Category: Not Assigned

The Employment Relations (Employee Remuneration Disclosure) Amendment Bill passed its third reading on 20 August 2025.  The Bill will become law pending Royal Assent by the Governor-General in the coming weeks.

The Bill creates new rights for employees:

• Employees can now disclose, share and discuss their pay without fear of discipline from their employer.
• Pay secrecy clauses in employment agreements are no longer valid.
• Employers cannot retaliate or penalise employees who talk about their pay.

For employees, this Bill provides greater pay transparency, stronger bargaining power and aims to help close unfair pay gaps.  While it shouldn’t be seen as a signal to start asking all your colleagues what they get paid over the morning break, any conversations that do take place will be protected by this legislation.

For employers, this Bill means they need to be prepared to explain how pay is set in a fair and transparent way.  Employers should also review their employment agreements, remove secrecy clauses and update their template agreements to effect compliance.  Where employers already have transparent and robust systems in place to assess employee performance and set remuneration, these changes are unlikely to cause much unrest.  For those employers who are still on that journey of working towards fairer systems and checks, this legislation might be a good opportunity to make that happen.

Employment Law Assistance

Our Workplace Law Team are able to assist with all employment processes and any other bespoke employment queries you may have.

Chantelle is an Associate in our Workplace Law Team and can be contacted on 07 958 7473.

Are you or do you know anyone who might be entitled to a sensitive claim settlement?

Sensitive claims in New Zealand involve compensation for abuse, neglect, or mistreatment, within government institutions.  These claims address deeply personal trauma and provide justice and redress for the affected individuals.  Our team can assist in working through these things.

Legal Process for Sensitive Claims of Abuse in State Schools

The Ministry of Education’s process for handling sensitive claims of abuse in state schools provides individuals with a structured means to seek redress for past mistreatment or abuse. These claims can include physical, sexual, or psychological abuse that occurred while the claimant attended a state school.  This legal avenue is available for individuals who attended schools before 1989 or schools that are now closed, such as specialist schools and health camps.

The process involves several key steps, beginning with the submission of a claim form, which requires basic information and consent to access relevant records.  The Ministry may offer support services, including counselling, during the processing of the claim.  Once the claim is reviewed, an external assessor will evaluate the information, and if wrongdoing is identified, an apology or financial compensation may be offered.

Individuals who believe criminal conduct was involved can refer their case to the police.  The Ministry’s approach ensures that each claim is handled with sensitivity, providing appropriate accommodations for individuals’ needs, such as language support or legal counsel.

This legal process allows individuals to seek acknowledgment of their experiences while protecting their right to pursue further legal actions if desired.

Rapid Payment Options

The Ministry of Education has recently implemented rapid payment options for individuals who have attended Waimokoia/Mt Wellington Residential School and have a sensitive claim of abuse and people who are terminally ill.  These payments provide a quicker redress process compared to the full claims assessment.

Waimokoia/Mt Wellington Residential School

Claimants who attended this school can opt for a rapid payment which includes a set amount based on the decade they attended the school, reflecting average payments under the full claims assessment process, an apology from the Secretary for Education and a reimbursement for legal costs.

Payments are determined by the decade in which a claimant attended school.  For example, a claimant who attended Waimokoia/Mt Wellington Residential School in the 1960s would receive $5,000, while a claimant who attended in the 1970s would receive $10,000.

Extra payments may be made if there is evidence of specific instances of abuse during certain years.   For example, a claimant who attended between 1960 and 1961 would receive $15,000, which includes the standard $5,000 for the 1960s and an extra $10,000 due to documented staff abuse during that period.

Future of Rapid Payment Options

Currently only claimants who attended Waimokoia/Mt Wellington Residential School are eligible for the rapid payments option however, once research for McKenzie Residential School and Campbell Park School is completed, rapid payments will also be available for claimants who attended these schools.

Terminally Ill Claimants

Individuals who are terminally ill and expected to live less than 12 months can receive a prioritised settlement payment of $10,000, along with an apology and legal fee reimbursement.

Sensitive Claims Through Other Government Agencies

Currently, survivors of historical abuse in State care can make a claim through various government agencies such as:

(a) Ministry of Education

(b) Oranga Tamariki

(c) Ministry of Health

(d) Ministry of Social Development

If you would like assistance with making a claim or further information and advice, please contact Preston Rawiri on 07 957 2352 or preston.rawiri@mccawlewis.co.nz

The Marine and Coastal Area (Takutai Moana) Act 2011 (the Act) was introduced in 2011, replacing the Foreshore and Seabed Act 2004. This legislation was aimed to restore customary interests previously extinguished under the 2004 Act, establish statutory tests for recognising customary interests and provide for public access.

Under the Act, Māori can obtain legal rights in the form of customary marine titles or protected customary rights, with two application pathways available.  Māori can apply to the High Court for a recognition order or engage directly with the Crown or do both.  In each case, applications for customary rights had to be filed by the statutory deadline of 3 April 2017.

The Waitangi Tribunal has recently inquired into the Act as a priority, acknowledging its impact on Māori and the importance of customary rights.  In its Stage 1 Report, released in 2020, the Tribunal found that certain aspects of the procedural and resourcing arrangements breached the Treaty of Waitangi and negatively affected Māori.  The Tribunal’s Stage 2 Report was released in October 2023 and examines whether the Act breaches Te Tiriti o Waitangi (Tiriti) principles and prejudices Māori.

Overview

In its Stage 2 Report the Tribunal found that aspects of the Act do breach Tiriti principles and cause prejudice to Māori for various reasons, including:

1. The Crown’s inability to facilitate well-informed and meaningful Māori participation in the consultation process.
2. The inability to provide a fair and reasonable statutory test for customary marine title.
3. Failing to offer Māori a choice between having their applications heard in either the High Court or the Māori Land Court.
4. Unjust exceptions that limit the scope of protected customary rights.
5. The exceptions of accommodated activities and deemed accommodated activities reducing the regulatory authority of customary marine title holders, weakening their permission rights.
6. Insufficiently empowering Māori to preserve wāhi tapu and wāhi tapu areas under the wāhi tapu protection right.
7. Vesting reclaimed land in the Crown, resulting in the extinguishment of Māori customary rights without compensation and preventing the granting of customary marine titles and protected customary rights.

Duty of Active Protection

The Report emphasises that under the principle of active protection, the Crown must seek input from Māori on what they consider taonga and ensure their protection.  The Tribunal confirms that, “the marine and coastal area as a whole is a taonga that has significant importance to Māori.”

The current rights provided by the Act do not sufficiently support Māori in their kaitiakitanga duties and rangatiratanga rights.  The Act fails to address certain types of rāhui undermining the ability of Māori to exercise tino rangatiratanga.

The Act’s statutory deadline for filing applications has caused prejudice to those who missed the deadline altogether, as they can no longer seek legal recognition of their customary interests in te takutai moana.

The Act’s restrictions on the alienation of customary marine title also contributes to the breach of the Crown’s duty of active protection.  Under section 58 of the Act, adding ‘without substantial interruption’ to the test raises the risk of some applications failing.  The Act already covers the protection of existing interests in te takutai moana in other sections, so the Tribunal found that the addition is not necessary.

Duty to Consult

The Report states that even though the principles of partnership and active protection required the Crown to consult with Māori to a greater degree than the public, given the particular interest that Māori have in the taonga that is te takutai moana, there was little evidence to suggest that the Crown made meaningful efforts to engage with Māori specifically.

The Act has a substantial impact on the relationship Māori have with te takutai moana.  The Crown’s duty to consult with Māori in developing the Act is of the utmost importance and goes beyond simple outreach or data gathering.  When key elements of a policy are deemed non-negotiable, it severely undermines meaningful consultation.  The Crown’s insistence on these non-negotiables is seen as a lack of good faith toward Māori.

Duty to Act in Good Faith as Treaty Partners

Partnership

The Tribunal has consistently upheld the idea that Te Tiriti signifies a partnership between the Crown and Māori.  The partnership is built on the fundamental premise that each partner should act reasonably and in the utmost good faith towards the other.  It encompasses a commitment to act honourably, reasonably, and in good faith, aligning with the principles of reciprocity and mutual benefit.

The notion of reciprocity does not imply that Māori gave the Crown unrestricted legislative supremacy over resources.  Instead, it highlights the need for a balanced approach where the interests of both Māori and non-Māori are considered fairly and reasonably.  The Tribunal believes there is a place for both peoples and their interests in the foreshore and seabed.

The Tribunal considers that the Act’s statutory deadline unjustified and does meet the standard of acting reasonably and in good faith toward Māori.  This conclusion is based on the lack of compelling evidence supporting the choice of a six-year deadline, and the Crown’s flawed argument about legal certainty.  The Tribunal found the Act’s statutory deadline is in breach of the Treaty principles of partnership and active protection.

Tribunal’s Recommendations

In summary, the Tribunal finds that the Act fails to adequately support Māori in their roles as kaitiaki and in exercising rangatiratanga rights.  The Tribunal recommends specific amendments to the Act to rectify these issues.  These include:

1. Improving the statutory test for customary marine titles.
2. Repealing the statutory deadline.
3. Allowing applicants flexibility between the High Court and Māori Land Court.
4. Addressing exceptions to protected customary rights.
5. Repealing specific exceptions to the scope of permission rights.
6. Increase the scope of the Act’s compensation regime.
7. Separating the legal protection for wāhi tapu areas from the regulations and requirements associated with customary marine title under the current regime.
8. Compensate affected iwi, hapū, and whānau for all reclaimed land vested in the Crown.

Conclusion

The Tribunal supports that te takutai moana is a taonga.  Consequently, the Crown is required under the principle of active protection, to engage in genuine and meaningful consultations with Māori to seek their perspectives and ensure the safeguarding of this taonga.

At this stage, it is uncertain to what extent the Tribunal’s findings or recommendations will be addressed by the Crown.  For those with takutai moana applications before the High Court or in engagement with the Crown, the Tribunal’s findings and recommendations will be relevant in some respects.

The experienced team at McCaw Lewis can help you navigate any aspect of your Takutai Moana matters and answer any questions you may have.

As iwi move through their Waitangi Tribunal claims process to a settlement, the next question for many is how to manage settlement assets in the best interests of beneficiaries – both immediately and in the longer term. Charitable trust are often set up by iwi looking to help its members directly with a range of needs.

A primary concern for many iwi once they receive settlement assets is how to help their members with urgent and direct needs like education, housing and healthcare. Charitable trusts can be an effective way to meet this need.

Charitable Purposes

To qualify for registration, a trust must be established for “charitable purposes”, being the relief of poverty, the advancement of education or religion, or any other matter beneficial to the community, and can also include the administration and maintenance of marae.

For a charitable trust set up by a PSGE, charitable purposes can include things like supporting education by way of grants to individuals for tertiary study, promoting cultural competence by providing Te Reo language courses, aiding healthcare by providing support with dental care and doctors’ visits for tamariki or kaumatua, or addressing housing deficiencies with items like heating or insulation. A charitable trust will need to specify what charitable purposes it intends to pursue in its governing document.  Any income earned by or donated to a charitable trust can only be used for those charitable purposes.

Trustees

A charitable trust is operated by trustees, who will usually be appointed by the PSGE but alternatively could be elected if the relevant trust deed allows. Trustees must meet certain criteria to be an officer under the Charities Act 2005, and are also subject to duties and obligations under the Trusts Act 2019.

If the trust intends to hold assets, it may also be advisable to incorporate as a charitable trust board. This is a registered incorporated entity, providing additional limitation of liability for trustees as well as making ownership succession easier if and when trustees change.

Funding

In this context, a charitable trust’s activities would be funded primarily by the PSGE trust donating a portion of income earned on its commercial activities or passive investments. This may also provide a tax benefit to the PSGE. The trust can also seek donations from iwi members or other parties.

Charities are required to file annual returns and financial statements with Charities Services – the standard and amount of detail required to be provided will depend on their size, but trustees need to ensure that all decisions and transactions are recorded thoroughly.

Risk and Liability

Generally, we don’t recommend that the PSGE trust’s assets are transferred to the charitable trust. Such a transfer could limit the PSGE’s ability to deal with those assets in future, and can also impact the beneficiaries’ rights to those assets.

In some contexts it may be appropriate for certain assets to be held by a charitable trust, for example culturally significant land that will never be developed or sold. However, any transfer of ownership should only be done in consultation with the PSGE’s lawyers and accountants.

Jessica Middleton is a Senior Associate in our Commercial Team and can be contacted on 07 958 7436.

The New Zealand Government’s rollout of the COVID-19 vaccination is in full swing.  Prime Minister Jacinda Ardern recently announced that all frontline border staff must be vaccinated by the end of April, or they will be redeployed.  In this article, we explore the topical question of whether employers can have similar expectations of employees, and how employers can manage the vaccination of employees.

Existing employees

If employers force existing employees to get a vaccination, they could be in breach of the New Zealand Bill of Rights Act because everyone has the right to refuse medical treatment.  Conversely, an employer will be grappling with their obligation under the Health and Safety at Work Act 2015 to take all reasonably practicable steps to protect employees and the public from harm in the workplace, which could include harm caused by an unvaccinated employee.

From a health and safety perspective, in some industries the requirement for vaccination could be a “reasonable instruction”, as an unvaccinated employee could be placing patients or vulnerable people at serious risk (for example, in hospitals or aged care facilities).  To that end, employers may consider that certain roles require employees to be vaccinated, and contemplate redeploying unvaccinated employees.  In these cases, the Government has confirmed that a health and safety risk assessment must be conducted, and other proper process followed.

Hiring new employees

In the interests of health and safety, it is arguable that employers could require proof of vaccination when hiring new employees.  In these cases, the employer cannot discriminate where the potential employee is exercising their right to refuse medical treatment for reasons of disability, religious or ethical belief, or other prohibited form of discrimination under the New Zealand Bill of Rights Act.  That said, an employer can refuse to employ an unvaccinated candidate if their refusal to vaccinate cannot be accommodated and genuinely creates a risk to health and safety.

Going Forward

Essentially, where employers’ health and safety obligations conflict with employees’ rights under the New Zealand Bill of Rights Act, a delicate balancing exercise and fair and reasonable process is required if employers are looking to make vaccinations mandatory.

Going forward, it is important to remember that throughout the COVID-19 era, employment law has continued to apply to all employment relationships, and employers are still bound by the same health and safety obligations, and the obligation to act in good faith and show manaakitanga.  As always, caution is advised in this grey area, and we recommend getting in touch if you require any guidance.

Employment Law Assistance

Chantelle Tyler and our Workplace Law Team are able to assist with employment matters relating to COVID-19, and provide guidance on crafting policies in relation to your business’ response to COVID-19, or any future pandemic event.

Chantelle is a Solicitor in our Workplace Law Team.  She can be contacted on 07 958 7473.

Coronavirus, lockdown and drought is the perfect storm for commercial disputes.

In most commercial contracts there are dispute resolution clauses which govern how parties are to try and resolve disputes.  A recent High Court case demonstrates the importance of following the dispute resolution process set out in contracts, rather than simply reverting straight to Court.

Taupo Car Club Inc v TMP Limited (2020) NZHC 495

Facts

Taupo Car Club Incorporated (“TCC”) run sports meetings at the Motorsport Park, Taupo (also known as the Bruce McLaren Motorsport Park).  Previously TCC leased the land from the Taupo Regional Council.  In about 2005, TMP Limited (“TMP”) took an assignment of the lease from TCC and under this agreement TMP agreed to develop the racing track (“the Agreement”).  TMP also agreed to pay an annual levy of $20,000 plus GST.  In exchange, TCC were allowed to use the racing track for a specified number of days “free of charge”.

In 2018 the parties modified the Agreement, deleting the annual levy but inserting that TMP can charge for a range of things (catering, pit garages, track cleaning and a participation levy to name a few).  The Agreement does not specify how any of these charges are calculated.

The Dispute

TCC refuse to pay an arbitrary $50 per car per day participation levy which TMP insist is payable.  TCC has cancelled events until this issue is resolved.

The Agreement contains a dispute resolution clause with the following multi-tier dispute resolution process:

• Initiating resolution (genuine effort to resolve the dispute);
• Negotiation;
• Alternative dispute resolution (but not arbitration at this stage);
• If all else fails, arbitration.

The parties are not strictly following the dispute resolution steps as TCC is filing a statement of claim in the High Court and asking the Court to declare the $50 per car per day levy unlawful.  TCC’s justification for applying directly to Court is that TMP has repudiated the Agreement by refusing to perform its part of the contract, and therefore the dispute resolution process does not apply.

TMP says that the parties are following the dispute resolution process (albeit loosely) and that its actions do not repudiate the Agreement.

The key issue is whether TMP has repudiated the arbitration clause of the Agreement?  If the clause is still operative, the Court must stay (halt) the statement of claim.

Discussion

The relevant law is clause 8 (1) of Schedule 1 to the Arbitration Act 1996.  It states that the Court can stay proceedings if a dispute is under an arbitration clause.  However, if the arbitration clause is null and void, inoperative, incapable of being performed or that there is no dispute between the parties with regards to the matters agreed to be referred, the Court will not halt the proceedings.

Arguments

TCC put forward two arguments to support its position that the Court proceeding should be allowed to continue:

• TMP repudiated the arbitration clause and TCC accepted it:
  • By filing the Court proceedings, TCC accepted the repudiation.  TCC tried to show this as TMP were not allowing them to hold events free of charge, cancelling events and not engaging with all correspondence from the solicitors for TCC.  Relying on the English case Downing v Al Tameer [2002] 2 All ER (Comm) 545, where parties had a dispute but one of them denied the contract, the Court found that there was clearly no intention to continue dealing with each other and the arbitration clause did not apply.  However, the Judge said that the position of TMP is quite different.  The Court decided that although TMP took a hard line on the participation levy, they did not reach the threshold of “persistent refusal to perform” necessary for repudiation. Neither did they completely refuse to perform the arbitration clause. Therefore, neither the main contract nor the arbitration clause were repudiated.
• The requirement for arbitration under the arbitration clause does not and has not arisen because the discussions, negotiation and alternative dispute resolution steps have not been done:
  • TCC argued that the requirement for arbitration under cl 5 does not and has not arisen in this case because the preceding steps in clauses 5.1, 5.2 and 5.3 have not been met. The Judge did not like this argument and rejected it. The Court noted the danger of these multi-tiered resolution clauses but said that TCC and TMP had taken steps “broadly in accordance with the substance (of the arbitration clause).”  The Court also noted that there was some fault on both sides for not following all the steps, but that that is not a basis to deny the effect of the arbitration clause.  The Court agreed with what the solicitor for TMP proposed, in that TMP and TCC having agreed on an arbitration evaluation clause, the Court should allow them to fulfil that intention.

Result

The Court stayed the proceedings and the parties will now need to arbitrate.

Word of Caution

The current uncertain economic times are generating commercial friction.  When disputes arise, for example performing commercial contracts, due invoices or property sales that cannot proceed, the first step should be to check the contract dispute resolution clause and try and resolve the dispute in a way that broadly follows this.  As outlined above, Courts may acknowledge that you have followed the dispute resolution clause and stay any proceeding.  It should be noted that at any time the parties can agree to vary the dispute resolution process.  On the other hand, going down a completely different path could lead to a resolution, but later it could be declared invalid.  As TCC found out, with multi-tiered dispute resolution clauses, it is important to check the clause and take the dispute resolution steps one at a time.

If you would like further information, please contact Daniel Shore on 07 958 7477.

Why we need to ask you for information

New Zealand has passed a law called the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (“the AML/CFT law” for short). The purpose of the law reflects New Zealand’s commitment to the international initiative to counter the impact that criminal activity has on people and economies within the global community.

Recent changes to the AML/CFT Act mean that from 1 July 2018 lawyers must comply with its requirements. Lawyers must do a number of things to help combat money laundering and terrorist financing, and to help Police bring criminals to justice. The AML/CFT law does this because the services law firms and other professionals offer may be attractive to those involved in criminal activity.

The law says that law firms and other professionals must assess the risk they may face from the actions of money launderers and people who finance terrorism and must identify potentially suspicious activity. To make that assessment, lawyers must obtain and verify information from prospective and existing clients about a range of things. This is part of what the AML/CFT law calls “customer due diligence”.

Customer due diligence requirements

Customer due diligence requires a law firm to undertake certain background checks before providing services to clients or customers. Lawyers must take reasonable steps to make sure the information they receive from clients is correct, and so they need to ask for documents that show this. We will need to obtain and verify certain information from you to meet these legal requirements.

To confirm details including your name, date of birth and address, the following certified documents (or similar) will be required:

• Identity documents such as New Zealand passport or driver’s licence and birth certificate, and
• Address documents such as a bank or rates statement dated within the last three months.

If you are seeing us about company or trust business, we will need information about the company or trust including the people associated with it (such as directors and shareholders, trustees and beneficiaries).

We may also need to ask you for further information. We will need to ask you about the nature and purpose of the proposed work you are asking us to do for you. Information confirming the source of funds for a transaction may also be necessary to meet the legal requirements.

If you cannot provide the required information

If you are not able to provide the required information, it is likely we will not be able to act for you.  As the law applies to everyone, we need to ask for the information even if you are a longstanding client of ours.

Prior to commencing work, we will confirm the documents and information required.

If you would like further information please contact Laura Monahan on 07 958 7479.