Retirement from Partnership

From 30 November 2017, Mark von Dadelszen ceased to be a Partner of the firm and became a Consultant.  Mark became a Partner on 1 April 1972, joining his father John, his brother Paul, and Ralph Bannister.  As a Consultant Mark will continue to focus on his specialist areas of work with societies and charities, and will generally not take on new work in other areas of legal practice.  He will usually be in the office on Tuesdays, Wednesdays and Thursdays unless he has engagements out of the office.  He remains committed to the firm, but is looking forward to have more time to pursue other interests....

The Principles of Natural Justice – why they are important

Why the principles of natural justice are important “That’s not fair!” is common complaint of children. When children say that they are usually referring to what they consider to be unfair about a process they have been involved in (such as a decision on a disciplinary issue) or how other children have been treated in comparison with the treatment they have experienced. Although they and their parents may not realise it, when children say “that’s not fair!” they are calling on the principles of natural justice. From childhood, we all instinctively believe that: Investigative and decision-making processes should be “fair,” and If a decision-making process is “fair,” similar consequences will result from similar actions by similar people. Those beliefs sum up the principles of “natural justice.”   What are the principles of natural justice? Natural justice has been described as “fair play in action.” The requirements of natural justice depend on the circumstances of each particular situation and the subject matter under consideration. Accordingly, the specific requirements of natural justice and how rigorously they are applied varies according to the circumstances where they may be relevant (Furnell v Whangarei High Schools Board [1973] 2 NZLR 705 (PC) at 718). As the Law Commission pointed in the context of societies (in its Report 129, A New Act for Incorporated Societies, NZLC R129, June 2013, para 8.17): The two basic components of natural justice are: the person complaining or complained about has a fair opportunity to be heard on the matters in issue; and the decision-maker is free from bias (including apparent bias) or pre-determination. Those two basic elements can be...

Reforming the Incorporated Societies Act – Why are we still waiting?

New Zealand was among the first countries to legislate for the incorporation of many types of community organisations. However, we now lag behind other jurisdictions; notably the Australian States and Canadian Provinces. The archaic nature of the Incorporated Societies Act 1908, the Charitable Trusts Act 1957 and other statutes governing not-for-profit organisations has been discussed in previous articles in this series (in July and August 2011); namely Reforming the Not-For-Profit Statutes – Fundamental Questions, Reforming the Not-For-Profit Statutes – Constitutional Questions, Reforming the Not-For-Profit Statutes – Liquidation, Dissolution, Mergers and Transition, Reforming the Not-For-Profit Statutes – Legal Powers and Resolving Disputes, and Reforming the Not-For-Profit Statutes – Governance Questions (which are not going to be updated) , and those articles also discussed the Law Commission project into the adequacy of those Acts.  Now we are waiting for some legislative action!   The reform process Like all legislation, the Incorporated Societies Act 1908 can only be changed by Parliament. Our Law Commission was established to provide Parliament, the Government and the public with independent, expert advice on what are, almost invariably, what lawyers describe as “black letter” law issues; that is, law which is seldom politically controversial but which enables people to get on with their everyday lives. Such “black letter” law includes statutes like the Property Law Act, Land Transfer Act, Companies Act, Burial and Cremation Act, and the Trustee Act. The Minister of Justice’s 1 July 2010 reference to the Law Commission (seven years ago!) requested it to investigate the “uncomfortably old” Incorporated Societies Act 1908. About 12 months later, the Commission published an Issues Paper on reforming the...

Update (September 2017) on Incorporated Societies Act Reform

An Exposure Draft of the Incorporated Societies Bill (see Overview of Proposed New Incorporated Societies Act) was subject of consultation (which closed on 30 June 2016), but no Bill has yet been introduced to Parliament. No matter what Government is formed after the 2017 General Election we do not expect any major change to what was proposed in the Exposure Draft Bill as the reforms are not considered to be politically controversial, and we hope the Bill will be introduced early in 2018. When the proposed new Act is enacted some existing societies may have to reconsider whether they should remain as incorporated societies, and ask itself and its members some searching questions: • Why do we have our society, what needs is it meeting, are we fulfilling the wants and needs of our members – fundamentally, what is our “purpose” or “mission”? • Do we need a society (with voting members) or might some other type of organisation (perhaps a trust) better meet our needs? • Might there be merit in considering combining forces with some other organisation or organisations providing similar community services (such as forming a combined sports club or combined cultural society)? • Do we actually need to be incorporated (the main benefit of incorporation for most societies being to protect members from most personal liability for society activities)? • If we choose to remain incorporated, how will we meet the greater reporting and accountability requirements of the new Act? Will we need to pay (or increase) committee honoraria or engage some external, paid professional help? To avoid the pressure of having to revise a...
No Volunteers to Govern a Not-for-Profit Organisation?

No Volunteers to Govern a Not-for-Profit Organisation?

  The Issue It is not uncommon for a society or a charitable trust to find it difficult to find suitable volunteers to fill committee positions or to serve as chartable trustees.  This is a worrying situation for those still prepared to serve, and no statute or constitution will help find volunteers when there are none!   Why are there no volunteers? Those advising organisations with a dearth of volunteers have no magic wand to wave to solve the problem, so the first question to ask is why volunteers cannot be found.  The reasons can be many and varied, and should be analysed. Some of the common reasons may include one or more of the following: Perhaps the organisation’s purposes have run their course, in which case the perceived need for an organisation to exist may have disappeared.  For instance, when women gained the right to vote societies seeking that legislative change had achieved their purposes.  Some such societies might have morphed into political parties or into lobby groups or might have altered their purposes to pursue related causes, but others would simply have ceased their activities. Do those considerations apply? Even if an organisation’s purposes have not run their course the way the organisation is operating may have ceased to inspire involvement or to be effective.  This may be the result of those in leadership becoming tired or stale or upsetting the organisation’s supporters, or the organisation itself may just need to be reinvigorated. All too often those governing an organisation are so immersed in “doing” or managing, that strategic thinking and planning ceases to feature in their...