Published articles also explain …

These are articles I had published over the years.

One of my bosses, the Chief Parliamentary Counsel, forbade me to submit articles to periodicals. I doubted the legality of this but decided that the simplest course was to publish under a different name. Some of the citations, therefore, are to articles that do not have my name on them.

Commercial law

COGA: the lessons of history [2009] NZLJ 329

Constitutional law

Keyboard or guitar? A thought about Brooker [2007] NZLJ 168

The right to freedom of inept expression [2008] NZLJ 245

Valentine’s Day massacred (2008) 83 NZLawyer 28

Environmental law

RMA information gathering provisions [2010] NZLJ 131

Family law

Legislation and the Hague Convention [2007] NZLJ 91

Hague Convention hares – time for the gamekeeper? (2009) 114 NZLawyer 22

The Matrimonial Property Bill – Misguided Chivalry? [1976] NZLJ 438

Property (Relationships) Act 1976: minor structural adjustments (2008) 88 NZLawyer 28

International law

The Doctrine of Recognition – a case note on Bilang v Rigg (1974) 17 VUWLR 477

Privacy law

The Privacy Act 1993 – tidying the edges (2010) 128 NZLawyer 24

Tax law

Rewriting the Income Tax Act (2004) 52 Clarity 22

IRD’s punctuation passion [2007] NZLJ 331

The purpose of the next 4 articles

How to confuse associated persons (2008) 96 NZLawyer 24

RAP-ing with the ITAs (2009) 104 NZLawyer 24

Fiddling with tax [2009] NZLJ 287

RAP on RAP: marching to a different beat? TalkTax 3 June 2010

Wills law

The Wills Act 2007: the first year (2008) 103 NZLawyer 22

Statutes Amendment Bill hides gold-digger’s charter (2010) 132 NZLawyer 20

COGA: the lessons of history

The Carriage of Goods Act 1979 (COGA) turns 30 this year. It has had a peaceful 30 years compared with its tumultuous 14-year gestation. This article describes the contrast and suggests amendment to prevent the tumultuous times returning.

The law governing the carriage of goods was the first task allotted to the Contracts and Commercial Law Reform Committee (CCLRC) on its establishment in 1965. The committee, whose deputy chairman was the late Colin Paterson, presented its report in April 1968. Barry Brill MP, the chairman of the Statutes Revision Committee, the select committee that considered the Carriage of Goods Bill, takes up the story:

“… the committee had another look at the matter in 1976 and produced a supplementary report, which was discussed with, and received the consent of, the Transport Advisory Council. That report was incorporated in the Bill that came before the Statutes Revision Committee, which heard submissions from a wide variety of interests. Following the hearing of submissions, the report was referred to a working party [chaired by Colin Paterson], which then consulted with several people. The working party then reported to the select committee, which sent out the report to all those people who had earlier given evidence. Those people then gave further evidence to the select committee, which deliberated on the information received. This would probably be a high-water mark in the process of public consultation ((1979) 425 NZPD 2879-2880)”.

Parliament passed the bill in a substantially amended form. COGA was assented to on 14 November 1979.

The length of time taken to deliver COGA, and the amount of detailed consideration it received, might have been an indication that it would be a popular subject for litigation. But not a bit of it. Below is what the courts have said over the years.

Judicial comment

Interpretation of “carriage”

“I see no logical distinction between an accident befalling the piano at his men’s hands when shifting it from stage to auditorium floor and, for example, an accident befalling same when being carried across the auditorium with the object of carrying it outside to a vehicle for further carriage elsewhere. If there were to be such distinctions, an Act which has attracted remarkably little judicial attention over 20 years could readily become something of a litigation target; this as arguments developed over what was and what was not a ‘carriage’ …” (Victory Christian Church Auckland v Fatialofa [2001] DCR 27 at 32)

Meaning of “unit of goods”

“With that background I turn to consider the ‘unit of goods’ carried on each occasion by the defendant. There are few authorities of assistance as to the meaning of those words since the coming into being of the 1979 Act.” (W D & H O Wills (New Zealand) Ltd v Wolters Cartage Ltd [1991] 3 NZLR 119 at 123).

Section 9: liability of contracting carrier

“[This was] the determination as a preliminary issue of the question whether cl 15 of the defendant’s conditions of carriage absolve it from liability by virtue of the failure of the plaintiff to notify a claim within 14 days of dispatch of the goods … That is the only issue that I am asked to decide. I am told that it is likely to be determinative of the proceedings and, indeed, this proceeding amounts to a test case which will in turn assist the resolution of other proceedings.” (ATL Systems Ltd v Post Haste Ltd [1997] DCR 85 at 86)

Section 17: contracting party to warrant condition of goods, etc

“Two issues are raised:

• Whether the fact that a container was ‘customs bonded’ and was therefore not subject to intermediate examination by the transshipper, excluded the statutory warranty in section 17 of the Carriage of Goods Act 1979 as to the fitness of the goods for carriage.
• Whether that statutory warranty in the Carriage of Goods Act extends beyond claims for damages to the goods themselves, to claims for consequential loss with respect to the vehicle which was actually carrying the goods.

… Both these issues are said to be devoid of authority, and to raise distinct matters of principle for carriers in New Zealand.” (Transtext Network New Zealand Ltd (In liquidation) v Greaney [2001] 3 NZLR 378 at 380)

Section 19: limitation of actions

“I now return to section 19. Counsel have been unable to find any decision to show that the section has been judicially considered, and neither have I.” (NZRC v Child Freighters Ltd [1985] 3 DCR 119 at 122)

“This is an application to strike out the statement of claim in this action, on the grounds that the claim is barred by time limits under section 19 of the Carriage of Goods Act 1979 (the Act). Counsel have advised me it is in the nature of a test case which will be of interest throughout the industry in settling the position of port companies under the Act. I am told that this is the first case on this particular point.” (Fletcher Panel Industries Ltd v Ports of Auckland Ltd [1992] 2 NZLR 231 at 233)

Ports of Auckland Ltd v Southpac Trucks Ltd is the latest case on COGA. The case began in the District Court, has been appealed to the High Court and the Court of Appeal, and is the subject of leave to appeal to the Supreme Court ([2009] NZSC 32). In both appeals so far, judges have made comments along the lines of those quoted above.

In the High Court, Allan J said:

“This appeal raises an important practical issue under the Carriage of Goods Act 1979 (the Act)： when is a carrier acting ‘as such’ for the purposes of section 6 of the Act? … Surprisingly, there appears to have been no decision of this Court on the point, which lies at the heart of the statutory regime regulating the rights and liabilities of parties to contracts for the domestic carriage of goods.” ([2007] 2 NZLR 656 at 658)

In the Court of Appeal, Baragwanath J pointed out that the case “has important precedent value” ([2009] 2 NZLR 79 at 95).

In his article “Carrier immunity: Southpac in the CA” [2009] NZLJ 236, Barry Allan said of Southpac “The facts are very simple” (p 238). To this reader, whose acquaintanceship with COGA began in the Department of Justice in 1976, the solution is also very simple. Southpac (the consignee) and CP Ships (UK) Ltd (the contracting carrier) had a contract of carriage at limited carrier’s risk. Ports of Auckland Ltd (POAL) was an actual carrier for the contracting carrier. POAL was not liable to the owner of the goods and neither were its employees. POAL’s liability to the contracting carrier was limited to $1500 per unit. In my opinion, this uncomplicated approach would be in keeping with COGA’s legislative and judicial history.

turbulent times returning, attention must be given To avoid COGA’s turbulent times returning, attention must be given to the most ferocious battle in COGA’s legislative history. This was fought over the amount of the limit on a carrier’s absolute liability for the loss of or damage to goods carried.

Before COGA, the limits on absolute liability were $40 for land carriage, $100 for sea carriage, and $240 for air carriage. The CCLRC proposed a figure of $1000 per unit for all kinds of carriage. That figure was in the bill introduced in 1977. The carrying industry felt that an increase from $40 to $1000 would result in the end of the world as we know it. Consequently, the bill took two years to pass and, when it did, it contained a limit of $500 per unit. The amount was increased to $1000 in 1986 (18 years after it was recommended) and to $1500 in 1989.

Twenty years later the limit is still $1500. This sounds ominously like the situation from which COGA arose. The limit fixed in the Carriers Act 1948 was twenty pounds. The limit had not changed when the CCLRC presented its report in 1968, ie, 20 years later. Because a very large increase was then required, an essential piece of law reform was plunged into lengthy controversy.

Over the last 30 years COGA has worked away steadily in the background, only occasionally throwing up issues requiring judicial attention. The reason is not that it is rarely applied. In Sargent v Punch (HC, Rotorua CIV 2007-463- 634, 22 May 2008, Rodney Hansen J), paras [14] and [16], the Judge noted COGA’s pervasiveness:

“Mr Light relied on Southpac Trucks Ltd v Ports of Auckland, in which the amount in dispute was also relatively low (just over $60,000) but leave to appeal was granted because the judgment under appeal would effectively become the law and would be unchallengable. … The considerations which persuaded the Court of Appeal to grant leave in Southpac are absent. That case involved the Carriage of Goods Act 1979 which, as Mr Bremer said, has daily application to commercial activities”.

It would be a pity if a statute that has daily application to commercial activities and is rarely litigated should again become the subject of prolonged debate. The Ministry of Justice no longer administers COGA; that is now the role of the Ministry of Economic Development. The latter Ministry might like to give this matter some thought.

Keyboard or guitar? A thought about Brooker

In Brooker v Police [2007] NZSC 30, the Supreme Court quashed Brooker’s conviction on a charge of disorderly behaviour under s 4(l)(a) of the Summary Offences Act 1981. Brooker was charged with disorderly behaviour because he expressed his opinion about a police constable in the street outside her home. The majority of the court (Elias CJ, Blanchard and Tipping JJ) considered that what constituted disorderly behaviour had to be determined in the light of the right to freedom of expression in section 14 of the New Zealand Bill of Rights Act 1990.

Blanchard J noted that the feature that caused concern in the lower courts was that Mr Brooker deliberately woke the constable up (para 67).  What if Mr Brooker had realised that deliberately waking someone up was likely to worry the courts and had decided instead to make his protest by writing the constable a letter? Is typing (or penning) a letter to a person to protest about their bullying behaviour something that New Zealanders are entitled to do?

What did Brooker do?

Brooker believed he had been bullied by a police constable. He decided to do something about it. He took action on his own account but his words show that he intended his protest to apply to other victims as well. He was “intent on voicing an opinion about police behaviour in general and the behaviour towards him of Constable Croft in particular” (Blanchard J, para 65).

Brooker protested at the constable’s home. “The protest comprised displaying a sign facing the road saying ‘No more bogus warrants’ and singing (in what was described by a police witness as a ‘normal singing voice’) accompanied by a guitar. The songs contained slogans such as ‘Safer communities together, Fiona’; ‘Freedom from unreasonable search and seizure’; ‘You just don’t know when to quit – no more 3 am visits, Fiona’; and ‘Too many bogus warrants, no more malicious prosecutions’.” (Elias CJ, para 14)

The tone of Mr Brooker’s communications was described by Elias CJ. “There is no suggestion that any of the messages Mr Brooker was conveying were in themselves objectively alarming or threatening. They were expressed without abuse or bad language and with apparent good humour.” (para 50)

Could he have done it by letter?

There are two offences in the Crimes Act 1961 relevant to protests by letter. Section 306 provides that it is an offence to send a letter containing a threat to kill or do grievous bodily harm to a person. Section 307 makes it an offence, without lawful excuse, to send a letter threatening to destroy or damage property or to destroy or injure an animal.

There are also two offences in the Postal Services Act 1998. Section 21 provides that it is an offence, without a reasonable excuse, to post a letter containing a noxious substance or thing. Section 22 makes it an offence, with the intention of offending the recipient, to post a postal article containing an indecent article or representation of any kind.

The Harassment Act 1997 could also apply.

A person harasses another person if “he or she engages in a pattern of behaviour that is directed against that other person, being a pattern of behaviour that includes doing any specified act to the other person on at least 2 separate occasions within a period of 12 months” (section 3).

Making contact with a person by letter is a specified act (section 4(l)(d)). Sending a letter is criminal harassment if the writer intends the letter to cause the recipient to fear for his or her own safety or the safety of a member of his or her family. It is also criminal harassment if the letter writer knows that the letter is likely to cause the other person, given his or her particular circumstances, to reasonably fear for his or her own safety or the safety of a member of his or her family (section 8).

If Brooker had written down his opinion of the constable and of police in general and posted it to the constable, it is unlikely that he could have been charged. There was nothing in the words on his sign or in his songs that could be described as a threat to kill or injure for the purposes of the Crimes Act provisions or as noxious or indecent for the Postal Services Act provisions. He would have come within the definition of “harassment” in the Harassment Act 1997 if he had written the constable two letters within 12 months. However, he would not have been guilty of criminal harassment because there was nothing in his words that could cause the constable to fear for her safety.

Moreover, in writing his letters, Mr Brooker would have been exercising his right to freedom of expression under section 14 of the New Zealand Bill of Rights Act 1990. Section 14 says that everyone “has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form”. This right is not unqualified. It is subject to reasonable restrictions prescribed by law which are necessary to protect other important interests. However, those are the only restrictions imposed on the right.

Significantly, the right to freedom of expression is not qualified by the content of an opinion. An opinion about the conduct of a particular individual is as protected as an opinion about a high constitutional principle. None of the majority judgments in Brooker suggested that section 14 protected what Mr Brooker said about police in general but not what he said about the constable in particular. Elias CJ noted that Brooker was expressing a grievance and that such action engages freedom of expression (para 2 and fn 1). Blanchard J said that Mr Brooker’s behaviour involved an exercise of the right to convey information or express an opinion, as long as the opinion went “beyond mere vulgar abuse” (para 59 and fn 1). Tipping J stated that the behaviour concerned involved a genuine exercise of the right to freedom of expression (para 92).

It appears, too, that the right to express an opinion to a particular individual about his or her conduct is not qualified by whether or not the individual is a public official. None of the majority judgments suggested that section 14 was brought into the balance in this case only because the protest was against a police constable, an establishment figure, and that the section could not be invoked to protect a protest against a private citizen.

A letter writer can choose to reveal his identity or to remain anonymous. The decision is immaterial for the purposes of the provisions of the Crimes Act 1961, the Postal Services Act 1998, and the Harassment Act 1997. Their application is unaffected by the absence of a signature or the presence of a genuine or false signature.

Conclusion

The answer to the question “Is typing (or penning) a letter to a person to protest about their bullying behaviour something that New Zealanders are entitled to do?” seems to be “Yes, as long as the letter does not contain a threat to kill or injure, or any noxious or indecent thing, or anything that would cause the recipient to fear for his or her safety”.

The keyboard (or the pen) is at least as mighty as the guitar.

The right to freedom of inept expression

In New Zealand, people who send threatening letters commit an offence. In New Zealand, people have the right to freedom of expression. Can these two statements be reconciled? This article suggests how it might be done.

Threatening letters pre-BORA

Section 306(b) of the Crimes Act 1961 provides that it is an offence for a person to send, “knowing the contents thereof, any letter or writing containing any threat to kill or do grievous bodily harm to any person”. The provision originated in section 16 of the Offences against the Person Act 1861 (England and Wales).

New Zealand and English cases have established that the offence is committed if the defendant makes a threat and if the defendant intended the threat to be taken as a threat which may be carried out. It is not necessary to prove that the defendant intended to carry out the threat (R v Adams [1999] 3 NZLR 144 at 147).

In R v Syme (1911) 6 Cr App R 257, the defendant wrote to Ramsay Macdonald MP. The language treated as making a threat was:

“I am firmly resolved to overthrow this cursed officialdom which is slowly mining our country; and I repeat… that if members of Parliament are not willing to do their duty, and if I am unable by any other legal means to obtain justice, I am quite prepared to kill Mr Reed with my own hands and leave the judgment with my countrymen”.

In R v Solanke [1969] 3 All ER 1383, the defendant wrote to his probation officer. The language treated as making a threat was:

“I DO NOT WISH TO TAKE HER LIFE BUT … The Law will take its course after THE ACT, but I hope my children will be looked after”.

In R v Adams, the defendant wrote first to an Assistant Commissioner of Police and then to the Commissioner. The language in the first letter treated as making a threat was:

“Your attitude to dealing with police corruption is abysmal. What is is [sic] it going to take to shake your building enough, five tonnes of nitro in the basement? Half a tonne of diesel? I don’t know what you bastards stand for any more”.

The language in the second letter treated as making a threat was:

“I don’t want to have to blow up 180 Molesworth St… I don’t want to have to dramatically abduct you or the Police Minister to get my point across, that some of your staff are worse than criminals because they hide behind a uniform … You can have it totally without media coverage or you can have it with all the bells and whistles”.

In none of the cases did the courts consider carefully whether the defendant made a threat.

In Syme, counsel “urged that the letter was capable of being construed otherwise than as containing a threat to kill and murder, that it only stated that the writer was quite prepared to kill Reed in a certain state of things” (pp 259-260). The court said that the jury’s finding did not allow that interpretation.

In Solanke, counsel raised the point that the letter was incapable of amounting to a threat. The court said that the point was “obviously unarguable” (p 1384). In Adams, the question was not discussed at all in relation to the first letter. On the second letter; counsel submitted that its main purpose was to obtain an appropriate response to the demands for consultation. The court said that the submission missed the real issue; “[o]bviously the primary purpose behind most conditional threats is to achieve some course of action — that is their very aim” (p 150). This statement, though, begs the question as to whether the defendant was making a threat.

Effect of BORA

Section 14 of the New Zealand Bill of Rights Act 1990 (BORA) provides that “everyone has the right to freedom of expression, including the freedom to … impart information and opinions of any kind in any form”.

The Supreme Court of Canada held in R v Keegstra [1990] 3 SCR 697 that the right to freedom of expression extends to all forms of communication that attempt to express an idea or meaning. The court’s statement clearly encompasses a letter sent by one person to another.

Section 6 of BORA provides that, “if an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning”. The effect of section 6 for a court determining a charge of sending a threatening letter is that it must interpret section 306(b) of the Crimes Act 1961 in a way that gives weight to the defendant’s right to freedom of expression.

The Supreme Court has shown how courts are to go about this task in its decision in Brooker v Police [2007] 3 NZLR 91. In that case, the Court had to reconcile the right to freedom of expression with the offence of behaving in a disorderly manner in or in view of a public place under section 4(l)(a) of the Summary Offences Act 1981. Cases under section 4(l)(a) have always required the courts to determine the question of whether the defendant’s behaviour was disorderly. In Brooker, the majority re-examined the test by which the courts have determined this question. Their re-examination was informed by the direction in sections 5 and 6 of BORA that, in a free and democratic society, incursions on the right to freedom of expression must be limited.

In cases under section 306(b) of the Crimes Act 1961, the questions for decision are: has the defendant made a threat?; and, if so, did the defendant intend the threat to be taken as a threat which may be carried out? My particular interest is in the first question and the test that the courts have used to determine it. In Syme, Solanke, and Adams the courts used the meaning of the word “threat” as the test. The courts in the first two cases must have used their own understanding of the word as they did not cite a definition. The Court of Appeal in Adams approved R v Clemente [1994] 2 SCR 758, in which the Supreme Court of Canada used the Oxford English Dictionary (OED) definition:

“A denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment, or damage to be inflicted in retribution for or conditionally upon some course; a menace”.

Although the OED talks of a denunciation “to a person of ill to befall him”, the Court of Appeal held in Police v Lloyd [1973] 2 NZLR 486 that it is not necessary for the threat to be made to the person whose life or health would be endangered.

The OED definition describes the words that the defendants in Syme, Solanke, and Adams used. Pre-BORA, that was enough. However, post-BORA, a New Zealand court can no longer assume that the defendant was making a threat just because he or she used the language of threat. That assumption does not give weight to the defendant’s right to freedom of expression. The court must replace the assumption by an investigation into whether the defendant used the language of threat actually to make a threat or, rather, to impart information or an opinion.

I suggest that the court conduct the investigation by looking to see if there is an explanation for the defendant’s choice of language that is just as likely (or more likely) to be the true explanation as the explanation that the defendant was making a threat. The exercise can be done on Syme, Solanke, and Adams. The true explanation for Mr Syme’s choice of the language of threat is just as likely to be that he wanted to express the strength of his idea by saying he would lay down his life for it. Mr Solanke chose the language of threat because he wanted to convey the information, as graphically as possible, that he did not know how to solve his family problems. Mr Adams chose the language of threat because he wanted to give a dramatic illustration of how, in his opinion, police attitudes needed to be shaken.

The second question for the court is whether the defendant intended the threat to be taken as a threat which may be carried out. The test for deciding this question, too, must now be considered in the light of BORA. I do not discuss the test in this article, however, as my interest is in the question of whether the defendant really made a threat.

It may be that the courts will have to focus on looking beyond the language of threat. In R v D [2000] 2 NZLR 641, a case under section 8(l)(b) of the Harassment Act 1997, a District Court and the High Court had before them a letter that expressed “a sexual fantasy between the [complainant and the defendant in which the defendant] releases ‘this frustration’ in forced intercourse” (at 647). The courts did not like the letter. The District Court said that it did “not make pleasant reading.” (Police v D [1999] DCR 426 at 432). The Court of Appeal, however, was able to stand back from the letter’s language and see it for what it was —an expression of “bereavement and a wish to turn the tables” (at 653). Section 8(l)(b) required the defendant to know that the language was likely to cause the recipient, given her particular circumstances, to reasonably fear for her safety. The Court of Appeal found that the facts did not establish the defendant’s knowledge to the criminal standard.

It may also be that the courts will have to focus on giving the appropriate weighting to the right to freedom of expression. In Evans v R [2008] DCR 199, a case under section 4(l)(b) of the Summary Offences Act 1981, a District Court and the High Court had to decide whether the defendant had insulted two police officers by saying that they were rapists, a remark based on “the behaviour of a minority of officers in the North Island” (para 33) that had recently been in the news. The courts concluded that he had insulted the officers. The High Court said that the District Court did not expressly balance the defendant’s right to freedom of expression against the public interest protected by section 4(l)(b) of the Summary Offences Act 1981; however, that did not matter because the High Court did the balancing. There was no evidence before the court of even the slightest risk to public order resulting from the defendant’s comment.

This raises the question of whether, when the High Court did the balancing, it gave enough weight to the defendant’s right to freedom of expression (or, to put it more simply, his right to express himself like a drunken prat, a right that New Zealanders of all kinds might exercise on occasion).

If cases involving threatening letters require the courts to see past the language and then finesse the balancing, I think the effort is worth it. It seems harsh to me that people who feel weighed down by a burden of unfairness cannot be free to express themselves in the way that comes naturally to them in their unhappiness. The defendants in Syme, Solanke, and Adams were attempting to express an idea or meaning in the only way they could manage while under the stress of their feeling of injustice. These days, it is possible that people who have learned their ways of imparting information or opinions from popular culture may not even realise that they are using the language of threat. If that is the only language they know, they have a right to be free to use it.

Conclusion

In New Zealand, people who send threatening letters commit an offence. In New Zealand, people have the right to freedom of expression. These two statements can be reconciled if a court determining a charge of sending a threatening letter decides whether the defendant really made a threat or was simply inept at self-expression.

Valentine’s Day massacred

New Zealanders have recently and enthusiastically adopted the practice of sending Valentine’s Day cards. No doubt some follow the Valentine’s Day tradition and send their cards anonymously. Would they be so keen on the idea if they knew that it could open them up to investigation by the police?

According to the Directory of Official Information (Directory), the police have a unit called the Document Examination Unit. One of its functions is “determining the source of anonymous/threatening letters”：http://www.justice.govt.nz/pubs/reports/2006/directory-of-official-information/list-n/29.html. This description is ambiguous, but one possible meaning is that the unit determines the source of both anonymous threatening letters and anonymous non-threatening letters. Sending an anonymous threatening letter is an offence. Sending an anonymous non-threatening letter is not (M Nixon, Keyboard or guitar? A thought about Brooker [2007] NZLJ 168).

It seems odd that the police should have a unit that investigates conduct that is not an offence. Since they do, however, they presumably investigate people who send anonymous non-threatening correspondence, such as Valentine’s Day cards. They must also investigate people who have not sent anonymous non-threatening correspondence but are alleged by the recipient to have done so, since the recipient can throw any names at all into the investigation net.

If a person finds out that he or she has been investigated as a possible sender of an anonymous non-threatening letter, is any recourse available?

Charge of making a false allegation

Section 24(a) of the Summary Offences Act 1981 provides that a person commits an offence if he or she, “without a belief in the truth of the statement, makes or causes to be made to any constable any … statement alleging that an offence has been committed”.

Sending an anonymous non-threatening letter is not an offence, so the recipient’s allegation to the police that the sender committed an offence constitutes the actus reus for the purposes of a prosecution under section 24(a). The prosecution would have to prove that the recipient knew that sending an anonymous non-threatening letter was not an offence. This is the hurdle on which the prosecution would founder; if the police themselves do not know this piece of law, it is unlikely that the recipient does.

Making a charge under section 24(a) is unlikely to help a person who has been investigated as a possible sender of an anonymous non-threatening letter.

Complaint under the Privacy Act 1993

Section 6 of the Privacy Act 1993 sets out information privacy principles. Principle 1 provides that personal information, ie information about an identifiable individual, must not be collected by an agency unless the information is collected for “a lawful purpose connected with a function” of the agency. Principle 11 provides that an agency that holds personal information may disclose it only for the reasons listed in the Principle.

In the case of anonymous non-threatening correspondence, the police in the Document Examination Unit presumably come up with one or more names for their colleagues to investigate to determine the source of the correspondence. Officers then investigate the names. They collect information about identifiable individuals, some of whom might be involved only because the recipient has given their names to the police. Having gathered up personal information, the police must then disclose it to at least one third person (since the exercise would be pointless if they did not).

The function of the police in New Zealand is to prevent crime and to detect and bring offenders to justice (Police v Amos [1977] 2 NZLR 564). A lawful purpose connected with this function is investigating possible senders of anonymous threatening letters, since sending such correspondence is an offence. Conversely, it is not a lawful purpose connected with this function to investigate possible senders of anonymous non-threatening letters, as sending such letters is not an offence. The investigation therefore breaches Principle 1.

None of the reasons for disclosure in Principle 11 allows the disclosure of the personal information found in the investigation to a third person. The disclosure therefore breaches Principle 11.

The subject of a police investigation could complain to the Privacy Commissioner that his or her privacy had been breached by the failure of the police to observe Principles 1 and 11. A breach of privacy can result in remedies such as damages or a declaration (section 85 of the Privacy Act).

Making a complaint under the Privacy Act is likely to help a person who has been investigated as a possible sender of an anonymous non-threatening letter.

Proceedings for defamation

Defamation occurs when defamatory matter is communicated to a third person without lawful justification or excuse. Defamatory matter includes a statement that tends to lower a person in the estimation of right-thinking members of society generally. The test is whether a reasonable person to whom the statement was communicated, in the circumstances in which it was communicated, would be likely to understand it in a defamatory sense. For example, it may be defamatory to impute that a person has so conducted his or her affairs as to justify a police inquiry (Lewis v Daily Telegraph Ltd [1964] AC 234). The defence of qualified privilege arises if there was a common and corresponding duty or interest between the person who made the communication and the person who received it. However, the defence is rebutted if the person who made the communication took improper advantage of the occasion of publication (section 19 of the Defamation Act 1992).

Defamatory communications would include statements to a third person that a person was being investigated as a possible sender of an anonymous non-threatening letter, that a person had been identified by the police as the sender of an anonymous non-threatening letter, and that a person had committed an offence by sending an anonymous non-threatening letter. Whether qualified privilege arises would depend on who the third person was. For example, a case for qualified privilege could be made for a statement to the recipient; it could not be made for a statement to the sender’s or a non-sender’s spouse or employer. However, it would be reckless to indicate that a person had been investigated for committing, or had committed, an offence by sending an anonymous non-threatening letter without checking whether that action was in fact an offence. Recklessness constitutes improper advantage and rebuts qualified privilege (Horrocks v Lowe [1975] AC 135).

Successful proceedings for defamation result in an award of damages and may result in a declaration (section 24 of the Defamation Act).

Bringing proceedings for defamation is likely to help a person who has been investigated as a possible sender of an anonymous non-threatening letter.

Request to the Auditor-General

Section 18 of the Public Audit Act 2001 provides that “the Auditor-General may inquire, either on request or on the Auditor-General’s own initiative, into any matter concerning a public entity’s use of its resources”. The Crown is a public entity (section 5). The Crown means “Her Majesty the Queen in right of New Zealand” (section 4). The police must be an instrument of the Crown, because they are not any of the other organisations covered by the definition of “State services” in section 2 of the State Sector Act 1988.

A person subjected to a police investigation as a possible sender of an anonymous non-threatening letter could ask the Auditor-General to inquire into whether the police are using their resources properly in investigating conduct that is not an offence. Given that there is no limit on the individuals whom the recipient can enmesh in an investigation, the police could in fact be using their resources to snoop on all sorts of people at the whim of a fantasist.

Requesting the Auditor-General to inquire into the work of the Document Examination Unit is likely to help a person who has been investigated as a possible sender of an anonymous non-threatening letter, if only by providing a means for them to prevent the same thing happening to anyone else in future.

The simplest solution

This article has come about solely because of the presence in the Directory of that less than upright character, the “/”. A much better solution than any kind of legal proceeding would be for the “/” to disappear from the phrase ”determining the source of anonymous/threatening letters”. It would then read “determining the source of anonymous threatening letters^” and be completely unexceptionable.

The Ministry of Justice publishes the Directory (pursuant to section 20 of the Official Information Act 1982). It should take editorial responsibility and remove the “/” .

If the police have investigated, or are investigating, possible senders of anonymous non-threatening correspondence, they should seek authority under section 20 of the Public Records Act 2005 to destroy the records.

If these actions could occur well before 14 February 2009, the Valentine’s Day card industry in New Zealand might just send the Ministry and the police a Valentine – anonymously, of course.

RMA information gathering provisions

The Resource Management Act 1991 (RMA) is a major piece of statute law that pervades the lives of all New Zealanders. Described at the highest level of generality, it provides for people wanting something environmental to ask someone for it.

Some situations in the RMA that fit this description are—

• a Minister for the Environment wanting to make a national policy statement, and opting to act under section 46A(1)(a), who has to ask a board of inquiry (NPS request);

• a regional council wanting to make a regional policy statement or regional plan or a variation of either, who has to ask itself (RP request);

• a person wanting a regional plan prepared, who has to ask the regional council (PP request);

• a territorial authority wanting to make a district plan or a variation of it, who has to ask itself (DP request);

• a person wanting a resource consent or anything to do with a resource consent, who has to ask the consent authority (consent request);

• a utility wanting a designation of land or anything to do with a designation, who has to ask the territorial authority (designation request)；

• a heritage protection body wanting a heritage order or anything to do with a heritage order, who has to ask the territorial authority (heritage request); and

• a person wanting a water conservation order or anything to do with a water conservation order, who has to ask the Minister for the Environment and a special tribunal (WCO request).

This article is about the RMA’s provisions on getting information from people involved in the processes for determining these requests. The provisions lie at the heart of both the RMA’s operations and the opposition to them. On the one hand, sound information is the key to the making of sensible decisions; on the other, decisions delayed because of repeated requests for information alienate users. The article describes some aspects of the provisions and concludes with the suggestion that the provisions be simplified and streamlined.

“Applicant”, “request”，”decision-maker”，”submitter”，and “official”

In this article, the person who wants something is the “applicant”; the something wanted is the “request” (as described above); the someone asked is the “decision- maker”; a person who makes a submission on a request is a “submitter”; and an officer of a community board, local authority, person authorised to conduct hearings, public body, or special tribunal is an “official”.

Can the decision-maker ask the applicant to provide further information?

The decision-maker must hold a hearing on an NPS request (section 50). If, before the hearing, the decision-maker sees the need for further information, the decision-maker cannot ask the applicant for it.

The decision-maker and the applicant are one and the same for an RP request and a DP request. The decision-maker must hold a hearing if a submitter wants to be heard (schedule 1, clauses 8B and 8C). If, before the hearing, the decision-maker sees the need for further information, the decision-maker cannot ask itself as applicant for the information.

The decision-maker cannot hold a hearing on a PP request as to whether to accept the request. However, it can ask the applicant for further and then additional information under schedule 1, clause 23(1) and (2), to help it decide whether to accept the request. If it accepts the request, it may decide to hold a hearing (schedule 1, clause 25(2)(a)). If, before the hearing, the decision-maker sees the need for more information, the decision-maker cannot ask the applicant for it.

If the decision-maker is not going to hold a hearing on a consent request, designation request, heritage request, or WCO request, the decision-maker can ask the applicant for further information under section 92(1) (assisted by sections 169(2), 190(7), and 204(3)).

The decision-maker’s right is the same if the decision-maker is going to hold a hearing on a consent request, designation request, heritage request, or WCO request and before the hearing sees the need for further information.

If the decision-maker wants further information at the hearing on any of the requests, the decision-maker can ask for it under section 41(4) from an applicant who is heard by the decision-maker or represented at the hearing. These qualifications on the applicants who can be asked for information can be avoided, however, by the decision-maker deciding under section 41A to apply section 41C and then asking the applicant for the information under section 41C(3). The subsection says “At the hearing, the [decision-maker] may request the applicant to provide further information”.

Can the applicant refuse to provide the further information?

At the stage before the decision-maker decides whether to hold a hearing on a PP request, the applicant can refuse under schedule 1, clause 23(5)(a), to provide the further or additional information the decision-maker asks for.

If the decision-maker is not going to hold a hearing on a consent request, designation request, heritage request, or WCO request, the applicant can refuse to provide the further information for a consent request, designation request, or heritage request under sections 92(3)(a) and 92A (assisted by sections 169(2) and 190(7)). The applicant cannot refuse to provide the information on a WCO request, because section 204(3) does not apply section 92A.

The applicant’s rights are the same if the decision-maker is going to hold a hearing on a consent request, designation request, heritage request, or WCO request and before the hearing asks for further information.

If the decision-maker asks for the further information at the hearing on any of the requests, the applicant cannot refuse to provide it.

Who can see the applicant’s further information?

If the decision-maker is not going to hold a hearing on a consent request, designation request, or heritage request and if the applicant provides the further information requested, the decision-maker must notify every submitter that the information is available at the decision-maker’s office (section 92(3B)).

The decision-maker’s duty is the same if the decision-maker is going to hold a hearing on a consent request, designation request, or heritage request and if the applicant provides before the hearing the further information requested.

The position is the same for a WCO request, except for one thing. There is no need for “if the applicant provides the further information”，since the applicant has no right to refuse to provide it.

If the decision-maker holds a hearing on any of the requests and if the applicant provides the further information requested at (but see below) the hearing, the decision-maker must supply a copy to every submitter who stated a wish to be heard and must also make the information available at its office to any submitter who did not state a wish to be heard (section 41C(5A) and (5B)).

As noted above, section 41C(3) says the decision-maker can request the applicant to provide further information “At the hearing”. Section 41C(5A) does not mirror subsection (3) by referring to information received “at” the hearing but instead refers to information received “after the start of” the hearing. This difference in language may or may not be intended to convey something.

If the decision-maker receives information under section 41(4) on any of the requests at a hearing, the decision-maker has no duty to notify anyone of its receipt.

Can the decision-maker ask a submitter to provide further information?

If the decision-maker is not going to hold a hearing on any of the requests, the decision-maker cannot ask a submitter for further information.

If the decision-maker is going to hold a hearing on any of the requests and before the hearing sees the need for further information, the decision-maker can decide under section 41A to apply section 41C and then ask a submitter for it under section 41C(2).

If the decision-maker wants the information at the hearing on any of the requests, the decision-maker can ask for it under section 41(4) from a submitter who is heard by the decision-maker or represented at the hearing. These qualifications on the submitters who can be asked for information can be avoided, however, by the decision-maker deciding under section 41A to apply section 41C and then asking the submitter for the information under section 41C(2). The subsection says ” … at the hearing, the [decision-maker] may request a person who has made a submission to provide further information”.

Who can see the submitter’s further information?

If the submitter provides the information before the hearing on any of the requests, the decision-maker must under section 41C(5) supply a copy to the applicant and every other submitter.

If the submitter provides the information to the decision-maker at the hearing on any of the requests under section 41(4), the decision-maker has no duty to notify anyone else of its receipt.

If the submitter provides the information at (but see above) the hearing on any of the requests under section 41C, the decision-maker must supply a copy to the applicant and every other submitter who stated a wish to be heard and must also make the information available at its office to any submitter who did not state a wish to be heard (section 41C(5A) and (5B)).

Can the decision-maker ask an official to provide information?

Most of the provisions dealing with officials talk of the official doing a “report”. However, nothing seems to turn on the difference between “information” and “report”. This description continues to use “information”.

If the decision-maker is not going to hold a hearing on any of the requests, the decision-maker can ask an official for information under section 42A(1).

If the decision-maker is going to hold a hearing and before the hearing sees the need for information, the decision-maker can ask an official for information under section 42A(1) on any of the requests, except possibly a WCO request. Section 206(3) applies sections 39 to 42, but not section 42A, to a hearing on a WCO request. On the other hand, section 42A(1) applies itself to any matter described in section 39(1) and the matter described in section 39(l)(g) is a WCO request.

If the decision-maker holds a hearing on any of the requests and wants information at the hearing, the decision-maker can under section 41(4) ask an official who did a section 42A report for the information.

Who can see the official’s information?

If the decision-maker is not going to hold a hearing on any of the requests and receives written information from an official under section 42A(1), the decision-maker must under section 42A(4) make the information available at its office to submitters who did not state a wish to be heard and must also give those submitters written or electronic notice that the information is available. The decision-maker has no duty to give notice to the applicant.

If the decision-maker is going to hold a hearing on any of the requests and receives written information from an official under section 42A(1), the decision-maker must under section 42A(3) supply a copy to the applicant and to submitters who stated a wish to be heard and under section 42A(4) make the information available at its office to submitters who did not state a wish to be heard and give those submitters written or electronic notice that the information is available.

If the decision-maker receives information under section 41(4) on any of the requests at a hearing, the decision-maker has no duty to notify anyone else of its receipt.

Can the decision-maker ask for information from an independent person?

The provisions dealing with independent persons talk of the person doing a “report”. Again, this description continues to use “information”.

The decision-maker can commission information under schedule 1, clause 23(5), before deciding whether or not to accept a PP request.

If the decision-maker is not going to hold a hearing on any of the requests, the decision-maker can “commission a consultant or any other person employed for the purpose” to provide information under section 42A(1).

If the decision-maker is not going to hold a hearing on a consent request, designation request, heritage request, or WCO request, the decision-maker can ”commission any person” to provide information under section 92(2) (assisted by sections 169(2), 190(7), and 204(3)).

The decision-maker’s rights are the same if the decision-maker is going to hold a hearing and before the hearing sees the need for the information.

If the decision-maker holds a hearing on any of the requests and wants the information at the hearing, the decision-maker can decide under section 41A to apply section 41C and then “commission a consultant or any other person employed for the purpose” to provide information under section 41C(4).

If the decision-maker holds a hearing on any of the requests and wants the information at the hearing, the decision-maker can under section 41(4) ask any person heard by the decision-maker for information; presumably an independent person who has been heard by the decision-maker is included.

Can the applicant refuse to agree to an independent person providing information?

The decision-maker can “commission a report” before deciding whether or not to accept a PP request (clause 23(3) of schedule 1), but not if the applicant declines to agree to the commissioning (clause 23(5)(a)).

If the decision-maker is not going to hold a hearing on any of the requests and acts under section 42A(1), the applicant cannot refuse to agree to the commissioning.

If the decision-maker is not going to hold a hearing on a consent request, designation request, heritage request, or WCO request and acts under section 92(2), the applicant can refuse under sections 92(2)(c), (3)(b), and 92B to agree to the commissioning.

If the decision-maker is going to hold a hearing on any of the requests, before the hearing sees the need for the information, and acts under section 42A(1), the applicant cannot refuse to agree to the commissioning.

If the decision-maker is going to hold a hearing on a consent request, designation request, heritage request, or WCO request, before the hearing sees the need for the information, and acts under section 92(2), the applicant can refuse under sections 92(2)(c), (3)(b), and 92B to agree to the commissioning.

If the decision-maker holds a hearing on any of the requests, wants the information at the hearing, and acts under section 41C(4), the applicant can refuse under section 41C(4)(c) to agree to the commissioning. Section 41C(4) does not prescribe a procedure for the applicant’s refusal, unlike sections 92(3) and 92B. However, there is a statutory interpretation argument for saying that at least section 92(3) applies to reports prepared under section 41C(4) for a consent request, designation request, heritage request, or WCO request. The argument is that section 92(4) says “This section does not apply to reports prepared under section 42A”；therefore, section 92 could be interpreted as applying to reports prepared under section 41C(4); and therefore the procedure in section 92(3) could apply to reports prepared under section 41C(4). This is a tortuous argument, which is in keeping with the information gathering provisions in the RMA.

Who can see the information provided by an independent person?

If the decision-maker is not going to hold a hearing on any of the requests and receives written information under section 42A(1), the decision-maker must under section 42A(4) make the information available at its office to submitters who did not state a wish to be heard and must also give those submitters written or electronic notice that the information is available. The decision-maker has no duty to give notice to the applicant.

If the decision-maker is going to hold a hearing on any of the requests and receives written information under section 42A(1), the decision-maker must under section 42A(3) supply a copy to the applicant and to submitters who stated a wish to be heard and under section 42A(4) make the information available at its office to submitters who did not state a wish to be heard and give those submitters written or electronic notice that the information is available.

If the decision-maker is going to hold a hearing on a consent request, designation request, heritage request, or WCO request, and receives the information under section 92(2), the decision-maker must under section 92(3A) make the information available at its office and must under section 92(3B) give notice to all submitters that the information is available. The decision-maker has no duty to give notice to the applicant.

If the decision-maker receives information under section 41(4) on any of the requests at a hearing, the decision-maker has no duty to notify anyone else of its receipt.

Some questions about section 42A

Section 42A(1) is (partly) about the situation at “any reasonable time before a hearing” (emphasis added). Why, then, is it located after sections 39 to 42, which are about powers and duties at hearings?

Section 42A(1) says that a “local authority” may ask for a report “on information provided on any matter described in section 39(1)”. “Local authority” is defined in section 2 as a regional council or territorial authority. The matters described in section 39(1) are not limited to matters within the jurisdiction of a regional council or territorial authority. Does “local authority” in section 42A mean that a regional council or territorial authority can ask for a report on behalf of the decision-makers who have jurisdiction over the matters described in section 39(1)? Or does “local authority” in section 42A mean the decision-makers who have jurisdiction over the matters described in section 39(1) even though the defined term “local authority” does not include all those decision-makers?

Section 42A(1) allows the local authority to commission “a consultant or any other person employed for the purpose” to prepare a report. What is the difference between a consultant and “any other person employed” that makes it vital to refer to both? Why is the difference vital in section 42A (and section 41C(4)) but not in section 92(2) (“commission any person”) or schedule 1, clause 23(5) (“commission a report”)?

Section 42A(2) says that “Any report prepared under subsection (1) may be considered at any hearing conducted by the local authority”. Does the subsection mean that the local authority cannot consider the report if there is no hearing? If the answer is “yes”, why does section 42A(1) allow the preparation of a report “if no hearing is to be held”？ If the answer if “no”, what is the point of section 42A(2)?

Section 42A(3) and (4) say “If the report is in writing”. Does this mean that the subsections do not apply if the report is electronic? Or does the Electronic Transactions Act 2002 apply? If that Act applies to the lead-in words to subsections (3) and (4), why does it not apply to subsection (4)(b), which refers to giving “written or electronic notice”?

Section 42A(3) provides that, if the local authority receives a written report, it must supply it before the hearing to the applicant and to the submitters who stated a wish to be heard. Does subsection (3) mean that, if the local authority is not going to hold a hearing, it does not have to tell the applicant that the report has been received and supply a copy to the applicant? Can the local authority similarly ignore submitters who stated a wish to be heard? Apparently so, and this interpretation of subsection (3) is strengthened by the existence of subsection (4). Subsection (4) can be read alone and not solely as an adjunct to subsection (3). Read that way, it says that, when a local authority that is not going to hold a hearing receives a written report, the only people entitled to see the report are submitters who did not state a wish to be heard. Is this absurd?

Section 42A clearly has a lot of defects. However, from the viewpoint of a decision-maker on a consent request, designation request, heritage request, or WCO request, it has a great advantage. It allows the decision-maker to commission an independent report without having to both tell the applicant and give the applicant the chance to prevent the commissioning. Section 92(2) contains both these constraints. Why would a decision-maker use section 92(2) when section 42A is so much more efficient?

Conclusion

Assembling aspects of the information gathering provisions of the RMA has been a painstaking exercise. The result clearly demonstrates that the provisions are scattered, illogical, inconsistent, and repetitive. Given their importance, this is unacceptable. A user of the RMA should be able to find a set of provisions headed something like Rights and duties relating to information that state clearly the who, what, and when of information gathering.

Simplifying and streamlining the RMA does not have to mean making the Act more complex. The information gathering provisions are a perfect example of an area that could be simplified and streamlined by drawing the provisions together, making reasoned decisions about their content, clarifying distinctions, and removing duplication. Even if only one corner of the RMA became easy to use, that would have to be an improvement.

Legislation and the Hague Convention on the Civil Aspects of International Child Abduction

This article aims to counter criticism of the decision by the New Zealand legislature to implement the Hague Convention on the Civil Aspects of International Child Abduction in New Zealand by way of a statute incorporating the provisions of the Convention.

The article was inspired by the following comments in Basingstoke v Groot (CA 135/06, 7 November 2006):

“[84] [Counsel] submitted that the New Zealand approach to rights of custody (as set out in Dellabarca v Christie and Gross v Boda) is out of step with other jurisdictions. He pointed to the decision of the Court of Appeal in England and Wales in Hunter v Murrow [2005] 3 FCR 1 which criticises the New Zealand approach. …

[85] There is no doubt that it is important that the interpretation of the Hague Convention be consistent between jurisdictions – see Dellabarca v Christie itself at 55, … If it is the case that New Zealand is out of step with other jurisdictions on the way it approaches the question of rights of custody, then there may be grounds for revisiting this Court’s decisions on that topic.”

These comments are about criticism of the New Zealand courts’ approach to rights of custody in cases of international child abduction. This article is about criticism of the New Zealand legislature’s decision to pass an Act on international child abduction. There is a link between these two sets of criticisms, although it is not immediately apparent. This article makes the link by setting out the background ~ the New Zealand courts’ approach and how it developed, the English courts’ criticisms of it, the New Zealand legislature’s approach, and the New Zealand and English courts’ criticisms of that — and then drawing on the background to defend the legislature’s decision.

New Zealand courts’ approach

The New Zealand courts’ approach is that a parent who has access rights has custody rights under the Convention. The parent can, therefore, enforce the return of the child to the child’s original country of residence so that the parent can exercise access rights (Gross v Boda [1995] 1 NZLR 569 (CA); Dellabarca v Christie [1999] 2 NZLR 548 (CA)).

The approach taken in the New Zealand cases is contrary to the intention of the framers of the Convention. It is also contrary to the intention of the framers of the Guardianship Amendment Act 1991, which implemented the Convention in New Zealand. How then did it come about?

When the Convention was devised, its primary purpose was to stop non-custodial parents abducting children from custodial parents. The situation at the heart of the Convention was that of a parent who was actually looking after the child suddenly finding the child missing because the other parent had spirited the child overseas. The idea was to put in place a mechanism for getting the child back to the original country as fast as possible so that the custody disagreement between the parents could be sorted out in the country with which the child had the greatest connection.

The parent who was not actually looking after the child might, under the law of the country of his or her residence, have access rights or guardianship rights. One such right was the right to determine the child’s place of residence, which some countries regarded as an access right and others regarded as a guardianship right. The mechanism for getting the child back to the original country as fast as possible was never intended to help the non-custodial parent enforce access or guardianship.

Fairly late in the development of the Convention there was a move to do something about enforcing access rights. The countries preparing the Convention found it difficult to know what to do about access rights. In the end, they included art 21, which requires parties to the Convention to do what they can to see that access rights are respected but stops well short of requiring parties to return children to the original country to enable the exercise of access rights.

The reason that the framers of the Convention did not want its return mechanism to be used to enforce the access rights or guardianship rights of the non-custodial parent was a practical one. It was that a child brought back to the original country to enable the exercise of these rights might end up with no one to look after it. If the custodial parent did not want or was unable to return to the original country, and if the non-custodial parent did not want or was unable to exercise custody, who would care for the child? The access or guardianship rights of the non-custodial parent would be protected, certainly, but at the expense of the child, and that was not the purpose of the Convention.

When the Guardianship Amendment Act 1991 was passed, it contained a section 4 on rights of custody (the first section 4). The first section 4 was expressed as it was to capture the Convention’s intention not to enforce the access rights and guardianship rights of non-custodial parents. It dealt with the right to determine the child’s place of residence by treating it as the right a custodial parent had to determine on a day-to-day basis where the child should live, ie, the right to determine whether the child could stay with someone else for a period of time as a treat or for a holiday or while the custodial parent had to be away. It did not treat the right to determine the child’s place of residence as an access right or guardianship right to determine in which country the child should live because, if it had done that, non-custodial parents would have been able to invoke the return mechanism in the Act just to enable the exercise of this right.

The Minister of Justice made it clear in his second reading speech on the Guardianship Amendment Bill on 20 March 1991 that the Convention was being implemented in New Zealand to enforce custody rights only. The Hon DAM Graham said:

“The issue of whether the Convention should be invoked to require the return of a child to enable access rights to be exercised was another matter raised. While the Convention requires contracting States to co-operate in arranging for the effective exercise of access rights, it provides for the return of a child only when custody rights have been breached. New Zealand legislation cannot extend the obligation to return a child to allow the exercise of other rights.” ((1991) 513 NZPD 946-947)

The District Court in Gross v Boda in April 1994, and the High Court in F v T (1994) 12 FRNZ 157 in May 1994, applied the first section 4. In both cases, the applicant was seeking to enforce access rights by way of the return mechanism in the Act. In both cases, the courts said that the first section 4 prevented the applicant from enforcing access rights.

Both courts understood the intention of the framers of the Convention and the framers of the Guardianship Amendment Act 1991. However, the Department of Justice apparently decided that the District Court and the High Court had got it wrong. Soon after the High Court’s decision in F v T, the Department promoted an amendment to the Guardianship Amendment Act 1991. The amendment replaced the first section 4 by a version of section 4 that used the language of arts 3 and 5 of the Convention (the second section 4, now s 97 of the Care of Children Act 2004, which is a third section 4). The Guardianship Amendment clauses were included in the Law Reform (Miscellaneous Provisions) Bill introduced in September 1994. The clauses became the Guardianship Amendment Act (No 2) 1994, Royal assent to which was given on 15 December 1994.

As it happened, the second section 4 was not needed. The Court of Appeal in Gross decided on 2 December 1994 that the first section 4 allowed parents with access rights to use the return mechanism in the Convention to enforce their rights. Cooke P said that this approach “accords with the spirit of the Convention” and Hardie Boys J said that to differentiate between parents with access rights and parents with custody rights “would defeat the objective of the Convention” (at pp 572 and 574 respectively).

English courts’ criticisms

The English courts do not agree that the Convention says that parents with access rights have custody rights. In Hunter v Murrow [2005] EWCA Civ 976 (CA), Lloyd LJ said:

“The New Zealand courts interpret the Convention differently. The Court of Appeal there has held that contact rights do amount to rights of custody:  see Gross v Boda [1995] 1 NZLR 569 and Dellabarca v Christie [1999] 2 NZLR 548. That conflict results in an unavoidable but regrettable lack of comity between our courts and those of New Zealand in a case where the applicant has contact rights alone, and does not have parental responsibility” (para 66).

Dyson LJ said:

“As the present case demonstrates, New Zealand does not recognise the sharp distinction between rights of custody and rights of access which the courts of this country have identified in the Convention. The New Zealand approach is that a parent who has ‘substantial intermittent rights to the possession and care of the child’ may have rights of custody. Singer J was right to conclude that the New Zealand interpretation of the Convention question that arises in this case is wrong” (para 58).

In In Re D (a child) [2006] UKHL 51, Baroness Hale of Richmond said:

“[35] New Zealand … has gone further still and held that rights of access can in themselves amount to ‘rights of custody’: G v B [1995] NZFLR 49;  D v C [1999] NZFLR 97; see also Hunter v Murrow (Abduction: Rights of Custody) [2005] EWCA Civ 976 ……

[42] … On 28 July 2005, the Court of Appeal handed down its decision in Hunter v Murrow (Abduction： Rights of Custody) [2005] 2 FLR 1119 … It appears that the father had neither parental responsibility nor rights of veto [on the child leaving New Zealand]. Nevertheless, the New Zealand court held that the access which the father had enjoyed by virtue of the agreement with the mother amounted to ‘rights of custody’ for the purpose of the Convention. As the researches of counsel demonstrated, this takes the concept of ‘rights of custody’ further than it has been taken in other common law jurisdictions.

[43] The Court of Appeal declined to accept that ruling. …[and] challenged the characterisation of those rights as rights of custody for Convention purposes. This was on the basis, long established in the English application of the Convention, that rights of custody are to be distinguished from mere rights of access: see, most recently, In re V-B (Abduction： Custody Rights) [1999] 2 FLR 192 and In re P (Abduction： Custody Rights) [2005] Fam 293.

[44]… The foreign court is much better placed than the English to understand the true meaning and effect of its own laws in Convention terms. Only if its characterisation of the parent’s rights is clearly out of line with the international understanding of the Convention’s terms, as may well have been the case in Hunter v Murrow, should the court in the requested state decline to follow it.”

New Zealand legislature’s approach

The New Zealand legislature implemented the Convention by way of a statute incorporating the provisions of the Convention, that is, by way of the wording method. The wording method is explained in the Legislation Advisory Committee Guidelines on Process and Content of Legislation (at para 6.2.2) as follows：

“In many cases, the wording of a treaty is incorporated into the body of the Act. The Act may specify the treaty that it seeks to implement or it may not. In either case, the wording of the treaty is reflected in the Act’s provisions. Sometimes the wording is repeated verbatim and sometimes it is translated to accommodate local conditions … As most treaties tend to be expressed in general language, mainly to achieve agreement, the wording method is used often.”

The reasons for using the wording method were explained by the Minister of Justice in his second reading speech:

“One issue raised by the submissions related to the manner in which the Bill implements the Convention. The Bill implements the Convention in New Zealand by setting up a statutory regime that elaborates the provisions of the Convention itself. The select committee heard the view that all that was necessary was a shorter Bill that simply stated that the Convention was the law for New Zealand and provided judicial and administrative authorities with the necessary powers to fulfil their obligations under the Convention. It was argued in support that any difficulties in the interpretation of the Convention could be resolved by reference to cases decided in other countries rather than by provisions in the legislation.

The select committee gave careful consideration to that view. However, it decided that the Bill should remain in its present form. That was because it recognised the need to deal promptly with applications made under that Convention. The committee acknowledged that lawyers, judges, and officials would be helped to deal with applications expeditiously if the legislation were in a form with which they were familiar; if interpretation questions apparent on the face of he Convention were resolved in the legislation; and if the provisions of the Convention were arranged in a manner that assisted understanding of them. I take the same approach.

The form of the Bill is one commonly used in implementing international instruments. In the sphere of family law I refer to the provisions of the Family Proceedings Act 1980, which implement the United Nations maintenance-recovery Convention. Interpretation questions will not be resolved by reliance on international precedents if they are not readily available or do not generally address the particular point in contention. Delays may well result while they are sought.

The provisions of the Convention have been arranged in order to assist understanding. For example, in the Convention the grounds for refusing to order the return of a child are contained in several different articles. In the Bill all of the grounds have been incorporated in one clause.” ((1991) 513 NZPD 946)

English and New Zealand courts’ criticisms

The legislature has been criticised for implementing the Convention using the wording method. The criticisms are:

“It is unfortunate that for reasons which are not readily ascertainable the Act has departed from the wording of the Convention, instead of simply adopting it as has apparently been done in other countries” (Gross v Boda at 574 per McKay J)

“[The second s 4] was enacted on 15 December 1994 too soon after this Court decided Gross v Boda for the legislature to take advantage of …. the comment of McKay J at p 574 that ‘It is unfortunate that for reasons which are not readily ascertainable the Act has departed from the wording of the Convention, instead of simply adopting it as has apparently been done in other countries'” (Dellabarca v Christie at 551 per Keith J)

“One other difference between the Convention wording and that of the Act was also considered in the High Court. Although it was not of any moment in this Court, there is nevertheless value in mentioning it since it again highlights the point … that it is unfortunate that in some respects the Act has departed from the wording of the Convention instead of simple adopting it into the law as has been done in other countries” (Chief Executive of the Department for Courts v Phelps [2000] 1 NZLR 168 at 174 per Keith J).

“In incorporating the Convention many jurisdictions have taken the same path as this jurisdiction, the path of more or less wholesale incorporation. Thus the majority of the Convention is simply a schedule to our 1985 statute. However other jurisdictions have preferred to achieve the effect of incorporation by independent legislative provisions. New Zealand has followed this latter course. Thus it was through the Guardianship Amendment Act 1991 that the Hague Convention was implemented … The desirable goal of a uniform construction of the Convention amongst all the Contracting States may obviously be impeded by the preference of some States to embark upon a redrafting exercise in the process of implementing the Convention” (Hunter v Murro [2005] EWCA Civ 976 para 16 per Thorpe LJ).

Defending the New Zealand legislature

The background set out above provides two points that can be made to counter the criticism of the New Zealand legislature for implementing the Convention by way of a statue incorporating the provisions of the Convention.

First, the statute is not to blame for the New Zealand Court of Appeal interpreting the Convention in a way that the English Court of Appeal and the House of Lords say is wrong and out of line. The Court of Appeal in Gross had the first section 4 before it. The section said that access rights were not custody rights, as a District Court and High Court recognised, but the Court of Appeal decided that access rights were custody rights. Since Gross, the Court of Appeal has had the second section 4 before it. The second section 4 used the language of arts 3 and 5 of the Convention. English Judges have interpreted the language as saying that access rights are not custody rights; New Zealand Judges have interpreted it as saying that access rights are custody rights. The Convention itself produced the conflict of opinion, but the first section 4 did try to avert it.

Second, the legislature did something that it was entitled to do, had done in other cases, had overseas precedents for, and had good reasons for doing.

There is also a final point that is worth noting. New Zealand family lawyers do not appear to have been inconvenienced by having to apply a statute on child abduction, rather than an international convention. The Care of Children Bill gave practitioners the chance to say that the Guardianship Amendment Act 1991 was unsatisfactory ad that they would prefer to use the Convention directly. Apparently, practitioners did not say that; the Care of Children Act 2004 re-enacts the Guardianship Amendment Act 1991, in nearly identical language, in sections 95 to 124.

Hague Convention hares – time for the gamekeeper?

The purpose of the Hague Convention on the Civil Aspects of International Child Abduction is to return abducted children to their custodial parents.

New Zealand courts have struggled to implement this simple purpose. They started one hare running – that the Convention requires a child to be returned to its non-custodial parent for the exercise of access – and have helped another on its way – that the Convention requires a child to be returned to its non-custodial parent for the exercise of guardianship.

Legislation and the Hague Convention [2007] NZLJ 91 gives this background:

“When the Convention was devised, its primary purpose was to stop non-custodial parents abducting children from custodial parents. The situation at the heart of the Convention was that of a parent who was actually looking after the child suddenly finding the child missing because the other parent had spirited the child overseas. The idea was to put in place a mechanism for getting the child back to the original country as fast as possible so that the custody disagreement between the parents could be sorted out in the country with which the child had the greatest connection.

“The parent who was not actually looking after the child might, under the law of the country of his or her residence, have access rights or guardianship rights. One such right was the right to determine the child’s place of residence, which some countries regarded as an access right and others regarded as a guardianship right. The mechanism for getting the child back to the original country as fast as possible was never intended to help the non-custodial parent enforce access or guardianship …

“The reason that the framers of the Convention did not want its return mechanism to be used to enforce the access rights or guardianship rights of the non-custodial parent was a practical one. It was that a child brought back to the original country to enable the exercise of these rights might end up with no one to look after it. If the custodial parent did not want or was unable to return to the original country, and if the non-custodial parent did not want or was unable to exercise custody, who would care for the child? The access or guardianship rights of the non-custodial parent would be protected, certainly, but at the expense of the child, and that was not the purpose of the Convention.”

The access hare was set running in 1994. A District Court said in April 1994, and the High Court said in May 1994, that the Convention did not enforce access rights (Gross v Boda [1994] NZFLR 704 and Fv T (1994) 12 FRNZ 157). However, the Court of Appeal said in December 1994 and December 1998 that the Convention did enforce access rights (Gross v Boda [1995] 1 NZLR 569 and Dellabarca v Christie [1999] 2 NZLR 548). English courts criticised this approach. In Hunter v Murrow [2005] EWCA Civ 976 (CA), Lord Justice Dyson said, “New Zealand does not recognise the sharp distinction between rights of custody and rights of access which the courts of this country have identified in the Convention … [Justice] Singer was right to conclude that the New Zealand interpretation of the Convention question that arises in this case is wrong” (at [58]).

The access hare was stopped briefly in November 2008 in Fairfax v Ireton (24 November 2008, High Court, Auckland, Justices Priestley and Cooper). The child’s custodial parent took the child to live in Australia. The other parent invoked the Convention to have the child returned to New Zealand. The application of Dellabarca would have seen the child returned so that the parent here could exercise access. The High Court declined to apply Dellabarca. The Court of Appeal ([2009] NZCA 100 at [71] – [72]), having decided the appeal on a ground not canvassed in the High Court, went on:

“In these circumstances, we see it as unnecessary to analyse the High Court judgment. Our silence on many aspects of it should not, however, be taken as implied agreement with it.

“We make just one comment. The High Court did not follow this court’s interpretation of the right to determine the child’s place of residence in Dellabarca. As we set out above at [64], Dellabarca is authority for the proposition that claimants under the Convention ‘do not have to establish that they have the right to determine the place of the child’s residence’, provided they do have rights relating to the care of the person of the child. The High Court at [107](h) expressly disapproved of this court’s interpretation and held that claimants must establish not only rights relating to the care of the person of the child but also the right to determine a child’s place of residence. It was not for the High Court to choose not to follow the decision of this court. If Dellabarca on this point requires reconsideration, that reconsideration should take place, perhaps in this court or otherwise in the Supreme Court”.

So from 24 March 2009, the access hare was off and running again.

The guardianship hare was created by Article 5(a) of the Convention, which reads: “For the purposes of this Convention – ‘rights of custody’ shall include rights relating to the care of the person of the child and, in particular, the right to determine the child’s place of residence”.

Section 4 of the Guardianship Amendment Act 1991 (GAA) implemented Article 5(a) as follows:

“(1) [A] person has rights of custody in respect of a child if, under the law of the Contracting State in which the child was, immediately before his or her removal, habitually resident, that person has, either alone or jointly with any other person or persons,—

(a) The right to the possession and care of the child; and

(b) To the extent permitted by the right referred to in paragraph (a) of this subsection, the right to determine where the child is to live.”

Section 4 was expressed like this to prevent the Convention being used to enforce guardianship rights. It dealt with “the right to determine the child’s place of residence” in Article 5(a) by treating the right as the right of a custodial parent to determine on a day-to-day basis where the child should live, ie, the right to determine whether the child can stay with someone else for a period of time as a treat or for a holiday or while the custodial parent has to be away. The section did not treat “the right to determine the child’s place of residence” in Article 5(a) as the guardianship right to determine in which country the child should live. If it had done, non-custodial parents would have been able to invoke the return mechanism in the Convention solely to exercise this right – exactly what the Convention drafters did not want.

Unfortunately, the original section 4 was replaced in 1994 as part of the Guardianship Amendment Act (No 2) 1994. A vital message disappeared from the law. New Zealand courts were no longer told that the Article 5(a) right to determine the child’s place of residence was not the guardianship right but, rather, an aspect of the custody right. Fairfax illustrates the problem that the removal of the message causes. The High Court required the child to be returned to New Zealand so the parent here could exercise guardianship. The Court of Appeal, having turned the New Zealand parent’s access right into a custody right, required the child to be returned for the exercise of access. But who was to care for the child while he was in New Zealand having guardianship or access rights exercised over him? How long did the child have to stay away from his custodial parent while the guardianship or access parent exercised rights? Such practical matters were not addressed.

The High Court cited C v C [1989] 2 All ER 465 (CA) in support of using the Convention to enforce guardianship rights. C v C held that the right of a person to withhold consent to a child leaving the country was a right of custody. Master of the Rolls Lord Donaldson, summing up the decision, said, “If anyone, be it an individual or the court or other institution or a body, has a right to object, and either is not consulted or refuses consent, the removal will be wrongful within the meaning of the convention” (at 473). According to Lord Donaldson, then, the Convention protects the Court’s function of determining a child’s place of residence and an institutional person’s right to be consulted! All this is an extremely long way from the original purpose of the Convention. If the Convention had really wanted to protect judges’ functions and institutions’ consultation rights, it would surely have said that, rather than stating that “the interests of children are of paramount importance in matters relating to their custody”.

The practical questions unanswered in Fairfax and the targets of protection identified in C v C add up to a law gone badly wrong. The reason it has gone so wrong is that courts have said that children must return to adults with guardianship or access rights, when plainly the Convention intends that those adults should go to the children. Possibly the child’s new country will not recognise the guardianship or access parent’s rights in the same way as the child’s original country did. Adults’ rights, however, are not the point. The point of the Convention is to give stability and security to children by returning them to the custodial parents from whom they have been abducted. It is not to force them to fly about the world so that guardianship or access rights can be exercised over them.

In Child Abduction Cases: Evaluating Risks to the Child and the Convention (2008) 23 NZULR 161, John Caldwell discusses the fact that most abducting parents now are custodial parents, many of them fleeing the violence of the other parent. “This phenomenon was never envisaged by the Convention drafters whose primary target was a contact parent … who consciously sought to undermine or thwart the existing custodial regime in the child’s State of habitual residence” he said at 162. In fact, what the Convention drafters never envisaged was that courts would allow non-custodial parents to use the Convention to enforce their access or guardianship rights. C v C and the decisions that followed put the interpretation of the Convention on the wrong track and only now are some courts starting to realise the harm that has been done.

When the GAA was before Parliament, one issue was whether the Convention should be implemented in New Zealand by a statute elaborating the provisions of the Convention or a statute stating simply that the Convention in the schedule was the law in New Zealand. England did the latter and its statute was cited as the better precedent. A decision like C v C, however, raises serious doubts about the English approach. It meant no lawmaker studied the Convention to identify problems that may be hidden in its language. The English courts were thus given no statutory assistance as to the Convention’s scope. The source of misinterpretations of the Convention may well lie in the method of implementation that declares an international convention to be the domestic law. (See Legislation and the Hague Convention for more on this and note that the Court in Butler v Craig [2008] NZCA 198 could not have urged Parliament to amend the statutory provisions to allow for discharge orders if there were no provisions to amend.)

The Convention says access rights and guardianship rights are not custody rights. New Zealand courts say they are. The legislative gamekeeper must consider stepping in. The original version of section 4 in the GAA conveyed the essential message clearly but not bluntly. It failed. Now may be the time to amend Part 2, subpart 4, of the Care of Children Act 2004 to state unequivocally that access rights and guardianship rights are not custody rights.

“The Matrimonial Property Bill – misguided chivalry?”

The provoking title of Mr Fisher’s article promised an amusing and scholarly discussion of a most significant legislative measure. What was delivered turned out to be a witty attack on the Matrimonial Property Bill. Unfortunately, the two things are by no means the same.

It is not my purpose here to be amusing: for many New Zealanders the question of the division of matrimonial property is not a particularly humorous one. Nor is it my purpose to be scholarly: precise and careful reading of the Matrimonial Property Bill does not qualify me as a savant. Rather, I intend to show as concisely as possible the fallacies concealed in the superficially persuasive arguments in Mr Fisher’s attack.

Effect of the Bill

Accepting the highly unusual facts devised by the author, I suggest that the Bill can be applied as follows:

Home, furnishings, bach: divided equally (clauses 8(1)(a), 12(1)).

Business: the wife^‘s shares were her separate property; the shares became the husband’s separate property; but (i) the wife gave the shares believing that “in this way the whole family will benefit from her generosity in the long run” (p 253) ie the gift was intended for the “common … benefit of the husband and wife” and thus, under clause 8 (7), the shares would be viewed as matrimonial property; or (ii) alternatively, the shares became and remained the husband’s separate property. The shares increased in value. The increase was due to the husband’s spending nearly all his time and money on business, and on luck. The wife enabled the husband to devote himself to the business by caring for the children, managing the house economically, earning extra money, buying assets, and supporting her husband’s weak character. She thus made an extensive contribution in terms of clause 14 (1). Because the increase in value of the shares, the husband’s separate property, was partly attributable to her contribution, the increase became matrimonial property under clause 8(3); the wife’s large contribution would be rewarded by a fair share either of the business itself (clause 8(7)) or of the increase in value (clause 8(3)).

The author comes to a different result because: (i) the second way described in clause 8(7) by which a gift can become matrimonial property is ignored; and (ii) clause 8(3) is not given its due weight because of the author’s reading of clause 14(1)(b). Clause 14(1)(b) does not intend, or state, that “a domestic” contribution is “not traceable” to the business, a separate asset. The wife’s work in the home and outside it contributed to the extent and value of the domestic assets. She thus freed her husband to work in the business, and so made a contribution to his separate property.

The author appears to believe the wife would be better served by the present law. In fact, under section 5 of the Matrimonial Property Act 1963, the husband could claim a share in the home, furnishings, bach, and business. The Court probably could not have regard to the parties’ common intention that the first three items should be the wife’s alone. There is no evidence that when the husband acknowledged the wife’s ownership he had the situation of a marriage break-up in mind (West v West [1966] NZLR 247 (SC)). The wife’s medical expenses would be subject to an agency of cohabitation – a doctrine based on the presumption that a married woman would have no property and therefore would not be worth suing. This is scarcely a dignified or desirable position for a married woman.

Even if the author’s interpretation of the present law were correct, the argument misses the point. Of course there will be some cases where a wife would be better off under the present law than under the Bill. Such cases will occur in the unusual circumstance of a wife possessing more property or a greater earning capacity than her husband. But to concentrate exclusively on the wife’s position is to ignore the expressed purpose of the Bill. As stated in the title, that purpose is “to recognise the equal contribution of husband and wife to the marriage partnership; to provide for a just division of the matrimonial property between the spouses . . .”.

The Bill’s scheme of reapportionment

(a) Domestic Assets The author’s main concern here is the reason for the selection of certain assets to be divided equally.

The assets chosen are basic family assets which most couples intend to be used and owned jointly. There is no New Zealand research study to this effect but the following information from a survey carried out on behalf of the UK Law Commission may be of interest (Matrimonial Property, Todd, J F and Jones L M (1972), pp 11 – 13).

Matrimonial home: The vast majority of husbands and wives thought of the accommodation as belonging to them both.

Car: In most cases husbands and wives felt that the ownership was shared.

Furniture and fittings: In most cases husbands and wives felt that all the furniture belonged to them both.

Other large household items, eg refrigerator, vacuum clearner etc: Nearly all husbands and wives viewed at least some of these items as belonging to them both.

The Bill does not impose equal division in circumstances where it would be unfair. Clause 12(2) and (3) provides for these cases.

(b) Contributions The author’s main concern here is that the deficiencies of the 1963 Act are perpetuated. In fact, the fuller definition in clause 14, and in particular the introductory words of clause 14 (1)(b), should do much to negate the defects of the present Act.

(c) Separate property The author’s main concern here, and elsewhere, is that the Bill makes no allowance for ‘‘common intention”. However, the Courts have not found common intention a useful guideline for the division of property on divorce. This is because most couples do not have the breakdown of their marriage in mind when they express a common intention. The Bill has thus turned away from the idea of the expressed common intention to give effect to the unexpressed intentions of the majority of married couples during the subsistence of marriage.

A related major concern is the way the Bill deals with gifts, which the author sees as a very difficult area. The solution to his problems lies in a proper understanding of the Bill.

In its treatment of gifts the Bill continues to give effect to spouses’ unspoken wishes. When one spouse makes a gift to the other he may intend that: (i) both spouses should use or have the benefit of the gift; or (ii) the gift should be the recipient’s separate property. In this case, the recipient may treat the gift so that it remains separate property throughout the subsistence of the marriage. On the other hand, he may allow it to become inextricably intermingled with other matrimonial property.

Logically, a gift for the use or benefit of both partners and a gift which becomes totally intermingled with matrimonial property ought to be matrimonial property. Clause 8(7) ensures that this is in fact the case. Depending on why property was given, or how it is subsequently used, it may become matrimonial property. An inter-spousal gift is thus by no means always separate property.

Bearing in mind this explanation of clause 8(7), the following points can be made in answer to the four problems the author discusses on pp 255-6:

(i) Any difficulties of proof will not be insurmountable. One element in establishing the nature of property transferred from one spouse to the other is what was said at the time of the transfer. This may leave the matter in doubt. The second element is therefore the use to which the property has been put. If property which may have been a gift has been employed for the common use or benefit of both spouses, or if it has become so intermingled with other matrimonial property that it is unreasonable or impracticable to regard it as separate property, then clause 8 (7) applies, as just discussed.

(ii) There is sufficient flexibility in the Bill’s treatment of gifts to allow for changes in circumstances. The flexibility lies first in the two ways in which a gift, prima facie separate property, can become matrimonial property. Second, the Bill is flexible because, even if the Court eventually decides a gift is separate property, the donor spouse may be entitled to a share in the gift. This will depend on whether he has contributed to its increase in value or to income made from it (clause 8 (3)).

(iii) All the equitable doctrines referred to by the author have been replaced by the provisions of the Bill. Clause 4(1) makes it quite clear that none of these equitable rules could be revived.

(iv) A gift is excluded from the Bill’s scheme of reapportionment only when it has been established that the gift is separate property (see above).

The author makes the statement that “In a sense whenever a spouse makes a direct or indirect contribution of money or property to the overall assets of the marriage without reserving strict beneficial title to himself, a gift occurs since the other spouse benefits without giving any adequate or related consideration” (p 256).

If the author is concerned about “consideration”, surely it lies in the contribution to the marriage of the other party. The situation is readily – if quite artificially – analysable in traditional terms of contract law.

In truth, however, the author’s view suggests a fundamental misapprehension of what the Bill is all about. The rules of contract may neatly fit the property dealings of strangers, but they ill suit the unique relationship of husband and wife. All aspects of property law must be adapted to the nature of the marital partnership. That is why the Bill is expressed to be a code.

(d) Support The author’s main concern here is the abolition of capital maintenance, a point which does not go to the heart of the Bill. Capital maintenance should not be necessary. In all the examples given by the author, the situation would be adequately met by awarding the wife her fair share of the matrimonial property and a small amount of maintenance. The retention of capital maintenance in a fair sharing statute would be anomalous. If both parties have a fair share, why should one spouse then give up part of his property to the other spouse?

A sequel

The problems the author discusses here cease to exist if it is remembered that, until the matrimonial property is divided, property is held separately. The system is one of deferred sharing ie separate ownership and management until the end of the marriage, when the property is divided fairly. With some variations, the system is in operation in Quebec, Denmark, Finland, Norway, Sweden, West Germany, and Holland. It has been recommended in Ontario, Saskatchewan, Alberta, and Manitoba.

In this connection, some comment should be made on the author’s final footnote. The Report of the Quebec Civil Code Revision Office has been acted on, and since 1970 a deferred sharing system has been the basic family property law in that province. The Ontario Report on Family Property Law (Part IV of the Ontario Report on Family Law) recommended that Ontario implement a deferred sharing system. The Studies in Family Law contain, inter alia, a working paper of the Law Reform Commission of Canada which discusses approaches, including deferred sharing, to the division of matrimonial property. The English Law Commission, on the other hand, has rejected deferred sharing. It merely recommends improvements in some aspects of the law as it affects matrimonial property. This “tinkering” approach was rejected for New Zealand by the^; Special Committee on Matrimonial Property which reported to the Minister of Justice in 1972. The Committee saw a “need to enact as soon as possible a single, clear and comprehensive statute to regulate matrimonial property in New Zealand” (Matrimonial Property, Report of a Special Committee presented to the Minister of Justice in June 1972, p 1).

Conclusion

Mr Fisher concludes that the method of achieving comparable treatment for wives prescribed in the Matrimonial Property Bill is “a disaster” (p 258). My reading of the Bill does not suggest that this is so. Perhaps it is a question of approach. It seems to me that the author applies traditional rules and concepts of property law to a Bill that is deliberately designed to do away those rules and concepts in the context of husband/wife relations. To judge the Bill in those terms is like judging the Accident Compensation Act in terms of the pre-existing law of tort.

Property (Relationships) 1976 Act: minor structural adjustments

In A v R [2007] 2 NZLR 399 (HC), Justice Chisholm said, at [44], “As the [Family Court] Judge observed, the legislative approach of grafting major amendments on to existing legislation is unusual. If completely new legislation had been enacted the difficulties now confronting the Court in this litigation might have been avoided.”

The legislation the Judge was referring to was the Matrimonial Property Act 1976 (the 1976 Act) and the major amendments grafted onto it were in the Property (Relationships) Amendment Act 2001 (the 2001 Amendment Act). Completely new legislation was not enacted in 2001, and my guess is that a neatly rewritten statute will not replace the Property (Relationships) Act 1976 (Act) any time soon.

There are a number of areas of the Act where drafting improvements could be made to tidy up the structure that resulted from the grafting process in 2001. It would be inappropriate for me to suggest drafting changes requiring policy decisions. However, I can suggest small, purely drafting, changes that would give the Act greater coherence.

Divide off the back room

To put it metaphorically, the plan of the Matrimonial Property Amendment Bill introduced in 1998, which became the 2001 Amendment Act, was to add a new room, dealing with division on death, at the back of the existing room, which dealt with division during life. The existing room was to have instructions added to it to help people find and use the new room but was otherwise to stay essentially the same. Unfortunately, the plan was mislaid after the bill was introduced and no alternative plan was used. The result is an Act that appears somewhat jumbled. However, only minor carpentry is needed to put it into a tidier shape.

The first task is to restructure the early substantive sections. The directions in sections 10A (Application of Act to division of relationship property where both spouses or partners alive), 10B (Application of Act to division of relationship property on death of spouse or partner), 10C (Application of Act in other circumstances), and 10D (Proceedings), which help people find their way through the Act, need to be nearer the front. The following scheme would put the sections in a more useful place:

Part 2 一 Preliminary provisions

Sections 1M and 1 N	Purpose and principles
Sections 2 to 2E	Interpretation
Section 3	Application to the Crown

Part 3 一 Application of the Act

Sections 10A to 10D	Application during the joint lifetimes of the spouses or partners, on the death of one spouse or partner, and in specific circumstances
Sections 4 to 7A	Application or non-application in various guises

Part 4 – Division of relationship property

Sections 2F to 2H	Timing rules on shares, value, and use
Sections 8 to 10	Categories of property
Section 11 onward	As at present

The second task is to amend section 7 (Application to movable or immovable property). Section 7(2)(c) contains the only substantive rule on the application of the Act to the situation on death to appear in the early sections. The rule should be extracted and placed in Part 8 (Division of property where 1 spouse or partner dies), and section 7 should contain a pointer to the relevant section in Part 8.

The third task is to amend Part 6 (Contracting out). The Part appears to be trying to be comprehensive in relation to contracting out, covering agreements that apply on the ending of relationships during life and on death. However, it does not deal with challenges to an agreement after the death of a spouse or partner. That issue sits by itself in section 87 (Surviving spouse or partner may challenge agreement).

Part 6 cannot now be easily sorted into provisions that apply when a relationship ends during life and provisions that apply when a relationship ends on death. The simplest solution is to make the Part comprehensive by bringing section 87 forward and absorbing it into, or putting it after, section 21J (Court may set agreement aside if would cause serious injustice). Duplication between section 21J and section 87 should be removed, as should duplication between sections 21 (2)(a)/21 D(1)(b) and sections 21(2)(b)/21D(l)(c) (Spouses or partners may contract out of this Act /Subject matter of agreement).

The fourth task is to bring consistency to the pointers that help readers use Part 8. As explained in the explanatory note in the bill, the original plan was that, if an existing section was modified or affected by a new section in Part 8, a new subsection saying so was added to it. The added subsections were in uniform language. An existing section was said to be modified if its substance was changed by the new section when it applied in proceedings brought after death. An existing section was said to be affected if its application in the situation after death could be fully understood only by reading the new section. As the Act is now, the pointers have an arbitrary appearance in where they are and what they say.

Pointers are needed in section 14A (De facto relationships of short duration), which is affected by section 85 (Marriages, civil unions, and de facto relationships of short duration), section 20A (Rights of creditors preserved), which is modified by section 58 (Rights of creditors preserved), section 20C (Payment of protected interest on bankruptcy of other spouse or partner), which is modified by section 59 (Payment of protected interest where estate insolvent), and sections 28A to 28D (Factors affecting occupation orders and orders with respect to tenancy, Ancillary furniture orders, and Furniture required to equip another household), which are affected by section 91 (which I suggest below should be renamed “Occupation orders and orders with respect to tenancy”).

Some pointers need to be made more exact. The reference in section 8(2) (Relationship property defined) to section 83 should be replaced by a reference to sections 81 to 83 (Presumption that property of deceased spouse or partner is relationship property, Presumption that property acquired by estate of deceased spouse or partner is relationship property, and Relationship property defined). The reference in section 24(4) (Time limits for making applications) to section 89 (Time for commencement of proceedings) should be replaced by a reference to sections 89 and 90 (Time limits for commencing proceedings).

Other pointers need to be expressed in standard language. Section 9(4)(b) (Separate property defined) should be repealed and a subsection added to section 9 saying that it is modified by section 84 (Separate property defined). Section 10 (Property acquired by succession or by survivorship or as a beneficiary under a trust or by gift) should have a pointer to sections 81 and 82, and sections 81(4) and 82(4) should be replaced by substantive rules on the conversion of section 10 property into relationship property.

Level the front room’s floor

Section 25(1) (When Court may make orders) provides that, when an application is made to the Court, the Court may make orders under the Act.

The purpose of section 25(2) is to state the circumstances in which spouses or partners are entitled to an order under the Act because their property relationship has broken down. Section 25(2)(a) and (b) deal with the usual case of spouses or partners claiming their shares of the relationship property so that they can go their separate ways. Section 25(2)(c) and (d) deal with the less common case of a spouse or partner in an ongoing relationship needing to end the parties’ property relationship to protect the property from the undesirable financial activities of the other spouse or partner.

Although these two cases are the foundation stones of the Act, they are not laid neatly side by side at the front of the Act. The first does appear there, in section 2A(2) (Meaning of marriage), section 2AB(2) (Meaning of civil union), and section 2D(4) (Meaning of de facto relationship). The second, however, is buried in a Part headed Proceedings under this Act (Part 7) under the section heading “When Court may make orders” (section 25). To level the floor of the Act (while making the smallest drafting change), the language of section 25(2)(c) and (d) needs to be brought to the front of the legislation and placed in sections 2A(2), 2AB(2), and 2D(4). Section 2A(2), for example, would read:

“(2) For the purposes of this Act, the marriage of a husband and wife ends if—

(a) they cease to live together as husband and wife; or

(b) their marriage is dissolved; or

(c) one of them is endangering the relationship property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings; or

(d) one of them is an undischarged bankrupt; or

(e) one of them dies.”

Section 25(2) would read “The Court may not make an order under subsection (1) unless it is satisfied that the marriage, civil union, or de facto relationship has ended.”

The inclusion of paragraphs (c) and (d) in a description of the ways that a marriage, civil union, or de facto relationship ends is consonant with the fact that the Act is about sharing property. Its subject is the property relationship between the parties. Its purpose is to provide a deferred sharing regime that attaches at the point when the parties’ property relationship is over. The words “For the purposes of this Act, the marriage of a husband and wife ends” in section 2A(2) are the words that, in 1976, were the acceptable way of saying “For the purposes of the deferred sharing regime provided by this Act, the property relationship between the husband and wife ends”.

In practice, the Act is normally applied in cases in which the parties’ entire relationship has failed, but, since its enactment, it has also been available for cases in which only the property relationship has broken down. This intent was clear in the long title of the 1976 Act, ie, “An Act …to provide for a just division of the matrimonial property between the spouses when their marriage ends by separation or divorce, and in certain other circumstances”. By 2001, long titles had been replaced by purpose sections. The Act now has section 1M (Purpose of this Act). Section 1M(c) repeats the language of the long title from the 1976 Act, but the Act’s other provisions have not been adjusted to reflect this purpose.

The amendment of sections 2A(2), 2AB(2), and 2D(4) to carry the purpose through into the Act needs to be accompanied by consequential amendments to other sections.

Several provisions need to be adjusted to refer to a marriage, civil union, or de facto relationship ending (sections 1C(1), 1G, 10A, 10B(2), 15(1), 15A(1), 18B heading, 18C heading, 47(3)(a), 86 heading, 86, and 87(1)(a)).

Section 2F(l)(a) and (b) (Date at which shares to be determined) and section 2H(2)(a) and (b) (Determination of use to which property put) need to be replaced by paragraphs distinguishing between endings that result in couples living apart and those that do not.

The details in section 4C (Application to existing and future de facto relationships) and section 4D (Application to de facto relationships that end on separation or death) are part of what constitutes a de facto relationship for the purposes of the Act and so should be incorporated in section 2D.

Section 9(6) should be extended to reflect the new subsections 2A(2)(c) and (d) (and the equivalent new paragraphs in sections 2AB(2) and 2D(4)).

Sections 25(5) and (6) should be repealed.

Section 79(l)(a) and (b) (Date at which shares determined) and section 80(2)(a) and (b) (Classification of property) need to be replaced by paragraphs distinguishing between marriages, civil unions, and de facto relationships ending during life and those ending on death.

The heading of section 91 (Qualifications on application of sections 25 to 34 and 43 to 44F) should be changed to “‘Occupation orders and orders with respect to tenancy”, and section 91(1) should be repealed.

Finishing touches

Section 25(4) was added to the 1976 Act by the 2001 amendment. It provides that, if proceedings are pending, the Court may make an interim order for the sale of any relationship property. Section 45 (Family chattels not to be disposed of) was not consequentially amended to acknowledge that family chattels may be disposed of if an interim order allows a sale. This consequential amendment should be made.

Section 88(2) (Who can apply) and section 95 (Effect on application of Act of choice of will or intestacy) were added to the 1976 Act by the 2001 amendment. Section 95 was not consequentially amended when section 88(2) was inserted. The relationship between the sections has now been resolved by the Court of Appeal (Public Trust v Whyman [2005] 2 NZLR 696). In this instance, the missing consequential amendment should be made, rather than relying on the case law. Sections 88(2) and 95 have a continuing effect and it would help readers if the relationship between the provisions was plain on the face of the Act.

Conclusion

The Matrimonial Property Bill was not a popular measure when it was introduced and needed defending from its critics (see, for example, “The Matrimonial Property Bill – Misguided Chivalry? A critique of R L Fisher’s article [1976] NZLR 253″ by Margaret Nixon [1976] NZLJ 438). However, it has proved a sturdy building, weathering the storms that have raged around it in the last 32 years. It would be ideal to reconstruct it now using modem, plain language tools. In the meantime, though, some minor structural adjustments would help to minimise the creaking of its joints.