The arrest of the Chief Justice of Papua New Guinea on charges of sedition is a disturbing development for anyone who believes that an independent judiciary is a requirement for any democracy, the New Zealand Law Society says.

Chief Justice Sir Salamo Injia was arrested on 24 May by a group of police and soldiers who stormed the Supreme Court and subsequently charged Sir Salamo with sedition before he was released on bail.

The arrest followed the Supreme Court’s decision that Sir Michael Somare should be reinstated as Prime Minister of Papua New Guinea.

“It is fundamental that courts are able to make decisions and to operate with total independence from pressure by anyone, including the government,” the President of the Law Society, Jonathan Temm, says.

Mr Temm says the Law Society joins with LAWASIA, the Australian Bar Association and a number of lawyers’ organisations in expressing its alarm at the events in Papua New Guinea.

“The institutions and freedoms we enjoy and take for granted in New Zealand are precious and it is vital that we express our support for the rule of law in other jurisdictions when it is threatened,” he says.

The New Zealand Law Society says Government proposals to change the law on prison strip searching are unnecessary and would decrease existing controls on a procedure which must be closely regulated.

The Law Society has presented its submission on the Corrections Amendment Bill to Parliament’s Law and Order Committee. The Bill would allow more invasive procedures and also remove safeguards including requirements for prison officers to obtain managerial approval before strip searching in some cases.

A spokesperson for the Law Society, Frances Joychild, told the committee that the Law Society accepted it was necessary to strip search prisoners to reduce contraband and drug-taking in prison. However, it was universally recognised to be a degrading and humiliating experience and its use had to be carefully controlled.

“We believe there is no justification for the proposed changes. The dramatic reduction in positive drug-testing in our prisons demonstrates that current strip searching procedures are effective,” she said.

“The Minister of Corrections recently reported a reduction from 36% positive drug tests of prisoners in 1997-98 to 5% in the past year. We are also unaware of other contraband entering prisons at greater levels than in the past.”

Ms Joychild says the Bill proposes removing the requirement for a manager’s approval for a strip search where there are reasonable grounds for believing a prisoner possesses unauthorised items. However, this restriction recognises that the impact of strip searching on privacy and dignity requires a high threshold before statutory safeguards can be removed.

“We recognise the difficult environment which prison officers face. However, whatever else they may have done, prisoners remain human beings, entitled to humane treatment. Any strip searching must be restricted to what is necessary to maintain safety, security and order,” she says.

“The dehumanising of prisoners and a blanket authorisation of humiliating searches that has historically characterised totalitarian and repressive regimes is not part of our culture or our legal and human rights heritage.”

The New Zealand Law Society's Family Law Section has sent an email to all New Zealand family lawyers advising them of measures being taken to address issues arising in the Auckland Family Court due to the centralisation of court services.

Family Law Section chair Garry Collin says the advice is possible after a number of meetings and a letter from the Section to the ministry on 23 May. The Section took action after family lawyers reported problems with receiving information from the Family Courts. Their paramount concern was client safety.

He says as a short term solution, the ministry will be

• employing up to 15 additional staff on a temporary basis through to 30 June;
• reassigning staff from areas where there is less work to process incoming mail;
• providing technical training to staff who were moved from another specialist area into the family area to enable them to properly carry out their new roles. A specialist team of staff is being put together to provide this training.

"A team of nine, experienced Family Court staff, from elsewhere around the country, is travelling up to Auckland to cover the positions of those new staff who are receiving the training, and to clear the backlog," Mr Collin says.

"A specialist Family Court trainer has been assigned and some training has already commenced. The bulk of the training will be undertaken in June."

If the backlog has not been cleared by 30 June, the ministry will continue to allocate the additional resource until it is cleared.

Mr Collin says the Ministry of Justice has given an assurance to the Family Law Section that it will provide an update on a weekly basis.

Any family lawyers who have concerns have been asked to email Kevin Robinson at kevin.robinson@justice.govt.nz with details of case/file number and information on the problem or issue. To help the Law Society monitor the situation, these emails should be copied to kath.moran@lawsociety.org.nz.

The Ministry of Justice’s proposed Legal Aid Disbursement Policy Review consultation paper raises concerns that it will be applied inflexibly to Waitangi Tribunal cases, the New Zealand Law Society has said in its comments on the paper.

The Law Society says the proposed policy appears to have been prepared mainly with family, criminal and ACC cases in mind, but Waitangi Tribunal cases are different in nature and longevity.

“The disbursement policy will therefore need to be able to be applied with a degree of flexibility to ensure efficiency and fairness for both the ministry and legal aid providers within the Waitangi Tribunal jurisdiction,” the submission says.

In other comments on the policy, the Law Society says it opposes a proposal to reduce the photocopy per page reimbursement rate from 20c per page to 8c per page.

“The recently introduced criminal legal aid fixed fees regime makes it impossible for most legal aid practitioners to employ full-time support staff. Outsourcing large bundles of photocopying is often the only option, and this costs considerably more than 8c per page,” it says.

It also points out that Waitangi Tribunal legal aid providers deal with large documents (some many hundreds of pages) including maps and diagrams which cannot be printed in-house. They are therefore dependent on outsourcing some of this photocopying at a much higher rate than 8c per page.

A proposal not to reimburse travel costs for “local” travel (which involves a return trip of less than 100km and/or less than two hours in time) is strongly opposed.

The Law Society points out that it is unreasonable that legal aid providers are not to be paid for two hours when they could otherwise be working. The proposal would also make it difficult to assign lawyers in satellite courts such as Hawera and Ohakune. It would no longer be viable for many legal aid providers to do mental health work because of the need to travel before the hearing day, and the proposal would also have consequences for lawyers’ willingness to travel to prisons to visit clients in custody.

Other ministry proposals for one rate for non-local travel time and restrictions on the size of rental vehicles are also opposed.

The New Zealand Law Society supports the addition of a requirement for gender diversity disclosure to NZX’s Market Rules for the Main Board/Debt Market.

Releasing its comments on proposed changes to the Rules, the Law Society says it supports the proposal to amend Rule 10.5.5 by adding a new paragraph and footnote requiring an issuer to include an additional disclosure in its Annual Report as to gender diversity.

“The Law Society believes that the proposed amendment reflects current evidence that gender diversity on Boards and in senior management can have a positive impact on company performance and on productivity both at the enterprise and national level,” it says.

The Law Society says it is supportive of gender diversity in senior roles in the legal profession. While recent statistics indicate that 62% of law graduates are female and women make up 44% of practising lawyers, women lawyers continue to be under-represented in senior roles in the profession, including as judges, Queen’s Counsel and as partners, particularly in the large commercial law firms.

In February 2012, the average number of women partners in the 10 largest commercial law firms in Auckland was 18%.

“These statistics arguably represent an under-utilisation of the skills of women lawyers, as well as a loss of the educational investment in female law students,” the Law Society’s submission says.

“The Law Society believes that there is a need for initiatives, like the NZX’s diversity reporting proposal, to increase the number of women in senior commercial and corporate roles, including legal roles.”

The New Zealand Law Society’s Auckland branch last night announced the winners of the 2012 Law Society Auckland Branch Lawyer Awards.

The Awards programme recognises five Auckland lawyers who look after the needs of minority groups, show excellence in their first five years of practice, demonstrate innovative ideas and methods in the practice of law and have made outstanding contributions to the legal profession.

Arunjeev Singh, barrister, won the New Zealand Law Society Auckland Branch Bell Gully Outstanding Service to the Community Award.

Rebecca Savage,solicitor, won the New Zealand Law Society Kensington Swan Young/New Lawyer of the Year Award.

Michael Battersby, Principal, won the New Zealand Law Society Meredith Connell Most Innovative Lawyer Award.

Antony Mahon, barrister, won the New Zealand Law Society Minter Ellison Rudd Watts Outstanding Contribution to the Profession Award.

Ian Haynes, consultant, won the Russell McVeagh Lifetime Achievement Award.

Candidates for the Awards were judged by a panel consisting of members of the Law Society’s Auckland Branch Council, and each award winner will receive $2,000.

Law Society Vice-President and Auckland Branch President Chris Moore said that the Auckland Branch Lawyer Awards were launched to acknowledge those Auckland lawyers that go the extra distance.

“We often hear of our colleagues’ achievements in a social or work setting, or too frequently at the end of their careers. The purpose of the Awards is to recognise and appreciate the tremendous contribution that lawyers make to the community in the service of their profession,” he said.

The award winners were announced by Mr Moore last night at a function held at the Northern Club in Auckland.

The Financial Markets Conduct Bill is a wholesale review of the legislation underpinning New Zealand’s financial markets and will have a significant impact on business and the economy, says the New Zealand Law Society.

Given the post-GFC litigation still working its way through the courts, the Law Society believes there should be a review of the new legislation soon after it comes into force. The review would consider whether the legislation is working as intended and ensure that lessons from current court cases can be incorporated.

In its submission on the Bill, the Law Society recommends further work be done on liability and enforcement issues. It is concerned about what it sees as a blurring of the policy decision to move the focus of liability to issuers as a result of retaining directors in the liability framework (albeit with a due diligence defence). 

The Law Society is seriously concerned about the (rebuttable) presumption that materially adverse misstatements have caused a product’s loss in value.

“This provision is novel and unjustified, and is a fundamental departure from civil law norms. The Law Society strongly urges the removal of clause 480 from the Bill,” says Stephen Layburn, Convenor of the Law Society's Commercial & Business Law Committee.

The absence of specific limitation periods for seeking compensatory orders and pecuniary penalties has been noted by the Law Society. It says that shorter limitation periods be carried over from the Fair Trading Act, Securities Act and Securities Markets Act.

The Law Society says it also opposes the potential extension of civil liability for professional advisers in connection with securities offers (such as aiding and abetting provisions), on the basis that this would increase compliance costs and undermine professional relationships.

Four outstanding members of the in-house legal profession were acknowledged at the 25th annual CLANZ conference in Queenstown on 11 May 2012.

CLANZ, the in-house section of the New Zealand Law Society, awarded prizes for top in-house lawyers in the private, public, community and youth categories.

Bronwyn Arthur, Chief Legal Officer Canterbury Earthquake Recovery Authority (CERA) was named the Chapman Tripp Public Sector In-House Lawyer of the Year.

Ms Arthur was required to interpret and apply the brand new Canterbury Earthquake Recovery Act 2011 in a State of National Emergency.

Victoria Spackman, Chief Executive Officer Gibson Group, was named the LexisNexis Private Sector In-House Lawyer of the Year.

Ms Spackman has recently been promoted from Legal and Business Affairs Manager for the Gibson Group to Chief Executive.

Yazmin Juned, Senior Solicitor Housing New Zealand Corporation (HNZ), was named the MAS Young In-House Lawyer of the Year.

Ms Juned's skills were tested in the case commonly referred to as the Pomare litigation. This was a factually and legally intricate case of three HNZ tenants, who were evicted, claimed unlawful discrimination and appealed the case right through to the Court of Appeal, while gaining significant political and media attention.

Cameron Madgwick, Associate General Counsel Contact Energy and chairperson of Community Law Centres o Aotearoa and Wellington Community Law Centre, received the Wigley & Company Community Contribution Award.

A second-time winner of this award, Mr Madgwick first received it for the significant pro bono work he undertook at the Wellington Community Law Centre. Since then he has extended his pro bono work to a national scale with Community Law Centres o Aotearoa. This included introduction of a current proposal to establish a clearing house for pro bono work.

The New Zealand Law Society is concerned that proposed reforms in the Law Commission’s issues paper, Alternative Pre-Trial and Trial Processes: Possible reforms, would erode an accused’s rights within the criminal justice process.

The difficulty with any reform that promotes protection of the complainant within the criminal justice process, the Law Society says, is that the integrity of the process itself is compromised.

Jonathan Krebs, Convenor of the Law Society’s Criminal Law Committee, says that it is a long standing tenet of the New Zealand criminal justice system, that the accused is entitled to a fair trial.

“We need to have a serious look at these proposals which would make fundamental changes to processes that have been followed in our country for a very long time,” he says.

The Law Society is also opposed to the proposal that would see a judge making a decision before a trial as to whether the evidence is sufficient to go to trial.

“This would mean a single person would decide what evidence they wanted to hear, and would then decide the outcome of the case.”

“This is a fundamental departure from the common law adversarial tradition which reflects important values that inhere in our society and legal structures,” says Mr Krebs.

The Law Society supports the Law Commission’s proposal that an alternative resolution process outside of the criminal justice system would resolve certain sexual offence cases.

However, the Law Society says, the process would need further consultation around the specifics before introduction.

The Chief Justice, Dame Sian Elias, has requested the Executive Director of the New Zealand Law Society, Christine Grice, to advise members of a Final Sitting to mark the retirement of Justice Blanchard.

This will be held in the Supreme Court in Wellington on 7 June 2012 at 4:00pm. The sitting will be followed by a reception at the Court.

Justice Sir Peter Blanchard’s retirement marks the end of a distinguished judicial career. He was appointed to the High Court in 1992 and to the Court of Appeal in 1996. He became a member of the Supreme Court on its establishment in January 2004.

After completing an LLM at Auckland University in 1968, Justice Blanchard was awarded a Fulbright scholarship and a Frank Knox Fellowship from Harvard University, where he obtained a further masters in Law. After returning to New Zealand he was a partner of law firm Simpson until his appointment to the judiciary. He was a member of the Law Commission from 1990 to 1993.

Justice Blanchard was appointed a Privy Councillor in 1998 and was awarded the DCNZM in 2004 for his services to the judiciary. He was redesignated a Knight Companion of that Order in 2009.

The Ministry of Justice has agreed to hold a further round of good faith negotiations with the New Zealand Law Society to improve the workability of the new legal aid provider contract.

Under the agreement, a new version will now need to be finalised by 8 June.

Law Society President Jonathan Temm says this was agreed when he met the ministry’s Acting Deputy Secretary Legal Services Stuart White yesterday to discuss deferral of the new contract.

“The ministry has agreed to defer execution of the contract for the 300-plus legal aid providers who have signed and returned it already,” Mr Temm says. “This will allow those providers to benefit from any changes which may come about as a result of any further discussions.”

Mr Temm says the legal profession now has the opportunity to provide further input on amendments to the contracts. Comments and suggestions are welcomed and should be emailed to Bronwyn.jones@lawsociety.org.nz by midnight on 10 May.

The new contract contained many familiar provisions, which were similar provisions to those in the old contract. Mr Temm says some of the new provisions will look familiar to lawyers and firms who contract with the Government to deliver legal services under the standard Government Model Contract – for example, those who were involved in the All of Government legal services tender.

The Law Society consulted with New Zealand lawyers over the initial draft contract, resulting in the ministry making a number of significant changes and concessions to the contract.

“Since then lawyers have brought some additional issues to our attention and we believe that further changes may make the agreement more workable for all legal aid providers,” Mr Temm says.

Mr Temm says the Law Society is strongly encouraging all legal aid providers to read the contract and practice standards carefully, but individual lawyers (or their employers) must decide whether or not they want to sign any legal aid provider contract.

“The Law Society is in discussion with other lawyer representative groups. I would again like to stress that we welcome comments or suggestions from the legal profession for amendments which can be included in discussions with the ministry in relation to the new contract,” he says.

Parts of a policy proposal for regulations under the Marine and Coastal Area (Takutai Moana) Act 2011 might go beyond the scope of sections of the Act, according to the New Zealand Law Society.

This view is expressed in the Law Society’s submission on the Ministry of Justice consultation paper Proposed policy for regulations under the Marine and Coastal Area (Takutai Moana) Act 2011.

The submission considers the regulation-making powers in the Act relating to abandoned structures. It says the powers in section 118(1)(g) are limited to prescribing the steps that a regional council must or may take in inquiring into the identity or whereabouts of the owner of an abandoned structure.

However, the Law Society says the proposed policy for the steps which a regional council must or may take when undertaking such an inquiry appears to cover some matters which may be outside the powers of the section. They therefore could not lawfully be the subject of regulations made under section 118(1)(g).

Matters which may be outside the powers of the section are the part of the proposed process of prioritising inquiries which require regional councils to consult with the Department of Conservation, and a proposal for a de facto certification by the Director-General of Conservation that regional councils have fulfilled their obligations.

“In respect of both these matters the proposed provisions are not only likely to be ultra vires but would also create an unnecessary layer of bureaucratic assessment,” the submission concludes.

“The resultant delay and expense is unlikely to be balanced by any commensurate increase in quality in the decision-making process. The Law Society submits that it would be more appropriate to make consultation with the Director-General or the Minister a matter for the regional council’s discretion, rather than imposing a mandatory requirement.”

The New Zealand Law Society has told the Ministry of Justice that it was not given enough time to look at Family and ACC legal aid fixed fee forms.

In its comments to the ministry on the forms, the Law Society says an opportunity to comment is always appreciated, but this needs to occur within realistic timeframes. It says it was initially given three working days to comment on the 10 forms. After a request from Law Society staff this was extended to four working days.

“A timeframe of three working days to comment is unacceptable. We do not consider this proper consultation,” the Law Society says.

“It is understood that timeframes are also tight for ministry staff when implementing operational changes and new policies and it will not always be possible to give the time the Law Society would need for a public consultation with the full profession. However, a reasonable time must be allowed for people to respond otherwise it is not genuine consultation.”

The Law Society says a consultation timeframe of four working days put significant pressure on its staff and volunteers.

“It causes a quandary – should the Law Society even attempt to obtain comment from its volunteers in such a short time. More importantly, it causes bad will towards the ministry within the volunteer group, who tend to view it as superficial consultation.”

While stressing that it was under severe time constraint, the Law Society makes general comments about the fixed fee forms. It identifies a number of questions about the information and interpretation of information provided on the forms.

Legal difficulties with exercise of the power to remove land from Schedule 4 of the Crown Minerals Act 1991 should be addressed, the New Zealand Law Society says.

The Law Society has released its comments on the Ministry of Economic Development’s Review of the Crown Minerals Act 1991 Regime, discussion paper, March 2012.

While saying it supports the general aims of the paper, the Law Society says the concerns it expressed two years ago about powers to amend Schedule 4 remain. Schedule 4 contains a list of public conservation land for which access to mining cannot be granted by the Minister. Section 61(4) of the Act allows the Governor-General to amend Schedule 4 by order in Council.

The Law Society says in spite of its submission on the matter in 2010, section 61(4) is still in force.

“It is wrong in principle to make substantive amendments to an Act of Parliament by an administrative Order in Council. In our view, this legal difficulty is not cured by the requirement in section 61(5) to consult,” it says in its latest comments.

“The difficulty is not mitigated by section 61(6) or (7). Subject to the very limited exceptions in those subsections, involving ecological areas, there is considerable power to withdraw any and all national parks, nature reserves, scientific reserves, wilderness areas, sanctuary areas, wildlife sanctuaries, marine reserves, and significant wetlands from Schedule 4.”

The Law Society says that following feedback in 2010 the government decided on seven changes to Schedule 4. However, two of these changes give rise to questions.

“The notification of applications to mine on conservation land has merit, but how will it work? Will there be hearings? What effect will notification have on any decision-making?

“Joint decisions by the land-holding minister and the Minister of Energy and Resources concerning the process for approvals of mineral-related access arrangements over Crown land appear to compromise conservation objectives under the Conservation Act 1987.”

As a solution to the problems it identifies, the Law Society recommends the legal difficulties with the exercise of the power to remove land from Schedule 4 under section 61(4) should be addressed in any amendment Bill. Similarly, issues with changes proposed as a result of consultation on the 2010 paper should also be addressed in an amendment Bill.

The New Zealand Law Society has advised all lawyers holding New Zealand practising certificates that renewal forms and invoices for the 2012/13 year will be sent on 4 May 2012.

All lawyers who want to continue to practise after 1 July 2012 need to apply to renew their practising certificate and pay the required fees before 13 June.

The Law Society has advised that subject to approval by the Minister of Justice, the proposed fees and levies for the year 1 June 2012 to 30 June 2013 are (all GST exclusive) $1,262 for barristers and employed barristers and solicitors, $1,647 for barristers and solicitors practising on their own account (without a trust account) and $1,967 for barristers and solicitors practising on their own account (with a trust account).

Subject to the Minister’s approval, the fees in each case are a $22 (GST excluded) increase over the current year.

All current practising certificates expire on 30 June 2012.

The Law Society has provided detailed information on the renewal process in the latest issue of its fortnightly LawTalk magazine. This is also available here.

The New Zealand Law Society now has four new Vice-Presidents. They were elected at the Law Society’s annual Council meeting on 13 April in Wellington.

The Vice-Presidents represent four areas of New Zealand: Auckland, Central North Island, Wellington and South Island. One nomination was received from each of the four areas.

The new Vice-Presidents are Allister Davis (South Island), Chris Moore (Auckland), John Unsworth (Central North Island) and Nerissa Barber (Wellington).

Law Society President Jonathan Temm was also re-elected at the Council meeting for a further one-year term. The President and the four Vice-Presidents comprise the Law Society Board. The Law Society’s Council is made up of all branch Presidents, representatives of the three Law Society sections, the New Zealand Bar Association and the Large Firm Corporation.

The new Vice-Presidents replace outgoing Vice-Presidents Andrew Gilchrist, Bruce Gilmour, Mary Jeffcoat and Anne Stevens, whose terms expired at the Council meeting.

The view that an unpaid vendor of shares under an unconditional agreement for sale and purchase holds the shares on trust, not being a bare trust, for the purchaser, is of concern to the New Zealand Law Society.

The conclusion on the status of the shares is reached in Inland Revenue’s Draft Interpretation Statement INS0108 – Income tax: Timing of share transfers for the purposes of the continuity provisions.

The Law Society has released its submission to the Chief Tax Counsel on the draft. While it is in broad agreement with the interpretation statement, it is very concerned at the conclusion on how the shares are held.

The submission says the statement doesn’t consider the implications of such a conclusion, which may be to create two changes of ownership in the ordinary course of the sale of shares. It is also uncertain whether there is authority for the conclusion and the Law Society believes the better view is that no such trusteeship arises.

“The Law Society submits that the interpretation statement should state that an unpaid vendor of shares under an unconditional agreement for sale and purchase does not hold the shares on trust for the purchaser.”

After analysing a number of court decisions on the matter, the Law Society’s submission says the better view is that an unpaid vendor of shares under an unconditional agreement for sale and purchase is not a trustee.

It recommends that the interpretation statement should be amended to reflect that, while the purchaser has equitable rights in respect of the shares, the relationship between the vendor and purchaser is not one of trustee and beneficiary, and no change of ownership will therefore arise under an agreement for sale and purchase prior to settlement, unless the agreement expressly provides for ownership to pass prior to settlement.

A failure to provide a definition for “combination product” in the Medicines Amendment Bill means there is no clarity on how an important group of medical products will be regulated, the New Zealand Law Society says.

In its written submission, the Law Society says that while the Bill includes several new definitions, it does not include one for “combination product”.

A combination product is a therapeutic or diagnostic product that combines a drug/medicine, device and/or biological product into a single entity. Examples include combination nanomedicines and “cosmeceuticals” (cosmetics which claim to have medicinal benefits).

“Many medical products that will enter the market in the next decade are likely to be combination products,” the submission states.

“Without a definition in the Bill, it is unclear whether a cosmeceutical will be regulated under the Medicines Amendment Bill and/or the Hazardous Substances and New Organisms Act 1996 and/or the Environmental Protection Authority’s proposed amendments to the Cosmetics Group Standard, if at all.”

The Law Society says combination products are defined in legislation in other jurisdictions. It recommends that a definition be inserted in the Bill, and suggests it could be modelled on the equivalent United States provision.

The submission also identifies possible problems with the Bill’s two-step definition of “medicine”. It points out that while the intention of the new two-step test appears to have been to distinguish between a medicine and a medical device, one unintended effect is likely to be the undermining of a section which prohibits unregistered products from making therapeutic claims.

The Bill’s failure to define the words “principal intended action” in the definitions of “medicine” and “medical device” is also considered. The Law Society says this will create uncertainty as to what the words are intended to mean.

The overwhelming advice from international recruitment agents is that going on an OE without securing employment could (in the present market) endanger your career. 

In the latest issue of the New Zealand Law Society magazine LawTalk, Jonathan Walmsley, Principal, Marsden Legal Search & Recruitment (Sydney) says that it is important to get find employment before heading overseas.

“One important message to deliver to New Zealand lawyers is do not go to London, or an overseas location, without a job to go to.

“It’s going to be really career-damaging in this market. Firms don’t like it. They would rather hire someone who is currently employed with a top-tier firm and are continuing to grow in terms of their expertise and knowledge.

“Most people we know who [go overseas without a job] are not getting work or they are taking positions which are below where they should be. That really damages them when they try and come back,” Mr Walmsley says.

Director of Randstad New Zealand Paul Robinson recommends that while gaining the three to four years’ experience needed to move into the international market, junior lawyers should use that time to move into a top-tier firm.

“To get noticed in the international markets you need to have experience with a top law firm. I think making steps [during those first years] to get your foot in the door with one of those top law firms will always put you in a better position.”

The Minister for Courts, Chester Borrows, says New Zealand’s court system needs to be better understood so that it operates effectively in the interest of justice for everyone in society.

In an interview in the latest issue of the New Zealand Law Society magazine LawTalk, Mr Borrows says the language used in our courts is laden with jargon and needs to be simplified in order to be understood for people from all diversities.

“The structure of where people stand in court rooms needs a big rethink too,” he says.

“Legal speak is a foreign language to many. The hearing may as well be conducted in Mandarin. This is not a good way for a justice system to operate.”

Mr Borrows, who has been a police officer, detective, lawyer, and now Member of Parliament, says there is a need to challenge what we do, how we do it, and who we do it to in the courts. He says taking justice back out into the community is an avenue which is being investigated to meet this end.

“It’s about evaluating how comfortable people are in court who only use it sporadically. As lawyers, judges or police officers, we are there all the time so are used to the processes and tradition,” he says.

“We need to draw on the way in which community interest groups, maraes and churches work to make our processes more relevant.”

The New Zealand Law Society says the Inland Revenue Department’s suggested interpretation of a phrase in a proposal for applying GST to immigration services is unnecessarily broad.

The Law Society has released its submission on the draft interpretation statement INSO110: Goods and Services Tax – GST on Immigration Services.

The interpretation statement addresses the GST rating implications of immigration services provided by a New Zealand-based advisor to a non-resident individual. The Law Society’s submission focuses on the drafting and workability of the interpretation statement.

The Law Society queries the way the Commissioner of Inland Revenue has interpreted the phrase “outside New Zealand at the time the services are performed. It says IRD’s literal interpretation is of uncertain application.

“The Commissioner’s interpretation would mean that suppliers will be required to standard rate a supply if a recipient has been present in New Zealand at any time during the period in which services have been performed, including where suppliers have no knowledge of a person’s presence in New Zealand and where that presence is not connected to the supply.”

The submission gives as an analogy a situation where a lawyer engaged to provide legal advice in relation to intellectual property issues by someone in Australia would not usually have any knowledge of whether that person has come to New Zealand for a weekend break while the advice is being prepared.

The Law Society says it considers that a purposive interpretation of the phrase would be more consistent with the policy intent of the provision, which is to tax consumption that occurs in New Zealand.

“A person should be treated as being ‘outside New Zealand at the time the services are performed’ if the person has not been present in New Zealand in relation to the supply of the services.”

Adoption of a purposive interpretation is recommended. The Law Society’s submission also recommends a change to the wording in the section of the interpretation statement which is concerned with visa application services.

The Law Society says there is a case for a less restrictive information sharing regime for the safety and welfare of children at risk than that proposed by the Privacy Information (Sharing) Bill (Bill).

While the Bill lowers the threshold for sharing information from “serious and imminent threat” to “serious threat”, the Law Society believes that this threshold for sharing information and mandatory reporting in relation to children at risk is still too high and will deter reporting.

The Law Society’s submission on the Bill has been presented to Parliament’s Justice and Electoral Committee by Caroline Hannan from its Family Law Section and Jason McHerron from its Public and Administrative Law Committee.

Ms Hannan quoted Justice Minister Judith Collins’s statement in the first reading of the Bill: “Too often after a tragedy we hear that different agencies had different information, which, if it had been shared and acted on, would have saved a child’s life.”

“This Bill will not achieve this objective or that envisaged by the Green Paper for Vulnerable Children,” Ms Hannan says.

Ms Hannan says the Bill only covers agencies delivering public services and does not cover individuals. Therefore it may not deliver adequate information sharing when a child was at risk.

The Law Society agrees with the Green Paper that, among other things, improved information sharing is needed between professionals who are working with children, such as teachers, social workers, GPs, nurses, psychologists, police officers and therapists, for the purpose of protecting those who may be at risk of harm.

To address these issues, the Law Society recommends that new legislation be introduced (such as a Children’s Protection Act) with provisions specifically relating to information sharing for the protection of children at risk. The aim would be to provide a “one-stop shop”, for legislative provisions relating to the sharing of information between professionals and others working in the area of child welfare and safety.

“Such an Act is essential for the protection of our children,” Ms Hannan says.

The Law Society believes that by making it clear the amendment is allowing information-sharing relating to the safety, welfare or well-being of children, it sends a clear message about the value New Zealand placed on protecting children.

The Law Society considers that overall the Bill appears to achieve the objective of facilitating appropriate public sector information sharing within a framework of openness, transparency and accountability, which accord appropriate weight to privacy issues.

However, several of the protections recommended by the Law Commission do not appear in the Bill. The Law Society recommends the inclusion of several such protections into the Bill as a check against the erosion of individual privacy which necessarily results from increased sharing of personal information.

A clause in the Consumer Law Reform Bill which creates a strict liability offence of making an unsubstantiated representation creates a number of problems, the New Zealand Law Society says.

The clause defines an unsubstantiated representation as a representation made by a person who does not, at the time of making it, have reasonable grounds for the representation “irrespective of whether or not the representation is in fact false or misleading”.

In its submission on the bill, the Law Society says this would mean someone could be guilty of a criminal offence through making an unsubstantiated but true statement in trade, in which case there would be no detriment to consumers or other traders.

There was also no guideline for “reasonable grounds” and no provision other than general defences in the Fair Trading Act to protect downstream suppliers in the retail trade who could be targeted.

“The Law Society notes that this provision is different from equivalent provisions in Australia, Europe … and the United States,” the submission says. “The equivalent provisions in all of these countries enable the enforcement body to issue a substantiation notice requiring the generator of the representation to provide substantiation where there is reason to believe that the representation is false or misleading.”

The Law Society says it is also concerned that the proposed clause could be detrimental to New Zealand traders and in particular place them at a disadvantage with respect to Australian traders.

Australian traders would also be forced to comply with a different substantiation standard if supplying goods or services into New Zealand, in that correct representations could lead to criminal prosecution. In Australia, however, they merely risked being asked to substantiate their claims.

The Law Society says the scope of the clause is too broad and recommends that it be reconsidered, and aligned with the Australian provisions. It says it does support a provision in the clause which entitles only the Commerce Commission to bring actions relating to unsubstantiated claims, thus removing the scope for competitor harassment.

The New Zealand Law Society has made a submission on the current review of the Real Estate Agents Act (Professional Conduct and Client Care) Rules 2009.

In its submission, the Law Society says that Rule 5.1 needs to be amended to clarify the responsibility of a real estate agent in understanding and conveying the legal issues in a sale agreement to a client or customer.

Obiter comments made recently in a Real Estate Agents Disciplinary Tribunal decision say that “licensees should be familiar with and able to explain clearly and simply the effect of any covenants or restrictions which might affect the rights of a purchaser.”  

The Tribunal’s views have created concern among some property lawyers and real estate agents. They are worried that too much responsibility is being placed on licensees to give advice and understand complex legal issues outside their area of expertise. 

In its submission, the Law Society considers that the views of the Tribunal could create onerous obligations for real estate agents.

As the review stands a licensee, upon taking instructions for a sale of a property, should search its title, or have some competent person search it for the licensee, and be familiar with the information gained in such a search.

The Law Society says that in some types of tenure of property such as leasehold, cross leases, unit titles in freehold or in leasehold, or Maori land, this requirement may be unreasonable as there are many associated complexities and these forms of title can involve significant legal issues.

The submission recommends that a clause is added to state that where legal or technical issues arise in relation to a property, it is sufficient for a licensee to recommend the customer or client concerned to take advice from a lawyer or other person qualified to give that advice.

The New Zealand Law Society has published information on the makeup of the legal profession. The report, called Snapshot of the New Zealand Legal Profession has been published in the latest issue of the Law Society’s fortnightly magazine LawTalk.

As regulator of New Zealand lawyers, the Law Society is responsible for issuing practising certificates and much of the information relates to the 11,704 certificates on issue.

A downloadable copy of the Snapshot is available here.

Wellington City has one lawyer for every 88 citizens, which is well ahead of the overall New Zealand average of one lawyer for every 390 citizens.

Information released by the New Zealand Law Society shows Wellington is well ahead of the next most-lawyered location, Warkworth, with one lawyer for 194 citizens.

The Law Society says Wellington City’s relatively high rate is driven by a high number of in-house lawyers who are employed by government or business. Of the 2,274 lawyers who work in Wellington City, 1,032 (45%) are in-house lawyers. Overall, 20% of New Zealand lawyers work in-house.

The Law Society’s magazine LawTalk says while the ratio of lawyers in Wellington is high, it is still nowhere near the District of Columbia in the United States, which has one lawyer for every 36 citizens.

Other locations with a relatively high number of lawyers per head are Kerikeri (one per 198), Alexandra (one per 237) and Auckland (one per 306).

At the other end of the spectrum, Kawerau with one lawyer per 7,000 citizens has the lowest number of lawyers per head. This is followed by Wairoa (one per 4,300), Taihape (one per 2,000) and Motueka (one per 1,800).

The Law Society says there are 11,704 lawyers who hold a current practising certificate. Of these 412 are based overseas. Men make up 55% of New Zealand lawyers.

A proposal to introduce fixed fees for family law legal aid will create real problems in finding suitable lawyers to provide family legal aid, the New Zealand Law Society says.

In its submission to the Ministry of Justice on the proposed new fees framework for family legal aid providers, the Law Society says it has warned the ministry over several years about the declining number of family lawyers prepared to deliver legal aid services.

The chair of the Law Society’s Family Law Section, Antony Mahon, says the 2009 Bazley report on legal aid noted a difficulty in finding family legal aid lawyers.

“Three years on, the current proposal will result in an irreversible exodus of family lawyers from the legal aid system,” he says. “This will have major consequences right across the Family Court, social services and the legal profession.”

“In preparing our submission we surveyed 764 family lawyers – 66% of all family legal aid providers. What is alarming is that over 72% said they would significantly scale back or cease legal aid work if the fixed fee proposal in its current form is introduced.”

Mr Mahon says that while the ministry believes there are enough lawyers, it is basing its assumption on a misunderstanding. Research shows that many lawyers reapplied in 2011 to be legal aid providers either to continue to act for existing clients or without knowing details of the fixed fee proposals.

“All New Zealanders should consider the flow-on effects of what is proposed. Fewer lawyers means more self-represented people in the Family Courts. This means more delays and cost. Cutting the time lawyers can spend on a matter also means fewer family disputes will be resolved before they get to court.”

The whole concept of legal aid is to ensure people with insufficient means receive efficient and effective legal services. In the field of family law, there is the additional factor of the interests and protection of children who are drawn into disputes between adults.

“The Family Court has mechanisms to ensure children are represented and everyone gets justice whether rich or poor. Chop back the funding and greatly reduce legal representation and we are going to end up with a two-tier justice system which is totally contrary to the objectives of our Family Court system,” says Mr Mahon.

He says the Law Society believes there are a number of ways in which the government’s aim of reducing expenditure on the justice system can be achieved. However, the current approach is piecemeal and the government needs to take a far more holistic view of the family law area.

A major review of the Family Court is already underway. Input from the Law Society and other groups has identified significant savings, and the Law Society strongly recommends deferring introduction of fixed fees until the review is complete. Endangering key institutions and sectors of New Zealand society through the current “silo” approach is irresponsible.

The need for adoption of a strategic Big Picture approach is also apparent with other potential savings such as a more stringent application of the merits test (again recommended by the Bazley report), exclusion of some types of proceedings from legal aid eligibility and greater use of technology and other facilities in Family Court proceedings.

Mr Mahon says the ministry should also consider using a staged approach to rolling out fixed fees and take another look at the data it is using for its assumptions.

“It’s quite clear that the ministry’s calculations are out of kilter with the real costs of a family legal aid case. Our submission provides a lot of detail on the costs faced by legal aid lawyers which the ministry should consider. If it doesn’t, we are looking at a big drop in lawyers available to provide legal aid in the family law area.”

Ministry of Justice proposals to introduce fixed fees for ACC legal aid are based on flawed data which does not represent the economic reality of ACC legal aid cases, the New Zealand Law Society says.

Commenting on the Law Society’s submission on the proposals, President Jonathan Temm says the level of the proposed fixed fees grossly under-estimates the actual cost of conducting ACC cases.

“ACC cases are generally driven by facts and a wide range of issues can arise. There is often a large amount of medical evidence presented and there is sometimes disagreement between medical experts. Most ACC claims where legal assistance is needed are very complex and take a lot of time to investigate.”

Mr Temm says most ACC legal aid work is done by a small pool of very experienced lawyers, with only 13 lawyers regularly providing aid. ACC legal aid grants are already inadequate, and the proposed fixed fees are an estimated 19.5% reduction on this.

“This small group of experienced and dedicated lawyers already give a big pro bono component to their legal aid work. Add a further big reduction to what they are paid and there is a very real risk that they will do less ACC legal aid or cease to do it entirely,” he says.

The net cost of ACC legal aid was just over $1 million in 2011, Mr Temm says. This was just 0.6% of the total net legal aid cost. With the likely consequences, it is very hard to understand why the Ministry of Justice is proposing radical change in this area.

“The Law Society has spoken out on proposals to introduce fixed fees for ACC, criminal and family legal aid. We are quite aware that the Ministry of Justice has been told to reduce legal aid expenditure by 10%, and we understand the need to control expenditure in difficult economic times,” he says.

“As far as ACC legal aid goes, however, we are looking at a further substantial reduction in reimbursement of costs incurred by a very specialised group of lawyers. This is likely to have far-reaching consequences in ACC claims. Our submission urges the Ministry of Justice to reconsider whether the cost of ACC legal aid is significant enough to threaten livelihoods, access to justice and the quality of legal representation.”

Lawyers who are working overseas but intending to return to New Zealand should not stay too long, according to the New Zealand Law Society fortnightly magazine LawTalk.

Information in the latest issue says lawyers with over 10 years post-admission experience are quite plentiful in New Zealand at present.

Carla Wellington of legal recruitment company Momentum is also quoted as saying that lawyers should be careful what they specialise in if working overseas.

"Specialist knowledge of pensions, personal injury or other such areas of law may marginalise you in the New Zealand job market," LawTalk says.

Reporting on a series of lunchtime meetings to consider findings from the New Zealand Law Society/Momentum Legal Salary Survey 2011, LawTalk says one of the biggest issues for young lawyers was the need for transparency from the employers in salary banding.

"Also important was a perceived lack of partnership opportunities and interest in more flexible hours and time in lieu. Younger lawyers in private practice also tend to see bonuses as illusory and often so discretionary as to be pointless."

LawTalk reports that Auckland is currently seen as a candidates’ market for legal employment, while Wellington is “mixed but more of an employers’ market”. The expected exodus of lawyers from Christchurch does not appear to have happened, and there is a lot of recruitment activity there.

The New Zealand Law Society is warning New Zealand lawyers to watch out for two scams which are targeting New Zealand law firms at the moment.

In the first, law firms are initially sent an email which appears to offer a chance for the firm to have its details carried in publications with names like “Europe Business Guide” or “World Company Register”.

The email has a pdf attachment which is a well-designed form with places to fill in company information and details. Information on the form says: “To update your company profile, please print, complete and return this form. (Updating is free of charge).”

The catch is in the fine print at the end of the form, which attempts to trick the recipient into signing up for an ongoing subscription. In the middle of a long statement about the terms and conditions are the words “I hereby order a subscription … for three years. The price per year is EUR 990.”

The second stage of the scam is arrival of an invoice purporting to charge for an insertion in the Europe Business Guide. Details of a Bulgarian bank account are given, along with a stern reminder that there is a EUR 99 Late Payment Fee and a EUR 35 Administration Fee.

The Law Society says this scam has been operating since at least 2009.

The second scam involves a two-page fax which purports to come from the Australian Department of the Treasury's Internal Revenue Service.

The fax appears to be aimed at Australians, but has been received by a number of New Zealand law firms and organisations.

The Law Society says the fax is a scam which tries to extract personal and bank account information.

The accompanying letter begins: "Dear Sir, Our records indicate that you are a non-resident alien. As a result, you are exempted from Australia Tax reporting and withholdings, on interest paid you on your account and other financial dealing to protect your exemption from tax on your account and other financial benefit in rectifying your exemption status."

The letter then asks the recipient to return an accompanying form by fax to an Australian number. It also says "If you are an Australian Citizen and resident, this form W-8BEN is not meant for you, please indicate "Australian Citizen/Resident on the form and return it to us. We shall then send you a form W9095."

The form has been adapted by from United States scam which uses an identical form (which has been amended to replace "For United States Tax Withholding" with "For Australia tax Withholding".

Further information about the scams and others which have targeted lawyers is available on the Law Society’s my.lawsociety website.

The New Zealand Law Society supports giving courts powers to order disclosure by trustees of the reasons for their decisions.

In its submission to the Law Commission on the Commission’s fifth Issues Paper in its review of the law of trusts, the Law Society says that in appropriate cases the court should be able to review a trustee’s decision to determine whether it complies with the law.

A new statutory provision should set out disclosure requirements, but should not set out the grounds for intervention, the Law Society says.

“The court should be free to continue to determine the grounds for intervention.”

The submission says the new provision should allow the court to order disclosure where a beneficiary can show that the beneficiary has reasonable grounds to believe that the trustee has not exercised a power lawfully or will not exercise the power lawfully. The new provision should allow the court to refuse disclosure as well.

“The new provision should distinguish between disclosure and intervention,” it says. “Just because the court can order disclosure and examine a trustee’s decision, does not mean the court should intervene. The court should only intervene where it is shown the trustee has exercised a power unlawfully, based on case law principles.”

In considering who would have the power to seek disclosure, the Law Society says both beneficiaries of a trust and the objects of a power of appointment should be entitled to make an application.

It says the new provision should be about disclosure, and a clear distinction should be made between disclosure and whether the courts will actually interfere once they have reviewed a trustee’s decision.

“The new provision should not specify the grounds on which the courts may interfere with a trustee’s decision. Many of the grounds for intervention overlap. Trying to specify grounds for intervention in the new provision would be too complex and there is potential for unintended outcomes. The grounds for intervention should be left for the courts to continue to develop,” the submission says.

The Law Society’s submission was prepared with assistance from the Law Society’s Trust Law Review Working Group, formed by its Property and Family Law Sections.

The Ministry of Foreign Affairs and Trade has asked the New Zealand Law Society to advise lawyers about opportunities to work for a United Nations trade law organisation.

The ministry is seeking expressions of interest from people with a legal or trade background who want to be considered for roles as a New Zealand national correspondent for the United Nations Commission on International Trade Law (UNCITRAL) initiative for case law on UNCITRAL texts ("CLOUT").

The ministry says that while the position is not remunerated, it hopes it might be of interest to academics or practitioners who work in the area.

The role involves monitoring and collecting New Zealand court decisions and arbitral awards relating to UNCITRAL Conventions and model laws.

"National correspondents are asked to prepare abstracts of relevant decisions or awards, which will then be translated by the UNCITRAL Secretariat into the other official UN languages and published as part of UNCITRAL regular documentation," the ministry says.

Expressions of interest are sought by 13 April 2012. The ministry says further information is available on the MFAT website.

Concerns about the costs of sustaining the Family Court can be addressed in a way which enables the Court to continue to be functional and effective, the New Zealand Law Society says.

However, it is important that there is targeted rather than substantive legislative change, with the essential features of the Family Court retained, the Law Society says in its submission on the Family Court Review.

Family Law Section chair Antony Mahon says the Law Society recognises that cost cutting was at the heart of the review.

“Our whole focus has been on recognising that any funding reductions must be carried out in way that maintains access to justice and the need to provide that in a cost-effective manner.”

Mr Mahon says the Law Society firmly believes that substantial charges to the Family Court are not appropriate. Instead, with some targeted legislative amendments to reduce fiscal costs, the Family Court should remain significantly unchanged.

“We have identified changes which will achieve both significant fiscal savings and improve the practice of all professionals who work in and with the Family Court,” he says.

“More rigorous adherence and refinements to the systems and procedures already in place, and a change in the way the Court’s Registry is resourced will let the Family Court fulfil the purpose for which it was established in a fiscally sustainable manner.”

The Law Society feels that a number of the issues identified in the discussion document at the heart of the review could be managed through development of an effective assessment system.

Mr Mahon saus this would divert away from formal Court processes those matters which could be resolved in some other way.

“This would ensure that meritorious and genuine claims are heard more quickly and are resolved earlier.”

He says the Law Society is still concerned that the review’s single-minded focus on cutting expenditure on the Family Court system means it fails to recognise the legal rights of all New Zealanders and their access to justice.

“Eliminating or reducing the chances to resolve family-based disputes is likely to have a negative social impact. We strongly believe that effective reform might need some up-front investment to achieve durable cost savings in the future. Achieving a prompt, efficient and effective resolution to Family Court proceedings must not be at the cost of a fair and just outcome.”

The New Zealand Law Society has welcomed the request by Justice Minister Judith Collins for the Legal Assistance (Sustainability) Bill to be deferred until completion of the Family Courts Review.

Law Society President Jonathan Temm says the Minister’s action in requesting the Justice and Electoral committee to defer the Bill shows that she appreciates the wider implications of the Bill.

“The Law Society and a number of other organisations made strong submissions to the committee calling for deferral of the Bill. We are very pleased that the Minister has listened to the arguments and agrees that it is sensible to take a wider view of the whole issue of the place of legal aid in the Family Courts system.”

Mr Temm says the Law Society told the committee that the Bill attempted to bring Family Court appointment of lawyers into the legal aid system without any investigation of the social consequences. It was also in isolation from the major review of the Family Courts which had been initiated last year.

“We say the Bill is a piecemeal response to very important matters which affect access to justice and some of the most vulnerable groups of people in New Zealand. The Minister’s decision to ask for deferral shows she is listening and is focused on the bigger picture.”

The New Zealand Law Society understands the serious concerns which has driven the Criminal Bar Association to seek judicial review of the introduction of fixed fees for criminal legal aid, it says. Law Society President Jonathan Temm says the Law Society will watch the judicial review proceedings closely.

Mr Temm says the Law Society has repeatedly told the Government that the proposed fixed fee regime for criminal legal aid will have a serious impact on access to justice.

“The Law Society appreciates the economic difficulties the Government is facing but these fixed fees may mean that legal aid providers cannot afford to deliver quality services.”

Mr Temm says the Law Society places great importance on continued discussion to resolve the issues around provision of legal aid. “We urge the Ministry of Justice to take a hard look at the implications of what it is doing.”

As well as criminal legal aid, the Government is currently consulting on fixed fees for family and accident compensation legal aid work. The Law Society is preparing comments on fixed fees in these areas. Family and ACC legal aid providers have told the Law Society that the fixed fees proposed are unworkable and they cannot deliver a competent service and cover the cost of running a legal practice on the rates put forward in the consultation document.

The New Zealand Law Society’s Family Law Section is asking family lawyers to participate in a short survey on family legal aid.

The Family Law Section is preparing comments in response to the Ministry of Justice consultation paper A New Fees Framework for Family Legal Aid Providers. The paper proposes a fixed fee framework for family legal aid.

The Section is seeking information on what proportion of lawyers intend to provide family legal aid services under the proposed fixed fee framework.

A short 8-question survey is available here and takes about 2-3 minutes to complete. Input is required by 5:00pm, Monday 27 February 2012.

Lawyers are advised that they may also make further comments about family legal aid by email to family@lawsociety.org.nz. 

New Zealanders could participate in health research without the chance to give informed consent if draft procedures for health and disability ethics committees are adopted, the New Zealand Law Society says.

The Law Society has released its submission on the Draft Standard Operating Procedures for Health and Disability Ethics Committees.

The submission says the proposed changes are a significant departure from the current standards for ethics committees developed since the Cartwright Inquiry and from international standards for the protection of human participants in research.

If implemented they will have significant human rights implications.

Section 10 of the New Zealand Bill of Rights Act 1990 provides that every person has the right not to be subjected to medical or scientific experimentation.

“The Law Society is concerned that the proposed changes, together with reducing the membership and numbers of ethics committees, will not provide adequate protection for participants of health and disability research. This particularly applies to the right of patients or participants to give informed consent or refusal to participate in research,” Health Law Committee convener Alison Douglass says.

The Cartwright Inquiry was conducted in 1988 by then District Court Judge Dame Silvia Cartwright into allegations concerning the treatment of women with cervical cancer at National Women’s Hospital.

Information about patients’ abnormal smear results was withheld from them. They were not given the opportunity to provide informed consent and were unaware that they were participating in medical experimentation.

“The withholding of standard treatment of the time from women with cervical cancer was not thought by the researcher to expose them to harm,” Ms Douglass says.

“A key recommendation of the Cartwright inquiry was the establishment of ethics committees to provide independent ethical review of all health research and the development of a national standard for ethics committees.

“The proposed draft procedures will water down the ethical protections developed in standards for ethics committees since the Cartwright Inquiry. They make no mention of the legal requirements of informed consent for the protection of participants in health and disability research.

“The Law Society questions the legal status of the proposed changes and what legal effect they will have on the framework for ethical review of research in New Zealand. It recommends the Government engage in a more comprehensive review of New Zealand’s ethics review system with a view to providing an overarching legal framework, in line with international standards including World Health Organisation (WHO) Standards and the Declaration of Helsinki.”

The New Zealand Law Society is worried that proposed changes to the default judgment procedure will result in extra expense and the removal of some rights.

Comments provided by the Law Society to the Rules Committee on its consultation paper Proposed revision of default judgment and formal proof rules say the high cost of litigation has been the subject of much criticism.

“The proposed amendments to the default judgment procedures will undoubtedly result in additional cost which seems unjustified,” the comments state. “The Law Society is unaware of any dissatisfaction with the current procedures, and would be loath to see a further layer of costs imposed for no good reason.”

The Law Society says it believes the default position should be that judgment be granted on the papers unless the court requires otherwise. Where some hearing is needed, there would need to be appropriate provision in the schedule of costs to allow for the additional time required.

The current rules operate on the basis that a defendant who does not file a statement of defence is presumed to have no opposition to the entry of judgment. The Law Society says the reasoning behind the proposed rules erodes this presumption, and imposes on the court the role of protector of the defendant.

“That is a significant shift in the theory behind the default procedures. The Law Society does not consider that a basis has been advanced to justify this change in stance. While there may be a need to improve the statement of procedures in the rules, it does not seem necessary to go any further than this.”

Pointing to another area of concern with the proposed changes, the Law Society says while the current rules allow the defendant in a formal proof hearing to file affidavit evidence in mitigation as of right and other evidence with leave, this appears to have been omitted in the proposed new rules.

“It would seem sensible to include a similar provision. There does not appear to be any justification for removing such rights altogether,” it says.

A copy of the Law Society’s comments is available here.

A new bill aimed at establishing an environmental regime for New Zealand’s Exclusive Economic Zone and continental shelf should be amended to make it consistent with the Resource Management Act 1991 and international law, the New Zealand Law Society says.

The Law Society submission on the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Bill has been presented to Parliament’s Local Government and Environment Committee by Law Society Environmental Law Committee member Robert Makgill.

Mr Makgill says inconsistencies between the Bill, New Zealand’s international obligations and the Resource Management Act raise doubt about the ability of the Bill to achieve integrated management, which is a touchstone of modern environmental law.

“The way in which parts of the Bill are drafted is at odds with key international environmental law principles such as ‘sustainable development’ and the ‘precautionary approach’,” he says.

The Bill sets out to establish an environmental regime for implementing New Zealand’s rights and obligations under the Law of the Sea Convention 1982. It would cover seabed mining, some petroleum activities, energy generation, carbon capture and storage and marine farming.

Mr Makgill says the lack of clear direction on international obligations is carried over into inconsistencies between the Bill and the Resource Management Act. There are differences in purpose, a failure to include matters of national importance and differing definitions of terms.

“If the Bill goes through in its present form, there could be some serious consequences for New Zealand. It would mean different management regimes applied either side of the outer limit of the territorial sea, a failure to reflect international law and New Zealand’s obligations under it, and there would be costs for the Crown, applicants, submitters and decision-makers whenever there were applications for activities which straddled the jurisdictional line of the territorial sea.”

Mr Makgill says the Law Society believes the Bill should be amended to make it consistent with the Resource Management Act and international law. 

This would require the purpose of the Bill to be amended to “sustainable management” as defined in the Resource Management Act, inclusion of New Zealand’s key international obligations, careful consideration of matters which should be seen as of national importance in decision-making, and replacing the words “cautious approach” with “precautionary approach” in order to reduce any unintentional ambiguity.

Changes to family legal aid proposed in a bill before Parliament will have a major impact on access to justice, the New Zealand Law Society says.

Presenting a submission on the Legal Assistance (Sustainability) Amendment Bill, Caroline Hannan of the Law Society’s Family Law Section said the bill proposed a user charge of $100 for anyone accessing family legal aid.

“This is an enormous sum for the people who fit the criteria to be eligible for legal aid. This is taking money away from them that should be used for looking after their families,” she said.

Ms Hannan says there is a wrongful presumption behind the Bill that anyone applying for family legal aid was automatically making an application to the Family Courts. However, that is not so as family lawyers effectively provide a triage system which saw people pointed in the right direction for assistance such as counselling or social welfare support, and not just to the court.

“People who are respondents in Family Court proceedings usually find themselves in the court system through no action of their own. However, they will need to pay a $100 fee before they can access legal advice.”

Ms Hannan says the impact of the fee could be counterproductive, as it is likely more matters will go to court with people representing themselves. This will cause further court delays and costs and a severe emotional impact on people who are already vulnerable. The consequences on children could well be dire.

“The legal aid system should not be extended to cover lawyers for children,” she says. “Children must be adequately and properly represented by people who are totally independent from the adult parties.”

Extending the legal aid provisions and a quality assurance framework to lawyers for children is both unnecessary and dangerous.

“We already have a well-tried and successful system in place. Every lawyer appointed as a lawyer for the child must have had at least five years’ experience and must have completed a special lawyer for the child course. They must have been interviewed and approved by an expert panel. And their appointment is reviewed every three years,” she says.

The New Zealand Law Society has urged parliament’s justice and electoral committee to defer the bill until a major report on the Family Courts is presented to the Minister of Justice. The Law Society submission points out that the Family Courts review covers a number of issues which are also addressed by the bill.

A bill proposing controls on legal aid in Family Courts proceedings is misleading about the savings it will deliver and should be deferred until a report on a major review of the Family Courts is presented to the Minister of Justice in March.

New Zealand Law Society President Jonathan Temm has told Parliament’s Justice and Electoral Committee that New Zealanders were being misled about the economic efficiencies that would be delivered by the Legal Assistance (Sustainability) Amendment Bill.

“We will not make these savings. There has been no social policy work done on the impact of this bill on children and other vulnerable groups. The Ministry of Justice has focused purely on perceived economic benefit,” Mr Temm said.

“Lawyers quite understand the need for prudent expenditure. However, the changes proposed in this bill are going to impact on child poverty. Constraints are being placed on the availability of legal aid for Family Courts, but savings in one place are going to result in cost blowouts in others. We are talking about the most vulnerable people in New Zealand here, and we are told there has been no time to investigate the social outcomes.”

Mr Temm says that in 2006 the then government had increased the eligibility for legal aid from 750,000 New Zealanders to 1.3 million. Ministry of Justice modelling at the time had confidently predicted the economic impact of this. Instead, five years later the country was facing a major blowout in legal aid expenditure which was nothing to do with lawyers but driven by government policy.

He says former Minister of Justice Simon Power initiated a major review of the Family Courts in 2011. This has resulted in major thinking on ways in efficiencies and cost savings could be introduced in the Family Courts. The Law Society will be presenting its report and recommendations by the end of this month, and a comprehensive final report is due to go to the Minister of Justice in March.

“This bill should be deferred until the select committee has viewed the report and considered the efficiencies it will recommend.”

Mr Temm says the Family Courts were introduced 30 years ago and were seen internationally as a landmark and visionary initiative. One of the key planks of the courts was that the judges had the power to appoint a senior lawyer to represent the interests of children involved in any proceedings.

By bringing Family Court appointment of lawyers into the legal aid system without any investigation of the social consequences and in isolation from a major review of the Family Court, the bill is a piecemeal and silo response to matters affecting access to justice and the rule of law.

“Lawyers do not want to be barriers to change. We recognise the fiscal problems our country faces, but we must speak out here on behalf of a group of very vulnerable New Zealanders who will be further threatened if the changes proposed by this bill occur. The underlying fundamentals of the Family Court system cannot be threatened,” he says.

Barristers and barristers and solicitors applying to the Law Society to practise on their own account will be charged a levy of $250, including GST, from 1 April 2012.

The levy was passed by the New Zealand Law Society Council on recommendation from the Law Society’s Board to cover the cost of the substantial amount of administrative time taken to process these applications.

For further information about applying to practise on own account seehttp://www.lawsociety.org.nz/home/for_lawyers/regulatory/practice_on_own_account

The New Zealand Law Society’s Board has approved a procedure for enforcement of costs and fines orders made through the Lawyers Complaints Service.

The procedure will be followed after all Lawyers Standards Committee, Legal Complaints Review Office and New Zealand Lawyers and Conveyancers Disciplinary Tribunal decisions.

1. Immediately following an order for costs or fines, a request for payment will be made of the lawyer immediately (rather than waiting for any review period to expire).
2. If an appeal is lodged, the collection will be put on hold pending the outcome of the appeal.
3. If no payment is received the lawyer will be contacted by the Law Society and recovery action will be taken in accordance with the usual debt collection procedures. This may include use of court proceedings.
4. Arrangements for payment may be entered into between the parties subject to approval by the Law Society’s General Manager, Regulatory.
5. In appropriate cases any non-payment may be referred to a lawyers standards committee for consideration of an own motion investigation.
6. Non-compliance with an order of a lawyers standards committee, the Legal Complaints Review Officer and the New Zealand Lawyers and Conveyancers Disciplinary Tribunal is a factor that may be taken into account when the Law Society is considering an application for a practising certificate.

The New Zealand Law Society expressed its concern on a number of occasions in 2011 to parliamentary select committees and the Attorney-General about potential infringements of the rule of law, New Zealand Bill of Rights Act or human rights.

The Law Society’s Law Reform Committee has released a report on its active contribution to New Zealand law reform work in 2011. The report states that the Law Society wrote to the Attorney-General on four occasions during the year in relation to rule of law, human rights and other matters.

In addition, the Law Society made 23 submissions on parliamentary Bills, eight select committee appearances, seven submissions on New Zealand Law Commission papers and 34 submissions on government discussion papers.

The Law Society is required to assist and promote the reform of law in New Zealand. It is supported in its work by its Law Reform Committee, 16 specialist committees and Family Law and Property Law Sections.

The report says a recurring concern was the limited time frame allowed for consultation on legislative proposals and, in some cases, the absence of consultation with important stakeholders.

“Recourse to urgency sometimes made consultation difficult,” the report says.

“In relation to the Canterbury Earthquake Recovery Bill and the Video Camera Surveillance (Temporary Measures) Bill, however, the Law Society was able to have meaningful and effective input even though the time frames were very tight. On a positive note, greater use of the practice of making exposure drafts of Bills available before their introduction into the House was a welcome development.”

The report says during 2011 legislation relating to the Canterbury region, particularly the emergency response to the Canterbury earthquakes, raised some significant rule of law issues.

“The Law Society has a statutory responsibility to promote the rule of law in New Zealand and one of its specialist committees is the Rule of Law Committee. That committee monitors legislative proposals that raise rule of law issues, but its role also extends more widely to all matters that affect the rule of law in New Zealand and elsewhere.”

As well as the earthquake legislation, the Law Society wrote to the Attorney-General about bill of rights issues relating to proposed amendment of the Tax Administration Act 1994 and the parliamentary process for the Marine and Coastal Area (Takutai Moana) Bill.

A copy of the report is available.

The New Zealand Law Society has released a discussion paper on a proposed mandatory Continuing Professional Development (CPD) scheme for all New Zealand lawyers.

Lawyers are being invited to comment on the proposed scheme by 13 April 2012. The discussion paper is available, and comments may be emailed to inquiries@lawsociety.org.nz or mailed to The Executive Director, New Zealand Law Society, PO Box 5041, Wellington 6145.

Under the proposed scheme, all lawyers (both full and part-time) would be required to prepare and update an annual CPD plan and complete, record, document and justify a minimum of 10 hours eligible CPD activities each year.

To be eligible in terms of the proposed CPD scheme, activities would need to be verifiable and must include potential interaction. Non-verifiable self-study would not qualify as an eligible activity but all lawyers would be encouraged to complete and plan for a minimum of 50 hours of such education each year.

Eligible activities could include:

• Participating in or presenting at a wide range of conferences, seminars and training programmes which could be delivered “live”, online or via a video or teleconference. All such programmes must be planned in advance and must have clearly stated learning objectives;
• Lecturing/teaching and preparing for law course at tertiary level;
• Writing law-related books and articles for tertiary or post-tertiary audiences; and
• Preparing formal submissions.

There would be no exemptions, but in exceptional circumstances – such as unexpected illness – lawyers may be permitted to complete any outstanding CPD requirements in the following practice year.

The discussion paper also proposes that there would be no specified activities or topics. Lawyers would be responsible for determining their own learning requirements. There would be no restrictions on potential providers, and providers would not need to be licensed or approved.

To meet the proposed requirements, lawyers would need to submit an annual declaration stating that they had met all CPD requirements. CPD plans, records and documentation would be required to be available for inspection by the Law Society.

While New Zealand is regarded as a regulation-friendly country for overseas buyers to invest in, the investment process is far more than tick-box. Property lawyers say the lack of clear guidelines in some areas means obtaining expert advice is essential.

New Zealand’s good legal system, transparent and relatively simple tax system, coupled with a stable Government makes our property market a safe investment for foreign buyers, but the process of buying up New Zealand’s property is not as easy as some might think.

Overseas investors may need to apply to the Overseas Investment Office (OIO) for consent if they wish to acquire sensitive land or an interest in sensitive land (for example, by buying shares in a company that owns sensitive land), or business assets worth more than $100 million.

Explaining what makes prospective land/property “sensitive” is not simple, says Christchurch property lawyer and New Zealand Law Society Property Law Section executive member Lindsay Lloyd.

“Investors struggle to get their heads around requirements such as what is sensitive land because there is no single rule.”

“While determining sensitive land is sometimes straightforward, often significant legal and land expertise is required, particularly if there are any nearby waterways,” he says.

Legal advice is essential to avoiding a lengthy and costly consent process. The OIO outlines that 70 days should be the maximum timeframe for assessing the most complex application for investment consent, providing the applications are “high quality, well prepared and analysed”.

Chris Moore, the chair of the Law Society’s Property Law Section, says an OIO application needs to be properly put together, otherwise the process can take up to nine months.

“The applications are very complex and detailed. Invariably they require a properly prepared business plan, proof of necessary funds, their source and often specialist reports specific to the project,” he says.

“It can be an expensive exercise for a purchaser and any delay will be costly.”

Overseas investors often look for low maintenance or passive properties (with a New Zealand-based manager). They also look for the same fundamentals as New Zealand investors: yield, development potential and tenancy security, says Queenstown-based Property Law Section executive member Russell Mawhinney.

“Queenstown has traditionally attracted buyers looking for capital growth investment opportunities. However, since the global financial crisis this has changed and more recently international buyers have either been looking for solid yielding investment properties or quality land for land banking,” he says.

There have also been a number of trusts coming into New Zealand. This recognises that we have a slightly different attitude to the domicile of a trust.

“It’s not a tax haven but there are some distinct advantages for trusts and their residents - the taxation of trusts is on the residence of the settlor. New Zealand trusts are only taxed on New Zealand-sourced income, so people can have a trust with overseas assets but will only be taxed on New Zealand-sourced income,” says Lindsay Lloyd.

When thinking about selling assets to overseas investors New Zealand developers need to consider any likely effects of the Overseas Investment Act on such things as lot sizes and locations adjacent to "sensitive land" such as reserves and waterways.

“There are instances where developers have made it very difficult for overseas investors to buy through not being careful enough here,” Russell Mawhinney says.

Vendors should make sure Code Compliance Certificates under the Building Act have been issued, and there are no other lingering issues on LIM reports as little things can easily cause overseas buyers to go "cold" when they arrive back in their home country and the initial enthusiasm has worn off.

“In the past, for example, where there have been unit title issues here which require a body corporate decision to resolve, it has been virtually impossible to resolve them in a short period of time when many owners in the body corporate are spread all over the world. This can easily scupper a sale,” says Mr Mawhinney.

While most New Zealand lawyers have taken a break over the summer holiday period, email scammers are staying hard at work.

The New Zealand Law Society is warning lawyers about another email scam which is being sent to members of the legal profession.

The scam has also been reported in Canada and the United States and asks for legal assistance with a purported breach of a lease agreement. Names used for the prospective “client” include Kiyoshi Yukio and Nan Yhang and the email says that they are working for the NPI Lease Company Limited in Yokohama, Japan.

“We ask of your Services regarding a breach of lease that was duly guaranteed, involving us, and a customer of ours in your country,” the email states. “We secured the equipment required by them and leased it to them for an agreed period of time, but they have since fallen short of the executed agreement we have in place.”

If the scam follows the usual course, the lawyer involved will be sent a forged cheque from the alleged customer. The cheque – usually drawn on a reputable bank - is banked in the lawyer’s trust account and the “client” is sent the balance after deduction of the lawyer’s fee. Several days later the cheque bounces.

Another email scam targeting lawyers is still circulating. This asks the lawyer to act on behalf of a client to complete purchase of a house in New Zealand. Names used by the scammer for this include Peters Anderson, Steve Maughan, Anthony J Earl and Mike Garry. One version uses the greeting “Top of the day to you!”

The Law Society advises any lawyer who believes they may have received an email from a scammer to contact it or check the special scam section on its my.lawsociety website. It also recommends that lawyers do not engage in correspondence with the scammers.

Chief District Court Judge Jan-Marie Doogue has asked the New Zealand Law Society to assist with distributing information to all New Zealand lawyers about a Practice Note which aims to fast-track claims arising from the Christchurch earthquake.

Chief Judge Doogue has prepared an open letter to legal practitioners with information about the Practice Note, which will apply from 1 February 2012.

“As the Chief Judge of the District Courts I have set up a procedure which will ‘fast-track’ claims arising from the Christchurch earthquake,” she writes. “The aim is that these claims can be settled as expeditiously as possible and the people of Christchurch can move on with their lives.”

Chief Judge Doogue says she realises this is an unusual step, but believes it is justified by the extent that the people of Christchurch will need prompt access to the civil courts to resolve issues of litigation arising from the earthquakes since 4 September 2010 that, for many, will affect their assets.

“To ensure the public can have confidence in its ability to have recourse to the Court, the procedure will readily identify earthquake claims and put them on a ‘fast-track’ for their earliest possible resolution. It is important that the civil jurisdiction of the Court is adequately resourced to respond,” she says.

“We have made certain that in instituting such a procedure adequate resources will ensure that any pre-existing claims before the Court will be dealt with no less expeditiously.”

The Practice Note applies to any earthquake related claims filed in the District Courts at Christchurch, Rangiora, Timaru and Ashburton. Chief Judge Doogue says the Court has the power to set the new procedures under the Canterbury Earthquake Recovery Act 2011.

A copy of the Chief Judge’s Open Letter and the Practice Note is available on my.lawsociety.org.nz.