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Connell, Simon --- "Unwritten constitutions of incorporated societies: a critical examination of the treatment of tikanga in Tamaki v Maori Women's Welfare League Inc" [2011] OtaLawRw 8; (2011) 12 Otago LR 605

Last Updated: 7 April 2013

Unwritten Constitutions of Incorporated Societies:

^{A Critical Examination of the Treatment of Tikanga in}

^{Tamaki v Māori Women’s Welfare League Inc}

Simon Connell^*

I Introduction

In May 2011, Mrs Hannah Tamaki was nominated for the presidency of the Māori Women’s Welfare League. Mrs Tamaki is a pastor in the Destiny Church, and wife of the head of the church Bishop Brian Tamaki. In June

2011, the National Executive Committee of the League struck a blow against her leadership aspirations by excluding her from the presidential ballot and omitting to send the ballot to thirteen League branches that the Committee regarded as associated with the Destiny Church. Ten of those branches had been formed the month after Mrs Tamaki was nominated. The Committee justified its actions on the basis of protecting the League’s constitutional commitment to non-sectarianism.¹ Mrs Tamaki applied for a judicial review of these actions.

Was this a case of the “old guard” improperly attempting to retain control of an organisation in the face of new membership² or an underhanded attempt by the Destiny Church to stack the deck in favour of Mrs Tamaki?³ The High Court perhaps thought that the case was a little of both. Kós J ruled that it was unlawful of the Committee to leave Mrs Tamaki’s name off the ballot.⁴ However the victory was pyrrhic because the Judge also found that the newer ten of the thirteen branches were not properly established and therefore not eligible to vote.

The creation of the ten new branches may have been within the letter of the law of the League’s constitution but, Kós J found, was not consistent with the practices of the League. The Judge’s decision that the new

* LLB (Otago), LLM(Otago). The author would like to acknowledge the support of the University of Otago Graduate Research Committee, by means of the University of Otago Postgraduate Publishing Bursary (Master ’s).

¹ “Sectarian” can have quite negative connotations. See, for example, Richard A Baer Jr “The Supreme Court’s Discriminatory Use of the Term “Sectarian”” (1990) 6 JL & Politics 449.

² As in, for example, Khan v Ahmed [2008] NZAR 686 (HC) where Wild J described at [10] the founding members of the Muslim Association of Hawkes Bay Inc. as seeking to reserve to themselves the control of the Association as if it were their “private club”.

³ As put rather bluntly by interviewer Paul Holmes to Mrs Tamaki “The problem is this – that you tried to rig the election. You see, that was illegal and corrupt.” Interview with Hannah Tamaki, Destiny Church Pastor (Paul Holmes, Q+A, 31 July 2011) transcript provided by tvnz ondemand http://tvnz.co.nz/q-and-a-news/paul-holmes-interviews- hannah-tamaki-transcript-4333827.

^{4 Tamaki v Māori Women’s Welfare League Inc (“Tamaki”) HC Wellington CIV-}

^{2011-485-001319, 20 July 2011.}

branches were not properly formed relied on his finding that the tikanga of the League is to be given as much respect as the written constitution.⁵

The New Zealand Oxford Dictionary⁶ defines “tikanga” as “customs and traditional values, esp. of Māori” and the word is derived from “tika” which means “correct, proper”. In the context of the Tamaki decision and this paper, the tikanga of the Māori Women’s Welfare League essentially means the League’s way of doing things – the League’s values and customary practices.⁷

If the place accorded to tikanga by Kós J is correct then the Māori Women’s Welfare League has an unwritten constitution – the League’s powers and objects are not codified in a single document, but instead are to be determined with reference to factors such as the League’s history, culture and practice as well as the written constitution. This paper critically examines the implications of the finding that an incorporated society’s tikanga should be on equal footing with the society’s written constitution.⁸ To do so, it is necessary to outline in more detail the events that led to what the High Court described as “bitter faction fighting”⁹ within the League, and set out the Judge’s reasoning.

II Background to the Litigation

A The Māori Women’s Welfare League

The Māori Women’s Welfare League was founded in 1951 and is an incorporated society under the Incorporated Societies Act 1908. The preamble to the League’s written constitution states that the League is an organisation principally concerned with promoting through study, discussion and action the well being of Māori and the people of New Zealand.

The league has a three-tiered governance structure:

• Local branches, which require a minimum of five members;

• Regional Councils, each of which elects an Area Representative who sits on the National Council. There are eight regions, with the same geographical boundaries as the Māori Land Court Districts; and

• The National Council, the governing body of the League, which is made

⁵ Tamaki, above n 4, at [8].

^{6 Tony Deverson and Graeme Kennedy eds The New Zealand Oxford}

^{Dictionary (Oxford University Press, Melbourne, 2005).}

^{7 In Tamaki, above n 4, at [8] the Court explains that the League’s “values}

^{and [customary] practices are part of the tikanga of the League”. Since}

^{the word “tikanga” can refer specifically to the Māori way of doing}

^{things, it would arguably be inappropriate to refer to the “tikanga” of a}

^{non-Māori organisation, though such an organisation could be said to}

^{have customary practices and values.}

^{8 It should be noted that the High Court’s decision was made under the}

^{pressure of time, see Tamaki, above n 4, at [5].}

^{9 Tamaki, above n 4, at [1].}

up of delegates from branches and votes on matters including the election of the President and the other officers of the League. The number of delegates each branch has is determined by branch size. Each branch has one delegate per ten members, rounded up to the nearest ten, with a maximum of ten delegates per branch. So, a branch with nine members has one delegate, a branch with eleven members has two delegates, and a branch with one hundred members would have the maximum ten delegates.

The day-to-day governance of the League is undertaken by its elected officers – the National President, the Vice-President and the eight Area Representatives. The President is elected for a three-year term and the Vice-President for a one-year term. Together, these officers comprise the National Executive Committee, which is responsible under the written constitution for carrying out the directives of the League and “for the maintenance and implementation of the constitution, the League’s policies and its rules”. In particular it is responsible to the National Council for “protecting, maintaining and enhancing the mana and integrity of the Māori Women’s Welfare League movement”.

2. Establishment of the three Destiny-linked branches, and Mrs Tamaki joins the League

Three of the branches that the National Executive Committee was to later suspend pending constitutional inquiry were established some time before Mrs Tamaki’s bid for the presidency:

• The Taumata branch was established in 2005; and

• The Wahine Toa and Rangatahi Toa branches were founded in February and June 2009 respectively.

Although Mrs Tamaki’s argued otherwise, Kós J found that these three branches were “closely associated” with Destiny Church “via their leaders and members”.¹⁰

Mrs Tamaki became a member of the League in February 2009 by joining the newly-formed Wahine Toa branch. She was elected President of that branch in October 2010.

C Mrs Tamaki’s bid for the presidency and the ten new branches

Mrs Tamaki was nominated for the presidency on 2 May 2011, by members of the Wahine Toa and Rangatahi Toa branches. At the time, the League had around 2850 members over 153 branches through the eight regions, including the three branches noted above as being associated with the Destiny Church. The General Manager of the League contacted Mrs Tamaki to advise that there was a problem with the nomination, and requested a new nomination signed by two people from the same branch.¹¹ A new nomination was submitted later that same day, signed

¹⁰ Tamaki, above n 4, at [23].

^{11 As the Judge in Tamaki, above n 4, notes at [29], the constitution states that}

^{by two members of Wahine Toa.}

On 24 May, the General Manager of the League sent an email to the National Executive Committee, confirming that there were eight candidates nominated for the presidency, including Mrs Tamaki.

On 4 June, ten new branches of the League were formed at the Auckland headquarters of the Destiny Church. Each of the new branches had between 91 and 93 members, attracting the maximum ten delegates in the National Council.

D The National Executive Committee acts, and Mrs Tamaki’s response

Ten new branches, all springing forth like Athena, fully-formed and ready for battle (or, at least, ready for voting), times ten votes amounted to 100 new votes in the National Council. Prior to the new branches, the National Council contained 347 delegates, so 100 additional votes was significant. Naturally, this sparked discussion as to whether the new branches came into existence to support Mrs Tamaki’s bid for the presidency, and whether this was legitimate.

The National Executive Committee met on 22 June 2011, and decided to conduct inquiry into any new member branches exceeding 90 members. A further Committee meeting was held on 27 June, and decided that: The Area Representative for Tamaki Mataura who had convened the meetings establishing the new branches would stand aside during the investigation;

(i) The inquiry into the ten new branches would be widened to including investigating the three older Destiny-associated branches (Taumata, Wahine Toa and Rangatahi Toa);

(ii) The branches under investigation would not be able to attend or vote in the National Council; and

(iii) The nomination for Mrs Tamaki would “not be actioned” pending the inquiry.

On 30 June, voting papers were sent out to all branches other than the thirteen under investigation, and the ballot did not include Mrs Tamaki’s name. The election was imminent, and there was no prospect of the inquiry being completed and the suspension lifted before voting.

On 7 July, Mrs Tamaki applied for a judicial review of the Committee’s actions. The hearing was held in the Wellington Registry of the High Court on 20 July, and the written decision was released the following day.

III The Decision in Tamaki

The decision addressed three main questions:

“nominations can be by any financial branch” so arguably the General Manager had no lawful basis to insist that the nominators be from the same branch. Since Mrs Tamaki had no difficulty in resubmitting a nomination complying with the request, this matter seems to have been of no consequence.

(i) Was it unlawful to omit Mrs Tamaki’s name from the ballot?

(ii) Was it unlawful to omit sending ballot papers to the three older Destiny- associated branches?

(iii) Was it unlawful to omit sending ballot papers to the ten new Destiny- associated branches?

Before considering these issues, two preliminary points can be made. First, although the issue was not contested, the High Court confirmed its jurisdiction. Kós J noted that the actions of an incorporated society in relation to membership can be subject to judicial review when the body concerned has a public or quasi-public function, and his Honour was satisfied that the League was such a body.¹²

Secondly, his Honour accepted that the Association’s constitution, which was cast broadly and with comparatively little detail on formalities, ought to be construed consistently with “the core underlying values of the League”: respect, manaaki (embrace) and tautoko (support):¹³

Those values and practices are part of the tikanga of the League and are to be respected as much as the constitution is. The constitution does not stand alone in governing the conduct of members and member entities of the League. If the constitution speaks to a topic, that is to be accorded great respect. But if there is a gap in the written words of the constitution, a state of silence does not necessarily follow.

It appears that his Honour considered the tikanga of the League to be much more than an aid to the interpretation of the written constitution but instead an equally respected source of authority for the rules governing the powers and operation of the League. Whether this is so will be considered further herein.

A Was it unlawful to omit Mrs Tamaki’s name from the ballot?

The Judge confirmed that Mrs Tamaki’s nomination for League president met all the conditions set out within the written constitution,¹⁴ and then went on to consider whether Mrs Tamaki’s status within Destiny Church might otherwise render her ineligible as a candidate, either because Mrs Tamaki was personally ineligible to be the League’s president by virtue of her church role or because the National Executive Committee had a power to suspend a presidential candidacy during a constitutional investigation.

1 A constitutional value of non-sectarianism

The preamble to the written constitution of the League states that the League is to be “non-sectarian, non profitable” and “non-party political, in that it shall not seek to influence the members regarding any candidate for public office or any political party.” The League submitted that

¹² Tamaki, above n 4, at [43]-[44].

^{13 Tamaki, above n 4, at [8].}

^{14 Tamaki, above n 4, at [48].}

non-sectarianism was integral to the League and any deviation was prohibited by the constitution. Mrs Tamaki submitted non-sectarianism was a guiding principle of the activities of the League as an entity but that this did not preclude individual members from having connections to a particular faith.

The Judge sensibly observed that a number of past Presidents had been women of very strong faith. The written constitution certainly seems to anticipate that members will have religious faith: the English language version of the League Creed, set out in Appendix A, includes the statements “It is because I believe in God that I have this reverence for humanity” and “In the Beginning was God / All things were made by Him” and Appendix C sets out the League Hymn. If members have religious faith, then it follows that they may well be associated with a particular church. With respect to the question of whether a candidate with a strong association with a particular church would be inherently unconstitutional, the Judge found that:¹⁵

[T]he traditional values of the League, and its constitutional adherence to a non-sectarian stance, [do not exclude] a person of strong faith from standing for office, so long as that personal status and faith is duly disclosed.

The Judge found that the question of whether Mrs Tamaki was too strongly associated with Destiny Church to be a sound president of the League was an issue of voter preference and not an issue of eligibility for the National Executive Committee to determine.¹⁶

2 A power to suspend

Following on from its first argument, the League submitted that the National Executive Committee was constitutionally bound to protect the non-sectarian nature of the League and that this implied a constitutional power to suspend a nomination or branch pending an investigation of a potential constitutional breach.

The constitution contained an express power to “dismiss” an individual member for misconduct or for bringing the mana of the League into disrepute but not one to suspend. Kós J noted that the common law generally insists that a power to expel or suspend cannot be implied but must be specific “so all members know what the consequences of their actions might be”¹⁷. Nevertheless his Honour considered that, notwithstanding the written constitution, a practice in relation to discipline could determine the legitimacy of suspending Mrs Tamaki’s presidential candidacy:¹⁸

[T]he usual common law approach might yet bend out of respect for a

¹⁵ Tamaki, above n 4, at [56].

^{16 Tamaki, above n 4, at [57].}

^{17 Tamaki, above n 4, at [58].}

^{18 Tamaki, above n 4, at [58].}

distinct customary practice or tikanga of the League enlarging the express words of [the article of the constitution which gives the National Executive Committee the power to dismiss a member].

However, his Honour found that there was no such clear practice upon which it could be said that the National Executive Committee had a power to suspend a presidential candidacy during a constitutional inquiry. Accordingly, the League was not lawfully entitled to omit Mrs Tamaki’s name from the presidential ballot.

2. Was it unlawful to omit sending the ballot to the three older branches?

As with Mrs Tamaki’s nomination, the three older Destiny Church- associated branches were formed in accordance with the requirements of the written constitution, so the question was whether their association with the Church somehow made them illegitimate. The Judge thought that there was “very strong evidence of affiliation”¹⁹ of the older three branches with the Church. However, he rejected the League’s submission that the National Executive Committee could lawfully suspend the branches to investigate whether that affiliation breached the constitution, for two reasons. First, the Judge had already found that the constitution did not permit such a suspension. Secondly, the three branches in question had all been in existence for some time, the League had treated them as legitimate, and:²⁰

[T]he approach of the League is tantamount to conducting the hanging first, and the trial second. The branches are entitled to see the status which they have hitherto been accorded continue to be respected until the independent investigation is completed.

^{This second reason has something of the flavour of estoppel,21 or perhaps}

^{estoppel’s public law cousin legitimate expectation,22 about it, although}

19. Tamaki, above n 4, at [63]. Also see the finding at [23] that the three branches were “closely associated” with the Church.

^{20 Tamaki, above n 4, at [63].}

^{21 The argument would go that because the League treated the three older}

^{branches as legitimate, it is estopped from treating them as illegitimate}

^{before actually conducting an enquiry to determine whether or not they}

^{were properly formed.}

^{22 As Lord Fraser stated in CCSU v Minister for the Civil Service [1985] AC}

^{374 at 401 “[E]ven where a person claiming some benefit or privilege has}

^{no legal right to it, as a matter of private law, he may have a legitimate}

^{expectation of receiving the benefit or privilege, and, if so, the courts}

^{will protect his expectation by judicial review as a matter of public law}

^{... Legitimate ... expectation may arise from either an express promise}

^{given ... or from the existence of a regular practice which the claimant can}

^{reasonably expect to continue.” In Tamaki, the League’s regular practice}

^{of treating the three older branches as properly formed led to a legitimate}

^{and reasonable expectation that those branches would continue to be}

^{treated as legitimate until proven otherwise. The “benefit or privilege”}

^{here is the right to be treated as legitimate, which carries with it the right}

neither doctrine is referred to explicitly in the decision. This kind of reasoning thus has sound legal pedigree in both private and public law, and justifies imposing on the League obligations towards its branches that are not set out explicitly in the written rules.

C Was it unlawful to omit sending the ballot to the ten new branches?

Kós J made two distinctions between the ten new branches and the three older branches. First, the League had never dealt with the ten new branches on the basis that they were legitimate so that there could be no reliance by the branches on past practice as was the case with the three older branches. Secondly, there were a number of features about the creation of the new branches that gave the Judge “considerable disquiet regarding their legitimacy”, including that:²³

• The ten new branches were all established on the same day, at the same location, at the same time – which happened to coincide with the Destiny Church’s annual meeting;

• The number of members in each new branch ranged from 91 to 93 – which maximised the votes allowed by the new branches. His Honour thought that “[i]t would be very surprising, if the purpose of branch formation was not simply to secure the maximum 10 votes per branch, that the numbers signing on would come down thus.”²⁴

• The surnames of almost all members of several of the new branches happened to fall within certain letter ranges – G-Z in the case of one branch, and L-W in another. The Judge described this as an “unexplained statistical freak”²⁵ but one possible inference is that names for these branches were obtained by dividing up a list of names alphabetised by surname (which implied a list of persons being divided into branches to maximise votes);

• There was no evidence of actual consent to membership of the League for most of the members of each new branch.²⁶ Annual subscription fees for each of the 921 members were paid by inter-bank transfer from Te Oranga Ake, a Trust which was closely associated with the Destiny Church;²⁷ and

• The members of the new branches were drawn substantially from members outside the regional boundary of Tamaki Makaura, although the new branches were presented for affiliation within that region.

This last point seems to have been a particularly significant one, as the

to vote.

^{23 Tamaki, above n 4, at [67] (a)–(n) the Judge sets out fourteen different}

^{features leading to his disquiet.}

^{24 Tamaki, above n 4, at [67] (m).}

^{25 Tamaki, above n 4, at [67] (n).}

^{26 Although evidence was not provided that satisfied the Judge, Mrs Tamaki}

^{claimed in an interview with Paul Holmes, above n 3, that “The people}

^{paid their own subs”.}

^{27 See Tamaki, above n 4, at [23] for a discussion of the relationship between}

^{the Trust and the Church.}

Judge went on to say that:²⁸

Regions established according to the geographical boundaries of the

^{Māori Land Court districts are at the heart of the League’s organisation.}

^{...[I]t is contrary to the tikanga of the League for an Area Representative}

^{from one region to sign up, or establish branches for, members who live in}

^{another area. Of course members may move and stay with their existing}

^{branches. The constitution expressly permits that. But what has happened}

^{here goes well beyond a modest blurring of regional boundaries. It}

^{involves the wholesale importation of people into Tamaki Makaurau}

^{region branches who in fact live elsewhere.}

Although the written constitution did not expressly exclude or sanction the ten new branches, Kós J reiterated that “the constitution is not to be treated as if it is a code constructed in concrete”. On the basis of the oddities listed above, his Honour rejected the legitimacy of the new branches:²⁹

I find the manner in which the new branches have been established completely contrary to the practices and tikanga of the League. The constitution requires that branches be formed in accordance with the constitution “and the rules of the League.” That reinforces to my mind that one must look beyond the four corners of the constitution to the wider values and practices of the League in determining the validity of the establishment of a new branch.

... Establishment of branches in this fashion is not in my view consistent with the constitutional privilege of participation in the League. Nor is it consistent with the tikanga of the League for branches to be constituted in this way (1) in virtual disregard of geographical connection with the relevant region, (2) adding in one fell swoop a new group of members in size equal to a third the existing membership, and (3) so structured as to maximise the number of votes potentially available to the moving nominor, who also happens to be a candidate for the League presidency.

IV Critical Evaluation of the Judge’s Approach to Tikanga

The Judge’s finding that the tikanga of the League should be given as much respect as the written constitution does not seem to be merely obiter, since it was crucial for determining the third issue. If that is the case, then the Māori Women’s Welfare League does seem to have an unwritten constitution. However, and with respect, this approach is problematic.

A The statutory context

Arguably, the finding that an incorporated society’s tikanga should be given as much regard as the written constitution is inconsistent with the statutory context of the Incorporated Societies Act 1908. As

²⁸ Tamaki, above n 4, at [68].

^{29 Tamaki, above n 4, at [69]-[71].}

Hammond J noted in Porima v Te Kauhanganui o Waikato Inc:³⁰

For over a century now, our law has allowed non-profit associations to acquire the benefits of corporate status. Many clubs and voluntary organisations have been enabled, under this legislation, to form themselves into a corporation, on the basis of rules which they set for themselves. These rules are then registered with the Registrar of Incorporated Societies.

Section 6 of the Act sets out the matters that the rules must state or provide for, including:

• The objects for which the society is established;

• The modes in which persons become members of the society;

• The modes in which persons cease to be members of the society;

• The mode of summoning and holding general meetings of the society, and of voting thereat; and

• The appointment of officers of the society.

The intent of the legislation is that an incorporated society must meet certain requirements to enjoy the benefits of incorporation, including operating within the scope of its rules,³¹ which are publicly available.³²

This seems to rule out an unwritten constitution, at least with respect to the matters specified in s 6, and thus brings into question Kós J’s willingness to look to tikanga where the constitution is silent.³³ Given that the Incorporated Societies Act 1908 requires a society to codify its rules regarding the modes in which persons become and cease to be members, silence with respect to those matters ought to be conclusive, rather than merely suggestive. Tamaki v Māori Women’s Welfare League Inc. contains two examples of the statutory scheme being undermined.

First, notwithstanding the usual common law demand that powers to discipline should be express, the Court appeared to suggest that, if the League had had an established practice of suspending members pending constitutional inquiries, then the Court would have been prepared to accept an implied power to suspend.³⁴ Yet, the Incorporated Societies Act 1908 requires that a society set out in its written rules the modes in which persons cease to be members of the society. The use of the plural “modes” implies that each mode by which a member of the society can

³⁰ Porima v Te Kauhanganui o Waikato Inc [2001] 1 NZLR 472 (HC) at [77].

^{31 Incorporated Societies Act 1908, s 19(1) provides that if any society carries}

^{on or proposes to carry on any operation which is beyond the scope of}

^{the objects of the society as defined in its rules, the Registrar may give}

^{notice in writing to the society not to carry on that operation and s 19(2)}

^{provides a financial penalty for a failure to comply with such notice.}

^{32 Incorporated Societies Act 1908, s 34 allows every person to inspect}

^{documents lodged with the Registrar. Said documents, including the}

^{League’s constitution, are available at <http://www.societies.govt.nz/> .}

^{33 Tamaki, above n 4, at [8] and essentially the same sentiment is expressed}

^{again at [58].}

^{34 Tamaki, above n 4, at [58].}

cease to be a member be codified, and to suspend is arguably to cease, albeit temporarily. Any power to suspend should therefore be set out explicitly in the society’s rules pursuant to the statute. The common law is ever-evolving and, despite its distrust of implied disciplinary powers, it is perhaps flexible enough to bend to meet the needs of a society which respects tikanga. However, the proposition that a legislative regime which clearly intends codification of certain types of rules should bend out of respect to unwritten rules is a trickier one.

The second example arises in the Court’s discussion of the formation of the new branches. In addition to matters listed in s 6, the League’s constitution also contained provisions for, inter alia, establishment of League branches and regional councils. The formation of branches is not a matter about which a society is required to have rules under s 6 – indeed, not all incorporated societies have branches - so perhaps there is room for a different approach. The question of how branches are established could be resolved with equal regard to the written constitution and the actual practices of the League. However, branch formation is inextricably linked to the election of the League’s officers, since branches provide the delegates who vote in the National Council. This means that the rules for the formation of branches are directly linked to the rules for the appointment of officers of the society, which is a matter for which s

^{6 requires a society to have written rules.}

The Judge found that it was appropriate to look beyond the four corners of the written constitution to the wider values and practices of the League,³⁵ and in so doing relied upon the written constitution’s definition of “Branch” which provided:

An association of women formed in accordance with this Constitution and the rules of the League and thereby affiliated with the League.

It is not immediately clear that this text points one beyond the four corners of the document itself. “Constitution” is clearly a reference to the document itself. In this context, “rules” could be read as meaning the society’s “rules” in terms of s 6 of the Incorporated Societies Act 1908, in which case there is no need to look outside the document. “Rules” is a somewhat surprising choice of words if “rules of the League” was meant to capture the values and tikanga of the League as opposed to the written rules – “values and tikanga” would have conveyed this meaning much more clearly. So, the definition of Branch does not obviously assist here.

Even if one accepts that the Incorporated Societies Act 1908 would in general prevent recourse to unwritten practice to determine such matters of discipline and membership, one might nevertheless accept his Honour ’s approach on the basis that a Pakeha statute with an emphasis on written rules is inappropriately applied to dictate the operation of a Māori organisation which emphasises tikanga. Indeed, this issue seems to be a symptom of a clash between written and oral culture. The Judge

³⁵ Tamaki, above n 4, at [70].

^{accepted the observation of former League President Mrs Jacqui Te Kani}

^that:36

[T]he members have always operated on traditional values and concepts and there has been no need to put into law what has always been our lore.

The philosophy of the Act is the polar opposite of that expressed by Mrs Te Kani: there is a need to put lore into law, to make certain rules enforceable and publicly available; lore that remains lore is not law. That philosophy appears to have been implicitly accepted by the Law Commission in its recent issues paper on the Incorporated Societies Act

^{1908,37 and was also recognised in the now-abandoned Waka Umanga}

^{(Māori Corporations) Bill.38}

Inherent in this conflict are two competing conceptions of what gives the League its authority to act in the way that it does. A legalistic answer is to say that the League’s authority is found in the Incorporated Societies Act 1908, which allows the League to act as a legal entity as long as it acts in accordance with its rules. Thus, the written rules are given primacy and the League’s practices are legitimate under the law only insofar as they are codified in those rules. Presumably, and if Kós J’s approach is right, the League’s answer would not align with this.

Instead, one might suggest that it is the League’s tikanga and members that give it life and it is the League’s unwritten constitution that gives it legitimacy. The written constitution is but one aspect of the League’s entire constitution, and worthy of respect, but does not stand above the League’s values and practices. The “rules” in terms of s 6 of the Incorporated Societies Act 1908 are perhaps only needed so that the League could become an incorporated society and should not be given undue emphasis.

The High Court’s approach perhaps suggests a desire to mediate between these two positions. However, with respect, the Judge has

³⁶ Tamaki, above n 4, at [7].

^{37 Law Commission Reforming the Incorporated Societies Act 1908, (NZLC}

^{IP24, 2011). The Commission states at 15 that “in reality, societies need}

^{rules, particularly when matters become contentious” and at 17 that}

^{“[b]y far the best way of avoiding disputes around disciplining members}

^{is to have clear rules that reflect basic notions of natural justice to guide}

^{the administration of disciplinary processes.” In context, these references}

^{to “rules” can only mean written rules.}

^{38 The Waka Umanga (Maori Corporations) Bill was introduced by the}

^{Labour-led government in November 2007, and followed the Law}

^{Commission’s Waka Umanga: A Proposed Law for Māori Governance Entities}

^{(NZLC R92, 2006). The Bill was intended to provide a legal framework to}

^{represent and manage the interests of Māori tribes and other collectives.}

^{Like s 6 of the Incorporated Societies Act 1908, cl 19 of the Bill required}

^{a Waka Umanga to have a charter setting out various matters, including}

^{the organisation’s objectives and process for registration of membership.}

^{The Bill was discharged by the National-led government in December}

^2009.

stepped too far from the statutory context. It should not be forgotten that the Court’s authority to review judicially the decision of an incorporated society is to be found in the statutory framework. Section 2 of the Judicature Amendment Act 1972 allows judicial review of a “statutory power of decision”. When an incorporated society, duly incorporated under the Incorporated Societies Act 1908, makes decisions in the performance of public or quasi-public functions, those decisions can be amenable to judicial review.³⁹ The authority for judicial review arises in the context of those two statutes. The League’s written constitution should be seen as providing the League’s authority, and tikanga cannot speak where the rules are silent. A judicial review is a legalistic matter so a legalistic approach to authority is quite appropriate⁴⁰.

B The contract context

The constitution of an incorporated society constitutes a contract between the society and its members,⁴¹ a principle which the Judge in Tamaki referred to in his discussion of jurisdiction.⁴² A member of an incorporated society is entitled to have those rules enforced as a matter of contract, including the right that the society’s affairs will be conducted honestly and bona fide in accordance with its rules.⁴³ Indeed, the courts can enforce rules relating to elections. “The wrongful deprivation of a right to vote even at a meeting of a mere private association is ... no trivial matter.”⁴⁴

³⁹ Hopper v North Shore Aero Club Inc [2006] NZCA 308; [2007] NZAR 354 (CA) at [4]- [12].

^{40 This is not to suggest that the approach that the courts take to reviewing}

^{judicially the actions of private societies is overly legalistic and puts too}

^{much emphasis on the written rules. The courts are typically reluctant}

^{to interfere in private organisations (Hopper v North Shore Club, above}

^{n 39, at [5]) and are in most cases respectful of the will of the majority}

^{(Foss v Harbottle [1843] EngR 478; (1843) 67 ER 189). What is meant here is that the legalistic}

^{approach that the source of the authority of the League is ultimately found}

^{in the Incorporated Societies Act 1908 is the right approach.}

^{41 Finnigan v New Zealand Rugby Football Union [1985] 2 NZLR 149 (CA)}

^{at 177, where the Court of Appeal found that the plaintiffs, who were}

^{members of football clubs that were incorporated societies, “[a]s such}

^{members, have contractual relationships with their clubs and possibly}

^{with their fellow members.”}

^{42 Tamaki, above n 4, at [42]-[44]. Although, his Honour stated that “the}

^{League is a private body, with a constitution that takes effect as a contract}

^{as between its members” whereas the Court of Appeal in Finnigan v}

^{New Zealand Rugby Football Union, above n 41, found that there was a}

^{contractual relationship between a society and its members but expressed}

^{doubt as to whether there was necessarily a contractual relationship as}

^{between members of a society. The constitution of an unincorporated society}

^{forms the basis of a contract between its members (Peters v Collinge [1993]}

^{2 NZLR 554 at 557.) New members joining an incorporated society are}

^{arguably contracting with the society itself, rather than its members.}

^{43 Turner v Pickering [1976] 1 NZLR 129 (CA) at 143; Waikato-Tainui Te}

^{Kauhanganui Inc v Martin HC Hamilton CIV-2011-419-796, 17 June 2011,}

^{at [19].}

^{44 Woodford v Smith [1970] WLR 806; [1970] 1 All ER 1091 at 1092-3.}

The issues raised in Tamaki could potentially have been brought as an action in contract. Mrs Tamaki, or a member of one of the suspended branches, could claim that the League breached a contractual right to have an election in accordance with the written constitution. This raises the question of the relevance of the tikanga of the League to the interpretation of the constitution as a contract.

1 Looking beyond the four corners of a contract

The courts have traditionally been reluctant to look beyond the four corners of the written document in determining the meaning of a contract. In the words of Law of Contract in New Zealand:⁴⁵

If the contract is in writing, its interpretation is exclusively within the jurisdiction of the Judge. In exercising this function, the Judge has traditionally been bound by what is known as the parol evidence rule. This rule provides for the exclusion of extrinsic evidence to “add to, vary or contradict” a written document. The parties are to be confined within the four corners of the document in which they have chosen to enshrine their agreement. Yet this rule, of great antiquity though it be, has been much attenuated over the years.

The Judge in Tamaki used the tikanga of the League to add to the written constitution requirements for the establishment of new branches that were not expressed in the text. This is inconsistent with interpretation in contract law, unless excused by one of the established exceptions to the parol evidence rule: that relevant background material can be admissible, and that customary practices can be regarded as implied terms.

^{As Lord Hoffmann stated in Investors Compensation Scheme v West}

^{Bromwich Building Society:46}

Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract.

The general rule is that there are no conceptual limits to what can be considered to be relevant background material,⁴⁷ so the “factual matrix”⁴⁸ of background knowledge could potentially include the tikanga of the League. A member ’s contract with the League is formed when the member joins the League, and it seems reasonable to assume some level of knowledge of the League’s values and practices at that stage. However, a reasonably aware prospective League member may not be aware of

⁴⁵ J F Burrows, Jeremy Finn, Stephen M D Todd (eds) Law of Contract in New

^{Zealand (LexisNexis, Wellington, 2007) at 156.}

^{46 Investors Compensation Scheme v West Bromwich Building Society [1998] 1}

^{WLR 896 (HL) at 913.}

^{47 Chartbrook Ltd v Persimmon Homes Ltd [2009] 1 AC 110 (HL) at [33] per}

^{Lord Hoffmann.}

^{48 The phrase was famously used by Lord Wilberforce in Reardon Smith Line}

^{Ltd v Hansen-Tangen [1976] 1 WLR 989 (HL) at 997.}

the tikanga relating to establishment of new branches or elections. This presents a serious problem for regarding, for example, the tikanga that an Area Representative from one region should not sign up, or establish branches for, members who live in another area as part of the factual matrix. That sort of knowledge does not seem to be in the minds of prospective members.

It could be argued that each annual subscription payment leads to a fresh contract, so a member who has become aware of the League’s tikanga should be regarded as accepting it as part of their contract with the League. However, this would lead to an unacceptably anomalous situation where members with different levels of knowledge of the League’s tikanga would have different contracts with the League. Instead, it is preferable to consider that each member of the League has the same contract: the written constitution.

So, while the values and well-known practices of the League might form part of the factual matrix, the tikanga relating specifically to elections and branch formation probably does not. For similar reasons, the practices relating to elections and branch formations are unlikely to be regarded as implied terms of the contract established by customary practices. To be regarded as an implied term, a customary practice must have acquired such notoriety that the parties must be taken to have known of it and intended that it should form part of the contract.⁴⁹

2 The problem of different approaches to the constitution

It seems then that contract law principles of interpretation would reject using the tikanga of the League to add to the written document. The Judge’s finding that the values of the League are to be respected as much as the written constitution clearly differs from the contract law approach that tikanga is, at best, relevant background material to aid in the understanding of the written text. It cannot be that the constitution of an incorporated society means one thing when it is under judicial review and another when it is seen a contract.

The Judge considered that the “inherently public character” of the League and the powers exercised made the Tamaki case appropriate for fast track judicial review rather than a civil action in contract.⁵⁰

However, this is no reason to adopt an approach to the constitution that is incompatible with construing that constitution as a contract, especially in light of the observation in Hopper v North Shore Aero Club Inc⁵¹ that “[t]he internal workings of incorporated societies with respect to

⁴⁹ Woods v N J Ellingham & Co Ltd [1977] 1 NZLR 218 (CA).

^{50 Tamaki, above n 4, at [44].}

^{51 Hopper v North Shore Aero Club Inc, above n 39, at [11], citing Peters v}

^{Collinge, above n 42. Although, it should be noted that the litigation in}

^{Peters v Collinge arose in the context of an unincorporated society. So,}

^{perhaps there is room for argument that the Court of Appeal’s finding that}

^{“[f]undamentally, the jurisdiction to review steps taken by such a society}

^{is to be found in contract” does not extend to incorporated societies.}

members are primarily reviewable under the law of contract”. The codification philosophy of the Incorporated Societies Act 1908 also suggests that the contract law approach is the right one here.

C Third parties who rely on the written rules

In addition to the arguments based on the legislative context and the constitution as a contract between an incorporated society and its members, there is an argument that there are other parties who ought to be able to rely on the written rules of an incorporated society being a code of that society’s rules.

As legal entities, incorporated societies can enter into contracts with third parties. However, contracts entered into by incorporated societies acting outside their rules are void and unenforceable by either party.⁵²

If incorporated societies can have unwritten constitutions, this creates a problem of uncertainty for third parties regarding the legitimacy of their dealings with the incorporated society. First, it may not be clear to a third party whether or not a particular incorporated society they are dealing with happens to have an unwritten constitution or a written one. Second, unwritten rules can potentially limit the scope of the operation of an incorporated society in ways that may not be apparent to a third party.

For example, imagine a third party that has entered into a contractual arrangement with one of the ten new Destiny-associated branches, on the basis that that branch was a legitimate branch of the Māori Women’s Welfare League.⁵³ That contract would now be in jeopardy. A perusal by the third party of the League’s written constitution would have suggested that there is nothing out of order. It is only when the tikanga of the League is taken into account that any argument arises that the branch is not in fact a legitimate branch of the League. Arguably, a third party should be able to rely on the written and publicly available constitution of the League.

Or, imagine an incorporated society that has broad objectives set out in its rules, but in practice follows a particularly narrow interpretation of those objectives – much narrower than the plain meaning of the words would imply. A third party enters into a contract with that society on the basis that the contract seems to further the objectives of the society as set out in the written rules. However, the society later concludes that the contract was not within the organisation’s objectives and cannot be pursued. If the society’s practices are to be given as much respect as the written rules, then arguably this means that the “real” objectives are the narrow ones pursued in practice, not the ones set out in the written rules. Again, this places the contract in jeopardy. A third party should be able to rely on the plain and ordinary meaning of the objects set out

⁵² Cabaret Holdings v Meeanee Sports and Rodeo Club Inc [1982] 1 NZLR 673 (CA) at 676.

⁵³ Assuming, for argument’s sake, that representatives of League branches have actual or ostensible authority to enter into contracts on behalf of the League.

^{in the written rules.}

D The evolution of customary practice and novel situations

Like the common law, tikanga and customary practices are not Māori. Rather, they develop and evolve over time.⁵⁴ Consider the Judge’s comments that:⁵⁵

[T]he usual common law approach might yet bend out of respect for a distinct customary practice or tikanga of the League enlarging the express words of [the article of the constitution which gives the National Executive Committee the power to dismiss a member]. As I have said, a gap does not necessarily mean the constitution is silent. But in this case it is. No clear practice in relation to such matters was identified. And that is hardly surprising. The events confronting the League in 2011 are entirely novel.

This suggests that for an unwritten practice to be recognised as legitimate by the courts it must be clear and established. This position has its problems:

First, any acts by an incorporated society that fall outside its written rules must be unlawful while the practice is still developing and is neither clear nor established. It is not clear why repetition of an unlawful practice should make it lawful, especially when the practice in question might be disciplinary or relate to voting.

Second, if a practice is constantly evolving then it might never reach a point where it can be articulated clearly or really be said to be “established”.

Third, suppose we do want to empower an organisation to act in a manner that is consistent with its values rather than restrict it to its written rules. If that is the case, then the Judge’s approach limits a society’s ability to respond to novel situations. A novel situation is by definition one that has not occurred before, so it will be difficult if not impossible to demonstrate a clear and established practice – the best that one can do is to argue by analogy that an existing practice used in other situations is appropriate for the novel situation. However, if no existing practice is available for adaptation, surely it is better to allow a novel response consistent with the society’s values than no response at all.

V Alternatives

Finally, I will consider whether there were alternative ways of addressing the issues here – either different actions available to the League, or alternative reasoning available to the Judge.

A The power to dismiss

Although the League’s rules do not allow for members to be suspended

⁵⁴ See, for example, S M Mead Tikanga Māori: Living by Māori Values (Huia

^{Publishers, Wellington, 2003).}

^{55 Tamaki, above n 4, at [58].}

pending inquiry, the rules do allow for the National Executive Committee to be dismissed for “misconduct proved to the satisfaction of the National Executive” or “bring[ing] the mana of the League into disrepute”.

The Judge noted that this power was not used in this case, and opined that “[p]erhaps it could have been, but that is beside the point.”⁵⁶ With respect, the fact that the League did have a power that it could have used, but instead employed a power to suspend that it did not lawfully possess, is significant. It is at least arguable that Mrs Tamaki’s involvement in the formation of the ten new branches could be regarded as misconduct or as bringing the League’s power into disrepute. The written constitution does not explicitly state that a dismissed member cannot later re-join the League. Dismissing Mrs Tamaki from the League and inviting her to re- join after the election would have been an alternative way of quashing her bid for the presidency – with the crucial difference of being an exercise of a power that the National Executive Committee actually possessed. Of course, that decision would have itself been judicially reviewable, and we cannot know for certain what the outcome would have been. I would suggest that the argument that Mrs Tamaki was involved in misconduct, or brought the mana of the League into disrepute, is stronger than the League’s argument that her presidency would breach the constitution. It may be that the Committee felt that dismissal was too severe. In that case, the appropriate course of action, as the Judge observed, would be to ensure that the voters were aware of Mrs Tamaki’s association with the Destiny Church and had an opportunity to question her about it. The appropriate course of action was certainly not to attempt to exercise a pretended power.

B The League’s fallback position: financial status of the new branches

The League provided a fallback argument in case the ten new branches were found to be legitimately established: that those branches were not eligible to vote in the 2011 election because their members had not paid subscriptions for the appropriate year. The ten new branches had all submitted subscriptions for the branch’s financial year commencing

1 July 2011. Kós J found that because those branches had no paid members on 30 June 2011, the date the ballot papers were sent out, they were not eligible to vote.⁵⁷ This finding was obiter because his Honour had already decided that the ten new branches were not formed in accordance with the tikanga of the League. However, it provides a sufficient basis for concluding that the ten branches in question could not vote in the 2011 presidential election – and would give the League three years until the next presidential election to resolve any questions over the legitimacy of those branches.

⁵⁶ Tamaki, above n 4, at [58].

^{57 Tamaki, above n 4, at [75].}

^{C Legitimacy of the new branches}

The Judge’s comment regarding the law bending to accommodate a practice was obiter since there was no clear practice of suspending pending inquiry that the law could bend to accommodate. However, the finding that the tikanga of the League ought to be given “as much respect” appears to be crucial to the Judge’s conclusion that the ten new branches were not properly established. I will now consider whether this same conclusion could be reached without needing to conclude that the League has an unwritten constitution.

1 Geographical requirements and the written constitution

The League’s written constitution clearly places importance on the geographical connection between branches and regions. The written constitution sets out the rules for establishment of regional councils, including that:

• “A Regional Council is made up of all financially independent branches from within a determined regional boundary. The Regional Councils are established within boundaries determined in accordance with the Māori Land Court Districts or within such boundaries as may from time to time be defined by the National Council.”; and

• “The responsibilities of a Regional Council shall be ... to co-ordinate the activities of Branches in the area.”

Explicitly recognising the importance of the geographical connection between branches and regions impliedly emphasises the importance of the geographical connections between branch members and regions. From this we can construct an argument that the plain text of the written constitution implies that new branches should primarily draw on members from that branch’s area. The customary practice of the League is consistent with this interpretation, which provides a kind of cross-check that this is the correct interpretation – without needing to conclude that the League’s practices can speak when the written constitution is silent.

2 The purpose of a branch

The Judge found that:⁵⁸

In essence the new branches have been established because just three members, the aspirant presidential candidate Mrs Tamaki, the Area Representative Mrs Bhana and the co-nominor Ms Benoni have decided they should exist.

Arguably, a branch can be regarded as illegitimate if it has been formed for the overriding purpose of supporting Mrs Tamaki’s bid for the presidency rather than for furthering the objects of the League. If that was the case, then in a sense, the ten new branches should be regarded as being branches of the Hannah Tamaki Election Campaign League, not the Māori Women’s Welfare League. This argument is bolstered by the

⁵⁸ Tamaki, above n 4, at [69].

Incorporated Societies Act 1908, which only empowers societies to act insofar as they are pursuing their stated objects. This argument provides an additional reason for regarding the ten new branches as illegitimate, relying only on the text of the constitution and the statutory context.

VI Conclusion

There are problems with the proposition than an incorporated society can have an unwritten constitution. The Incorporated Societies Act 1908 requires codification of certain rules. The constitution of an incorporated society is also a contract and it would be problematic to regard that contract as partly unwritten. Third parties should be able to rely on an incorporated society’s written rules being a codification of the society’s rules.

With respect, the Judge’s finding that the tikanga of the League deserved as much respect as the written constitution and could speak where the written constitution was silent, and the suggestion that the common law might bend to accommodate a distinct customary practice, are not good law. The same result could be achieved using traditional principles of interpretation. The tikanga of the League provides valuable background material and is worthy of respect⁵⁹ – but in law does not stand equally with the League’s written rules as a source of the League’s authority and the limits on that authority.

Postscript

The election was held after the preparation of this paper but prior to publication. Mrs Tamaki was not elected president.⁶⁰

⁵⁹ I must agree with Hammond’s observation in Porima v Te Kauhanganui o Waikato Inc, above n 30, at [116]: “[T]here is a distinction between Māori protocol, and the general law of New Zealand. Māori protocol is to be deeply respected, and has contributed greatly to the understanding of all New Zealanders as to the conduct of human affairs.”

^{60 Marika Hill “Tamaki loses bid to head league” (2011) stuff.co.nz http://}

^{www.stuff.co.nz/national/5560377/Tamaki-loses-bid-to-head-league.}