Whiteboard for 13 March 2008
Recent cases
Children Young Persons and their Families
Reparation order – order for reparation, in the sum of $10,000, was made in Youth Court against respondents, as parents of a young person ("J"), under s283(f) Children, Young Persons and Their Families Act 1989 – order was overturned by HCJ – New Zealand Police appealed against that decision - leave to appeal was granted on the following question of law: - was HCJ wrong to find that a reparation order could only be made against a parent under s283(f) of the CYPFA if both of the following conditions were satisfied: - (a) the parent was at fault; and – (b) there was a causative link between the parent's fault and the child’s offending
Statutory scheme examined – whether parental fault should be a precondition to the exercise of discretion under s283(f) – purpose of reparation considered
J had a history of offending and behavioural difficulties – from Aug 2005 J was on bail, which involved his being at his parents' house subject to curfew – on 25 Oct 2005 J left the familial house and drove with a co-offender to a nearby district where they burgled a farmhouse – in the early hours of 26 Oct 2005 J's father saw J, and others, with firearms outside his house – in imposing reparation order against parents Youth Court Judge found CYPFA created an expectation of mutual cooperation and that, in the circumstances, the parents should have been more proactive – Youth Court Judge noted, particularly, that the father ought to have informed Police that J was absent from home, at least when he knew J was out with his friends, with firearms
HELD: parental fault would always be a relevant consideration in the exercise of the discretion to make a reparation order against a parent – but the statutory scheme itself did not make parental fault a pre-condition and there was no justification for the Court making it one – similarly, causation could not be a pre-condition, but would be a relevant consideration which required assessment – HCJ was in error in elevating parental fault and causation to preconditions to the making of an order against a parent under s283(f) – fault and causation were relevant considerations but not preconditions – statutory construction was against such an additional overlay, and policy considerations did not support it - however, despite HCJ's error of law, there was nothing in the reasoning or assessment which suggested that her decision as to outcome was dependant upon that approach
HCJ's conclusion was unchallengeable in the circumstances of the case – HCJ was correct when she found Youth Court Judge had put too much emphasis on the fault of J's parents, since they had no obligation to proactively contact the police when he was absent from home – on question of law posed HCJ was in error – however HCJ's assessment of the particular circumstances of the case was correct - appeal against decision quashing the reparation order, dismissed
Police v Z and X (CA 400-07, CA 504-07, 26 February 2008)
From the Times
Piggott v Director of Public Prosecutions [2008] EWHC 305 (Admin)
Piggott had been convicted of failing to provide a specimen of breath for a breath test under the Road Traffic Act 1988. Medical experts said that there were medical reasons why she had failed to provide a sample of breath (asthma and hyperventilation). The issue was whether Piggott was obliged to inform the police of her medical condition when there was no express statutory duty to do so. It was held that no duty or obligation to tell should be implied. However, it was said that in other cases, not mentioning a medical condition may lead to a determination that the defendant had wilfully refused to give a specimen.
W Stevenson & Sons (A Partnership) & Anor v R [2008] EWCA Crim 273
This case involved the issue of the liability of partners for crimes of the partnership. It was held that under legislation a partnership could be held to be criminally liable as a separate entity to that of its individual partners. Confiscation proceedings could not be brought against the personal assets of the partners on the grounds of the conviction of the partnership.
Breakspear & Ors v Ackland & Anor [2008] EWHC 220 (Ch)
This case involved trusts and the confidentiality of letters of wishes from the settlor.
Notices & notes
President's breakfast
The President of the Auckland District Law Society invites members to hear from leading regulators and policy influencers of New Zealand. The breakfast sessions are aimed at delivering up to the minute legal and business information to lawyers practising in a range of disciplines.
Dates & speakers:
Wednesday 2 April - Jane Diplock, Chair, Securities Commission
Wednesday 14 May - Phil O'Reilly, CEO, Business NZ
Wednesday 4 June - Bob Russell, CEO and Commissioner, Inland Revenue.
ADLS Library Easter hours
ADLS Library & Research Centre will be closed for Good Friday and Easter Monday. We will be open on Easter Tuesday 25 March but will have a skeleton staff only. Research and document delivery services will be available on Easter Tuesday but may take a bit longer than usual to be completed.
Better incentives for infrastructure investment
Infrastructure businesses like electricity lines companies and airports will gain improved incentives to innovate and invest while giving consumers protection from excessive prices and poor quality, under the new Commerce Amendment Bill introduced to Parliament.
RAMS Minigolf Classic
The Recently Admitted Members (RAMS) are holding the RAMS Inaugural 2008 Minigolf Classic on 27 March 2008 at Lilliputt Minigolf Resort & Country Club, Tamaki Drive. Tee off: 6:00pm. Dress: golfing apparel. Entry is based on tems of six.
RSVP with team name and members to Eileen Yee.
Domestic Violence Programmes Approval Panel
The Ministry of Justice is seeking nominations for suitable people to become members of the Domestic Violence Programmes Approval Panel. The role of the panel is to consider applications from persons and organisations who wish to provide these programmes in accordance with the Domestic Violence (Programmes) Regulations 1996.
Last Chance for SkyCity Grants
The SKYCITY Auckland Community Trust annual funding round is closing on Friday March 28 2008 and charitable organisations are urged to get in quick and apply for a 2008 grant.
Transit visa policy changes
From Friday 28 March 2008, Immigration New Zealand’s transit visa policy is being extended to require transit visas for all travel through New Zealand, regardless of embarkation point or destination.
Immigration policy changes
A number of policy changes will come into effect on 31 March 2008
Govt updates priorities for Electricity Commission
The government is revising the Government Policy Statement (GPS) on Electricity Governance. The Electricity Commission and any other interested stakeholders now have until 4 April 2008 to make submissions on the proposed revisions.
NZers to have their say on coastal development
A Board of Inquiry has been appointed to get public feedback on a new national policy statement, which will guide councils on how to manage development along our coastline.
New rules for Immigration Advisers
The professional standards and code of conduct that Immigration Advisers will have to meet in order to get and keep a licence have been released
Final report issued on regulation of mobile roaming
The Commerce Commission has recommended that the mobile roaming service not be designated, which means that it will not be subject to price regulation.
Rules of Conduct and Client Care
The draft of the Rules of Conduct and Client Care has been sent to the Ministry of Justice for approval. All practitioners will be bound by these rules
from the day the Lawyers and Conveyancers Act comes into force on July 1.
Great experience offered
The Browns Bay Citizens Advice Bureau run a free legal advice service on a roster basis every Thursday evening from
6pm to 7pm that is staffed by lawyers. The work at the bureau is varied and provides great experience for young lawyers.
Anyone who wishes to volunteer their time should contact: Ian Stevenson
"In the news..."
Immigrants earn reprieve from deportation
New Gower, Patrick. "Immigrants earn reprieve from deportation". New Zealand Herald, 11 March 2008, page A3 discusses Fehoko v Minister of Immigration (DRT, 04/2008, 19 February 2008) and Tupuola v Minister of Immigration (DRT, 05/2008, 20 February 2008)
Lawyers plotted heritage coup
Orsman, Bernard. "Lawyers plotted heritage coup". New Zealand Herald, 13 March 2008, page A2
Accused wins fight over court location in terror raids case
Rowan, Juliet. "Accused wins fight over court location in terror raids case". New Zealand Herald, 13 March 2008 page A5
Partnership barrier for women lawyers
McNaughton, Maggie. "Partnership barrier for women lawyers". New Zealand Herald, 13 March 2008, page A5
Internet sites
Limited Partnership website
The limited partnerships legislation has come into force and gives effect to new regulatory and tax rules for limited partnerships and updates the tax rules for general partnerships. The Companies Office has launched the Limited Partnership website to provide the venture capital industry with information about both Limited Partnerships and Overseas Limited Partnerships. The Companies Office will be administering a searchable online register of both Limited Partnerships and Overseas Limited Partnerships. Registration and maintenance of Limited Partnerships will be supported through manual forms.
Law Commission
Public Registers: Review of the Law of Privacy Stage 2 (NZLC R 101)
The report identifies well over one hundred public registers in New Zealand – including rates databases and dog registers, land registers transport registers, the electoral rolls, births, deaths and marriages registers. Regulating the balance between open access to the registers and protection of personal information varies greatly. The Commission recommends that a dedicated team should review all public registers against a template set out in the report. Recommendations for resulting legislative changes should then be introduced by way of a single Omnibus Bill. However, the Law Commission’s recommendation for a public register review will not be considered by the Government until the Commission’s reference on the Privacy Act 1993 is completed early next year.
Review of Privacy - Update and Request for Input
The Law Commission has completed stages 1 and 2 of its Review of Privacy, and commenced stages 3 and 4. It would like to hear about any concerns in relation to existing privacy laws, or proposals for reform of these laws.
This Whiteboard update was provided by the ADLS Library & Research Centre
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