QUARTERLY - 'Kiwi law' emerging - Auckland Justices Of The Peace ...
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Justices’ Page 1 January 2018 Volume 86 Number 4 QUARTERLY ‘Kiwi law’ emerging FIAT JUSTITIA RUAT CAELUM
Page 2 PRESIDENT’S PAGE 1 Providing quality service T enā koutou. skills to ensure ongoing quality of As I sit down to write my last service to the public. Justices, as column as President the sun statutory officers of the law, should is streaming in and winter is be no less accountable than any a distant memory. other official charged with serving Time certainly marches on, and as I the public. reflect on nearly two years in office I Accessibility of our services can only agree that the one constant continues to be enhanced throughout in life is change. When thinking the country by the increase in about the Royal Federation of New service desks. We have long Zealand Justices’ Associations’ provided services from our homes Vision Statement, “Excellence in and workplaces but the introduction the provision of accessible justice of service desks is a relatively services”, there have been some recent initiative. Associations are to significant developments in both be congratulated on the increasing the “excellence” and “accessible” number of desks and thus the hours components over the past two years. Justices are making themselves Accreditation, introduced in available to the public. I would July 2016 after considerable encourage any Justice who does Federation President Denise Hutchins not currently participate in a service discussion at successive AGMs, is aimed at ensuring Justices desk roster to give it a go if you have Minister of Justice and Ministry continue to provide a quality some time available. I appreciate of Justice officials in an attempt to service, by maintaining their skills it is not always possible for those get the matter of the requirement and knowledge. However, it is a in employment or with other for ongoing competence addressed. voluntary process and currently limitations on their availability, but The election meant there was a only available to Justices who are those of us who can, should. pause in that activity but now that members of affiliated associations. the new Ministers have received Thank you to all associations for the The maintenance of competence their delegations, we are renewing welcome afforded Board members in the role once sworn in, for all our efforts. There is much to do at AGMs. As always we enjoyed Justices of the Peace, is an area that in this area and Justices can rest the opportunity to meet with as needs addressing urgently. There assured that it will be a key focus many Justices as possible and to is no requirement in legislation for the Board in the year ahead. provide an update on Federation for this to occur. That two-thirds activities. I am looking forward to The majority of associations of the Justices in New Zealand chairing the AGM/Conference in continue to explore ways to engage belong to the Federation’s affiliated Christchurch on March 2-4. Hosted their wider membership and are associations, and thus have access by the Canterbury association, who open to innovative ideas about how to ongoing education, does not are celebrating their centennial in this might be achieved. Some are guarantee they will maintain the 2018, it would be fitting if as many having considerable success, others most up-to-date knowledge. The Justices as possible were able to struggling. My challenge to Justices issue most commonly raised at attend. who do not attend keeping up to association AGMs I have attended date sessions at least once a year is, I trust that all Justices and their over the past two years is, how do how do you know you are providing families have had a safe and relaxing we engage Justices who belong a quality service to the people who time over the holiday period and are to our association but don’t keep come to see you? By what standard looking forward to an active and themselves up to date? do you measure yourself? positive 2018. Following the direction given by Justices give their time to the Ngā mihi nui. associations at the 2017 AGM in community to undertake the role. Denise Hutchins Rotorua, the Board has been active This does not exempt them from in engaging with the Associate having the current knowledge and
Page 1 NEWS Education role filled S hinae Skelton has been appoint- ed to the role of Professional De- velopment Advisor, previously AND ITS AFFILIATED ASSOCIATIONS the National Education Officer. She is Te Kāhui Pou Whakatau Ture O Aotearoa based at the Federation National Of- fice in Wellington. EDITOR: GEOFF DAVIES JP Email: merlin81@xtra.co.nz Shinae comes to the Federation from Phone: 04-472-5566 the Wellington District Court, where she was a Deputy Registrar and the NATIONAL OFFICE: TONY PUGH JP Jury Trial Scheduler. PO BOX 5005 WELLINGTON “My time at the District Court was an Telephone 04-918-8447 Fax 04-918-8034 invaluable learning experience,” she Email: registrar@jpfed.org.nz says. Website: www.jpfed.org.nz ISSN 2382-12164 (print) “I collaborated with passionate Jus- ISSN 2382-1272 (on-line) tice professionals, met customers cop- ing with extraordinary circumstances Shinae Skelton and experienced the law in action. I enjoyed working with several Judicial “Thank you all for your warm wel- Justices of the Peace during that time comes. One of the most attractive January 2018 and hope to work with many more. aspects of this job is the opportunity VOL 86 No: Four “While working at the District Court to work with people who are commit- I completed my law degree and also ted and engaged. I look forward to the Judicial practicum, a Bachelor of Arts, majoring in psy- challenge of delivering educational ACJA conference - reports 2 chology. I also began post-graduate resources that meet your needs and ‘Taking it to the streets’ 3 study in the field of forensic psychol- learning styles. From the National Manager 4 ogy. “Please feel free to contact me if you At the Ashburton AGM 5 “I am currently enjoying my first have any ideas for the Education pag- Regional conference 6 study break in nearly a decade. In my es or issues you would like to raise. Education 7-10 spare time I am an avid baker, novice I hope to meet or hear from many of Cover story: New Zealand DIYer and aspiring traveller. you.” law emerging 11 Crossword 15 Moving with the times Letter to the editor 16 Readers have the option of receiving the Quarterly as a PDF rather than a hard copy. Hubbard inside back cover To take up this offer please advise the office by email: administrator@jpfed.org.nz. Telephone requests will not be processed. Patron: The Rt Hon Dame Patsy Reddy GNZM • If you have already asked to receive the magazine electronically but you are QSO Governor-General of New Zealand still getting the hard copy, please advise the administrator. President: Denise Hutchins JP Immediate Past President: Graeme Kitto JP ON THE COVER: Rewa Bennett (Ngati Vice-President: Rachael O’Grady JP Manu), pictured in 1932, was New Zea- Northern Regional Representative: land’s first Maori woman JP. Her great- Peter Osborne JP grandson, District Court Judge Greg Davis, and research counsel Jaime-Anne Auckland Regional Representative: Patrick Samson JP Tulloch have contributed a landmark article to this issue of the Quarterly on the Central Regional Representative: development of a New Zealand flavour to Terry Byrne JP the law, and how JPs have a role to play Southern Regional Representative: Cathy Hurst JP in that process – see P11. Honorary Solicitors: Buddle Findlay National Manager and Registrar: Tony Pugh JP MBA BBS ACA AGM/Conference 2018 Professional Development Advisor: Shinae Skelton BA LLB in Christchurch Administration Officer: Sarah Gillard March 2-4 Editor, NZ Justices’ Quarterly: Geoff Davies JP Register now to attend at jpfed.org.nz
Page 2 NEWS Mission accomplished By Federation Vice-President RACHAEL O’GRADY A fter six months of dedicated study Cathy Hurst and Wellington Judicial edin and as far north as Whangarei, in the Judicial Studies Course, 13 Justice Hewitt Humphrey. National the students coped very well in this Justices were invited to attend Manager Tony Pugh and Administra- new context, exercising a new set of the 2017 practicum held in Wellington tion Officer Sarah Gillard also made skills. During their time in Wellington in November. valuable contributions to the smooth all the Justices described the sense of Judge Barbara Morris, as the Chief running of the practicum. challenge they experienced before the District Court Judge’s delegate, over- The Federation is also grateful for the practicum, but which soon gave way to saw the practicum. That role involved time that Police prosecutors and law- a sense of achievement and a keen de- leading discussion-based sessions, ob- yers from the Public Defence Service sire to continue learning. serving how students responded in the set aside to be involved in the practi- There is no denying that the commit- discussions and how they managed cum. There is a great deal of value in ment to study is a considerable one themselves during the courtroom role- having contributors with their level of and the 2017 cohort of students is to be play opportunities. experience who are happy to share their commended on the positive attitudes I served as programme facilitator, ably knowledge and time with our students. they displayed throughout the practi- assisted by Federation Board member Coming from as far south as Dun- cum. Back row, left to right: Hewitt Humphrey, Dennis Bush-King, Cathy Hurst, Greg Clapp, Darren Quirk, Kevin Tansley, Aaron Snodgrass, Carl Netzler, Garry Nicholls, Judge Barbara Morris. Front row, left to right: Colleen Hayes, Tina Barrett, Emanuel Kalafatelis, Fiona Dransfield, Billie Watmuff, Rachael O’Grady, Betsy Wynne. An Australasian voice By Federation President DENISE HUTCHINS T he annual Australasian Council of “An accessible, consistent and high- As is usual at such meetings the infor- of Justices’ Associations (ACJA) quality Justice of the Peace service in all mal discussion time was very valuable. conference was held in Adelaide Australasian jurisdictions”; a number of It appears that Justices not remaining in October last year. The Federation education-focused proposals, including current in their role is a problem in was represented by Vice-President an accreditation process for the Austral- Australia, as it is here. Various mecha- Rachael O’Grady and me. A brief but ian states; changes to financial arrange- nisms have been tried in Australian ju- well-organised conference provided the ments for the ACJA, and an adjustment risdictions but without legislation and/ opportunity to talk with representatives to the organisation’s voting system. or resources, they have had limited suc- from the majority of jurisdictions in Rachael and I were members of and cess. Tasmania is currently considering Australia. contributed to the strategic plan and a draft Justice of the Peace Bill which Throughout the past year the ACJA Ex- education working groups throughout requires Justices to maintain compe- ecutive has facilitated the development the year. tence but is silent, at this stage, on the of a number of initiatives that were in- The future of the ACJA was also dis- mechanism to achieve that. formally discussed at the Friday after- cussed, with New Zealand proposing noon conference session, and formally The next meeting of the ACJA will be that that it work towards becoming the addressed at the Saturday meeting. professional voice for Australasian Jus- held in New South Wales in October These included the adoption of a stra- tices’ associations. 2018, and our Federation will host the tegic plan for the ACJA, with the vision 2020 Conference.
Page 3 NEWS ‘Taking it to the streets’ By GRAEME KITTO “For me, the whole experience was I very humbling,” said Ian. He was im- n November 2017, for the first time pressed with the variety of ethnicities since April 2012, Immigration New of the clients, the manner in which they Zealand offered an opportunity for related to each other and the calm way former refugees to apply to sponsor in which everyone went through the family members to New Zealand. process, thanks to the excellent organi- The numbers of such refugees attend- sation of the exercise. ing information meetings around the The success of these two days can be country confirmed there would be a sig- measured not by the numbers of clients, nificant amount of interest in Refugee but by their satisfaction. Certifying cop- Family Support Category Tier Two, as it is officially known. ies and administering statutory declara- tions is a “bread and butter” task for In Hamilton, the Settlement Centre Wai- Justices of the Peace but each is very kato (formerly the Migrant Resource important for the client, and so it was Centre), Decypher Interpreting Service, for the 15 clients seen on average by Waikato Refugee Forum, Community each pair of Justices. Law Waikato and the Hamilton City Council (through its ethnic develop- Toni Trim, the community develop- ment adviser) all committed to support- Community Law assistant manager ment co-ordinator for Community Law, ing the initiative. It was agreed that the Angela Smith on her way to post the thanked all who participated: “It cer- applications. tainly has been a community effort and help of Justices of the Peace would be beneficial to the application process, by the impact on the lives of the people we certifying copies of the required docu- great opportunity to interact with the are assisting to reunite with loved ones mentation and administering statutory Hamilton community and to work to- will be huge!” declarations. gether with the other agencies. The two shifts the teams worked Arrangements were quickly made to Three of the four pairs of Justices in- weren’t quite the end of the exercise. A have pairs of Justices on hand during volved male and female combinations. week later, one of the group, John Gow- the 6.5 “open hours” on day 1 and the John Gower said that clients appreci- er, was contacted by Community Law 4.5 hours on day 2. ated having the choice, as they did hav- requesting further assistance. John was Taking Justices’ services to the com- ing access to interpreters. Being helped able to attend, and put in another four munity in this way was both useful and to fill in the application forms meant hours during which he saw 31 people deeply appreciated by applicants and that the documents presented by clients and carried out 101 tasks, with people agencies - and the Justices all enjoyed were all complete and accurate. queuing up from start to finish. Not just the interaction and seeing the satisfac- another day at the office! Ian McMichael took his service one tion of their clients. step further. When a family member “I was happy to help again, but I’m sure “All the clients were very grateful,” said told him that a disabled Afghani man any of the others would have done the Don McNaughton. “There was such a could not enter the building, he went same, and so should any JP, for that strong bond of family helping family.” immediately to the vehicle in which the matter. That’s what being a Vaninder Bassan, a past president of the man was sitting in the carpark and un- JP is all about - helping out Waikato association, said that it was a dertook the required tasks. whenever you can,” he said. Ian McMichael went out to the car Vaninder Bassan and Abdirizak park to assist a client who was Abdi – heads down and unable to access the building. pens up. Brian Prestidge and Gladys Stephens on duty.
Page 4 NEWS TONY PUGH reports from the Federation National Office FROM THE NATIONAL MANAGER Conference 2018 Remember to send your registration forms to the Canterbury Peace association be based on the number of hours JP service association ASAP (registration details are on the website). is available at that location. Where two or more JPs are on duty at the same time at a service desk each Justice of the Board nominations Peace’s hours should be counted. The following nominations for the Board were received: 4. Auckland Justices of the Peace Association will move: President: Rachael O’Grady That there be no limit on the number of new service desks Vice-President: Patrick Samson per association when funding for a new service desk is being Northern Regional Representative: Peter Osborne granted. Auckland Regional Representative: Patrick Samson 5. Auckland Justices of the Peace Association will move: Central Regional Representative: Sheridan Hickey, Peter That the Board seek funding from the Ministry of Justice of Debney at least $100,000 for Ministerial trainers/educators. This to Southern Regional Representative: Catherine Hurst be allocated to associations on the basis of the number of association members. The election (confirmation) for President and Vice-President will take place at the AGM as provided for under Rules 6 and 6. Bay of Plenty Justices of the Peace Association will 17 (b) of the Constitution. move: The Central Regional Representative will be decided by bal- That the Federation Board consider additional pathways to lot in accordance with Rule 6(f) of the Constitution. Accreditation. Notices of motion and remits 7. North Otago Justices of the Peace Association will move: Full details including rationale have been circulated to as- sociations via circular and will appear in the Conference pa- Pursuant to the notice of motion tabled at the 2017 Confer- pers. ence, that the commencement of clause 19 (a) be amended to read: “The Annual Conference be held in alternate years (bi- Notices of motion: Rule 22 ennial) either in February or March commencing in the year The Board will submit notices of motion related to the Con- 2020, the exact dates to be determined by the Board . . . ,” stitution and policies which have been reviewed by associa- the rest of the clause to stand, and that any relevant clauses tions during the year. of the Constitution affected by this amendment be amended Remits: Rule 20 (a) viii accordingly. 1. Auckland Justices of the Peace Association will move: Financial recommendations That the Board establish a working group, including a rep- The Board will move the following: resentative of the Ministry of Justice, to investigate how the (i) Capitation Fee: That for the financial year commencing appointment and ongoing eligibility of Justices of the Peace on November 1 2018 the Capitation Fee payable by affiliated can be enhanced to ensure the service provided to the com- associations pursuant to Rule 3(a) of the Constitution and munity is both of a high standard and is easily accessed. The Rules be set at $15 (exclusive of GST) per head, based on working group to consult widely and to report back by Sep- membership as at August 31 2018 and payable in one instal- tember 30 2018, with its report and any recommendations ment by February 1 2019 (currently $15). being a matter for consideration by Conference 2019. (ii) NZ Justices’ Quarterly: That the price of the NZ Jus- 2. Auckland Justices of the Peace Association will move: tices’ Quarterly remain at nil to members. That Royal Federation clarifies which types of complaints other than those arising from Ministerial roles and functions (iii) Communication Grant: That for the financial year are to be dealt with under our complaints procedures. commencing on November 1 2017 the Communication Grant payable to affiliated associations is budgeted at $3 (ex- 3. Auckland Justices of the Peace Association will move: clusive of GST) per head, based on membership as at August That funding for service desks authorised by a Justice of the 31 2017 (currently $3).
Page 5 NEWS Half a century as a JP H ighlights of the Ashburton asso- ciation’s 2017 AGM included a special tribute from visiting Fed- eration Vice-President Rachael O’Grady to George Ward, the Federation’s second most senior Past President, who retired as patron of the association at the meeting. George, now a JP (Retired), is aged 90 and notched up 49 years of active service in the role. Rachael said that George had served the Ashburton association in numerous roles before becoming Southern Regional Rep- resentative and then Federation President in 1985. She congratulated him on his recent 90th birthday and wished him the George Ward and Rachael O’Grady. best of health in the future. Replying, George said that he has en- joyed every moment of his 50 years as a Justice of the Peace. He reminisced about his term of office as President, dur- ing which there was a surplus in the fi- nancial accounts which he persuaded the then Treasurer to set aside in a separate account. These funds have subsequently become the Education Trust. His final service to the association was as patron for the past nine years. He has been succeeded by another local Past Federation President, Kevin Geddes. George Ward and his wife Eileen with Southern Regional Representa- Noel Lowe tive Cathy Hurst (left). Changing of the guard in Ashburton Ashburton’s Noel Lowe, one of the Federation’s best-known and most respected association registrars, handed over to Anne Parnham at the recent AGM after 12 years in the chair. Federation Past President Kevin Geddes presented Noel and wife Audrey with a coffee table book of landscape photographs to acknowledge his outstanding service over the years (left). It was an especially suitable gift, given Noel’s own interest and expertise in photography - a skill which has often been deployed in sup- port of the Quarterly at Federation Conferences and other events. Well done Noel! (Although we note that you are now Deputy Registrar . . . . ) Right, what do you call a group of registrars from one association? From left, John Harper who retired from the role in 2005, Anne Parnham, elected in 2017, and Noel Lowe who succeeded John and preceded Anne.
Page 6 SOUTHERN REGIONAL CONFERENCE Plenty to discuss By IAN MOORE T he 2017 Southern Re- gional Conference was hosted by the West Coast association and held in Greymouth on September 2-3. West Coast president Tony Fortune opened the conference and welcomed Southern men and women at work at the 2017 regional conference in Greymouth, delegates. hosted by the West Coast association. Pictures: NOEL LOWE Highlights of Federation complaints (possibly involving le- points included: President Denise Hutchins’s address gal action) about Justices may need • Associations should be considering included: action from the Ministry of Justice. succession planning, especially in • The Ministry of Justice and the Fed- Our Sunday morning guest speaker rural areas. eration have agreed to trial Justices was Greymouth business consult- • Justices are appointed to serve the officiating at Registry Office wed- ant and chairperson of Heritage West community, and need to serve that dings. Justices will need training for Coast Jackie Gurden, who spoke about community by carrying out all the the task and the Waikato association setting up, managing and marketing duties required by the appointment. is working on this. JPs are paid $50 the West Coast Wilderness Trail, a per service. 132km cycle track from Ross to Grey- • Ensure websites are up to date, in- cluding making sure service centre • Accreditation has had its first review mouth. Some 7000-10,000 people details are posted (and that associa- and some changes have been made a year use the trail, with the average spend per person on food, accommo- tion details are on the service cen- for simplicity. tre’s own website if it has one). dation etc valued at $1000. The trail • The Federation has had a discus- has created over 30 full-time and part- • Be aware of “dead wood” – the sion with a banking institution to time jobs. Otago association has an appropri- simplify certifying financial docu- ate letter designed for this (“Retire ments. The bank seems to think that National Manager Tony Pugh also with dignity”). Justices should know all documents addressed the conference. His main and they were not going to change Finally, Rachael O’Grady facilitated a their format. workshop, focusing on: • The Education Trust has built up • What can we do as an organisation about $114,000 and is looking for to better serve our community? more donations. One recent sugges- • What can we do as individuals to tion for use of its funding is to set better serve our community? up an electronic library for trainers. • What is the most important aspect of Federation Vice-President Rachael service we can provide? O’Grady also covered a range of top- As you would expect, the ensuing ics in her address, including: valuable and enjoyable discussion • The review of the Constitution, in- covered many subjects, including corporating modern wording – the some that had already been discussed reworded Constitution has been sent in other parts of the programme, but to associations for consideration. we were all taken with this version • Grievances coming to the Federa- of a quote used by various prominent tion from Justices about clients or personalities over the years (including from members of the public regard- Muhammad Ali): “Service is the price ing Justices: some complaints can West Coast association president we pay for living on this Earth”. be sorted out internally within an Tony Fortune and Southern Re- association but still must be notified gional Representative Cathy Hurst to the Federation but more serious at their regional conference.
Page 7 EDUCATION Page 7 JANUARY 2018 No room for error when taking AFFIDAVITS An item on affidavits appeared in a recent Quarterly, but the errors and simple mistakes we are currently seeing remind us all of the need for accuracy and vigilance. An affidavit is a statement made on oath, in writing, sworn or affirmed, taken by someone who has authority to administer it. The wording and layout is regulated by the High Court Rules 2016, Family Court Rules 2002 and District Court Rules 2014. The completion of affidavits is covered by the Oaths and Declarations Act 1957. What is an affidavit? An affidavit is similar to a statutory declaration in that it is If the affidavit is part of a marriage dissolution, check first a solemn form of recording a truthful statement. The dif- that the declarant has the correct marriage certificate; that is, ference between a statutory declaration and an affidavit is the Births, Deaths and Marriages form and not the certificate that an affidavit is sworn or affirmed and is usually used as issued by the minister or celebrant. evidence in connection with a court proceeding. It is for Chapter 8 of your Ministerial Manual is your guide. Read it this reason that we must ensure the accuracy of these docu- and use it at all times! ments when requested to administer them. When administering an affidavit, follow the 17 steps below: 1 The deponent must be present. It is not possible to 10 Ask the deponent whether it is their affidavit, wheth- take an affidavit for someone else, or at a distance. er they have read it and is it true. 2 Check the deponent’s identification. 11 Have the deponent either swear or affirm the affi- 3 Check for and attend to alterations or deletions (must davit. be initialled by both the JP and deponent). 12 They must answer “Yes” or “I do” aloud, so that it 4 Check for blanks and gaps (see chapter 4.11 of your can be heard. manual for the process). 13 Have the deponent sign and date the document. 5 Check that all pages are numbered (follow chapter 14 Complete and sign the jurat. Cross out the role, if 4.12 of your manual). other than a JP. If nothing is written, write “JP”. En- 6 Ask whether the deponent wishes to swear or affirm sure the jurat is dated. Include your JP number for the affidavit. reference. 7 Ensure the wording at the beginning of the affidavit 15 Both you and the deponent now initial EVERY page, follows the correct form (chapter 8.3). except the one with your full signature. 8 Fill in the place. It must be the town or city where it 16 Complete any exhibits. is signed. 17 Check, check, check! 9 Complete the date.
Page 8 8 Page EDUCATION JANUARY 2018 Burial and Cremation Act 1964 We have been notified by a Taranaki Justice that they recently signed a letter requested by a funeral direc- tor, to the local authority, using the words “I direct you to . . .”. The essence of the letter was to direct a local authority to of the Peace are both wide and varied, but you are strongly provide burial services for a deceased person free of charge advised to carry out due diligence before signing any such - in this case, the local crematorium facility to cremate the documents. Should you be in any doubt if confronted with body of a man who died without family and with only a few such a request, contact the Federation office and seek clari- dollars left in his bank account. fication before proceeding. Unusual as it may seem, section 49 (1) of the Burial and Ministry of Social Development funeral grant Cremation Act 1964 permits such a direction and specifi- cally requests the signature of a Justice of the Peace. The Ministry of Social Development (MSD) provides as- sistance with funeral expenses. That section says: A funeral grant can help with some of the funeral costs of 49 Burial and cremation of poor persons someone who has died. (1) A local authority having the control and manage- Who can get it? ment of a cemetery and any person or body of per- sons (including a local authority) having the control You may get a funeral grant if you are either: and management of a crematorium may, and upon • the partner, spouse, child, parent or guardian of the per- an order signed by a Justice shall, permit the body of son who died, or any poor person, and of any person from any hospi- tal, prison, or other public institution, on the request • you are arranging the funeral of someone with no partner, of the person in charge of such institution, to be bur- spouse or direct relation. ied in the cemetery or cremated in the crematorium The funeral grant is income- and asset-tested. The test de- free of charge: provided that every Justice, before pends on whether the person who died had a surviving part- signing any such order, shall satisfy himself that the ner or dependent children, or if they were a child. (A child deceased person has not left sufficient means to pay is a single person under the age of 18, unless they were 16 the charge, and that his relatives and friends are un- or 17 years old and financially independent.) able to pay the same. The person who died must have normally lived in New (2) If any person is known or believed to have be- Zealand. longed to any particular religious denomination, he shall be buried in the portion of the cemetery (if any) If you are their partner, spouse, parent or guardian it also set apart for that denomination. depends on: Compare: 1908 No 19 s 25; 1950 No 42 s 3 Section 49(1): • how much you earn amended, on 1 June 2005, by section 206 of the Corrections • any money or assets you have. Act 2004 (2004 No 50). Contact your nearest MSD office for assistance and advice. This simply confirms that the role and duties of a Justice
Page 9 EDUCATION Page 9 JANUARY 2018 Client privacy Following a recent complaint, the issue of client privacy has resurfaced. Specifically, the matter involved the completion of an af- fidavit at a service desk and the complaint has centred around the need for privacy. This is an important issue and because service desks are so public, the Justice of the Peace must be cognisant of the surroundings and in particular, the document which they are administering. However, the onus falls on the client - if the client expresses concern about the lack of privacy (particularly involving affidavits), then the cli- ent’s wishes must be met. ternative, make other arrangements for the client outside of the service desk, such as at the Justice’s home. If this It would be best to make arrangements for either a private is not suitable to the client, then direct them to an alterna- area in which the document can be completed or as an al- tive option (another JP, lawyer etc). Certifying copies Chapter 5 of the Ministerial Manual is our guidance in that actually suits your situation. The important factor is terms of certifying copies. On P27 of the manual (the in- that you reflect what it is that you have seen, on what de- troduction to chapter 5) the last paragraphs in some ways vice or document and then verify that it is an exact copy sum up the issue of certifying copies: of what you have seen. “Justices of the Peace are also now more frequently asked A bit of advice: to certify that a typed or printed copy of a transcript of the words on a cellphone or computer screen is a ‘True copy’ • Do not use your own computer or phone to access their of what was on the screen. documents. “There are therefore, several different phrases you may • Ensure that the clients use their devices to show you need to write on a copy, depending on the circumstances. what it is that they wish to display. There is no prescribed wording that must be used.” • Use words that suit the situation and accurately de- This is saying that you will often have to use your initia- scribe the document you are certifying. tive and creativity to insert words that reflect the situation Unfortunately, there is no easy way around this process. you face. Yes, there are suggested examples on P31, but It is totally impractical to have a stamp or stamps to cover the reality is that you might just have to write something every situation and this is why the manual (and Accredi- tation for that matter) says that there is no prescribed wording. The key is that you verify that what you are seeing on a device, transcript or document is what the copy shows. Furthermore, when certifying a copy, the Justice of the Peace is certifying that the copy is/was a true copy, but is not verifying the authenticity of the origi- nal. In other words there is no liability on the Justice of the Peace, but clearly, we have a duty to check the original to the best of our ability. Finally, if you are in any doubt, you can always get the individual to make a stat- utory declaration as to the authenticity of the documents presented to you.
Page 10 Page 10 EDUCATION JANUARY 2018 Maintaining a Record of Activities This is an issue which is raised frequently. Chapters 2 ing a record of what you do is important in the event and 3 of the Ministerial Manual provide us with clear that an agency needs to substantiate a document. This guidance as to how we should operate as Justices of the has become more common of late with banks and finan- Peace. The over-arching document is the Justices of the cial institutions, as they are subject to the Anti-Money Peace Act 1957, but our manual provides all the neces- Laundering Act. Equally, we have noted recent instances sary information for us to meet our requirements. where identity fraud has occurred. There have also been instances where agencies such as lawyers and the police In addition to the Act and the manual, you can use the have made inquiries about documents administered. website: justiceofthepeace.org.nz Chapter 3.8 of the Ministerial Manual provides us with Point six of the Code of Conduct says that we must: an example record. You may wish to use this or alter- “maintain a record of activities, provided the information natively design something for your own use. Whatever stored is not used in any manner contrary to the Privacy approach you take, make sure you include the date, the Act.” client’s name and a brief note of what you did. It is not our intention to define the Privacy Act, but keep- Examples: Date Time Name Activity Location 23 Nov 2017 11.20am John Smith Copy of Passport Richmond Mall 23 Nov 2017 John Smith Copy of Passport Either of these would be suitable examples to use, but including time and location would make it easier for you to refer to, if required to verify an activity. Vodafone/Clear emails Please remember to update your records if you have changed your email as a result of the withdrawal of Vodafone/ Clear/Ihug/Paradise emails. 2012 Amendment to the Wills Act 2007 A reminder about a change to the Wills Act 2007 – the (4) At least 2 witnesses must— amended section 11 which covers validity is reproduced below: (a) be together in the will-maker’s presence when the will-maker— (i) complies with subsection (3); or Validity (ii) acknowledges that— 11 – Requirements for validity of wills (A) he or she signed the document earlier and (1) A will must be in writing. that the signature on the document is his or (2) A will must be signed and witnessed as described in her own; or subsections (3) and (4). (B) another person directed by him or her (3) The will-maker must— signed the document earlier on his or her be- half in his or her presence; and (a) sign the document; or (b) each sign the document in the will-maker’s pres- (b) direct another person to sign the document on his ence. or her behalf in his or her presence.
Page 11 FEATURE This article by Northland District Court Judge GREG DAVIS and Northland Judges’ research counsel JAIME-ANN TULLOCH is based on a presentation to last year’s Northern Regional Conference in Kerikeri. First, thank you for the opportunity to present to the conference, and then to provide this article for a wider audience. As a great-grandson of Rewa Bennett, the first Māori woman Justice of the Peace in Aotearoa, and the son of a cur- rent Justice of the Peace, it is an honour and a privilege to be here. We were asked to speak at the con- ference about the importance of adopting a constitutional reference to the Treaty of Waitangi in the work of Justices of the Peace. The theme of the origi- nal full-length article was to trace the devel- Judge Greg Davis Rewa Bennett opment of the law in New Zealand and to note a distinct shift away from traditional origins and sources of law to what appears to be an emerging New Zealand law. In other words, the law is speaking with a distinctly New Zealand accent. Here we follow the trail by looking at a series of cases that have come before the courts and the Waitangi Tribunal. Changes to the Federation’s Constitution are another example of the New Zealand accent showing through in the law. The adoption of a specific reference to Māori ambitions is a further step down the pathway to a uniquely New Zealand set of laws. Law with a Kiwi accent The role of JPs A constitution must reflect the values of in history and New Zealand’s role in Justices of the Peace have a role in the society that created it. It also serves becoming the first country in the world achieving constitutional change. The as a focal point for the commitment of to allow women to vote is trumpeted pathway to change begins with lan- the members to those values. It sets out around the world. guage, discussion. Old words that may a process by which those values can be But in the 1890s the language and the have suited the thinking at the time can implemented. Any good constitution legislation of the time spoke only in the become obsolete. Debate about how will be sufficiently broad to allow for gender specific manner: “men”. The de- and why those words came to be used any progress and change to be adopted. bate regarding the need to change the ensues. The history or whakapapa of Change may not be easy or comfort- discourse began then in earnest and the constitution is recalled as best as able for some but is in many instances changes to the constitutional framework memory and records can reconstruct. inevitable. History judges our response followed thereafter. In the context of Appropriate replacements are vigor- to change and marks whether we drive electoral reform the debate was driven ously debated, the need for change at change, embrace change or obstruct by women of all ethnicities. Meri Man- all is debated. change. gakahia from Te Rarawa1 petitioned the Language creates important markers Kate Sheppard and other suffragists are Māori Parliament in 1893 and Queen for society to consider and for debate to properly recognised as heroes and hero- Victoria directly to initiate change and be extended further within our broader ines of a drive for universal suffrage – the right for women to vote.2 In this case society. the right for women to vote. Their place the constitutional framework required a
Page 12 FEATURE change to the legislation3 through the of jurists as to the strength or weakness “… any rights purporting to be con- legislature in Wellington. of the Native title … it cannot be ex- ferred by such a treaty of cession can- While history remembers favourably tinguished (at least in times of peace) not be enforced in the Courts, except those who drove the fight to secure the otherwise than by the free consent of insofar as they have been incorporated right for women to vote, and celebrates the native occupiers.”5 in municipal law”.11 those who have embraced the change, Their view influenced the famous (or In other words, if the Treaty of Wait- history does not remember those who infamous) decision of Chief Justice angi was to have any force, Parliament obstructed the change. James Prendergast in Wi Parata v Bish- had to explicitly give effect to the rights The drive to amend the Justices of the op of Wellington6 where the Treaty was guaranteed by the Treaty through leg- Peace Constitution should be viewed in declared a nullity “… as Māori lacked islation. the same light. How will history judge the body politic capable of making such The claims in Re: Ninety Mile Beach12 those who chose not to recognise the a treaty”.7 The Treaty was described as and in Re: Whanganui River13 have relationship between Māori and Pakeha nothing more than a document used to been similarly unsuccessful. and Māori and the Crown? How will “pacify savages”.8 Things were not always this bleak. In history judge those who did not set out Returning to the importance of lan- Re: Bed of Lake Omapere14 the Native a pathway to achieve goals we should guage, in a sweeping statement Chief Land Court took a different approach all aspire to? Justice Prendergast set the framework to determine a claim by Māori to the for Treaty of Waitangi jurisprudence for bed of Lake Omapere. The Native Land the next century. This approach contin- Court heard extensive submissions The Treaty and the courts ued in the famous case Nireaha Tamaki about the history of the lake. It accepted The Treaty of Waitangi has a chequered v Baker9. the significance of the lake as a water history in the courts. In R v Symonds4 In Te Heuheu Tukino v Aotea Māori source, the significance of the mauri Justice Henry Chapman stated that4 Land Board10 Viscount Simon from the of the lake and the interconnection of “whatever may have been the opinion Privy Council said: the lake to the surrounding aquifers and Hone Heke, the first Māori chief to sign the Treaty of Waitangi, is shaking hands with Governor William Hobson (background) while behind him Kawiti is signing the Treaty and at the front a group of Māori is being challenged by a man with taiaha.
Page 13 FEATURE thermal springs at Ngawha. The Native the Treaty of Waitangi recognised. The Land Court considered these “battle sites” moved from the streets and matters inseparable from the the protest movement into the courts. lake. Māori custom and tradi- Many would suggest that with recent tions were central to the Native Treaty settlements, the battleground Land Court’s determination. has shifted again from the courts to the The Native Land Court consid- boardroom, and where necessary from ered the lake to be “land with the boardroom to the corridors of Par- water over it”.15 The Native Land liament. Court did not consider there to be Huakina Development Trust v any legal presumption that the sale Waikato Valley Authority19 was of land to the lake’s edge automati- another significant case. Jus- cally incorporated a sale of the land tice Muir Chilwell elevated the under the lake.16 The decision was Treaty of Waitangi from a docu- welcomed by local Māori as being a ment which set out the rights and reflection of what they already knew. obligations of the Crown and It was not well received by the gov- the Māori partners, to one ernment of the day and was promptly in which (in his mind) was consigned to the annals of history. all-pervasive, declaring the New Zealand Māori Council v Attor- Treaty to be a part “of the ney General17 or the “Lands case” is a fabric” of New Zealand significant decision. This case involved society. the Labour Government of the time It follows that because the wishing to sell off large tracts of state- Treaty is part of the fabric owned land. The New Zealand Māori of New Zealand society, Council contended that the transfer of it is part of the fabric of the Crown land to a state-owned enterprise decision-making process that all of would limit the potential for the Crown those who are involved in the Govern- to settle historic Treaty grievances with ment and dealing with Māori must bear Māori. in mind. This includes decision-makers The Court of Appeal agreed with Māori exercising judicial functions as a Jus- and espoused the following principles tice of the Peace. of the Treaty of Waitangi: Turning to a recent context, the Wait- • The acquisition of sovereignty in ex- angi Tribunal’s Stage One Report change for the protection of rangati- into Te Paparahi o Te Raki20: Ngāpuhi ratanga. iwi and hapu claimed that in signing • The Treaty established a partnership, the Treaty of Waitangi the rangatira21 and imposes on the partners the duty did not cede sovereignty to the British to act reasonably and in good faith. Crown. The hapu relied on the text of He Wakaputanga o nga Rangatira o Niu • The freedom of the Crown to govern. Tireni, signed at Waitangi on October • The Crown’s duty of active protec- 28 1835. The text of He Wakaputanga is tion. ceded sovereignty to the Crown was es- significant because the words it used to • The duty of the Crown to remedy past pecially repugnant to Māori. convey certain concepts such as sover- breaches. eignty (mana) were not the words used There was a series of cases involving in the Treaty of Waitangi. • Māori to retain rangatiratanga over the New Zealand Māori Council and the their resources and taonga and to Crown in the period leading up to 1992. The Tribunal considered He Wakapu- have all the privileges of citizenship. Each case involved further efforts by tanga to be “a resounding declaration the Government to sell off the Crown of the mana and rangatiratanga of those • Duty to consult. estate. Resistance from Māori was who signed it on behalf of their hapū.”22 While this case heralded a change in the The Tribunal considered it amounted to approach to the relevance of the Trea- strong and further cases were brought to the higher courts.18 These cases were a declaration of sovereignty and inde- ty that followed, to many Māori these pendence of those hapū. Further in He Court-espoused principles of the Treaty significant because they added layers to the relationship between the Crown and Whakaputanga, “rangatira explicitly of Waitangi were themselves controver- declared that no other person or group sial. Māori felt they had won the SOE Māori and developed the principles of the Treaty of Waitangi further. Not long would be permitted to make laws with- case but lost the “Treaty war”. The prin- in their territories, nor to exercise func- ciples of the Treaty of Waitangi as they after the Crown Forestry Rental Trust, Te Mangai Paho, Iwi radio and Māori tions of government except under their were declared by the Court of Appeal authority and in accordance with their looked too much like the English ver- Television and Te Ohu Kaimoana were established. laws and decisions”.23 sion of the Treaty of Waitangi for Māori The period between 1987 and 1992 The Tribunal made findings that liking. In particular, the notion that the represented a shift in the fight to have Ngāpuhi rangatira in signing the Te Treaty of Waitangi was a treaty that
Page 14 FEATURE Tiriti o Waitangi “… agreed to a rela- thought and Treaty partnership that was tomary rights in 1840.” tionship: one in which they and Hobson clearly missing in earlier cases. The Tribunal considered that te tino were to be equal - equal while having The Court of Appeal in Ngāti Apa v At- rangatiratanga was more than owner- different roles and different spheres of torney General31 determined that ship: it encompassed the autonomy of influence. In essence, rangatira retained hapu to arrange and manage their own [183] … when the common law of their authority over their hapu and terri- affairs in partnership with the Crown. England came to New Zealand its arriv- tories, while Hobson was given author- 35 The Crown’s duty to protect Māori al did not extinguish Māori customary ity to control Pākehā”.24 rights in their water bodies includes the title. Rather, such title was integrated This represents a correction of the active protection of their development into what then became the common law historical narrative. It was the first ac- rights in their water bodies. In agree- of New Zealand. Upon acquisition of knowledgement by a legal body of the ment with the Te Ika Whenua Rivers sovereignty the Crown did not therefore position Māori advocated. Report, the Whanganui River Report, acquire wholly unfettered title to all the and He Maunga Rongo, the Tribunal This becomes significant in the context land in New Zealand. stated “that the nature and extent of pro- of the Lands case discussed earlier and This left open the possibility that cus- prietary right was the exclusive right to Court of Appeal President Sir Robin tomary title to the foreshore and sea- control access to and use of the water Cooke’s promulgation of the Principles bed may continue to exist. The Court while it was in their rohe.”36 of the Treaty of Waitangi, which did not was very clear that the assumption of reflect Māori understanding of Te Tiriti. The New Zealand common law has sovereignty by the Crown did not au- developed a New Zealand accent. I In 1999 the Waitangi Tribunal investi- tomatically extinguish any underlying recommend a paper by Justice Joseph gated a claim by Whanganui tribe Te customary title to land. Confirming Williams: Lex Aotearoa37. Justice Wil- Atihau-a-Paparangi. The claim sought earlier authority32, the Court of Appeal liams’s premise is that the New Zealand to redress the findings of the Court of considered customary title could not be law is now changing again to the point Appeal25 into the ownership of the bed extinguished without the free consent where tikanga Māori is becoming an of the Whanganui River. The Tribu- of Māori. integral part of the “New Zealand com- nal considered the claims to be well- In 2012, an application for an urgent mon law”. He takes the view that there founded and recommended the Crown hearing was made to the Waitangi Tri- is still a long distance to travel and we negotiate remedies with the tribe. The bunal about Māori proprietary rights have not yet developed a distinctly New negotiations continued and resulted in: to freshwater bodies and geothermal Zealand law but we are well on the path • Te Awa Tupua was declared an in- resources. The stage 1 report was re- towards doing that. Again, the adop- divisible and living whole compris- leased in December 201233. It addresses tion of a specific reference to Māori ing the Whanganui River from the the Crown’s policy to partially privatise ambitions in the Justices of the Peace mountains to the sea,26 incorporating three state-owned enterprises energy Constitution is a further step down the all its physical and metaphysical ele- companies without taking into account pathway to a uniquely New Zealand ments;27 Māori rights to the water resources used set of laws. It is also a profound public • The river is the source of spiritual and by the companies. statement of intention on behalf of the physical sustenance;28 There is a positive continuation of re- Justices and should not in my opinion • The iwi and hapu of the Whanganui view of legal thought and Treaty part- be viewed in any other way. It is a rec- River have an inalienable connection nership. The Tribunal considered that:34 ognition of the concept and principle with, and responsibility to, Te Awa “… the claimants’ evidence has demon- of partnership. It is recognition of the Tupua and its health and well-being;29 strated the customary ‘indicia of own- Justices’ role of actively protecting the ership’, and that ‘full-blown’ ownership ambitions of Māori. • Te Awa Tupua was declared to be a legal person.30 of property in the English sense was the closest legal equivalent for Māori cus- This represents a maturation of legal 1 One of the five Muriwhenua iwi together with Te Aūpouri, 16 Re The Bed of the Wanganui River [1962] NZLR 600 (CA 26 Section 12 Te Awa Tupua (Whanganui River Claims Ngāti Kahu, Ngāi Takoto and Ngāti Kuri 17 New Zealand Māori Council v Attorney General [1987] Settlement) Act 2017 2 Meri Mangakahia petition to Māori Parliament, Waipatu, 1 NZLR 641 27 Ibid Hawke’s Bay. 1893 18 Cases that were brought to the Higher Courts include the 28 Ibid section 13 3 Electoral Act 1893 forests case (New Zealand Māori Council v Attorney Gen- 29 Ibid 4 R v Symonds (1847) NZPCC 388 eral) ; the coal case (Tainui Māori Trust Board v Attorney 30 Ibid section 14. 5 R v Symonds (1847) NZPCC 388 General [1989] 2 NZLR 513) ; the Te Reo Māori case (New 31 Ngāti Apa v Attorney General [2003] NZLR 643 6 Wi Parata v Bishop of Wellington (1877) 3 NZ Jur (NS) 72 Zealand Māori Council v Attorney General [1989] 2 NZLR 32 Te Runanga O Muriwhenua v Attorney General [1990] 2 7 Ibid 77 143 ); the radio spectrum case NZLR 641 and Te Runanganui o Te Ika Whenua Inc Society 8 Ibid 78 New Zealand Māori Council v Attorney General CA247/90 v Attorney General [1994] 2 NZLR 20 in turn relying on R v 9 Nireaha Tamaki v Baker [1902] 22 NZLR 97 [1 November 1990] (CA) and the broadcasting assets case Symonds(1847) NZPCC 387 and Nireaha Tamaki v Baker 10 Te Heuheu Tukino v Aotea District Māori Land Board New Zealand Māori Council v Attorney General CA 206/91 (1901) NZPCC 371 [1941] NZLR 590 [30 April 1992] (CA). 33 Waitangi Tribunal The Stage 1 Report on the National 11 Ibid 598 19 Huakina Development Trust v Waikato Value Māori Freshwater and Geothermal Resources Claim (Wai 2358, 12 Re The Ninety Mile Beach [1963] NZLR 461 Authority [1987] 2NZLR 188 2012) 13 Re The Bed of the Wanganui River [1962] NZLR 600 20 Waitangi Tribunal The Report on Stage 1 of the Te 34 The Stage 1 Report on the National Freshwater and (CA) Paparahi o Te Raki (Wai 1040, 2014) Geothermal Resources Claim Ibid [75]-[81]. 14 In Re Bed of Lake Omapere an application by Te Ripi 21 Rangatira = Chief 35 This is in agreement with Whanganui River Tribunal’s Wihongi and ors for Investigation of Title BOIMB Vol 2 page 22The Report on Stage 1 of the Te Paparahi o Te Raki , Ibid findings. 252, August 1 1929 per Judge Acheson 30 at page 501. 36 The Stage 1 Report on the National Freshwater and 15 Ibid 259 23 Ibid Geothermal Resources Claim Ibid [75]-[81]. 16 This is unlike Re The Bed of the Wanganui River [1962] 24 Ibid pages 526-527. 37 Lex Aotearoa; the heroic attempt to map the Māori NZLR 600 (CA) and Re The Ninety Mile Beach [1963] NZLR 25 Waitangi Tribunal The Whanganui River Report (Wai dimension in modern New Zealand Law; Harkness Henry 461 167, 1999) Lecture Volume 21 Waikato Law Review
Page 15 NEWS ‘Just ask Iris’ By PAT VELTKAMP-SMITH that position became vacant. The two E very Justice of the Peace in South- worked closely together and to receive land was delighted when Iris their special honour at the AGM was Robinson was honoured with life fitting. membership at the Annual General Meet- It is more than a decade since last a ing of the Southland association last year. Southland JP was so honoured: for- Iris has taught or trained most people in mer registrar the late Colin Winter was the association and those who did not fall made a life member in 2005. under her wing regard themselves as the Iris is the first woman Justice to be poorer for it. elevated to life membership of the She has taught secretarial courses at Southland association, but this is not Southland Technical College and simi- the first time such an honour has come lar subjects at the Southland Institute of her way. Technology, as well as educating fledg- As a former president of the ling Justices and teaching new ways to 4000-strong Invercargill Working- Iris Robinson receives her certificate of men’s Club she received life mem- those already experienced. life membership of the Southland asso- She was the training officer of the South- ciation from Federation President Den- bership of the club in 2003, sharing land association, bringing to the job the honour with her late husband, ise Hutchins. Picture: GREG WEAKE Phil Robinson. Before his passing Iris skills acquired during years of secondary and tertiary teaching. worked as a marriage celebrant, and they travelled near and far together throughout Southland. Before becoming a Justice of the Peace she worked as a court stenographer in Invercargill and so was familiar with judges Iris was appointed in 1996 and almost immediately became and the justice system when she quickly became a Judicial a Judicial Justice. She served in that capacity for a number Justice. of years. People who worked with Iris unanimously say she made She is still the first port of call for even the most experienced them feel secure. A woman of sound judgement, she was al- Justices coming up against some quirk in the system. We say ways a pleasure to work with, said fellow life member Fraser “Just ask Iris, she’ll know.” And she always does. Clark, who undertook the role of court panel rosterer when Well done, dear friend. CROSSWORD ACROSS: president 1 1 2 3 4 1 What you might 3 He wrote The say we experienced Grapes of Wrath throughout Decem- 4 Sprite ber (6,6) 5 Oppressive 5 6 7 5 Bold disobedience 6 11th Governor- 6 Propaganda General of NZ 8 Invariably 7 Holds a foe (anag) 11 Wonted 9 Enliven 8 9 10 11 12 Damage a person’s 10 Breakaway reputation 15 Friend 13 Standards 17 Extinguished 12 14 NZ’s relative of the 19 Slip American 18 black widow S T A Y I N G P O W E R 16 Pry R G O U 13 14 15 18 Formally N O S E I N D I C T E D A T S M O charged I D E A L S K A T I P O 20 Stamina (7,5) H M E C T N 16 17 18 19 E D I S C R E D I T O DOWN: S N E B R C 1 Wrath N O R M A L A L W A Y S 2 Sergio Mat- I O A L R tarella is this E P U F F A N C D E F I 20 country’s T L S U M M E R T I A N R I N D
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