Most people have heard of incorporated societies, but what about unincorporated societies? In reality, there are thousands of unincorporated societies in New Zealand. They might be sporting groups, hobby groups, community groups, or a group set up for a particular purpose.

Incorporated societies are, as their name suggests, ‘incorporated’. A key benefit of incorporation is that society members are generally not personally responsible for any of the society’s obligations. They become incorporated by registering with the Companies Office and they need to follow the legal obligations set out in the Incorporated Societies Act 2022 and the Charitable Trusts Act 1957.

Unincorporated societies, on the other hand, are typically much less formal, and this comes with advantages and disadvantages. Let’s look at some examples.

Disadvantages relate to the fact that liability can attach to members and the inability to own property:

  1. Limited Legal Status: Unincorporated societies (as opposed to incorporated societies) do not have a separate legal personality. This means they cannot enter into contracts, own property, or sue or be sued in their own name. Individual members may be personally liable for the society’s debts and obligations.
  2. Limited Liability Protections: While members typically have limited liability, their personal assets may still be at risk in the event of legal disputes or financial problems within the society, depending on the circumstances.
  3. Difficulty in Holding Assets: Unincorporated societies cannot own assets in their own right. Any assets are usually held in the names of individual members or office bearers, which can make asset management and ownership more complex.
  4. Limited Funding Opportunities: Unincorporated societies may face challenges when seeking funding or applying for grants from certain organizations or government agencies, as some may prefer to work with registered legal entities for accountability and transparency reasons.
  5. Less Credibility: Compared to incorporated entities, unincorporated societies may be perceived as less credible or less established, which could impact their ability to attract members, volunteers, or supporters.
  6. Limited Access to Legal Remedies: Unincorporated societies may have limited access to legal remedies and dispute resolution mechanisms compared to registered legal entities.
  7. Dissolution Challenges: If an unincorporated society decides to dissolve, distributing assets and resolving financial matters can be more complicated than for registered legal entities.

Advantages relate to their simplicity and flexibility:

  1. Simplicity and Low Cost: Forming and maintaining an unincorporated society is generally straightforward and cost-effective compared to setting up and operating a registered legal entity like a company or charitable trust. There are minimal legal formalities and registration requirements.
  2. Flexibility: Unincorporated societies enjoy a high degree of flexibility in terms of governance, decision-making processes, and organisational structure. They can adapt their rules and operations to suit the needs of their members.
  3. Minimal Reporting Requirements: Unincorporated societies have fewer reporting and compliance obligations compared to incorporated entities. They are not generally required to file annual financial statements with government agencies.
  4. No Shareholders: Unlike companies, unincorporated societies do not have shareholders, which means there are no ownership interests or equity shares to manage. Members usually have equal rights.
  5. Tax Benefits: Depending on their purpose and activities, unincorporated societies may be eligible for tax-exempt status, which can result in cost savings for the organization and its members.

Groups may start out as unincorporated and go on to become incorporated as a way of dealing with the disadvantages.  Choosing whether to incorporate or not depends on the group’s goals, size, and activities. Another legal structure such as a charitable trust might be a better option. In this article we compare the two structures.

If you are part of an incorporated society, there are important changes required that you need to be aware of. To help people understand the requirements we have put together an extensive Incorporated Societies Information Hub full of free resources.

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. 

We help with unincorporated and incorporated societies and answer questions all the time. If you would like to discuss further, please contact one of our team on stevenmoe@parryfield.com,  sophietremewan@parryfield.com or annemariemora@parryfield.com at Parry Field Lawyers.

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Charities form a fundamental part of our society, supporting and providing for those in need and the community. However, many charities have rules which really need a refresh as they have been in place for a long time.

One common question we get is where those rules contain a clause in their founding documents stipulating that consent from Inland Revenue Department (“IRD”) is required before making changes to particular clauses. This article will address what a founding document is, what these clauses look like, whether they are still necessary and whether they can be changed.

 

What are the founding documents of Charities and what clauses require IRD approval?

As charities can be created in various ways, founding documents vary depending on what kind of organisation or structure a charity adopted when it was created. In general, a founding document is a set of rules detailing how the charity is to operate, what the purpose of the charity is, and what exactly the charity does. The three main ways a charity can be structured according to a founding document are:

  • A Charitable Trust, via a Trust Deed;
  • A Charitable Company, via a Constitution; and
  • An Incorporated Society, via a set of Rules, also known as a Constitution.

Within the founding documents of older charities, there is often a clause that states:

“No addition to or alteration of the charitable objects, the personal benefit clause or the winding up clause shall be approved without the IRD’s approval”.

These clauses are usually included within the “Amendment” section of a charity’s founding document. Older formed charities have this clause within their founding documents as it was recommended by past IRD commissioners. The idea behind this clause was to ensure that key clauses could not be easily changed or amended.

 

Is this clause still necessary? If not, can it be removed and replaced?

Within both Operational Statements 06/02 and 22/04 issued by the IRD, it clearly states that the Commissioner of the IRD no longer gives prior approval to clause changes. Instead, the IRD strongly recommends that charities remove any clauses like this from their founding documents. From these statements, it is evident that IRD approval clauses are no longer relevant and have no effect or use for charities.

Operational Statement 22/04 suggests these clauses be replaced with a new clause that will not permit an alteration, addition, or removal of clauses within a founding document if it does not align with the charitable nature of your charity or provide a pecuniary benefit to any individual. This demonstrates that these clauses can be replaced with another clause that still ensures the founding document cannot be changed too easily.

 

We frequently help charities amend their founding documents. If you are aware of particular changes you need assistance with or would like us to update your charity’s founding document, please feel free to contact one of our charity specialists Steven MoeMichael BelaySophie Tremewan or Yang Su at Parry Field Lawyers.

This article is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. 

The new Charities Amendment Act 2023 (the Act) amends the Charities Act 2005. Some of its changes are already in force, having been introduced in July and October this year, while other changes come into force from 5 July 2024. In this two part update we outline the latest changes that apply as of 5 October 2023.

 

Changes to The Definition, Age and Role of Officers

A key amendment is the expansion of the definition of “officer” under section 4 of the Act to include any persons who has significant influence over the entities substantial decisions, including management or administration. So, an officer can be a trustee, members of board or governing body (if it has one) or persons that occupy other positions (such as a chief executive or treasure) if that position allows them to exercise substantial influence. Officers, according to the new Act, will also include so called “deemed directors”, being persons with whose direction or instruction the entity is accustomed or required to act. As the definition of officer has been expanded, existing and new charities should take care to have clear distinctions between those in governance and management, as well being cautious about the influence of those in management positions.

Furthermore, s 13(1)(e) introduces a new requirement that charities must at any time have at least one officer 18 years of age of older. Also, section 36A outlines the role of an officer of a charity is to “delivery its charitable purpose” and “comply with its obligations” under the Charities Act or other Acts. This is clearly in addition to other fiduciary duties that are already required of officers.

 

Disqualifying Officers

Section 36C gives the Charities Registration Board the ability to disqualify a person, for not more than five years, from being an officer of a charity by notice. The notice can be by email and the Board must publish notice on their website as soon as practicable. Prior to this new Act, the Charities Registration Board, did not have the ability to directly remove an officer and instead would need to deregister the entity. An officer can be disqualified if they have:

  • Engaged in serious wrongdoing in connection with the entity; or
  • Failed significantly or persistently to meet their obligations under the Charities Act or other enactments.

This gives the Charities Board considerable power to ban officers of charities and the circumstances in which these powers will be used is uncertain. Further, the new provision does not yet require the Board to provide the Registrar of Incorporated Societies a copy of a banning order which was previously required.

 

Consult on Significant Guidelines

Section 12A of the Act has been introduced a new process which requires the chief executive of the Department of Internal Affairs to consult with persons or representatives they consider “reasonable to consult before issuing significant guidelines or recommendations on the best practice to be observed by charities, officers, and persons concerned with the management or administration of charities.” [1] This appears to provide accountability for decision making but it may mean that non-significant guidelines or recommendations need no consultation. Further, it is only a requirement to consult.

 

Charities Obligations

The new section 13A provides all charities must remain qualified for registration. To remain qualified, charities must maintain income for charitable purposes, have qualified officers and have and maintain rules. This restates some of the key requirements already set out in s 13 but includes the requirement to have and maintain rules.

 

Extended Timeframes for Providing Information

Section 18 of the Act was amended to increase the time frame in which charities can make submissions when the chief executive is considering whether they qualify for registration. This was increased from 20 working days to 2 months and also includes the time frame that an application will be treated as withdrawn if there is no response to the notice. If the Charities Board declines an application for registration or deregisters of a charity, they must now publish their decision and their reasons for it as soon as practicable on their website.

 

Requirement to Review Governance Procedures

Charities are now required to review their governance procedures every three years under the s 42G of the Act. In this review charities must consider whether their procedures, within or beyond its rules, are fit for purpose and help the charity achieve its charitable purpose and comply with the Charities Acts’ requirements. How this new duty works in practice is unclear as these terms are neither defined nor explained. However, frequently reviewing and updating rules and procedures is good practice for charities to adopt to ensure safe, smooth and efficient management and operation.

 

To read part II to this article, click here

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This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. 

We help with charity set ups and answering questions all the time. If you would like to discuss further, please contact one of our team on stevenmoe@parryfield.com,  michaelbelay@parryfield.com,  sophietremewan@parryfield.com, or yangsu@parryfield.com at Parry Field Lawyers

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[1] Charities Amendment Act 2023, s 12A.

 

 

We continue our two part update covering the changed brough on by the Charities Amendment Act 2023 (the Act). In part one we covered the changes that came into effect in October 2023. In this part two, we cover the changes that are coming into force from 5 July 2024.

 

Objections

New sections 55A to 55E outline a new process for objecting to decisions made by Charities Services or the Charities Registration Board (the Board). The Act refers to the “chief executive” of the Department of Internal Affairs, but in practice these decisions are made by Charities Services.[1]

 

What Can Be Objected To?

Charities are now able object to a wider range of decisions. Previously, only proposals to deregister a charity or decline an application could be objected against. Section 55A outlines a list of several decisions made by Charities Services objections can be raised against. These include decisions to remove from the register any document or information related to the entity, a decision to give a warning notice and any decision made by the Board under the Act. Objections can also be raised against any decision made by the registrar.

 

Deadline For Objections

Before a decision is made, the decision makers must give the charity or person concerned notice regarding the intended decision, the grounds for the decision and the date by which an objection to the intended decision must be received (section 55B). This date will be no later than two months after the date of the notice. This is an increase from 20 working days. Unlike appeals (examined below), objections are therefore made before the decision is made.

 

Opportunity To Be Heard

Section 55D allows the objector the opportunity to be heard. This can be either in person or by electronic means. Previously, despite the rules of natural justice normally requiring an oral hearing, there was no right to a hearing.

 

Appeals

Decisions can also be appealed after they are made. There is a new process for this. While not explicitly stated in the Act, it appears that appeals can be made even if an objection was not made against a decision.

 

What can be appealed?

Section 58A outlines a list of decisions that can be appealed against. These grounds mirror those decisions that can be objected to under 55A. Previously, charities had wider rights of appeal as the grounds were not limited.

 

Who appeals are made to?

Appeals are now made in the first instance to the Taxation and Charities Review Authority (“TCRA”). Previously, appeals were made to the High Court. The intention behind this is to simplify the process for charities, with the TCRA offering a less formal process.[2] Subsequent appeals to the High Court and Court of Appeal can still be made. An unintended effect could be that charities lose their right of appeal to the Supreme Court, as generally only two appeals are allowed in New Zealand courts.

 

Deadline for appeals

As with objections, there is a two month time frame for filing an appeal. This was previously 20 working days. However, if it can be demonstrated that there were exceptional grounds that prevented an appeal from being lodged in time, additional time may be allowed.

 

Costs

Internal Affairs estimated in an impact statement that the cost for an appeal to the TCRA will be $410. This is significantly cheaper than the cost of appealing to the High Court.[3]

 

Additional change coming: Accumulated Funds

There is an additional change coming regarding charities’ accumulated funds. This is not found in the legislation but in an upcoming change the to the annual return form. Charities with annual expenditure over $140,000 will need to provide reasons in their annual returns for holding the accumulated funds. Charities Services is consulting on the annual return forms and other changes may be coming, likely to happen in 2024. In the meantime, charities are advised to consider the reasons for holding accumulated funds, ensuring it is being done in the best interests of their charitable purposes.

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This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. 

We help with charity set ups and answering questions all the time. If you would like to discuss further, please contact one of our team on stevenmoe@parryfield.com,  michaelbelay@parryfield.com,  sophietremewan@parryfield.com, or yangsu@parryfield.com at Parry Field Lawyers

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[1] Department of Internal Affairs “Policy decisions to modernise the Charities Act 2005”,  https://www.dia.govt.nz/Policy-decisions-to-modernise-the-Charities-Act-2005.

[2] Department of Internal Affairs “Policy decisions to modernise the Charities Act 2005”,  https://www.dia.govt.nz/Policy-decisions-to-modernise-the-Charities-Act-2005.

[3] Department of Internal Affairs “Regulatory Impact Statement: Modernising the Charities Act” (Report, 19 October 2021) at 106 and 107, https://www.treasury.govt.nz/publications/risa/regulatory-impact-statement-modernising-charities-act

School boards are employers which mean they have certain obligations and powers.  They can appoint, suspend, and dismiss staff and the principal.[1]  They have responsibilities under other Acts such as the Employment Relations Act 2000, the HRA, the Privacy Act 2020 and the Health and Safety at Work Act 2015.

Generally, under the Employment Relations Act 2000 (the ERA) parties in an employment relationship are under an obligation to deal with one another in good faith and not do anything to mislead or deceive each other.[2]  The object of the ERA is to build productive employment relationships through promoting good faith.[3]

State and State integrated school boards as employers also have a responsibility to be a ‘good employer’ under the Public Service Act 2020.[4]  A ‘good employer’ creates policies accepted as necessary for the “fair and proper treatment of employees in all aspects on their employment”.[5]  Each school board will have their own policies in place.  They must ensure they comply with their policies and annually report on their compliance.[6]

Staff employed in State schools such as principals, teachers and other staff are generally on ‘Collective Agreements’ with specific terms and conditions covering their roles.  Education collective agreements include equal employment opportunity clauses to recognise disadvantaged groups in employment.  However, these collective agreements often vary depending on the particular category of school (e.g. primary, secondary or area school).  This means there is no one size fits all in relation to employment law obligations for schools.  It is advised that you consult a lawyer if you have questions about obligations under your Collective Agreements.

As the employer, the board of a State or State integrated school is accountable for employment matters despite delegating employment management to the principal. These delegations need to be documented so the principal and the board are aware of their responsibilities.  When employment issues arise, matters only come before the board through the procedures set out by the board or where a complaint is raised. If the issue is in relation to a principal however the board has direct involvement.

Schools will have performance management processes that teachers and staff are required to participate in. These assess and monitor staff to ensure they are providing effective education and services. Staff skills, knowledge and training are developed in a way that optimises student’s learning outcomes. The school board is responsible for managing the principal’s performance and ensuring the principal effectively undertakes staff performance management also. Professional standards are set out in staff employment agreements which are used to assess performance.

School boards must create a performance management system that fits their school. Section 599 of the Education and Training Act 2020 (ETA) allows the Chief Executive of the Ministry of Education (Secretary) to prescribe matters employers are to have regard to when assessing teacher performance.  The Secretary prescribes guidelines setting out what boards need to have in place in assessing the performance of teachers.  Current guidelines on the Minister of Education website are based upon s 77C of old repealed Education Act 1989 but can still provide some guidance.

Having good performance management allows teachers to understand what is expected of them and can be aided in achieving those expectations.  Frequent conversations regarding any concerns or to ensure progress is being made are important.  This removes any surprises or uncertainty when performance is evaluated.  Conversations includes appraisal and elicit professional trust and growth.

The ETA removed performance appraisal requirements and replaced it with a professional growth cycle (PGC) which takes a more holistic approach to performance management.  The principal or professional leader will design the process for the professional growth cycle while consulting teachers.  The Teaching Council dictates elements that will be in the cycle but generally it is up to the leadership team and teachers to determine what it will look like.   A summary statement outlines whether the teacher has met the Standards for the Teaching Profession.  This new approach focusses on professional learning journeys as opposed to compliance activities as seen in the old approach.

 

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. Contact Kris Morrison at krismorrison@parryfield.com to request this or for any other questions.

 

[1] Education and Training Act 2020, ss 128, 129.

[2] Employment Relations Act 2000, section 4.

[3] Employment Relations Act, 2000, section 3.

[4] Public Service Act 2020, section 73.

[5] Public Service Act 2020, section 73(3).

[6] Public Service Act 2020, section 73(1).

State schools, state-integrated schools and kura are governed and managed by a school board.  The board is a Crown entity as it receives public funding and is in the public sector.  A board has no more than 7 members and at least 3 parent representatives.[1]  Members can be co-opted, appointed, selected or elected to the board and members are all equal in standing.

The board is responsible for the governance and management of the school which encompasses setting policies as to how the school is to be controlled and managed.[2]  Section 127 of the Education and Training Act 2020 (ETA) sets out a board’s primary objectives when governing a school, they must ensure:

  • every student at the school is able to attain their highest possible standard in educational achievement; and
  • the school—
    • is a physically and emotionally safe place for all students and staff; and
    • gives effect to relevant student rights set out in this Act, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993; and
    • takes all reasonable steps to eliminate racism, stigma, bullying, and any other forms of discrimination within the school; and
  • the school is inclusive of, and caters for, students with differing needs; and
  • the school gives effect to Te Tiriti o Waitangi, including by—
    • working to ensure that its plans, policies, and local curriculum reflect local tikanga Māori, mātauranga Māori, and te ao Māori; and
    • taking all reasonable steps to make instruction available in tikanga Māori and te reo Māori; and
    • achieving equitable outcomes for Māori students.

In meeting these primary objectives, a school board must comply with all obligations under the ETA or any Act, including having particular regard to the statement of national education and learning priorities (NELP) issued by the Minister of Education under s 5, and performing its functions and powers in a financially responsible way.[3]  A board must also give effect to a board’s obligations in relation to teaching and learning programmes along with monitoring and reporting student progress.[4]  This is inclusive of things such as managing student behaviour, staffing matters, handling complaints, health, safety and wellbeing for students and staff, strategic planning and reporting, building relationships and actively engaging with the community.

A board can appoint, suspend, and dismiss school staff and the principal.[5]  The school principal is the board’s chief executive and retains the discretion to manage the school’s day-to-day administration however they see fit, though they must comply with the board’s policy directions.[6]  Generally, the board as the governance body determines the what, the ends and the policies whereas the principal as the management leader determines the how, the means and the procedures.  Board members are to adhere to any code of conduct issued by the Minister of Education.[7] The Ministry has now issued a code of conduct, which can be found at: https://www.education.govt.nz/school/boards-information/boards-of-schools-and-kura/code-of-conduct/

Private schools are governed and managed by their own independent boards.  Managers of private schools must be fit and proper persons to manage the school.[8]  When operating the school, managers must have regard to any NELP and ensure when developing and delivering the curriculum the principal and staff have regard to NELP also.[9]  The obligation to have regard to NELP is a lower standard than required of State schools that must have particular regard under s 127. This section is in relation to schools ensuring students attain highest possible education standard, the school is safe, observes student’s rights, takes steps to eliminate racism, stigma, or bullying, the school is inclusive and caters for students with different needs and that it gives effect to the Te Tiriti o Waitangi.  However, in decision making, managers of private schools still need to have given regard to the NELP.

Primary Objectives for State schools

Part 3, subpart 5 of the ETA governs the administration of all State schools (including State integrated schools but not including private schools). Section 127(1) notes that school boards have several primary objectives in governing a school.

For State integrated schools, the rules in Part 3 (including section 127) are subject to specific provisions set out in Schedule 6 of the ETA that protect the special character of the State integrated school.[10] Boards of State integrated schools must comply with the objectives set out in section 127 of the ETA, but in deciding how to do so they must also act in light of their special character in accordance with Schedule 6.

The primary objectives include to:[11]

  • ensure that every student at the school is able to attain their highest possible standard in educational achievement;
  • ensure that the school:
    • is a physically and emotionally safe place for all students and staff;
    • gives effect to relevant student rights set out in the ETA, the New Zealand Bill of Rights Act 1990, and the Human Rights Act 1993;
    • takes all reasonable steps to eliminate racism, stigma, bullying, and any other forms of discrimination within the school;
  • ensure that the school is inclusive and cater for students with differing needs; and
  • ensure that the school gives effect to Te Tiriti o Waitangi.

Section 127(2) says that to meet these primary objectives, each school’s board must have particular regard to the NELP issued under section 5. The current NELP identifies six priorities for education:

Priority 1: Ensure places of learning are safe, inclusive, and free from racism, discrimination, and bullying.

Priority 2: Have high aspirations for every learner/ākonga, and support these by partnering with their whānau and communities to design and deliver education that responds to their needs and sustains their identities.

Priority 3: Reduce barriers to education for all, including for Māori and Pacific learners/ākonga, disabled learners/ākonga and those with learning support needs.

Priority 4: Ensure every learner/ākonga gains sound foundation skills, including languages, literacy, and numeracy.

Priority 5: Meaningfully incorporate te reo Māori into the everyday life of the place of learning.

Priority 6: Develop staff to strengthen teaching, leadership, and learner support capability across the education workforce.

Strategic Planning

State and state-integrated school boards must have in place a strategic plan which sets out its strategy for achieving its objectives for a 3-year period (unless determined by the Chief Executive of the Ministry of Education)), and an annual implementation plan each year which sets out how the board intends to implement that strategy during the year.[12]

The strategic plan must be submitted to the Chief Executive and Secretary of the Ministry of Education (the Secretary).  Whilst preparing the plan the board is required to consult the school community, school staff, school student (where appropriate), and comply with other regulations such as for State integrated schools, ensuring it reflects their special character.[13]  The proprietor of a State integrated School has the responsibility of ensuring the school’s special character is maintained.[14]  The secretary can review the plan and require the board to amend it, or the board may make amendments to the plan on their own accord.[15]

The annual implementation plan must contain information required by regulations made under the ETA, it can also be amended by the board.[16]  The board has a duty to monitor and evaluate its performance in achieving the objectives set out in the strategic plan.[17] Along with monitoring and evaluating the implementation of its strategy set out in the annual implementation plan in accordance with any regulations made under s 639 of the ETA.

The school’s performance in regard to the Strategic Plan must be reported on in the annual report as per s 145(3) of the ETA. Further, school boards are required to publish their strategic plan and annual implementation plan on their Internet site.[18]

These planning and reporting requirements help schools achieve their goals and remove barriers to success.  It encourages relationships between school boards and their communities by facilitating communication and feedback, while increasing accountability of boards to their communities.

 

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. Contact Kris Morrison at krismorrison@parryfield.com to request this or for any other questions.

 

[1] Education and Training Act 2020, s 119.

[2] Education and Training Act 2020, s 125.

[3] Education and Training Act 2020, s 127(2).

[4] Education and Training Act 2020, s 127(2)(b).

[5] Education and Training Act 2020, ss 128 and 129.

[6] Education and Training Act 2020, s 130.

[7] Education and Training Act 2020, ss 166-169.

[8] Education and Training Act 2020, sch. 7 cls. 2 and 6.

[9] Education and Training Act 2020, sch. 7 cl. 7.

[10] Education and Training Act 2020, schedule 6, clauses 24 & 58.

[11] Education and Training Act 2020, section 127(1).

[12] Education and Training Act 2020, s 138.

[13] Education and Training Act 2020, s 139.

[14] Education and Training Act 2020, sch. 6 cl. 1(3).

[15] Education and Training Act 2020, ss 140 and 141.

[16] Education and Training Act 2020, ss 143 and 144.

[17] Education and Training Act 2020, s 145.

[18] Education and Training Act 2020, s 146.

Suspensions and Expulsions

Before discussing the legislative rules around suspensions and expulsions covered by the Education and Training Act 2020 (ETA), it is important to differentiate between them.  Note the relevant sections in the ETA only apply to State schools (including State integrated schools).

A suspension involves removing a student from school for a period of time which expires after the earlier of seven school days or the date or time at which the suspension meeting is held and the matter is resolved.[1]  Being stood-down is where a student is removed from school for up to five school days per term or ten school days per year.[2]  Exclusion is where a student under the age of 16 is removed from school and required to enrol in another school.  Lastly, expulsion is the removal of a student who is 16 years old or over from the school; the student may enrol at another school if they wish to carry on schooling.

Boards, principals and teachers must be fair and flexible when they deal with the misbehaviour of students or their risk to other students.  This is in line with principles of natural justice; all circumstances and factors must be weighed up and considered before making any decisions.

Investigation

Following an incident regarding a student’s behaviour, a staff member or the school’s principal should investigate the matter.  This aims to paint a true picture of what occurred.  It is best practice to have procedures in place and to document this process; the Ministry of Education has produced an ‘incident report’ template in appendix 3 of their guidelines here.

Staff should provide students the opportunity to comment on the facts and record their responses; it is good practice to have another adult present.  Before deciding to stand-down or suspend a student, ideally one of the following would be applicable: the student was caught in the act, the incident was witnessed by someone the staff believes to be credible, the student was clearly implicated by other circumstantial evidence, or the student freely admitted to being responsible.

Principal’s Decision

For a student to be stood-down or suspended, the principal must be satisfied the student’s behaviour amounted to gross misconduct or continual disobedience that is a harmful example to other school students, or risked the serious harm of other students.[3] If the behaviour does not fall into any of these categories the student may not be stood down.

Gross misconduct has been described by the High Court as “striking and reprehensible to a high degree”.[4]  While continual disobedience is a firm pattern of misbehaviour.  Further it would be setting a harmful or dangerous example to other students where, if the misbehaviour went unpunished, the discipline and safety standards would be undermined.  Despite these, it is important for the student’s individual circumstances to be taken into account. This may also require talking to their parents.

Before making a decision, consideration should be given to the affect suspension will have on the student’s right to go to school.

Suspension or stand-down

Upon deciding to suspend a student it is the principal’s obligation to inform the student’s parents, the board and the Ministry of Education.[5]  They are also obliged to take all reasonable steps to make sure the student obtains guidance and counselling under s 103 of the ETA.  The student and parent needs to be given an Information for Parents pamphlet which sets out relevant information.

The Education (Stand-Down, Suspension, Exclusion and Expulsion) Rules 1999 (“the Rules”) require the principal to write a report for the board setting out the incident and why it amounts to conduct requiring suspension.  The report, along with information regarding the suspension meeting, must reach the student and their parents at least 48 hours before the meeting.[6] It must take place between seven school days of the suspension.  During the meeting the board determines whether to lift or extend the suspension with or without conditions; where it is more serious, they may decide to exclude or expel the student.[7]

Stand-downs have a similar process. A detailed report is not needed, though data about stand-down decisions must still be provided to the Ministry of Education.  A meeting can be requested by the student or parent. There is a different pamphlet here.  In both situations the student can attend school if it is appropriate or a parent requests it, provided the principal thinks it reasonable.[8]

Exclusion or expulsion

The board may decide to exclude or expel the student from school following a suspension meeting under s 81(1)(c) of the ETA.  The principal may also decide to request the board reconsider their decision where a student did not comply with conditions imposed by the board; this may result in exclusion or expulsion.[9]

Upon a decision to exclude a student the parents and Ministry of Education must be informed.  The principal has to try find another suitable school for the student to attend.[10] If the principal is unable to do this they must inform the Secretary (chief executive of the Ministry of Education) of the steps they undertook.[11]  The Secretary can lift the exclusion, arrange the student to enrol in another school or a distance school, but must have made all reasonable attempts to consult the student, their parents and the board.[12] The Secretary can direct the board of another State school to enrol the student, but cannot direct the board of a State integrated school to enrol the student.[13]

Where a student is expelled the student’s parents and the Ministry of Education must be informed. The student should also be informed that the Ministry of Education can provide them assistance.

What about Student Discipline in Private Schools?

Private schools decide their own rules and policies in relation to discipline but must behave fairly and reasonably.  The rules around suspensions, exclusions and expulsions under the ETA do not apply to private schools.

However, clause 16 in schedule 7 of the ETA sets out that where a student has been suspended or expelled from a private school the principal must provide the Chief Executive and Secretary (the Secretary) of the Ministry of Education written notice of the student’s name, address, and the day they were expelled or suspended, along with the reasons for such suspension or expulsion.  The Secretary can arrange for them to be enrolled at another school after making reasonable attempts to consult the student, the student’s parents, and the board.

 

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. Contact Kris Morrison at krismorrison@parryfield.com to request this or for any other questions.


[1]
Education and Training Act 2020, section 81.

[2] Education and Training Act 2020, section 80(2).

[3] Education and Training Act 2020, section 80(1).

[4] M & Anor v S & Board of Trustees of Palmerston North Boys’ High School [2003] NZAR 705, 712 (decided 5 December 1990).

[5] Education (Stand-Down, Suspension, Exclusion and Expulsion) Rules 1999, rules 9 and 10.

[6] Education (Stand-Down, Suspension, Exclusion and Expulsion) Rules 1999, rules 15.

[7] Education and Training Act 2020, section 81.

[8] Education and Training Act 2020, section 80(3).

[9] Education and Training Act 2020, section 81(3)-(4).

[10] Education and Training Act 2020, section 81(6).

[11] Education and Training Act 2020, section 81(7).

[12] Education and Training Act 2020, section 82.

[13] Education and Training Act 2020, section 87(3).

There are three levels to New Zealand’s education system.  The first level is early childhood education (ECE) for children from infants to school entry age.  This is not compulsory, but 96.8% of children attend ECE and government subsidies are available for children attending ECE for 20 hours a week.

The second level of New Zealand’s education system is primary and secondary education which extends from Year 1-13.  Primary education goes from Years 1-8 for children generally aged 5-12.  Secondary education starts at Year 9 and goes through to Year 13 encompassing children aged 13-17 generally.  Kids must attend school from ages 6 to 16.

The third level is tertiary education.

Forms of Schools that are Recognised in New Zealand

State schools are non-religious, state-owned, and state-funded schools and make up most schools within New Zealand.  They teach the national curriculum and are free if the child is a New Zealand citizen or permanent resident and are aged 5 to 19.

The board of a State school is a body corporate and is a crown entity under the Crown Entities Act 2004. The board is responsible for the governance of the school, including setting the policies by which the school is to be controlled and managed.[1] The principal is the board’s chief executive in relation to the school’s control and management. The principal must comply with the board’s general policy directions (and all applicable legislation) but has discretion to manage the school’s day to day administration.[2]

Primary and secondary state schools are required to design a curriculum in accordance with principles and values set out in the national curriculum.  Primary education is predominantly foundational learning with a focus on competency in literacy and numeracy along with a variety of other subjects.  Secondary schools provide a balanced curriculum but allow students to specialise in different courses and subjects from Years 11-13.  In these years students can achieve the National Certificate of Educational Achievement (NCEA) at three levels. Some state schools also offer alternative academic pathways such as the International Baccalaureate programme and the Cambridge International General Certificate of Secondary Education and AS & A Levels.

State integrated schools are State schools operating in partnership with privately owned Proprietor boards. State-integrated schools exist to provide education with a special character.  This is defined under the Education and Training Act 2020 (ETA) as a framework of education with general religious or philosophical beliefs and associated with observances or traditions relating to those beliefs.[3]  The education at each state integrated school will reflect its own values within the context of its specific philosophy or religion. Attendance dues may be payable for attending State integrated schools.

Private schools are privately owned schools that operate more independently of the State school system. They are generally funded by charging school fees though they do also receive some government funding.  It is not compulsory for private schools to follow the national curriculum. They are free to design their own curriculum or adopt a particular form of curriculum. Private schools are governed by their own independent boards.  However, reviews of private schools are undertaken by the Education Review Office, and the chief executive of the Ministry of Education (the Secretary) has powers to act where private schools are not satisfying requirements set out under the ETA.[4]

Kura kaupapa Māori or kura are state schools that teach in te reo Māori and operate in a manner that reflects Māori values and culture. They follow Māori-medium teaching, learning and assessment and may have students from years 1-8 or years 1-13.

Designated character schools are state schools that have a character that is in some specific way or ways different from the character of ordinary State schools. Kura kaupapa Māori can also be designated character schools. The board of a designate character school may refuse to enrol a student whose parents do not accept that the school operates consistently with its different character.

Distance learning is available for children who may have reasons for not attending schools such as special needs students or students that live a long way away from a school.  Te Aho o Te Kura Pounamu (Te Kura) is New Zealand’s correspondence school which teaches the first two levels of New Zealand’s education system through online learning.  Te Kura (also known as the Correspondence School) caters for students with health difficulties, or who for other reasons cannot attend a local school. Te Kura is New Zealand’s largest state school. Its health schools are based in Auckland, Wellington and Christchurch, though it covers the entire country (and some overseas based students).  Teachers can work with students both at home and in the hospital.

Special schools provide education to students that have particular needs as a result of special talents, learning or behavioural issues. Special schools operate using the New Zealand curriculum.

Home-schooling is where parents seek to educate their children themselves rather than enrolling them at a school. Registration for home-schooling requires the Ministry of Education to be satisfied that parents wanting to home-school their children will teach their child regularly, and at a similar level as to what the children would be taught in a registered school.  Upon being satisfied with this, the Ministry of Education provides a Certificate of Exemption to parents that apply to home-school their children.

 

This article is general in nature and is not a substitute for legal advice. You should talk to a lawyer about your specific situation. Reproduction is permitted with prior approval and credit being given back to the source. Contact Kris Morrison at krismorrison@parryfield.com to request this or for any other questions.

 

[1] Education and Training Act 2020, section 125.

[2] Education and Training Act 2020, section 130.

[3] Education and Training Act 2020, s 10 (definition of education with a special character).

[4] Education and Training Act 2020, Sch 7, cls. 9-10.

When is a charitable company the best option?

It is a common understanding that Charities must be trusts.  However, of the 28,000 total registered charities many of them are other entity types such as incorporated societies, associations and companies.  What did you have for breakfast?  A famous example that probably was involved in supplying some part of that is the registered charitable company is Sanitarium.

It would be suitable for a charitable company to be used where the entity has a purpose that is capable of fitting one of the four heads of charity: advancing education, relieving poverty, advancing religion or other purposes that benefit the community.  In describing this purpose, it will need to be ensured that it does not stray into “helping entrepreneurs” as the entity should not be about individuals making more profit.

Setting up a new legal entity that is a charitable company does two things.  Firstly, it helps to crystallise the identify for a project in mind which will be helpful when talking with collaborators, customers, other unions and government.  Secondly, it will “ring fence” liability so if something goes wrong, only that new entity ends and it does not cross infect to other persons or entities.

As the entity has a hybrid structure it also has hybrid obligations. The new entity would need to register with Charities Services.  A registered charity will ensure:

  • Credibility with others such as philanthropic trusts or Councils;
  • A better tax position; and
  • The ability to give donation receipts to those who donate (as they get 1/3 back).

The company would also need a constitution that sets out how it operates and importantly makes clear the charitable purpose and prevents private gain.  You can pay salaries from the company but they must be at market rate.

There are many times when a charitable company will be the best legal structure to choose – don’t just assume that you should set up a charitable trust.

This article is not a substitute for legal advice.  If you have any questions or would like advice on your specific situation and objectives feel free to contact one of our charity specialists Steven Moe, Michael Belay, Sophie Tremewan or Yang Su at Parry Field Lawyers.

The tax benefit of making donations: How does it work?

We help set up many charities and are often asked about the tax benefits. We go into this in our “Charities in New Zealand” book, but want to outline some key points here.

Charities benefit from receiving donations and donors often benefit from the ‘feel good factor’ of helping out worthy causes. Registered charities do not pay tax and their donors can benefit further by applying for a ‘tax credit’ to get a third back, either by applying directly to IRD or by way of ‘payroll giving’.

 

Direct donations

People often make donations to charities directly. The donor can then submit the receipt to IRD who will issue a ‘tax credit’, which effectively returns 33.3% of the donation to the donor. Find out more about claiming tax credits for direct donations.

 

What is payroll giving?

Payroll giving occurs when employers enable their employees to make donations directly from their gross wages. The tax benefit is that the amount of PAYE or withholding tax the employee pays is reduced by the amount of their donation. They also receive a ‘tax credit’ from the donation, which is 33.3% of the donation value.

Payroll giving is therefore a bit simpler as the donor does not have to submit their donation receipts to IRD to claim the tax credit.

 

What needs to be in place for payroll giving?

Employers will only be able to offer this service if they file their payroll taxes electronically. They can either use the myIR online service, or attach files from their own payroll software.

Even if an employer has the ability to use payroll giving, it is discretionary. Employers may also use their discretion to choose how the donations will operate, for example, they may designate specific charities that can be donated to, and they may designate a minimum donation amount.

Only ‘donee organisations’ can receive payroll donations.

 

What is a donee organisation?

IRD maintains a list of donee organisations. Charities are added to the list if they use at least 75% of their funds within New Zealand (that is, they operate “wholly or mainly” here), or for the public good if an organisation is not a charity. For more on the threshold, you can check to see if a charity is on the IRD donee organisation list here.

 

Other resources:

The IRD has put together this excellent guide to payroll giving.

It is also possible to claim tax credits on donations to charities supporting overseas causes.

We help with charity set ups and answering questions all the time. If you would like to discuss further, please contact one of our team on stevenmoe@parryfield.commichaelbelay@parryfield.comsophietremewan@parryfield.com, or yangsu@parryfield.com at Parry Field Lawyers