development of government legislation (Acts of Parliament and secondary legislation) at the executive level.”  The overview takes 23 pages.

Legislation Guidelines: 2021 edition 

This is published by the Legislation Design and Advisory Committee. Several members of the committee have never developed legislative policy or drafted legislation. However, all the members use legislation from time to time.  

The guidelines are 148 pages long and they conclude with a section entitled “Supplementary materials to the Legislation Guidelines (2021 edition)”, which lists 6 other documents.

New Zealand Bill of Rights Act 1990

Every bill to be introduced to the House, except appropriation bills, has to undergo vetting for compliance with this Act’s provisions.  The vetting is done by the Ministry of Justice, except for bills developed by the Ministry of Justice, which are vetted by the Crown Law Office. Bills that are inconsistent with any of the provisions are the subject of a report to the Attorney-General, who brings the inconsistency to the attention of the House.

Standing Orders of the House of Representatives 2023

Chapter 5 is headed “Legislative Procedures” and has 77 SOs in it. They apply to both primary legislation (bills) and secondary legislation (regulations, broadly speaking).  The Standing Orders have to be read in conjunction with the Speakers’ Rulings 2023.

Given that all these documents have not prevented “unnecessary and poor-quality regulation” – which the bill’s general policy statement says we have now – how is yet another document, ie, this bill, going to fix things?  Adding yet another document to the pile is surely an example of “If you keep doing what you’ve always done, you’ll get what you’ve always got”.  It cannot even be claimed on behalf of the bill that it has invented new mechanisms for checking on the quality of legislation.  The New Zealand Bill of Rights Act 1990 is the precedent for vetting bills for their adherence to a set of principles.  The Legislation Design and Advisory Committee is the precedent for the Regulatory Standards Board, in the sense that both are akin to a consumers’ group advising on a commercial product.  

Given these objections, the bill obviously does not pass the test in clause 8(l) of being “the most effective, efficient, and proportionate response to the issue concerned that is available”.  A much more sensible approach to achieving better legislation is available. This is a thorough sorting out of the existing documents. They need to be brought together into one single manual that gets rid of duplication, resolves contradictions, removes waffle and silliness, and puts the material into a logical order. If everyone working in the legislative sphere knew what everyone else’s role was and knew the same things as everyone else, many problems with legislation would be avoided.

The reason that this commonsense solution will not be adopted is the principles in clause 8.  These are clearly intended to ensure that New Zealand legislation in future implements the neo-liberal approach to government.  It would set an excellent example of transparency in legislation – something which the general policy statement says needs increasing – if clause 3 openly stated this purpose.

If the bill proceeds, clause 8(l) should be redrafted to say “legislation should be the  most effective, efficient, and proportionate response available for the issue concerned ”.  This makes it clear that the availablity relates to the response rather than to the issue concerned.

Clause 12

Clause 12 is discussed in detail in this submission because it is an exemplar of the major fault in this bill.  The fault is described as the conclusion to the submission.

Clause 12 refers to Ministers doing actions.  In practice, Ministers will not do any of them.  Their public servants will do them. The discussion of clause 12 spells out when public servants are doing actions.

Clause 12 is headed “When review of Government amendment does not apply”.  

Clause 12(1) deals with the following statements—

• a consistency accountability statement;
• a statement from the responsible Minister, ie, the Minister in charge of the Government amendment, that briefly explains the Government’s reasons for any inconsistency with the principles of responsible regulation that is identified in the consistency accountability statement.

It lists 3 situations in which Government amendments do not have to have the statements in their explanatory notes.

Clause 12(1)(a) requires the responsible Minister’s public servants to apply clause 10(1).  Clause 10(1)(a) to (f) are straightforward.  They list identifiable legislation, amendments to which do not have to have the statements in their explanatory notes. 

Clause 10(1)(g) is different. Its effect is that, if an amendment is to a bill of a class specified in a notice issued under clause 10(1)(g), the amendment does not have to have the statements in its explanatory note.  Some potential problems are, first, how clearly a clause 10(1)(g) notice specifies the class of bill it deals with and, second, what happens if a clause 10(1)(g) notice applies to part of a bill but not all of it.   

If it is not immediately apparent that a clause 10(1)(g) notice applies to a bill, the responsible Minister’s public servants will have to decide whether they get a ruling from someone (not clear who) or, the safer option, decide that clause 10(1)(g) does not apply so the amendment will have to have the statements in its explanatory note.  However, it may not be possible to take the safer option because the statements are not ready.

The statements cannot be prepared in a hurry.  They will have to be carefully considered and precisely worded so that they do not expose the chief executive of the government agency the public servants work for to being hauled over the coals by the Regulatory Standards Board under clause 29.  Careful consideration and precise wording take time.  If the Leader of the House wants the amendment to be on the order paper tomorrow and the statements are not ready, the safer course for the responsible Minister’s public servants then becomes to decide that an ambiguous notice under clause 10(1)(g) does apply and so the amendment does not have to have the statements in its explanatory note.

Clause 12(1)(b) might seem to be the way out of this dilemma.  It says that an amendment does not have to have the statements in its explanatory note if it is not reasonably practicable to put the statements in before the parliamentary scrutiny of the amendment occurs.  

However, is clause 12(1)(b) supposed to be used in the case of a notice under clause 10(1)(g) that is unclear or only applies to part of a bill?  Notices under clause 10(1)(g) are important pieces of regulation, as shown by the fact that clause 10(3) requires their approval by a resolution of the House before they can be issued.  To ignore such a notice only because time is short seems to lessen its dignity.  The regulatory Standards Minister and the Attorney-General could be asked for guidance on this matter under clause 27.  However, the Minister and the Attorney-General’s public servants will take time to prepare and publish the guidance, which leaves the matter unresolved and possibly delaying the progress of a bill.

Given the practical problems that clause 10(1)(g) might cause, the committee should consider recommending that it be omitted from the bill, together with its additional processes in clause 10(2) to (4).

There will be cases where the potential application of clause 10(1) does not arise at all.  The responsible Minister’s public servants then have to ignore clause 12(1)(a) and turn their attention to clause 12(1)(b).  As mentioned above, it says that a Government amendment does not have to have the statements in its explanatory note if it is not reasonably practicable to put the statements in before the parliamentary scrutiny of the amendment occurs.  Since the responsible Minister’s public servants will not necessarily have much notice of when the parliamentary scrutiny of the Government amendment is going to occur, the only safe thing for them to do is plan to have the statements in the explanatory note of every amendment.  

The plan will not work if the Leader of the House wants the amendment to be on the order paper tomorrow and the statements are not ready.   In that case, the responsible Minister’s public servants can put the statements in ready-or-not or rely on clause 12(1)(b) to buy them a little extra time to get the statements ready.  

If the statements are not in the amendment’s explanatory note, clause 12(2) requires the responsible Minister’s public servants, as soon as is reasonably practicable after the parliamentary scrutiny of the amendment occurs, to organise the presentation of the statements to the House and their publication on an internet site. So the question for the responsible Minister’s public servants will be: put ready-or-not statements in the amendment’s explantory note and avoid clause 12(2) or put in statements on which perhaps a day or two’s extra work has been done?  The answer to this question will probably depend on their chief executive’s assessment of which course will least displease the Regulatory Standards Board.

Clause 12(1)(c) provides that an amendment that does not, in the opinion of the regulatory standards Minister, materially change the bill being amended does not have to include the statements in its explanatory note.  It is the last of the 3 situations in clause 12(1) in which the statements do not have to be put in an amendment’s explanatory note.   

It makes no sense for clause 12(1)(c) to be the third situation.  It ought to be the second.  Clause 12(1)(a) is right as the first situation – as long as clause 10(1)(g) is omitted – because  clause 12(1)(a) would then deal with a group of clearly identifiable bills.  Current clause 12(1)(c), if it were clause 12(1)(b), would then deal with the second clearly identifiable group, ie, those that the regulatory standards Minister opines do not materially change the bill being amended.  Current clause 12(1)(b), if it were clause 12(1)(c), would then deal with the unknowables, as described above.

The work under clause 12(1)(c) begins with the responsible Minister’s public servants.  They will prepare a request for a “no material change” opinion from the regulatory standards Minister and put it up to their Minister for signing and sending.  The regulatory standards Minister’ public servants will receive the request.  They will either rely on the case put in the request or read the bill being amended plus the amendment and come to an independent view.  Whichever they do, they will decide whether or not the amendment  materially changes the bill being amended.  They will then write up advice telling the regulatory standards Minister what opinion to have.  The responsible Minister’s public servants will then put the statement of the regulatory standards Minister’s opinon, or a link to it,  in the amendment’s explanatory note, as required by clause 12(3).

Major fault in this bill

As illustrated by the lengthy discussion of clause 12, the major fault in this bill is its excessively bureaucratic and overly elaborate processes.  All the rigmarole it entails will require the employment of a large number of public servants to do petty tasks that achieve nothing at all for ordinary New Zealanders.

Public servants employed by government departments have made New Zealanders’ lives more expensive and New Zealanders are struggling to pay their bills yet they see in the news every week another example of government departments wasting their money.  The amount of their money government departments spend each year has increased.  But access to quality public services is worse than it was in 2017.  Spending more of their money, and delivering less, is what’s driving up inflation and their cost of life.  Public servants are getting away with wasting taxpayers’ money, not protecting every taxpayer dollar as they worked to earn it or requiring departments to justify how their money is being spent.*

Rather than allowing savings to the taxpayer by having a smaller public service, this bill will require a significant level of government spending with no return by way of quality public services.

*The material in this paragraph was taken directly from the ACT Party’s website.

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