Cultural Imperatives in Not-for-Profits

Cultural principles and philosophical considerations in Not-for-Profits Neither the Incorporated Societies Act 1908 nor the Charitable Trusts Act 1957 make any provision for the governance or management of not-for-profits to take into account cultural principles or philosophical considerations. Such principles and considerations, however, are very frequently reflected in the purposes of such entities and also in the detail of the constitutions and subsidiary documents. The Law Commission, in a 2001 paper, Māori Custom and Values in New Zealand Law (at [3]-[5]), suggested that “tikanga” be used to describe the rules developed by indigenous societies. Whether and how that issue has been taken into account in the Commission’s current pending report into the Incorporated Societies Act 1908 is not yet known. Tension between tikanga and legal principles Those advising Māori and other ethnic or religious entities often encounter the tension between the underlying motivation for an entity and the “law of the land.” The recent Court of Appeal decision in Rameka v Hall [2013] NZCA 203 (featured in the last issue of this magazine, Removing honest and well-intentioned trustees for incompetence, Anthony Grant, page 9), is a classic and instructive illustration of the tensions that can and do arise between legal principles relating to not-for-profit governance and tikanga, and other cultural principles and philosophical principles. Rameka v Hall [2013] NZCA 203 Two minority trustees appealed unsuccessfully against a Māori Appellate Court decision removing them as trustees of the Opepe Farm Trust under section 240, Te Ture Whenua Maori Act 1994. This ahu whenua trust was created under section 215 of the Act in respect of Maori freehold land, with farming...

Not-for-Profit Disciplinary Processes after Criminal Proceedings

Not-for-Profit Disciplinary Processes A well-drafted constitution for a society should include a robust suite of rules covering grievances and complaints, but even where comprehensive provisions are included difficulties will not uncommonly arise. That is illustrated by a recent Court of Appeal decision (which is the subject of orders “prohibiting publication of the names and identifying particulars of the Appellant and the Complainant,” and, as a result, this article is written to avoid infringing against those orders). Factual background to the Court of Appeal decision In brief, the appellant male employee of a charity was the subject of a decision by a disciplinary tribunal of the charity. The tribunal’s hearing was deferred until after a criminal trial, at which the appellant was acquitted on all charges of indecent assault and rape of the complainant, a female employee of the charity. Despite those acquittals, the disciplinary hearing proceeded. The appellant had argued that such a hearing would be an abuse of process, but that contention was rejected by the charity’s appeal body (with an application for judicial review of that rejection being dismissed). The disciplinary tribunal then upheld a number of charges against the appellant of sexual impropriety and physical, verbal and emotional abuse. The appellant had an internal right of appeal against the disciplinary tribunal’s decision but did not exercise it, instead again seeking judicial review which was refused and appealed to the Court of Appeal. Abuse of process This article focuses on the assertion that it was an abuse of process for the disciplinary tribunal to hear the disciplinary charges when the appellant had been acquitted on the criminal...