Whiteboard for 19 June 2008
Recent cases
EMPLOYMENT LAW - Appeal from decision of EC on question of law: whether additional holidays which were agreed to be in recognition of the nature of work were absorbed by, or were in addition to, minimum annual leave conferred by Subpart 1 of Part 2 Holidays Act 2003, when such annual leave moved to 4 weeks from 1 April 2007
Prior to 1 April 2007 virtually all employees were entitled, by statute, to 3 weeks annual holiday – by clause 20.2 of their collective employment agreement bus drivers, employed by appellant Unions, were entitled to a further holiday of 1 week "in recognition of the nature of the work", which entailed long and irregular hours – issue on appeal was whether a statutory change increasing the entitlement of employees generally to 4 weeks' annual holiday entailed an increase in bus drivers' entitlement to 5 weeks, or whether entitlement remained at 4 weeks – EC held that holiday entitlement remained at 4 weeks – EC considered s6(2) of the Holidays Act 2003 (the Act): "This Act does not prevent an employer from providing an employee with enhanced or additional entitlements whether specified in an employment agreement or otherwise on a basis agreed with the employee" – EC drew distinction between terms "enhanced" and "additional", finding that the term "enhanced" related to furthering the purposes specified in s3 of the Act, whereas "additional" related to entitlements provided for other purposes – s3 of the Act identified purposes of leave as being for rest and recreation, public holidays, and sick and bereavement leave
HELD: (per majority) EC had overanalysed Parliament's language used in s6(2) and drew an absolute distinction between "enhanced" and "additional", that the Act did not in fact make – concept of enhancement was a form of improvement, as EC held, but so too, in terms of an employee’s conditions of employment, was an additional entitlement – the terms in fact overlapped; an addition on an advantage would be an enhancement; and enhancement might well be expressed as an improvement – because majority could not be sure of effect of error upon EC's interpretation of agreement, and sure that EC would have reached the same construction, had it interpreted s6(2) correctly, case should be referred back to EC for reconsideration in light of CA judgment
HELD: (per Chambers J dissenting) – majority had over-emphasised importance of “enhanced-additional” dichotomy to EC reasoning – the ratio of EC decision was the importance of analysing the purpose of the particular holiday in terms of s3 of the Act: if the holiday was described by the parties as part of “annual leave” and its purpose was consistent with the statutory purpose of annual holidays, then it was part of annual leave – that was EC’s essential reasoning, which was correct – appeal should be dismissed
RESULT (per majority): appeal allowed – case referred back to EC for reconsideration in light of CA judgment
New Zealand Tramways and Public Transport Employees Union Inc & Anor v Transportation Auckland Corporation Ltd & Cityline (NZ) Ltd [2008] NZCA 159
From the Times
CRIMINAL LAW - Khan's home was searched by police after a suspect, who had been arrested, falsely gave Khan’s address as his own. The police entered the home under s18 Police and Evidence Act 1984 as they incorrectly believed that it was the home of the suspect. The Court of Appeal discussed s18. The Court then held that the power to enter and search premises without a warrant could only be used when those premises were occupied or controlled by the person under arrest and not where police just had a reasonable belief that they were the premises of the suspect.
Khan v The Home Office [2008] EWCA Civ 578
CRIMINAL LAW - The Redknapp’s were granted leave by the court to apply for judicial review of the issue and execution of a search warrant. It was held that the warrant was unlawfully issued and that the information provided in the application form must contain all the material necessary to justify the issue of the warrant. None of the four conditions under s8(3) Police and Criminal Evidence Act 1984 had been deleted and the police officer’s statement did not contain any information that would correct the defect or give the court grounds to conclude that at least one of the conditions was met. The warrant should be quashed. It was also held that for the execution of the warrant to be lawful the warrant had to be shown to the occupier of the premises, and the occupier must be given a copy.
Redknapp & Anor v Commissioner of the City of London Police & Anor [2008] EWHC 1177
Notices & notes
Arbitrators' and Mediators' Institute of NZ Conference
1-3 August 2008 - Montana Brancott Winery, Blenheim, Marlborough, New Zealand.
Mutual Recognition of Securities Offerings
This agreement, which came into effect on Friday (13 June 2008), allows mutual recognition of securities offerings between New Zealand and Australia. The regime will smooth the way for businesses on both sides of the Tasman to raise capital and increases the choice for investors. The Securities Commission has produced a guide explaining what issuers have to do under the trans-Tasman mutual recognition scheme for offers of securities.
21st LawAsia Conference 2008
29 Oct - 1 Nov 2008, Kuala Lumpur Convention Centre
Judges, lawyers, academics and others interested in legal issues affecting the Asia Pacific region are invited to attend LAWASIA’s premier conference.
Auditor-General's reports presented to Parliament
The Auditor-General’s reports Ministry of Social Development: Preventing, detecting and investigating benefit fraud and The Accident Compensation Corporation's leadership in the implementation of the national falls prevention strategy have been presented to Parliament.
A new costs regime in the Court of Appeal
Article by Colin Fife, Judge’s Clerk at the Court of Appeal.
ACC Bill improves weekly compensation for casual and seasonal workers
Among other things, the Injury Prevention, Rehabilitation and Compensation Amendment Bill (No.2), will close the gap for some workers who are disadvantaged by the way weekly compensation is calculated.
The Art of Written Persuasion: The Rise of Written Persuasion
Troy Simpson argues that written persuasion now provides an essential opportunity for lawyers to persuade judges. Yet, even in America, where lawyers have used written persuasion for a century or more, lawyers' written advocacy skills remain under-developed..
Consultation on the Retirement Villages Code of Practice 2008
The Department of Building and Housing seeks your comments on the content of the proposed Retirement Villages Code of Practice 2008.
Discussion document on plan of action to prevent people trafficking.
Make a submission on the Department of Labour's discussion document on the development of a plan of action to prevent people trafficking.
Progress on emissions trading bill
The Climate Change (Emissions Trading and Renewable Preference) Bill was reported back to the House on 16 June.
Waste bill gives economic incentives
The Waste Minimisation (Solids) Bill will offer economic incentives and rewards to businesses and councils who do their bit for waste reduction.
Appointments under the Lawyers and Conveyancers Act
The Legal Complaints Review Officer and the Deputy Legal Complaints Review Officer have been appointed under the Lawyers and Conveyancers Act 2006. The new complaints and disciplinary process for lawyers and conveyancing practitioners comes into force on 1 August 2008.
Proposals to strengthen Domestic Violence Act 1995
A Bill is currently being drafted to incorporate a number of proposed changes to reduce and prevent violence within domestic relationships. The proposals are set out in four cabinet papers: Overview; Role of the Police and the Enforcement of Protection Orders; The Role of the Courts under the Domestic Violence Act 1995 and Children.
RAMs Boardroom Bash
Kensington Swan invites Recently Admitted Members (RAMs) to a Boardroom Bash on Wednesday 25 June 2008.
Drink & refreshments form 5:30pm until 8:00pm at 18 Viaduct Harbour Ave, Auckland.
Given the overwhelming response and success of RAMs events, numbers will be strictly limited. Please RSVP no later than Friday 20 June to Eileen Yee.
Judge for yourself - concert
Auckland District Law Society and Atwaters Musicworks presents Judge for Yourself a concert showcasing the musical talents of ADLS members on Sunday 29 June 2008 at The Maidment Theatre, Auckland University, 2.00 pm.
New Zealand Governance Centre Inaugural Conference
Friday, 15 August and Saturday, 16 August 2008
The Legal Research Foundation is offering its support to this inaugural conference hosted by the New Zealand Governance Centre.The New Zealand Governance Centre has been established as an interdisciplinary Centre that will undertake and promote research in governance including corporate governance, the governance of small and medium sized enterprises, and not for profits, Maori governance, and leadership.
1st New Zealand Bar Association International Conference
The 2008 New Zealand Bar Association Annual Conference will be held in Sydney this year, the weekend of Friday 15 and Saturday 16 August 2008. The Bar Association plans an exciting programme with input from the New South Wales Bar Association. The theme of the conference is A Global Approach to Law – Life as a Barrister in the 21st century.
Twenty years on from the Cartwright Report
Key figures involved in the cervical cancer inquiry will speak at a forthcoming conference marking the twentieth anniversary of the Cartwright Report. The one-day conference, "Twenty years after the Cartwright Report: What have we learned?", will be hosted by the Faculty of Law at The University of Auckland and held at the Hyatt Regency on 29 August.
NZ Law Foundation International Research Fellowship
Applications for 2008 close on 1 September 2008.
Cleary prize nominations/applications open
The Law Foundation now administers the annual Cleary Memorial Prize and applications are now being sought.
In the news..
"Officials appalled at release of radical preacher". New Zealand Herald, 19 June 2008, page A13 discusses the Court of Appeal decision Othman (Jordan) v Secretary of State for the Home Department [2008] EWCA Civ 290 and the decision of the Special Immigration Appeals Commission (17 June 2008, Mitting J) which is not available online at this stage
"Leaders clash on jail time bill". New Zealand Herald, 19 June 2008, page A2
"Jail terms reduced for drug-bust pair". New Zealand Herald, 19 June 2008, page A18
Law Commission papers
Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character
The Commission's latest report reviews the Evidence Act 2006 and the law as it relates to the admissibility of previous convictions, similar offending and bad behaviour in New Zealand. It makes no recommendation to amend the law at this point but proposes that it should continue to monitor the operation and impact of the Act in this area, and report back to government by 28 February 2010. (NZLC R 103)