Interpreting the Rules of a Society

Another article “Protecting the Destiny of a Society” discussed the judgment in Tamaki v The Māori Women’s Welfare League Incorporated [2011] NZAR 605 (HC), Kos J.  That judgment noted that:

[6] The League is an incorporated society under the Incorporated Societies Act 1908 … governed by a constitution. The constitution is a broadly cast document. … it is stronger on conceptual values than on prescriptive, procedural detail. The constitution therefore needs to be construed in accordance with the core underlying values of the League. Respect, manaaki (embrace) and tautoko (support) are at the heart of the tikanga of the League.

[7] As Mrs Jacqui Te Kani, a former President of the League and now its General Manager, said in her affidavit:

The [League’s] constitution has always been light on detail of how the League operates because the 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.

[8] I accept that observation. An instrument such as the League’s constitution will be imbued with values and customary practices that will not be written within the four corners of the document itself. 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.

[9] The constitution commences with an introduction and a preamble. The introduction endorses the commitment of the League to the Treaty of Waitangi. The preamble provides:

The Māori Women’s Welfare League is an organisation principally concerned with promoting through study, discussion and action the wellbeing of Māori and the people of New Zealand generally. The League shall consist of all Members of Branches, which are affiliated to the League. It shall be non-sectarian, non-profitable and it should be non-party political, in that it shall not seek to influence the views of its members regarding any candidate for public office or any political party.

[10] Article 3 of the constitution expresses a series of aims and objects. These focus on the provision of an organisational basis to enable members to participate in the spiritual, social, environmental and economic wellbeing of whanau and the community, and on health, education, economic development, employment, cultural values, the rehabilitation of offenders and assistance with victims of crime, and the promotion of understanding between women of all races.

One of the issues in the case was whether Mrs Tamaki was eligible to stand for election as President of the League, the National Executive Committee having removed her name from the ballot on the grounds that if she was elected that could contravene the non-sectarian nature of the League, and the Judge held that withholding her nomination was unlawful.  However, the conflicting submissions of the parties were not accepted, the Judge stating:

[55]  The submission by Mrs Tamaki fails in my view to give due weight to the context and purpose of the League, and the appropriate place that its values, policies and practices, its tikanga, should have in construing the constitution.  As I have already said, the constitution requires to be given a liberal construction consistent with the tikanga of the League.

…

[57]  The submission by the League arrogates to its National Executive a role that properly belongs to the voting plurality of the League as a whole. …

[58]  … I do not accept that a power to suspend a nomination (or a branch) pending completion of an investigation into constitutional compliance can properly be inferred in this case:

(a)   First, it is not expressly stated in the constitution.  The power to “dismiss” an individual member for misconduct, or bringing the mana of the League into disrepute, exists in Article 19.  But that is all.  That power has not been used in this case.  Perhaps it could have been, but that is beside the point.

(b)   Secondly, the law generally insists that a power to suspend, expel or otherwise discipline membership of a society be express, rather than merely implied.  There is good sense in that requirement.  An untrammelled, implied power to discipline members is a dangerous device.  It is commonsense that its extent should be specified, so all members know what the consequences of their actions might be.  And inasmuch as the presidential election is triennial only, the effect of the present “suspension” is more fairly characterised a disqualification.

 (c)   Thirdly, the 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 Article 19.  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.

The statement in paragraph 6 of the judgment could be interpreted as suggesting that “core underlying values” of a society can trump the provisions of a constitution, but paragraph 8 makes it clear that “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.” Perhaps because the case was argued and decided under some time constraints the judgment is silent on the general principles for the interpretation of constitutions.  The conventional wisdom reflected in New Zealand and Australian Court decisions is that society or trust constitutions should be given a fair and reasonable interpretation:

• That involves an uncomplicated focus upon the ordinary and natural meaning of the words used, with words given their usual meaning (technical legal terms being given their technical legal meaning) and clauses read literally and in accordance with the ordinary rules of grammar.
• If that does not avail, the court will exercise its judicial knowledge and experience, innate common sense, and desire to make sense of the constitution to give a reasonable meaning to its words given the historical and immediate context, as the constitution must be read as a whole (now, according to Tamaki, having regard to the “distinct customary practice or tikanga” of the entity).
• It is doubtful if a constitution can be found void for unreasonableness.
• The intentions of those drafting or adopting a constitution are not relevant.
• When construing constitutions of charities, primary consideration is given to the constitution, but the activities of the trust may also be relevant, and the courts, while not disregarding established principles, may resolve ambiguities by using a “benignant” construction. 

For specific advice about any of the issues discussed in this article, please contact Mark at mark@nfplaw.co.nz.