New Zealand has since emerged as one of the few countries to have controlled the transmission of the virus in our communities, although this has involved extremely strict controls on our borders and compulsory quarantine for all those arriving in New Zealand.

Elsewhere, Covid-19 continues to wreak havoc on societies and economies. At the time of writing the number of global cases had exceeded more than 16 million with almost 650,000 people dying from the disease.

We can look back with pride about how our ‘team of five million’ came together and successfully controlled the spread of the virus. It is also good to reflect on the role of the Law Society, from our governors to our staff and volunteers, in assisting the profession and the judiciary to maintain services during a lengthy period of disruption.

At the same time, we need consider the likely long-term effects of the pandemic and how we can adjust to them as a profession and a society.

Historian Professor Kyle Harper, the author of The Fate of Rome: Climate, Disease and the End of an Empire, recently gave a very sobering interview on Radio New Zealand where he spoke about how, despite its advanced infrastructure and immense power, the Roman Empire was brought down by pandemic and climate change.

The Roman Empire was struck by the Antonine Plague between AD165 and 180 and the Plague of Cyprian from about AD 249 to 262. As Professor Harper describes it the lethal pandemic struck almost out of the blue at a moment of peak population, prosperity and imperial power.

“There is something about our psychology that maybe makes us forget the catastrophes that are inevitably going to occur in human history,” he told the interviewer.

So how do New Zealand lawyers as a profession learn from history? Professor Harper suggests the ‘silver lining’ from Covid-19 might be its role in providing us with a powerful reminder of our vulnerability and help us develop forms of response and social capital that improve our resilience.

This is where the Law Society’s well-being programme has an important role to play. One initiative, launched nationally during the pandemic lockdown after a successful pilot, is our new mentoring programme, an ideal way for the profession to help each other build resilience.

Almost 300 people have registered, and more than 150 mentoring matches have been made since we launched the national mentoring programme on 14 May 2020 after a successful pilot. This is a virtual platform and it’s been gratifying to see that we are attracting a diverse group of mentors and mentees.

Another way of building social capital is getting involved in the political process. This is an option that has attracted many lawyers. Two of the world’s most influential leaders, former United States President Barack Obama and Nobel prize winner and South African President Nelson Mandela, were both practising lawyers earlier in their careers.

At least nine of our Prime Ministers worked in the legal profession before going into politics, and in the last election alone at least 31 lawyers were vying for a spot on the parliamentary benches.

During his interview with LawTalk this month Justice Minister Andrew Little reflected on how the skills he gained as a lawyer had proven useful as a politician.

“You get used to dealing with lots of information, deciphering and distilling it, and stating your position effectively.”

In this edition of LawTalk Dennis Gates takes a look at the role of reputation in being a successful lawyer. In this era of radical societal change, and with the focus the Law Society and legal profession in New Zealand have had on building a healthier, safer culture this is a pertinent subject.

Dennis touches on an interesting point about the change in client relationships that the AML/CFT legislation has brought in, meaning all clients must be treated as an unknown entity and verified.

For those who place a strong value in trusted relationships this can present potentially difficult situations. But with the AML/CFT requirements now entering their third year it is clear they are very much now part of our legal landscape. We take a look at the first two years of the legislation and why it has proved to be so complex.

Whether it is responding to a pandemic, negotiating the political landscape, practising as a lawyer, or being a partner in a law firm, values are fundamental to maintaining trust.

Michelle Obama, an American lawyer and author who was the first lady of the United States from 2009 to 2017 puts it well when she says: “I have learned that as long as I hold fast to my beliefs and values – and follow my own moral compass – then the only expectations I need to live up to are my own.”

Helen Morgan-Banda
Chief Executive, New Zealand Law Society | Te Kāhui Ture o Aotearoa

The proposed rules are a major step – for the first time any kind of discrimination, bullying, harassment, sexual harassment and other unacceptable conduct will be clearly defined; the threshold for reporting unacceptable conduct to the Law Society will be made clearer; and there will be rules to protect any one who makes a report or complaint.

The proposed changes will also require those who manage and operate law practices to provide a report each year, declaring these issues are being managed appropriately.

The changes are critical to strengthening the Law Society’s ability to address this pressing issue and our best option to fortify our regulatory arm. It has been a complex journey to get to this point and it is heartening to see such a positive response from the sector.

The Law Society is committed to playing a leadership role in targeting and eliminating the culture of discrimination, bullying and sexual harassment which exists in some parts of the legal community – but we cannot, and should not, do this alone. These changes will only be effective if they are adopted and embedded by the profession – and I want to thank all those who have provided their time and expertise to get us to this point.

Our next steps will be to analyse and consider all your feedback and share a summary before the final version is provided to the Board, Minister and Council. Given the process we are required to follow, our goal is to implement the new Rules in 2021.

One of the questions we have been asked is why it has taken so long to develop these proposed changes. We worked closely with the Government to explore options to change the regulatory framework, initially proposing changes to the Lawyers and Conveyancers Act 2006. However, we were told this was not possible at this time.

We then had to change tack – to investigate what we could do to strengthen our powers within the existing regulatory framework. We looked at the rules and regulations that applied to professionals both in New Zealand and overseas and sought advice from regulation and ethics experts.

The changes were informed by this advice, as well as the work and recommendations of the Law Society’s Independent Regulatory Working Group chaired by Dame Silvia Cartwright, the 2018 Workplace Environment Survey and concerns and experiences courageously shared by many within the legal community. While all this has taken time, I believe the proposed changes are even more robust as a result.

It is understandable that some are frustrated by the time it has taken to get to this point. I share that frustration. However, it is important to note that since these issues became public in 2018, the Law Society has not stood still. We have introduced several initiatives to support healthy, safe, respectful and inclusive legal workplaces, including free counselling and an 0800 number for those affected.

I have also spoken publicly about these issues – including the need to take an intersectional approach which goes beyond just gender – on many occasions to keep the conversation moving forward. All voices, on all forms of discrimination, must be heard.

I am confident the Law Society is doing what we can as one of the leaders in the profession to help bring about change. But again, we cannot do this alone. Real change will only take place when everyone in our profession takes responsibility – from law schools right through to senior judiciary. Whether that is stepping up to support a colleague and calling out inappropriate behaviour (“showing up”) or consciously self-educating and building a supportive, non-discriminatory environment within your workplace (“doing the work”). We all have a role in this.

What is important is what we do now – and how we bring about fundamental, lasting change for the future of our profession.

Tiana Epati
President, New Zealand Law Society | Te Kāhui Ture o Aotearoa

This month we are openly consulting with the profession and the public on these proposed changes to lawyers’ conduct rules under the Lawyers and Conveyancers Act. These changes form an important part of a range of measures we have taken, and plan to take, to address these issues.

When I became President of Te Kāhui Ture o Aotearoa (the New Zealand Law Society) in April 2019, the profession was still reeling from revelations of discrimination, bullying, harassment and other unacceptable conduct within the legal community. There were valid questions being asked about the culture of the profession and how we could change for the better. Changing our conduct rules is one of the ways the Law Society is playing a leadership role in targeting and eliminating the culture of bullying and sexual harassment which exists in some parts of the legal community.

One of the questions we have been asked is why it has taken so long to develop the proposed changes. The answer is simple; we wanted more dramatic changes to the Lawyers and Conveyancers Act 2006. We worked closely with the Government to explore options to change the regulatory framework. However, we were told this was not possible at this time.

We then had to change tack – to investigate what we could do to strengthen our powers within the existing regulatory framework. We looked at the one area where we could make change without legislative amendment; the rules and regulations that applied to professionals both in New Zealand and overseas. We sought advice from regulatory and ethics experts.

The changes we are now proposing were informed by this advice, as well as the work and recommendations of the Law Society’s Independent Regulatory Working Group chaired by Dame Silvia Cartwright, the 2018 Workplace Environment Survey and concerns and experiences courageously shared by many within the legal community. While all this has taken time, I believe the proposed changes as robust as we could make them, as a result.

It is important that since these issues became public in 2018, the Law Society has not stood still. We have introduced a number of other initiatives to support healthy, safe, respectful, and inclusive legal workplaces, including free counselling (evidentially there is a link between poor mental health and poor workplace behavior) and an 0800 number for those affected. I’ve also spoken widely and publicly about the fact that these issues go beyond gender and highlighted the need to talk about race and disability when discussing discrimination and harassment. All voices, on all forms of discrimination, need to be heard.

I am confident the Law Society is doing what we can, as one of the leaders in the profession, to help bring about change. But we cannot, and must not, do that alone. Real and long-lasting change will only take place when everyone takes responsibility. Whether that is showing up to support a colleague and calling out inappropriate behaviour or consciously self-educating, doing the work and helping to build a supportive, non-discriminatory environment within your workplace. We all need to play our role if we are to bring about fundamental, enduring change for the future of our profession.

Click here for more information on the rules changes and the rules consultation survey form or go to the Law Society website: www.lawsociety.org.nz

Tiana Epati is the President of New Zealand Law Society | Te Kāhui Ture o Aotearoa. She is also a partner at Rishworth Wall & Mathieson and is the Lawfuel “Staedlar” Lawyer of the Year for 2019.

The Sexual Violence Legislation Bill is a significant reform of the criminal justice system, intended to reduce the retraumatisation, which sexual violation complainants can experience in the criminal trial process.

The Law Society supports efforts to ease the burden on vulnerable complainants of giving evidence in sexual violence cases. However, changes to the law must strike the right balance between ensuring complainants are treated fairly while not compromising defendant’s rights.

“We acknowledge this is a difficult balance. It is necessary to ensure that any reform guarantees complainants are treated respectfully and fundamental rights and freedoms, primarily the right to a fair trial, are maintained” says Law Society President Tiana Epati.

“There has been a great deal of public debate about the reform proposals and even amongst members of the legal profession there is division about the merits of some of the proposed changes, such as pre-recording of cross-examination.

The reforms have been the subject of debate for many years and the Law Society has contributed to the discussion.  All indications to date have been that the Bill will proceed, and the Law Society has therefore focused on ensuring the new provisions will be clear and workable and not undermine the right to a fair trial.”

The Law Society made a comprehensive submission to the Justice select committee, recommending several changes to the proposed process for complainants to give evidence in sexual violence trials, and directly addressed the select committee on some key concerns in February.

“Our recommended changes to the Bill had been very carefully evaluated by experienced criminal practitioners from both sides of the bar, and we believe were constructive, balanced and necessary,” says Ms Epati.

“We were disappointed to see they were largely not addressed in the committee’s report. We remain concerned the Bill will cause serious difficulties in practice unless amendments are made in the House.”

In writing to the Justice Minister, the Law Society emphasised its primary interest which is to ensure the legislation achieves the right balance and is workable in practice.

“We also raised concerns about the impact of these reforms in the wider context of a criminal justice system under immense pressure. We are particularly concerned that the reforms will place extra strain on the criminal justice system where resources are already stretched thin.”

Concerns have also been raised by other sections of the legal community.  The Law Society considers there is still an opportunity to make changes to the Bill before it becomes law.

The Law Society told Parliament’s Finance and Expenditure Committee today it agreed that new legislation to deal with the ongoing public health response to the COVID-19 emergency had been needed and the new framework was an improvement, but it should have had public and select committee scrutiny before being passed by Parliament.

“Allowing just a few days for the usual select committee process would have enabled better consideration of the legislation before it was enacted, and increased its public legitimacy,” Law Society spokesperson Jonathan Orpin-Dowell told the committee.

The Law Society supports the Finance and Expenditure Committee’s post-enactment review, which is an innovative procedure and an opportunity to review and improve the Act.

“The problem however is that time is very short to allow Parliament to consider and amend the Act before Parliament adjourns on 6 August ahead of the general election – and it is essential any amendment bill introduced to correct shortcomings that weren’t picked up earlier because the Act was passed under urgency, is given proper select committee scrutiny,” Mr Orpin-Dowell said.

The Law Society has therefore asked the committee to report to Parliament at the earliest available date, so there is time for any proposed amendments to be considered and enacted without using urgency, before Parliament adjourns. This is particularly important if powers under the Act need to be used in the event there is a resurgence of COVID-19 cases and New Zealand returns to a higher alert level.

“As is now well known, restrictions in alert levels 4 and 3 impacted on almost every aspect of New Zealanders’ lives, and restrictions on the rights and freedoms of all New Zealanders may be imposed again under the new Act,” Mr Orpin-Dowell said.

“One important amendment is to impose a higher threshold for the making of a section 11 order, that the Minister is satisfied the order is “reasonably necessary” as a proportionate response taking into account wider economic and social considerations,” Mr Orpin-Dowell told the committee.

The Law Society has also recommended other changes to the Act, such as strengthening Parliament’s oversight and scrutiny of orders, and improving New Zealanders’ ability to access orders so they can understand and comply with the law.

It is also important to reconsider the risk threshold for Police to exercise the power to enter premises, including private homes, without a warrant.

The Law Society acknowledges the challenging balance required between enforcement action to prevent the spread of COVID-19, and New Zealanders’ rights under the Bill of Rights Act to be free from unreasonable searches. However, this balance could be better struck in the Act, by reserving the warrantless powers of entry only for cases where a constable has reasonable grounds to believe it is necessary to enter premises to provide a direction to prevent an immediate risk to the life or safety of any person.

More information:

The Law Society’s submission on the COVID-19 Public Health Response Act 2020 is available here.

The COVID-19 Public Health Response Act 2020 is available here.

Media enquiries: Rebecca.Lancashire@lawsociety.org.nz

Background:

The New Zealand Law Society|Te Kāhui Ture o Aotearoa has a statutory function under the Lawyers and Conveyancers Act 2006 to “assist and promote, for the purpose of upholding the rule of law and facilitating the administration of justice in New Zealand, the reform of the law”.

The Law Society is an important participant in New Zealand law reform and has a reputation for making a careful and impartial contribution to law reform, the administration of justice and the rule of law, on behalf of the legal profession and in the public interest.

The Law Society reviews government and Law Commission law reform proposals and makes submissions to Parliamentary select committees on Bills. It also maintains open communication with the government on administration of justice and rule of law issues.

Proposed barrister AML/CFT reporting requirements opposed

Requiring AML/CFT reporting by barristers would impose an unnecessary and duplicative compliance burden that is disproportionate to any risk, the New Zealand Law Society | Te Kāhui Ture o Aotearoa has told the Ministry of Justice’s AML/CFT Exemptions Team.

Commenting on the ministry’s January 2020 draft class exemption notice for barristers, the Law Society agrees with the New Zealand Bar Association’s view that the proposed draft exemption notice does not engage with the fundamental issue of who the ‘customer’ is for AML purposes, in the context of the unique relationship between a barrister and their instructing solicitor.

“Under the intervention rule the customer is in almost all cases the instructing solicitor, not the individual or entity. Accordingly, AML obligations in relation to the underlying client should be recognised as resting on the instructing solicitor only,” the Law Society says.

The Law Society says its view has not changed from its submission of 13 March 2019 that barrister reporting would be an unnecessary and duplicative burden.

“This duplication is also potentially a consumer issue. Many lawyers will be unable to absorb the compliance costs involved in both instructing solicitor and barrister attending to AML requirements (for example, for enhanced due diligence (EDD)) and are likely to have to pass a portion onto consumers.”

The Law Society says it continues to support the preferred approach it set out in its March 2019 submission. Essentially, under its preferred option the requirement to undertake EDD and suspicious activity reporting should rest on instructing solicitors rather than barristers. Information obtained should be available to the barrister on request.

It says this reflects the realities of legal practice and would support the practical operation of the Act. The Law Society also endorses a NZBA request for a meeting with representatives of the ministry, the Department of Internal Affairs, the Law Society and the NZBA to discuss and resolve matters.

COVID-19 crisis requires commitment to fundamental legal system values

Responding to the COVID-19 crisis requires a commitment to the fundamental values that underpin New Zealand's legal system, New Zealand Law Society | Te Kāhui Ture o Aotearoa President Tiana Epati has said.

On 4 April Ms Epati wrote to the Chair of the Epidemic Response Select Committee, Simon Bridges, offering the Law Society's assistance in considering the legal measures needed to meet the COVID-19 pandemic.

She said the Law Society had called together legal experts from its Rule of Law, Human Rights and Privacy, and Public and Administrative Law committees to discuss how the Law Society might be able to help the Epidemic Response Committee and the Government deal with the pandemic.

"Like everybody else in New Zealand, lawyers and the Law Society recognise the danger COVID-19 poses to New Zealanders and the complexity of dealing with this unprecedented state of affairs. Responding to the crisis requires a commitment to the fundamental values that underpin our legal system.

"There is a general acceptance that in times like this, the first duty of government is the protection of its people, and governments might need to use the law in ways we do not normally accept."

This does not mean the rule of law is any less important, she said. In many ways the rule of law is more important now than ever before.

"New Zealanders must accept restrictions in order to defeat COVID-19. However, clarity about the constraints on our usual freedoms of movement and association and on commerce, and clarity about the legal basis for these constraints, is central to ensuring compliance and ongoing public confidence and support."

Important to identify legal foundations

The Law Society considers it important to identify the legal foundations for the various responses by the Government to the epidemic, Ms Epati said.

"The most conspicuous example is the public confusion that resulted from government communications that are now legally impermissible - that is, contrary to law - and activities that, though lawful, are undesirable and discouraged."

Both types of communications from the Government are helpful and necessary, she says - just as in more normal times, not every behaviour needs or can have a criminal or other regulatory response.

"But the law could be clear, clearly enforceable, and able to be easily accessed and understood by all to whom it applies. We anticipate that some of the confusion may be addressed by the most recent order dated 3 April 2020 made under section 70 of the Health Act 1956."

Public access to key documents

She said the Law Society also welcomed the publication of key legislation, orders and other documents on the COVID-19 website. This could be improved further by creating an explicit link between particular practical instructions or directions and the legal basis on which they are made.

"Legal prohibitions should be explicitly identified, as should the consequences of default. All the legal instruments, policy papers and explanations of their legal foundations should be published as soon as they are available, so that New Zealanders can clearly see the justifications for what is being done and the statutory powers being relied upon.

“Recognising that the realities of the current crisis have prevented the normal policy and law-making process, the Law Society believes as time goes on that draft instruments and policy papers should be made available to enable New Zealanders to comment on proposed measures that affect them or in which they are otherwise interested," Tiana Epati said.

"It is particularly important that the values and processes set out in the Legislation Guidelines are maintained as much as possible. People affected should be consulted where feasible. Decisions that affect peoples' rights should be reviewable in some way. Where there are constraints on rights and interests usually recognised by law, sunset clauses are desirable to prompt re-examination of the need for ongoing restrictions."

Scrutiny of legislative instruments

Ms Epati said if the Henry VIII powers in the Epidemic Preparedness Act 2006 are used, Parliament needs to be able to exercise its disallowance power even if it cannot meet as it usually might. Any future statute contemplating more extensive Henry VIII powers should be carefully tailored to provide for public consultation where possible and should be subject to approval or disallowance through the parliamentary process.

Some thought should be given to establishing a role for the Epidemic Response select committee in the process, as well as the Regulations Review Committee, she suggests. Re-convening Parliament also needed to be considered if that could be done in a safe way, before the end of the currently notified Level-4 period, and certainly if it was extended.

Practical suggestions for Residential Tenancy Bill changes

The Law Society has suggested a number of changes that could be made to the Residential Tenancies Amendment Bill. In a submission to the Social Services and Community Committee, it says it does not comment on the policy objectives of the bill but on the practical workability of some amendments and drafting issues.

Its suggestions include:

• A longer lead-in period for the bill to come into force than six months, particularly given the significant additional and new penalties and infringement fines.
• Strengthening the provision stating that landlords “must not invite or encourage” bids for rent, to add the terms “pressure or cajole”.
• Including leases in the list of examples given in the section on proposed “minor changes” to premises.
• Specifying a maximum period in which landlords can prohibit fibre connection if they plan to carry out extensive changes to the premises which the installation would impede.
• Setting a clear timeframe for informing tenants (instead of “as soon as practicable”) if the premises are put on the market.
• Defining the term “harassment” in new section 55A which enables a landlord to apply to the Tribunal for an order terminating a tenancy on the basis of “anti-social behaviour”.
• Clarifying the meaning of “purports” in new section 60AA, which relates to the landlord acting to terminate a tenancy without grounds.

ILANZ election results

The In-house Lawyers Association of New Zealand (ILANZ), has elected office holders for the 2020/2022 period. Sian Wingate was elected President and Grant Pritchard Vice President. The General Committee members are:

• Sian Atkinson, Te Wananga o Aotearoa, Te Awamutu,
• Jodie Flowerday, University of Canterbury, Christchurch,
• Linda Frew, NZ Forest Research Institute Ltd (Scion), Rotorua,
• Benjamin Jacobs, Xero, Auckland,
• Anitesh Ram Govind, Auckland Council, Auckland,
• Lyn Wain, Inland Revenue Department, Christchurch,
• Frieda Winstanley, New Plymouth District Council, New Plymouth.

“Unconscionable” conduct threshold questioned

In a submission to the Economic Development, Science and Innovation Committee on the Fair Trading Amendment Bill, the Law Society expressed its concern that more certainty is needed for the threshold at which conduct is deemed ‘unconscionable’.

The bill introduces a prohibition against ‘unconscionable conduct’ into the Fair Trading Act 1986. The Law Society notes that there is currently no statutory prohibition in New Zealand against ‘unconscionable’ conduct, but the concept of unconscionability has developed in case law and has been applied where the courts have considered it inequitable to allow a party to enforce contractual rights against another party.

It says in the regulatory analysis supporting the bill, three essential features justifying such intervention are that:

• the weaker party has a qualifying disability (eg, age, infirmity, difficulty understanding English);
• the stronger party has knowledge (actual or constructive) of this disability; and
• the stronger party took advantage of this disability to extract a benefit from a transaction.

The Law Society’s submission notes that the bill is based on Australian legislation and conduct can be found to be unconscionable “even if there is no conscious targeting of a vulnerable party”.

“The Law Society questions whether this is justified. For a statutory prohibition backed by serious criminal consequences, we consider that some element of culpability – ie, that the trader knew, or ought to have known, that the person was vulnerable and took advantage of that vulnerability – should be required.”

It says the Legislation Guidelines state in relation to the creation of criminal offences that offences must be defined clearly so that people know what is and what is not prohibited. Therefore, it is necessary to consider exactly what conduct is prohibited by a criminal offence.

“It is notable that the alternative option of prohibiting ‘oppressive conduct’ was preferred by officials. The reasons for this are persuasive ... The Law Society recommends that the committee consider this alternative option and obtain further advice from officials,” it says.

Truncated bill submission time criticised

The Law Society has criticised the short time period allowed for submissions to the Health Committee on the Smokefree Environments and Regulated Products (Vaping) Amendment Bill.

In a submission, it says while the bill was introduced on 24 February 2020, it did not receive its first reading until 11 March 2020 at which point it was referred to the Health Committee with submissions due by 1 April 2020, providing only a three-week submission period for public input.

“The Law Society has previously expressed concerns as to truncated submission timeframes, both in submissions on bills and in recent submissions to the Standing Orders Committee during the 2017 review of Standing Orders and the 2020 review,” it says.

The submission notes that the Standing Orders Committee’s 2017 Report endorsed the Law Society’s observations and indicated desirable time frames for closing dates for submissions. These included generally, a minimum of six weeks, with a lesser “but still realistic” period permissible in exceptional circumstances, and “longer is desirable for large or complex bills”. Sufficient time must be allowed for proper drafting and consideration of amendments and commentaries.

“The Law Society is unable to see why the period for public submissions has been restricted to three weeks. It cannot fairly be described as so urgent as to be exceptional and to justify a period shorter than six weeks,” it says.

Commenting on the bill itself, the Law Society says it agrees with Attorney-General’s Report to the House of Representatives pursuant to section 7 of the Bill of Rights, that the restrictions in the bill on packaging, advertising and promoting vaping products are inconsistent with the right to freedom of expression.

It accepts, as does the Attorney-General, that on the current state of the evidence some restrictions around vaping of the general type set out in the bill are appropriate.

“However, the Law Society endorses the Attorney-General’s conclusion that, on the available evidence, the limits on freedom of expression identified in the report do not meet the standard of being ‘demonstrably justified’ as set out in section 5 of the Bill of Rights.”

Bill provides chance to provide for fair compensation

The Greater Christchurch Regeneration Amendment Bill 2020 is an opportunity to amend the Greater Christchurch Regeneration Act 2016 to provide for fair compensation for the public taking of private property, the Law Society has stated in a submission on the bill to the Governance and Administration Committee.

The Law Society says it considers there is a continuing concern about the need for fair compensation. It recommends including a provision which amends the open-ended ministerial discretion to determine compensation in section 114 of the Act.

“Fair compensation for the public taking of private property is a fundamental constitutional principle. The justification for giving the Minister an open-ended discretion to determine compensation is not clear,” it says.

“The Law Society considers that the bill should amend section 114(3) by repealing the proviso in section 114(3) that the Minister ‘is not limited to determining the amount of compensation on that basis alone’. This would mean that the two matters in section 114(4) which the Minister must have regard to are mandatory, and other considerations would be irrelevant.

“If it were intended that section 114(3) would give the Minister power to award an amount of compensation higher than the current market value and under Part 5 of the Public Works Act 1981, then it is submitted this should be expressly made clear.”

Effects of COVID-19 on visas and visa applications

The convenor of the Law Society’s Immigration and Refugee Law Committee, Mark Williams, wrote to the Head of Immigration New Zealand, Greg Patchell, on 7 April to note lawyer concerns about a number of operational issues arising from the COVID-19 pandemic.

Mr Williams said the committee was very conscious of the enormous pressure and workload on Immigration New Zealand, and it appreciated the updates and announcements it had provided to the legal profession. However, he said there were some operational issues which were likely to present barriers to access to justice.

Deportation and detention of individuals: It would be helpful for INZ to clarify whether deportations scheduled for the period covered by the Epidemic Preparedness (Epidemic Management-COVID-19) Notice 2020 had been postponed or cancelled. Clarification about directions for detained individuals was also sought.

Individuals in New Zealand unlawfully: People holding interim visas which expired before 2 April were requested by INZ to apply for interim visas. Clarification was sought of their status and how complaints from “unlawful” individuals were to be processed.

Time frames: The committee suggested extension of timeframes for a number of applications and certificate validities.

Document and filing requirements: Clarification of the policy for acceptance of uncertified copies of key documents was sought.

I hope you and the ones who matter most to you are safe and well in these uncertain times.

As I write this, the Prime Minister has just announced that Alert Level 4 will continue until midnight on Monday 27 April, with Alert Level 3 running for at least two weeks after that date, so we are well into considerations of what impact this will have on the justice system.

Given the changing nature of things, I want to make my comments here as broad as possible. The past weeks have been challenging, to say the least, but I thank the Heads of Bench for their leadership, the Law Society and legal profession for their patience and of course the ministry itself, all whom have navigated these unsettled waters. Making such disruptive changes to the justice system in a very short space of time is like asking the Titanic to turn on a dime – but I feel that together we have made some significant achievements in keeping essential justice services operating, while ensuring public safety.

The health and safety of all court participants, the judiciary, media and our staff has been paramount since day one. The cleaning regime we have implemented at court buildings across the country has been comprehensive, and I hope it’s given you all the sense that we are looking out for you and doing our best to keep everyone safe inside our buildings. No doubt for those of you who attended court you noticed the proliferation of PPE in our sites up and down New Zealand.

One of the key challenges has been equipping staff with the technology they need to continue their work from their home office – or kitchen table! There are limits to this in our paper-based world. We’ve had to take a good long look at work prioritisation here at National Office to ensure our frontline essential service staff – our case managers and registry staff – had everything they need to continue delivering the highest priority proceedings. Like you, we have all found ourselves discovering any number of new technologies as our work and socialising has gone to Zoom and our lives ever more online.

The extensive use of virtual meeting rooms for hearings, along with other technical and non-technical developments has given us a taste of what things could look like when we emerge from COVID-19. Working closely with the judiciary, we will be looking, where possible, to keep measures that have improved accessibility and efficiency for the justice system.

I want to say thank you to the legal profession for your patience and understanding over the past weeks too. As I said, the challenges are significant and the repercussions for the justice system will be felt for a long time. The backlog of individuals' cases before the courts is growing and, as Chief District Court Judge Taumaunu has noted, this is a burden that impacts on people’s lives. A key focus for us going forward will be to work in close partnership with the judiciary to progress and resolve those active cases as quickly as we can.

Things will certainly look different on the other side of this. I have no doubt it will take a lot of hard work from all involved in the justice sector to get things moving apace again, and I thank you in advance for the important part the legal profession will play in this.

Kia hora te marino, kia whakapapa pounamu te moana.

May the calm be widespread and the ocean glisten like greenstone to show us the way.

Andrew Kibblewhite, Secretary for Justice.

On 17 April the Chief Justice, Dame Helen Winkelmann, and five other Heads of Bench agreed to  Law Society | Te Kāhui Ture President Tiana Epati’s invitation to take part in a special webinar and respond directly to the profession’s questions. More than 2200 members of the profession logged in on the day.

In this edition of LawTalk the Chief Justice and the President pick up some of the threads of that webinar and discuss what transformational opportunities might arise from these extraordinary times.

Ms Epati: Tēnā koe, Chief Justice.  It was great to talk to you recently on the webinar Courts at Level 4 and Beyond.  We had a lot of great questions.  But I want to go back to something you said right at the end which was that it has been really valuable getting the views of the profession and getting views of people who are having to access and use the courts.  As everyone knows, the Law Society, together with the NZBA, CBA, ADLS, and more recently, Te Hunga Rōia Māori and the Pacific Lawyers Association, have been providing you with some collated feedback from the profession on specific issues.  We also extended an invitation to the newly formed Defence Lawyers Association to join our regular meetings.  Can I ask, how else have you been obtaining a picture of what is and isn’t working in the courts at the coalface?

Winkelmann CJ: Tēnā koe, Tiana.  Yes, you’re right, it’s important to get information from a variety of sources and to evaluate it and to respond to it where a response is called for.

The Chief Judge of the District Court and I have found it useful to go to the courthouses and to see for ourselves how they are operating, to see for ourselves what is happening.  We have talked to lawyers, registry personnel, and to the judiciary who are working there during the lockdown.  This gives us good feedback - it’s direct, it’s from people who have experienced working in the lockdown and can tell us what’s going on.  It enables us to make changes where they need to be made.

We hear quite a lot of feedback.  Sometimes it conflicts with what we’re seeing on the ground. So that eyewitness observation is really important to us.

Ideally, we would like to be able to consult the profession in advance of rolling out new plans. That has been a challenge to consult in advance of rolling out different plans for different alert levels because of the complexity of what we are planning for, the short  amount of time we have had to plan, and because the plans have to have built into them the ability to deal with uncertainty.  For instance, we don’t know how long we ware going to be at Level 3, we don’t know how long we’re going to be at Level 2, we have little notice in advance as to the exact nature of restrictions at any level.

The Chief Judge of the District Court and I are visting courts in Auckland this week, and we will be joined by Justice Forrie Miller on one day.  We are making these visits to see how Level 3 is operating. Although we set out our plans in the protocols, we have to be prepared to respond to what we see on the ground and the feedback we get.

Ms Epati: So there’s been a lot of discussion about this as an opportunity to redesign some of our court processes and procedures.  Is there room for a more Aotearoa way of doing things which draws on our multicultural community and bicultural foundations?

Winkelmann CJ: The first point I’d make is that this way that we’re planning for this lockdown and the various alert levels is in itself an Aotearoa way of doing things.  The judiciary is working collaboratively with the profession. We have sought out many voices.  You in particular, have played a critical role in channelling to us a democracy of voices and so it’s not an entirely top‑down kind of planning process. That to me is a very Aotearoa way of operating.

I think you may know that we had plans, before the COVID‑19 alert, to build links into the community, to support bail, sentencing, and rehabilitation processes. That remains the medium‑term priority for the courts.  That will build on this nation’s bicultural foundation, using the strength of iwi and the broader community to deliver better outcomes for all in criminal justice.

COVID-19 stands in the way of that to some extent because it requires people to interact over phones or video connections.  The conception of justice being community‑linked relies upon courthouses situated in communities.  It relies upon face‑to‑face interactions.

We’re also looking in the medium term to reform civil process, a project underway in the Rules Committee (at https://courtsofnz.govt.nz/about-the-judiciary/rules-committee/access-to-civil-justice-consultation/). It launched a major consultation process for the District Court and the High Court. We asked people to bring us their ideas, however radical, as to how we can improve access to justice; how we can improve both the procedural and substantive content of justice so that all people, including those on limited means, the vulnerable, the marginalised, can seek justice from our courts.  That process was to have had a consultation period ending May.  It’s now been extended to September.

What has happened in the last five weeks has shown us that things we believe cannot be changed, that are immutable, can be changed overnight.  Radical change can happen, and happen quickly.  I believe these experiences have increased the appetite of the profession and the judiciary for change.  I have been approached by quite a few practitioners with innovative ideas about how we can take some of what we’re doing in the civil arena under COVID-19 and use it to improve access to justice.

Ms Epati: That leads me into my next question.  I’ve read a lot of articles now that all predict this huge surge in civil work primarily for the High Court post‑COVID and there are all sorts of suggestions about how mediation can flatten the curve, and other suggestions.  So overseas, we’ve seen a range of litigation emerge, from leases to insurance claims, coverage disputes, construction, disrupted supply chains, and more.  Are you seeing the same sorts of trends in Aotearoa?

Winkelmann CJ: We have not seen a significant upswing in any category of work, as a result of the pandemic or emergency.

Ms Epati: I think first of all we have to understand whether all these predictions, are we even seeing that here?

Winkelmann CJ: We’re not.

Ms Epati: We’re not, so I think that’s a really important point to make because everyone’s been proceeding on the assumption we’re just going to be like overseas.  We may not.

The next question is that some lawyers have suggested (as a way of reducing the cases) there was room now for greater judicial persuasion and possibly stronger types of costs sanctions in cases which were prime for mediations and yet go through the whole lengthy court process.

Winkelmann CJ: The courts have always encouraged people to mediate in appropriate cases but on the other hand, we don’t sanction people for exercising their legal rights.  By that I mean we do not impose cost consequences for a failure to mediate. We keep a close eye on what goes on in other jurisdictions and I am aware that some jurisdictions require mediation.  That approach has however been criticised as creating a barrier to access to justice.  It’s just another cost that then becomes associated with the court process.

Ms Epati: So moving to the criminal jurisdiction, again, lots of looking at what’s happening overseas, concern amongst defence lawyers about consideration being given to reducing the number of jurors in jury trials, providing increased discounts for guilty pleas. This was a question that came through the webinar, it was one of the ones we couldn’t get to, reducing the number of trials and effectively forcing remote hearings on counsel and clients. I suppose conversely, the Crown and victims’ rights advocates will be concerned about lots of successful applications for stay based on delay.  So are you able to just let us know, what is the judiciary thinking of in terms of the criminal jurisdiction?

Winkelmann CJ: We are not considering radical change to jury trials.  I am aware of the proposals and discussion in overseas jurisdictions. We are watching their progress and possible implementation with interest.

Given the steps that have been taken in New Zealand to achieve elimination of the virus, we believe that we’re in a different environment to those other jurisdictions,

We are however assessing how jury trials can be carried out under Level 2 because of the possibility that COVID-19 and its associated risks and restrictions will be with us for a period of time.  We are considering practical issues involving summonsing, empanelling, and managing jurors to enable physical distancing.  Some measures might require rule and legislative change, which is beyond the power of the judiciary. And none of this is going to occur overnight.

Ms Epati: The recent publication of protocols for Level 3 was, as you know, met with wide concern about health and safety for criminal lawyers and in fact all court participants.  I don’t think criminal lawyers were actually expecting the amount of court work announced to be permitted.  The impression was that this was essentially business as usual without jury trials.

One of the primary concerns sat around this inconsistency between essentially what the Prime Minister was telling New Zealand about stay at home, there will be really little difference with Level 4, and what appeared to be an increased workload that was coming through the courts.  I wonder if you could just take us through the process for the determination of things like protocols and the decision to begin work again on substantive hearings like judge‑alone trials.

Winkelmann CJ: A great deal of planning goes into the setting of each protocol. The protocols are set by each court having regard to the public health indications from government in connection with the Level alert.

At Level 3, s 7(l) of the latest Health Order makes it clear that people can travel to courts (at http://www.legislation.govt.nz/regulation/public/2020/0069/latest/LMS339029.html). Courts are a category A “business’ for the purpose of that Order, which entitles travel between regions in some circumstances.

These provisions recognise that the courts are neither required nor able to work in an entirely contactless environment on the front line.  When we make plans for the courts, we have to weigh the very vital role that courts play in supporting the rule of law.  While we strive to avoid attendance in person of counsel and defendants, and while we put in place physical distancing and remote technology, on some occasions in person attendance will be required.

We have to bear in mind that there are community safety issues that the courts deal with beyond public health.   For instance, in the area of family violence we have to be able to control the bail status of people adequately so that victims and the community remain safe.

I am aware that some concern centred on the District Court protocols and a sense that there would be a return to business as usual at Level 3. That is not what the protocol provides.

As the protocols for all the courts make clear, the work that the courts can do at the moment is limited by the very real constraints created by the need for physical distancing, stringent hygiene, and limited staff numbers Those constraints mean that some regional courts will continue to operate as if we were still at Level 4. Nevertheless, we are now beginning to step up the work the courts will do and that is possible because of the preparation that has gone on in the last five weeks in terms of planning with the registries, and also the adoption of remote technology.

We can keep numbers in courthouses to very low numbers but only with the assistance of defence counsel. They need to avail themselves of the remote technology that is available, they need to seek to have their client’s attendance excused where attendance is not necessary.

There are also very detailed arrangements within the courthouse to maintain physical distancing and necessary hygiene.

Ms Epati: When these protocols are put together, I understand you work very carefully with the Ministry to know that when you put a protocol in place, the measures that will sit underneath it, all that extra detail that you don’t want to bog down a letter or a set of protocols with, the provision of PPE, cleaning protocols, the security personnel, the extra private security, all that extra stuff that we got from Ministry of Justice representatives when we raise it …

Winkelmann CJ: The judiciary are completely aware of the need, the public health imperatives of the moment, and we do work extremely closely with the ministry to make sure that the courthouses are safe places.  If there is any issue with how we are operating in that regard, we have and will respond to it.  It is simply not possible to capture within the protocols the extent of the arrangements we are putting in place to operate safely in this environment. That would result in lengthy documents which would not assist the profession at all.

Ms Epati: So I want to go back to the more general question around the balance to be struck between kanohi ki te kanohi, which is obviously integral to our model of justice, which has people at its centre, with the increasing use of electronic filing, remote technology, and all the advances that we’ve made during COVID‑19.  Where do you think the balance will ultimately be struck between keeping a people‑centred approach and some of the new tech learning?

Winkelmann CJ: I think the balance will be struck around the interests of justice.  Tech is something the courts should use.  It facilitates access both to procedural and substantive justice in the sense that it facilitates access to the courts but also enables a just outcome. The judiciary has a good sense of where tech should and should not be used.  The use of a phone call or a video call can minimise costs and it can conquer distance, but we know that it can hamper communication, especially with those who are already struggling with communication because of linguistic difficulties, who have cognitive disorders, or because of learning disorders.

We’re also mindful in the civil arena as to whether a digital hearing is appropriate for the particular hearing.  Is it too long, is it complex, does it have cross‑examination?  Underlying all of it is a concern that we maintain a public and dignified system of justice. We must have a system of justice in which the public can see how justice is administered. And when I say dignified, I mean a system of justice in which we afford everybody who comes before us human dignity.  So as you say, Tiana, it’s a kanohi ki te kanohi system of justice.

Ms Epati: Could we end up with a hybrid system where some participants are online and some are in the courtroom?

Winkelmann CJ: I distinguish between a virtual and a remote participation hearing.  Virtual hearings are hearing in which no one is in the courtroom, where everybody’s online. Another way of describing this is a distributed hearing. These are really only suited to short set‑piece things.  I think the experience we’ve had with virtual hearings has been quite frustrating.  That has been exacerbated no doubt by the huge demands on the telecommunications system generally.  But the notion of a distributed hearing is not something I see as having a significant role in the long term in our system of justice.

Remote participation hearings are likely to continue in this system and in the long term.  Remote hearings are when the judge and some of the other participants are in the courtroom, but some are joining in via AVL or other means.  The use of the courthouse as the centre of the hearing means less disruption due to technology and allows the judge to have proper control of the hearing.  You lose some of that control when you have this distributed hearing model.

Even in the case of remote participation in the civil area, it is still has to be addressed on a case by case basis, as the particular issues in a hearing, the particular type of hearing, may not be suited for the proposed remote participation.

At the same, in the long term, I think there will be greater use of remote hearings in the civil arena as the experiences of the last five weeks have forced us all to become more familiar with the technology.

In the criminal jurisdiction there are limitations, which I believe are appropriate, in the Courts (Remote Participation) Act. The effect of these limitations is that courts can only deal on a remote participation basis with criminal procedural matters and not criminal substantive matters without the defendant’s consent (at http://www.legislation.govt.nz/act/public/2010/0094/latest/DLM2600761.html).

In the past, defendants have appeared remotely in their early appearances.  Part of what we discussed earlier about our medium‑term vision for justice, about becoming more community‑connected, is that those initial appearances are important appearances and they should be in person. In the longer term, we are working towards those initial appearances also being in person.  We want them to count in the sense of enabling whanau and community support for the defendant at all stages of the court process. This is difficult to achieve when the defendant is in a police or prison cell away from the courthouse.

Ms Epati: So I’ll finish up with the last question.  I’m really conscious that this has been a challenging time for you and I can say as President of the Law Society, I think the profession forget that we’re in COVID as well.  There’s this wonderful churn of activity and protocols coming out and it’s almost at a point where there’s this kind of idea that we’re not subject to any of the challenges whatsoever either, that people like yourself and I are somehow exempt from having to work from home and having to deal with bubbles and remote technology and all of this, and this is, for you, I think, it’s doubly hard because you’re constantly having to balance what are very weighty public considerations in relation to the courts in particular on top of your job as Chief Justice of the Supreme Court.  So I would imagine you’re still having to get judgments out, corral your rōpū.  So I just want to finish by asking how have you been through this period?

Winkelmann CJ: It has been a once in a lifetime experience – I hope.  My bubble is six working adults: three of my children, one of my children’s partner, so the household is very busy and full.  There’s competition for working space.  There’s competition for bandwidth on the Wi‑Fi too.

There are competing priorities between being Chief Justice of the Supreme Court, and all that entails, and Chief Justice of the judiciary. It is the latter role that has been consuming most of my time over the last weeks. I have focused on ensuring that the courts respond in a way which is coherent for the profession and for other court users. It is important that people can easily understand how all of the courts are operating in this difficult environment.

I have found it helpful in responding to COVID‑19 to have a framework of principles I use as my touchstone in terms of the constitutional role of the courts and the very important values that underpin how our courts operate.  I have also found it helpful to seek advice from my colleagues, who are very knowledgeable, to seek to work collaboratively with the other Heads of Bench, and also to work collaboratively with the profession, and in particular, professional organisations. The profession and its leaders have been so helpful in feeding information to us about the experience of lawyers in our courts, the experience of lawyers generally under these lockdown conditions, and that really has helped us with our response.

Ms Epati: Have you had a day off?

Winkelmann CJ: Not yet.

Ms Epati: That’s hard.  It’s every day for you, it’s every waking moment, taking it all into account.  Thank you for taking the time to talk to me Chief Justice.

Winkelmann CJ: Thank you very much, Tiana.

While this is positive news, we are far from a return to normal with many restrictions still in place. This is another test of the flexibility and adaptability the profession has shown since Level 4 was announced on 25 March. It requires us to continue to rethink the way we do our mahi, and how we can continue to provide access to justice despite constraints on how we can deliver this.

But firstly, I want to acknowledge and thank the outgoing members of our Board: Andrew Logan and Tim Jones for their guidance – and indeed their flexibility and adaptability – over the past four years, particularly during this uniquely challenging time. Tim and Andrew will be staying on for the next six months as observers to assist with Board continuity and transition. In December, David Dunbar stepped in as Wellington observer after Nerissa Barber finished and I thank both of them for their input during their time with the Board.  I also want to welcome our new members: Frazer Barton (South Island Vice-President), Arti Chand (Wellington Vice-President) and Jacque Lethbridge (Auckland Vice-President) who I look forward to working with as we navigate our path through COVID-19 and beyond.

The entire profession has been adapting rapidly and there are many questions and issues that will continue to arise around the pandemic.  More than 13,000 of you have signed up for our free webinars covering some of the key issues around working under COVID-19. Produced with the support of NZLS CLE, the first three, Working Effectively from Home, Property Matters and Remote witnessing of Documents are now available to watch online.

I was delighted when the Chief Justice, Dame Helen Winkelmann, and five other Heads of Bench agreed to my invitation to take part in a special webinar on 17 April and respond directly to your questions. More than 2200 members of the profession logged in on the day.

We recognise the urgent need for on-going guidance, and we will have more webinars to come.

There’s no doubt the past seven weeks have been challenging and not everyone has welcomed the restrictions on how we operate. But let’s not lose sight of the bigger picture. Firstly, these restrictions have meant that to date, no-one has been infected with COVID-19 as a result of their involvement with the courts.  That goal remains as we shift to dealing with more court business.

Secondly, as a profession we share one overarching goal – enabling access to justice. Throughout Alert Level 2 and beyond, we need to continue to adapt so we can stay connected with the community we serve – while also prioritising the health of both the profession and the community.

An increasingly pressing issue now is the sheer number of cases to work through and we need to work on our recovery plan as a priority. This ‘backlog’ involves individual people and there is a human cost to the delays.

We as a profession, have learnt and will continue to learn from this experience. Once restrictions are lifted, there’s no question that we need a return to kanohi ki te kanohi: it is integral to our model of justice, which has people at its centre. However, increasing the use of electronic filing and retaining the use of remote technology, where this is appropriate, improves access to the courts and reduces costs. There could well be positive innovations that COVID-19 has fast-tracked.

So, can we retain some good from this extraordinary time? The Chief Justice was asked this question during our recent webinar and I had the opportunity to ask her this again in a further interview which is included in this edition of LawTalk. But I will end with her first response at the webinar: “What we want to end up with is a system of justice that takes the good of the old and the new, that retains the values of openness and fairness and respect for human dignity [so] that we arrive at a system of justice which is best designed to provide all with access to the protection of the law in our Courts’’.

For the most up-to-date information on the operation of the courts, go to www.courtsofnz.govt.nz

Tiana Epati, President, New Zealand Law Society | Te Kāhui Ture o Aotearoa

The Law Society pointed to a number of concerns with the Business Debt Hibernation scheme and proposed “safe harbours” relating to directors’ duties in the COVID-19 Response (Further Management Measures) Legislation Bill, particularly as the Bill is being passed very quickly with only minimal opportunity for input from stakeholders.

“We are concerned the complexity of the proposed BDH scheme will mean it is effectively out of reach for the SME community and so will not meet the desired policy goals. A solution may be for a shorter and simpler (and so faster) process, aimed specifically at smaller entities, to be formulated. In any event, guidance on the BDH scheme should be provided to assist smaller entities to navigate the scheme”, Law Society spokesperson, Charlotte McLoughlin, told the committee on Friday, 8 May.

The Law Society pointed to other concerns, including directors’ ability to ‘confidently comply’ with the BDH scheme, given the need for directors to make statutory declarations about matters that are inherently uncertain, when such declarations may not be necessary in any event.

“If directors are not able to comply confidently, the uptake of the scheme will be limited,” Ms McLoughlin said.

The Law Society suggested a range of changes to the Bill to improve the effectiveness of the proposed “safe harbours”, including clearer drafting of the safe harbour to section 135 (reckless trading), to better align the conditions of the safe harbour with the substance of the underlying duty, and adding a statement of the statutory purpose of the regime.

“This would help directors to understand, clearly and with confidence, their obligations and what protection they have during the next 18 months,” Ms McLoughlin said.

The Law Society also commented on other parts of the Bill, including the proposal to allow the use of audio links to conduct hearings in Corrections disciplinary and criminal court proceedings. The Law Society supports measures to address current constraints on remote access to hearings, but told the committee there were significant concerns about the precedent of allowing ”audio only” hearings, even on an emergency basis. The Law Society believes these amendments should be deleted from the Bill.

Appearing in a Corrections disciplinary proceeding or sentencing hearing only via audio link does not amount to real and effective participation by the prisoner/defendant, the Law Society said. Efficiency, or the fact that an audiovisual link is difficult to arrange at present, should not trump defendants’ right to effectively participate in proceedings that may impact on their liberty.

“The real purpose of disciplinary and sentencing hearings is to formally address conduct and encourage behaviour change, and this is at risk of being severely undermined if people do not feel engaged in the process,” Law Society spokesperson, Chris Macklin, told the committee.

The Law Society has also pointed to significant practical problems with conducting hearings via audio link, given current resource constraints in the justice sector. If the audio link provisions are retained for the duration of the pandemic period, the Law Society recommends the Bill be amended to require the prisoner/defendant’s consent to the use of audio links for hearings.

This is the Law Society’s second appearance before the Epidemic Response Committee. Information about the first submission, on the Immigration (COVID-19 Response) Amendment Bill, is here

The Law Society’s submission on the COVID-19 Response (Further Management Measures) Legislation Bill is here

The COVID-19 Response (Further Management Measures) Legislation Bill is here.

More information on both Bills is here

The Government of Samoa is advancing a suite of measures – the Constitution Amendment Bill 2020, the Land and Titles Bill 2020 and the Judicature Bill 2020 – and the bills have reached an advanced stage. It is proposed that the constitutional right of Samoans to seek judicial review of a decision of the Land and Titles Court in Samoa’s Supreme Court and Court of Appeal be removed; and that the judicial function of Samoa be split into two separate and potentially competing branches.

“There is understandable concern that this move is likely to adversely affect the rule of law, the position of the Chief Justice and the supervisory jurisdiction in the hierarchy of courts in Samoa. Senior judges in Samoa have expressed serious reservations about the constitutional changes, and the legislative process adopted,” New Zealand Law Society President Tiana Epati says.

The Samoa Law Society is concerned, and its President, Mr Leiataualesa Komisi Koria, has issued a media statement regarding the irregular process and serious constitutional implications. The Samoa Law Society has requested the assistance of the New Zealand Law Society.

The New Zealand Law Society is more than willing to provide assistance and to speak out in support of the Samoan judiciary and legal community, while acknowledging that Samoa is an independent sovereign country with its own legal system, customs and fa’a Samoa.

“Whatever policy aims need to be achieved, it is hard to understand how such constitutional changes can be justified without the explicit support of a large majority of the people of Samoa obtained through proper consultation.  New Zealand and New Zealand lawyers have an interest in the integrity of the legal systems of our Pacific neighbours with whom we deal frequently,” Ms Epati says.

New Zealand has a long and close legal association with Samoa. Many of its lawyers have been educated here. Professor Colin Aikman of New Zealand was one of the most influential figures in the drafting of the Constitution that preceded Samoa’s independence in 1962. There were elaborate consultations over the Constitution and the process took several years.

New Zealand and Samoa share a similar legal heritage. We are both parliamentary democracies essentially based on the Westminster system. Many Samoan laws derived from New Zealand. Shared fundamental principles embedded in both legal systems are of vital importance to the preservation of freedom and good government.

“As President of the New Zealand Law Society, I speak also as a person who is of Samoan heritage.  I came to New Zealand from Samoa at the age of 10. I have learned first-hand in New Zealand the importance of proper process, the rule of law, the independence of the judiciary and the availability of judicial review. These are essential elements of democratic government.”

The New Zealand Law Society has shared its concerns with New Zealand Ministry of Foreign Affairs and Trade.

Tiana Epati,

President

New Zealand Law Society | Te Kāhui Ture o Aotearoa

Prime Minister Tuilaepa responds to NZ Law Society

This follows advice from the Secretary for Justice to the Law Society that the courts and tribunals of New Zealand are considered essential services.

Therefore lawyers required to be involved in priority court and tribunals proceedings, in accordance with the Protocols, will provide legal services to support that essential business. Otherwise, legal services in and of themselves are not essential services, except to the extent they support essential business.

"This does not mean that other legal services must cease for lawyers who wish to continue working.  To the extent that the provision of legal services means a lawyer does not leave their 'bubble', legal services could still be provided. This includes legal services that are otherwise ‘usual’ but also connected to COVID-19, for example helping people organise wills and powers of attorney,” the Secretary has advised.

Email to lawyers and identification

The email, from Law Society President Tiana Epati, says under the current COVID-19 Level 4 restrictions, lawyers who are outside of their homes may be stopped and asked to confirm that they are delivering essential services.

"The provision of legal services is essential to the effective functioning of the courts," she says. "Travel by lawyers for the purposes of attending to priority court proceedings is allowed. This includes travel to police stations and courts for the purposes of taking instructions from clients and attending hearings."

Ms Epati says the email can be shown to Police as proof that the holder is a practising lawyer.

"The New Zealand Law Society | Te Kāhui Ture o Aotearoa also recommends that, when travelling for essential business, a lawyer carries with them photo identification, a business card (or letterhead), and documentation relevant to their reason for travel (eg, court documentation)."

Information about all lawyers who hold a current practising certificate is found on the Register of Lawyers. This is kept updated and shows only practising certificate holders. The email has been sent to all people on the Register.

Ms Epati has written to the Chair of the Epidemic Response Select Committee, Simon Bridges, offering the Law Society's assistance in considering the legal measures needed to meet the COVID-19 pandemic.

She says the Law Society has called together legal experts from its Rule of Law, Human Rights and Privacy, and Public and Administrative Law committees to discuss how the Law Society might be able to help the Epidemic Response Committee and the Government deal with the pandemic.

"Like everybody else in New Zealand, lawyers and the Law Society recognise the danger COVID-19 poses to New Zealanders and the complexity of dealing with this unprecedented state of affairs. Responding to the crisis requires a commitment to the fundamental values that underpin our legal system.

"There is a general acceptance that in times like this, the first duty of government is the protection of its people, and governments might need to use the law in ways we do not normally accept".

This does not mean the rule of law is any less important, she says. In many ways the rule of law is more important now than ever before.

"New Zealanders must accept restrictions in order to defeat COVID-19. However, clarity about the constraints on our usual freedoms of movement and association and on commerce, and clarity about the legal basis for these constraints, is central to ensuring compliance and ongoing public confidence and support."

Important to identify legal foundations

The Law Society considers it important to identify the legal foundations for the various responses by the Government to the epidemic, Ms Epati says.

"The most conspicuous example is the public confusion that resulted from government communications that are now legally impermissible - that is, contrary to law - and activities that, though lawful, are undesirable and discouraged."

Both types of communications from the Government are helpful and necessary, she says - just as in more normal times, not efery behaviour needs or can have a criminal or other regulatory response.

:"But the law could be clear, clearly enforceable, and able to be easily accessed and understood by all to whom it applies. We anticipate that some of the confusion may be addressed by the most recent order dated 3 April 2020 made under secton 70 of the Health Act 1956."

Public access to key documents

She says the Law Society also welcomes the publication of key legislation, orders and other documents on the COVID-19 website. This could be improved further by creating an explicit link between particular practical instructions or directions and the legal basis on which they are made.

"Legal prohibitions should be explicitly identifies, as should the consequences of default. All the legal instruments, policy papers and explanations of their legal foundations should be published as soon as they are available, so that New Zealanders can clearly see the justifications for what is being done and the statutory powers being relied upon."

Recognising that the realities of the current crisis have prevented the normal policy and law-making process, the Law Society believes as time goes on that draft instruments and policy papers should be made available to enable New Zealanders to comment on proposed measures that affect them or in which they are otherwise interested," Tiana Epati says.

"It is particularly important that the values and processes set out in the Legislation Guidelines are maintained as much as possible. People affected should be consulted where feasible. Decisions that affect peoples' rights should be reviewable in some way. Where there are constraints on rights and interests usually recognised by law, sunset clauses are desirable to prompt re-examination of the need for ongoing restrictions."

Scrutiny of legislative instruments

Ms Epati says if the Henry VIII powers in the Epidemic Preparedness Act 2006 are used, Parliament needs to be able to exercise its disallowance power even if it cannot meet as it usually might. Any future statute contemplating more extensive Henry VIII powers should be carefully tailored to provide for public consultation where possible and should be subject to approval or disallowance through the parliamentary process.

Some thought should be given to establishing a role for the Epidemic Response select commmittee in the process, as well as the Regulations Review Committee, she suggests. Re-convening Parliament also needs to be considered if that can be done in a safe way, before the end of the currently notified Level-4 period, and certainly if it is extended.

As this issue of LawTalk is delivered, we are watching the COVID-19 pandemic continue to unfold around the globe.

In New Zealand, our history will record 11.59pm on 25 March 2020 as an historic moment, the exact time our country went into an unprecedented national lockdown to control the spread of this highly contagious virus. The steps being taken by the Government, by the judiciary and courts, and by the Law Society all have one unifying goal – to prevent the spread of COVID-19 and thereby protect all of us, the people we serve, our families and our friends.

While this is undoubtedly the greatest collective fight of our lifetime, now is the time for all of us to keep a cool head and respond to our new circumstances with courage and fortitude. And come together as a united profession.

In the first few hours of putting out the call for volunteers to do pro bono work the Law Society and the NZBA had over 230 lawyers offering their services. Since Level 4 was announced I have been humbled by the collaboration occurring across government, the judiciary and legal organizations to literally paddle the waka in unison. I am truly proud of the selflessness of Law Society staff, volunteers and governors to support the profession and the utter commitment from everyone to help us all see this through. This all gives me confidence we can be united and show the best of ourselves in this extraordinary time. Indeed, it gives me hope that we will not just survive but thrive.

The Law Society is providing, and will continue to provide, guidance and information as soon as it comes to hand, particularly on how to keep the wheels of justice turning. We are doing this in close partnership with other professional legal organizations, the judiciary and government departments to ensure the advice comes from trusted sources, has judicial support (where appropriate) and is consistent.

Regularly updated information is being provided on the dedicated COVID-19 page on our website. Our Family Law Section, for example, have been working hard to provide on-going practical guidance on the vexing issue of obtaining affidavit evidence for without notice priority proceedings. Further guidance was recently provided on filing unsworn affidavit evidence and other topical issues like shared custody arrangements.

We’re also providing additional services aimed at supporting our members. One of these is our new, free webinar series, designed to help you respond to practising during COVID-19 Alert Level 4. We have already run a webinar on working effectively from home during a lockdown; and, a session with the Registrar General of Land and Chair of Property Law Section on property matters arising in this unique time.

A key decision made by the Board since Level 4 was announced by the Government is the expansion of our National Mentoring pilot to the whole of the profession. The pilot has been running successfully for the past nine months in Auckland and Christchurch.

Why mentoring, and why now? Reaching out to another lawyer, who may come from a different part of the profession, or be from a different generation, or area of law and developing a professional mentoring relationship can offer great benefits. It also unites us.

Nobody understands better what it means to be part of our profession than another lawyer, and a professional problem or two shared, and possibly solved, can keep you on track through what will no doubt be an arduous journey for many parts of our profession, country and world.

A national mentoring programme can improve our collective wellbeing, help us stay united, build networks, and connect mentors and mentees so they can develop the sort of adaptive thinking we will all need.

The mentoring programme will be a professional support network that complements the well-established Friends Panel and the free counselling that continues to be provided to the legal profession, and those working in legal offices, via Vitae. In addition to the Friends Panel, mentoring will assist with responding to some of the professional challenges which COVID-19 will throw up. While confidential and individual focused counselling will provide the emotional support needed to build and maintain personal resilience.

As this edition goes to virtual print, I will be arriving at my first anniversary of being President of the New Zealand Law Society (having taken up the role on 10 April 2019).  I can honestly say I have never been prouder to lead the Law Society, and be part of, the profession than right now. My favourite John F Kennedy quote is that “we do these things, not because they are easy, but because they are hard….and they need to be done”. We will do what needs to be done.

He waka eke noa, kia kotahi te hoe o te waka – we are in the same waka and we need to continue to paddle as one.

Keep safe and strong everyone. Our community is going to need us, and we will need each other, in the challenging months ahead.

Tiana Epati, President
New Zealand Law Society | Te Kāhui Ture o Aotearoa

“The High Court Te Kōti Matua o Aotearoa is our only court of general jurisdiction. It has been part of our country since 1841. The Chief High Court Judge is responsible for ensuring the orderly and efficient conduct of the High Court's business, and that is an important role which demands someone with a comprehensive understanding of the judicial role, and of the needs of everyone who is touched by our justice system.

“Justice Thomas’ time as a District Court Judge will add to the depth of experience as a member of the judiciary in two of the busiest courts in Aotearoa. In her time as a lawyer she worked in private practice here and abroad and also as an in-house lawyer. Her work in establishing the Special Circumstances Court in Wellington to take a non-adversarial and inclusive approach to homeless offenders demonstrates we have someone who will bring practical experience, insight and compassion to the role.”

Ms Epati has also paid tribute to the Chief Judge Justice Venning who has resigned from the role to return to full-time judging.

“Since his appointment to the High Court as a Master – now Associate Judge – in 1995, Justice Venning has spent 25 years on the High Court bench.  From 1 June 2015 he has been Chief High Court Judge. This has been a time of change in all courts, and he has overseen developments in electronic filing and delivery of documents as well as introduction of the Commercial Panel under the Senior Courts Act 2016, implementation of the High Court Rules 2016, and centralisation of High Court circuit work.

“His contribution to our justice system and to our highest court of first instance is applauded. As our country battles COVID-19, his leadership of that court has been visible and authoritative. It is pleasing that he will remain a member of the High Court judiciary after his retirement as Chief High Court Judge.”

LawTalk will be distributed to all practising lawyers in an email, providing online links to most articles and also a flipbook of the whole magazine as well as a PDF version.

The printer of LawTalk, Blue Star, has been designated as providing essential services, but the printing and distribution by post or DX of this magazine does not constitute an essential service. Most lawyers are also no longer working at the address held by the Law Society's Registry - which is used for distribution of the printed magazine.

The April issue retains the design and layout of the hardcopy version and we hope that readers will find it as informative and useful to the practice of law as the 937 issues previously delivered in hardcopy.

It is not possible to distribute LawTalk directly to those who are not practising lawyers. However, the magazine will be freely available as usual on the Law Society's website.

The Law Society is working with the New Zealand Bar Association to provide a list of lawyers to community law centres.

Law Society Chief Executive Helen Morgan-Banda says expertise is particularly sought in the following areas:

• Employment;
• Family: shared care arrangements;
• Immigration; and
• Tenancy matters.

"If you have the relevant expertise and are willing and able, please fill out this expression of interest form provided by the NZ Bar Association. You will be asked to confirm your availability on the form," she says in an email from the Law Society to the legal profession.

"This information will then be provided to Community Law Centres for follow up."

The opinion was prepared by Auckland barrister Paul Collins. The Law Society has informed the Ministry of Justice of this approach and has also referred it to the Rules Committee for its information.

The memorandum addresses the concept of remote administration of oaths and declarations, including the attestation of affidavits by oath or affirmation, in circumstances of the Pandemic Level 4 mandatory self-isolation currently in force in this country.

The difficulty arises because the legislation governing the administration of oaths and declarations, and the swearing or affirmation of affidavits, contemplates the deponent being in close physical proximity to the administering person.

Included with the opinion is a sample certificate for downloading. This can be adapted as required.

The Law Society has been considering options to address issues related to the administration of affidavits and statutory declarations in circumstances of mandatory physical distancing, Chief Executive Helen Morgan-Banda says.

"An option has been identified which could provide a workaround in appropriate circumstances, without requiring amendment to the Oaths and declarations Act or High Court Rules.  We expect  guidance on this for the profession to be available very soon," she says.

COVID-19 Powers of Attorney and Enduring Powers of Attorney – remote witnessing

Ms Morgan-Banda says the Law Society has been in discussions with the Ministry of Justice about whether regulatory changes could be made to allow for powers of attorney and enduring powers of attorney to be witnessed remotely, subject to appropriate safeguards.  She says the ability to witness them electronically is expressly excluded under the Contract and Commercial Law Act 2017, Schedule 5, Part 3, para (e).

The Law Society has contacted all trust account supervisors with information on the process around the coming deadline.

"With the end of month approaching, many practitioners will be questioning whether they will still need to submit their monthly trust account certificate," Law Society Chief Executive Helen Morgan-Banda says.

"We appreciate that these are very difficult times and there are issues around access and availability of information, but the March monthly certificate should still be submitted online where possible. The March monthly and quarterly certificate is due on 16 April.

"We quite understand that the normal procedures undertaken in the monthly reconciliation of your trust account may be limited. If you are unable to reconcile your trust account or are doing so in a limited capacity please note that on your certificate. This will give us visibility and allow us to assist where possible. "

Ms Morgan-Banda says several trust account software systems also allow remote access so the Law Society suggests contacting the supplier of these to see if that is possible.

"Ensuring your trust account remains reconciled and continues without issues is an important part of your business continuity planning," she says.

The Section recommends use of a new clause to amend existing Agreements for Sale and Purchase or Auction Agreements due to settle during the Level 4 lockdown (below).

In an email bulletin to members, Section Chair Duncan Terris says it supports the Government’s current endeavours to limit the movement of people, and encourages property lawyers to do what they can to help achieve this end.

"It remains unclear at the time of writing if property lawyers are providing an ‘essential service’ under Level 4, following the Chief Justice’s message on 23 March on the arrangements for courts following the rise in COVID-19 alert level. The Law Society is seeking clarification regarding what other activity will fall under the definition of essential business, and we are in ongoing discussions with the Minister’s office and the Registrar-General of Land," he says.

"Unfortunately, the vast majority of transactions due to settle over the next four weeks of Level 4 lockdown will most likely have parties that are not in a position to settle. Even if the prerequisite documentation has been attended to, moving companies will not be operating so vendors will be unable to give vacant possession; equally purchasers will have no means of moving their own furniture. Any such relocation will likely be a breach of the Level 4 lockdown requirements.

"Even if property lawyers can continue to operate, there are many factors outside their control that might significantly impact on the practicalities of settlement, such as:

• Key personnel in law firms being in self-isolation.
• Clients overseas in isolation who cannot access documents.
• Clients unable to sign documents (e.g. elderly clients who might struggle with technology).
• Furniture removal firms unable to operate due to lockdown.
• Inability to have services such as electricity/gas etc connected."

Property Law Section’s recommendation

For these reasons, Mr Terris says the Property Law Section recommends using the following clause to amend existing Agreements for Sale and Purchase or Auction Agreements due to settle during the Level 4 lockdown:

“The parties agree that settlement is hereby deferred to the 10th working day after the Government reduces the Covid-19 Level to Level 2 or below, or to such other date as may be mutually agreed. For the sake of clarity neither party shall have any claim against the other in relation to this deferral.”

He says part of the rationale for this recommendation is that it is arguable that ‘days’ for the duration of the ‘Level 4’ status are not ‘working days’ in terms of the Agreement for Sale and Purchase. Irrespective of whether that is subsequently held to be the case, the Property Law Section stands by the above recommendation.

"Where other circumstances exist, the parties may mutually agree to adopt alternatives that suit their particular situation. For example, a purchaser may wish to settle to avoid a change in circumstances in the future that may result in a lender reassessing availability of funds. Again, that would require the vendor’s agreement," Mr Terris says.

Conclusion

"We recommend that that above approach be adopted, to avoid lengthy arguments and potential litigation. The other major event in recent times that had similar implications was the sequence of Canterbury earthquakes. Experience from that time shows that collegiality and goodwill between parties led to the best outcomes for all concerned until normal business was able to resume. To that end, the Property Law Section asks that practitioners show true consideration to their colleagues, while balancing client interests. The clear message from Prime Minister Jacinda Adern is to “be kind” to one another, and the same applies in our professional dealings during this unprecedented time.

"We will provide further updates as any new information comes to hand in this rapidly evolving environment."

The Law Society's Property Law Section acknowledges the very real and practical problem now where clients are unable to give vacant possession, even if they are ‘ready willing and able to settle’ in all other respects.

The Property Law Section Executive Committee is evaluating the options available to lawyers and their clients, and it is aiming to publish guidance to the profession in the next 24-36 hours.

In the meantime, some information information is available at the following links:

• Specifically relating to property.
• More generally from the Law Society.

The New Zealand Law Society | Te Kāhui Ture o Aotearoa is also seeking urgent clarification around the definition of essential services and we will update the profession as soon as possible.

We offer a busy calendar of events and professional development opportunities as part of our work to support the law profession. While these are important, the health of our staff, members and the general public is always our top priority.

From Monday 23 March, we have made the decision not to hold any public events until further notice. However, we will make use of teleconferencing and video technology to continue to deliver our services where possible.

We have not taken this decision lightly but believe it is the only responsible course of action due to the rapidly changing nature of the pandemic.

Our individual branches and sections will be liaising with their members to ensure they aware of these changes and offering alternatives where possible.

If you have any questions, please contact your branch or section.

NZLS CLE Ltd not affected

Please note that this decision does not affect NZLS CLE Ltd. For more information on their events, please go to their website.

We thank all our members and the public for your patience and understanding at this time.

"In these uncertain times, it is important we look after our own mental health and that of our legal staff.  In February this year, the Board approved the extension of our free Legal Community Counselling Service pilot through to February 2021," Ms Epati said.  

"Anyone who works in a legal workplace can contact Vitae, one of New Zealand’s most experienced providers of workplace wellbeing services to receive up to three solution-focused counselling sessions with trained and accredited clinicians (counsellors, psychologists or psychotherapists).  The service is individual and confidential and it is available every day of the year, and every hour of the day.  You can access the free service in one of three ways:

• Free calling Vitae on 0508 664 981;
• Filling out an online referral; or
• Download the Vitae NZ app from the App store or Google Play.

"When contacting Vitae please ensure you mention you are accessing the Legal Community Counselling Service."

Ms Epati said she will be providing more updates in the coming weeks about other steps the Law Society will be taking to support the profession and staff.

"In the meantime, wishing you all ease and strength as we work our way through lots of hand-washing, social distancing and working remotely to figure out this next chapter together."

The Law Society is closely following all official guidelines and advice that continues to be provided by the Ministry of Health.

The World Health Organisation has declared COVID-19 a pandemic.

The ministry advises New Zealand has five confirmed cases based on positive test results and two probable cases of COVID-19.

“The ministry’s advice is that a widespread outbreak is unlikely and there are processes in place for people visiting New Zealand from overseas and some of these people have been asked to self-isolate. We applaud and support the vigilance of the Ministry of Health,” says Law Society Chief Executive Helen Morgan-Banda.

"The ministry says washing your hands thoroughly is one of the best ways to help prevent the spread of diseases such as COVID-19. But while hand washing is something we all do, most of us are not doing it effectively. This how to video that featured on Radio New Zealand is an excellent resource."

Another key concern with relation to COVID-19 is the effect on businesses and the legal profession employs many people who are directly involved one on one with clients as barristers and solicitors or to larger business groups as legal advisors.

The Law Society is closely following the advice provided by the Ministry of Business, Innovation and Employment and would encourage the legal profession to also do this.

“We are all in this together in that COVID -19 is affecting how all of us carry out our daily work. We are closely following the practical workplace advice that is coming from Government agencies,” says Law Society Chief Executive, Helen Morgan-Banda.

Law Society President Tiana Epati said the review was launched in response to the constraints the current Lawyers and Conveyancers Act 2006 places on the Law Society’s ability to be transparent about our complaints process, and to deal with a broad range of unacceptable behaviour, including complaints of sexual harassment and bullying within the profession.

Ms Epati this week announced the seven-member steering group who will develop a terms of reference for the Law Society’s review of the Act.

The steering group will be chaired by Whaimutu Dewes. Mr Dewes, of Ngāti Porou and Ngāti Rangitihi descent, has worked as a lawyer with the Ministry of Justice. He is now a professional director currently involved in the energy, forestry, seafood and agribusiness sectors, with a strong interest in the role of economics and governance in New Zealand and Māori economic development. He is a member of the board of Contact Energy and the Chairman of Ngāti Porou Forests, Aotearoa Fisheries and Sealord Group and Ngāti Porou Seafoods. He is also a member of the Major Outsourced Contracts advisory board to the Department of Corrections.

The other members are former Consumer New Zealand Chief Executive, Sue Chetwin; Otago University Associate Professor, Selene Mize; Chief Legal Adviser at the Ministry of Business, Innovation and Employment, Ann Brennan; barrister Paul Collins and Wakatū Incorporation Chief Executive, Kerensa Johnston. The Law Society Board’s independent observer, Jason Pemberton, is also on the group.

“We are delighted to have appointed a group of high-calibre individuals with a strong and varied skill base. They bring substantial credibility to this important work,’’ Ms Epati said.

The group’s main task is to provide the Law Society with a comprehensive terms of reference. The terms of reference will then form the basis of the substantive review, she said.

“It’s important to ensure the terms of reference is sufficiently wide and forward looking. The steering group will consult widely with both the profession and stakeholders to produce a terms of reference that identify the main areas of representation and regulation that need to be addressed in the review.’’

Everyone will have an opportunity to respond to the steering group in some way, Ms Epati said. More information about this will be shared soon.

Members of the Steering Group

Whaimutu Dewes (Chair)

Whaimutu Dewes.

Whaimutu Dewes, of Ngāti Porou and Ngāti Rangitihi descent, is constantly reminded of the strictures of his elders to realise the aspirations of the people for the generations that follow. He has an intense interest in the role of economics and governance in New Zealand and Māori economic development. He has worked as a lawyer at the Ministry of Justice and is currently a member of the board of Contact Energy and the Chairman of Ngāti Porou Forests, Aotearoa Fisheries and Sealord Group and Ngāti Porou Seafoods. He is also a member of the Major Outsourced Contracts advisory board to the Department of Corrections. Previous directorships include the Ngāti Porou Holding Company, Housing New Zealand, Television New Zealand and the Advisory Board to the Treasury and to AMP. Whaimutu has also held senior management roles at Fletcher Challenge and the Department of Māori Affairs. In the course of his career, Whaimutu has been instrumental in developments in New Zealand constitutional law, particularly the recognition of property rights of Māori people secured under the Treaty of Waitangi and setting up the governance and execution structures to realise the economic outcomes from that process. He has also negotiated long term and significant joint venture arrangements and now oversees joint ventures between international and Māori companies; in the fields of forestry and carbon sequestration as well as seafood harvest and marketing globally. A strong advocate of the revitalisation of te reo Māori, Whaimutu regards the fact that he and his wife Judy have raised their children to be fluent in both Māori and English to be one of the highlights.

Sue Chetwin

Sue Chetwin.

Sue Chetwin is the former Chief Executive of Consumer New Zealand, a role she held for almost 13 years, and is widely recognised for her work as a consumer advocate. Sue joined Consumer New Zealand after more than 25 years in print journalism. At various points in her journalism career, she has been editor of all of the country’s Sunday newspapers. She is a member of the Banking Ombudsman Scheme and on the boards of both the Financial Markets Authority and the Food Standards Australia New Zealand Authority.  Sue is currently chairing a review of the .nz domain names space for InternetNZ.

Selene Mize

Selene Mize.

Selene Mize is an Associate Professor of Law at the University of Otago in Dunedin.  She has a BSc from Northwestern University and a JD from Stanford Law School.  Prior to shifting to New Zealand in 1985, she clerked for the US Courts of Appeals in New York, and then practised law in the media litigation department of a major international law firm. Selene is a past fellow of the National Institute for Teaching Ethics and Professionalism, and has trained judges through the Institute for Judicial Studies and mediators for the Samoan Lands and Titles Court. She has served on the Executive Board of the International Association of Legal Ethics, co-organised the Australia-New Zealand Legal Ethics Colloquium in 2012, and has contributed to a number of international working groups on regulating lawyers. She was the New Zealand Law Journal's commentator on Legal Ethics from 2010-2018. Recent publications have focused on the discipline system for lawyers, and the balance between self-regulation and government oversight of the legal profession in New Zealand.

Ann Brennan

Ann Brennan.

Ann Brennan is Chief Legal Advisor at the Ministry of Business, Innovation and Employment, a position she has held since May 2013. She is responsible for the provision of all legal services to MBIE as well as MBIE’s integrity and privacy functions. Ann leads a team of about 90 lawyers and technical specialists who support a broad and diverse business focused on growing the New Zealand economy to provide a better standard of living for all New Zealanders. In addition to general management experience, Ann has considerable governance experience as a Board Secretary, Director and member of a range of Government governance and advisory Boards. Early in her career Ms Brennan was a litigator with Kensington Swan and Chapman Tripp. While working predominantly in the commercial area, Ann has enjoyed a variety of work at all levels. A one-year stint at Westpac as Senior Counsel turned into six years. In 2007 she was appointed General Counsel of the Public Trust where she was a member of the executive team and responsible for the legal, risk, compliance, regulatory affairs and customer quality functions. With over 25% of New Zealand lawyers being employed in-house, Ann believes it is important that this cohort contributes to, and is supported by, the regulatory framework and lawyers’ professional body.

Paul Collins

Paul Collins.

Paul Collins is a barrister at Shortland Chambers, Auckland, with wide experience in areas of professional discipline and regulation in the legal profession. He has prosecuted numerous cases in the Disciplinary Tribunal and has appeared in the Senior Courts in cases involving discipline and regulation of the legal profession. He was a convenor of the National Standards Committee until his nine-year tenure expired and has been involved in Standards Committee and Practice Approval Committee training since the outset of the Lawyers and Conveyancers Act. He is a contributing author to Professional Responsibility in New Zealand (LexisNexis) and was consulting editor for The Laws of New Zealand: Lawyers and Conveyancers.

Kerensa Johnston

Kerensa Johnston.

Kerensa Johnston, of Ngāti Tama, Ngāruahine and Ngāti Whāwhakia descent, is the Chief Executive of Wakatū Incorporation. She has worked as a solicitor in the private sector and as a legal academic in the Faculty of Law, University of Auckland, where she specialised in Māori legal development, public law, land law and as a barrister. Kerensa has a BA in History and an LLB from Victoria University and a Master of Laws in International Law (First Class Honours) from the University of Auckland. She is the Chair of the board for Ngā Pae o te Māramatanga, the Māori Centre of Research Excellence. She is a member of the Association of Corporate Counsel, ILANZ, the in-house lawyers’ section of the Law Society, and Te Hunga Rōia Māori o Aotearoa.

Jason Pemberton, Law Society Board independent observer

Jason Pemberton.

Jason Pemberton is an independent director, entrepreneur, and multidisciplinary artist based in Ōtautahi Christchurch. He was instrumental in the establishment of the Student Volunteer Army that arose in response to the 2010-2011 Canterbury earthquakes and now manages a small portfolio of governance and teaching roles with charitable, regulatory, and purpose-for-profit organisations. In late 2018, Jason joined the board of the New Zealand Law Society as an independent observer, the first non-lawyer at the governing table in its 150-year history. Jason's professional background includes emergency management, sales, community development, adult education and music, having initially trained in human resource development and psychology. He is a natural communicator and facilitator, described as having an energy that inspires and recharges people.

The New Zealand Law Society | Te Kāhui Ture o Aotearoa says these changes would add unnecessary confusion and inconsistency.

The Law Society has presented its submission on the Protection for First Responders and Prison Officers Bill to Parliament’s Justice select committee, saying the member’s bill is unnecessary and should not proceed.

“The bill seeks to provide greater protection to first responders and prison officers, by creating a new criminal offence and expanding existing offences. While this is an understandable aim, it is not necessary to amend legislation to achieve it,” Law Society spokesperson David Neild says.

“New Zealand’s criminal statutes already include specific offences for assaults on police and other responders, and the courts have a discretion to take the status of the victim – police and prison officers, and emergency health or fire service personnel at emergency scenes – into account as an aggravating factor at sentencing”, Mr Neild says.

The Law Society says the new offence, with a maximum penalty of 10 years’ imprisonment, would also introduce unnecessary and unhelpful complexity in sentencing.

“It would double the maximum penalty for one type of assault (injuring with intent to injure) but not for other assault offences where the victim is a first responder or prison officer. The Law Society considers this is not justified,” Mr Neild says.

“It would be preferable to use the current legislative mechanisms to treat the victim’s status as a first responder or prison officer as an aggravating factor, which can then be applied to the full spectrum of assault charges”.

The Law Society also questioned the bill’s scope and terminology, including the justification for limiting the protections to a specific group of ‘first responders’. If the bill is to proceed, advice and drafting assistance will be needed to ensure the law changes are in fact fit for purpose.

“However, the Law Society considers the bill is fundamentally unnecessary and recommends that it not be enacted. If amendment of New Zealand’s criminal law is considered necessary, the better course would be for the government to introduce a bill so that the reforms can be properly informed by policy analysis from officials and drafting support from experienced parliamentary drafters,” Mr Neild says.

The Law Society presented its submission on the Secondary Legislation Bill to Parliament’s Regulations Review select committee today and recommended changes to ensure better coverage, and more safeguards on the process for exempting secondary legislation from the usual requirements of publication, presentation and disallowance.

“The bill has an important role in supporting the rule of law – by ensuring that people can easily know what the law is – and upholding the constitutional principle that Parliament is the supreme legislative power in New Zealand. The Law Society considers the bill could be improved in two areas to better achieve those objectives,” Law Society, spokesperson Debra Angus says.

The bill substantially changes the current definition of ‘secondary legislation’, so that in the future, legislative instruments made under the Royal prerogative which are not already listed, will not have to be published and will not fall under Parliament’s oversight. Unlike other secondary legislation, these instruments are made under the Sovereign’s common law powers, not under a power delegated by Parliament.

“This has significant implications. The Law Society has consistently highlighted the need to ensure that all instruments with legislative effect should be published and subject to Parliament’s oversight,” Ms Angus says.

The Law Society, also recommends greater scrutiny of the proposed regime allowing exemptions from the requirement for secondary legislation to be published, presented to the House and subject to Parliament’s disallowance procedures.

“Any such exemptions should be rare. It is not clear that all the proposed exemptions in the bill are justified. The committee will need to be satisfied that each exemption is legitimate and no broader than necessary,” Ms Angus says.

The Law Society also recommends incorporating a reporting system in the bill to ensure that exemptions are properly applied, to provide an appropriate level of transparency.

The Law Society, submission is available here. The bill is available here.

The settlement date is 31 March 2020.

The Law Society moved out of the building in July 2019 after a Detailed Seismic Assessment revealed that part of the building was earthquake prone. While the Law Society has owned the building, which was constructed in the early 1960s, the land it sits on is leasehold and is owned by Wellington City Council.

“We are very pleased to have reached agreement on sale of our former national office to The Wellington Company,” Law Society Chief Executive Helen Morgan-Banda said.

“The building has served the Law Society and New Zealand's legal profession well for five decades.

“The Law Society will be moving into a new national office it has leased in Wellington’s Brandon Street later this year. This is currently being strengthened to 130% of the National Building Standard.”

The Law Society presented its submission on the Sexual Violence Legislation Bill to Parliament’s Justice select committee today and recommended some changes to the bill about the way complainants and witnesses give evidence in sexual violence trials.

“The Law Society supports efforts to ease the burden on vulnerable complainants of giving evidence but is concerned aspects of the bill erode fair trial rights,” Law Society spokesperson Chris Macklin says.

“It is essential this law change ensures all participants are treated fairly, so that justice is not only done but seen to be done and fundamental fair trial rights are upheld”, Mr Macklin says.

“The bill substantially changes the way sexual violence complainants and witnesses give evidence, including by allowing greater use of pre-recorded evidence and cross-examination. It attempts to strike an appropriate balance on difficult issues, but some of the reforms will cause serious difficulties in practice,” Mr Macklin says.

The Law Society believes changes to the bill are needed to ensure that pre-recording evidence does not erode defendants’ right to a fair hearing of the criminal charges against them.

“The Law Society is particularly concerned the reforms will place extra strain on the criminal justice system where resources are already stretched thin. All criminal practitioners – defence lawyers and prosecutors – we consulted expressed grave concerns about delays in trial courts and processes, and system-wide improvement is required before these reforms can feasibly be implemented,” Mr Macklin says.

The Law Society broadly supports the bill’s changes to the way victim impact statements are presented to the court and has recommended some amendments to support this.

The Law Society submission is available here.  The bill is available here.

In November 2019 the Tribunal found Mr Williams guilty of professional misconduct under the Law Practitioners Act 1982. Mr Williams was charged under the legislation which preceded the Lawyers and Conveyancers Act 2006 because the transactions involved occurred before the current legislation came into force on 1 August 2008.

The Tribunal found that Mr Williams had been acting as a lawyer and not a trustee in a number of transactions which started after he was engaged in the late 1990s to assist a client with relationship property issues and preparation of a will. Several years later the client’s ex-husband purchased part of a company owned by Mr Williams and another, with Mr Williams retaining ownership of the other part. In 2004 the client engaged Mr Williams to establish a trust of which Mr Williams was sole trustee. Between then and 2008 Mr Williams was involved in a number of transactions where the Tribunal found he was not acting purely as a trustee but also as a lawyer.

The Tribunal said it adopted submissions by the prosecuting standards committee that Mr Williams’ conduct demonstrated an indifference to his obligations as a lawyer. “In respect of the undisclosed and unaddressed conflicts of interest, Mr Williams’ conduct can properly be described as self-dealing on a reasonably significant scale.”

The Tribunal found that Mr Williams’ conduct met the high threshold for constituting professional misconduct under the Law Practitioners Act 1982.

The Tribunal found Ms Pomeroy guilty of unsatisfactory conduct in October 2019 for failing to comply with a request by a New Zealand Law Society lawyers standards committee to produce for inspection her file in relation to a client.

In deciding on an appropriate penalty, the Tribunal noted that an unusual feature was that the conduct forming the basis of the underlying complaint the committee was investigating did not form part of the charge before the Tribunal. Rather, the charge focused on Ms Pomeroy’s approach to the investigation of the complaint by the committee.

While Ms Pomeroy held an honest belief about her refusal to supply the client file, the Tribunal found that she had a duty to communicate with her professional body and that her failure to do so was unsatisfactory.

“We find that Ms Pomeroy’s unsatisfactory conduct is at the lower end of the scale. The conduct was nevertheless not a minor or insignificant breach of Ms Pomeroy’s professional obligations. Ms Pomeroy failed to respond to requests from the committee over a long period. In doing so, she impeded the [Law] Society’s disciplinary processes which are important to the reputation and functioning of the profession,” it said.

The Tribunal considered that unsatisfactory conduct of this nature should result in a fine and censure. As well as a censure and a fine of $5,000, Ms Pomeroy is required to pay total costs of $11,472.

“The proposed changes will strengthen our ability to address unacceptable behaviour by lawyers and employees of law practices,” its President Tiana Epati announced today.

Ms Epati says the Board has approved draft changes to the Lawyers and Conveyancers Act (Lawyers:  Conduct and Client Care) Rules 2008 (RCCC) and Lawyers and Conveyancers Act (Lawyer: Ongoing Legal Education Continuing Professional Development) Rules 2013 (CPD Rules) (CPD), both made under the Lawyers and Conveyancers Act 2008, to provide enhanced and improved rules in relation to:

• the conduct expected of all lawyers and employees of law practices;
• the obligations expected of those who manage and operate law practices;
• the obligations to report unacceptable conduct;
• protections for those who report or experience unacceptable conduct; and
• enable the introduction of mandatory education aimed at reducing unacceptable behaviour.

She said the proposed changes were one of many initiatives being taken by the Law Society in response to concerns from the profession, and wider legal community, about unacceptable behaviour.

The need for such changes were highlighted by the Independent Working Group Report (Working Group Report) chaired by Dame Silvia Cartwright which contained recommendations to enable better reporting, prevention, detection and support in respect of sexual harassment, bullying and discrimination and other inappropriate workplace behaviour within the legal community.

“I am acutely aware of the impact the negative aspects of the legal community’s culture are having on the wellbeing of lawyers and their staff across the profession.

“Substantive change will come with the independent review of the structure and function of the Law Society I announced in October. In the meantime, these changes have the potential to make a significant difference by setting clear expectations for all lawyers which can be enforced if they are breached,” she said.

Drawing on the Working Group’s categories for change, the proposed rule changes are aimed at the following:

• clearer conduct obligations;
• clearer reporting obligations;
• closer regulation of legal workplaces; and
• obligatory education and training.

“With Board approval received, more extensive consultation on the proposed changes will occur with the aim of having the final proposed changes ready for consideration by the Law Society’s Council, and the Minister of Justice, around the middle of this year,” said Ms Epati.

The aim of the internship is to help lawyers to learn about law and the practice of the legal profession in France in an international environment.  The traineeship offers a unique opportunity to create a sustainable professional and friendly network between young lawyers from diverse backgrounds.  It allows lawyers from around the world to meet and compare their different legal systems.

Lawyers receive high quality training with renowned professors and lawyers in Paris.  In November the lawyers receive practical experience in a law firm.  Tuition is fully covered by the Paris Bar. Applicants must be willing to cover other expenses (such as travel, accommodation, and meals).

This year, two versions of the programme are available, one in English and one in French.  From 5 October to 27 November, the lawyers attend a course on the legal system, legal ethics and legal procedures in France at the Ecole de Formation du Barreau, which trains lawyers in Paris.  The English version of the international programme will be run from 4 May to 26 June.

The Law Society can put forward one applicant for each programme.  The requirements of the Paris Bar are that the traineeships/internships are open to lawyers who are less than 40 years of age and fluent in French (for the French International Programme only). Lawyers will be required to hold their own liability insurance and pay their own travel and accommodation costs.

To apply, please send your CV and a letter explaining your interest to Bronwyn Jones by 5pm Monday 2 March 2020 (for the English course) or 5pm 27 April 2020 for the French Programme (this French programme application must include a CV and cover letter in both English and French).

The Law Society has presented its submission on the Asia-Pacific Economic Cooperation (APEC 2021) Bill to Parliament’s Foreign Affairs, Defence and Trade select committee. It has recommended that the role of the armed forces, APEC security staff and foreign protection officers in the APEC 2021 security operation be carefully considered.

“The bill grants significant coercive powers to members of the armed forces and APEC security staff, and departs from the usual constitutional restriction against using the armed forces to support Police law enforcement”, Law Society spokesperson Chris Griggs told the committee.

“If Parliament considers these provisions are necessary for New Zealand to provide adequate security for APEC 2021, the Law Society recommends that appropriate checks and balances are added to the bill, to enable proper public scrutiny of the use of these powers”, Mr Griggs said.

The Law Society has also recommended that public attention is drawn to the fact that as a result of the bill, it will be lawful for foreign protection officers to be admitted to New Zealand with “prohibited firearms” such as semi-automatic weapons of the type banned after the Christchurch mosque attacks in March 2019.

“This may be necessary from a security perspective and it will essentially put foreign protection officers on the same footing as the Police and armed forces, but should be made clear to the public through the committee’s report, consistent with Parliament’s role in a free and democratic society that respects the rule of law”, Mr Griggs said.

The Law Society has recommended that other aspects of the bill also be given further consideration. One question is whether the bill should include a requirement to take into account the principles of the Treaty of Waitangi in relation to the ‘security area’ restrictions to be placed on marae. Another is whether the bill strikes the right balance between the legitimate requirements of the APEC 2021 security operation and the rights of ordinary citizens, in preventing compensation from being available to people whose rights have been infringed.

“If a person exercising powers under the bill has acted unreasonably and not in good faith, the injured party should be entitled to compensation and the bill should be amended to provide for this,” Mr Griggs said.

Mr Kennelly’s undertaking was that he would commit to moving to approved trust account software by 31 March 2018 and that he would undertake appropriate training. However, he resolved problems with the software he was using and decided it was not necessary to change. In spite of advice from the Law Society, Mr Kennelly did not apply to the Tribunal to be released from his undertaking.

The Tribunal found that the breach of the undertaking reached the threshold of misconduct. It said as an experienced practitioner he was fully aware of the obligation but chose to do nothing about it.

However, the Tribunal noted that Mr Kennelly had made a good effort in cleaning up his trust account under the supervision of an independent trust account consultant. It did not oppose him being released from his undertaking despite the fact that he should have sought release, and accordingly released him from it.

The Trust Account Regulation breaches occurred when Mr Kennelly deducted fees on two occasions without sending an invoice, failed to report to clients about funds held on trust and/or on IBD, and failed to reconcile the IBD account. He also breached the Conduct and Client Care Rules by failing to pay to his clients money held dormant for over 12 months in his trust account.

The Tribunal made a finding of unsatisfactory conduct in relation to these. In doing so it took into account the underlying background regarding Mr Kennelly’s trust accounting software, the acknowledged progress he had made in clearing outstanding matters, the improved operation of his trust account, and the fact that Mr Kennelly had taken full responsibility for the trust account.

In its censure the Tribunal said Mr Kennelly had escaped suspension, because of the progress he had made in respect of his trust account.

As well as a censure, it imposed a fine of $20,000, saying the substantial size was to reflect the seriousness with which it regarded Mr Kennelly’s actions in failing to adhere to his undertaking and failing to seek a release when his circumstances changed. Mr Kennelly was also required to pay total costs of $15,061.50. He must continue to employ the independent trust account consultant until 31 January 2021 and to pay all dormant balances.

Mr Healy, who holds a practising certificate issued by the New Zealand Law Society, admitted one charge of being convicted of an offence punishable by imprisonment with the conviction tending to bring his profession into disrepute.

The conviction was entered at the Royal Court of Jersey after Mr Healy pleaded guilty to a charge of grave and criminal assault. He was sentenced to 180 hours of community serv ice, ordered to pay compensation to the victim of £5,000, and ordered to pay costs of £1,000.

The Tribunal said the assault was serious as Mr Healy had a glass in his hand when he struck the victim, who suffered quite serious injuries. However, it said there were significantly mitigating features in relation to the offending, and to Mr Healy’s own personal circumstances.

“The practitioner was able to point to 11 glowing character references, a blemish-free conviction history, the ongoing support of his employers are well as considerable steps taken to demonstrate his remorse and rehabilitation,” it said.

The Tribunal it considered the matter could be dealt with short of suspension. However, it said a censure would be an inadequate reflection of the seriousness of the conduct and there ought to be a meaningful fine, with $8,000 a proper level.

As well as the censure and fine, the Tribunal ordered Mr Healy to pay total costs of $8,665.

“Lawyers around the world have marked the Day of the Endangered Lawyer on 24 January each year for the last decade. Over that time a disturbing number of lawyers in quite a few countries have been threatened, beaten, imprisoned or murdered because they spoke out against human rights abuses or represented unpopular clients.

“Every year New Zealand consistently ranks highly in the World Justice Project’s Rule of Law Index. This is something which all New Zealanders should value. It is a fundamental part of our system of government and justice. We can speak out or criticise our government, our justice system and other institutions without fear of arrest or violence. If we are accused of any crime we can expect legal representation and lawyers can act for clients without fear of being threatened or hindered. Unfortunately, this does not happen in some parts of the world.

“The New Zealand Law Society recognises the courage of lawyers around the world who continue to represent clients no matter what they are charged with, and who speak out against oppression and violation of human rights.”

Mr Forbes says along with some 80 other legal organisations, the Law Society has also recently supported the work and efforts of groups such as Lawyers for Lawyers and Lawyers Rights Watch Canada, both of which stand up for lawyers who are threatened or hindered in their criminal justice and related work.

This year's Day of the Endangered Lawyer has a focus on Pakistan. A report by Avocats Européens Démocrates says over the past several years lawyers in Pakistan have been subjected to acts of mass terrorism, murder, attempted murder, assaults, (death) threats, contempt proceedings, harassment and intimidation in the execution of their professional duties.

The announcement follows a decision to move out of the previous office in the central business district at 26 Waring Taylor Street in July this year after a Detailed Seismic Assessment (DSA) revealed that part of the building was earthquake prone.

“I am delighted to announce that the Law Society’s new Wellington office will be at 10 Brandon Street. The building is currently being strengthened to 130% of the National Building Standard (NBS) which will mean we can provide staff, lawyers, members of the public and other stakeholders with a safe, modern, welcoming, environment,” says Executive Director, Helen Morgan-Banda.

All staff from the Law Society’s National Office, Wellington Branch and NZLS CLE Ltd (Continuing Legal Education) have been working from temporary offices, along with some staff working from home since July.

“Our staff have displayed commitment and resilience during a challenging time to continue to deliver services. I thank everyone for their patience as we have worked through this period of disruption,” she says.

The Law Society Board has approved the sale of the Waring Taylor Street building, which it owns although the land the building sits on is leasehold, and a sales process will commence in the New Year.

In the meantime, if you want to contact the Law Society’s Wellington office please call:

• Lawyers Complaints Service: 0800 261 801
• Registry: 0800 22 30 30
• Continuing Legal Education: 0800 333 111

Or you can email:

• General inquiries: inquiries@lawsociety.org.nz
• Lawyers Complaints Service: complaints@lawsociety.org.nz
• Registry: registry@lawsociety.org.nz
• Continuing Legal Education: cle@lawyerseducation.co.nz
• Accounts: accounts@lawsociety.org.nz
• Property: property@lawsociety.org.nz
• Family: family@lawsociety.org.nz
• ILANZ: ilanz@lawsociety.org.nz

Or you can write to us at:

New Zealand Law Society
PO Box 5041
Wellington 6145

Details of the suspension are now available following the lapse of name suppression.

Mr Mason pleaded guilty to two charges of misconduct brought by a lawyers standards committee. The first charge arose from a conflict of interest when he acted for a client who sold her residential property to Mr Mason’s wife. The second charge related to his failure to pay costs and fines ordered by other standards committees following six prior findings of unsatisfactory conduct.

As well as the 15-month suspension, the Tribunal ordered Mr Mason to pay $15,879 towards the costs of the Tribunal and the standards committee. A High Court decision has since found that the cost award was made in error as it failed to have regard to his financial situation and was effectively and substantially punitive.

Mr Mason ceased legal practice in mid-2018 after his application to the New Zealand Law Society for renewal of his practising certificate was declined.

The supervision and mentoring is to be provided by Andrew McKenzie, a Christchurch barrister. Mr Allan is also required to engage another lawyer to complete a legal aid assignment. Problems with the assignment resulted in the Tribunal finding Mr Allan was guilty of unsatisfactory conduct.

The Tribunal decided that a censure was not an appropriate penalty. It has also ordered that he pay total costs of $20,992.20.

The charges arose after Mr Whitcombe agreed to act for both the seller and purchaser of a property who were well known to each other and to Mr Whitcombe. He failed to obtain informed consent or a waiver from either client, gave neither client advice of the need or desirability of taking independent legal advice, and did not obtain or seek an independent valuation of the property. The agreement which Mr Whitcombe prepared had a number of serious defects and the sale did not proceed as planned.

The Tribunal found that Mr Whitcombe’s actions were neither a wilful nor reckless disregard of the Rule of Conduct and Client Care. Instead, he had blurred the boundaries between his personal and professional relationship and had been too willing to help implement the agreement without considering the implications  of the conflict it provided.

“We considered that this particular conduct, occurring as it did in a small town with few legal representatives available to the parties, was a one-off for this practitioner and not an example of his usual practice, rather than a wilful or reckless ignoring of his obligations,” the Tribunal said.

The level of negligence with the sale transaction was at a high level and must be viewed as relatively serious, it said. However, the Tribunal said Mr Whitcombe was entitled to considerable credit for a career of some 30 years without any previous disciplinary findings against him. He was also practising in a region which was under-resourced with lawyers and fulfilled a role as a diligent practitioner for the community, particularly practising in branches of law which many lawyers avoid. No dishonesty or personal gain was involved, and Mr Whitcombe took responsibility at an early date.

The Tribunal said it was not necessary to suspend Mr Whitcombe. It imposed a fine of $8,000 on the first charge and $2,000 on the second, as well as a censure. He is also required to pay total costs of $17,551.

“The criminal charges against what has been known as the Nauru 19 have been a blight on justice in the South Pacific region for the last four years,” committee convenor Austin Forbes QC says.

“It is almost unbelievable that such events in Nauru should be occurring in 2019. We have 12 people who are on trial for serious offences but who have been unable to get lawyers to represent them. The Nauruan Minister of Justice has also been reported as stating in Parliament that no lawyers in Nauru are expected to provide any assistance to them, no legal aid is available for them, and that they deserve to be convicted and have the maximum penalty according to law imposed.

“It is time for the Pacific community to stand up and make it very clear to the government of Nauru that it cannot continue to flout the rule of law.”

Mr Forbes said the New Zealand Law Society was writing to the Ministers of Justice and Foreign Affairs to urge that the New Zealand Government becomes involved.

“If one country is trampling on what are fundamental legal rights and protections that should be available to all, that does not reflect well on other countries which give aid and assistance to it. New Zealand and Australia in particular should consider what they can do to influence and change the mindset of Nauru’s Government and judiciary.”

The Nauru 19 – now down to 12 – are charged with rioting and disturbing the Legislature after a protest against government corruption outside Nauru’s Parliament in June 2015. The defendants were forbidden to leave Nauru and prevented from speaking out.

The trial finally got underway in 2018 before Nauru Supreme Court Justice Geoffrey Muecke. He granted a permanent stay in the proceedings. His decision was severely critical of the actions of the Nauru Government, finding it had displayed persecutory conduct towards the defendants.

Justice Muecke, a former Australian judge, was later dismissed by the Nauruan Government and in June 2019 the Nauruan Court of Appeal overturned his decision to permanently stay the proceedings. A new trial was scheduled to begin on 29 October before Justice Daniel Fatiaki, a former Chief Justice of Fiji.

Justice Fatiaki dismissed another application for a stay on 8 November and ordered the trial proper to begin on 14 November. Nauru has just two public defenders. One was directed to represent all the defendants but said he was unable to adequately represent such a large group. However, Justice Fatiaki ruled that the trial could be held without the defendants being represented, and a verdict is now expected shortly.

The Queen’s Counsel were announced by Attorney-General David Parker and were chosen under a process that now includes a new standard of demonstrating a commitment to improving access to justice.

“Access to justice is fundamental to the profession and all of these lawyers have worked and made significant contributions in this space. I congratulate them for their immense work and achievement today,” says Law Society President, Tiana Epati.

The new Queen’s Counsel are:

Auckland – Stephen Hunter, Julie-Anne Kincade, Simon Foote, Janet McLean.

Wellington – Nicolette Levy and Karen Feint.

Dunedin- Leonard Andersen.

Rotorua – Jonathan Temm.

"Since the role was established in 1907 just 325 people have been appointed Queen’s Counsel. This shows it recognises the highest standard of excellence for lawyers representing people in court," Ms Epati says.

By the time this issue of LawTalk is published, it will be about six weeks since the Law Society’s Board decided to commission an independent review of our structure and function. This decision, endorsed by our Council, will result in a comprehensive review.

One issue is that the Act sets out a ‘dual’ model for the Law Society, meaning we regulate lawyers as well as acting as a membership organisation for them. There is tension in this model, particularly in the complaints area, which has been brought into stark relief over the past two years. It is time we looked at this and decide whether it is still an appropriate framework for the Law Society.

After the recent effect on public confidence which centred on complaints about the conduct of lawyers against other lawyers, it became clear to me a few months into my presidency that incremental change was not going to achieve the outcomes we need. Particularly where you have an Act which contains a complaints process primarily focused on the protection of consumers.

Dame Silvia Cartwright, who chaired the Law Society Working Group which published its report last year, proposing regulatory change to address sexual violence and harassment, bullying and discrimination in the legal profession got to the heart of the issue when she stated in her foreword:

“Disciplinary procedures designed to protect consumers of legal services simply could not accommodate such sensitive complaints.”

As you would expect, since the report was released there has been a strong focus by the Law Society on strengthening our policies and processes when dealing with sensitive complaints. However, we are very constrained by our existing legislation.

On a strict reading of the Act, behaviour by a lawyer that is unconnected to the provision of legal services may only be subject to the current disciplinary regime if it is at the highest level of misconduct, justifying a finding that the lawyer is no longer fit to continue to practise. This leaves out of reach a wide range of unacceptable behaviour which is damaging to the reputation of the whole profession.

This is not a position we can tolerate as a profession, or that the public will tolerate of us. There is an expectation within the profession and wider society that we will protect those who are vulnerable and hold to account those who are responsible for perpetrating unacceptable behaviour.

This is also an opportunity for the profession to make some fundamental decisions about who we are and, more importantly, who we want to be. The Act sets the framework and purpose of the Law Society. Therefore, in turn, it is necessary to ask ourselves what the purpose of the profession is, and whether we are meeting that purpose.

I have been greatly moved by the level of support for this view from the Law Society Board and the Council, two bodies of elected members who are the primary governance groups for our profession. Many others from the profession have also written to me offering their full support.

There is a whakataukī which says: waiho i te toipoto, kaua i te toiroa; let us keep close together, not far apart.

The verbal and emotional support from the Board and Council to take this courageous step echoes this sentiment. I have never felt us so united as a profession over the need to be strong and look forward.

The process to develop the draft Terms of Reference has begun. There will be plenty of opportunities to have your say as we will consult widely on the framing and extent of the review.

Other jurisdictions, including Ireland, Scotland and England and Wales have all examined their regulatory and membership frameworks, and related legislation, in recent years and each jurisdiction has made varying reforms. We need to look at the changes made internationally and consider what might work best for us in a New Zealand context.

This process of review, and any subsequent reforms, will outlast my presidency. Which is why having support from leaders in the profession is pivotal to any future reform.

To quote Barack Obama: “Change will not come if we wait for some other person or some other time. We are the ones we’ve been waiting for. We are the change that we seek.”

Tiana Epati
President, New Zealand Law Society

The department has established this forum as a communication pathway with representatives of the sectors it supervises under the AML/CFT regime. The Law Society says it welcomes this initiative by the department.

The IAG meets quarterly and was established in August 2019. Members include representatives of peak industry bodies who come together to share knowledge and discuss common AML/CFT compliance challenges facing their sectors. The intention is to develop understanding between the DIA and the supervised sectors and to work together to find constructive solutions.

The forum also provides co-design opportunities on engagement and guidance programmes. Peak industry bodies are able to share general information and updates from the forum with their supervised sectors.

The Law Society says it looks forward to continued engagement in the IAG and the opportunity it provides to assist lawyers with meeting their AML/CFT obligations.

Lawyers are encouraged to provide feedback to the Law Society about specific AML/CFT concerns facing the legal profession via our dedicated email address nzls.aml@lawsociety.org.nz.

The Law Society has presented its submission on the Terrorism Suppression (Control Orders) Bill to Parliament’s Foreign Affairs, Defence and Trade select committee and has recommended a number of significant changes.

The bill introduces a regime for control orders that may impose serious restrictions on people coming into New Zealand who are suspected of participating in terrorism-related activities overseas, without fundamental protections provided by New Zealand’s criminal and human rights laws.

Potentially a very broad group of people may be subject to the control order regime, and subject to stringent measures such as residential curfews and prohibitions on employment and having bank accounts, for up to six years. The regime extends to people who have been prosecuted but not convicted for terrorism-related activities overseas.

“The Law Society acknowledges the seriousness of terrorism-related activities and the need to deal expeditiously with threats to New Zealand’s national security. But the control orders would allow significant sanctions to be imposed on people, without any of the protections provided by our criminal justice system – including the presumption of innocence and requiring offending to be established by evidence beyond reasonable doubt,” Law Society spokesperson Professor Geoff McLay told the committee.

“Limitations on individual rights protected under the Bill of Rights Act and international conventions may be justified by legitimate national security interests. However, the Law Society considers such a regime should only be introduced following very careful consideration and evidence justifying it, which has not happened here,” Professor McLay said.

Furthermore, the Law Society is concerned that the apparent urgency surrounding the bill has left little opportunity for proper public and Parliamentary scrutiny.

“We recommend the select committee seeks advice and evidence to justify the wide scope of the bill, including evidence about the workability or otherwise of similar legislation in other jurisdictions,” Law Society spokesperson David Neild said.

The Law Society has recommended the committee considers several changes to the bill, to ensure due process and natural justice.

“Important protections are provided in other areas of the law where the state seeks to significantly restrict an individual’s liberty, and should be provided in this bill,” Mr Neild said.

And if the bill is to proceed, the Law Society recommends that it be subject to review in five years.

Extra-marital affairs were the second main cause, followed by unreasonable behaviour. Another trend identified in the research is the increasing number of separations and section 21 pre-nuptial agreements of those over 50 years old, the so called “silver splitters”.

Produced by business advisory firm Grant Thornton New Zealand and the New Zealand Law Society’s Family Law Section, the research is based on the views of over 250 law practitioners and builds on the previous survey undertaken in 2017.

“The New Zealand Relationship Property Survey 2019 offers many useful insights into the practice of relationship property law,” says Kirsty Swadling, Chair of the Family Law Section.

“The survey results show a significant decrease in lawyers undertaking relationship property work on legal aid. Forty four percent of participants have ceased doing legal aid for relationship property matters in the last two years. This is consistent with concerns about access to justice in the civil courts, publicised earlier this month and highlights concerns about the impact on the public’s access to justice in relationship property matters.  Twenty five percent of lawyers indicated encountering problems due to the inequality of financial resources as between parties to pursue the resolution of their relationship property matters.

“This survey also indicates broad agreement by the legal profession with the Law Commission’s recommendations for reviewing the Property (Relationships) Act 1976. This includes a recommendation that if one partner owned the family home before the relationship, only the increase in value during the relationship should be shared.

“Many lawyers also agree with the Law Commission’s proposed income sharing arrangements after separation where there are children involved or the relationship has lasted more than ten years.

“Lawyers involved in relationship property matters engage a range of experts.  Valuation professionals remain the “go-to” advisors for relationship property lawyers.

“A significant number of practitioners also obtain legal opinions from senior counsel, further enhancing the quality of advice they can provide their clients.”

“This survey is the most comprehensive of its kind,” says Jay Shaw, Partner, Financial Advisory Services at Grant Thornton New Zealand. “It demonstrates that relationship property practitioners continue to undertake some of the most significant legal work for most New Zealanders when it comes to their assets and offer high levels of experience and related expertise in this complex area.

“The survey shows that family lawyers have been busy and are expecting to get busier. It’s great we have this report to help build awareness into the practise of relationship property law and identify the challenges lawyers working in this space and the people they advise are facing”.

The Law Society has presented its submission on the Education (Pastoral Care) Amendment Bill to Parliament’s Education and Workforce Select Committee today. The bill proposes a new mandatory code for domestic tertiary students requiring providers to take all reasonable steps to protect students and it creates a new offence for providers responsible for serious harm to or the death of students.

“Swift action to remedy regulatory gaps that may have been a contributing factor to the recent deaths of students in New Zealand is understandable. However, the Law Society is concerned with the haste in which the Bill has been drafted,” Law Reform Committee Convenor Tim Stephens says.

The Law Society says the new criminal offence, as currently drafted, is very unclear. Although the Departmental Disclosure Statement for the bill says the offence is one of strict liability, the wording of the provision does not suggest that.

“If strict liability is intended, then the section should specify that the defendant will only avoid liability by proving a lack of fault.

“In our view, the committee needs to reflect on whether strict liability is appropriate in these circumstances. The Supreme Court has recently observed that the reverse onus in strict liability offences may need to be revisited in light of the New Zealand Bill of Rights Act,” Tim Stephens says.

The Law Society says it was not clear what constitutes ‘serious harm’ where a breach of the code has occurred, as the wording of the definition of serious harm also appears to cover cases where the breach results in a student being endangered but not physically or psychologically harmed.

In relation to the new civil penalty, the Law Society says the current provision does not expressly state the burden of proof required to establish the alleged contravention.

“The Law Society recommends the committee carefully reconsiders the new offence provisions in the bill, and considers alternative ways of addressing the regulatory gaps,” Mr Stephens says.

Mr Campion had been found guilty of unsatisfactory conduct by the Tribunal on 19 July 2019 ([2019] NZLCDT 20). There were three sets of charges, under the Law Practitioners Act 1982 and the Lawyers and Conveyancers Act 2006. They alleged a large number of professional failures relating to the administration of estates, and of trusts. Some of the alleged failures involved an examination of Mr Campion’s dual role as a lawyer and a trustee.

The Tribunal noted that Mr Campion does not currently hold a practising certificate. It said he was elderly and in poor health at times. However, it said his conduct in the course of the disciplinary proceedings had deprived him of potential mitigating features of remorse and insight.

In considering an appropriate penalty, the Tribunal said it considered Mr Campion’s offending to be at the high end of misconduct. It said the primary aggravating feature was his previous disciplinary history. This extended back to 2012.

The Tribunal accepted the submission of the lawyers standards committee which brought the proceedings that given the extent of Mr Campion’s failures, his extensive disciplinary history, and his failure to engage with the disciplinary process, a suspension from practice was necessary to mark the seriousness of his misconduct.

To properly uphold professional standards, to provide personal and general deterrence and to confirm that the Tribunal would not treat lightly such serious breaches of expected standards, it considered that a suspension of two years was required.

As well as suspending Mr Campion, the Tribunal ordered him to pay compensatory orders of a total of $19,146.38 and total costs of $43,549.