LawNews- Issue 27

NEWS Aug 12, 2022 Issue 27

Inside ■ PROPERTY

Surviving a construction downturn P06

■ INVESTMENT

How moods can affect ESG decisions P08

When immigration

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COLLIDES WITH CRIMINAL LAW

Contents 03-05 MIGRANTS CONVICTIONS DEPORTATION

How criminal law impacts on immigration decision-making

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

06 CONSTRUCTION CONTRACTS RECESSION

Avoiding disaster if your build goes bust

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08 SUSTAINABILITY INVESTORS ESG

Why moods can affect investment decisions

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Aug 12, 2022 Issue 27

IMMIGRATION

What happens when immigration and criminal law collide?

For temporary visa holders, any decision made by INZ to delay the processing of an application until such time as the outcome of any court process is known can result in an applicant becoming unlawful in New Zealand

Nicky Robertson & Mahafrin Variava

Nicky Robertson

Mahafrin Variava

These provisions confirm that no visa or entry permission may be granted to any person who at any time has been When beginning practice in the field of immigration law, it does convicted of an offence where her or she was sentenced to a term of imprisonment of five years or more not take long to identify the interplay between at any time or for 12 months or more in the immigration and other areas of the law.

INZ’s preceding 10 years.

Decisions made in one area of law can approach in Note, however, for offending on a temporary have a significant impact from an immigration issuing DLNs visa, the character bar is far lower: any offence perspective on a migrant’s ability to continue to to temporary that could allow the court to impose a sentence live in New Zealand. Not all of these are positive. of imprisonment of three months or more will Criminal law decisions can have serious visa holders create a problem. negative implications for temporary visa holders where they Therefore, where an applicant charged with in particular, but also in some instances for have been an offence has a temporary visa application resident visa holders. This article explores some being processed or lodges a subsequent of those issues that all criminal law practitioners granted a application with INZ, where if convicted should be aware of. discharge they will no longer meet the good character without Immigration status requirements and/or no longer be eligible to be granted a visa, INZ will put the processing of Being charged with any offence potentially conviction the application on hold. amounts to a material change in a migrant’s amounts, in For temporary visa holders, any decision circumstances. the writers’ made by INZ to delay the processing of an Depending on the charge and type of visa opinion, to application until such time as the outcome of held at the time, the charge may need to be any court process is known can result in an disclosed to Immigration New Zealand (INZ). a further applicant becoming unlawful in New Zealand.

INZ can also become aware of a charge through form of The backlog of cases has been exacerbated voluntary disclosure by the visa applicant or punishment due to the covid-19 lockdowns. The Courts of through external sources.

New Zealand website shows that as at 30 June When it comes to criminal offending, the 2021, in Auckland alone the average number of starting point for review is the provisions set waiting days before trial was 507. out in the INZ Operational Manual. The generic “instructions” include the character requirements relevant to the assessment of temporary and residence applications, some of which mirror Continued on page 04 the character sections contained in the Immigration Act 2009.

03

Continued from page 03

and that offence took place within two years of the grant of their first resident visa, the visa holder is also liable for deportation.

Again, if a resident visa holder is charged with an offence, he or she should seek expert immigration advice to fully understand the potential risks to their immigration status if they are convicted and, with that, setting a strategy with their criminal counsel to avoid potential deportation.

Where an applicant’s temporary (or interim) visa has expired before a decision is made on his or her application, they could become unlawfully present in New Zealand, with no ability to work.

This puts an applicant in the untenable situation of having to remain in this country without any lawful ability to provide Discharges without conviction for themselves and any dependent family members.

As such, when a visa holder is charged with an offence in There have been instances where a New Zealand court New Zealand, they should be advised to immediately seek has granted a temporary visa holder a discharge without immigration advice as to the potential implications for their conviction. immigration status, how that is to be communicated and However, INZ has then issued the visa holder a DLN. The managed with INZ, the effect of a conviction on rationale for this decision in some cases has any future applications they may lodge and any been that the visa holder must have pleaded Immigration options open to them to try to have a decision to the offence to be then granted a specialists can guilty made on their application (or to lodge alternative discharge without conviction so this constitutes act as expert applications) despite the charge. “other matters relating to character”.

INZ’s approach in issuing DLNs to temporary witnesses to Character waivers visa holders where they have been granted a outline the discharge without conviction amounts, in the Where a temporary visa holder is convicted of potential writers’ opinion, to a further form of punishment. an offence which results in them not meeting consequences This is because the court reached its the applicable character provisions, and has an decision only after carefully considering application pending or then applies for a new of a the nature of the offending, along with the visa, he or she can be considered for a character conviction defendant’s situation and circumstances. waiver. to support Further, the courts have taken into However, this is a discretionary decision. consideration the fact that a visa holder INZ will weigh up the negative information submissions becoming liable for deportation may not (conviction, sentence imposed and how long ago for a automatically result in him or her being served the offending occurred, for example) against the discharge a DLN. applicant’s positive factors to determine whether In the case of Blakelock v New Zealand without or not to grant a waiver.

Police [2019] NZHC 2487 (1 October 2019), Any decision by INZ not to grant a character conviction the court found that the fact someone may be waiver to a temporary visa holder will result liable for deportation “does not automatically in the application being declined. There is no mean a deportation liability notice will be issued”. guarantee that a character waiver will be granted However, INZ’s recent approach has been to issue DLNs to even when applicants have family in New Zealand. temporary visa holders in most cases, despite having the Deportation liability discretion not to do so.

It is worth noting that INZ is increasingly ignoring the Where an applicant for a temporary visa is convicted, in specific situations he or she may also find themselves liable for “seriousness” of offending in its consideration of whether a DLN should be issued. Whether your client is a first-time offender or deportation.

Under the instructions, INZ can issue a Deportation Liability whether it is a low-level offence, a DLN can be triggered. This approach suggests the potential immigration implications of a Notice (DLN) where either the Minister of Immigration or an conviction far outweigh the gravity of the offending. immigration officer determines there is sufficient reason to However, the courts have demonstrated different deport. Sufficient reason includes not only criminal offending approaches to the issue of ‘discharge without conviction’. but other matters relating to character as well.

Courts in some cases have been prepared to consider For resident visa holders, a conviction may also result the immigration ramifications for a defendant as being in them being liable for deportation. For example, where a resident visa holder is convicted of an offence where the court could impose a sentence of imprisonment of three months or Continued on page 05 more (for example, driving with excess blood/breath alcohol), 04

Decisions made by the courts can have significant negative impacts on visa holders and their families

Aug 12, 2022 Issue 27

Continued from page 04

be a consequence out of all proportion to the gravity of the offending.

Rahim’s case was precedent-setting because prior to this, the approach of the courts had been to leave the disproportionate to the offending. Other courts have consequences of a conviction to the immigration authorities. stated that any immigration decision should be reached This approach may not be successful in all cases by immigration authorities without judicial and more recently we have seen the courts interference.

INZ is revert to their traditional position.

Despite this, a discharge without conviction increasingly for a temporary visa holder significantly ignoring the Criminal bar increases his or her prospects of securing a ‘seriousness’ further visa and is the ideal scenario for both Decisions made by the courts can have temporary and resident visa holders from a significant negative impacts on visa holders and of offending character perspective because it makes arguing their familes. in its reasons against their deportation liability far Being aware of a client’s immigration status consideration is essential to them to fully understand the easier.

Where courts choose not to consider the potential implications of any charge and/or of whether a immigration impacts of a conviction, INZ may conviction they may receive on their current DLN should then issue a DLN. and/or future immigration status. be issued In this instance, consideration must be This is material to inform the strategy given to whether there is room to challenge developed by criminal practitioners in response the original conviction through the courts. This to the charge, so must be considered at the approach is not uncommon and in most cases earliest opportunity. appeals are filed to the High Court out-of-time. This is due to The takeaway for members of the criminal bar is that what can sometimes be a slow process between the conviction immigration specialists can act as expert witnesses to outline and when INZ gets in touch with the applicant advising he or the potential consequences of a conviction to support she is liable for deportation. submissions for a discharge without conviction. Many are The decision of Rahim v R [2018] NZCA 182 is an example successful and a better outcome in an immigration sense is of the above approach. The court recognised evidence from often achieved. ■ Rahim that if a conviction were entered “there was a real and Nicky Robertson is a senior associate and Mahafrin appreciable risk that he would be deported, thereby splitting Variava is an associate in the immigration team at Lane up the family”. The court further found that deportation would Neave ■

The potential immigration implications of a conviction far outweigh the gravity of the offending

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05

CONSTRUCTION

Managing and mitigating construction risk in the face of a potential downturn In such a scenario, we would expect to see more developer insolvencies and a large number of incomplete or cancelled projects

contract is key. Even if you have a great contract, if no one has been paying any attention to it then it may not be as helpful as it could be.

Have a plan

Hamish Bolland

Hamish Bolland & Michael Harper Construction industry is not for the fainthearted. The industry can be downright terrifying when trading conditions are as difficult as they are now, not only in New Zealand but around the world.

There is a growing view, shared by the Reserve Bank, that the sector may now be entering a downturn. The bank commented in its May 2022 Monetary Policy Statement that there was “a risk that interest rate increases and house price falls will lead to a large decline in construction sector activity. In such a scenario, we would expect to see more developer insolvencies and a large number of incomplete or cancelled projects”.

This would be on top of an already high casualty rate, maintained consistently through a 12-year building boom, with some spectacular company collapses or near-collapses.

MBIE reports that 92 companies in the construction sector went into liquidation in the 12 months to 23 May 2022 and the economy continues to teeter on the edge of recession.

So what’s to be done?

We suggest some steps that principals and developers might take to manage or mitigate construction risk.

Awards are largely unenforceable against insolvent respondents

Take the contract seriously

Litigation

Plan ahead. Include provisions in your contract that will reduce exposure in an insolvency.

Consider whether you need project-specific requirements that front-foot possible risk issues to ensure you are in the best possible position if a contractor becomes insolvent.

Insolvency is a last resort. Rescue, restructure and rehabilitate will produce better economic and social outcomes.

In a dispute, consider the other party’s financial position.

Don’t push them into insolvency if you can avoid it. A claim against an insolvent principal will be unsecured, ranking behind the principal’s financier. An insolvent contractor can’t complete the project and you’ll have to pay another contractor an inflated

Contract administration Given the challenges in the market, it may be worth checking that your contracts on-foot are being administered properly.

Having a good team engaged to manage and administer the 06

Michael Harper

Think about a road map or run a check on what steps would be taken initially if the contractor suffers an insolvency event, particularly if neither the project manager nor principal/developer is experienced in dealing with contractor insolvencies.

■ What subcontractors would be required to complete the works and what access would you have to those subcontractors? For example, do you have signed continuity guarantees? If these were a requirement in the contract but haven’t been provided, get them done and ensure they have been executed correctly.

■ Are you across the terms of the subcontracts? If not, access these if possible.

■ What site security do you have in place? How would it play out in reality if you needed to take possession of the site?

■ Would you need to take possession of any offsite materials?

Where are they and how will this be actioned? Do you have signed offsite materials agreements? If these were a requirement in the contract but haven’t been provided, get them done and ensure they have been executed correctly.

■ Would you need a construction manager to manage subs in the interim? Or would you quickly appoint a replacement contractor?

■ Where is the original bond and what is the physical address it needs to be called at? Be ready to call it!

You need to establish who is owed what and who is needed to help you finish the job.

Continued on page 07

Aug 12, 2022 Issue 27

Briefs Trump takes the ‘Fifth’

Tesla sale Elon Musk, the world’s richest man, this week offloaded $US6.9 billion worth of shares in electric carmaker Tesla in advance of a court case scheduled for October. The move was intended to avoid a fire-sale if Musk loses his fight with Twitter and is forced to complete the $US54b deal to buy the business.

The sale leaves Musk with 15% of Tesla.

Musk walked away from the Twitter transaction last month, citing the social media giant’s failure to provide accurate information about the number of fake accounts among its users. He says he will buy Tesla shares again if he wins the court case, to be held in Delaware Chancery Court. Bloomberg estimates Musk’s net wealth to be around $US250b.

US inflation drops Tech shares have led stock rallies in the US as the latest inflation figures show a slight drop to 8.5% in July, down from 9.1% in June.

Price pressure eased across US energy markets, with petrol down 7.7% although grocery prices rose 1.3% in July (13.1% higher than in July 2021). ■

Continued from page 06

price to finish the job.

Standard-form construction contracts (in particular NZS:3910) are unclear about whether the arbitration agreement survives termination for insolvency events.

Take care when adjudicating against a respondent who may not be able to pay the award. Awards are largely unenforceable against insolvent respondents.

Where the award is the only reason the respondent is insolvent, the respondent may be able to stave off liquidation to enable the dispute to be finally determined.

Upcoming changes to the retentions trust regime include requirements on banks holding retention accounts and receivers of failed construction companies. Banks may face claims by retentions beneficiaries if the funds are misappropriated.

Receivers will assume the role of trustee of retention money, regardless of the impact on appointing a secured creditor. ■ Hamish Bolland and Michael Harper are partners at Chapman Tripp. Senior associates Kylie Mutch and Sam Holden also assisted with this article. ■

Pieter van der Harst & Troy Anderson

Former US President Donald Trump took the Fifth Amendment, refusing to answer questions under oath in a deposition on Wednesday at the AttorneyGeneral’s office in New York.

The hearing was called to probe allegations of fraud within the Trump Organisation (Trump’s family business) and comes two days after the FBI raided the former president’s Mar-a-Lago home in Florida.

If the Attorney-General finds evidence of financial misconduct, she can sue the Trump Organisation for damages. But the Manhattan District Attorney’s office is running a parallel investigation into Trump’s business dealings which could result in criminal charges. Trump said he had “no option” but to invoke the Fifth Amendment, saying the administration and many prosecutors “have lost all moral and ethical bounds of decency”.

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07

SUSTAINABILITY

In the mood for sustainable funds?

How feeling pessimistic can influence where investors put their money When it comes to investing in sustainable equity mutual funds, risk aversion triggered by negative moods was a more likely cause of increased investing than the potential happiness connected to their pro-social behaviour

investments are socially responsible.

Another reason can be found in how someone was raised. An individual’s propensity to invest in socially responsible assets is influenced by having parents owning similar assets or growing up in a family that values environmental sustainability.

The “warm glow effect”, which is a good feeling experienced through the act of giving, also explains why investors choose ESG assets. Investors experience positive emotions when choosing sustainable investments, irrespective of the investments’ impact.

But does an investor’s mood influence his or her preference for sustainable investments? There are several reasons why emotions might affect where people put their money.

Adrian Fernandez-Perez, Alexandre Garel & Ivan Indriawan

Mood and investment decisions

Think about the last time you bought something expensive to make yourself feel better after a disappointment or when you treated yourself with a fancy and expensive dinner after some accomplishment. Emotions have a strong influence on purchasing decisions. More often than we realise, we make these decisions based on emotions rather than rational calculations and facts. It is well documented that financial decisions are also influenced by emotions.

In low-mood periods, people are more pessimistic about firms’ prospects, which is associated with decreases in stock market prices.

Because of the growing popularity of assets with a strong focus on environmental, social and governance (ESG) goals – companies with corporate policies that encourage them to act responsibly – we wanted to look at what role emotions can play in determining people’s preference for sustainable investments.

There are several reasons why people may want to invest in sustainable assets. Some may be “social signalling”, meaning they like to talk about how their 08

There are two competing theories when it comes to examining the role of mood and sustainable investment.

The first is based on the idea that sustainable assets are generally less risky. In this sense, assets that are considered completely or mostly sustainable have been shown to outperform less sustainable assets in crises, as investors see them as more trustworthy and having fewer structural, legal and reputational risks.

This theory is also based on the idea that a lower mood leads to more risk-averse behaviour. That is, when someone is sad, depressed or angry they tend to become more cautious when making investment decisions and choose investments with lower risk.

A second and competing theory is based on the idea that a positive mood promotes prosocial behaviours and greater altruism. Investors with lower mood tend to focus on themselves and less on others.

As such, they have less preference for sustainable investments.

Happier investors, on the other hand, may be more altruistic and favour sustainable investments because it benefits others – for example, community, workmates and the environment.

Our research has tested these theories, documenting evidence consistent with investors’ greater risk aversion.

More specifically, we found that a worse mood is associated with greater investment in sustainable assets. This is arguably due to a greater risk aversion pushing investors to favour sustainable investments that they perceive as less risky.

Testing investors’ mood To identify sustainable versus non-sustainable funds, we used the Morningstar Sustainability rating. This is intended to help investors better understand and manage total ESG risk in their investments. A higher sustainability rating is associated with a lower ESG risk.

To capture the change in the average mood of households for a given month, we used a metric called “onset and recovery” (OR). This measures the change in the monthly percentage of seasonally depressed individuals who are actively experiencing symptoms.

Higher OR indicates an increase in symptomatic depression cases and, therefore, lower mood on average. For the northern hemisphere, OR is high during autumn (September), low during spring (March), and moderate during summer and winter.

Southern hemisphere countries experience the same pattern in reverse.

We contrasted OR levels in relation to investment in sustainable equity mutual funds in 25 countries over the 2018–2021 period. In general, mutual funds with high sustainability ratings tended to attract more capital, suggesting that investors value sustainable investments.

More importantly, however, we found that when there was an increase in the percentage of seasonally depressed individuals, capital inflows into high-sustainability funds increased relative to lowsustainability alternatives (an extra 0.070% per month or 0.84% per year). For an average mutual fund with a

Continued on page 09

Aug 12, 2022 Issue 27

Continued from page 08

AUCKLAND PRACTICE FOR SALE OR AMALGAMATION

size of US$100 million, this additional capital inflow equates to US$840,000 per year. This negative association is consistent with a risk-aversion interpretation, supporting the conclusion that lower mood leads to more sustainable investments as investors perceive them as being less risky.

Our study comes with a caveat. Given the features of our data, we cannot test if the investors’ mood improves after investing in sustainable funds. This would not only confirm that sustainable investments are a safer option, but also that investing in them will boost people’s mood.

Seeking a sale or merger but the opportunity may well suit an experienced younger practitioner looking for a partnership, ideally with a client base.

Sadness and the environment

Expressions of interest in strict confidence to: advertiser@adls.org.nz quoting ref: APSM

Our research explores a potential channel that could explain people’s preference for sustainable investments. Our findings suggest that, when it comes to investing in sustainable equity mutual funds, risk aversion triggered by negative moods was a more likely cause of increased investing than the potential happiness connected to their pro-social behaviour.

This does not imply that sadness is good for the environment or society, it rather confirms that investors consider sustainable investments a safer option.

■ Adrian Fernandez-Perez is a senior research fellow in finance at the Auckland University of Technology, Alexandre Garel is a researcher in finance at the Audencia Business School in France and Ivan Indriawan is a senior lecturer in finance at the University of Adelaide ■ The above was first published in The Conversation and is republished with permission

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Events Rotorua lawyers’ lunch Thank you to those who attended the Rotorua lawyers’ lunch, held at Ambrosia Restaurant.

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Paul Sandford and Samantha Sandford

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Tony Herring (ADLS Vice President) and David Rendall

Shannon Eldridge, Kahlia Goss (back), Clara Whitcombe (front), Jasmine Findlater (front), Fraser Wood (back) and Michelle Urquhart

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Aug 12, 2022 Issue 27

Featured events

Connecting New Zealand lawyers

Christchurch lawyers’ lunch Wednesday 24 August 12.30pm – 2pm Dux Central, 6 Poplar Street, Christchurch, Canterbury Sponsored by MAS

Learn more

Tauranga express lawyers’ lunch

Upcoming September

Wednesday 28 | Takapuna lawyers’ lunch

October

Thursday 20 | Arthur Young’s retirement dinner

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November | Immigration dinner with the Minister of Immigration November | New Plymouth Sundowner November | East Auckland lawyers’ lunch November | Tauranga Sundowner December | Northland lawyers’ lunch

Wednesday 31 August 12.30pm – 2pm Miss Gee’s Bar & Eatery, 3/59 The Strand, Tauranga Sponsored by MAS

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This seminar will provide an update on the new Incorporated Societies Act 2022 and will include practical scenarios from those at the coalface.

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Being Effective in the Employment Relations Authority Thursday 29 September | In Person | Livestream | 2 CPD hours Visit adls.org.nz for more information.

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Aug 12, 2022 Issue 27

1 CPD HOUR

Banning Restrictive Covenants and Exclusive Leases Wednesday 31 August | 12pm - 1pm | Webinar You may not have heard of the Commerce (Grocery Sector Covenants) Amendment Act 2022, or you may think it relates only to the supermarket duopoly members. Either way, if you advise lessors or lessees, you need to better understand the Act! Join us to learn how it will impact you and your clients.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

2 CPD HOURS

Making the Most of Restorative Justice Tuesday 18 October | 4.00pm - 6.15pm | Livestream | In Person Don’t approach restorative justice as just another box you need to tick to proceed through the criminal justice system. Benefit from practical insights into how you can make the most of the restorative justice process and how it can serve the needs of all parties to the litigation.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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