The
Hamilton City Council is currently considering
adopting Auckland’s tree protection policy, which
some consider to be in the best interests of the
general public. Others consider that Auckland’s
tree protection policy is too restrictive and
involves excessive bureaucracy. The issue that
arose in Hamilton has wider implications for other
Councils throughout the country that are grappling
with this problem and do not currently have a
general tree protection policy such as the one
that operates in Auckland.
Back to
Top
Increasingly
New Zealanders are becoming more alert to the
implications of the Property (Relationships) Act
1976 (“the Act”) and are seeking legal advice about
the preservation of their hard-earned property.
Section 21 of the Act provides a husband and wife,
civil union partners, de facto partners, or two
persons in contemplation of entering into a
marriage, civil union or de facto relationship may
contract out of the provisions of the Act.
In a
recent decision of the Court of Appeal, Harrison -v-
Harrison, the court commented, “the paradigm
situation in which a contracting out agreement will
be sought is where one party has pre-relationship
assets of a significant magnitude to render
justifiable the social awkwardness of insisting on a
contracting out agreement…”
There
are numerous reasons for electing to contract out of
the Act. Usually, it is to avoid the presumption of
equal sharing of property that arises when the
relationship ends. However, an agreement may also
assist with asset, estate or tax planning. It may
be a desire by one or both parties to preserve all
of the property owned or acquired by them prior to
the commencement of the relationship as his or her
own separate property. Alternatively, the parties
may simply wish to record their decision to treat
certain property differently.
Section 21D of the Act sets out what can be included
in an agreement. An agreement can
a)
declare
property to be separate or relationship property;
b)
define the
share each party to the agreement has in any part or
all of the relationship property;
c)
define
shares on death;
d)
provide
for the calculation of the shares; and
e)
prescribe
the method by which the relationship property is to
be divided.
Section 21 of the Act permits parties to an
agreement to make any arrangements they think fit
with respect to their property, including property
acquired in the future by one or other or both of
the parties.
“Property” is specifically defined in Section 2 of
the Act and includes the following:
a)
real
property (i.e. land);
b)
personal
property;
c)
any estate
or interest in any real property or personal
property;
d)
a debt;
and
e)
any other
right or interest.
Section 21F of the Act records an agreement will be
void unless it complies with certain requirements.
Those include the following:
a)
The
agreement must be in writing and signed by both
parties.
b)
Each party
to the agreement must have independent legal advice
before signing the agreement.
c)
The
signature of each party to the agreement must be
witnessed by a lawyer.
d)
The lawyer
who witnesses the signature of a party must certify
that, before that party signed the agreement, the
lawyer explained to that party the effect and
implications of the agreement.
It is
important to recognise that an agreement contracting
out of the provisions of the Act needs to be
revisited on a regular basis. It is impossible when
drafting an agreement to anticipate every
eventuality just as it is impossible to foresee, at
the outset, the longevity of a relationship.
Back to
Top
The Evidence Act 2006 (“the Act”) makes some
significant changes to the law concerning the
admissibility and use of evidence in court
proceedings. One major change relates to the
compellability of a spouse to give evidence in
criminal proceedings.
How it Was
Under the old law, the spouse of a person
charged with an offence was a competent witness
but there was no power for the Crown to compel
that spouse to give evidence in a criminal trial
without the consent of the person charged with
the offence. The law afforded a further
protection to spouses in any proceeding,
criminal or otherwise, by protecting disclosures
made during a marriage by one spouse to the
other. This presented particular difficulties
to the Crown when prosecuting one spouse for an
offence involving the use of violence against
the other spouse and/or a child of the marriage.
How it is Now
The Act removes what was previously termed
“spousal immunity” or “spousal
non-compellability”. Instead, the Act provides
that any person in any civil or criminal
proceeding is an eligible witness, and may be
compelled to give evidence. A Judge does not
have the discretion to excuse spouses from
giving evidence against each other.
One effect of this in the criminal context is
that spouses who are victims of domestic
violence may be compelled by the Crown to give
evidence in the trial of the spouse who has been
charged with an offence.
Witnesses who Lie
Where a spouse is compelled to give evidence
against a spouse and that evidence either
contradicts or retracts an earlier statement
made by the witness spouse, there is provision
for the Crown to challenge the credibility of
the witness spouse by reference to the earlier
statement. To avail itself of this remedy, the
Crown would need to obtain a declaration that
the witness spouse is a “hostile” witness. This
is a mechanism retained by the Act that can
assist the Crown or any other party when a
witness spouse or any other witness deliberately
gives false testimony under oath or affirmation.
Except for the transitional provisions that
became effective on 18 July 2007, the Act took
effect on 1 August 2007.
Back
to Top
1.
Anti-Smacking Legislation
The
controversial new Crimes (Substituted Section 59)
Amendment Bill (or anti-smacking legislation as it
has been dubbed) was finally passed by Parliament
on 16 May 2007 by 117 votes to 7. The new section
59 removes from the Crimes Act the statutory
defence of “reasonable force” to correct or
discipline a child.
The
somewhat controversial legislation has been
tempered by the recognition of some circumstances
when the use of reasonable force is justified.
Such circumstances include trying to prevent or
minimise harm to a child, preventing a child from
committing a criminal offence, preventing a child
from engaging in or continuing to engage in
disruptive behaviour or in the course of
performing the normal daily tasks incidental to
good parenting. Coupled with this is the
discretion conferred upon the New Zealand Police
not to prosecute a complaint against a parent
where the offence is considered inconsequential.
2.
“Party Pills” to be Banned
On
28 June 2007, Jim Anderton, Associate Minister of
Health announced that the Cabinet had agreed to
his recommendation to ban pills containing
Benzylpiperazine (“BZP”) more commonly known as
“party pills” or “dance pills”.
BZP
is a stimulant that has a
hallucinogenic-amphetamine effect. Until
recently, pills containing BZP were classified as
a Class D drug, which meant they could not be sold
to people under the age of 18 years. Over 40
milllion pills were legally consumed in New
Zealand up until the middle of 2007. It is
reputedly a $35million-a-year industry.
The
Expert Advisory Committee on drugs has recommended
to the Minister that BZP and related substances
should now be classified as a Class C1 drug.
This means a ban on the
manufacture, supply, sale, export or import of
“party pills”. Anyone supplying, manufacturing,
exporting or importing these products will be
liable to a penalty of a maximum of up to eight
years in prison. Those found in
possession of a Class C1 drug are liable to a
maximum of three months jail and/or up to a $500
fine.
The
Minister has advised that the classification of
party pills to Class C1 will be made through an
amendment to the Misuse of Drugs Act. The
legislation is to be introduced and passed into
law by Christmas 2007.
3.
Wills
A
Bill updating the law relating to wills is
currently in its final legislative stages. Once
passed into law, it will be known as the Wills Act
2007 (“the Bill”).
The
existing law is enshrined in a statute dating back
to 1837. It sets out the formal requirements for
signing or revoking a will as well as the rules
concerning interpretation and correction of
wills. However, some considered the existing law
too restrictive and that proper effect was not
given to the intentions of the person making the
will (currently known as the “testator”). The
requirements for signing a will under the existing
law are strict. There have been instances where a
will has been deemed to be invalid because of the
lack of formal validity arising from the manner in
which it had been signed, despite the testator’s
intentions being very clear.
The
new Act will apply to the will of any person who
dies in New Zealand on or after 1 July 2007. One
of its purposes is to restate the law in plain
modern language. The Bill, once passed, will go
some way towards modernising the substantive law
but it is not intended to be a wide ranging reform
of the current law.
The
term “testator” is replaced by the term “will
maker”. One of the underlying principles of the
new law is to ensure that the intentions of the
will maker are given full effect. To this end the
Bill contains a provision for the court to correct
clerical errors in a will that alter the true
intention of the will maker. Furthermore, the
court may take into account external evidence in
interpreting a will where the wording of the will
is such that the will maker’s intention is “part
meaningless, ambiguous or uncertain”.
The
requirements for a valid will under the new law
will be essentially the same. The Bill restates
that a will must be a document signed in the
presence of two witnesses. Those witnesses must:
a)
be
together in the will maker’s presence when he or
she signs; and
b)
each
state on the document, in the will maker’s
presence, that he or she was present when the will
maker signed; and
c)
each
sign the will in the will maker’s presence.
However, the Bill does contain a new provision
whereby the High Court can make an order declaring
a document valid where it appears to be a will but
does not comply with the above requirements. This
does not apply to wills made before 1 July 2007.
The
onus is clearly on the will maker and his or her
lawyer to ensure that the intention of the will is
very clear.
Nevertheless, the Bill will give some flexibility
to the court with the interpretation of a will
where the intention has not been stated as clearly
as it should be. It will be interesting to see
how widely or restrictively the court will
interpret its powers under the new legislation.
Back to
Top
