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The Canary Islands and Detained Asylum Seekers:
One might ask what this Spanish Island and imprisoned refugee claimants might have in common: the thought stems from the ratio of the Court of Appeal in a Hague Convention case which necessitated a return to Tenerife: ie, the parens patriae jurisdiction of the High Court's inherent jurisdiction could not be called upon in aid of the appellant in Butler v Craig [2008] NZCA 198; (2008) 28 FRNZ 112. This was a case where Heath J told the writer to stop being a jack-in-the-box instructing solicitor seated in the public gallery, bobbing up to whisper in senior counsel's ear. Aside from that and the return to life of the dormant volcano on La Palma, the link to refugee law is described as twofold: (1) the treatment of refugee claimants is like a canary down the mineshaft for a nation (NZ has a lot to improve) and (2) the practical processing of warrants of commitment under Part 9 of the Immigration Act 2009 would benefit from use of the parens patriae jurisdiction to make the process fairer. Compliance officers of Immigration New Zealand (not lawyers) draft the application and supporting affidavits for District Court judges in busy Lists. Understandably the Court relies on counsel (including the in-house MBIE counsel who are handed forms by the Compliance officers) when making decisions. The respondent's counsel is given 1-2 days before the revolving 28 day hearing to prepare a response having taken instructions (if lucky) from the Prison where the client is held: with limited forewarning of the bases for detention and little or no ability to obtain evidence). While s 3(1) of the Immigration Act 2009 requires a balancing of Crown and the individual's rights, presently the balance is too far in favour of the Crown - and some use of pre-hearing resort to the High Court to even the balance (such as compelling service of papers well in advance of the 28 day cycle) might be needed. Such "aid" would arguably be within the powers of the District Court's inherent powers, but: "[52] The rationale for the suggestion that the High Court should exercise its inherent jurisdiction lies in its supervisory role over inferior courts. We hold that the High Court’s inherent jurisdiction is not available to assist a Family Court when the latter is given express jurisdiction by a statute to exercise originating jurisdiction over all Convention issues. No adjectival jurisdiction is required."

During the Review being undertaken for the Minister of Immigration by Margaret Casey QC of Part 9 of the Immigration Act, a recommendation that the express ability of the High Court to intervene using its inherent jurisdiction be enabled. There is, for example, no ability to grant (electronic) bail to a detained asylum-seeker (which would assist with the prosecution of the underlying refugee claim). This is slightly different to s 320 release on conditions. Electronic bail is not available for detained asylum seekers primarily because Corrections and Immigration New Zealand cannot work out a funding stream. Surely, in trying to have New Zealand keep its international obligations at refugee and complementary protection law - asylum seekers and their counsel deserve a fighting chance?

The Incorporated Societies Act 1885 was enacted to cater to the footballers of the colony, to help structure Antipodean rugby clubs. The 1908 Act was drafted by s Sir John Salmond, who drafted the Bill in reasonably stark form. As noted in Alex Frame's biography of Sir John Salmond, "The Southern Jurist", Sir John led an exceptional life. He was heavily involved in the formation of the League of Nations and he served as a High Court judge for many distinguished years.

As society has changed, slightly different emphases are needed and the Incorporated Societies Bill 2021 has patiently waited for enactment, while parliament has focused on addressing the Covid-19 pandemic and its economic health and social welfare ramifications.

In a nutshell, following a thorough assessment of mooted reforms by the Law Commission and after a further round of public submissions, the changes might be characterized as incorporated some aspects of Australian Associations law and other aspects of the Companies Act 1993 regime (with strengthened powers for members - such as utilising a process akin to that of prejudiced shareholders: s 174 of the Companies Act, as well as the derivative shareholder regime). The Bill outlines a more prescriptive framework (but does not provide a default constitution) and has strengthened accountability processes such as overtly adopting natural justice precepts, which are emphasised in Australian States' Association legislation.

Rewriting constitutions might be a task usefully done by club and society committees during lockdown - with the rules to helpfully permit meetings by Zoom!

The manifestation of one's religious beliefs (which includes lack of said beliefs) is a fundamental right - ss 13, 15 New Zealand Bill of Rights Act 1990 and article 18 of the International Covenant on Civil and Political Rights 1966.

The rules of a religious association are generally viewed as a bargain. For some time, the civil, secular Courts were chary about assuming jurisdiction of matters where a ruling on spiritual matters was required. It is accepted that the veracity of religious beliefs is non-justiciable, with Shergill v Khaira [2014] UKSC 33 allowing even doctrinal content to be considered where civil rights are at play in the dispute. In more recent times, (such as in Matamu v Si'itia) [2017] NZCA 482, [2018] NZAR 348) the Courts are more likely to view the dispute through a contractual lens. This means contractual remedies are more likely to be available.

In the present day, Courts actively seek and do determine the content of the bargain (or contract), then simply apply its terms to the facts of the dispute.

Maxwelton Chambers have experience in the following legal matters in this area of law:

  • advice on drafting the Bargain (deed, constitution or rules).
  • advice as to the structure of religious bodies.
  • advice and representation on the human rights ramifications of religious disputes.
  • disputes where Richard has acted include: the 2005-2010 Samoan Assemblies of God schism (on ecclesiological grounds); the Avondale union Parish litigation: Matamu v Si'itia; independent church (Whangareii High Court judicial review) meeting, membership and ultra vires membership and property usage dispute; church discipline (internal church processes) 1999-2002; sale of church properties (Presbyterian to Buddhist convent); sale to private owner of church with urupa (involving obtaining a disinterment licence from the Ministry of Health).
  • advice as to drafting documents for registration with the Charities Board.

The Clerk of the House drew 5 Members' Bills from the fabled biscuit tin on 23 September 2021. The Companies (Directors Duties) Amendment Bill was drawn, sponsored by Christchurch lawyer and former LCRO Member Duncan Webb. The short bill reads:

Section 131 amended (Duty of directors to act in good faith and in best interests of company)

After section 131(4), insert:

(5) To avoid doubt, a director of a company may, when determining the best interests of the company, take into account recognised environmental, social and governance factors, such as:

(a) recognising the principles of the Treaty of Waitangi (Te Tiriti o Waitangi):
(b) reducing adverse environmental impacts:
(c) upholding high standards of ethical behaviour:
(d) following fair and equitable employment practices:
(e) recognising the interests of the wider community.
It could be a model for reforms being undertaken in Part 9 of the Immigration Act 2009.
This Member's Bill may travel under the radar, but if enact could have signifcant impact on persons as corporate citizens, such as in climate change matters (Kamalnath "Corporate responsibility for climate change creates a new era in tort law? Hold your horses" [2020] NZLJ 129 ) and other ethically troubling issues - see for example: Nevsun Resources Ltd. v Araya 2020 SCC 5, Vedanta Resources plc. v Lungowe [2019] UKSC 20.  On this tack, see further, Akshaya Kamalnath “Corporate Insolvency Resolution Law in India - A Proposal to Overcome the 'Initiation Problem” (2019-2020) UMKC L. Rev. 631.

The Bill and commentary raised above are in keeping with the hardhitting speech of UN Secretary-General Antonio Guterres in support of the report released on 23 September 2021 as well (UN Secretary-General António Guterres says a report published[23/9/21] by the Intergovernmental Panel on Climate Change (IPCC) is a “code red for humanity.” [Guterres: The IPCC Report is a code red for humanity (unric.org).

This "plain Jeremy" private member's bill may prove very impactful in an understated way. It first needs to progress.