Law School Deans Reflect on 2019

ISSUE 936 · February 2020

Law school Deans reflect on 2019

Page 54

Trusts Act 2019: Tech predictions Focus on legal More 20th Whether and for the soaring practice in South Century Judges what to disclose 20s Auckland

Page 45 Page 61 Page 68 Page 80 Evaluate. Secure. Congratulations At Anderson Lloyd we pride ourselves on having great people. Guard. We support their progress and are pleased to share their recent promotions because, when our people thrive, our clients thrive too. Well done to all. For local and global protection, talk to the people that live Fiona Sam Buchan James Cowan and breathe trade marks. McMillan Associate Associate Senior Associate Corporate Employment Employment zone law Commercial intellectual property and business law

evaluate secure zone ip guard Fiona Laura McPhail Steve O’Dea Henderson Associate Associate Associate Corporate Corporate Property & Commercial Commercial WGTN +64 4 801 5040 I AKL +64 9 352 2042 Private Client zoneip.co.nz I zonelaw.co.nz

® Lois Stone Reuben Celeste Brown Shortland Chambers is pleased to announce LexisNexis knows you want Associate Adams-Cook Senior Solicitor that Yvonne Wang and Sarah Armstrong to be informed on what’s Property & Senior Solicitor Corporate have joined Chambers. We wish them well Private Client Corporate Commercial happening in the industry. Commercial in their careers at the bar. Discover LexisNexis Journals Yvonne Wang and Bulletins. Prior to returning to the independent bar, Georgia Nick Hume Rachel Pfahlert Yvonne was a Senior Solicitor at the highly Cassidy Senior Solicitor Senior Solicitor respected Auckland firm Meredith Connell. Explore our titles: Before that, Yvonne practised as a barrister Senior Solicitor Property & Litigation at two different sets of Chambers in Auckland. • New Zealand Family Law Journal Resource Private Client Yvonne acts in criminal and civil proceedings Management with a particular interest in serious fraud, • New Zealand Intellectual Property Journal regulatory prosecutions, proceeds of crime, • New Zealand Law Journal disciplinary proceedings and public interest litigation. • Butterworths Conveyancing Bulletin Anna Sloan Rowan Woods Sarah Armstrong • Company and Securities Law Bulletin Senior Solicitor Senior Solicitor Corporate Litigation Sarah is an award-winning commercial • Employment Law Bulletin Commercial litigation specialist. • Resource Management Bulletin Sarah joins the bar after 12 years as a partner of Russell McVeagh’s litigation practice where she has appeared in complex contract and tort claims, banking and financial markets investigations and litigation, company and securities disputes, insurance, tax payer challenge proceedings, product liability and intellectual property. Contact [email protected] to discuss subscription options that are right for you.

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20NZCRS02_87x267mm print ad.indd 1 30/01/2020 10:12 AM Congratulations At Anderson Lloyd we pride ourselves on having great people. We support their progress and are pleased to share their recent promotions because, when our people thrive, our clients thrive too. Well done to all.

Fiona Sam Buchan James Cowan McMillan Associate Associate Senior Associate Corporate Employment Employment Commercial

Fiona Laura McPhail Steve O’Dea Henderson Associate Associate Associate Corporate Corporate Property & Commercial Commercial Private Client

Lois Stone Reuben Celeste Brown Associate Adams-Cook Senior Solicitor Property & Senior Solicitor Corporate Private Client Corporate Commercial Commercial

Georgia Nick Hume Rachel Pfahlert Cassidy Senior Solicitor Senior Solicitor Senior Solicitor Property & Litigation Resource Private Client Management

Anna Sloan Rowan Woods Senior Solicitor Senior Solicitor Corporate Litigation Commercial 129

FROM THE CHIEF EXECUTIVE 23 · NEW ZEALAND LAW SOCIETY 06 · Wellbeing as a central 33 · ACCESS TO JUSTICE pillar for progress LETTER TO THE EDITOR PEOPLE 34 · Limited-licence applications 07 · New Year Honours TALKING ABOUT MENTAL HEALTH PEOPLE 37 · Meredith Connell puts 08 · On the move 6866 principles into practice ▹ BY JO PEOPLE MURDOCH AND ANDY SMITH 09 · Queen's Counsel appointed TALKING ABOUT MENTAL HEALTH PROFILE 38 · How I’ve helped myself: A 12 · The new QC fighting for sole practitioner’s tale social justice: Karen Feint PRACTISING WELL ▹ BY NICK BUTCHER 40 · Purea nei: Changing the PROFILE culture of the legal profession 16 · Tony Bouchier: how law ▹ BY ALLANAH COLLEY, ANA helped to beat a mid-life LENARD AND BRIDGET MCLAY crisis ▹ BY TEUILA FUATAI 42 · AML/CFT THE INNOVATORS INTELLECTUAL PROPERTY 20 · Maria Sopoaga: Solicitor, 44 · Everything is not ka pai 10288 Auckland Council ▹ BY LIDA AYOUBI ▹ BY ANDREW KING

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4 Contents

TRUSTS TECHNOLOGY LEGAL HISTORY 45 · Whether and what to disclose, 63 · Legal tech roundup 80 · More 20th century judges these are the questions ▹ BY SIR IAN BARKER QC ALTERNATIVE DISPUTE ▹ BY RHONDA POWELL RESOLUTION LEGAL INFORMATION TRUSTS 66 · Principles of influence: personal 88 · Recent legal books 48 · The Evolution of Trustees authority ▹ BY PAUL SILLS ▹ BY GEOFF ADLAM ▹ BY HENRY BRANDTS-GIESEN PRACTICE 89 · WILL NOTICES IMMIGRATION 68 · Focus on... South Auckland 91 · CLASSIFIEDS 50 · Parents, migrants and ▹ BY CRAIG STEPHEN Immigration New Zealand 94 · CPD CALENDAR PRACTICE ▹ BY MAHAFRIN VARIAVA 72 · Fifty years of forensic LIFESTYLE LEGAL EDUCATION medicine in New Zealand 97 · A New Zealand Legal 52 · Keeping students safe ▹ BY JACK DRUMMOND Crossword ▹ SET BY MĀYĀ ▹ BY OLIVER FREDRICKSON PRACTISING WELL LIFESTYLE LEGAL EDUCATION 74 · The imposter syndrome 98 · Law on the Telly: The Court 54 · Law school Deans reflect ▹ BY EMILY MORROW Report ▹ BY CRAIG STEPHEN on 2019 and look ahead to SUSTAINABLE PRACTICE LIFESTYLE 2020 ▹ BY NICK BUTCHER 76 · Recycling in the office 99 · Lyon: a culinary gem amid a TECHNOLOGY ▹ BY TRACEY CORMACK violent history ▹ BY JOHN BISHOP 61 · Tech predictions for the soaring 78 · LAWYERS COMPLAINTS SERVICE 102 · TAIL END 20s ▹ BY DAMIAN FUNNELL

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5 FROM THE CHIEF EXECUTIVE February 2020 · LAWTALK 936

FROM THE CHIEF EXECUTIVE Wellbeing as a central pillar for progress

The beginning of the year is often a time for contemplating changes to our personal and professional lives. The beginning of a new decade adds a certain piquancy to this process as we seek to set long-term goals. With that in mind, my first column for LawTalk as we enter a new decade focuses on wellbeing not just as an optimistic “nice to have” but as one of the Law Society’s four key strategic pillars. Since 2018 the Law Society, and the profession we regulate and represent, have moved from becoming starkly aware of the degree of change required to the culture of the legal profession through reaction and response and now, in 2020, to a focus on wellbeing as a central strategic element. This is about wellbeing in its broadest sense, with a focus on the Law Society being one of the leaders in evolving the law profession’s culture. It is about ensuring we can use our powers as a regulator, and our resources as a membership organisation, to bring about enduring change by ourselves and in partnership with others. That statement does need to carry with it a caveat. The decision announced by Law Society President Tiana Epati last October to commission an independent review Further engagement on the draft will occur early this of the structure and function of the Law Society reflects year prior to it being finalised. the constraints the current Act places on our ability • We are also progressing proposed changes to the to be transparent about our complaints process, and Lawyers and Conveyancers Act (Lawyers: Conduct to deal with a broad range of unacceptable behaviour, and Client Care) Rules 2008 which were recommended including complaints of sexual harassment, and bullying by the Working Group. These changes are being made within profession. to improve our ability to respond to issues of sexual The review will take time and we need to keep working harassment, discrimination and bullying in the profes- within the existing legislation to make progress building sion within the constraints of the LCA. The proposed on the work done by the Working Group chaired by changes will provide enhanced standards for conduct, Dame Silvia Cartwright, the more recent work done by reporting and compliance. We will be releasing a draft the Culture Change Taskforce and the evidence base for comment shortly. provided by the 2018 Workplace Environment Survey. We are also continuing the two pilot projects started We anticipate further conversations and feedback in 2019 and will be evaluating these and sharing the opportunities on key pieces of work currently in progress outcomes: including: • To date, the mentoring pilot programme, being run • The Culture Change Taskforce Strategy was received in Auckland and Canterbury, has been accessed by by the Law Society’s Board as a draft in December more than 483 lawyers and resulted in 189 men- 2019. The Taskforce members, volunteers drawn from toring matches. Feedback from participants in the across the profession, have committed an enormous programme has been overwhelmingly positive. amount of time and energy in preparing the strategy • A pilot community counselling service, helping and the Board expressed their thanks for this work. lawyers and those who directly work in the legal

6 LAWTALK 936 · February 2020 PEOPLE

PEOPLE New Year Honours community, to deal with the pressures of their roles is also being well used. Since May 2019, 268 people have used this service (202 lawyers and 66 legal work- Supreme Court Justice Joseph place staff) with an average of two Victor Williams was made a Knight sessions per person. Companion of the New Zealand Order Later this year, we will mark two of Merit for services to the judiciary. years since the launch of the Gender Justice Williams is an internation- Equality Charter and will provide ally recognised expert in indigenous an opportunity to measure progress. rights law and one of New Zealand’s There will also be the opportunity leading specialists on Māori land to be involved in the group that and legal issues. He established supports this work with expressions the first unit specialising in Māori of interest recently opening for four issues in a major New Zealand law new members of the Women’s firm at Kensington Swan in 1988. Advisory Panel. He co-founded the law firm Walters Another new initiative is the Williams and Co in 1994. He was establishment of a Wellbeing appointed Chief Judge of the Māori ▴ Justice Joseph Victor Williams Oversight Group which will provide Land Court in 1999. Justice Williams independent expert guidance and was appointed acting Chairperson expert advice to inform and assist of the Waitangi Tribunal in 2000 us to develop a comprehensive and as the permanent Chairperson Wellbeing Strategy. in 2004. As Chairperson he played a Over the coming months, I will pivotal role in the report on the Wai be sharing more detail of both the 262 claim relating to New Zealand’s role of this group and the overall law and policy affecting Māori cul- Wellbeing Strategy. As we imple- ture and identity. ment the strategy, we will continue Sir Joe was appointed as a judge with a mix of evaluating whether of the High Court in 2008, a judge what we have is fit for purpose, of the Court of Appeal in 2018 and piloting new approaches and to the Supreme Court in 2019. He gaining a better understanding of was a founding member and former where there are gaps and our role vice-president of the Māori Law as a driver, or supporter, in filling Society, a former president of Te those gaps. Runanga Rōia o Tāmaki Makaurau – ▴ Robert (Bob) Narev MNZM In doing this work we will con- the Auckland Māori Lawyers’ Asso- tinue to report to, and be guided by, ciation, a fellow of the International the President, Law Society Board Academy of Trial Lawyers, and a and Council and well as engaging fellow of the Law Faculty of Victoria with a broad range of stakeholders University of Wellington. so the work we do fits with other “Sir Joe Williams has made an initiatives and has impact. ▪ immense contribution to the eleva- tion of Māori voices in the justice Helen Morgan-Banda system. This honour is well-de- Chief Executive, New Zealand Law served,” Justice Minister Andrew Society. Little said. “Sir Joe Williams has brought a The Law Society Board agreed unique blend of legal intellectual in December that the title Chief rigour and tikanga Māori to his pres- Executive will be used rather than ent role, and so reflects New Zealand Executive Director as it better in the 21st century. Having been a reflects the role. Judge of the High Court since 2008, ▴ Clayton Trevor Arthur Stent

7 PEOPLE February 2020 · LAWTALK 936

and of the Court of Appeal since 2018, it was only fitting he became a Judge of the Supreme Court earlier this year, and now is a worthy recipient of this knighthood.” On the Anthony Harper Former lawyer Robert (Bob) announces new Narev MNZM was honoured as an partner Officer of the New Zealand Order Move of Merit for his contribution to the Kathryn McKinney has become community and education. Mr Narev a partner in Anthony Harper’s is the Chairman of the Holocaust and employment Antisemitism Foundation (formerly Julie Ding appointed practice. Kathryn Shadows of Shoah Trust) and has director of K3 Legal has over 20 years’ chaired the Auckland Holocaust employment law Memorial Trust since 2016. He has Julie Ding has experience gained been an Educator for Holocaust been appointed at top-tier firms in Education since 2002, regularly a director of New Zealand and speaking to children at secondary Auckland firm K3 the United Kingdom. Her expertise schools and to adult groups. He has Legal. She joined covers the employment aspects of used his experience as a Holocaust K3 Legal in 2015 large-scale mergers and acquisi- survivor to teach thousands of New and has worked tions, advice on employment dis- Zealand students about the dangers across a variety of complex civil, putes and Holidays Act compliance, of racism, prejudice and bigotry and commercial and family disputes, executive employment remunera- the importance of respecting people appearing in the District and High tion, high value termination and exit of all races and religions. He has been Courts – everything from murder settlements. a Founding Trustee for the Senior trials and complex fraud through Outreach Service since 2003 and a to family-related issues has come Trustee of the Gemach Fund since under her purview. Julie will lead Chapman Tripp 2016. Mr Narev spent over 60 years at K3’s criminal team, aiming to announces three Auckland firm Glaister Ennor, which develop it into a firm specialty. new partners he joined in November 1956 before his admission to the bar in 1960. Chapman Tripp has announced Taupo lawyer Clayton Trevor Kensington three new partners across their Arthur Stent was honoured as Swan announces Auckland and Christchurch offices, a Member of the New Zealand new partner effective from 1 December. Order of Merit for services to the Lauren Curtayne has become community and governance. Mr Wook Jin Lee has a corporate and Stent was Mayor of Taupo from for been promoted to commercial part- two terms from 2001 to 2007 and the Kensington ner in the Auck- has contributed to a range of com- Swan partner- land office, with munity organisations for over 30 ship. Wook Jin particular exper- years. Mr Stent is Chair of the Lake has experience tise in the energy Taupo Protection Trust, having been working across sector. Lauren a Trustee since 2010. The project has a wide spectrum of sectors, started with the firm in 2008, and been acknowledged by the OECD as including electricity, technology, previously worked for UK-based a leading national and international telecommunications, hospitality multinational firm Allen & Overy environmental project. He played a and insurance. His expertise in its Abu Dhabi Projects team. key role in bringing Life Education includes advising on mergers and Lauren advises on the development to the Taupo Ruapehu District in acquisitions (including takeovers of a wide range of major projects, 1994 and led the process of raising of NZX-listed companies, and including power, gas, solar and funds to purchase the first mobile private equity investment and infrastructure projects, together classroom. He remains involved divestment transactions), joint with general commercial, regula- with the Life Education Trust as venture arrangements, corporate tory and consumer law issues. She Patron, having been Chairman until governance considerations, and has particular interests in renewable 2000. He is a director in Taupo law equity capital raising transactions. projects and emerging technology. firm Cargill Stent Clarke Lawyers. ▪ He is also a fluent Korean speaker. Tessa Baker has become a

8 LAWTALK 936 · February 2020 PEOPLE

PEOPLE Queen’s Counsel property and real estate partner in the Auckland office. She began appointed her legal career at Chapman Tripp as a law clerk in 2006. Tessa specialises in Attorney-General David Parker commercial prop- announced the appointment of eight erty law, with specialist expertise in Queen’s Counsel on 5 December. New Zealand’s overseas investment Mr Parker said the appointments regime. She is experienced in sub- were made under a new criterion of stantial and complex commercial a commitment to improving access property transactions, build and to justice. lease contracts for industrial and “The new criterion was included commercial projects, residential this year. It emphasises that excel- development, project develop- lence and leadership in the profes- ment, due diligence, commercial sion can be seen through a wider, conveyancing, property finance community lens. It is pleasing to project agreements and supporting see the profession is making a good property interests for infrastructure contribution to access to justice,” he projects. said. The newly appointed Queen’s ▴ Stephen Hunter QC Nick Letham Counsel are: has become a corporate and com- Stephen Hunter mercial partner in Graduating with an LLB(Hons) and the Christchurch BA from the University of Auckland office. Nick started in 1999, Stephen Hunter was at Chapman Tripp awarded a Fulbright Scholarship as a law clerk in 2007. Nick special- and gained an LLM from Harvard ises in corporate and commercial University in 2002. He was admit- law, with a particular interest in ted as a barrister and solicitor in mergers and acquisitions, securi- September 1998. From Harvard he ties law and corporate governance. went to London in 2002 to work Advising across a range of industries, in the litigation team at Herbert he has developed particular expertise Smith. He returned to New Zealand in the retirement village and aged in 2006 to work at Gilbert Walker care sectors, and agribusiness in in Auckland, becoming a partner both New Zealand and Australia. in 2008 and acting mainly in High ▴ Julie-Anne Kincade QC Nick also advises on joint ventures, Court civil cases. He also lectured supply and distribution contracts part-time in public law at the Ltd Litigation Skills Programme, and other commercial arrangements. University of Auckland from 2006 as the New Zealand member of to 2008. the Institute for Transnational Mr Hunter became a barrister Arbitration Board of Reporters, and Rice Craig announces sole and a member of Shortland as a trustee of the Hugo Charitable new partner Chambers in 2016, focusing on Trust. commercial and regulatory matters Henry Herman joined the Rice in the High Court. He is a member Julie-Anne Kincade Craig partnership from 1 January of the Auckland Crown Prosecution Julie-Anne Kincade graduated 2020. Admitted as a barrister and Panel, the SPCA Pro Bono Panel, LLB(Hons) from the University of solicitor in June 2005, Henry has and the New Zealand Lawyers Huddersfield, England in 1990 and been with Rice Craig since 2010 and and Conveyancers Disciplinary was admitted in New Zealand in July continues to lead the family law Tribunal. Mr Hunter also serves as 2007. She began her legal career at department. a faculty member of the NZLS CLE the Chambers of Richard Ferguson

9 PEOPLE February 2020 · LAWTALK 936

Lawyers' Association, and Auckland Medico-Legal Society. Simon Foote Simon Foote graduated with an LLB(Hons) in 1993 and a Diploma of International Commercial Arbitration in 2010. He is currently a PhD Candidate at Victoria University of Wellington. Mr Foote was admitted in September 1993 and began working at Russell McVeagh as a litigation solicitor. He moved to London in 1997 where he worked as a solicitor in the international arbi- ▴ Simon Foote QC tration team at Clifford Chance. After ▴ Nicolette Levy QC a year, he returned to New Zealand, joining Ben Vanderkolk & Associates in Palmerston North where he worked as a Crown Prosecutor and civil litigation solicitor. In 2001, Mr Foote returned to Russell McVeagh, before moving to the Bar a year later at City Chambers in Auckland. He joined Bankside Chambers in 2008, and practises in commercial and civil litigation and arbitration, Crown panel work, and regulatory criminal defence matters. Mr Foote is a Council member of the New Zealand Bar Association and a Fellow of the Chartered Institute ▴ Janet McLean QC of Arbitrators and the Arbitrators’ ▴ Karen Feint QC and Mediators’ Institute of New (now known as Carmelite Chambers) Zealand. He is a co-author of the at Princeton University (2009), the in London, working as a criminal New Zealand Bar Association’s 2018 Australian National University lawyer from 1991 until her departure Report on Access to Justice. (2001), and at Indiana University as to New Zealand in 2005. She started the George P. Smith Distinguished working at Meredith Connell as a Janet McLean Visiting Professor (2003). Professor senior solicitor in 2007 where she Janet McLean graduated LLB(Hons) McLean also taught for two years at prosecuted criminal matters at all from Victoria University and gained Victoria University, serving as the levels. an LLM from the University of Director of the New Zealand Institute Ms Kincade joined the independ- Michigan. She was admitted as a bar- of Public Law. ent bar in 2013 and spent the next rister and solicitor in December 1986. She is currently a Professor of Law three years at Verus Chambers Early in her legal career she served and Associate Dean (Research) at where she mainly worked on the as a legal research officer at the New the University of Auckland and a Lundy case. She is currently based at Zealand Law Commission and as a visiting Professor at the University Blackstone Chambers and serves as legislative drafter in Alberta, Canada. of Melbourne where she teaches a panel member for Kayes Fletcher Professor McLean has spent much in their Masters programme. As Walker. Since 2015, Ms Kincade of her career at the University of a specialist in constitutional and has been a faculty member and Auckland, teaching from 1991 to 1997, administrative law, she is the presenter at the NZLS CLE Ltd 1999 to 2006, and from 2011 onwards. author of a number of publications. Litigation Skills Programme. She She served as Professor of Law and Professor McLean has also acted as is also a member of a number of Governance at the University of an advisor for the New Zealand gov- groups including the New Zealand Dundee and has held visiting fellow- ernment, serving on the Legislation Bar Association, Criminal Bar ships at Woodrow Wilson School of Advisory Committee and on a min- Association, ADLS Inc Criminal Politics and International Affairs, the isterial inquiry into Human Rights Law Committee, Auckland Women Program in Law and Public Affairs Protection in New Zealand (2000).

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Attorney-General David Parker ranging from civil and criminal says Professor McLean has been litigation to Family Court cases, appointed Queen’s Counsel under employment cases and Resource the Royal Prerogative in recog- Management Act proceedings. nition of her extraordinary and He has been a part-time lecturer longstanding contribution to, and at Otago University since 1992, development of, the law. teaching courses in advocacy, criminal procedure, and forensic Nicolette Levy law. He is the creator of both the Nicolette Levy graduated with an first advocacy course to be taught LLB(Hons) from Victoria University in a New Zealand university and the in 1990 and was admitted to the only forensic law course to be taught Bar in November 1990. She was in the country. Mr Andersen is the employed as a law clerk at Bell current President of the Criminal Bar Gully Buddle Weir in 1990, before Association and the chair of one of becoming a staff solicitor working ▴ Leonard Andersen QC the two New Zealand Law Society in litigation. In 1993 she moved to Practice Approval Committees. John Salmond Chambers where she He also serves on the faculty of was a pupil to Don Matheson QC for the NZLS CLE Ltd Litigation Skills 18 months. Programme and on the Southern Since 1994, Ms Levy has worked as Selection Committee responsible a barrister sole, specialising in civil for granting approvals for legal aid. litigation and criminal appeals to the Court of Appeal and Supreme Court. Jonathan Temm Ms Levy takes many civil cases on Jonathan Temm graduated with legal aid and has appeared in more a BA and an LLB(Hons) from the than 90 criminal appeals funded University of Auckland in 1993 and by legal aid. Ms Levy is a faculty was admitted to the Bar in June member for Civil Litigation Skills 1993. He joined Chapman Tripp and Expert Witness programmes. Sheffield Young as a law clerk and She is also a member of the New went on to work as a solicitor with a Zealand Bar Association Criminal focus on litigation and property law. subcommittee. ▴ Jonathan Temm QC In 1995, he joined Davys Burton in Rotorua as an associate, becoming Karen Feint a former co-convenor of the New a partner in 2000. Karen Feint graduated with a BA Zealand Law Society Women in Law Mr Temm moved to the Bar and LLB(Hons) from the University Committee, and a current member in 2005, undertaking criminal of Otago and an LLM from the of the Wellington Women Lawyers’ defence work and civil litigation. University of Toronto. She also Association Committee and the New In 2010 he became President of the holds a Diploma in Te Aupikitanga Zealand Bar Association’s Diversity New Zealand Law Society where ki te Reo Kairangi from Te Wānanga Committee. he represented the national legal o Aotearoa. Having been admitted profession for three years. In 2013, in October 1990, Ms Feint began Leonard Andersen he returned to his private practice her legal career as a solicitor at Bell Leonard Andersen graduated where he continues to specialise Gully. After completing her LLM in LLB(Hons) from the University of in criminal and civil litigation. 1994, she returned to New Zealand Otago in 1975 and was admitted in Mr Temm has been significantly to work in the litigation department December 1975. His first legal role involved in his local community, at Buddle Findlay. was as a teaching fellow in the undertaking a number of pro bono She has been practising as a Law Faculty at Otago University, cases for Rotorua residents and barrister at Wellington’s Thorndon before he moved to Whakatāne in serving on the Executive Board of Chambers since 2009, where 1976 to join Osborne Handley Gray the Rotorua Chamber of Commerce she specialises in civil litigation, & Richardson as a staff solicitor. In for eight years. He has also served public and constitutional law, and 1979 he became a partner and was several years on the New Zealand Māori legal issues. Ms Feint has responsible for all litigation within Council of Law Reporting and as particular expertise in the Treaty the firm until his departure in 1990. the Director of the Litigation Skills of Waitangi and is the author Since 1991, Mr Andersen has Faculty. Mr Temm is a member of the of a number of publications on been a barrister sole practising in New Zealand Bar Association and a Māori jurisprudence. She is also Dunedin. His practice is varied, Trustee of the NZ Law Foundation. ▪

11 PROFILE

PROFILE The new QC fighting for social justice Karen Feint

BY NICK BUTCHER

Karen Feint says it is personally thrilling to have been appointed a Queen’s Counsel, but more importantly it represents overdue recognition for the Treaty of Waitangi Bar. Ms Feint has been practising law for over 25 years and over the past two decades has found her legal voice was best served in representing issues of social justice as they intersect with the power of the state. Since 2009, she has practised as a barrister at Wellington’s waterfront Thorndon Chambers in public and constitutional law, with a strong focus on Crown-Māori relations. Ms Feint holds a Bachelor of Arts in social sciences, with a First-Class Honours degree in law from the University of Otago and a Master of Laws (International Human Rights Law) from the University of Toronto, Canada. then partner Carrie Wainwright (now a Māori public law but continues to have a strong Land Court judge), she began acting on his- practice acting for Māori in litigation cover- Finding her niche in law torical Treaty of Waitangi claims before the ing topics as diverse as constitutional law, Karen Feint started her legal career in Waitangi Tribunal. Ms Feint was drawn into judicial review, equity, torts, property and the litigation department at Bell Gully, learning more about New Zealand’s history, environmental law. but found herself searching for a deeper and she loved the challenge. Her career path was not an obvious purpose in the profession. “For the first time I felt that I was doing direction for an Australian to take. She was “It took me a while to find my feet in work that was both interesting and meaning- born in Melbourne, but her family moved the law. I found that commercial law left ful. Commercial litigation is mainly just about to Dunedin when she was a child. Ms Feint me cold, and I was disillusioned by the money; I was much more inspired by being has schooled herself in te reo and tikanga big law firm model that is so driven by able to play a role in remedying injustices and Māori through a Diploma in Te Aupikitanga the bottom line.” creating meaningful social change through ki te Reo Kairangi from Te Wānanga o She wanted to work in areas of law the advancement of indigenous legal rights. Aotearoa, but modestly describes her te where she could see and feel the effect of I have witnessed first-hand how airing and reo as “intermediate level”. the legal work she was doing. redressing historical grievances have revi- It wasn’t until she returned from her OE talised hapū and iwi, and made a genuine Landmark Supreme in 1995 and took a job at Buddle Findlay difference to people’s lives,” she says. Court decision that she found her niche. Working with Ms Feint has developed her expertise in Karen Feint regards the Proprietors of

12 PROFILE

make findings on liability, loss and remedy, and is still ongoing. The Supreme Court decision is a landmark precedent, as it marks the first occasion in which the courts have found that the Crown can owe legally enforceable duties to Māori. Ms Feint says that this is significant because “there is a need for the constitutional relationship between the Crown and Māori to be subject to judicial oversight. We know from history that (as Justice Williams has put it) it is ‘wrong in principle and dangerous in practice’ for the Crown to be the arbiter of its own justice”. The decision has spawned a special issue of the New Zealand Law Review [2019] devoted to academic analysis of what the case might mean for New Zealand law. Alternative career pathways Karen Feint says her appointment to QC proves there are alternatives to the more traditional career pathways in law firms. “I did not find large law firm practice conducive to a family-friendly lifestyle. I went to the Bar back in 2003 when my youngest son was a baby, and it turned out to be the best thing I ever did. I loved and still love having the freedom to do the work I want to do and the flexibility that comes through having no boss or budget to worry about. “One young lawyer told me recently that she was excited by my appointment because she had thought that for women Wakatū v Attorney-General [2017] 1 NZLR was not until 1977 that the remnant tenths barristers to succeed they needed to have 423 case as a highlight of her career, saying were returned to Wakatū Incorporation. gone through Crown Law first. Of course, that it is “one of those once-in-a-lifetime The case was brought against the Crown she is right that a high proportion of female cases that has been such an enormous on the basis that it owed trust and fiduciary silks are ex-Crown Law, but it is good to see privilege to have been involved in”. duties to the Māori customary owners. that the mould is being broken,” she says. The case dates back to the 1840s when The High Court and Court of Appeal However, Ms Feint points out that the the New Zealand Company was acquiring rejected the claim, deciding that the perception that women are succeeding land for its Nelson settlement. As part of its Crown’s obligations to Māori were in the disproportionately through the public systematic colonisation plan, the company nature of a ‘political trust’, and therefore service compared to private practice is proposed the ‘tenths’ scheme, whereby were not legally enforceable. However, in borne out by the facts – in 2018, NZ Bar one-tenth of the land would be reserved 2017 the Supreme Court overturned the Association research showed that the pro- and held on trust for the Māori customary lower courts in a mammoth judgment portion of women acting as lead counsel owners so that they too would benefit from that occupied 255 pages of the law reports. for the respondent in the Court of Appeal the new town in their midst. The Crown The court decided that the Crown owed and Supreme Court in 2017 dropped from approved the land purchase on that basis, fiduciary duties to reserve 15,100 acres of 38% and 37% respectively to just 17% and and acted on behalf of Māori in creating land for the Māori customary owners, and 18% when Crown Law was excluded from the Nelson ‘tenths’ reserves. However, the to exclude their pā, urupā and cultivations. the statistics (comparable to the 17% and Crown failed to reserve the full tenth, and it The case was sent back to the High Court to 18% of female lead counsel appearing for

13 PROFILE February 2020 · LAWTALK 936

the appellant). “I think the new criterion rightly reframes the focus by emphasis- Barriers for senior ing the importance of making a women at the Bar contribution to law and the legal Ms Feint believes there continue to profession,” Ms Feint says. be real barriers to progression for Being part of the profession, she women at the Bar. She says that, says, carries with it a responsibility as these figures highlight, it’s still for promoting access to justice, and relatively rare for female barristers in her experience it is as big an issue to be instructed as lead counsel, as it is often portrayed in media particularly in appellate cases. Ms reports. Feint has had a long involvement “The need that Māori have for pro in promoting gender equality in the bono or low-cost legal advice can profession. feel overwhelming. I have done a She considers it unacceptable lot of legal aid work and while that the Inner Bar is nowhere near Māori can get legal aid to go to the to achieving gender equality or Waitangi Tribunal, an iwi or hapū reflecting the diversity of the legal can’t get legal aid as a group to community. go the senior courts. That’s a real After the 2019 appointments, only barrier for Māori.” 31 of 138 practising QCs (22.5%) are Ms Feint also considers the inde- women, even though women have pendence and leadership of the Bar been entering the legal profession is critical for upholding access to in equal or greater numbers to men justice. for over 25 years. Statistics are not “My philosophy of the law has kept on ethnicity, but the ranks of also been shaped in part by the QCs do not appear to be particularly insights I have gained from an of his civil engineering degree at culturally diverse either. Ms Feint understanding of New Zealand’s the University of Canterbury. Her believes that the fact that the Inner legal history. The arc of that history younger son, Camden, is still at Bar is so male dominated matters since 1840 illustrates the fragility of school, but is focused on achieving because it reinforces the (perhaps the rule of law, given that on occa- a competitive road cycling career unconscious) stereotype of a bar- sion law has been used as an instru- in Europe. rister as a “grey-haired white man ment of oppression, or has not been In her down time, Karen enjoys in a pin-striped suit”. applied impartially. To me, the very reading, travelling, mountain biking However, in the last two rounds human fallibility of law underscores and sailing. Over the Christmas under the current Attorney-General, the importance of civil society in break, she completed a 35km moun- David Parker, 50% of the appointees upholding the rule of law, adhering tain bike race at Bannockburn. have been women (contrasting with to the Treaty of Waitangi and inter- “I finished an undistinguished the 2002-2017 rounds when around national human rights norms, and second-to-last but I was just happy three-quarters of the appointees ensuring the independence of the to have made it that far. were men). Ms Feint posits that one Bar and the judiciary,” she says. “We have a 12-metre long Whiting way to achieve change more quickly Since the role was established yacht and regularly sail from Mana would be to simply abolish the rank. in 1907 just 325 people have been Marina in Porirua over to the appointed Queen’s Counsel. This Marlborough Sounds. I find it very The new criterion of shows it recognises the highest relaxing being on the water in such a ‘improving access standard of excellence for lawyers beautiful location. In November we to justice’ representing people in court. went further afield, embarking on The Queen’s Counsel were a voyage to Golden Bay to attend a announced by Mr Parker in Decem- Life outside law party. It took two days each way via ber 2019, and were chosen under Karen Feint QC has a partner, Rangitoto/D’Urville Island, and we a process that now includes a Andrew, and two sons. Her eldest, were lucky enough to have a pod of new standard of demonstrating a Dai, will miss her admission dolphins playing around the boat for commitment to improving access ceremony, as he is over in Boulder, an hour or so as we crossed Tasman to justice. Colorado on an exchange as part Bay,” she says. ▪

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On The Move Contracts Act adjudications, arbi- and purchase of companies and tration and litigation. businesses – including Inner Mongo- MWIS announces Sandy Donaldson is based in lia Yili Industrial Group’s acquisition new partner the Auckland commercial property of Westland by scheme of arrange- team. Sandy spe- ment, the sale of TRG Imaging to Richard Annandale has joined cialises in property a Waterman Fund, and assisting the partnership of MWIS Lawyers law and property Hilton Foods with a green-fields in Whangārei, effective from 1 development – processing factory development. November 2019. Richard has been from small scale Carl Blake is an Auckland-based with MWIS Lawyers since moving residential subdi- member of the to Northland in 2014 from Hamilton. visions to complex employment group. Richard is an experienced lawyer, commercial developments. Her Carl advises on all with a speciality in all aspects of expertise also extends to property aspects of employ- criminal prosecution work. Over his and due diligence advice in residen- ment law including time as a criminal prosecutor he has tial and commercial developments corporate restruc- conducted numerous jury trials in the and commercial leasing. tures, personal District Court and High Court, both in John Craig is a member of the grievances, employment agreements Northland and in the Waikato. Wellington com- and policies, health and safety, human mercial property rights and privacy, and collective group. John has bargaining. He regularly represents Simpson Grierson advised on major employers in mediations and has promotes nine to projects for Crown appeared before the Employment special counsel and local authority Relations Authority, Employment entities, as well as Court and Court of Appeal. Simpson Grierson has promoted corporate clients. These include the Nicky Hall is a senior litigator nine senior associates to the posi- development and leasing of new build with over 20 years’ tion of special counsel, effective premises, refurbishment projects, due experience in gen- from 1 January 2020. diligence, joint ventures, and the eral civil litigation. Sonia Vitas is a member of the management of significant sales and She has particular Auckland-based purchases of commercial properties. expertise in prop- construction team. Louise Taylor is an Auck- erty litigation, Sonia has advised land-based member of the com- public works clients on con- mercial group. Louise specialises compensation and rent reviews, struction projects in all aspects of as well as contract and commercial across a wide technology law disputes. Nicky is currently leading range of indus- and advises clients the process for addressing land com- try sectors. Most recently she has across a range of pensation issues in respect of the advised Watercare on the Central general commer- City Rail Link project. Interceptor Project – one of the larg- cial and technolo- Graeme Palmer is an Auck- est and most complex wastewater gy-related projects. land-based member of the local gov- infrastructure projects undertaken She has particular expertise in new ernment and environment group. in New Zealand. She has particular and emerging tech, including AI, Graeme advises public entities, and expertise in project procurement blockchain, internet of things, cloud/ in particular local and documentation. fog, quantum computing and drones. government cli- Deborah Rowe is also a member Louise is also a Deputy Chair of the AI ents across a wide of the Auckland- Forum NZ Executive Council. range of matters based construction Jane Harris is a member of the including rates, team. Deborah Auckland-based council-controlled has helped clients commercial group. organisations, infra- across a range of Jane has advised structure, bylaws and statutory bills. sectors on con- corporate cli- He also specialises in judicial review, struction contracts ents on a variety appearing in numerous High Court and in resolving construction related of transactions and Court of Appeal hearings, the disputes, including Construction related to the sale Privy Council and the Supreme Court.

15 PROFILE February 2020 · LAWTALK 936

16 LAWTALK 936 · February 2020 PROFILE

PROFILE Tony Bouchier: how law helped to beat a mid-life crisis

BY TEUILA FUATAI

and it certainly did. Tony Bouchier laughs ruefully when we finally “Every day in the police was a new and different day.” connect on the phone. The 67-year-old gives a brief summary of his nearly At the time he is in Japan and it is a few days since 30 years as an officer. He touches on his first posting as the disappointing Rugby World Cup match between the a constable in Rotorua. A stint in the police undercover All Blacks and England. He serves a refreshing dose of programme is also mentioned, and at the peak of his career, positivity to kick things off. he is an inspector in Auckland. “I’ve never been to Japan before, it’s wonderful,” he says. Despite his rise through the ranks, Mr Bouchier says “Wonderful country, wonderful people and we’ve been he was deeply dissatisfied with his work by his mid-40s. watching a bit of footy and doing a bit of touristy stuff.” The decision to leave the police came after a period of The trip, Mr Bouchier says, is an ideal combination of professional frustration, he says. his and his wife’s – retired District Court Judge Josephine “I hadn’t been to university, so when I was a senior Bouchier – love for travel and rugby. With the bulk of sergeant I thought it was time to get some tertiary qual- their careers behind them, the Auckland-based couple are ifications. I went to the University of Auckland and did making the most of a more leisurely lifestyle. a Masters of Business Administration and I thought that “I’ve been a barrister for 20-something years – I’m not would help my prospects in the police, but I found that quite sure how long ... and now, I’m semi-retired.” it didn’t.” Mr Bouchier has had two full and varied careers in “the law”. The first began when he entered the police as Law student to barrister sole a bright-eyed 19-year-old recruit in 1972. The suggestion of studying law came from his wife, Mr Bouchier says. From farming to police officer “When I was expressing my unhappiness in the police, “Prior to joining the police, I was farming she said: ‘Well you always criticise these lawyers you and milking cows in Waikato,” he says. “I appear in front of. Why don’t you go and do a law degree?’ really enjoyed farming because I liked the “The penny literally dropped on the spot and I thought variety in it – every day was something ‘what a good idea’. different. “So, I took three years of leave without pay and I went “But I could see there was no future in When I was to Auckland University and did a law degree.” farming for someone like me. You either expressing my He intended to return to the police at its completion, had to inherit a farm or marry one of the unhappiness in however, familiar reservations about the work returned. local farmer’s daughters to get a chance at the police, she “While they had a job for me, they didn’t have any getting into your own land.” said: ‘Well you specific plan for my career, and I thought that all I would Mr Bouchier recalls his original attempt always criticise be doing is going back to more of the same,” he says. at joining the police was rebuffed because these lawyers Once he left, it was “a very short period of time” in he did not have school certificate and you appear in the finance industry. But he quickly realised “it wasn’t university entrance qualifications. front of. Why my thing”. However, following the death of his father don’t you go “I literally stepped out of there, hung out my shingle as he returned to the family home in Mt and do a law a barrister and have never looked back.” Maunganui and his mother suggested he degree?' The Transitioning away from the prosecutorial process, have another crack. penny literally and shifting into self-employment, was exactly what he “I applied and literally was accepted dropped on needed. Knowledge of the police process also made him within no time at all. I knew nothing about the spot and I uniquely qualified to represent defendants, Mr Bouchier the police ... but I thought the job would thought ‘what adds wryly. provide me with the variety farming had, a good idea’ “I suppose I sort of spent 20-something years prosecuting

17 PROFILE February 2020 · LAWTALK 936

as an investigator, and I’ve got to say criminal justice system adds huge Mr Bouchier says while changes that probably the best training you value and is really important for our stemming from the judgment are can get as a defence counsel is to do democracy. long overdue, its significance should the police detective training course. “If people can get that mindset, not be understated. “And I wasn’t interested in doing then they wouldn’t be opposed to “Over the years, we’ve had prob- prosecution work because it would more money being thrown into crim- lems with heroin and other serious have meant I would have had to go inal law – into the Ministry of Justice, drugs, but methamphetamine work for the police or the Crown into legal aid, and into rehabilitative absolutely stands out on its own,” and I wanted to be self-employed.” matters around our prisons.” he says. “It is a huge problem. It The current president of ADLS requires thinking outside the square The view from Incorporated notes it is increasingly as to how we deal with offending the other side difficult to attract younger lawyers under the Misuse of Drugs Act.” The new-found enthusiasm for his to criminal defence work. Legal aid work also came with a more circum- payments being out-of-step with Seeing sense in the haze spect understanding of the criminal the requirements of the job are a Related to that is this year’s can- justice process. significant factor, he says. nabis legalisation referendum, Mr “The objective of being a police- “Legal aid payments are really Bouchier says. man is a little different to being a just appalling, and the criminal law A supporter of legalising and defence counsel,” he says. “Without community really does rely heavily regulating recreational use of the doubt, some police go beyond the on legal aid. I think in the future we drug, he talks about the unnec- rules in their attempt to prosecute might have a problem that we just essary harm perpetuated by New people and you certainly see that simply will not have enough lawyers Zealand’s approach to cannabis. unfairness regularly. It’s something who are taking up criminal law as His upbringing in a family which that you don’t realise when you are an option because, financially, it’s immigrated from the Netherlands a policeman.” not worthwhile.” ties into his view of current leg- His unwavering belief in a robust islation. The country is known for and well-resourced criminal bar More police a its liberal approach to recreational is rooted in his experiences as a ‘misdirected solution’ cannabis use and its coffee shops lawyer and police officer. While The police’s role in the criminal that sell the drug. Mr Bouchier includes two attend- justice system is another point “I’m Dutch by birth. My family ances before the Privy Council as a of discussion. I ask whether the immigrated to New Zealand in 1953 member of David Bain’s legal team Government’s promise to add 1,800 from Holland,” he says. as career highlights, he says the new police officers is helpful. Mr “I’ve been travelling back to less complex cases have their own Bouchier couches his response in Holland pretty much every year profound impacts. the phrase “misdirected solution”. since the mid-seventies, since “The most memorable cases are “The problem is the more police they set up their coffee shops. Their often just the minor ones, where you you have out there, the more people world hasn’t imploded, and it hasn’t can see there’s some travesty, some that are being arrested. Those people resulted in a higher uptake of the injustice committed against a client, are being pushed into a system that drug. and that you can go to the court and is under-resourced and it’s just caus- “It’s actually relieved the crimi- the court does listen and you get a ing more capacity problems in the nal justice system of all that minor good outcome for them.” justice system itself.” offending.” Mr Bouchier, a former president of He identifies initiatives like the For New Zealand, he believes the Criminal Bar Association, goes Alcohol and Other Drug Treatment legalising and regulating the drug on to discuss challenges facing the Court, and the Family Violence is the best way forward. “There’s defence bar, linking in the politicisa- Court as more effective responses a whole lot of good reasons as to tion of criminal justice issues. to an over-burdened system. Those why we should be dealing with it “The voting public out there has courts prioritise rehabilitation and as a health issue and why it would a certain attitude towards criminal interfere with the “merry-go-round” be more beneficial to both the public law,” he says. of reoffending, harm and prison, Mr and the justice system to change. We “It’s basically ‘lock them up Bouchier says. just have to see sense in it,” he says. ▪ and throw away the key’. There’s October’s Court of Appeal got to be a change in mindset in decision on methamphetamine Teuila Fuatai  teuila.fuatai@ the community and people must sentencing guidelines (Zhang v R gmail.com is an Auckland-based acknowledge that a good and robust [2019] NZCA 507) also comes up. journalist.

18 LAWTALK 936 · February 2020 NEW ZEALAND LAW SOCIETY

NZLS Rule of Law On The Move before they arise. In recent years, he has been responsible for the Committee Khushbu Sundarji management of a large Canterbury promoted to earthquake-based insurance liti- writes to Senior Associate gation portfolio. He successfully defended an insurer in two High Minister of Khushbu Sundarji, who has been Court trials brought by dissatisfied an associate at homeowners. Nicholas authored Foreign Affairs Stewart Germann the legal textbook Sale of Goods Law Office for the in New Zealand, which won the past two years, has JF Northey Memorial Award for been appointed 2018. He has also been a member of Following release of its state- Senior Associate the McGechan on Procedure author ment on the situation in Nauru, effective from 1 team. the Convenor of the Law Society’s December 2019. She undertakes Rule of Law Committee, Austin commercial, franchising and busi- Forbes QC, wrote to the Minister ness law. Russell McVeagh of Foreign Affairs, Winston Peters announces senior on 9 December. associates and Mr Forbes outlined the Law Chapman Tripp special counsel Society’s concerns and con- promotes two cluded: “We are aware from a special counsel Russell McVeagh has announced media statement on 30 January four promotions and one new [2019] that the New Zealand Two Chapman Tripp lawyers have appointment to the firm. government is looking to extend been promoted to Special Counsel, Jeremy Upson has joined the New Zealand’s relationship with effective from 1 December 2019. litigation team in Wellington as a Nauru in order to promote regional Vivian Cheng joined Chapman Senior Associate. Jeremy specialises values and support development Tripp in 2012. She in commercial and public law dis- and good governance in Nauru. has 17 years’ expe- putes and has appeared at all levels Current developments in Nauru rience advising cli- of the New Zealand court system. run directly contrary to those ents on all aspects Natalie Sundstrom has been objectives and the Law Society of taxation law, promoted to Special Counsel. would urge you to take steps to with particular Natalie is a commercial property raise the concerns directly with expertise in busi- and construction specialist with the Nauruan government.” ness structures and reorganisations, extensive experience advising Mr Peters responded, saying the mergers and acquisitions, financing clients in capital markets trans- Law Society’s continued advocacy transactions and cross-border taxa- actions, leasing and construction of justice and the rule of law was tion. She also advises on FATCA and projects. appreciated. He said New Zealand the automatic exchange of finan- Bradley Aburn has been pro- continued to follow developments cial account information. Vivian moted to Senior Associate. Bradley in the Nauruan justice system. regularly speaks at events, was specialises in competition and He noted that on 30 January past chair at the annual NZLS Tax consumer law and has extensive 2019 New Zealand had increased Conference, is a regular contributor experience in advising clients on its development funding to Nauru to the New Zealand Law Journal, and competition investigations, compet- to NZ$18.5 million over three years, is ranked by Chambers Asia Pacific itor collaborations, merger control an increase of about NZ$8 million. as an Associate to Watch. and market power issues. “New Zealand’s diplomatic and Nicholas Wood provides Kristen Gunnell and Lauren development partnership with advice on dealing Eaton have both been promoted to Nauru provides a basis for regular, with commercial Senior Associate. Kirsten and Lauren constructive discussions with Nauru disputes, civil are environmental and resource on issues of importance to New litigation and arbi- management law specialists, with Zealand, such as the importance tration, as well as experience in major commercial of good governance, democratic on managing the development and infrastructure institutions and the rule of law,” risk of disputes projects. he concluded. ▪

19 THE INNOVATORS February 2020 · LAWTALK 936

THE INNOVATORS Maria Sopoaga Solicitor, Auckland Council

BY ANDREW KING

Tell us about yourself? speaks to our ability as both individ- I’ve been fortunate to have fallen uals and as an entire community to into this world of tech and innova- accept that there are areas in which tion so early on in my legal career. we could do better, that this is okay I’ve always been somewhat inclined as long as we are willing to try new to think about how things could be solutions, and importantly, that done differently, more efficiently and failure is part of the process, and more collaboratively. It wasn’t until not a reason to give up. the Young Legalpreneurs scholarship design. For me, we need to get the What role does technology opportunity with the Centre for Legal innovation part right before looking play in innovation? Innovation (CLI) came up earlier this to buy/create/apply tech solutions. year that I realised how innovation Technology can be a fantastic tool in What pressures are and tech could really drive positive supporting and enabling innovation; organisations facing in the change. I am by no means an expert, one need only look at something like delivery of legal services? but I come to the legal profession automation to see how tech can with fresh eyes and a new perspec- increase efficiency exponentially. Clients continue to demand more tive, and that’s really what I think In the same vein, technology can for less from their legal service innovation and tech are all about. provide as much hindrance as it can providers. The growth of in-house support if implemented improperly, capability shows that clients are What does legal innovation or particularly where organisations wanting legal services even more mean to you? are required to make best use of quickly and for less money. On the For me, legal innovation is fun- outdated legacy systems. A huge other hand, the legal profession has damentally about being open to learning for me has been under- been asked to take better care of change. It’s about understanding standing that innovation and tech its people, with mental health and that improvement is a continuous, are not the same thing. I’ve found wellbeing a huge priority across iterative process, and not a desti- that there are many in our profes- a multitude of sectors and indus- nation. We work in a notoriously sion that also confuse the terms, tries. I believe when done properly, conservative profession, and it’s marred by their own experiences innovation and tech can be a huge becoming clearer and clearer that with poor technology and systems, leveller in this space, maximising much of what we do and the way we and apply the same hesitancy and the capability of existing individuals work is unsustainable. Innovation suspicion toward innovation and while also increasing the efficiency of legal systems and services.

What developments do you see in how legal services are delivered? With AI taking over much of the low-level work of law firms and organisations, younger members of the profession will need to leave university with better legal expertise and strategic skill right off the bat. On the flip side, this requires buy-in from law firms, willing to

20 LAWTALK 936 · February 2020 THE INNOVATORS

allow younger legal professionals greater influence and input into higher level work, particularly given On The Move advised clients on transactions clients continue to demand better and problem solving in a range legal services at a lower cost. of sectors, in multiple jurisdictions, including public private What opportunities has legal Murray Grant partnerships, infrastructure and innovation brought to you? appointed Special Counsel at Wotten construction matters, mergers and Aside from the CLI scholarship + Kearney acquisitions, and a wide variety of opportunity and the amazing con- commercial contracts. nections I’ve been able to make New Zealand-based Murray Lois Stone of the property and – both of which I am incredibly Grant is one of private client team has been pro- grateful for – legal innovation has seven promotions moted to Associate. Based out of opened my eyes to the endless pos- announced by Aus- the Christchurch office, her areas sibilities for legal services. The law tralasian insurance of expertise include corporate and can be isolating and discouraging for law specialist firm commercial, private client, property many who might not fit in the stere- Wotton + Kearney. and development, and wills and otypical idea of what a lawyer should Murray specialises estate administration. be. Legal innovation has taught me in employment-related disputes Fiona Henderson of the property that thinking differently is something including issues of discrimina- and personal client team has been to be valued, and puts me and others tion and whistleblowing. He has promoted to Associate. Based out like me, on the forefront of change. a strong advocacy background in of the Christchurch office, Fiona mediations, tribunals and courts advises on a number of matters What are some of your tips to including in the Human Rights including residential and commer- start innovating or developing Commission. Murray also has cial property transactions, subdi- an innovative mindset? considerable experience assisting visions, commercial leasing and Just start! It sounds easy enough, but healthcare professionals on med- property matters affecting irrigation most people who may be thinking ico-legal and regulatory issues in schemes. about alternative ways of doing New Zealand. Sam Buchan of the corpo- things don’t realise that they’re think- rate-commercial team has been ing innovatively. There are so many promoted to Associate. Based out free resources online for those who Anderson Lloyd of the Dunedin office, Sam’s areas may be new at things like innovation announces seven of expertise include commercial and tech so look for them next time senior promotions contracts, mergers and acquisitions, you’re perusing Google or LinkedIn. infrastructure and construction, Fiona McMillan in the employ- intellectual property and corporate Why is it important for legal ment team has been promoted to advisory. professionals to continue to Senior Associate. Based out of the James Cowan has been pro- learn about legal innovation Dunedin office, Fiona specialises moted to Associate in the Dunedin and leveraging technology? in employment and education law. litigation and employment team. Without overstating the fact – Fiona has been with the firm since James specialises in employment because it would be irresponsible 2007. Before becoming a lawyer, law as well as health and safety not to. You wouldn’t use a pen and Fiona worked as a primary school and general civil litigation. James paper to draft pages and pages of teacher, which puts her in a strong has particular expertise in advising written submissions (or at least I position to advise on legal issues on and conducting employment hope not), so it makes no sense not affecting schools. investigations. to learn about what’s next in inno- Steve O’Dea in the corpo- Laura McPhail of the corpo- vation and technology. Whether you rate-commercial team has been rate–commercial team has been like it or not, change is already here, promoted to Associate. Steve, promoted to Associate. Based out so might as well look into now. ▪ who is based out of the Auckland of the Queenstown office, Laura office, advises on a wide range of specialises in unique business struc- Andrew King is the organiser of corporate and commercial matters, tures and commercial deals. She also LawFest, an annual legal technol- with particular specialism in infra- is heavily involved in early stage, ogy event which will be held at the structure, construction, intellectual complex, property development Cordis Auckland on 18 March. property and technology. He has projects.

21 ON THE MOVE February 2020 · LAWTALK 936

On The Move Esther Bennett specialises in His areas of spe- environmental and resource man- cialty include Terry Kirkham joins agement law. commercial and Holland Beckett Lorraine Hercus specialises in property litiga- Law in Rotorua employment law, health and safety, tion, relationship information law, litigation and dis- property, and Bay of Plenty firm Holland Beckett pute resolution. trust and estate Law has announced Terry Kirkham Stephanie Snedden advises on disputes. He has also worked as Special Counsel all aspects of commercial property. with various types of alternative in the firm’s Roto- Luke Sizer specialises in commer- dispute resolution. He has made rua office. Terry cial litigation and arbitration. numerous appearances in the High has 26 years’ expe- Amy Cunniffe specialises in Court, District Court, and Family rience and has corporate and commercial law with Court. He also has Court of Appeal, been practising particular experience in mergers Alcohol Regulatory and Licensing law in the Taupo and acquisitions, joint ventures, Authority, and Disputes Tribunal region for the past 10 years, spe- restructuring, corporate governance advisory experience. David is a cialising across land and commer- and commercial contracting. volunteer trustee and co-chair of cial law. His commercial practice Leigh Zeigler specialises in Community Law Wellington and includes leasing, business start- various areas of environmental, Hutt Valley. ups, commercial contracts and asset resource management and local ownership structures, and he also government law. acts for iwi-owned entities and Jonathan Schwarcz has experi- Brenton Rooney joins farming clients. ence in debt recovery, insolvency Race Douglas Burke matters and contractual claims. Brenton Rooney has joined Dun- New special counsel edin firm Race and senior associates Two join Douglas Burke as at Buddle Findlay Morrison Kent a Senior Associate. Brenton special- Buddle Findlay has promoted three DeAnne Brabant has joined ises in property Special Counsel and eight Senior Morrison Kent as and trust law but Associates from 1 January 2020. a Senior Associate has specific exper- in the litigation tise in advising rural clients on suc- Special Counsel team. DeAnne is cession and high value transactions. Natasha Wilson specialises in an experienced dis- Before joining Race Douglas Burke public law and advises on govern- pute lawyer, with Brenton was an Associate at Ander- ment departments, Crown entities extensive history in son Lloyd. and State-owned enterprises, as government regulation and is skilled well as private clients, on a range of in crisis management, policy advice, public, regulatory, and commercial regulatory practice and corporate Two new Senior matters. governance and leadership. DeAnne Legal Counsel at the Nicola Ridder specialises in has worked for IRD and WorkSafe, Electricity Authority health law, employment and indus- and is an Associate Teaching Fellow trial relations, information law, and at Massey University at the Centre for The Electricity Authority’s legal team dispute resolution. Ergonomics, Occupational Safety and has announced Voon Shan Kong Thaddeus Ryan specialises in Health (CErgOsh). She has presented and Katie Wyllie as Senior Legal resource management, environ- training for NZLS CLE, at conferences Counsel. mental, local government and Māori and to non-profit organisations. She is Voon comes to the authority from law. He has helped many Buddle also a Trustee in the Fertility Funding the Reserve Bank of New Zealand Findlay clients navigate complex Charitable Trust. and was previously in the legal team and contentious RMA consenting David Abricossow has joined at MBIE. and planning processes. the firm’s family law and civil liti- Katie was previously at Nokia gation teams as a Senior Associate. New Zealand for several years, with Senior Associates David is an experienced civil litiga- her most recent role being Director Celia Olds specialises in commer- tor with considerable experience at Legal & Contract Management New cial litigation and dispute resolution. all stages of the litigation process. Zealand & Pacific Islands.

22 LAWTALK 936 · February 2020 NEW ZEALAND LAW SOCIETY

NZLS Focus on the Law Society’s Public and Administrative Law Committee

New Zealand in Wellington; and The Public and Administrative Susannah Shaw, an associate at Law Committee began in 2010, to Meredith Connell’s Wellington provide expert advice and opinion office, specialising in public law, on issues relating to public and company and securities law, trusts, administrative law. property and tort claims. The committee’s convenor,Jason The committee commented on a McHerron, is a Wellington barris- wide range of reform proposals in ter at Woodward Street Chambers. 2019 in relation to: Admitted in September 1996, he Official Information: On 24 specialises in civil litigation and has April the committee contributed appeared in all the general courts, as to the Law Society’s feedback to well as specialist tribunals here and the Ministry of Justice on how the overseas. He has been a co-author Official Information Act 1982 is of McGechan on Procedure since working in practice. ▴ Convenor, Jason McHerron 2007 and was one of the authors Racing industry reform: of Subordinate Legislation in New Committee convenor Jason the Referendums Framework Bill. Zealand (LexisNexis NZ Ltd, 2013). McHerron presented a submission Parliament’s Standing Orders: As well as convening the committee, to the Transport and Infrastructure A submission on 31 October to the Jason is an adjudicator for the Motor select committee on 5 June on the House of Representatives Standing Vehicle Disputes Tribunal and a New Racing Reform Bill, expressing con- Orders Committee provided input Zealand Law Society representative cern at the penalty provisions in the on the Review of Standing Orders. on the Rules Committee. bill and its fast-tracking through the Other work: The committee also The other committee members are parliamentary process. contributed to a number of other Anthony Wicks, a senior solicitor Civil aviation law: The committee submissions and legislative and dis- with Chapman Tripp in Wellington provided comments to the Ministry cussion document assessments over who specialises in commercial and of Transport on 4 July on the Civil the year. These included the Electoral public law litigation and dispute Aviation Exposure Draft Bill and Amendment Bill (on 20 September) resolution; Ben Keith, a barrister associated commentary. and an urgent submission on the at Wellington’s Thorndon Chambers 2020 general election referenda: Terrorism Suppression (Control whose main fields of expertise are On 16 September the committee pro- Orders) Bill on 13 November. It is also in administrative, constitutional, vided the Law Society’s submission working on a major submission on human rights and public interna- to the Justice select committee on the Public Service Legislation Bill. ▪ tional law; Lambton Chambers, Wellington barrister Debra Angus, who specialises in public law and democratic governance; Elana Writing for LawTalk Geddis, a barrister at Wellington’s Submission of articles for publication in LawTalk is welcomed. Articles Harbour Chambers and special- must relate to matters which are of interest to members of the New ist in public, administrative and Zealand legal profession and should be less than 2,000 words. All international law; Duncan Cotterill articles must not have appeared elsewhere and will be edited. Wellington partner Nick Crang, who Articles should be submitted to [email protected] as a MS leads the firm’s national public law Word document (no PDFs are accepted). LawTalk does not publish practice; Stephanie Winson, who is advertorial or articles in exchange for advertising or payment. the chief legal counsel for Maritime

23 NEW ZEALAND LAW SOCIETY February 2020 · LAWTALK 936

Some issues with On The Move

Auckland Council disclosure of climate- makes three senior appointments related financial Auckland Council Legal Services has announced three recent senior appointments. information Kathryn Hickling is a senior property special- However, the purpose of the pro- ist, coming to It is problematic to assume the posed disclosure regime appears Council with 20 existing annual return mechanism to be aimed at a different goal: to years’ experience in s 211 of the Companies Act 1993 ensure enterprise-wide assessment in private practice either naturally fits with or can be of specific risks and to increase in large and bou- easily adapted to meet the policy the quality of on-going disclosure. tique firms in New goals for proposed climate-related The risk of criminal liability for Zealand and Australia. Kathryn most reporting, the Law Society says. non-compliance does not seem to recently headed up the property This has been raised in response fit well with the goal of encourag- team in a boutique firm in central to the MBIE discussion document, ing disclosure on an on-going and Auckland. Climate-related financial disclosures – constantly improving basis. Kate Lawson-Bradshaw has understanding your business risks and “There is nothing to stop a com- recently returned opportunities related to climate change. pany from providing more informa- from London, The document sought feedback on tion in its annual report than s 211 after spending a the implications of s 211 for the dis- specifically requires,” the submission year specialising in closure of material climate-related says. “However, to avoid liability, the immigration law information in annual reports. The company and its directors must be at the Government Law Society says the two sets of confident any such information is Legal Department. information are fundamentally dif- accurate and able to be substanti- Prior to this Kate worked at a major ferent and are created for different ated. The nature of climate-related Auckland law firm where she pri- purposes. While a company’s annual information makes this assessment marily practised in professional report and financial statements are virtually impossible.” disciplinary matters and criminal backward-looking and premised on In response to a question on prosecutions. empirical certainty, reporting on directors’ legal obligations, the Kate Morrison climate-related issues is necessarily Law Society says it considers it is is an experienced forward-looking, speculative and now difficult to argue that statutory public lawyer and uncertain. directors’ duties do not include a litigator, with a The information to be provided requirement to consider climate-re- background in in an annual report is the minimum lated matters. It therefore agrees commercial liti- a company must provide to its with the thorough and comprehen- gation. Kate has shareholders, with failure to do so sive legal opinion prepared for the previously worked in a national carrying a risk of criminal liability. Aotearoa Circle in October 2019. ▪ full-service firm where she specialised in public law litigation, and in a boutique litigation practice. Changing your details Various rules and regulations require lawyers and/or firms to PwC Legal notify the Law Society about certain information or when there is New Zealand a change to that information. This includes matters such as change announces two new of work address, employer, name, practising certificate type and appointments trust accounting arrangements. Information on how to change or update your details is available on the Law Society’s website at Helen Johnson has been promoted www.lawsociety.org.nz/for-lawyers/change-your-details to Principal and will lead the PwC Legal New Zealand tax practice.

24 LAWTALK 936 · February 2020 NEW ZEALAND LAW SOCIETY

Helen advises advocate and a member of WRMK’s corporate and litigation team. family clients She specialises on a range of tax in civil litigation Support for matters, including and insolvency corporate income matters. She also proposed tax, cross-border joined WRMK investment, commercial property in 2017. Nicola is Te Ture investment, financing and corporate highly involved in Northland’s com- transactions and restructurings, tax munity through her role as a trus- Whenua Māori disputes and rulings. Helen joined tee of the Northland Foundation, PwC Legal in 2017, having previously a volunteer for the Bream Head administration worked at top tier firms in New Conservation Trust and a coach at Zealand and London. Whangarei Heads Surf Club. amendments Nicky Harrison joins PwC Legal New Zealand as a Director. She spe- Andrew de Boyett The Law Society says it is gen- cialises in property and Jason Mitchell erally supportive of proposed and commercial join LOD amendments to the Te Ture law and has over Whenua Māori (Succession, Dispute 20 years of expe- LOD (Lawyers on Demand) has Resolution, and Related Matters) rience supporting announced two new additions in Amendment Bill. clients with complex land develop- their Auckland office. However, in a submission, it ment agreements, land transactions, Andrew de Boyett has joined as points out that the bill does not lease documentation, construction Director – Client appear to have specifically con- contracts, incorporated societies, Solutions. Andrew sidered the implications for the shareholders agreements, finance is responsible jurisdiction of the Māori Land Court and security arrangements, supply for building and arising from the Māori Appellate arrangements, JVs, partnerships and strengthening Court’s decision in Moke v Trustees of OIO applications. Nicky will drive LOD’s relation- Ngāti Tarāwhai Iwi Trust 2019 Māori the PwC Legal property and real ships with clients, Appellate Court MB 265. estate practice. coordinating and driving business In overturning a Māori Land Court development activities, and grow- decision, the court concluded that ing and promoting LOD’s brand section 236 of Te Ture Whenua Māori Two promotions at and reputation. Before joining Act 1993 should be read to include WRMK Lawyers LOD, Andrew worked as a man- trusts established to receive Treaty agement consultant; and in senior settlements, the submission says. WRMK has promoted Chloe business development, marketing, The Māori Appellate Court could not Davenport and Nicola Hartwell to and management team roles in discern a clear statutory purpose senior lawyers, effective 1 December ‘Big Law’ firms in New Zealand intended by Parliament otherwise. 2019. and the UK. “The difficulty is that the modern Chloe is a Kerik- Jason Mitchell has joined as Treaty settlement entities have been eri local who her Senior Manager put in place since the passage of the clients trust with – Legal, Risk and Act. As a result, the jurisdiction of a broad range of Compliance Ser- the Māori Land Court in relation to trusts, life plan- vices. Jason has post-settlement entities would not ning and property joined the LOD have been within the contemplation matters, including team after work- of Parliament at the time.” relationship property agreements, ing as a lawyer The Law Society says it does not property transactions, commercial and risk and compliance specialist have a view as to whether the Māori leases, wills, enduring powers of in the banking sector. He says he Land Court should have jurisdiction attorney and occupation right agree- enjoys the variety that his role at over these types of bodies, but it ments. She is based in WRMK’s Ker- LOD brings and the opportunity to notes that the bill is a chance for ikeri office and joined the firm in 2017. work with a diverse range of people that debate to be had and to clarify Nicola is a passionate client and clients. Parliament’s intention. ▪

25 NEW ZEALAND LAW SOCIETY February 2020 · LAWTALK 936

On The Move including personal grievances, disci- Consultation Two join Wilkinson plinary matters and Rodgers preparing employ- document ment contracts. She Diana Hudson has joined Wilkin- is also experienced Addressing son Rodgers as in civil litigation a Consultant. disputes. Temporary Diana has extensive experience in Migrant employment law, Melissa Russell industrial rela- joins Rice Speir Worker tions and health and safety working with business Melissa Russell joined Rice Speir Exploitation owners, HR practitioners and senior on 13 January managers. 2020. Melissa has Linda Mulholland has joined been working in The Law Society has commented Wilkinson Rodgers Hong Kong since on proposals in an MBIE consultation as an Associate. 2018 as Associate document, Addressing Temporary She is an expert General Counsel Migrant Worker Exploitation. The in property trans- for Allied World paper summarises the findings of actions having Assurance and prior to this was at the Temporary Migrant Exploitation over 25 years of a large litigation firm in Auckland. Review to date, along with propos- knowledge in She is an experienced insurance als and options designed to reduce this area. Linda has been involved and civil litigation lawyer who has exploitation of temporary migrant in residential, farm and business represented international insurers workers. transactions, along with both small and their insureds. Melissa has a The Law Society says the paper and large scale subdivisions. keen interest in product liability, has not set out sufficient evidence property and construction claims to clearly identify and assess the problem of exploitation of tempo- Two promotions at rary migrant workers and to identify Layburn Hodgins Reuben Payne solutions. For example, it does not promoted to indicate how broad the exploitation Kirstin Williamson has been pro- Associate at Lowndes of migrants is and how much of that moted to Associate is over and above exploitation of at Christchurch Reuben Payne joined the Lowndes other vulnerable workers. Although firm Layburn Corporate and the paper indicates that relevant Hodgins. Kirstin Commercial team background information will be practises in prop- in September 2019 available – including independent erty, commercial and has been pro- research commissioned as part of and private client moted to Asso- the review – it has not been possi- law and has a particular interest ciate. Reuben ble to locate that on the ministry’s in elder law and asset protection. advises on trans- website. Kirsten started as a trust account- actional M&A matters, complex The Law Society also questions ant, then legal secretary and com- commercial contracts, business whether there has been enough pleted her law degree through the structuring and intellectual prop- analysis of the existing regulatory University of Waikato while working erty. Reuben also has a strong tools which are available to address as a law clerk. background in commercial prop- concerns about workplace exploita- Claire Finn has been promoted erty, and previously spent over tion, particularly of international to Associate. Claire practises family nine years specialising in transfer students, and whether those tools and employment law and is experi- pricing and international tax with are adequate. ▪ enced in employment law matters, EY and KPMG.

26 Anabare bay, Nauru  Sean Kelleher ba

Nauru trial “extraordinary breach of individual rights”

Supreme Court Justice Geoffrey Muecke. He granted a The trial of 12 people without legal representa- permanent stay in the proceedings. His decision was tion in Nauru’s Supreme Court was an extraordinary severely critical of the actions of the Nauru Government, breach of individual rights and the rule of law, the New finding it had displayed persecutory conduct towards Zealand Law Society’s Rule of Law Committee has said. the defendants. The trial ended on 11 December with the conviction Justice Muecke, a former Australian judge, was later of 11 defendants of an offence of riot and the other dismissed by the Nauruan Government and in June 2019 remaining defendant of serious assault, with six also the Nauruan Court of Appeal overturned his decision individually convicted of other offences. The defendants to permanently stay the proceedings. A new trial was were acquitted of a charge of disturbing the Legislature. scheduled to begin on 29 October before Justice Daniel “The criminal charges against what has been known Fatiaki, a former Chief Justice of Fiji. as the Nauru 19 have been a blight on justice in the Justice Fatiaki dismissed another application for a stay South Pacific region for the last four years,” committee on 8 November and ordered the trial proper to begin on convenor Austin Forbes QC said in a statement. 14 November. Nauru has just two public defenders. One “It is almost unbelievable that such events in Nauru was directed to represent all the defendants but said he should be occurring in 2019. We had 12 people who were was unable to adequately represent such a large group. on trial for serious offences but who had been unable However, Justice Fatiaki ruled that the trial could be held to get lawyers to represent them. The Nauruan Minister without the defendants being represented. of Justice was also reported as stating in Parliament Justice Fatiaki released his decision on 11 December. that no lawyers in Nauru were expected to provide any A Nauru Government statement released at the same assistance to them, no legal aid was available for them, time said claims that the defendants were denied legal and that they deserved to be convicted and have the representation were a “false narrative” and it was noted maximum penalty according to law imposed. that the defendants wanted Australian lawyers only. It “It is time for the Pacific community to stand up and said five Australian lawyers had been issued special pur- make it very clear to the government of Nauru that it pose visas but did not turn up for the trial, and that it was cannot continue to flout the rule of law.” clear that the defendants had refused local representation. The Nauru 19 – down to 12 in the final trial – were The Law Council of Australia also released a statement, charged with rioting and disturbing the Legislature after on 20 December. This said the conviction and sentencing a protest against government corruption outside Nauru’s of the Nauru 19 had been an afront to the rule of law Parliament in June 2015. The defendants were forbidden and a stain on the Nauru justice system. It called on the to leave Nauru and prevented from speaking out. Australian government to urgently seek pardons for the The trial finally got underway in 2018 before Nauru members of the Nauru 19. ▪

27 NEW ZEALAND LAW SOCIETY February 2020 · LAWTALK 936

Income On The Move role within the declarations firm. Dale has Melanie Naulls developed a broad for short stay joins Juno Legal range of skills working across rental of trust- On-demand legal services provider the teams on pro- and Newlaw firm Juno legal has jects involving iwi held property announced Melanie Naulls has property interests, farm succession, become part of the team. Melanie syndication and leasehold issues. joins the firm in Wellington from Luke Paerata has been promoted The Law Society has made a sub- the Southern District Health Board to Senior Solicitor. mission on two Inland Revenue where she was the sole in-house Luke joined the Questions We’ve Been Asked and a lawyer, providing legal services firm in 2016 and draft Interpretation Statement. Both to support the operational and is a member of QWBAs consider the questions of who organisational demands of two large the property team. should declare the income and what hospitals. Prior to that she spent Luke has devel- deductions can be claimed where 10 years working in the utility and oped a range of property that is held in trust is rented infrastructure sectors in Sydney and skills including subdivisions, leases out for short-stay accommodation. London. Melanie commenced her and property transactions. The Law Society says it does not career more than 20 years ago in pri- Chantelle Tyler has joined the agree with the proposal under both vate practice with Buddle Findlay. McCaw Lewis whānau as a Law Clerk QWBAs to treat as trustee income predominantly any expenditure incurred by the with the workplace trustee that has been paid for by the Four promotions law team. Chantelle beneficiary, but the trustees have and an addition graduated from Te not reimbursed that beneficiary for for McCaw Lewis Piringa – Faculty of making the payment. Law at Waikato and “Where a trustee grants a ben- Jonathan Aquilina is now undertaking eficiary the right to occupy trust has been promoted her Professional Studies. property as that beneficiary’s home, to Special Counsel. provided that the beneficiary meets Jonathan joined the outgoings in relation to the prop- the firm in 2014 Riverbank Chambers erty (being costs that would other- and is a member now open in Hamilton wise be incurred by the trustees) but of the commercial otherwise rent-free, the payment of team. The appointment recognises A new barristers’ chambers has those outgoings would not generally his expert skills and experience in opened in Hamilton. Six principal be treated as rental income to the advising on complex construction, barristers, five additional barristers trustees under section CC 1 of the engineering and property develop- and administration staff occupy Income Tax Act 2007,” it says. ment matters. Riverbank Chambers which is “In our view, a beneficiary meet- Laura Monahan has been pro- located on level 5 of the newly ing an expense as a condition of use moted to Managing Associate. refurbished The Riverbanks build- of a property does not automatically Laura joined the ing on Hamilton’s Victoria Street, give rise to a landlord/tenant rela- firm in 2012 and is overlooking the Waikato River. tionship.” ▪ a member of the The principals of Riverbank commercial team. Chambers are David O’Neill, Phil Laura’s appoint- Lang, Melanie O’Neill, Philip Cornegé, Advertising ment acknowl- James Gurnick and Truc Tran. The Advertising inquiries can be edges her skills other members are Maria Cole, Emma directed to advertising@ and ability to assist with the firm’s Miles, Martin Dillon, Paul Depledge lawsociety.org.nz. Information management. and Fleur Oback. Paul Heath QC on conditions, rates and Dale Thomas has been promoted and Royden Hindle, both barristers deadlines is available on the to Managing Associate. Dale joined of Bankside Chambers in Auckland, Law Society website under the firm in 2015 and is a member of have become associate members. News and Communications/ the property, commercial and asset Chambers members provide LawTalk. planning teams. Dale’s appointment advice and advocacy on commer- recognises his growing leadership cial, civil, criminal, employment,

28 LAWTALK 936 · February 2020 NEW ZEALAND LAW SOCIETY

Fair Pay Agreements family, local government, public, regulatory and resource management disputes. Some members act system design as arbitrators and mediators. considered McVeagh Fleming and Fleming Foster merge exclude those with a certain level Two tests proposed to initiate of income could also be considered. Auckland firmsMcVeagh Fleming a Fair Pay Agreement (FPA) both Commenting on the bargaining and Fleming Foster Solicitors have practical implications and process, the Law Society says the have merged. McVeagh Fleming potential unintended conse- duty of good faith should apply. previously had a substantial office quences, the Law Society has said Consistency with the provisions of in Manurewa which was the genesis in a submission to MBIE on its the Employment Relations Act 2000 for the Fleming Foster practice. discussion paper Designing a Fair and existing bargaining case law is The firm provides a full range of Pay Agreements System. appropriate, noting that the current legal services, including corporate, While a public interest test might provisions are already equipped commercial, property, litigation, be easier to administer, without a to apply to multi-employer and private client and family. minimum threshold test the outcome multi-union agreements. McVeagh Fleming has operated could be an FPA that covers more The Law Society is cautious about for over 100 years, and has offices people than is desirable and may excluding particular categories in in Auckland CBD, Albany and affect individuals and businesses the FPA “as it is important to retain Manukau. who have not had the chance to be flexibility to cater for changing work involved in determining whether patterns/environments and to allow bargaining should be initiated. parties to reach agreement on terms Two notaries public A representation threshold test that may be specific to their industry represent NZ on would have difficulties with meas- or sector”. However, it says, to ensure trans-Tasman board urement and proof of representation that the concept of FPAs meets for first time required for initiation, the submis- base-line standards and to meet the sion says. These include how total legislation’s intent, specification of The Australian New Zealand College employee numbers across an occupa- core mandatory provisions is likely of Notaries (ANZCN) has appointed tion or sector are measured, and how to be required. In selecting these, two members to represent New representation will be evidenced in there should be consideration of the Zealand to its Board of Governors practice to ensure the representation purpose of the proposed legislation, for the first time. being claimed is accurate. which is to “set binding minimum Ken Lord, consultant for Parry The Law Society suggests that terms at sector or occupation level”. Field Lawyers in Christchurch, consideration is given to a mixed For this reason, mandatory topics and Stewart Germann, partner at test which includes both a sector should be focused on core minimum Stewart Germann Law Office (SGL) and occupation qualification. employment terms that are likely to in Auckland began their terms on Including an income threshold to be easily and widely applicable. ▪ the Board on 1 January 2020. David Roughan of Northlaw in Whangārei won the first contested election to become the only New Receiving LawTalk only online Zealand member on the Board two An online version of LawTalk is available on the New Zealand Law years ago. David has been a notary Society’s website at www.lawsociety.org.nz/lawtalk. This is displayed public for more than 40 years. His as a flip-book, a PDF, and with website versions of many of the articles term on the Board ended on 31 in each. A link to the latest online LawTalk is emailed to all practising December 2019. lawyers each month on the Friday after publication. The hardcopy The ANZCN is an independent LawTalk is automatically mailed to all New Zealand-based lawyers professional trans-Tasman network who hold a current practising certificate. Receipt of the hardcopy of notaries public, with voluntary version may be cancelled by emailing subscriptions@lawsociety. membership, complementing the org.nz and stating “Please cancel LawTalk hardcopy” with details of work of the Societies of Notaries in name, workplace and lawyer ID. The lawyer ID is needed to instruct New Zealand and in most Australian the mailing list extraction program to remove a name and address. states.

29 NEW ZEALAND LAW SOCIETY February 2020 · LAWTALK 936

On The Move committee’s deputy chairman. Young Hunter Lawyers litigation Peter is also a life member of the partner and sports lawyer Ian Hunt Neville Smith’s Kaikohe and Districts Memorial has been appointed to the tribunal. retirement, RSA, the Kaikohe Rugby Club and Ian has had 20 years’ experience as incorporation to ARL the Lloyd Morgan Lions Clubs a sports lawyer, advising individuals Lawyers announced Charitable Trust. He acts as the and organisations in a wide variety honorary solicitor for a number of of sports, in dispute resolution and From 1 January 2020, the practice of clubs and sporting bodies. governance. He is a former President N.J.H. Smith & Co has been incor- of ANZSLA (Australian and New porated into the practice of Lower Zealand Sports Law Association) Hutt firm ARL Lawyers. Neville Rabin Rabindran and is currently a director of High has been a proud member of the appointed Director Performance Sport New Zealand Wellington legal community for of MMH Holdings (HPSNZ), and a member of the more than 50 years, mostly along- Panel of Arbitrators of the interna- side his secretary, Jan Crichton, who Auckland bar- tional Court of Arbitration for Sport has worked with him for 35 years. rister and inter- (CAS), to which he was recently national legal reappointed. consultant Rabin A founding member of Shortland Hamilton lawyer Rabindran has Chambers, Alan Galbraith QC, has gets her own rose been appointed also been appointed to the tribu- to the Board of nal. Alan was a Rhodes Scholar Julie Hardaker has received a Marsden Maritime Holdings Ltd. and gained a BCL from Oxford species of rose Rabin specialises in fields of con- University in 1970. For over 10 years named after her as struction, infrastructure devel- until August 2019 he was Deputy a farewell gift from opment, energy and transport. Chairperson of the Sports Tribunal Hamilton City. The He is the Chairman of the Bank and has also served as a board gift was promised of India (NZ), Director of Auckland member of the TAB, the NZ Racing after she finished Transport, previously a director of Industry Board, NZ Racing Authority serving two terms Solid Energy and Chair of Auck- and Broadcasting Commission. as Hamilton Mayor. The Julie Mar- land Regional Transport Authority. Alan has appeared as counsel in guerite Rose has been grown by Marsden Maritime Holdings Ltd commercial litigation on behalf of New Zealand rose grower Rob is an NZX-listed company which many prominent public and pri- Somerfield, and features a unique owns 50% of Northport. vate organisations, including the creamy pink colouring. Julie runs Commerce Commission, Auckland her own law practice, specialising in City Council, Fisher & Paykel Ltd, employment, relationship property New Zealand and Air New Zealand. and public law. She holds many Lawyers appointed Sir David Williams QC of governance roles, including being IAAF Disciplinary Bankside Chambers has been a board member of Governance New Tribunal members reappointed as a member of the Zealand, and chairperson of Women tribunal, having been appointed a on Boards. Two New Zealand lawyers have been member of the inaugural tribunal, appointed and one re-appointed whose members served 2017-19. Sir members of the International David is formerly a Justice of the Peter Macauley made Association of Athletics Federations High Court of New Zealand with a Knight of St John (IAAF) Disciplinary Tribunal, effec- an extensive background in com- tive from 1 October 2019. mercial litigation, having appeared Senior partner of Kaikohe’s The IAAF Disciplinary Tribunal before New Zealand and overseas Palmer Macauley Lawyers, Peter is an international specialist Courts and Arbitral Tribunals, Macauley, has been made a Knight body which hears and decides including numerous New Zealand of St John by the Governor-General all breaches of the IAAF Integrity cases heard in the Privy Council, Dame Patsy Reddy. Peter recently Code of Conduct. Of the 47 members London. Sir David is an honorary stepped down after 32 years as worldwide, three members of the professor at the University of chairman of St John’s Kaikohe six from Oceania are New Zealand Auckland Law School, where he Area Committee, remaining the lawyers. teaches international arbitration.

30 LAWTALK 936 · February 2020 NEW ZEALAND LAW SOCIETY

Law Society seeks exemption for lawyers practising in insolvency

Lawyers entitled to practise on their own account should not be required to have a higher amount of insolvency experience than people holding ▴ The vacated New Zealand Law Society Building ca a Certificate of Public Practice (CPP), the Law Society 1962–1965 has told the Ministry of Business, Innovation and  DW-1289-F. Alexander Turnbull Library. Employment (MBIE). Its comments are in response to a MBIE discussion paper Implementation of the Insolvency Practitioners Law Society to move Regulation Act 2019: licensing of insolvency practitioners – proposed minimum standards and conditions. into new national office The paper proposes a minimum of 1,000 hours of experience over five years for CPP holders and 2,000 hours over five years for non-CPP holders. MBIE asks The New Zealand Law Society will move into a if non-CPP holders should be required to have a higher new national office it has leased in central Wellington amount of insolvency experience than CPP holders. in September 2020. The Law Society says while non-lawyers should, The announcement follows a decision to move out of lawyers entitled to practise on their own account the previous office in the central business district at 26 should not. They have met similar minimum edu- Waring Taylor Street in July 2019 after a Detailed Seismic cation, professional experience, and fit and proper Assessment (DSA) revealed that part of the building was person requirements as CPP holders in their respective earthquake prone. profession, it says. “I am delighted to announce that the Law Society’s The Law Society disagrees that the calculation new Wellington office will be at 10 Brandon Street. The of required hours should be limited to work on building is currently being strengthened to 130% of the “insolvency engagements”. It says legal experience National Building Standard (NBS) which will mean we in relation to restructuring and insolvency law is can provide staff, lawyers, members of the public and valuable experience that lawyers who are insolvency other stakeholders with a safe, modern, welcoming, envi- practitioners should be able to count as part of their ronment,” says Chief Executive Helen Morgan-Banda. minimum required hours. All staff from the Law Society’s National Office, Commenting on general experience requirements, Wellington branch and NZLS CLE Ltd (Continuing Legal the Law Society says a proposal that insolvency Education) have been working from temporary offices, practitioners must have at least five years of general along with some staff working from home since July. insolvency experience is too onerous for lawyers who “Our staff have displayed commitment and resilience take occasional insolvency assignments. It submits during a challenging time to continue to deliver services. that lawyers meeting the proposed minimum number I thank everyone for their patience as we have worked of hours of insolvency experience should be exempt through this period of disruption,” she says. from the requirement to have at least five years of The Law Society Board has approved the sale of the general insolvency experience, or alternatively should Waring Taylor Street building, which it owns although be required to have at least five years of general com- the land the building sits on is leasehold, and a sales mercial legal experience. ▪ process began in the New Year. ▪

31 NEW ZEALAND LAW SOCIETY

On The Move

Hayley Buckley appointed to Better definition of EPA Snowball Effect Advisory Board enforcement functions urged

Hayley Buckley has joined the or enforcement process.” Advisory Board Further clarification is needed The submission notes that the of online invest- for new enforcement powers for the bill does not require the EPA and ment marketplace Environmental Protection Authority local authority to consult with Snowball Effect as (EPA) imposed by the Resource each other before the EPA exer- Director. Hayley Management Amendment Bill, the cises its powers to intervene. It is a partner in Law Society has said in a submission suggests that an obligation to Wynn Williams’ to the Environment select commit- consult could assist the EPA to corporate advisory team and has tee. Additional responsibilities and determine whether it should exer- provided legal consulting services the accompanying powers enable cise its powers, and to plan sharing to Snowball Effect over the past the EPA to take over an investiga- of information and local authority four years. She has previously held tion, but these need to be properly involvement in the investigation a senior associate role at global law defined and implemented. and enforcement when it is trans- firm Paul Hastings. “The circumstances in which the ferred to the EPA. EPA can act are broad. To provide The bill does not address what guidance to the EPA, a threshold, formal involvement local author- perhaps similar in structure to the ities may have once the EPA has powers provided to the Minister exercised its powers. It also does Contributing under section 142 of the principal not specify whether once the EPA information to Act, could be included. This would is involved, it is required to provide On the Move identify in what circumstances the ongoing support to the local author- Brief summaries of information EPA may exercise its powers to inter- ity for monitoring any remedial about promotions, changes vene and take over an investigation steps following an intervention. ▪ in law firms, recruitment and retirement are published without charge in On the Move (which is also available on the Law Society website Legal aid provider experience and included in LawPoints each week). Please send work welcomed information as an email or MS Word document (no PDFs process will assist with relieving please) to editor@lawsociety. The Law Society says it acknowl- some of the burdensome admin- org.nz. Submissions should edges the extensive work done by istration on legal aid lawyers and be three or four sentences the Ministry of Justice and Legal Aid provide a more efficient and effec- without superlatives. We may Services to ease the administrative tive legal aid process. edit them to conform to the burden on legal aid providers. In “The Law Society supports the format used. A jpeg photo brief comments on the ministry’s overarching objective of the pro- may be included but please consultation Improving the legal posed changes ‘to ensure that any ensure you have permission aid provider experience – proposed improvements made will stream- for us to use it. changes to the approvals process, it line, integrate and align with the says improvements to the approvals rest of the legal aid system’.” ▪

32 LAWTALK 936 · February 2020 ACCESS TO JUSTICE

ACCESS TO JUSTICE

Te Tangi o te Manawanui

This report was prepared by the Chief Victims Strengthening the Adviser to Government, Kim McGregor, and released Criminal Justice System for Victims by the Government in December. Dr McGregor said the report resulted from nearly two years’ feedback from victims around the country. These included engagements through the Hāpaitia te Oranga Te Tangi o te Manawanui Tangata, Safe and Effective Justice reform programme, at Recommendations the Strengthening the Criminal Justice System for Victims Workshop in March 2019, and an online victims’ survey for Reform Dr McGregor ran in February 2019, which heard from 620 victims of crime. “Many victims say their overall experiences in the justice system are negative, and some victims are recommending that others who are victimised shouldn’t report the crime Chief Victims Advisor to Government SEPTEMBER 2019 because their treatment is so poor,” Dr McGregor said. “I believe this amounts to a growing crisis of confidence in our justice system from a victim’s perspective.” The report makes four key recommendations on how justice system from a victim’s or not. the justice system can be improved for victims. These are perspective. • Monitor the criminal justice for both immediate and more transformative change: The report says an independent system and develop a continuous • Improve procedural justice for victims by uphold- body should be established that can: system improvement feedback ing victims’ rights, improving access to support and • Urgently focus on improving loop to provide impetus for information, and ensuring their safety throughout victim safety. ongoing system improvements. the system. At a minimum, all government agencies • Focus on reducing barriers to • Advocate for victims across the should review their practices. reporting crime. system, providing feedback on • Develop an integrated, pro-active and tailored support • Help to properly implement and the system’s performance for system focused on restoring victims’ wellbeing. enforce the rights of victims and victims. • Develop a variety of alternative justice processes by their whānau. • Empower Māori and Tauiwi vic- partnering with Māori, and restorative and therapeutic • Enable victims easy access to tims alike. justice specialists. co-ordinated, tailored and pro- • Receive and investigate com- • Establish a Te Tiriti-based, independent mechanism active support services whether plaints and resolve issues (includ- to enforce victims’ rights and monitor the criminal they have reported to the Police ing breaches of victims’ rights). ▪

Civil litigation and access to justice

costs associated with bringing a The Rules Committee has made background research The Rules Committee has com- civil matter to court. Committee papers available at courtsofnz.govt.nz/about-the-judiciary/ menced a project which looks at chair, Justice Robert Dobson, rules_committee/, and is seeking comment from mem- potential areas of reform to the describes the project as “the wid- bers of the legal profession and other courts users. rules governing civil trial proce- est-reaching and arguably most These are sought by 1 May 2020 and may be sent to dures. The objective is to improve important, review of the rules in [email protected]. ▪ access to justice by reducing the a generation”.

33 ACCESS TO JUSTICE February 2020 · LAWTALK 936

First steps for criminal justice reform outlined

Justice Minister Andrew Little safer.” immediately fund a new AODT announced a number of govern- Mr Little said as a first step to court in Hamilton because of ment commitments in response respond to the reports’ recom- the impact these courts have on to the two criminal justice system mendations, the government has reducing offending. Within two reports, Turuki! Turuki! and Te Tangi committed to: years, AODT Court participants o te Manawanui: Recommendations • Ensuring the environment in are 23% less likely to reoffend for Reform. which justice is administered for any offence, 35% less likely to “The Government is open to is safe and effective for victims, reoffend for a serious offence, and reaching across the aisle on tackling offenders, and all participants. 25% less likely to be imprisoned our failed criminal justice system • Comprehensive system change because of their reoffending. and building a new consensus on over time that treats victims with • The rollout of other therapeutic how we approach this issue,” he respect and dignity, treats offend- and specialist courts over time. said. ers more effectively in order to • Working with Māori on deci- “We need to change the course reduce offending, and makes the sion-making to improve outcomes of our criminal justice system to system more responsive to com- across the justice system. ensure less offending, less reof- munity expectations of accounta- “Transforming our criminal justice fending, and fewer victims of crime bility and harm prevention. system will take time. We need to who are better supported. Thirty • Making the pilot Alcohol and both address immediate issues with years of locking more people up for Other Drug Treatment (AODT) the current system and also deliver longer has not changed re-offend- courts in Auckland and Waitakere a long-term plan for changing the ing rates nor made communities permanent immediately, and to system,” he said. ▪

LETTER TO THE EDITOR to a lawyer’s clients, on behalf of the lawyer, are not breaching the Limited-licence applications LCA even if those services include advice about the direction and management of a proceeding. (Thus a They may even provide legal advice about proceed- law firm can legitimately employ I read Allie Cunninghame’s ings, whether contemplated or otherwise, and charge non-lawyers who advise the firm’s article about online non-lawyer for doing so. clients about the direction and options for a limited-licence appli- What they may NOT do is provide legal advice about management of proceedings.) cation (“Are legal disrupters steering ‘the direction and management of ’ legal proceedings. The simplest solution is for people off the road?”, LawTalk 935, The statute uses this wording deliberately. It is not the lawyers and law firms to provide December 2019, pages 60-63). same as legal advice about proceedings. The Lawyers and cost-effective, reputable online Valid concerns were raised about Conveyancers Bill originally used ‘conduct of ’ instead of services themselves, and support the lack of information about those ‘direction and management of ’; and the select committee those colleagues who do so. who were providing the services. changed it in order to ensure the restriction was narrow. Disclosure: I provide online pro- The article revealed possible It is not clear from the article whether those who bate services direct to the public, confusion about where the line falls provide online court documents are doing so under the and now also to lawyers (https:// between reserved and non-reserved supervision of a lawyer (ie, holder of a current practising kiwilaw.co.nz/probate-for-lawyers). ▪ legal work. certificate). If they are not, they are breaching section Non-lawyer providers may pro- 26 of the Lawyers and Conveyancers Act 2006. Cheryl Simes vide legal advice, and charge for I prefer the term ‘non-lawyer providers’ to ‘non-law- Principal, Kiwilaw, Oxford, doing so. yers’ – because non-lawyers who are providing services Canterbury.

34 LAWTALK 936 · February 2020 ACCESS TO JUSTICE

Turuki! Turuki! Transforming our Criminal Justice System

offending has access to an inde- education and treatment. Released in December, the final pendent person who can guide • Significantly increase investment report from Te Uepū Hāpai i te Ora and advocate for them during in rehabilitation programmes. – the Safe and Effective Justice their contact with the justice Greatly expanded access to Advisory Group followed its He system and other services for as rehabilitation opportunities for Waka Roimata report in June 2019. long as needed. Better access to all prisoners including those Turuki! Turuki! – which is the tra- a wider range of therapeutic ser- on remand and serving short ditional call for the crew of a waka vices and more financial support sentences. to work together and create forward for victims, families and whānau. • Gradually replace most prisons motion with urgency – makes a Strengthening of victims’ rights, with community-based ‘habili- number of key recommendations. including rights to have input tation centres’. These fall under three headings: into criminal justice decisions • Strengthening ‘wrap-around’ Commit, Empower, Transform. and rights to privacy. reintegration services that meet • Streamlining protection order basic needs and provide ongoing Commit and name suppression processes, rehabilitation support for prison- • Establishment of a cross-party changes to courtroom layout, and ers returning to the community. parliamentary accord for trans- review of reparations. • Redesign of criminal investigation formative justice. • Transfer resources and decision- and court procedures to make • Establishment of a Mana Ōrite making powers to communities. them consistent with transforma- (equal power) governance model • Together we address poverty tive justice values and principles. under which Māori and Crown and social deprivation, increase Ensuring everyone is treated fairly agencies share in justice sector support for parents and families, and equitably, with humanity, decision-making. and challenge attitudes and dignity, respect and compas- • Transfer power and resources to behaviour that support family sion; those who cause harm are Māori communities so they can violence. accountable; and restoration of design and develop Māori-led mana to all is supported. responses to offending. Transform • Interim reforms would include • Make tikanga Māori and te ao • Challenge racism within the jus- reviewing youth, specialist and Māori values central to the oper- tice system with more diverse therapeutic courts and applying ation of the justice system. recruitment and more effective learning across the court system, • Prioritise investment in commu- training in the justice system, reviewing laws and guidelines nity-led transformative justice. as well as school programmes, for sentencing, the pre-trial • Adoption of a common vision media campaigns, and law period (whether in custody or and common values by the changes. on bail) and post-release rein- Government, statutory purposes • Improve access to culturally tegration (parole), to ensure and governance for the whole informed trauma recovery and consistency with our values justice sector and alignment of mental health services, and and principles, strengthening justice statutes accordingly. adoption of trauma-informed and increasing access to alter- • Improvement of coordination and approaches throughout the justice native justice processes. “These information sharing among gov- system, including in all training, changes will lead to a positive ernment agencies and implemen- policies and practices. and fair justice system which tation of whole-of-government • Strengthen regulation of alcohol, prevents further harm wherever responsibility for justice sector legalise and regulate personal use possible, restores mana where outcomes. of cannabis, and consider that harm occurs, and ensures that for all drugs. Treat personal drug all New Zealanders who come Empower use as a health issue with more into contact with the system are • Everyone harmed by criminal funding towards prevention, affected positively.” ▪

35 ACCESS TO JUSTICE February 2020 · LAWTALK 936

Legal profession International Women Judges conference delighted with in Auckland The International Association of Women Judges (IAWJ) is hosting its biennial con- new Tauranga ference in Auckland from 7-10 May 2020. The theme of the conference is cel- ebrating diversity and it provides an courthouse news opportunity, rare in New Zealand, to listen to and meet judicial leaders from around the world and to experience a global per- The Waikato Bay of Plenty legal profession has spective on issues such as human rights, welcomed news that Tauranga’s courthouse is to be the rule of law, discrimination, trafficking replaced. and family violence. Late last year the Justice Minister Andrew Little Keynote speakers include Baroness announced that the Government would invest $100 mil- Brenda Hale (recently retired President of lion on a new courthouse which Mr Little said would be the UK Supreme Court), Helen Clark, Mary a model for future courthouse design. Mr Little said the Robinson (former President of Ireland), courthouse would be designed in partnership with iwi, Baroness Helen Kennedy QC, Justice the local community, and the legal community. It would Andromache Karakatsanis (Supreme Court draw on te ao Māori values, and directly address victims’ of Canada), Justice Kudirat Kerekere-Ekun safety needs. (Supreme Court of Nigeria), Professor “Victims routinely provide feedback about the alien- Larissa Behrendt (University of Technology, ating and distressing environment of the courthouse. Sydney) and Professor James Hathaway It’s time to re-think the traditional courthouse design,” (University of Michigan). Mr Little said. The IAWJ says it warmly invites mem- Tauranga barrister Bill Nabney has described the news bers of the legal profession to register. There as excellent as the current courtroom was inadequate, with are options to attend the full conference trials with more than three defendants involved having or just the weekend, with reduced fees for to be moved elsewhere, such as Hamilton which is 105 young lawyers, academics and students. km away. Registration information is available at He also said the current courthouse on McLean Street www.iawj2020auckland.com ▪ was mouldy and frequently prone to leaking roofs – late last year a trial had to be adjourned due to water coming in through a light fitting. However, Mr Nabney was somewhat bemused about the time being allowed for feedback. “We can’t understand why there has to be a two-year Pakistan focus of 2020 Day consultation period. My hope is that it will meaningfully of Endangered Lawyer include those who use the courthouse on a daily basis such as lawyers, the Crown Solicitor, Police, probation, mental The 10th annual Day of the Endangered Lawyer, on 24 health and drug addiction specialists, local people who January, focused on Pakistan. The Day of the Endangered use the court regularly, and court staff and Judges, rather Lawyer Foundation is based in the Netherlands. It has than have the lead from Wellington with little meaningful developed a wide range of activities around the world on input from those aforementioned users.” 24 January to raise awareness of lawyers who are being Terry Singh, President of the Law Society’s Waikato Bay harassed, silenced, pressured, threatened, persecuted, of Plenty branch, has also welcomed the development. tortured and murdered for their work as lawyers. “I think it’s wonderful news for the Bay of Plenty region, Information released by the organisers says that over and in a growth area like Tauranga, it is desperately needed. the past several years lawyers in Pakistan have been “I’m hopeful that Hamilton, as another significant subjected to acts of mass terrorism, murder, attempted growth area – probably the fastest growing of any – in murder, assaults, death threats, contempt proceedings, terms of criminal court business, is given the okay for a harassment and intimidation in the execution of their much-needed upgrade soon.” ▪ professional duties. ▪

36 LAWTALK 936 · February 2020

TALKING ABOUT MENTAL HEALTH Meredith Connell puts principles into practice

BY JO MURDOCH AND ANDY SMITH

Mental Health Awareness Week, held during late September 2019, was an opportunity for law firms and organisations across New Zealand to examine what they are doing to provide a safe workplace for staff dealing with mental health issues. The current legislative position in New Zealand Jo Murdoch is that employers are obliged to minimise any risk of harm to an employee’s physical and mental health and make reasonable accommodation for employees suffering from mental illness. Other jurisdictions such as Australia and the United Kingdom have relatively well-developed jurisprudence in this field, with a significant body of case law explaining and expanding on Andy Smith firms around the country, prosecutors work day-in, day-out governing principles. in a highly adversarial environment. Prosecutors now have Meredith Connell, a large law firm with additional responsibilities beyond simply presenting the 250 staff in Auckland and Wellington Crown case, including the management of victims’ rights. and the Office of the Crown Solicitor in The prosecutor’s role is a public one and subject to public Auckland, recently took the opportunity to scrutiny, not to mention the close eye of the appellate courts. examine its practices and policy in the area of mental health. This included introducing The effect of some cases a range of short and long-term initiatives to More critically, prosecutors are often exposed to the worst assist lawyers in handling confrontational side of human behaviour. The content of criminal cases material, unique to Crown prosecution can test even the most dispassionate of prosecutors. If we work, and erasing the stigma which are to get real about mental health, we need to get real sadly often accompanies mental health about the effect certain types of cases may have on lawyers issues. The preliminary message to staff working in this high-risk area. This may be particularly the was simple: identify the warning signs case with younger lawyers who are often more conscious as a means of prevention, seek help, ask of wellness when confronted with such material. If we if you see someone struggling and, most expect younger lawyers to take up the baton, support in importantly, talk about it. this area must be tangible and proactive. Normalising conversations about mental The challenge with developing in-house policy in this health is a primary focus for the firm and area is that history shows that lawyers, like doctors, may while culture change takes time there is be the last to admit there is a problem. Many, it appears, already a sense that the tide is turning. would rather battle on with the job, rather than admit Lawyers traditionally face various obsta- they are not coping. Recognising this dynamic, for those cles to seeking help. The practice of law is working on cases with highly challenging material, such as inherently driven by a desire to succeed. At sexual violence, child abuse or objectionable publications, a Meredith Connell, as in other Crown solicitor four-monthly session with a clinical psychologist has been

37 TALKING ABOUT MENTAL HEALTH February 2020 · LAWTALK 936

TALKING ABOUT MENTAL HEALTH

made a mandatory requirement to enable professional supervision and How I’ve debriefing. The session schedule can be supplemented with additional support as required, all paid for by helped myself the firm. The hope is that lawyers will find these sessions helpful and an opportunity to raise and proactively A sole practitioner’s tale deal with any issues that are becoming (or could become) problematic. that you can’t sit in meditation Some other support I am a sole practitioner who has without being overwhelmed by the initiatives been challenged with an extreme stressful thoughts running through As the firm looks to lead the industry stress response and extreme levels your mind when you should be forward in the mental health space, of anxiety all my practising life. I achieving mindfulness. I am also other support initiatives have either have practised since 1984, for the seeing a hypnotherapist once a been continued or expanded. The first 15 years as a lawyer for three week and have really benefitted firm has increased the counselling middle-size law firms and thereafter from the guided relaxation that services available to all staff from as a sole practitioner. brings to the body and mind. three to five appointments per I have been particularly proactive person per year. Mandatory resilience throughout the last year to self-help Juices to the rescue training continues for all staff. Other my way through an increasingly I juice vegetables and fruits every new, long-term initiatives aim to sup- stressful professional life. day – usually twice a day and port new prosecutors and the firm’s These are some of my tips which I have found this to be incredible in wider objectives in mental health have found very helpful. I acknowl- replenishing much needed vitamins, awareness, for example, our popular edge that not all of these will help all minerals and enzymes lost through in-house litigation skills training is of you, but hopefully some of them the relentless stress response. It’s being expanded to include a com- will resonate: incredibly easy to do and very easy ponent for new lawyers appearing to consume. When one is stressed, on behalf of the Crown on how to Gentle to moderate the appetite either takes a nose- deal with confrontational material. exercise for 30 dive or increases rapidly with an A Wellness Committee has been minutes every day unhealthy fondness for junk food established with a core membership Move the stress out of the physi- and alcohol – neither is helpful long including the Chief Executive Officer, cal body (in order to control the term. It’s not difficult to drink your Chief People Officer and partners emotional stress) – moderate daily way to health in a positive way. responsible for shaping and driving exercise such as walking, stretching the wellness agenda within the firm. or restorative yoga, and tai chi. I Get your bloods done Industry wide there is a long way find it best not to do anything too I was recently incorrectly diag- to go in the support of lawyers’ strenuous as that only adds to the nosed with Addison’s disease and mental health but there are law stress which an already stressed was put on a two-month waiting firms recognising the importance body is holding – so no more run- list to see an endocrinologist for of the agenda and adopting new ning, weight training or interval treatment going forward. With my positive practices. ▪ training as that drove me into a symptoms getting worse by the day, state of physical exhaustion. I was desperate to find a way to cope Jo Murdoch is a partner in the with my professional and personal Crown Specialist Group at Meredith Learn how to relax life while waiting for my appoint- Connell, undertaking jury trials in Quietening the mind to minimise ment. I undertook my own medical the District and High Courts with a the mental activity of the mind – research with the assistance of Dr speciality in sexual violence cases. guided meditation or guided relaxa- Google and I asked my doctor for a tion works best because the restless new set of blood tests based from Andy Smith is the Chief People mind cannot shut off by itself, espe- a neurological angle and not the and Capability Officer at Meredith cially after a stressful day. This gives hormonal angle he had approached Connell, responsible for the devel- the mind and body a chance to relax my condition. The new blood results opment and delivery of the firm’s properly for a period of time each showed that I had a high folate level People and Capability strategy. day without you feeling frustrated but normal vitamin B12 level. I then

38 TALKING ABOUT MENTAL HEALTH

my staff to make sure all is running smoothly. Use vitamin and mineral supplements Stress strips vitamins and minerals from our system, hence my vitamin B12 deficiency, so I take supplements every day to prevent this. This helps build a resilience in the body to the physical impact of stress. Emotional freedom technique or “tapping” This is a very strange process which helps to calm down the amygdala (responsible for the “fight or flight” response) and is very helpful in clearing a distressed mind and body to enable meaningful action to take place. It’s very useful when one is in the midst of the stress or anxiety response. See the website www.facebook. com/tappingsolution. Soak the stress away Epsom salt baths are amazing for coaxing those stressed muscles and nerves into calm at the end of a stressful day. It also helps to remove the resulting toxins left behind by the stress and anxiety response. Off-load the stress researched what a high folate level years ago. It seems that the damage Find someone to talk to regularly. It’s best to use meant and found it was known to stress does to our bodies contin- someone who is skilled to assist, such as a life coach mask a vitamin B12 deficiency. Now, ues even after retirement, unless or counsellor. The chance to offload and verbalise the with the assistance of monthly vita- we actively address it, as he was stress and anxiety in a constructive way moves the min B12 shots and daily vitamin B12 doing. The first sign is: we cannot effects out of the body. supplements, I am feeling a million relax, even after the stressors which times better and ALL my symptoms caused the stress are long gone Breathe the stress out/become have gone … and I cancelled the because our bodies have literally a “surrender warrior” endocrinologist appointment. forgotten how to do so – we need The fastest way to calm the body and mind down is to to relearn the relaxation response. use special breathing techniques to clear the nervous Consider coming from system and mind. Look to yoga or YouTube to learn a wellness stance New way of working these techniques; they really do help. I saw an alternative health practi- I now work from home in the morn- I believe the practice of law is a stressful one and we all tioner during my wait time for the ings to deal with complicated matters need to take proactive steps to look after ourselves and endocrinologist appointment and without the constant interruption those around us. I wish I’d known about some of these I found profound benefits from experienced in the office. I still receive de-stress strategies years ago (acknowledging, again, that this. The body does not lie and the the same emails as my staff do, so what works for me, may not necessarily work for you). I weekly kinesiology session gave me I can easily and quickly deal with wish you all the best on your own self-help journeys. ▪ some very interesting insights into “urgents” which invariably crop up. where my stress is held and how it I have employed a legal executive to can be released from the body. I also attend to immediate client matters Sarah Taylor is the co-ordinator of this series, a learned more about diet, relaxation and progress files in the mornings. I senior lawyer, and the Director of Client Solutions and the general wellness state of my have gained a huge amount of time at LOD, a law firm focused on the success and body and how to improve that. As by doing this. I have also gained relief wellbeing of lawyers. an aside, my first employer has been from the constant “being on top of seeing the same practitioner for the everything” and clients don’t even If you or your workplace is doing something last three years to assist him to rid notice the difference as they are still interesting in this space, please contact Sarah: his body and mind of the effects of being well looked after. I regularly [email protected] stress, even though he retired five check in during the morning with

39 PRACTISING WELL February 2020 · LAWTALK 936

PUREA NEI: Changing the Culture PRACTISING WELL of the Legal Profession DECEMBER 2019 Purea nei Changing the culture of

Allanah Colley Ana Lenard the legal profession Bridget McLay

BY ALLANAH COLLEY, ANA LENARD AND BRIDGET MCLAY

community themselves. Titled Purea Nei, which means We are two years on from when to clense and renew, this report brings together a col- harassment and bullying in the lection of ideas from people within and associated with legal profession in Aotearoa made the profession, to provide a path towards making the the national news. The discussion profession happier and healthier. began with five summer clerks To that end, we sought to engage with members of the coming forward to disclose their legal profession and anyone associated with it – non-le- experiences of sexual assault and Allanah Colley gal staff, legal executives, law students, legal academics, harassment at Russell McVeagh, but and former members of the profession – with a particular quickly expanded to question the focus on solutions for change. The report is a culmination culture of the profession generally. of workshops held in Auckland, Wellington, Christchurch It became clear that these issues and Dunedin; open-ended discussions online and via were not new, and neither were email; and an online survey which attracted almost they unique to Russell McVeagh. 650 responses. In total, over 700 people engaged in the They are present in different forms project, which was funded by the Law Foundation, the and to varying degrees in many, if Michael and Suzanne Borrin Foundation and the New not all, legal workplaces. They affect Ana Lenard Zealand Women’s Law Journal – Te Aho Kawe Kaupapa lawyers, non-legal staff, academics, Ture a ngā Wāhine. students and even those who have In terms of demographics, the typical survey par- left the profession. ticipant in the project is best described as a young, A wealth of important work has Auckland-based Pākehā female, employed in a law already been completed to take firm, with 0-1 years’ Post-Qualification Experience stock of the issues that prevent (PQE). About half of the survey respondents were under people from having positive expe- 30. Almost two-thirds of our survey participants had riences in the legal profession: from under five years’ PQE, were not yet employed in the Zoë Lawton’s #metoo blog, to the Bridget McLay profession (eg, law students) or did not define their New Zealand Law Society’s 2018 career by reference to PQE. Evidently, the average age Workplace Environment Survey, the and experience level of participants is not representative International Bar Association’s 2019 bullying and harass- of the profession as a whole, and we acknowledge the ment report and the Employment Information Survey limitations of our engagement. However, we see this released in late 2019 by the Aotearoa Legal Workers’ Union. project as only the beginning of what we hope will be And yet, how far have we come since 14 February many more conversations with those who are affected 2018? A new report, Purea Nei: Changing the Culture of by the culture of the profession, and who have ideas for the Legal Profession, released just before Christmas seeks how we can move forward. to continue the conversation about culture change in The methodology behind the report seeks to identify the legal profession by asking the next question: how? and describe most of the solutions that we collected What needs to occur in order to make a meaningful from our various channels of engagement in a generally difference to workplace culture? How can we translate qualitative way. In essence, Purea Nei tries to capture a the concerns about what has happened before into conversation, with some reliance on quantitative data. meaningful improvements to the everyday experiences The report outlines ideas for change across a range of the people in our profession in the future? We, the of issues: workplace expectations and culture; diversity report’s authors, believe the people best positioned and inclusion; work format; training and education; to answer these questions are people within the legal leadership and management; remuneration; human

40 LAWTALK 936 · February 2020 PRACTISING WELL

resources and procedures for managing workplace and diversity targets. Diversity and chambers. There was also strong issues; holding the profession to account; and the role inclusion mindsets and approaches support for a union, which was of clients in shaping the experiences of people associated must also be embedded in law established in the intervening with the profession. schools. months since this project began. Across these various issues, several key themes Respondents also explored the emerged. But we need real important role that clients play, leadership in firstly, in terms of lawyers appro- There is a lot we can do in the order to achieve priately managing demands (eg, workplace to make a difference meaningful change through urgency premiums, and We encouraged participants to think about all aspects Respondents felt that good leaders through dealing with abusive or of the workplace and how things could be different in are good lawyers – approachable, oppressive clients), and secondly order to improve safety, wellbeing and overall happiness caring, good at communicating, sup- in terms of the purchasing power at work. Participants repeatedly identified the following: portive and providing appropriate clients can direct in support of firms feedback. with safe and positive workplace ❶ Examining and changing the structure Good leaders ‘lead from the top’ practices. of the workplace is important. by modelling the culture they hope Finally, there was strong sup- Alternatives or changes to the partnership model, which to create, by investing in their own port for the Law Society having a was widely regarded as concentrating too much power training and people management more significant role by auditing in just a few and failing to provide sufficient checks and skills, and by holding themselves workplaces along various safety, balances, were favoured. This might involve changing and others accountable. wellbeing and diversity factors, and legislation, but could also involve: reducing levels of Participants believed that promo- by having strengthened complaints hierarchy; exploring contractor models; or empowering tion into leadership roles has to be and disciplinary systems in place staff by enabling them to actively participate in govern- based on management skills, as well with a specialist unit for responding ance and management. as technical ability, and prospective to bullying and harassment. managers need to display superior We hope that this report will be ❷ Culture needs to be crafted. people skills (communication, a useful resource for organisations Leaders, working together with staff, should regularly approachability, supportiveness). and individuals when they are take stock of workplace culture, examine what is work- Finally, respondents were in deciding how to tackle the difficult ing well and what needs changing, and put pen to paper favour of extensive and rigorous and entrenched issues that have on what the firm culture will be. Culture needs to be due diligence on future managers, been identified in our profession. based on values that foster safety and wellbeing at work, and a clean record as far as bullying, We recognise that each workplace and that are supported by all people in the workplace. harassment or other misconduct is is unique, and not all of the ideas concerned. outlined will be suitable for every ❸ The mechanics of work need to be place of work. Furthermore, this examined and upgraded to better support And we need proper report does not purport to offer a healthy and productive workplace. education and all of the answers, or to be a final The most favoured solutions were: flexibility about the external help handbook for dealing with issues 9-5 model; appropriate pay to reflect the hours required When asked about how training in the profession. eg, through higher starting salaries or overtime pay; and and education could be utilised to Ultimately, this report seeks to utilising technology for efficiency and not over-work. resolve culture issues, participants contribute to and encourage the At the core of all of the solutions was the desire for were overwhelmingly in favour of ongoing discussion that the legal autonomy, respect, recognition of value-add, and trust. frequent and appropriate training profession in Aotearoa must have at all levels of a person’s career – at in 2020 and beyond: what’s next? ❹ Where human resources services are university, at work and at pro- What do we need to do to be better? utilised, they need to be supported and fessional development courses. To read the full report, please equipped in order to make good hiring, Training needs to be self-referential visit www.lawfoundation.org.nz retention and progression decisions. and allow people to explore and The authors plan to host a panel Training on how to deal appropriately with misconduct unpack their biases, and it needs to discussion in February to discuss needs to be sufficient and needs to enable HR teams to equip people with the right skills for the report findings and next steps. protect and support those who have suffered as a result dealing with difficult situations and More information about this of workplace misconduct. Services such as counselling conversations (eg, calling out bad even is available from alenard@ should also be provided and their use encouraged. behaviour, supporting people in the shortlandchambers.co.nz.▪ workplace, and holding perpetrators ❺ Achieving meaningful diversity and to account). Allanah Colley is an Assistant Crown inclusion were seen as important goals. When it comes to accountability, Counsel at the Crown Law Office, The most favoured solutions include specifically recruit- external and independent HR is a Ana Lenard and Bridget McLay ing diverse staff, recognising and implementing tikanga worthwhile option, particularly for are junior barristers at Auckland’s and te reo Māori in the workplace, and self-measurement smaller law firms and/or barristers’ Shortland Chambers.

41 AML/CFT February 2020 · LAWTALK 936

AML/CFT AML/CFT Update

Strategy release anticipates Law Society joins Financial Action Task Force visit DIA Industry

in 2009, and the paper says New Zealand Advisory Group The Ministry of Justice was found to be deficient in some areas with says it has proactively many being addressed through passage of The New Zealand Law Society has released New Zealand’s the Anti-Money Laundering and Countering joined the Department of Internal Affairs’ first National Anti-Money Financing of Terrorism Act 2009. Industry Advisory Group (IAG). Laundering and Countering FATF assessors are expected to conduct The department has established the Financing of Terrorism an onsite visit in March 2020. forum as a communication pathway with (AML/CFT) Strategy. representatives of the sectors it supervises The strategy is contained Criticism possible under the AML/CFT regime. The Law in a Cabinet paper entitled The Cabinet paper says there are some fea- Society says it welcomes this initiative “Setting the strategic direc- tures of New Zealand’s AML/CFT system by the department. tion for New Zealand’s that may attract FATF criticism “and media The IAG meets quarterly and was estab- Anti-Money Laundering attention when the FATF report on the out- lished in August 2019. Members include and Countering the comes of New Zealand’s Mutual Evaluation representatives of peak industry bodies Financing of Terrorism are made public in February 2021”. who come together to share knowledge Regime”. This was con- After a paragraph which has been and discuss common AML/CFT compliance sidered by Cabinet on 21 suppressed under section 9(2)(g)(i) of the challenges facing their sectors. The inten- October 2019 and publicly Official Information Act 1982, the paper tion is to develop understanding between released in December. says the Ministry of Business, Innovation the DIA and the supervised sectors and The announcement of a and Employment (MBIE) is currently to work together to find constructive strategy appears to be part leading work on requiring New Zealand solutions. of a move to prepare for an incorporated companies and limited The forum also provides co-design upcoming Financial Action partnerships to disclose their beneficial opportunities on engagement and guid- Task Force evaluation of ownership information. These are being ance programmes. Peak industry bodies New Zealand’s compliance considered in a separate Cabinet paper are able to share general information and with AML/CFT technical and if approved, it says the changes will updates from the forum with their super- recommendations. demonstrate to FATF that New Zealand is vised sectors. The ministry says the undertaking legislative reform to address The Law Society says it looks forward to National Strategy will issues to one of the required outcomes. continued engagement in the IAG and the coordinate efforts across The Cabinet paper says there are several opportunity it provides to assist lawyers government and the other features of New Zealand’s AML/CFT with meeting their AML/CFT obligations. ▪ private sector and guide regime that may attract comment from the prioritisation of work to FATF. The appendix which outlines these improve the system. is suppressed under section 9(2)(g)(i). ▪ The Cabinet paper says New Zealand is a member of the inter-governmental Financial Action Task Force Number of onsite inspections of businesses by the (FATF) and as part of that Department of Internal Affairs under the Anti-Money membership, all member Laundering and Countering Financing of Terrorism states are periodically Act 2009 between 1 October 2018 and 30 September evaluated for compliance 2019 (Internal Affairs Minister Tracey Martin in with FATF technical recom- response to a written parliamentary question from mendations. New Zealand’s Kanwaljit Singh Bakshi). last Mutual Evaluation was

42 51 LAWTALK 936 · February 2020 AML/CFT

Financial Intelligence Unit report points to lawyer AML/CFT risk

also has some mitigating effect on money laundering and The “National Risk Assessment of Money Laundering terrorism financing risk.” and Terrorism Financing for 2019” document was released by the Police Financial Intelligence Unit (FIU) at the end Suspicious activity reporting by lawyers of November. It says the unit had received 137 suspicious The unit says historical low rates of suspicious activity activity reports from lawyers since they became AML/CFT reporting by professional services (under the Financial reporting entities on 1 July 2018. Transactions Reporting Act 1996) indicate the general The report says lawyers, conveyancers, accountants and measures were not ensuring sufficient professional real estate agents provide a ‘gatekeeper’ role in provid- vigilance to mitigate the risk of money laundering and ing professional services to clients. The types of services terrorism financing. Between the commencement of the provided and the everyday nature of these services in the FTRA 1996 and 1 December 2017, the FIU only received legitimate economy also make them attractive to money 190 suspicious activity reports from lawyers and seven launderers and terrorism financiers. suspicious activity reports from accountants. It says increasing financial sector and law enforcement The report says introduction of the second phase of scrutiny of possible illicit funds further incentivises the AML/CFT reforms has gone some way to addressing criminals’ use of professional services when seeking to this vulnerability and enhancing professional vigilance to hide criminal financial and business dealings, to obscure mitigate the risk of the money laundering risk to lawyers, identity of those behind the criminal dealings, and to hide conveyancers, accountants and real estate agents. Since illicit financial assets in property and other investments. they became reporting entities under the AML/CFT Act, the FIU has received 137 suspicious activity reports from Funds laundered through trust accounts lawyers, 65 suspicious activity reports from real estate The report says analysis of 47 properties subject to criminal agents, and 14 suspicious activity reports from accountants. proceeds recovery action by the New Zealand Police’s Asset “In addition, regulatory vulnerability in relation to com- Recovery Unit (ARU), identified a number of professional panies and trusts create further incentives for criminals services used to launder funds through trust accounts; to use professional services. Companies and trusts can be purchasing of real estate; creation of trusts and companies; quickly and cheaply set up to obscure beneficial ownership. management of trusts and companies; management of Furthermore, criminals can place companies in the names client affairs; and to transfer ownership of assets to third of nominee directors and/or shareholders, who are often parties. the facilitating professional. Parties to trusts may not be “In all of these cases, there was no evidence of complic- recorded anywhere except in the facilitating professional’s ity on the part of the gatekeeper professionals involved. records. This exposes professionals to criminals seeking Hiding the ownership of property was the most common to obscure their interest in illicit funds.” money laundering method, generally by putting property The report says trusts are the main type of vulnerable in the name of a trust set up by a lawyer. The second most legal arrangement in New Zealand. It says their principle common method was transferring the criminal proceeds attraction to criminals is that they can be used to hide to a lawyer or real estate agent by electronic transfer,” beneficial ownership and create a front behind which the report says. criminals may mask their activity. Trust arrangements It says lawyers and conveyancers adhere to high stand- can also be an effective means of dispersing assets while ards of practice and ethics that may, in turn, reduce the retaining effective control. ▪ vulnerability of lawyers to criminal misconduct. “Specifically, lawyers must not act in a way that unwit- tingly facilitates criminal offending, with current standards enforced by the New Zealand Law Society. Lawyers Feedback welcomed on practising on their own account and operating a trust AML/CFT concerns account are subject to oversight, including risk-based Lawyers are encouraged to provide feedback to inspections, by the New Zealand Law Society Inspectorate. the Law Society about specific AML/CFT concerns This oversight aims to ensure proper conduct in operating facing the legal profession via our dedicated email a professional’s trust account to protect clients’ money and address [email protected]. minimise exposure of the Lawyers Fidelity Fund; which

43 INTELLECTUAL PROPERTY February 2020 · LAWTALK 936

INTELLECTUAL PROPERTY Everything is not ka pai New Zealand universities are ill-equipped to protect Māori IP

BY LIDA AYOUBI

This question was the focus of a need to respect the Treaty princi- Mātauranga Māori (Māori New Zealand Law Foundation- ples. However, in many cases they knowledge) has been shown to funded research project in which were unsure of how to identify inform and enrich various areas of the performance of universities or address Māori interests in the university research in New Zealand, was assessed. commercialisation of research from unlocking the benefits of intellectual property. mānuka honey, to building resil- How are universities Some universities have created ience against natural hazards and Lida Ayoubi doing? a specific role for an expert to con- potentially finding a solution to the The research was conducted in sult on Māori interests in research kauri dieback crisis. collaboration with the commer- generally, and in fewer cases in In New Zealand, universities account for around cialisation teams of eight New relation to intellectual property 28% of the country’s research and development (R&D) Zealand universities surveying both commercialisation more specifi- expenditure. University R&D may result in commer- the policies and practices of uni- cally. However, such guidance is cially valuable innovations. In fact, commercialisation versities. A summary report of the not available across all universities of universities’ R&D generates more than $500 million findings is now available online on and in some cases is limited to the annually–about 15% of this country’s total university the Law Foundation’s website. (Dr funding stage of a research project income. Lida Ayoubi, “Intellectual property and is not carried out through Part of that income comes from the commercialisation commercialisation and protection of to the commercialisation stage. of intellectual property rights that arise out of univer- mātauranga Māori in New Zealand Furthermore, the current impact sity-driven research. Intellectual property (IP) rights universities”, November 2019). The of such roles on the universities’ in patents, copyrights, designs or plant varieties are research shows that recognition processes is not clear. becoming increasingly important commercial assets for of and protection for mātauranga universities. University research that generates IP may Māori at universities appears rather How can the protection involve the use of Māori knowledge in many different inconsistent, siloed and ad-hoc. of mātauranga ways. For instance, in many cases, the be improved? In its comprehensive Wai262 report, the Waitangi intellectual property or commer- Recognition of the potential role Tribunal stipulated that kaitiaki (guardians or custo- cialisation policies of universities of mātauranga Māori in univer- dians) have the right to be acknowledged as the source of make no reference to mātauranga sity research is arguably the most mātauranga Māori where appropriate and to have their Māori. If mentioned at all, it is often important step in protecting Māori commercial interests in such mātauranga recognised unclear how the policy provisions interests in the context of intellec- and protected. should be implemented. The same tual property commercialisation. The Government is changing New Zealand’s intellec- appears to apply to the implemen- As such, it is recommended that tual property law to partly address the misappropriation tation of the government’s “Vision universities explicitly recognise of mātauranga Māori in the IP regime. Amendments to Mātauranga” policy which is potential mātauranga Māori inter- the patents system focusing on a “disclosure of origin” viewed by the commercialisation ests in their intellectual property or requirement as well as to the copyright, plant variety experts interviewed as mainly commercialisation policies. rights and geographical indications legislation are all relating to funding of university The next step would be the intro- on the Government’s agenda. research only and not necessarily duction, clarification or strengthen- In light of these legislative reforms, a question remains: its commercialisation. ing of identification and assessment How are universities, as one of the main New Zealand Most commercialisation experts practices. Such guidelines would public entities engaging in R&D and commercialisation interviewed for the research help address the rights of kaitiaki of related IP rights, fulfilling their Treaty obligations? expressed an understanding of the in mātauranga that is utilised in

44 LAWTALK 936 · February 2020 TRUSTS

TRUSTS

university research being com- mercialised. This is essential for Whether and commercialisation teams who may not know how to identify potential misappropriation risks. what to disclose, To recognise and successfully address Māori interests in research commercialisation, continuous these are the and effective Māori input is critical. Universities can ensure that such engagement is a part of questions decision-making by introducing or maintaining a role for an individual or team with the necessary expertise to provide guidance to BY RHONDA the universities’ commercialisation POWELL experts. Where certain policies, processes, or positions are already in place to appropriate to address mātauranga Māori interests, The Trusts Act 2019 (“Trusts Act”) the value and research shows that streamlining comes into force on 30 January 2021. complexity of and linking those existing measures Many of the changes to the law of that property; is of significant value. trusts brought about by this Act are • records of trus- Finally, because much of univer- aimed at strengthening the ability tee decisions; sity research is collaborative and of beneficiaries to hold trustees to • contracts; cross-institutional, universities are account. To this end, Subpart 3 sets • accounting Rhonda encouraged to synchronise their pol- new rules for trustees about keeping and financial Powell icies and practices when it comes to trust documentation and disclosing statements; protection of mātauranga interests trust information to beneficiaries, • appointment, removal and dis- in the complex yet crucial commer- to ensure that beneficiaries have charge documents; cialisation context. Some universi- sufficient information to enforce • letters of wishes by the settlor; ties are currently reviewing their the terms of the trust. and IP and commercialisation policies. Although the new rules about • other documents necessary for Consistency between universities retention of documentation apply the administration of the trust. should arguably be considered as to charitable trusts, the new rules One trustee may hold most docu- part of any such reforms. about disclosure of information do ments, but each trustee must hold at Once more robust and pro- not. Neither do they apply to other least a copy of the terms of the trust cess-driven systems are in place, permitted purpose trusts that do not and any variation to those terms (s universities would be better have beneficiaries. 46). The documents must be kept equipped to fulfil their Treaty obliga- This article describes the require- by the trustee for the duration of tions and contribute to and support ments to retain and disclose infor- their trusteeship and must be given the advancement of Māori science mation, together with some ideas to any replacement or continuing and innovation capabilities. In doing about how the new rules are likely trustee when their trusteeship ends so, universities can work in collabo- to affect legal practice. (ss 47-48). ration with the wider public sector Complete record keeping is essen- in developing best practice models What information tial for good trust administration. for protection of mātauranga Māori to retain To the extent that trustees are not when commercialising intellectual Section 45 of the Trusts Act requires currently retaining copies of trust property. trustees to keep core trust docu- documentation, the Trusts Act ments, including: should provide a useful wake-up Lida Ayoubi is a Senior Lecturer • documents setting out the terms call. Further, trustees are personally at AUT’s Law School, where she of the trust or varying those liable for their actions and inactions specialises in the relationship terms; (but in many circumstances, they between human rights and intel- • records of the trust property, will be able to rely upon their right lectual property. including income and expenses, of indemnity from the trust fund)

45 February 2020 · LAWTALK 936

be given to them and the effect of general principles of trust law on the factors will form the subject of judicial decisions in 2021 and beyond, as trustee decisions about non-disclosure are challenged. The trustee does not need to treat every beneficiary the same. The Trusts Act permits the trustee to withhold information from a particular beneficiary or class of beneficiaries if this is reasonable having considered the required factors. It may therefore be permissible for the trustee to disclose more information to beneficiaries with vested interests when compared to discretionary beneficiaries with ‘mere expectancies’. In some cases, if a particular beneficiary is unusually litigious, if family relationships could be damaged, or if the settlor intended the information to be kept confidential, trustees might reasonably withhold information. In other cases, transparency may be the most astute strategy to prevent disputes arising. It is expectations that at the time the trust was settled that are relevant to the disclosure decision but if a settlor is alive and good record keeping will assist them to obligation on the trustee. At the same and fully competent, there appears to be protect themselves against any allegations. time, there is sufficient flexibility to cater nothing stopping them from now stating for most circumstances in which trustees the expectations as to disclosure that they What information to disclose might reasonably choose to withhold had at the time of the settlement. In some The Trusts Act creates a presumption information. Lawyers will play a critical cases, the settlor’s expectations as to that a trustee must disclose ‘basic trust role in guiding trustees through the routine privacy or disclosure may be ascertained information’ to every beneficiary and ‘trust exercise of balancing considerations before from lawyers’ files. In any case, the settlor’s information’ to beneficiaries who request deciding what to disclose. wishes are only one of the relevant factors it (ss 51-52). In the case of beneficiaries for the trustees to consider and should not who are minors or who lack capacity, the Factors to consider when be treated as determinative. information must be given to a parent, deciding whether to disclose In future, settlors may choose to express guardian, attorney or property manager. The list of relevant factors (whether for their wishes about disclosure of informa- ‘Basic trust information’ includes (s routine disclose of basic trust information in letters of wishes, or law firms may 51(2)): tion or responding to a request for trust incorporate provisions about disclosure • the fact that a person is a beneficiary; information) is set out in s 53 and includes: into their trust deed precedents. However, • the name and contact details of a trustee; • the nature of the beneficial interests; Subpart 3 is not included in the list of pro- • the occurrence of, and details about, any • whether there are any issues of personal visions which may be excluded by the trust change to the trusteeship; and or commercial confidentiality; deed (Schedule 2) and so the requirements • the right to request a copy of the terms • the expectations of the settlor; for trustees to retain and disclose infor- of the trust and trust information. • the age and circumstances of the mation in the Trusts Act will prevail over ‘Trust information’ is information about beneficiary; anything contrary in the trust deed. the terms of the trust, the administration • the nature and context of any request of the trust, and the trust property, that is for information; How disclosure reasonably necessary for the beneficiary • the effect of giving the information, should take place to have the trust enforced (s 49). including the effect on relationships It will sometimes be appropriate for Before providing either basic trust infor- within the family and relationships disclosure to take place via the trustees’ mation or trust information, trustees must between the trustees and beneficiaries; lawyers. However, the Trusts Act does not consider a range of factors. If the trustee and require this, or even that information be then reasonably considers that the infor- • the practicality of giving the information disclosed in writing, and it may sometimes mation should not be disclosed, then they or imposing restrictions or safeguards. be appropriate to keep disclosure low-key. may withhold the information. It can be expected that the proper interpre- Either way, trustees should keep a written This creates a new ongoing and active tation of these factors, the proper weight to record of the fact that they have considered

46 LAWTALK 936 · February 2020 TRUSTS

the relevant factors and of the decision reached. Some Trusts Act and are in a position to comply with their duties. trust deeds require trustee decisions to be recorded in a Law firms should be turning their minds to the following particular form. factors: In general, the reasons for trustee decisions are not • how they will go about advising their trustee clients of required to be disclosed. It follows that trustee reasons their new obligations; for deciding not to disclose trust information also do not • whether to contact settlor clients about the changes need to be disclosed. to the law; The reasonable cost of responding to beneficiary requests • whether trustee clients hold the required information for trust information under s 52 may be passed onto the and if not, how the gaps may be filled; beneficiary (s 55), although one would assume that in most • what systems would be appropriate if not all trustees cases documents will be stored electronically and can be are to hold all information; passed on for little or no cost. If the trustee incurs legal • whether there is any record of the settlor’s wishes about costs in seeking advice about their disclosure obligations, disclosure or privacy; this expense is recoverable from the trust fund. • the development of precedent letters for disclosing basic trust information; and When to disclose • the development of precedent material to aid trustee The trustee has a duty to consider at ‘reasonable intervals’ decision-making about disclosure. whether the trustee should be making basic trust infor- Law firms which act for both trustees and beneficiaries of mation available. ‘Reasonable intervals’ is not defined and particular trusts need to consider the requirements of the is likely to be context dependent. For a straightforward Rules of Conduct and Client Care for Lawyers if the trustees family trust with little activity, consideration at an annual decide not to disclose certain information to beneficiaries. trustee meeting should be sufficient. Some clients may wish to consider whether beneficiar- In many cases, if basic trust information has already ies may be removed, particularly if there are wide classes been made available, and there has been no change in of beneficiaries. Unfortunately, this is not a quick fix. Care circumstances, then this exercise should be straightfor- must be taken to ensure that this is documented correctly ward and nothing further should be required. However, in accordance with the trust deed and that the action the trustee has a duty to consider disclosure and to make is taken by the power holder (who will not necessarily a decision. be the trustee). Consideration should also be given to If there is a change of trustee, then beneficiaries must whether the power is personal or fiduciary in nature, be notified ‘as it occurs’. One would expect the trustees and if fiduciary, whether it may be validly exercised in to make basic trust information available to any new the circumstances. beneficiary at the time they are nominated. The requirements to disclose information may lead to some clients questioning the ongoing strategic purposes of Court supervision the trust. Similar considerations will apply to any decision The trustee retains significant discretion under the new to distribute the trust assets and/or vest the trust. For a provisions. However, whether the trustee’s decision was ‘standard’ uncontentious family trust, full distribution is ‘reasonably open in the circumstances’ may be challenged likely to be achievable. When advising their clients, lawyers by any beneficiary in the High Court (s 126). should consider the terms of the trust deed, the nature Further, if no beneficiary has any trust information of the powers, the existence and requirements of any (information reasonably necessary for the beneficiary to fiduciary duties that apply, and whether any beneficiary have to enable the trust to be enforced) then an obliga- or protector consents are required. tion arises for the trustee to apply to the High Court for directions (s 54). This obligation applies if no beneficiary Conclusion can be identified, if the trustee has decided not to disclose The new rules on retention and disclosure of information basic trust information to any beneficiary, or if the trustee will bring about greater transparency and encourage better has declined a request for information. administrative practices for trusts. At the same time, The application for directions need not be made if the they will expose matters which have been historically period during which no beneficiary has any trust infor- kept private, sometimes for good reason. For complex or mation is less than a year. contentious trusts, the new rules provide a framework for information to be requested, and for review by the Practical implications High Court if necessary. An increase in trust litigation is a In 2020, it will be important for trustees to develop robust likely consequence of these changes. In considering how decision-making practices around the provision or with- to address their new duties of disclosure, trustees should holding of trust information and if necessary, to seek advice be mindful of the purpose of the new provisions, to ensure to help them strike the right balance. that they can be held to account by the beneficiaries. ▪ If they haven’t already, lawyers who act as professional trustees need to review their files and their ongoing prac- Dr Rhonda Powell TEP is a Christchurch barrister who tices to ensure they hold the information required by the specialises in trusts and estates law.

47 TRUSTS February 2020 · LAWTALK 936

TRUSTS The Evolution of Trustees From Medieval England to contemporary NZ

BY HENRY BRANDTS-GIESEN

They were accountable, organised they receive only limited benefit The role of a trustee and its and structured and were fulfilling from the arrangements. In some variants have evolved significantly a calling that required them to put cases the following matters have over many centuries. Grain sur- the interests of others ahead of their obviously not been considered at pluses 7,000 years BCE apparently own. the time the trust was set up: led to the development of the con- • The assets held by the trust cept of “bailment” and increasing Customisation are encumbered with debt and trade in commodities and precious Henry It was on this basis that the office security to banks and/or there are metals led to the concepts of Brandts-Giesen of trustee as we know it today substantial settlor and beneficiary “agency”, “brokerage”. “custody” and evolved in England and then, current accounts. And so there is “mandate”. The Greeks, Romans and Egyptians all had with the advent of British impe- not much wealth that is actually legal relationships and structures similar to modern day rialism, was transplanted to all being protected by the trust. trusts which they used to hold and manage property for corners of the globe. However, since • Often the trust has no income, estate planning and commercial purposes (K Wallace, Commonwealth independence after and even if it does, there are no “The First Professional Trustees”, (2018) Trust Quarterly the Second World War the use of material tax advantages in New Review, vol.16, issue 2, p 12). trusts and the role of trustees in Zealand to having income produc- various countries has arguably been ing assets in a trust. If indirect The influence of the Knights Templar less influenced by these English ownership is desirable then a The Knights Templar are perhaps the forerunners of the origins and jurisprudence as local limited partnership or company modern day trustee. In the 11th century, devout pilgrims advisers, courts and parliaments may well be more tax efficient. In from Europe visited the Holy Land but were frequently have customised the use of trusts any event, New Zealand is a rela- robbed or exploited on their pilgrimage across south-east to a domestic context. tively benign fiscal environment Europe and the Middle East. In response, knights were In some countries this customi- compared to most developed mobilised to guard the pilgrims on their travels. sation has been very successful and countries (we have no general The Knights Templar developed a reputation as has led to sophisticated financial capital gains, inheritance, estate obedient, religious defenders of Christians. They were services industries and eminent or wealth taxes). granted exemptions from local taxes and entitled to paint judges, trustees and professionals • Our succession laws are mature a Templar cross on their properties to declare their tax- expert in the law, governance and and relatively certain. They allow free status to the authorities. Perhaps predictably, some administration of trusts. In other almost unrestricted freedom to other opportunistic property owners mischievously countries, the outcomes have been benefit whoever we want under copied this and thereby carried out an early example less successful. our wills. There are some require- of tax evasion. Unfortunately, the use, governments to provide for people to As a highly respected, well organised, devout and ance and administration of trusts whom we have a moral duty prosperous religious order, the Knights Templar were in New Zealand has evolved in a but nothing like the forced heir- entrusted with estates while the owners went on pil- way that leaves some things to be ship regimes that exist in many grimages or crusades to the Holy Land. They became desired. European and Middle Eastern property managers, consolidators of small parcels of countries. land into large estates, revenue generators, cash accu- The use of trusts • Our laws and nationalised acci- mulators, lenders, and distributors of surplus funds. in New Zealand dent compensation regime gen- An important reason why the Knights Templar were Trusts are typically the centrepiece erally prevent claims being made so highly regarded and entrusted with such respon- of a New Zealand family’s asset against individuals for personal sibility was that they were independent, experienced plan. However, quite often people injuries caused by negligence. and qualified professionals. They were also subject to in New Zealand have assets held • Tax authorities and government rigorously enforced moral, legal and religious codes. in a trust in circumstances where agencies nowadays typically look

48 TRUSTS

The future of trusts in New Zealand Historically, these idiosyncrasies were probably of only academic relevance in New Zealand, given net asset values may have been low and the interests of the beneficiaries and the trustees are often aligned whilst the second generation are young and uninformed. However, in recent years some asset classes have increased exponentially in value and many beneficiaries have grown into adulthood and are likely to be better educated, informed and advised in relation to trust matters. This represents both risks and opportunities for advisers and requires us to rethink the way we have traditionally done asset planning in New Zealand. Paradoxically, this may lead us to consider the example set by the Knights Templar many hundreds of years ago and commit to a higher standard of governance and administration of trusts in New Zealand. through trusts to the people who as underlying companies). Globally, there is an entire The Trusts Act 2019 will almost cer- set them up and benefit from industry dedicated to the independent governance of tainly increase the level of scrutiny them. Increasingly the same private wealth. However, in New Zealand we tend to on New Zealand’s community of approach is being taken by courts conflate the provision of two very distinct functions, trustees – most of whom are either in cases involving the dissolution legal advice and fiduciary services. In each case the lay persons or professional advisors of relationships and recovery of providers of those services require different skills and rather than professional fiduciaries. debts. have duties which are owed to different classes of people. As the New Zealand private • We have a well-functioning and Trusts are one of the most complex legal relationships. wealth sector eventually matures relatively sophisticated insurance Many lawyers do not properly understand trusts and and aligns with other countries, industry. fiduciary powers and duties, let alone lay settlors, trus- there should be commercial In many cases, the trusts may just tees and beneficiaries. In New Zealand, many clients opportunities for specialised, add unnecessary complexity and are reluctant to appoint an independent professional independent, professional (and expense to people’s lives. This soon trustee who is not also the family lawyer or accountant. perhaps regulated) trustees to becomes apparent when the family A problem with that approach is that the family lawyer fulfil these increasingly important is refinancing, buying and selling or accountant could be conflicted by a long-standing governance and administrative property, preparing tax returns or relationship with the people who set up the trust (whose roles. That should be a good thing adjusting succession planning set- interests may become misaligned with the next gen- for the preservation, enhancement tings. Many trusts in New Zealand eration) and unaware of, or unable to fulfil, fiduciary and aggregation of family wealth in would not withstand scrutiny from duties to the wider family. In many cases he or she will New Zealand. It may not be such a the court because of the way they not have the specialist skills to perform the role in an good thing for the trusts litigators are set up and/or operated. increasingly complex and regulated modern professional of New Zealand who are currently environment. dealing with an entire generation of The role of trustee In other countries, it is generally undesirable for family trusts which have been set up and in New Zealand members to be the trustees and/or have effective control run in a rather peculiar manner. ▪ Another unique aspect of New over the trust. Instead, truly independent, professional Zealand asset planning is the and licensed trustees are typically granted wide discre- Henry Brandts-Giesen  henry. distinct lack of independent tionary powers, which they exercise judiciously, whilst [email protected] is governance of trusts and family mindful of fiduciary and other duties which are enforced a partner with Kensington Swan, investment holding entities (such by the courts and regulators. Auckland.

49 IMMIGRATION February 2020 · LAWTALK 936

IMMIGRATION Parents, migrants and Immigration New Zealand

BY MAHAFRIN VARIAVA

parents’ applications were in pro- relationship will now need to have In late 2016, the Government gress, those who intended to submit a combined income of $212,160 with implemented changes to the res- Expressions of Interests for their their partner in order to sponsor two idence programme. The effect of parents’ applications, those who parents – as opposed to a combined this was to reduce the number of submitted Expressions of Interests income of $90,000 under the old places for family member migrants and those whose parents’ applica- policy; this new figure being four to obtain residence from 5,500 to tions were in the queue waiting for times the median salary. These 1,000 per year. Mahafrin allocation. new financial requirements will The greatest impact of the policy Variava be updated every year based on change had been in relation to the What changed? the New Zealand median income. Parent Residence Visa Category. On 31 October 2019, Cabinet Additionally, sponsors will have to Under this category, individuals published a paper suggesting the provide evidence of their annual who have adult children in New Government acknowledges the income through IRD tax statements Zealand who are New Zealand benefits of the parent category, and show that they have met the citizens or residents can apply for stressing the contribution to the income requirement for two out New Zealand residence. Prior to social and economic wellbeing of of the three years before the visa the suspension of the category in sponsoring families. However, the application is lodged. 2016, there were essentially three paper also noted these benefits were different parent categories. The cate- difficult to “objectively quantify” Why all the fuss? gories ranged from parents investing and outweighed by the long-term Unfortunately, these policy changes a substantial amount of funds into cost to the Crown of health and will impact heavily on many New Zealand to parents (or their social benefits drawn on by parents. migrants who were intending to sponsors) having to demonstrate a Earlier that month however, the bring their parents to New Zealand certain income in order to be able to changes were announced to the – simply put, a substantial number support their applications and living parent category with perhaps the will no longer have the option. expenses in New Zealand. most exciting being that the parent While credit must be given to Aside from the above, parents category was scheduled to reopen in the Government for reopening the also had to meet the requirements February 2020 – which some would category, the vast income differ- of being of acceptable health and of say was perhaps the only positive. ence excludes the parents of many good character – which is standard From the previously allocated 5,500 migrants New Zealand is seeking across all visa categories. Upon places for parents, the numbers to attract. Those being the myriad arriving in New Zealand, parents were reduced to 1,000 per year; of workers who arrive in New were eligible to access publicly and the Government decided to Zealand every year and contribute funded health services and welfare substantially increase the income at all levels across the country. and superannuation payments upon threshold at which a sponsor could Those working as teachers; in the qualifying. support their parents. trades; and a range of other skilled The parent visa category was Under the new policy, income occupations, who will now struggle declared as suspended in 2016 to thresholds will vary depending on to get anywhere near the threshold clear Immigration New Zealand’s the composition of the sponsoring required. backlog of applications. The decision child’s partnership status, and the For migrants this is a highly to suspend the category was one number of parents to be sponsored. emotive issue. Many have argued which came as a surprise to many However, a sponsoring child who the expectation that one would migrants. This included those whose is either married or in a de facto eventually be able to bring their

50 IMMIGRATION

place an importance on the eldest child supporting and living with their parents and others place importance on a son, looking after his parents. Therefore, what may be a legitimate expectation for one culture, may not be the same for another. The specifics of the policy are yet to be released and we can only speculate what the policy may look like going forward. That said, with Immigration New Zealand already giving the public remuneration limitations to work with, we do not see this being received well by the industry and migrants alike. In the meantime, migrant community newspapers continue to capitalise on the sentiments of migrants and question MPs from ethnic backgrounds on how they are representing their communities through their political positions. Although some shift the conversation to the standard “at least the parent category has reopened under the present Government” argument, others rely on rhetoric such as “…if you don’t like it and you’re threatening to go home – catch the next flight”. There was a shift in how migration policies are looked at in 2019 and it’s fair to say that globally, these are being reviewed, scrutinised and parents to New Zealand was not to residence in the hopes of one day restricted. This year will herald the a “legitimate expectation”. The being able to bring their parents. In first wave of migrant parents arriv- counter to that, of course, is clear. their view, their social and cultural ing under the new policy. It will be Under previous governments, New contributions, and the sacrifices interesting to see if by restricting Zealand marketed itself as a coun- they have made to be here have the policy as the Government has, try where migrants, their children, no value if their goal to eventu- it will have achieved its goal of their spouses and their parents ally bring their parents remains reducing fiscal obligations on the were welcome. It marketed itself as unaccomplished. Crown; or has it just disappointed a country which supported family However, it is also difficult to many thousands of migrants, who connections, and its policy objec- compare expectations across consider Aotearoa home? ▪ tives stated that family categories cultures. For example, filial piety were in place to “strengthen families (the Confucian concept of being Mahafrin Variava  Mahafrin. and communities”. Many migrants respectful towards one’s parents), [email protected] is bought into this, mortgaging family is central to the Chinese culture. a Senior Solicitor based in Lane homes, selling land and spending The same can be said for the Indian Neave’s Auckland office. She spe- savings to establish a presence culture – where the concept of a cialises in immigration matters and in New Zealand. Migrants have joint-family (ie, multiple generations is a member of the New Zealand arrived here on student and work in one home), is given priority and Law Society’s Immigration and visas seeking long-term pathways importance. Some cultures also Refugee Law Committee.

51 LEGAL EDUCATION

LEGAL EDUCATION Keeping students safe The Education (Pastoral Care) Amendment Act 2019

BY OLIVER FREDRICKSON

general duty of pastoral care over their Recent events, including the death of students. This general duty covers phys- a student in a university hall of residence, ical safety, access to advice and support have prompted the Government to reassess services, physical and mental health sup- the quality of pastoral care being pro- port, freedom from discrimination and vided to tertiary education students. The racism, support for transition to tertiary recently passed Education (Pastoral Care) study, and the opportunity to take part in Amendment Act 2019 attempts to rectify Oliver decision-making of support services. the apparent shortcomings, allowing the Fredrickson The code also includes specific additional Minister of Education to issue a mandatory requirements for those that provide stu- code of practice to govern the pastoral care dent accommodation. These requirements of all tertiary students. Such a code was are plentiful and seek to provide students already in place for international students, with a positive and supportive environ- but not domestic. The Pastoral Care Act ment in student accommodation. addresses this regulatory gap to ensure Throughout 2020, the Government will that all tertiary students live in a safe consult relevant stakeholders on the development of a environment and have their emotional and long-term code to take effect from 2021. physical wellbeing adequately cared for. Administering and enforcing the code Code of Practice The Minister of Education has appointed the New Zealand In 2004, a number of tertiary education Qualifications Authority (NZQA) to be responsible for providers adopted a voluntary code of administering the code. A key part of this role will include practice. Unfortunately, some did not monitoring and investigating any suspected breaches of and over time the code effectively fell into the code. The interim code allows any person to refer any abeyance. Many of the monitoring regimes issue related to an alleged breach to NZQA. If the breach is imposed to ensure the wellbeing and safety particularly serious, the Pastoral Care Act allows financial of students were eventually scrapped in sanctions to be placed onto the tertiary education provider. cost-cutting measures. Under the Pastoral Care Act, the Minister of Education will impose a mandatory code of practice requiring all tertiary education providers to take all reasonable steps to “maintain the wellbeing” of domestic tertiary students and to “protect” international students. As the Act only received its Royal assent on 19 December 2019, the minister has imposed an interim code of practice for the 2020 academic year, which took effect on 1 January 2020. The interim code imposes on to all tertiary education providers a

52 These sanctions may come in the form of These two forms of financial sanctions with the DRS operator if: a criminal or civil penalty. are mutually exclusive. Once a court finds • the provider has refused or not tried to Under s 238S, a provider commits a that a tertiary education provider is crim- resolve the dispute; or criminal offence if it: inally liable under s 238S, it may not then • if the provider has been given an oppor- • without reasonable excuse, breaches the impose a pecuniary penalty under s 238T tunity to resolve the dispute, but the code of practice; and in respect of the conduct, events, or other student is not satisfied with the process • the breach results in serious harm to or matters that were subject of the criminal or outcome. the death of one or more of its students. proceedings. The same is true if a court first The DRS operator may then issue a reso- The adjudicating court will determine orders a civil pecuniary penalty. lution through an adjudication or follow- whether a reasonable excuse existed, ing a mediation process. This resolution whether the breach caused the harm, Dispute resolution scheme may require a tertiary education provider and whether “serious harm” occurred. A Separate from the code of practice, the to pay a student claimant up to $200,000. tertiary service provider who commits this Pastoral Care Act also establishes a stu- Once the resolution is made, the student criminal offence is liable on conviction to dent contract dispute resolution scheme may then apply to the District Court to a fine not exceeding $100,000. (DRS) to resolve contractual and financial have this enforced as if were a judgment Similarly, NZQA may apply to the court disputes between students and tertiary of the court. However, the District Court to order a tertiary service provider to pay service providers. The scheme doesn’t may modify the resolution before giving a civil pecuniary penalty. Under s 238T, apply to the interim code, but is anticipated effect to it if it is satisfied that the terms the court may order a civil pecuniary to come into force in with the permanent of the resolution are manifestly unrea- penalty not exceeding $100,000 if it is code of practice in 2021, once the details sonable. ▪ satisfied that the provider has, without of its application are arranged and agreed. reasonable excuse, committed a “serious The Pastoral Care Act requires all pro- Oliver Fredrickson  oliver.fredrickson@ breach” of the code of practice. The select viders to comply with the rules of the justice.govt.nz recently completed an committee report makes it clear that the DRS, which will be operated by a person LLB(Hons)/BCom at Victoria University court will determine what constitute a or agency appointed by the Minister of and works as a clerk to the Chief District “serious breach”. Education. A student may lodge a claim Court Judge Heemi Taumaunu.

53 LEGAL EDUCATION

Law school Deans reflect on 2019 and look ahead to 2020

BY NICK BUTCHER

Each year around 10,600 students are enrolled to study law at one of New Zealand’s six tertiary institutions offering law degrees. The four or more years spent at university are an essential introduction to the law for all lawyers. The Deans of each of New Zealand’s law schools were asked for their reflections on how 2019 went and invited to look forward to 2020.

54 LEGAL EDUCATION

University of Otago Faculty of Law/Te Kaupeka Tātai Ture

Otago University Law School Dean, in Hong Kong in March. Professor Jessica Palmer, says 2019 In addition, Nerys Udy rep- was a busy year, and particularly resented Otago in the national special as the university celebrated Kaupapa Māori Moot final held in its 150th anniversary. the Supreme Court before a bench Two events were held for law of five judges, including Justice Joe alumni, one a Deans’ panel event Williams. Abie Faletoese won the which brought together five past Pasifika Law Students Sentencing Otago Deans. Competition held at Canterbury The other was a celebratory Law School. dinner which featured speeches And in February 2019, fourth year from Justices French, Miller and student Hannah Morgan swam 32km Lang. across Foveaux Strait in 8 hours “They’re all proud Otago alumni and 43 minutes, raising $30,000 and gave very entertaining speeches. for the Mental Health Foundation It was a great opportunity to catch practices that best suit today’s and the Otago University Students up with over 100 alumni, some of university students and consider Association. whom had travelled some distance our aspirations for a modern LLB,” to attend,” she says. Professor Palmer says. 2020… new subjects She says the faculty is committed such as Chinese law LLB review begins to ensuring the Otago law degree This year the law school offers a Last year at Otago University Law continues to provide students range of new subjects including School marked the beginning of an with excellent analytical and Chinese law; immigration and ref- ongoing process to review the LLB problem-solving skills, while also ugee law; international litigation curriculum which will continue broadening their understanding and dispute settlement; law and into 2020. of the value that law can bring to indigenous peoples; international “This is no easy task and I am society. family law; and children and the grateful to Professor Shelley family justice system. From 2021, Griffiths for leading this project. Students challenge that range will expand to include We have heard from Professor Prue themselves outside Pacific law; global governance; Vines (University of New South of the classroom advanced criminal law; and climate Wales) and from various people Professor Palmer says Otago law change law. across the university as we think students have continued to chal- “In 2020, we’ll be paying par- through the learning methods and lenge themselves by expanding ticular attention to how we can their knowledge and skills outside encourage greater diversity in of the university. our student body and support the Savanna Gaskell and Meghan success of students from all walks 2019 was also Laing represented Otago at the New of life. As a faculty, we are com- Zealand Red Cross International mitted to the value of diversity, the first year Humanitarian Law Moot and won both in the university and in the that female the competition for Otago for the legal profession. We have started first time since 2011. The team, this already with some research professors coached by Marcelo Rodriguez and faculty discussion on differ- outnumbered Ferrere, edged out Victoria ent meanings of diversity and a University in the final, in front of detailed review of our student male professors a panel including Sir Kenneth Keith, cohort over the last 10 years,” says at the faculty. Judge Bill Hastings and Brigadier Jessica Palmer. Lisa Ferris. 2019 was also the first year that They’ll now represent New female professors outnumbered Zealand at the Asia-Pacific finals male professors at the faculty.

55 LEGAL EDUCATION February 2020 · LAWTALK 936

University of Canterbury School of Law/Te Kura Ture

Last year was a busy one at the Ursula Cheer and their inter-disci- Canterbury School of Law, says acting plinary socio-legal research team Dean, Professor Elizabeth Toomey. completed the final-year survey in This included the appointment of a their ground-breaking national and new University Vice-Chancellor, longitudinal study of the expectations Professor Cheryl de la Rey. and experiences of New Zealand law students. Review of undergraduate The school also hosted its 2019 programme Sir Eric Hotung Visiting Fellow, In line with the university’s vision High Court of Australia Judge, of providing accessible, flexible and Justice Stephen Gageler, and the future-focused education, the school New Zealand Law Foundation 2019 is reviewing and refreshing all levels Distinguished Visiting Fellow, Lord of its undergraduate programme Thomas of Cwmgiedd. Furthermore, to ensure that graduates have the Professor Neil Boister co-organ- skills and attributes to thrive in their ised an international symposium, chosen careers. Ongoing work to Histories of Transnational Criminal “This work is informed by the stu- Law and Professor Toomey dent voice, legal education research support student co-convened the national Resource undertaken by school staff, and the Management Law Association con- views and experiences of the four wellbeing ference, Visionary Environments. new academic staff who have joined and success... Dr Chris Riffel – co-chair of the the school. Closely linked to this International Economic Law Interest programme refresh is ongoing work is aimed group of the Australian and New to support student wellbeing and at building Zealand Society of International success in line with the University of Law (ANZSIL) – hosted the group’s Canterbury vision of nurturing staff stronger annual workshop. and supporting students,” Professor working Professor Karen Scott was Toomey says. elected as President of ANZSIL She says work in this area is aimed relationships and was appointed as Editor-in- at building stronger working relation- between staff Chief of the leading international ships between staff and students, and journal Ocean Development and among students. The school also plans and students. International Law. Dr Olivia Erdelyi to review and transform its criminal was the New Zealand representa- justice degree. tive on the OECD AI expert group “As always, change comes with challenges, including AIGO, which was mandated to balancing new ideas with practicality.” scope the OECD’s AI principles, She says the staff have been involved in wide-ranging and Dr Toni Collins and Dr Shea activities and academic interests. Esterling have been awarded Externally-funded research projects include: the com- grants under the Cambridge/ parison of various aspects of trial process in adult rape Canterbury and Oxford/Canterbury jury trials with 20 comparator cases from judge alone exchange programme. trials; the investigation of Forensic Brainwave Analysis (FBA) technology; research into the regulation of resil- 2020… ience; the examination of anti-corruption mechanisms in Professor Toomey says these the South Pacific region; and a project in the Sustainable activities, by no means exclusive, Seas National Science Challenge. promise a successful 2020 for the school, along with a new University Law student research completed Strategic Vision for 2020-2030: Professor Toomey says Professors Lynne Taylor and Tangata Tū Tangata Ora.

56 LAWTALK 936 · February 2020 LEGAL EDUCATION

Victoria University of Wellington Faculty of Law/Te Kauhanganui Tatai Ture

2019 was a year of consolida- them for any particular professional tion and progress for Te Herenga outcome. Notwithstanding that Waka – Victoria University of we must always have an outlook Wellington’s Faculty of Law, says towards practical legal professional Pro Vice-Chancellor and Dean of Law skills such as writing an opinion or Professor Mark Hickford. mooting. We focus on teaching our students to think and evaluate criti- Student success cally, knowing that those skills may coordinator appointed not only benefit the legal profession Professor Hickford introduced a new but also public policy, the non-gov- key staff role – the Student Success ernment sector and so forth. Coordinator. This position is partly “There’s always been a relative about responding to increasing liberality as to where students might expectations around pastoral care, end up and that the skills that we he says, focused around wellbeing, teach are not just for them to become along with managing the learning and teaching pressures a legal practitioner,” he says. on students. “What the service does is to support students who 2020… might be at risk in relation to their performance in Professor Hickford says a digital examinations pilot courses through a range of factors and circumstances. programme was run at the law faculty in 2019, which This is a specialist role that is focused on dealing with proved successful and worthy of further investigation. the risks and stresses that come with student life. It was trialled while the New Zealand Qualifications The whole point of this was to have someone who Authority continued to run a digital exam pilot in sec- had the acumen and skill set but at the same time ondary schools. knew who to escalate matters to and when in a very He says they’ve had excellent feedback from students proficient way.” and professional and academic staff say it has provided them the ability to grade papers more efficiently and New technology therefore be able to give students feedback more The faculty invested in technology during 2019. It hired efficiently. Dr Marcin Betkier who – along with the Law of Torts and Professor Hickford says other institutions are Data Privacy – specialises in information technology law. providing digital exams, such as Australia’s Monash The law faculty is looking at reviewing and improving University. programmes that include Māori and tikanga, something Professor Hickford says all law schools are involved in. “This includes tikanga in areas such as contract law and subjects such as commercial law. Broader What the service approaches are needed around the role of the Treaty of Waitangi and tikanga in these areas,” he says. does is to support Enhancing student sense of community students who might In 2019, the faculty piloted a newsletter for law students, be at risk in relation which aimed to improve student access to relevant to their performance information, and to build a stronger sense of community. About half the students who study law in universities in courses through a don’t go on to be practising lawyers. range of factors and But that’s not a new issue as Professor Hickford explains. circumstances. “We’ve regarded this as part of our normalised landscape for some years. Law schools are there to train people how to think critically rather than to prepare

57 LEGAL EDUCATION February 2020 · LAWTALK 936

University of Waikato Te Piringa – Faculty of Law

Women studying law at Te Piringa – the Faculty of Law at the University 2020 and what’s next of Waikato significantly outnumbered Wayne Rumbles says an ongoing male students in 2019. For the first challenge for law schools will be to time, the percentage of female law respond to a rapidly changing legal students exceeded 70%. Māori made services environment as it reacts to a up 29% and Pacific students 13%. range of disruptive technologies and “The diversity of the student body new business models. is a strength of Te Piringa and chal- “Cloud computing, block chain, lenges the faculty to ensure that its big data, artificial intelligence and programmes are reflective and cog- machine learning will contribute to nisant of the increasing diversity of the automation of many legal tasks but New Zealand society as a whole,” says also provides exciting new opportuni- Dean of Law Wayne Rumbles. ties for wider access and delivery of He says the figures add further legal solutions. This challenge means impetus for Te Piringa to contemplate how it can con- law schools need to reflect and define our role in preparing tribute to a change in legal culture. graduates to practise and take up the opportunities of a “We have introduced an induction programme for all very different world.” interns and work placements; we have further developed He says an ongoing challenge for their students will our work-ready programme of seminars in conjunction be how to operate in this rapidly changing legal envi- with our student associations. This programme includes ronment where the way traditional law firms operate focusing on general wellbeing, mental health, managing is being challenged, where new business models are stress, work-life balance and dealing with bullying, emerging and technology is moving from concept to sexual and other forms of harassment,” he says. real-world application. “Our graduates need to have flexible high-level skills BA majoring in Law for people that can adapt to rapid change, embrace technology and not intending to practise seize new opportunities that will emerge.” Associate Professor Rumbles says in recognition that some understanding of the law is important for many New Dean in 2020 professions beyond traditional law practice, Te Piringa Associate Professor Wayne Rumbles’ term as Dean will launched its new Bachelor of Arts in Law this year. end when he steps down to go on study leave in February “The BA in Law programme is designed for those that 2020, to focus on a New Zealand Law Foundation- want to gain a non-practice understanding of the law sponsored TeLENZ (Technology in Legal Education and apply it to specialist areas of interest within the New Zealand) project. humanities,” he says. Professor Alpana Roy has been appointed to the role Furthermore, he says to bring law and legal under- of Dean starting on 10 February. Professor Roy comes standing to non-LLB students, Te Piringa started offering from the School of Law at the Western Sydney University. commercial law papers in the Waikato Management “She has established an international reputation for School and co-teaches the Master of Cyber Security with research in intellectual property law,” Associate Professor Computer Science. Rumbles says.

The diversity of the student body is a strength of Te Piringa and challenges the faculty to ensure that its programmes are reflective and cognisant of the increasing diversity of New Zealand society as a whole.

58 LAWTALK 936 · February 2020 LEGAL EDUCATION

Auckland University of Technology Law School

The AUT Law School is in good shape after a decade of providing higher education, the Dean of Law, Professor Staff have also had Charles Rickett, says. It celebrated its 10th anniversary in July 2019 and a busy year on the he says it’s pleasing that the undergraduate numbers have continued publications front to grow. and our reputation “In 2013 our first graduating cohort was 54 and by 2018 this had risen to for research 77. Our LLB(Hons) graduation num- continues to grow. bers have also risen, from five in 2013 to 16 in 2018.” First PhD in Law graduate Professor Rickett says the law school celebrated its first law, the courts and the profession. PhD in Law graduate last year. “It was also wonderful to have “Judge Layne Harvey will now forever hold the dis- Dame Helen Winkelmann lend tinction of being that person.” her support to an event organised AUT’s permanent staff numbers include 28 academic jointly by Meredith Connell, AUT staff and five administrative staff. They welcomed Law School and Auckland Law three new academic members of staff last year with Dr School in September, when around Akshaya Kamalnath coming from Deakin Law School in 60 pupils from 10 schools in lower Australia, Christopher Whitehead arriving from McGill decile areas spent the day at AUT to University in Montreal where he has been completing experience lectures and workshops,” his PhD in an area of insurance law, and Dr Natalia he says. Szablewska taking up a position as a senior lecturer Professor Rickett says the school after teaching torts, human rights and international law continues to teach all its compulsory at the Southern Cross University on the Gold Coast. LLB papers at its South Auckland Professor Rickett says the school has attracted a range campus at Manukau. of lawyers who have been teaching various papers. “This commitment presents resource challenges and the uni- Lawyers teaching papers success versity has been very generous in “The practical legal knowledge and expertise which they providing funding to enlarge our contribute to the learning experiences of our students staffing cohort. The student demo- is invaluable,” he says. graphic at AUT is healthily diverse, These lawyers include Deborah Manning (immigration but this too presents challenges. and refugee law and clinical legal education) and Frances Student performance and retention Joychild QC (human rights litigation). in some groups is not as high as it “Staff have also had a busy year on the publications could be. front and our reputation for research continues to grow “We have recently secured fund- which adds kudos to the school,” he says. ing from a generous South Auckland sponsor and have established the Lord Thomas of Cwmgiedd Aiono Matthew 9 Lectureship in In October AUT welcomed Lord Thomas, the former Lord South Pacific Legal Studies. The first Chief Justice of England and Wales, to AUT as the 2019 appointee takes up her new position New Zealand Law Foundation Distinguished Visiting in February. We are also facing the Fellow. In a series of illuminating lectures, seminars and need to consider carefully the place meetings, Lord Thomas explored various perspectives of tikanga Māori in our programme,” on the way in which technology is impacting on the he says.

59 LEGAL EDUCATION February 2020 · LAWTALK 936

University of Auckland Law School

2019 was Professor Penelope work part-time in law firms or have Mathew’s first year as Dean of the friends or family members who do.” University of Auckland’s law school. Reflecting on the academic year, More technology she says legal work is changing and in first-year law some of it is driven by technology Professor Mathew wants to include which she says a law degree that is more technology in the first-year fit for the profession needs to contin- law curriculum and the school ually address. She says even when will be looking at how to integrate she attended law school, there were innovation content into it with the students who had no desire to study support of the university’s Hynds law for the purpose of practising it. Entrepreneurial Teaching Fellow, These days, Professor Mathew says, Peter Rachor. That role was cre- it is more common for students to ated by the university’s Centre for be doing conjoint degrees to spread Innovation and Entrepreneurship. their career options. She herself did The aim is to embed innovation and a conjoint degree about 30 years ago entrepreneurship into the curricula in Australia. across the university. “Many students see the law as She says the “We are also participating along supporting the other field they’re with other law schools in the studying. For example, aspiring faculty is engaged Law Foundation-funded project business people and entrepreneurs in critically Technology in Legal Education in want an understanding of the law. New Zealand. The project is look- Other graduates are focused on evaluating ing at helping develop content, policy so for them the law will be what new skills, resources and information that can one area that is relevant to policy be introduced in core legal subjects decisions. Others want to be advo- content and at the second and third year of the cates for human rights or environ- knowledge its LLB degree,” she says. mental issues, so the law is one facet LLM and AI Law & Policy of the knowledge base required to law graduates will do this type of work,” she says. In 2019 the Faculty’s LLM (Masters) require in light programme offered a specialist End of year retreat of a landscape course, Artificial Intelligence, Law In 2019, the law school and its public and Policy, which will be available lawyers went on an end of year impacted by new again in 2020. retreat where they discussed a range technology. She says the faculty is engaged of issues, with particular focus on in critically evaluating what new what she describes as the changing skills, content and knowledge its role of the law degree. law graduates will require in light “How do we respond to changes of a landscape impacted by new in the legal profession and how do technology. we ensure the profession changes “Jean Yang from McCarthyFinch in ways that it should – for example, future challenges for new members presented at our faculty retreat on how does a law school contribute of the law profession. how technology is disrupting, alter- to a profession that ensures better “Wellbeing was high on their ing, and providing opportunities for access to justice?” agenda. They are certainly aware the legal profession.” Before the retreat, Professor of the pressures imposed by long The law school introduces a Mathew met 30 of their student hours at work and issues of diversity new Vice Chancellor for 2020 with leaders and posed questions to them and inclusion such as gender, race, Professor Dawn Freshwater starting around what they viewed as the ethnicity, sexuality. Many of them in March.

60 LAWTALK 936 · February 2020 TECHNOLOGY

TECHNOLOGY

Given up driving and Tech predictions even car ownership My eldest daughter is 13 and I am looking forward to teaching her to drive and to for the soaring 20s helping her buy her first car in the not too distant future. My youngest is eight and I doubt she will ever either learn to drive or own a car. BY DAMIAN Why would she want to when cars will FUNNELL drive themselves and arrive within seconds of being summoned? She will never have to look for a car park again – once she’s at her destination her chariot will simply Finally, this century delivers a decade that has a drive itself away, ready to pick up the next catchy, easy to agree upon moniker. No more ‘two thou- passenger. sands’ (erm... are we talking about – the decade or the By 2030 most trucks will be fully millennium?), ‘naughties’, ‘aughts’ or... what do we call self-driving, making the trucking industry the 10s, anyway? significantly safer and more efficient than Thank you Gregorian calendar for giving us the 20s again it is today. and what a decade of technology it’s going to be. Damian Tens of thousands of driving jobs will Although I’m not entirely sure what names history will Funnell become redundant across the country, assign to the previous two decades, it is clear that – from a which sucks, but thousands of lives will technology perspective – the 00s and 10s were tectonic. We be saved as more and more of us let our got smartphones, private space companies, and universal cars do the driving for us. broadband. What the past 20 years is most notable for, however, Electric cars was the emergence of technologies that will change the In the 1980s the music industry switched face of civilisation as we know it, but that haven’t yet from vinyl and cassette to CD. In the 20s quite made the prime time. the automobile industry is going to switch So buckle up and join me as I bravely (some would say from gas guzzlers to electric. Yes, there are foolishly) predict the technological achievements that will plenty of us who insist that we’ll stick with most affect our lives over the next 10 years. the ‘richer sound’ of good old vinyl, thank In 10 years’ time we will have: you very much, but more of the holdouts will make the switch than even they think. Lost jobs to artificial intelligence By 2030 over 75% of new cars sold in New AI has progressed in leaps and bounds over the past 20 Zealand will be fully electric. Electric cars years. In December I received an automated call from will be cheaper, cleaner, safer and better Google asking whether our office was open over the in almost every way than their internal Christmas holidays so they could update opening hours combustion counterparts. My bet is that in Google Maps. The caller was an AI bot (ie, a computer) the EU will have set a ban on the sale of and ‘he’ identified himself as one, but I managed to chat new internal combustion-powered cars with him almost intelligently for a couple of minutes. and light trucks from the mid-30s, meaning He was so human-like that it was exhilarating and many car manufacturers will be well on downright scary at the same time. He made small talk their way toward phasing out gas guzzlers and even laughed at my jokes (a sure sign he wasn’t a by the end of the 20s. sentient being) and I was taken aback by how naturally the conversation flowed. Colonised Mars AI is here and it’s mature and we’re going to see more Despite the momentous achievements and more jobs lost to computers over the decade ahead. of the Russian and American space This will have a profound impact on law as much of the programmes during the 60s and 70s, no low hanging fruit will start to be performed by algorithm human has set foot on another celestial rather than by associate. Innovative new competitors will body within my lifetime. And, as my kids emerge with new and exciting technologies that have the will happily tell you, I’m older than dirt. potential to disrupt areas of the industry in ways that are This will all change in the 20s, during hard to predict until it happens. which time we will have true space tourism

61 TECHNOLOGY

for the first time, humans will again set foot on the moon and we’ll even colonise Mars. Let that sink in for a moment – within the next decade we will become an interplan- etary species. Whether this is a good or a bad thing remains to be seen, but it will be hugely significant to the progression of the human race. Even more interesting will be who man- ages to get there first. Will it be NASA or SpaceX? My money is on the latter. In the meantime, I’m looking forward to Virgin Galactic finally providing tourist trips into space this year after 15 or so years of building and testing. Watch for companies such as SpaceX and Jeff Bezos’ Blue Origin to start offering tourist trips into space and possibly even the moon before the decade is out. What a time to be alive for an old space nerd. Embraced blockchain and cryptocurrencies I’ve attended and/or have spoken at a fair number of ‘Blockchain in [insert industry name here]’ events over the past few years. I think it’s safe to say I’ve never seen so many desperately bored faces in all my life. These stores use a combination of AI Unlike a traditional computer, where Yes, blockchain technologies will have technologies, such as computer vision adding a ‘bit’ gives you a linear increase a huge impact on our society, but no, and deep learning. The technology is still in processing capacity, adding a qubit to a that doesn’t make understanding how immature and very expensive to deploy, quantum computer gives you an exponen- blockchain works any more interesting, but this will change. tial increase in processing capacity. or important for the lay person. By the end of the decade this technology This means that quantum computers What will be a lot more interesting is will be sufficiently inexpensive and robust can perform some really difficult tasks how blockchain technologies are applied to allow it to be deployed almost anywhere, (like decoding strong encryption) really, into products and services that become meaning cashier-free stores will become really quickly. part of our everyday lives. commonplace. Just as we’ve become This is important as the number of One or more cryptocurrencies will enter accustomed to simply waving our Uber transistors that we can cram into each the mainstream and will be used by more driver goodbye at the end of each trip, we’ll square millimetre of a microprocessor has and more of us, particularly for online soon get used to grabbing what we want remained static since around 2013. Until transactions. Blockchain features, such at the supermarket and simply walking then manufacturers such as Intel managed as smart contracts, will be found in more out the door. to double the number of transistors per and more applications, particularly those square millimetre every two years or so related to handling large and complex A quantum of quantum (referred to as ‘Moore’s Law’), meaning we financial transactions. computing had faster and faster processors to meet Just as the 00s and 10s were the ‘sleeper’ our insatiable desire for more and more Said goodbye to cash registers decades for some of the most promising capable devices. Does anyone else resent lining up at the technologies that will transform the 20s, Quantum computing promises to deliver till, or is it just me? ‘Look, I’ve decided I the 20s will be the sleeper decade for computational performance far in excess of want to buy something from you and I’m quantum computing. what is possible with current technologies. ready to give you my money ... why are you Without getting too technical, quan- It’s an exceedingly difficult technology to making me wait to give it to you?’ tum computers take advantage of the perfect, however, as it utilises the spin Companies such as Amazon already offer mind-bending physics of quantum states of electrons or the polarisation of cashier-free stores where customers can mechanics to solve problems that would photons to store and process data. You simply grab what they want and walk out. be very difficult, if not impossible, for the don’t need to have a PhD in physics to The customer is automatically charged as traditional microprocessor-based devices realise that manipulating electrons and they leave. we use today. photons is really, really hard.

62 LAWTALK 936 · February 2020 TECHNOLOGY

TECHNOLOGY During 2019 companies such as IBM released the first commercial quantum computers. These are not devices that you can buy, but you can Legal tech rent time on them over the internet. Quantum computing will remain relatively exotic during the 20s, but roundup will come of age in the 30s. During that time we will have to come to terms with new machines that can decrypt data (in seconds or minutes) that would take today’s In-house lawyers supercomputers thousands of years to decrypt. What will we do when grappling with AI encryption can no longer be relied upon to protect data and transac- impact, says Lex Mundi tions from prying eyes?

How will we change? A report from international law firm network Sometimes the pace of technological Lex Mundi says General Counsel are grappling with change can be a bit much to take in. how AI technologies are reshaping their companies How can we possibly process it all, and the business environment, creating unchartered let alone adapt to it? areas of corporate liability exposure and new regulatory The important thing to remember challenges. is that, although our society will be The report, Big Data and Big Brother: How General forever changed by these and other Counsel cope with Artificial Intelligence in an era of eco- technological advancements, we’re nomic nationalism, brings together three practical areas already well-rehearsed at under- where vigilance is needed from General Counsel, as standing and adapting to such even traditional industries become digital players and changes. Look at what a massive business models evolve: change smartphones have had in almost every country around the Governance world. This change was rapid and The composition of boards may need to be adjusted hugely significant, but we’re adapt- to ensure the right mix of expertise, to avoid conflicts ing just fine. of interest, and to comply with the regulation of data. Although it’s clear that society Companies will need to consider having an ethical and will change, no one knows quite governance framework for AI that is cascaded across what this will mean and I for one the business. Never has the “tone from the top” been can’t wait to find out. If I was driv- so important. ing for a living then I think now would be a good time to think about Compliance re-training, but otherwise I’m happy Companies may stray into new industries and become sub- to watch in awe and amusement. ject to unexpected regulation. AI may be used by authorities What I hope will happen is that to surveil companies, industries and markets, creating we start spending more time trying unprecedented liability. Authorities may expect compa- to solve some of our most pressing nies to leverage AI capabilities for compliance monitoring, technological challenges, such as including third parties, which would render compliance saving the planet, particularly as programmes built for the “analog-era” inadequate. ‘technology’ is responsible for so much of the waste and pollution The legal function that we’re grappling with. ▪ Members of the in-house team will need to be trained on what to look for and get involved in product devel- Damian Funnell  damian.funnell@ opment, in order to anticipate new regulatory exposure. choicetechnology.co.nz is founder The legal department may require specialists in data of an IT services company and science. The legal team will lead, or at least be involved  panaceahq.com, a cloud soft- in, the development of the company’s legal and ethical ware company. framework for AI, including training the business. ▪

63 TECHNOLOGY

Draft algorithm charter under consideration

Submissions closed on 31 December 2019 on a draft algorithm charter which would commit government agencies to use algorithms in a fair, ethical and transparent way. Initiated by Statistics NZ, the one- page draft follows a 2018 review by the Government Chief Data Steward of how agencies use algorithms. This found there was room to promote good practice across the data system. The draft charter draws on the Principles for the Safe and Effective Use of Data and Analytics co-designed with the Privacy Commissioner. It sets out specific actions for agencies to ensure they have the right tools and safeguards in place to increase transparency and ethical practice. ▪

Heard of WeChat? Legal tech investments well over It’s really big … US$1 billion in 2019

Legal technology deals and invest- In December, China’s Supreme Government is rolling out WeChat- ments stayed on a fast track in 2019 People’s Court released a policy based electronic social security as the sector became increasingly paper which stated that it is com- cards in 26 cities. As long as you relevant to how Big Law firms and mitted to developing digitisation have a Chinese bank account, you corporate legal divisions operate, to streamline case handling in can link to WeChat. Every WeChat Bloomberg Law has reported in an its court system. This includes a user has a unique barcode, or QR end-of-year review. “mobile court” which was launched code. It is one of the main ways Reporter Sam Skolnik says legal in March 2019 on social media plat- people communicate in China. tech investments “flew past” the form WeChat and which has already Alongside the mobile court details, US$1 billion mark by the end of the handled over three million cases or judicial authorities demonstrated third quarter of 2019, after hitting other judicial procedures. Now, in 12 China’s first “cyber court”. This was that mark for the first time in 2018. regions, the mobile court lets users established in Hangzhou to deal He says by the end of Q3 2019, legal complete case filings, hearings, and with legal disputes with a digital tech investments were US$1.23 billion. evidence exchange without needing aspect. The demonstration featured “Several significant mergers and to appear physically in court. an online interface in which litigants acquisitions also were announced WeChat, owned by Chinese appear by video chat. An AI judge – in 2019, another sign of legal tech’s company Tencent, has over a bil- shown by an avatar on screen – asks maturation as a market sector. lion monthly users. It started as a them to present their cases. The cases Perhaps chief among them: EY’s messaging service in 2011 but has handled at the court include online purchase of legal managed ser- now become an app which can trade disputes, intellectual property vices company Pangea3 for an manage most aspects of daily life, cases, and e-commerce product undisclosed amount. It’s a deal from payments to booking taxis or liability claims. Since establishing believed by some to be one of the doctor’s appointments and applying the Hangzhou court, China has set most expensive legal tech buys of for jobs. On 5 January 2020 the South up cyber courts in Guangzhou and all time,” says the report. ▪ China Morning Post revealed that the Beijing. ▪

64 LAWTALK 936 · February 2020 TECHNOLOGY

“Legal arms race” threatens cross-border internet

digital innovation and the transna- Major new research on inter- tional nature of the internet makes it net jurisdiction trends has found increasingly challenging to address that 79% of surveyed stakeholders online abuses with traditional consider there is insufficient international legal tools. Moreover, as national co-ordination and coher- transnational interactions become ence to address cross-border legal the new normal, people and entities challenges on the internet. are often unable to determine their Powers to order The Internet & Jurisdiction Global ‘contextual legal environment’, ie, decryption may need Status Report was released on 27 all the states’ laws and other norms more safeguards November at the United Nations that apply to their activity online at Internet Governance Forum in a given moment. A University of Waikato research Berlin. It combines detailed desk “Due to extraterritorial assertions report, A matter of security, privacy research with a global data collec- of jurisdiction, in some regions, and trust: A study of the principles and tion from over 150 key stakeholders – individuals, organisations and even values of encryption in New Zealand, states, internet companies, technical states are concerned that they are says the power of government to operators, civil society, academic subjected to online rules developed order users and companies to and international organisations. without them in a country far away.” decrypt encrypted data and devices The report says there is a “danger- needs stronger privacy protection ous spiral of uncoordinated policy A high cost of inaction and additional safeguards. making”. Stakeholders of the Internet & The report says the problem “At a time when the world has Jurisdiction Policy Network stressed with current legislative powers is never been so interconnected, that not addressing jurisdictional that there are no express standards reactive and quick-fix, unilateral challenges would come at a high and guidelines on how they are regulatory initiatives proliferate to cost: the question now is not carried out. This is especially in tackle new digital challenges. This whether to regulate but how, and relation to human rights, and there legal arms race is threatening the by whom. is a potential for misinterpretation, future of the cross-border internet, “As pointed out by one surveyed misapplication and possible misuse unless actors actively coordinate.” expert, the internet is neither the of the powers. Focus group inter- New Zealand’s Domain Name problem, nor the cause of the views by the researchers indicated Commissioner Brent Carey and problem. Indeed, the internet New Zealanders place the greatest InternetNZ Chief Executive Jordan risks becoming the victim of our importance on privacy, data protec- Carter were participants in the lack of appropriate governance tion and information security when research. mechanisms. using encryption. The research also found that 95% “The task that lies before us all The researchers recommend that of participants see cross-border legal demands governance innovation: the right or privilege against self-in- challenges on the internet becoming it involves developing the stand- crimination should be more strongly increasingly acute over the next ards for legal interoperability and recognised in computer searches, three years. policy coordination, so that we are and that anyone suspected or Only 15% believe New Zealand equipped with methods and tools charged with a crime should not be has the right institutions to address that are as transnational, distrib- forced to disclose their passwords. those challenges. uted, scalable and resilient as the The principal researchers were Dr “Much of what has been done to internet itself. What is at stake is Michael Dizon, Associate Professor date sought to solve global problems nothing less than the future of the Wayne Rumbles and Professor Ryan through a national lens,” the report digital society that we collectively Ko. The study was funded by both says. want – for us and for future gener- the University of Waikato and the “However, the constant flux of ations.” ▪ New Zealand Law Foundation. ▪

65 ALTERNATE DISPUTE RESOLUTION February 2020 · LAWTALK 936

ALTERNATE DISPUTE RESOLUTION Principles of influence: personal authority

BY PAUL SILLS

course, occur for lawyers. As profes- such as Yelp, LinkedIn and Tesla. As part of their repertoire, sionals, lawyers and mediators must When we hear statements such as mediation professionals use tools make sure that we share our exper- “Tesla was co-founded by former to guide parties toward settlement tise and put ourselves “out there” PayPal founder Elon Musk”, we more efficiently than if the parties sufficiently in order to establish a subconsciously attribute a certain were left to their own devices. The position of influence. level of respect for Elon Musk based added dynamic of having a third Dr Robert Cialdini, Professor on the references to his positions person in the room changes the Paul Sills Emeritus of Psychology and Market- in business and history. As a result, nature of the conversation that the ing at Arizona State University and Elon Musk can establish authority parties have regarding the issue in author of Influence: The Psychology and therefore influence as a result dispute. In these articles we have of Persuasion (1984), established of his prior successes and titles and spent a lot of time looking at the authority as one of the key prin- can use this to create more oppor- skills that an experienced medi- ciples of influence and developed tunities for himself. ator can develop to assist in this three symbols which he says trigger Attaining titles such as “founder”, conversation. But what about the the authority principle: titles, cloth- “CEO”, etc is easier said than done. mediator and the parties’ adviser’s ing and trappings. It is often an arduous and slow personal authority? How does this process, sometimes aided by impact upon the conflict resolution Titles opportunities obtained by pure process and what tools help them When involved in an area that we luck. Many people do not attain establish their authority? are unskilled in, we turn to those such titles. However, being a figure The parties come to rely on the who we see as credible for guidance. of authority begins with our own mediator for his or her expertise The parties turning to the mediator sense of self achievement. If we are to guide them during a mediation. for guidance on how to resolve their not successful in our own eyes, we The same can be said for their legal conflict is an example of this. Titles will not be in the eyes of others. We advisers. It is important therefore are a factor in assessing credibility. must have faith in our own abilities that the mediator can establish their For example, “founder”, “CEO” and and recognise every achievement, personal authority and expertise in “mediator” are titles that denote no matter how small, in order to order to maximise the potential to professionals in their fields and keep growing and pushing beyond assist the parties. However, many are thus deemed more influential our limits to success. Self-belief mediators do not take up this by those around them. and persistence will result in goals opportunity because they assume When in a new environment being met, titles being attained and their expertise will be recognised or entering a new area of profes- reaching positions of authority. automatically: because of their sionalism, authority may be estab- reputation or because they have lished through titles associated Clothing worked with some of the advisers with already successful entities Clothes are superficial cues that associated with the parties before. or groups such as companies or signal authority. How we present However, if the mediator does successful barristers’ chambers or ourselves determines the first not establish expertise and author- law firms. For example, the “PayPal impressions formed by those ity with each new engagement it Mafia” refers to the group of PayPal around us. Accordingly, what we is a lost opportunity and their employees and founders who left wear often affects how people treat experience can be overlooked. As the business following its sale to and respond to us. a consequence their authority can eBay in 2002. Some of these employ- Dr Cialdini discusses an experi- be compromised. The same can, of ees went on to found companies ment that was conducted in 1955,

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symbol of authority, but there are other, and more subtle, ways to make use of trappings. In business, the law and conflict resolution, social media, a website and your reputation conveyed through word of mouth are all examples of trappings. The key is to establish and maintain a relevant, attractive and informative brand via these channels that all convey your personal authority and expertise. Whether this be through a website or through your chosen social media (typically LinkedIn for professionals), expanding beyond the confines of your office, city or even country is key to establishing influence through authority. This is about putting yourself out there and not limiting yourself to what is in front of you. Fishing is a useful analogy to explore the effects of trappings. Using different accessories to create our personal brands is essentially ‘casting a net’ and then all the opportunities that we catch as a result can be pulled in. This is where a man would cross the street against a traffic light particularly relevant in mediation (Lefkowitz, M, Blake, RR, & Mouton, JS, (1955), “Status and in business. In order to establish factors in pedestrian violation of traffic signals”,The yourself and grow your brand, it is Journal of Abnormal and Social Psychology, 51(3), 704–706). advisable to use all the trappings On half the occasions, the man was wearing a busi- available in order to expand your ness suit and tie, and on the other occasions he was authority and influence. wearing work shirt and trousers. The study measured While titles, clothing and trap- the number of times other pedestrians that were also pings can be useful tools, it is also waiting at the crossing would follow the man across First important to be aware of potential the road, ignoring the instructions of the traffic light. impressions pitfalls – just because someone Interestingly, three and a half times as many people based on appears to be a figure of authority jay-walked into traffic behind the man when he was these areas does not necessarily mean that they dressed in the suit compared to when he was dressed of non-verbal have the expertise and experience in shirt and trousers. communication that titles, clothing and trapping This experiment demonstrates the significant impact contribute symbolise. We must slow down that our clothing has on our ability to influence others. heavily to our perception process in order to Here, the pedestrians at the crossing knew nothing of how we are form our opinions on a person in the man’s expertise. Instead, their varying levels of trust perceived. It a more controlled and methodical in him derived from what he was wearing. is therefore way. Just being aware of the effects Although it may seem superficial, we cannot escape important to of the symbols, as discussed in this or avoid the effects of our attire. First impressions based consciously article, is helpful. The next article on these areas of non-verbal communication contribute communicate in this series will focus on scarcity heavily to how we are perceived. It is therefore important who we want and consistency as principles of to consciously communicate who we want to be and to be and what influence. ▪ what we want to achieve, not only through our actions we want to but also by our presentation. achieve, not Paul Sills  paul.sills@paulsills. only through co.nz is an Auckland barrister and Trappings our actions mediator, specialising in commer- Trappings are accessories that can be used to establish but also by our cial and civil litigation. He is an authority and influence. A police badge is an obvious presentation AMINZ Mediation Panel member.

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PRACTICE Focus on … South Auckland

BY CRAIG STEPHEN

Some of the issues around practising law in South Auckland are ‘pretty challenging’ but lawyers are also being kept busy with the amount of development and expansion going on

to be in a place where everyone gets Manukau and the wider South that and works together.” Auckland area provides plentiful work for criminal barristers. The Legal aid work District Court is the busiest in the Denham Bramwell continues to country, but the continual expan- do legal aid. Amy’s colleague Anna sion due to Auckland’s extraordi- Fuiava, an associate in civil litiga- “It just feels like it is real and nary growth means plenty of work tion, says their legal aid work is not you’re seeing people on a day-to-day for lawyers in other fields. restricted to crime and family law. basis that you’re trying to make a One Manukau-based firm, “Our civil team does do legal aid difference for.” Denham Bramwell, does the whole and I think there are even fewer civil gamut of suburban legal work: legal aid providers than there are A great place to learn family, property, conveyancing and family law legal providers, so that Panama Le’au’anae of Friendship commercial work as well as civil is quite a big part of what Denham Chambers has been a barrister for litigation and employment matters. Bramwell does in Manukau.” 20 years and a lawyer for 35 years, Amy McCormick, a solicitor on Ms Fuiava, who was born and most of that in Manukau apart from the firm’s family team, says, like raised in Auckland, has worked a spell in Otahuhu. many suburban and provincial in Manukau for both Denham Mr Le’au’anae says the area areas, there’s a diverse range of work Bramwell and another barrister provides some interesting and to attend to. for “pretty much most of my legal challenging work. “Having a broad firm means career”. She says there’s good “You get a range of work, very that our clients can come along to reasons for plumping for local challenging work, but it’s very resolve a few of their matters at the lawyers. rewarding because you’re dealing same time. And it’s a diverse, large “In terms of what we do in civil with some of the most difficult area. It’s farming areas going all the litigation there’s a lot of work out cases out here. It is a great learn- way through to the city so there’s a here, there’s a lot of businesses here ing place. You learn very quickly range of clients with a broad range who don’t necessarily want to travel because of the diversity and the of matters. into the city to see a lawyer,” she nature of the work you are dealing “It does seem like a whole differ- says. with. ent place to Auckland; there’s some- “There’s a huge population that, “There’s a lot of legal aid work and thing about the South Auckland particularly for legal aid matters, the majority of what I do has a legal legal community that’s nice. We would just have no means of seeing aid element, I’d probably say 90%, have a really collegial bar: it’s a nice, a lawyer in the city. There are several and that’s down to the socio-eco- collegial place to work. community law centres in South nomic make-up of the area.” “The issues that some of our Auckland which we liaise with if This is not surprising given that clients face are pretty challeng- their clients need to go to court the District Court is busier than any ing, there’s a huge diversity, huge often and then they’ll be referred other around the country. Ministry socio-economic issues so it’s good to us to take the matter further. of Justice figures show that in the

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▴ Amy McCormick

year to 30 June 2019, Manukau ▴ The Auckland Botanic Gardens District Court had 4,805 active in Manurewa cover 64 hectares. criminal cases, about 700 more than Auckland’s District Court. It is also the busiest Youth Court in the land and the second busiest Family here. Instead, there’s a lot of small Court, behind Christchurch. operators. You’ve also got firms ▴ Anna Fuiava “Those who work out here appre- out in Papakura, and around there ciate just how challenging the work which are well established and they is and the complexities of it,” says have old clients, and a lot of those Community foothold Mr Le’au’anae. are from the farming communities.” Panama Le’au’anae says his Pacific Amy McCormick says many of background and being based in the Wide social range Denham Bramwell’s legal aid clients area for many years makes it easier Importantly, Mr Le’au’anae notes, live below the poverty line. to understand the complexities of the Manukau courts and the prac- “There are a lot of issues with some people’s issues. titioners based there cover a wide gangs and drugs, there’s a lot of “I find it extremely enjoyable range of society. children in need of care and protec- working in Manukau; I suppose “It has a very large catchment tion, and there’s a lot of involvement that’s because I am Pasifika, I deal area; you have East Auckland with Oranga Tamariki. You have to with a lot of Pacific Island people, which is a lot more affluent, then be aware that it’s a really daunting from Samoa, Tonga, Cook Islands, you have the much more econom- process and there’s an awful lot and Māori, so I feel comfortable ically-deprived areas such as Otara going on for clients when you’re working with those communities. and Mangere.” acting for them.” I was born and raised here so He says some areas don’t have any Anna Fuiava told LawTalk a I understand the New Zealand lawyers, and Mangere, for example, tale of how one family living in psyche. has a community law centre to deal an over-crowded rental property “We have a lot of barristers sole with much of the legal needs of that was completely unaware about who mainly deal with Family Court suburb. even the basics of tenancy agree- and criminal work but there are a “A lot of law firms don’t deal ments. She says that family may be lot of Auckland lawyers who come in legal aid – they don’t see it as a lucky one in finding legal support down and pick up serious criminal being financially worthwhile so but many others might not be so briefs. But they work and operate you don’t get the law firms out fortunate. in town, which makes it difficult

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▴ Panama Le’au’anae

▴ Paul Maskell Property boom “We just could not see how our for our clients because they don’t Paul Maskell is the managing firm structure could make the rates have the financial means just to get partner of Inder Lynch, which has that we were being paid back then into town. A lot of High Court cases been in Papakura since 1946, and economically viable but we have in Auckland are South Auckland has offices in Papakura, Pukekohe four lawyers who are primarily doing related.” and Manukau. He joined the firm family law, and that is mainly paying And he feels that the busy work- in 1979 at its then Manurewa office. client family law,” says Mr Maskell. load of the court should warrant con- Mr Maskell, who works predomi- sideration for expanding the court so nantly in family law, including elder Regional rather that many of the more serious cases law, says property is the biggest than suburban can be dealt with in Manukau. money-earner for the firm. A story that has been told to LawTalk “There has certainly been a desire “About 40% of the firm’s work is many times in our visits to regional to get a High Court in Manukau in property. Chris Lynch, one of the and suburban settlements is that the given the large number of serious partners at Papakura, is the leader client base is loyal and often gener- cases here, but I guess it comes of our property law team and he’s ational, leading to a need for more down to cost as with many things. doing a lot of sub-divisional work general practice work rather than I would have thought there would because there is so much going on specialising in certain areas. “We see be enough work to justify having a in Papakura, Drury, Karaka and out ourselves more as a regional firm High Court here. to Pukekohe now. And we’ve got a than a suburban firm, as much as “The Family Court is bursting at number of young lawyers dealing you would get in Rotorua, Hamilton, the seams. We don’t have enough with residential conveyancing that Tauranga.” judges out here so it’s always one flows from that.” Mr Maskell says while Inder of the challenges we have: far Inder Lynch is one firm that has Lynch has a strong base in Papakura too much work and not enough cut back on legal aid work, due to and ‘south South Auckland’, it is a resources.” necessity. different situation a little further

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New Zealand Law Society Auckland branch data shows there are about 650 lawyers in an area stretching from Penrose down to Waiuku/Pukekohe.

The Manukau centre was planned in the 1960s, and it was designed as a major administrative and commercial centre that would service southern Auckland, at a time when the area was predominantly rural.

Several government functions and service agencies were shifted into purpose-built office buildings well before the wider area developed. The Manukau Mall followed in 1976 and the Rainbow’s End theme park opened in 1982.

The Auckland Plan expects significant growth in Manukau over the next 30 years both in terms of population and jobs.

The Ministry of Health’s website notes that the population projection of the Counties Manukau District Health Board (which covers the diverse areas of Manukau, Franklin and Papakura) for 2018/19 numbers 563,210. Of these, 21.1% are Pacific – compared to a national average of 6.5% – Māori contribute 15.7% – the exact same as the national average – and ‘Other’ (which includes Pākehā and all Asian communities) make up 63.2%, whereas the national average is 77.8%.

▴ A view northwards over South Auckland, with The increasing population has resulted in the Onehunga in the centre distance. Representation Commission recommending that a new electorate be created in South Auckland. north. “Manukau is, to an extent, in competition with the Queen Street law firms because if they [clients] live The DHB statistics also note that the population is in Onehunga or Howick they can come south to us but generally younger than the national average – for equally they could go slightly north into the central city.” example 14.5% of the DHB’s population is aged under “People from outside of Auckland often think of nine, and 14.1% are aged 10 to 19. This compares to the Auckland as one big entity but the reality is that there national average of 12.8% for both age demographics. are significant differences and South Auckland is dif- Meanwhile, at the other end of the age scale, only 5.3% ferent from the city and the community is reasonably are in their 70s, lower than the national average of 7.0%. tight,” he says. “These areas have grown considerably recently. For The figures show that: “Counties Manukau has propor- example, Flat Bush will have about 40,000 people from tionally more people in the most deprived section and virtually zero a few years ago, and that will continue fewer in the less deprived sections of the population.” due to the pressures elsewhere.” Amy McCormick says lawyers in court tend to help While Rainbow’s End is the biggest attraction, there is each other and that’s partly down to the type of work also Ōtara market on Saturday mornings plus a number that presents itself in Manukau. of other regular markets, the Auckland Botanic Gardens, “Everyone knows the issues that our clients are facing. Manukau Memorial Gardens, Ambury Park, Ayrlies When you’re dealing with hard cases and often quite Garden & Wetlands, and the Mangere Arts Centre. emotionally challenging cases as well, the last thing you want to be doing is having a fight with the lawyer Sources: Auckland Council, New Zealand Law on the other side. But we get all get on and are there to Society, Counties Manukau District Health Board, help each other.” ▪ and TripAdvisor.

71 PRACTICE February 2020 · LAWTALK 936

PRACTICE Fifty years of forensic medicine in New Zealand

BY JACK DRUMMOND

going to have to change the nature of our My name is Jack Drummond MB ChB (1970). training and our attitudes. Fortunately, What a funny way to start an article on 50 years of I met a wandering professor from the forensic medicine in New Zealand! Victoria Institute of Forensic Medicine Actually, it isn’t really because these are the only quali- (VIFM) who invited me to enrol in a new fications I held during my first 19 years of giving forensic course on forensic medicine run by VIFM evidence. To make matters worse, I had no formal training for Monash University. This changed me in forensic medicine until around 1995, so perhaps, I can Jack forever. I graduated with a Diploma in entitle this journey “The Good, The Bad and The Ugly”. Did Drummond Forensic Medicine in 2005 and a subse- my lack of qualifications become obvious? Probably not, as quent Masters Degree in 2008. most of my peers in the Police Medical Officer (PMO) role To complete my personal story, in 2005 were even less qualified. We were an untrained, un-peer after much lobbying, the New Zealand reviewed and unaudited group of mostly GPs who had Police created a new position as National inherited the job. Coordinator of Forensic Medicine, which My initial entry into forensic work was in Dunedin in I occupied until mid-2019. My role encom- the early 1970s when New Zealand was in the grip of a passed the training, peer review and drink-driving blitz. On some nights, I would see 10 people, quality auditing of New Zealand’s PMOs. and interestingly, two separate charges would be laid: Additionally, I provided general assistance one of Driving with Excess Blood Alcohol and the other to districts and coroners, and the giving of of Driving under the Influence and Being Incapable of expert evidence on selected cases. In my Proper Control. A first offence on the latter charge resulted period of tenure, we have advanced from in a seven-day stay in Dunedin Prison. A second offence 50 PMOs (1 woman) to 75 PMOs (12 women). was rewarded with 21 days’ accommodation in the said Enough about me. Let’s look at the prison, as one of my friends (a member of the clergy and changes that have since occurred. now ex-priest) found out. He reported the experience as not being too bad, as the jailer would come on duty with a ❶ DNA one-quart of gin and a chess board. “Those were the days”. This is surely the greatest advance in the I returned to Palmerston North in late 1973 and continued history of trace evidence; a wonderful dou- in my role as a PMO until 2000. ble-edged sword. There has been amazing This was at a time when such animals were in short progress with national databases and con- supply and my duty roster varied between a 1-in-1 and nection/collaboration with those of other 1-in-3 roster. Duties included dealing with sexual assaults, countries. The advent of STR (single tandem blood alcohols, sick and injured prisoners (many from DNA is repeat) replication has eliminated the need dog bites), certification of life extinct and attendance at surely the for large amounts of sample. Both the use accidents and AOS callouts. General care and welfare of greatest of mitochondrial DNA and sex-linked DNA Police officers and entrance medicals were also included. advance in have recorded great advances. Similarly, An average week comprised five to seven call-outs. the history the value of familial sampling is of great After being asked to review a case (R v Donnelly) for of trace advantage. We are fortunate to have such Les Atkins QC, it became apparent to me that a certain evidence; a a progressive ESR. Conversely, the other amount of non-scientific, anecdotal medical nonsense was wonderful side of the sword incorporates issues of being produced in court (if only we knew how much of double- contamination (the Farah Jama case in it was being expounded). It became obvious that unless edged Melbourne), the planting of evidence, we were going to continue in forensic isolation, we were sword error, and trying to obtain a unanimous

72 LAWTALK 936 · February 2020

understanding/conclusion from judges, counsel and juries. There is also difficulty in expelling the absurd myth of: “If there is no DNA, then the person was not there”. ❷ The emergence of large- scale psychoactive drug use This has resulted in a plethora of violent crimes and a marked increase both in domestic and irrational violence, as well as escalating instances of sudden death from these substances. Similarly, the increased incidence of impaired driving has necessitated the implementation of new measures to deal with the problems. ❸ The implementation of roadside technology for ❼ The proliferation of prescribed blood alcohol and drugs medications that may have The latter is still evolving. interactive and impairing effects Many of the cases referred to me revolve around this issue, ❹ More “friendly” courts particularly as related to driving. An emerging willingness of the courts to allow experts to explain evidence in ❽ Issues pertaining to the new accordance with their own particular style. strangulation offence legislation (section 189A of the Crimes Act 1961) ❺ The emergence of sexual I believe this is a minefield; we have yet to see how it assault examination plays out. as a separate entity This has resulted in the establishment ❾ Wonderful new techniques of a well-trained group of sexual assault For example, the use of human leucocyte antigen alleles trained and audited doctors and nurses. in complex DNA samples. It commenced as DSAC (later to become Whilst we enter into an exciting era of rigid examination MEDSAC – Medical Sexual Assault of new techniques, I believe that currently the defence Clinicians Aotearoa). This is a well-funded is under-resourced and further steps should be taken to organisation which currently serves all level the playing field. It is likely that I will instigate a districts, except the West Coast. consultative forensic service. ▪

❻ The use of audio-visual aids Dr Jack Drummond,  [email protected] MB to obtain expert evidence ChB, M. Forensic Med (Monash), FRNZCGP, FRACGP, FRCPA There has been a marked increase in use (Forensics), has a long experience in forensic medicine of this technology, which has probably led and was National Co-ordinator of Forensic Medicine with to much better researched local evidence. the New Zealand Police until 2019.

73 PRACTISING WELL February 2020 · LAWTALK 936

PRACTISING WELL The imposter syndrome Some thoughts and reflections

BY EMILY MORROW

between my professional success and my In the 1970s, when I was in university doing an self-perception as being successful. inter-disciplinary baccalaureate degree in psychology, sociology and anthropology, I took a psychology course Phenomenon prevalent taught by Dr Pauline Clance. She was a little woman (barely I remembered my course with Dr Clance 5 ft tall) and from the Appalachian region of Kentucky with and read her now famous book, The a strong eastern Kentucky accent. She had grown up in Imposter Phenomenon: Overcoming the a low-income family and, through sheer force of will and Emily Morrow Fear that Haunts Your Success (Peachtree native intelligence, worked her way through university Publications Ltd, 1985). It gave me great to get a PhD in psychology. Despite being small in stature, insight into the psychological mechanism she was forceful in personality. Of all the courses I took behind what had plagued me. I began in university, this is the one I remember best and has had discussing the issue with other lawyers the greatest impact on my life. (both men and women) and was shocked to find out how Dr Clance spoke about research she was doing on what prevalent the phenomenon was. Perhaps because I realised she referred to as the “imposter phenomenon“ based I was not alone and that this condition was rampant in on interviews with many high-achieving women. There the legal profession, I found myself taking a hard, critical was a clear gap between the empirical success of these look at these anxieties. women and their self-perceived notion of who they In working with lawyers and law firms, I have again been were. Although they had a lot of external validation for struck by how common this problem is. I have also seen their success, the women failed to acknowledge their many lawyers who struggled with imposter syndrome accomplishments and take ownership of them. Rather, anxieties move beyond these by learning about the phe- the interviewees attributed their success to luck and to nomenon and gaining greater insight about themselves others perceiving the interviewees to be more competent and how to manage their concerns. Hence this article. than they really were. They felt they were imposters who Based on Dr Clance’s book, imposter syndrome symp- would surely be “outed” over time and lived with chronic toms include: anxiety over this. • feeling like you are a fraud and that others will discover Several years later, despite having obtained a doctorate this if they only get to know you better; in law, I found myself plagued by exactly what Dr Clance • lack of self-confidence in your position; had described. Those same anxieties continued to bother • chronic doubts about your abilities, personally, intel- me during at least the first half of my professional career lectually and otherwise; as a practising lawyer. There was a real lack of correlation • internal monologue of a negative nature that one is not

Jeremy Doogue is available to provide the following Jeremy services: Doogue • Mediation FAMINZ • Arbitration • Reviews of existing proceedings [email protected] • Advice on settlement negotiations DDI 09 972 2062 • Internal governance and disciplinary enquiries. 021 926 359

P.O. Box 917, Shortland St. He can be contacted at FortyEight Shortland Barristers Auckland 1140 chambers Level 34 Vero Building, Shortland St, Auckland

74 LAWTALK 936 · February 2020 PRACTISING WELL

good enough; of people who talk about how someone had was doing her very best work. Secondly, • ruminating on mistakes or assuming a “courageous battle” with cancer and then after doing that, she never looked back or that no one else make similar mistakes. subsequently died. I am a cancer survivor worried about what she had done unless and I never felt I was “battling” with my some new information was brought to her Law perfect for syndrome cancer. Instead, I did better if I danced grace- attention that would have impacted her Although the imposter syndrome is not fully with my cancer as a former companion work. She said she had trained herself to limited to lawyers, the adversarial, hierar- in my life, albeit it an unwelcome and unin- do these two things. chical and stressful nature of law creates vited one. I find the same is true in terms of I started intentionally incorporating a perfect environment for the syndrome the imposter syndrome. these two approaches into my work and to flourish. In fact, if one were to inter- my thinking. The results were helpful and I view all practising lawyers and ask them Antidotes noticed that my anxiety level dropped, my whether they had ever experienced any Focusing on self-confidence, insight and self-confidence increased and my concerns of these symptoms, I suspect that close to general awareness of self as an individual about my abilities diminished. I commend 100% would agree they had at one point and a professional are excellent antidotes her wise words to you as well. or another in their careers. Those who are to the imposter syndrome. This can include So, fellow travellers, be of stout heart and afflicted by this phenomenon are often the work with psychotherapists, professional good faith. Although these worries may highest achievers and performers. coaching, honest and transparent conver- never completely disappear from your In my experience, one is never com- sations with trusted friends and mentors life and psyche, they are manageable and pletely “symptom free”. In fact, to this day, I and the like. In each of these experiences, I are also normal and healthy in a peculiar still find it creeping up on me from time to have learned something about myself and, way. Despite creating anxiety, they also time. This is true despite the fact that I have in most cases, somewhat surprisingly, I can ensure you do your very best work, had considerable success and relatively have liked what I have learned. even under extraordinarily difficult cir- few personal or professional failures. To Some years ago, about midway through cumstances. In fact, you may, from time be honest, I feel I have been lucky and that my law career, while waiting in a doctor’s to time, want to congratulate yourself on my life has been somewhat blessed in that surgery, I began reading a magazine that being one of those high achievers with a way (which is a classic imposter syndrome had an interview with Justice Sandra Day non-negotiable commitment to excellent thing to say, of course). O’Connor, the first female judge on the US work. Well done you. Thank you Dr Pauline In dealing with the imposter syndrome, Supreme Court. In the interview, she was Clance for having been a part of my life. ▪ it helps to acknowledge that these intrusive asked “To what do you attribute your great thoughts are normal and one may never be success in the law?” Her answer was mem- Emily Morrow  www.emilymorrow. entirely free of them. There is, however, a orable. She said two things. Firstly, that com was a lawyer and senior partner in certain relief associated with this realisation. whenever she was working on something, the United States. She now resides in It is part of who we are so it is not necessarily she focused on it 100% and intentionally Auckland and provides tailored consulting something we should fight. It reminds me checked in with herself to ensure she services.

75 SUSTAINABLE PRACTICE

SUSTAINABLE PRACTICE Recycling in the office

BY TRACEY CORMACK

Reduce, reuse and recycle. The new three Rs might appear to be straightforward, but the “recycle” component can be confusing. For example, can a paper lunch bag go into the office paper recycling bin? Which plastics are accepted by which local council? Let’s try and simplify it. Taranaki decline them because the lids can be too In the office – which small for some of the machines to sort and they can bin takes what waste? – contaminate other forms of recycling. reducing the “wish-cycle” Batteries are not accepted because the chemicals You are about to dispose of some- inside them may be hazardous. thing (say a greasy pizza box or a Foam trays such as those that might be under a plastic bag) but because you are sandwich or meat are not accepted as these trays are unsure where it goes, you place it easily contaminated and there is little demand for used in the recycling bin. However, this polystyrene. is one of the biggest issues facing Takeaway coffee cups are not accepted because waste management today. It can paper-recycling stations can’t separate the waxy or create more waste because it might plastic lining in them. contaminate the whole bin, which will then need to be put in "landfill". Recyclable items Stop and check before disposing Clean aluminium foil and aluminium cans are recyclable. of the packaging as it is sometimes Plastic bottles: PET (recycling symbol #1) and HDPE difficult to work out which bin some (recycling symbol #2)) are recyclable. These are com- items take, whether they are recy- monly milk bottles or soft drink bottles. Thermoplastics clable or whether they should be in Because you are are flexible plastics that can be recycled. They are labelled the landfill bin. unsure where from 1-7. Not all councils accept these plastics, however. it goes, you Some reject types 3-7 as they are harder to recycle. For the landfill bin place it in the In New Zealand there are only two onshore processing Plastic bags are declined by most recycling bin... plants for processing of post-consumer soft plastics: local councils because the bags may It can create Future Post in Waiuku and Second Life Plastics in Levin. jam recycling sorting machines. more waste Look for collection points at selected retail stores in Tetra Pak cartons (made from because it might Auckland, Waiheke Island, Hamilton and Wellington. paper, plastic and aluminium) – for contaminate The bins are available at a number of Countdown, The example, juice boxes, rice or almond the whole bin, Warehouse and Huckleberry stores. They can’t recycle milk containers – are generally not which will then compostable bags, cling film, heavy foiled bags or bags accepted as only some paper recy- need to be put contaminated with food or liquid that cannot be easily clers can separate the components. in "landfill". cleaned out. Biscuit wrappers can be recycled as the Metal jar lids are accepted by Stop and check foil backing is painted on and not foil backed, but dog many councils, but others such before disposing biscuit wrappers, for example, have actual foil backing as Christchurch, Wellington and of the packaging and cannot be recycled here.

76 SUSTAINABLE PRACTICE

Consider a bokashi bucket for your containers are less valuable and can office or workplace cafeteria as part contaminate other recyclables in the of the recycling effort. Bokashi are recycling process and in the bins. home composting systems that are Learn local recyclable proce- designed to be used indoors (tech- dures – Recycle NZ (see link at nically fermenting not composting). bottom) has put together local The system comprises a bucket with council recycle guides. a sealable lid and a tap, and a bokashi Learn your plastics – for exam- mix of fermented grains that contain ple, clear hard plastics are more micro-organisms. The tray inside the valuable in the recycling process bucket separates the liquid leachate that soft plastics such as cling film. that drains off with the solid waste. The easiest things to recycle are They are odourless because the food the products made from a single is not decomposing and it doesn’t material, for example water bottles attract pests. They can deal with all (100% PET plastic). types of food waste including cooked If you see the number 7 on a food, meat bones, citrus peels/onion product it will be unclear whether skins, egg shells and dairy. it is recyclable or not. Glass: Clean unbroken glass can Open plan recycling bins could go in the recycling bin be or might be part of your office space. These bins are labelled and How many times can come in different colours to make material be recycled? the process easy and help change Every time plastic is recycled its behaviours. The Packaging Forum collects the quality is downgraded. Each time A visible bin will or should help soft plastics for the local processors this process happens additional with the correct placement of waste and in 2020 they will be looking at virgin material is added to help and also reinforce accountability new collection points around the upgrade its quality. This means as when people are being watched country, as they manage the amount plastic can be recycled seven to they will tend to take more thought of soft plastics collected with the nine times before it is no longer over their decisions and sort their available processing capacity. The recyclable. waste more accurately. Open plan Packaging Forum owns the Soft Glass and metal, including alu- recycling should eliminate the Plastics Recycling Scheme which minium, can be recycled indefinitely need for individual desk bins and is a voluntary product stewardship without losing quality or purity. improve the effectiveness of the scheme which has received accred- Paper can be recycled four to six recycling process. Place the organic itation from the Government under times as every time it is recycled bins near the coffee machine and the Waste Minimisation Act. the fibres shorten. the paper bin near the photocopier Cardboard and paper are recycla- for example. ble but should be clean. Food scraps Tips to improve recycling Educate others – consider recy- should be removed because if food Separate at source – this reduces cling education sessions, posters or begins to rot the paper is not good for contamination. A smashed bottle find out how to educate your team recycling. Paper recycling is crucial will contaminate a recycling bin – see https://methodrecycling.com/nz. ▪ for New Zealand. One tonne of paper with paper in it even though both saves 31,700 litres of water as much materials are recyclable. More information can be found at more is needed when using fresh Rinse recyclables – Dirty www.recycle.co.nz/ wood. There are 40,000 pieces of A4 paper in one tonne. Energy is saved as the need for grinding wood into • Corporate and pulp is decreased and fewer trees are international tax felled. www.recycle.co.nz/symbols.php • Tax transactional Organic waste: Most food waste and advisory can be composted including, for • AML/CFT advice example, vegetable and fruit scraps, • AML/CFT audit cooked meat scraps and coffee • Structuring www.russassociateslaw.com grounds and filters. Raw bones, • Contentious tax raw fish, meat and oils cannot be +64 9 972 0184 matters composted and should be placed in landfill bins.

77 LAWYERS COMPLAINTS SERVICE February 2020 · LAWTALK 936

LAWYERS COMPLAINTS SERVICE Complaints decision summaries

previous disciplinary findings against Mr Mason ceased legal practice in him. He was also practising in a region mid-2018 after his application to the New Anthony George which was under-resourced with lawyers Zealand Law Society for renewal of his and fulfilled a role as a diligent practitioner practising certificate was declined. ▪ Whitcombe fined for the community, particularly practising in branches of law which many lawyers and censured avoid. No dishonesty or personal gain was involved, and Mr Whitcombe took Supervision Greymouth lawyer Anthony George responsibility at an early date. Whitcombe has been fined a total of The Tribunal said it was not necessary to and mentoring $10,000 and censured after admitting two suspend Mr Whitcombe. It imposed a fine charges before the New Zealand Lawyers of $8,000 on the first charge and $2,000 ordered for and Conveyancers Disciplinary Tribunal. on the second, as well as a censure. He is The charges arose after Mr Whitcombe also required to pay total costs of $17,551. ▪ barrister agreed to act for both the seller and pur- chaser of a property who were well known to The New Zealand Lawyers and Convey- each other and to Mr Whitcombe. He failed ancers Disciplinary Tribunal has ordered to obtain informed consent or a waiver from Former lawyer that Christchurch barrister Phillip Nigel either client, gave neither client advice of the Allan undergoes a period of six months’ need or desirability of taking independent suspended for supervision and mentoring. legal advice, and did not obtain or seek an The supervision and mentoring is to independent valuation of the property. The 15 months be provided by Andrew McKenzie, a agreement which Mr Whitcombe prepared Christchurch barrister. Mr Allan is also had a number of serious defects and the The New Zealand Lawyers and Convey- required to engage another lawyer to com- sale did not proceed as planned. ancers Tribunal suspended Nigel Mason, a plete a legal aid assignment. Problems with The Tribunal found that Mr Whitcombe’s former lawyer, from practice for 15 months the assignment resulted in the Tribunal actions were neither a wilful nor reckless commencing on 8 March 2019. finding Mr Allan was guilty of unsatisfac- disregard of the Rules of Conduct and Details of the suspension are now tory conduct. Client Care. Instead, he had blurred the available following the lapse of name The Tribunal decided that a censure boundaries between his personal and suppression. was not an appropriate penalty. It has also professional relationship and had been too Mr Mason pleaded guilty to two charges ordered that he pay total costs of $20,992. ▪ willing to help implement the agreement of misconduct brought by a lawyers stand- without considering the implications of ards committee. The first charge arose from the conflict it provided. a conflict of interest when he acted for a “We considered that this particular con- client who sold her residential property to Failed to treat duct, occurring as it did in a small town with Mr Mason’s wife. The second charge related few legal representatives available to the to his failure to pay costs and fines ordered lawyers with parties, was a one-off for this practitioner by other standards committees following and not an example of his usual practice, six prior findings of unsatisfactory conduct. respect rather than a wilful or reckless ignoring of As well as the 15-month suspension, his obligations,” the Tribunal said. the Tribunal ordered Mr Mason to pay All names used in this article are fictitious. The level of negligence with the sale $15,879 towards the costs of the Tribunal transaction was at a high level and must and the standards committee. A High A lawyer has been found to have failed be viewed as relatively serious, it said. Court decision has since found that the to treat other lawyers with respect and However, the Tribunal said Mr Whitcombe cost award was made in error as it failed courtesy in two separate standards com- was entitled to considerable credit for a to have regard to his financial situation and mittee decisions. career of some 30 years without any was effectively and substantially punitive. In each of those decisions the lawyer,

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Bristol, was fined $2,000 and ordered to had behaved in an aggressive and unpro- Ltd, Wellington, 2016) which states that pay $1,000 costs to the New Zealand Law fessional manner towards her and other all lawyers, regardless of age and experi- Society. lawyers. Armagh was particularly con- ence, owe a duty of professionalism and The first complaint was by Oxfordshire, cerned about the way Bristol had behaved a junior lawyer should not be disparaged a fellow practitioner in family law, who towards a junior lawyer. Bristol sent two or ridiculed for mistakes or intimidated had received a series of emails from Bristol emails to the practitioner threatening by more senior practitioners. which the committee considered were to make a complaint to the Law Society. In another incident Bristol made an unnecessarily aggressive, abusive and The committee was concerned about the offensive comment about Armagh’s client, insulting. The committee was particularly overly aggressive tone and intentionally within earshot of the client, when she shocked by an emotionally charged email intimidating content of the emails. It learned that a settlement proposal had not from Bristol in response to a firm but polite considered that Bristol had failed to been accepted. The committee found this request from Oxfordshire. In the email, exhibit any respect or courtesy towards completely unacceptable. It considered it Bristol described Oxfordshire as “like a her. Around the same time, Bristol wrote to be particularly concerning that Bristol girl in high school”. an email to another lawyer describing the spoke in this manner in front of members The committee found the email to be younger practitioner as a “little upstart” of the public. a breach of rule 10.1 of the Lawyers and and suggesting that she “got her degree The committee noted that, pursuant to Conveyancers Act (Conduct and Client in a weetbix packet”. s 9A of the Family Court Act 1980, lawyers Care) Rules 2008, which amounted to The committee was concerned that acting for parties in any proceeding in unsatisfactory conduct under s 12(c) of Bristol, in defending her derogatory the Family Court must, as far as possible, the Lawyers and Conveyancers Act 2006. comments about the junior lawyer, promote conciliation. Disputes between It noted that a finding under s 12(c) did characterised it as just “letting off steam” counsel could risk jeopardising such con- not require that the lawyer in question and appeared to believe that this was ciliation and for that reason they cannot provide regulated services at the time of an acceptable response to a stressful be tolerated, the committee said. the conduct concerned. It was satisfied situation. Although the lawyer had breached rules rule 10.1 applies to all interactions between 10 and 10.1 on a number of occasions lawyers regardless of whether they occur Duty of professionalism the committee made a single finding of in a strictly professional setting. The committee said that there can be no unsatisfactory conduct in respect of each The second decision came after another justification for such conduct. It considered complaint. The committee was of the view lawyer, Armagh, sent the Lawyers that the behaviour was particularly egre- that Bristol’s conduct was relatively seri- Complaints Service (LCS) a letter in sup- gious in view of the fact that the comments ous and would ordinarily have merited a port of Oxfordshire’s complaint. The LCS were about a junior lawyer. The committee more substantial fine. It reduced the fine treated Armagh’s letter as a further formal referred to a passage in Webb, Dalziel and in recognition of Bristol’s efforts to address complaint about Bristol. Cook, Ethics, Professional Responsibility and the original bullying behaviour and to take Armagh cited instances where Bristol the Lawyer (3rd edition, LexisNexis NZ steps to avoid future occurrences. ▪

CPD DECLARATIONS ARE DUE SOON

A reminder that the CPD year ends on 31 March 2020. and your CPD declaration is due no later than 5 working days after this date. Now is a good time to check your CPD requirements and ensure that your CPD learning plan and record (CPDPR) is up to date. If you would like any tips or reminders on the CPD process, there is a range of resources at www.lawsociety.org.nz/cpd. You can complete your online CPD declaration at any time once you have met your requirements.

If you have any questions about your CPD requirements, how to make your declaration, or wish to apply for a deferment of your CPD requirement, please contact [email protected]

79 LEGAL HISTORY February 2020 · LAWTALK 936

LEGAL HISTORY More 20th century judges

BY SIR IAN BARKER QC

Following on from his personal reflections on members of the judiciary in his early days in the law (“The (then) Supreme Court judges”, LawTalk 935, December 2019, pages 69-75), Sir Ian recalls some of the judicial officers from his later days in practice and on the bench.

Sir Alec Haslam was a Wellington judge who rarely, if ever, ventured to Auckland. My experiences with him were confined to New Plymouth, from which city I had been favoured with a few instructions. Taranaki lawyers were great to work with. He liked to take the spring sitting in New Plymouth because he was thus able to visit the spectacular rhododendron display which occurs annually about that time. I had briefs for one such spring session and was somewhat apprehensive about appearing before Haslam J, since I heard he was a stickler for appearances and had been known for telling counsel he could not “hear” them if they were wearing brown shoes or sporting an unsuitably loud suit. But what the local lawyers told me was correct. He was sweetness and light in New Plymouth in the spring. In ▴ Sir Ian Barker QC in 1993 the two cases where I was due to appear, opposing counsel and I were invited to the judge’s chambers where polite and friendly The leaky centre for justice suggestions were made about settlement New Plymouth was also the venue for a 1960s appearance – without, of course, any indication of a before Sir George McGregor on a two-day fixture about firm judicial view. These suggestions usu- a boat-building contract. (Civil cases didn’t take so long ally bore fruit. He was said by my friends in the days before pre-trial conferences, written briefs, at the bar in Wellington to be sometimes filed opening submissions and the like). This was in the difficult to appear before and to have been old, old courthouse which had served for decades as the disappointed not to have been appointed leaky centre for justice in the province until the advent of to the Court of Appeal. the Ministry of Works mark 1 model, replicated at several

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▴ Alec Haslam (L) with W.J Kemp and Appeal who found against me in Jeffs v New Zealand Dairy J.D McGrath, 1975 Production and Marketing Board [1966] NZLR 73 (CA) in 1965. The practice in the Privy Council in those days was for provincial centres. All of these Palais de counsel for the appellant (in this case, me) to have to read Justice have now undergone additions, out word-for-word all the judgments in the courts below; alterations, refurbishment, some more including McGregor J’s. It was said that their Lordships than once. I lost the case and, looking didn’t know what the appeal was about until this reading back, I must resort to the standard advo- occurred! Naturally, I read the dissenting judgment of North cate’s excuse – “my main witness did not P (which was in my favour) with great fervour. Fortunately come up to brief ”. Sir George had been for my clients, Lord Wilberforce, who was probably the my grandfather’s lawyer in Palmerston brightest judge I ever appeared before, cottoned on to the North until Grandfather Humphrys died. principal issue fairly quickly. His questioning of counsel, His more demanding role had been that whilst always polite and friendly, showed an exceptional of Manawatu Crown Solicitor. intellect and an unsurpassed grasp of the issues. Sir George was pleasant to appear McGregor J’s late daughter, Margaret Vennell, was a before and a sound lawyer. He could be well-regarded academic at the Auckland Law School fairly direct but never unreasonable. His who pioneered in New Zealand the study of air and bushy eyebrows would twitch a bit if he space law. disagreed with a submission. He had the I never appeared before Sir Ian MacArthur who awful task of imposing the death sentence was appointed as a Christchurch judge to the very old in Greymouth in 1953 – shortly after he Christchurch Supreme Court building – long since demol- had been appointed – on the man who ished. No trendy names like Justice Precinct in those days! had shot the booking clerk at the Reefton My appearances as counsel in the South Island were con- station and then ran out onto the path of fined to Christchurch and Invercargill, although I managed an oncoming train which stopped before over the course of 21 years on the bench to have sat in it hit him. New Zealand went through an every place where the High Court had sittings. unpleasant phase in the 1950s when the My Christchurch appearances as counsel were before Sidney Holland government reintroduced Justice Nigel Wilson who was the only judge sitting in capital punishment, which was abolished Christchurch regularly at the time because MacArthur for murder with the Crimes Act 1961, J was busy revising the companies’ legislation in a little thanks to the efforts of one of our greatest house in the grounds of the old courthouse. More about law reformers, Ralph Hanan. Wilson J later. MacArthur J was known (hearsay so far as I was concerned) Before the Privy Council as a courteous judge and a good lawyer, but not the speediest I also remember McGregor J for having occupant of the bench. Very sadly, he died suddenly at the been one of the majority in the Court of church where his daughter was being married.

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▴ Sir Richard Wild

had it that the only other candidate was Denis Blundell, later the Governor-General ▴ Sir Ian MacArthur who signed my QC and Judge warrants. I now mention my first encounter with Sir Richard, other than appearances in court. Honours for the judiciary He was knighted under what I suspect to have been The path to silk the then policy that High (then Supreme) Court puisne Some Auckland judges had suggested to judges would receive a knighthood (damehoods were not me in 1972 that I should consider applying contemplated for judges in those days) on completion for silk. In those days, there were no forms of 15 years’ service or on retirement. I do not know, but to fill in wherein one had to spell out one’s speculate, that this rather generous provision was offered career and say why, in Muhammed Ali by the Kirk government because it had altered the Order of style, one should be appointed. No appoint- Precedence to place ordinary members of Parliament ahead ment “round”; no $500 fee; no referees; of Supreme Court judges. Sir Richard Wild, as Chief Justice, no requirement of community service, saw this alteration as a slight on the judiciary and a lack of although almost all appointees in those recognition by the government of the judges’ constitutional days did pro bono work without publicity. position. The latest version of the Order of Precedence, Just a one-on-one interview with the CJ, dated 15 September 2016, still has judges – except the expected to be a bit scary. He turned out to Chief Justice – listed in the official pecking-order behind be pleasant and gave me his approval and MPs and ambassadors. The issue seems less important told me to contact the Attorney-General – now than it did in the 1970s. then Martyn Finlay whom I had juniored Government policy on royal honours for judges has in a murder trial. Martyn and the then fluctuated over the years about which I can speak. But, Solicitor-General, Richard Savage, were speaking outside of that bygone era, I am sorry to observe most helpful and I duly became a silk in that a number of recently-retired judges who have given March 1973 with precedence after my good excellent service, seem not to have been honoured at all friend, the late Maurice O’Brien QC who in the Queen’s Birthday or New Year’s Honours lists. I had been appointed two years previously. imagine that the increase in judicial numbers plus the No multiple appointments in those days. addition of another and higher layer of judicial officers Sir Richard was a rather awe-inspiring with the creation of the Supreme Court, have made former figure to those at the bar who didn’t protocols redundant and the honouring of all judges on know him. That category included most retirement impracticable politically. Auckland lawyers. Sir Richard had a habit Which brings me to Sir Richard Wild. At the time of of referring to “The Republic of Auckland” his appointment as Chief Justice in 1966 he was Solicitor- but that jocular reference did not dimin- General, having previously been a partner in Bell Gully. His ish his performance as one of a team of selection came as no surprise to the profession. Rumour Wellington heavies from the New Zealand

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Law Society’s then ruling class (before his appointment as CJ), when he addressed, and won over, a majority of the sceptical members of the Auckland profession at a crowded meeting in 1961. The Wellington delegation sought approval from the largest district law society for the construction of a building in Wellington to house the NZLS and a levy on every lawyer to pay for it. Earthquake safety problems meant the Law Society had to leave the building at 26 Waring Taylor Street in mid-2019, never to return. I become a Judge Sir Richard was Chief Justice when I was appointed to the then Supreme Court in March 1976. At the time of being telephoned on a Saturday in February 1976 with the offer of appointment from the newly-elected Muldoon Government’s Attorney-General, Peter Wilkinson, I was in the middle of what turned out to be my last major case at the bar, Tawharanui Farm Ltd v Auckland Regional Authority [1976] 2 NZLR 230, before Wild CJ and a specialist valuer in the Administrative Division (then in existence). I was sworn-in on Easter Thursday by Wild CJ and started sitting after the Easter break. My first case was not a criminal trial (as it had been for many new judges) but a sort of building dispute. More about who was liable for what rather than a trawl through schedules of quantities and other delights of that form of litigation. ▴ Justice Nigel Wilson In Wild CJ’s reign, if one refused appointment to the Supreme Court bench, the offer was quite often not repeated. Moreover, the offer was for me to sit in Auckland inaugural hiccups. Wild CJ instituted a week’s “spring where my family and I wanted to remain. Other recent leave” for judges and generally improved their conditions appointees had been moved south with a vague promise of service. of return to Auckland sometime. Hence my decision to During Sir Richard’s term as CJ, sittings of the court become a ”boy judge” at age 42 – a decision I have not were instituted in Whangārei (which had had a registry regretted. for many years) which led to petty inefficiency since cases being heard in Auckland had to be filed in Whangārei. It Led by example was said, facetiously, that files got lost in transit whilst Sir Richard had a strong personality and was a forceful coming over the Brynderwyns. and effective leader of the judiciary. He micro-managed the business of the court and expected his judges to work Rotorua and Tauranga hard. He led by example as could be discerned, for instance, Sittings were also inaugurated in Rotorua despite the on my receiving a call from him from a circuit town in the Auckland District Law Society’s research that Tauranga South Island to the lovely old Hamilton courthouse (now was more worthy of the honour on demographic grounds. apparently and inexplicably abandoned), enquiring how Tauranga was still within the Auckland Law Society’s dio- many appeals I had heard that day and how many had yet cese at the time because it was still within the Northern to be heard. In those days, Hamilton could always be relied Judicial District with all its litigation required to be held upon to provide lots of appeals. One often drove back to in Auckland. Judicial Districts were abolished as a belated Auckland, exhausted, with a bag full of reserves at 5pm recognition of the fact that Hamilton and Rotorua were on a Friday. Another judge told me, a few months after my closer to Tauranga than Auckland. appointment, that I had passed muster with Sir Richard The then government’s decision in 1973 to opt for Rotorua by coping with the grab bag of diffuse files which greeted instead of Tauranga for Supreme Court sittings may have one in the Auckland circuit towns of the day. I found him been pragmatic. The old courthouse had been burnt down very reasonable and approachable, although someone as in Rotorua. The Rotorua court – then and now – generates new to the judiciary as I could not help experiencing a a lot of High Court work – especially criminal trials and headmaster image of him. appeals. Tauranga has lived up to the Auckland District Law His successor created the position of Executive Judge Society’s predictions of the 1970s with its ever-increasing which devolved administration of judicial work locally population. It achieved High Court registry status some instead of being under the central control of the CJ. This years before High Court judge-alone sittings occurred there. was an excellent idea which worked well after a few I am told that planning for its existing and remodelled

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▴ Justice Wilson takes his leave of the bench at a special sitting of the Supreme Court in Christchurch on 19 November 1976 to mark his retirement. He wore the same wig Working through and gown when first appointed to the pain barrier the bench, but had discarded them Nigel Wilson was a most courteous because of their condition. The wig gentleman who suffered from a very previously belonged to both Justice painful hip which retarded his mobility Callan and Sir Alexander Turner. and required him to use a walking stick. He had gone to the independent bar in Auckland in the 1950s after being in the courthouse extended only to District small to medium-sized solicitors’ firm of Court jury trials. A rather odd situation Gittos, Uren, Wilson, Greig and Bourke. A for our fifth largest city, if this be so. As I courageous move in those days, since there complete this article, the news has shown were very few barristers sole. His chambers that Tauranga is to get a new courthouse were a single room in the unpretentious in a few years’ time. One said to be not so building of Victoria Insurance in Shortland “intimidating”, whatever that may mean. Street. Nigel’s practice was more focused Sir Richard was committed to main- on equity and probate law. Although he taining standards of courtroom etiquette, was granted silk in 1958, he did not appear administrative efficiency and respect for to have the comprehensive and lucrative the judicial office. He encouraged collegi- practice that most of today’s silks enjoy. ality amongst the judges. He maintained So, when he was appointed to the Supreme a punishing workload – never sparing Court in 1962, it was said (I don’t know how himself. He died in 1978 after ill health had accurately) that he might benefit from a forced his retirement. His relationship with slight increase in earnings. various Presidents of the Court of Appeal Nigel was despatched to Christchurch was not always smooth. See Professor Peter as a resident judge and he soon displayed Spiller’s book on the history of the Court of a propensity for speedy decisions and Appeal for details (The New Zealand Court of oral judgments. Consequently, although Appeal (1958-96), A History, 2002, Brookers). appealed against quite often, he got

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▴ 15 April 1976 and Justice Barker hard to imagine). I appeared before have been customary for a Supreme Court retiree with takes his oath of office in the him in about 1965 in the smallish Nigel’s length of service. A highly principled man, he Supreme Court at Auckland. upstairs courtroom and he came on could be outspoken and sometimes adopted causes From left, Justice Perry, Sir to the bench in obvious pain: but which were not universally popular. One that I recall Richard Wild CJ, Justice Coates that didn’t stop him from being concerned a proposal to transport the elegant wooden (partly obscured), the new charming to counsel and from St Mary’s Cathedral church from one side of Parnell Justice Barker, Justice Moller giving an oral judgment which was Road, Auckland to the other so that the old building and Justice Speight. eminently appropriate. would be alongside the new, but then incomplete, Holy Trinity Cathedral. I forget the detail after almost 50 through a huge amount of work Alone in the South Island years, but Nigel led the charge against the relocation and displayed an acquaintance There were times when Wilson of St Mary’s but was unsuccessful in his opposition. It with many branches of the law. All J was the only judge for all the was said that he was denied any recognition by way this work was accomplished when Supreme Court centres in the South of an honour because he had been publicly outspoken he was frequently in pain. Personal Island (apart from Nelson and (after his retirement) about something favoured by the injury insurance lawyers often Blenheim which were served from then Prime Minister, Robert Muldoon. I do not know settled their cases before him, not Wellington). MacArthur J was doing whether that theory is correct but many felt that Nigel because he was other than impar- his companies thing and Henry J had been unfairly treated and that his efforts on the tial, but because it was thought that (the last judge appointed to reside bench should have been recognised. he would understand a plaintiff ’s in Dunedin) was either on sabbatical evidence of pain and suffering better leave or had by then transferred The former judge who than most. from Dunedin back to Auckland. appeared as counsel But he never let his affliction Wilson J traversed his territory Nigel received none of the appointments now often interfere with dispensing justice. tirelessly. He transferred back to given to retired judges, such as chairing enquiries of Conditions in the antediluvian Auckland for his last years on the various kinds. Nor was any trend for such retirees Christchurch courthouse of the bench and retired around 1976. to become ADR practitioners discernible in those 1960s were far from ideal. Nigel’s After his retirement, Nigel times. Bear in mind that this was before the reform Chambers were upstairs (no lift, received no royal honour, although of the arbitration legislation and before anyone had so how he coped with the stairs is a knighthood in those days would heard of mediation as the “go-to” healing balm for

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have had a fellow feeling for me in that he too had won a Privy Council appeal (Lee v Lee’s Air Farming Ltd [1961] AC 12) when both judgments in the New Zealand courts had not been in the appellant’s favour. I appeared before him in 1967 in a three-week jury trial. I unsuccessfully defended the Cook Islands Government which was being sued for malicious prosecution. In the early days of independence for the Cooks, one could still litigate civil cases in the New Zealand Supreme Court. I had felt that some of Perry J’s interven- tions and questioning of witnesses was hovering around the Jones v National Coal Board [1957] 2 All ER 155 strictures – but the case was settled before an appeal could be heard. My detailed knowledge of the law of malicious prosecution, of necessity acquired in the course of that trial, was never again called upon in the years that followed! Later in that same year, I appeared before Perry J as counsel for the accused in a murder trial where the jury accepted provocation as a defence and found manslaughter. Sadly, Perry J did not get on so well with certain other Auckland judges nor with Wild CJ, despite his being ex officio as Senior Puisne, Acting Chief Justice, if Sir Richard was out of New Zealand. He presided over the second Arthur Allan Thomas trial, for which ▴ Maxwell Vautier QC is called to the Inner Bar in the Supreme Court at role he prepared meticulously. His Auckland on 23 July 1976. With him is Justice Perry, who presided. health was not robust – a fact that did little to boost his judicial output most litigation. So he not only novel features. I think I reserved to the level of that of younger col- took out a practising certificate, judgment. Nigel’s submissions leagues. His judgments were careful but he actually made a few were par for the course but I could and not often appealed. appearances as a QC after he had not but feel sad that Nigel – despite retired from the bench. To my the non-binding convention to The triennial law embarrassment (not outwardly the contrary – was appearing as conferences expressed) one was before me. I counsel in his retirement, after a I had got to know Lester Moller can still recall sitting in the his- judicial career where, although he when he was Chairman, and I toric Auckland No.1 Court, before had been no stellar legal genius, he was one of the Joint Secretaries, its refurbishment, to see Nigel had worked extremely hard and for the 1963 NZ Law Conference in with his stick coming through conscientiously. Auckland. The late Richard Craddock counsel’s door and announcing Clifford Perry (who became Sir was the other Joint Secretary - an that he was appearing for a party Clifford in 1976) was the senior interesting position that involved in what was a fairly standard judge in Auckland at the time of my a lot of work, accommodating the Family Protection Act claim in a appointment in 1976. He was very vagaries of some egos and enjoying not-so-large estate. I forget the welcoming and kind to me in my the chance to meet legal celebrities detail of the case which had no early days on the bench. He may from overseas.

86 LAWTALK 936 · February 2020 LEGAL HISTORY

The grand triennial law con- the bar. He always made copious ferences, with their extravagant file notes – even writing extensive opening ceremonies and their arrays reasons for adjourning a proceeding. of visiting Commonwealth jurists, He was particularly strict on are no more, sadly. Replaced by spe- undefended divorce day, especially cialist gatherings, they provided the with those counsel who sought to opportunity for all members of the prove verbal separation agreements profession, city and rural, litigation by asking leading questions. His and conveyancing, old and young, to questioning of private enquiry mingle, attend papers on hot legal agents giving evidence in adul- topics of the day, meet the great and tery-based petitions for divorce good from overseas, enjoy sporting enforced adherence to the rules of and social occasions and generally evidence, so much so that several do what lawyers like doing – talking after-dinner speakers have been to their peers. As numbers of attend- known to quote these questions. At ees increased and suitably-sized times, his experience with the Otago venues became harder to find, the and Oxford dramatic societies could logistics of running the conference be detected in his demeanour with became all the more difficult. But juries or witnesses. He had a good being a Joint Secretary, a role given grasp of legal principle and a judge- to two youngish practitioners every alone argument before him could be three years, was exhausting but a satisfying experience for counsel. highly enjoyable. His judgments were soundly based ▴ Sir Clinton Roper A son of the South and a bril- and not often successfully appealed. liant graduate from the Otago Law After his retirement, he became (sadly, not uncommon in the 1970s) at the behest of School, Lester was a pre-war Rhodes stricken with a serious illness. Yet, her father. He was a staunch member of a sect which Scholar. He “went up” to Brasenose he faced his many health-related was very controlling and which ostracised any family College and obtained his Oxford ordeals with huge courage. I would member who did not want to follow the party line. degree. After the war, he became a visit him at home when he was I forget much of the detail of this distressing case, but partner in an Invercargill firm. His quite ill. He always greeted me I do recall how sensitively, yet firmly, Roper J dealt with abilities as counsel there led to an immaculately attired and pressed it. He certainly won my admiration for finding a solution invitation to join the Auckland firm me to join him in a drink, although in a humane manner. No solution was ever going to be of Wallace McLean (now absorbed his ability to enjoy a drink was ideal, but Roper J did well in an impossible situation. into Denton’s Kensington Swan). hugely limited. Always interested An early member of the corps of retired judges and In Auckland, he quickly became a in what was happening at the senior barristers who have served the Cook Islands leading counsel and highly popular court, always cheerful, charming well as Chief Justice, Clinton invited me to become a in the profession. So much so that he and amusing. Yet, underneath it member of the Cook Islands Court of Appeal in 1990. became President of the Auckland all, in considerable distress. I have been honoured to have served in that role until District Law Society in the year of my retirement in 2019. ▪ its hosting of the Triennial Law Common-sense approach Conference which meant that he Sir Clinton Roper was the Admitted as a solicitor in 1957, Sir Ian Barker QC’s legal was the titular host for what was to Christchurch Crown Solicitor when career has seen him in the roles of solicitor, barrister, be the biggest legal gathering in the appointed to the Supreme Court in Queen’s Counsel, High Court Judge, law academic, country to date. He had to entertain 1968. As a judge he sat in that city arbitrator and mediator. the visiting grandees (with plenty where he was greatly respected of helpers) – Lord Parker LCJ and and loved by Canterbury lawyers. Lady Parker from London and Sir He was hugely experienced and Charles Lowe, a senior judge from had a direct and common-sense Correction: Sir Wilfrid Sim Victoria – for example. approach to the many problems one The first instalment of Sir Ian’s personal memories faces on the bench. His humanity of the judges of the 1950s and 1960s (LawTalk The copious file notes was demonstrated in the one major 935, December 2019) suggested that Sir Wilfrid In the following year, 1964, to appearance I had before him when Sim was passed over for appointment as Chief nobody’s surprise, Lester Moller he was helping out in Auckland. Justice at the time of Sir Humphrey O’Leary’s was appointed to the Supreme With a youthful Sir Grant Hammond appointment to the role. Sir Ian now notes that Court Bench. As a judge, he was (as he then wasn’t) as my junior, we Sir Wilfrid was a candidate when Sir Harold meticulous over detail, strict on appeared for an unfortunate lady Barrowclough was appointed after O’Leary CJ’s enforcing rules of evidence and on who had some mental problems retirement, but not on O’Leary CJ’s appointment. upholding standards of conduct at and who had undergone a lobotomy

87 LEGAL INFORMATION February 2020 · LAWTALK 936

LEGAL INFORMATION Recent legal books

BY GEOFF ADLAM chapters cover all elements of the law relating to health and safety at work. The new edition incorporates legal and policy developments since the Act came into force, and this is evident in chapters such as those on Sentencing Safeguard Health & Safety and Enforceable Undertakings. More of a book for lawyers Handbook 2020 than the Safeguard guide, this is also intended for health By Mike Cosman, Michael Tooma, Ann Butler, Craig and safety practitioners. Marriott and Rachael Schmidt-McCleave Thomson Reuters New Zealand Ltd, 978-1-988553-52- It’s now nearly four years since 8, Paperback and e-book, 320 pages, December 2019, the important Health and Safety at $121.80 (GST and postage not included). Work Act 2015 came into force. As the authors say, legislation cannot change culture but it, and the regu- Nevill’s Companion to the Trusts Act 2019 lator, can send signals about the kind By Lindsay Breach of environment in which safe, health and productive workplace cultures Short and succinct, this is promoted can develop. The latest edition of the as a “rapid response guide to the new Handbook – the third – creates a comprehensive and prac- Act” – which comes into force on 30 tical picture of the requirements of New Zealand’s health January 2021. Trusts consultant Dr and safety laws. It is written for a wide audience and not as Lindsay Breach is author of the 13th a legal textbook. The 11 chapters follow a logical sequence, edition of the long-standing Nevill’s from Key Concepts, Duties, Leadership and Tools to the Law of Trusts, Wills and Administration closing piece on Occupational Health. One chapter provides and he says a companion text to the plain English summaries of a wide range of health and Trusts Act is appropriate because the safety cases, organised by subject, and another describes new statute represents the most significant change to the key elements of health and safety regulations. There trust law in 63 years. The book is in nine parts, to follow are two lawyers in the author team, with the rest being the headings and sections of the Act. experienced health and safety practitioners. LexisNexis NZ Ltd, 978-0-947514-61-7, Paperback and Thomson Reuters New Zealand Ltd, 978-1-988591-23- e-book, 86 pages, January 2020, $120 (GST included, 0, Paperback, 349 pages, January 2020, $87 (GST and postage excluded). postage not included). Youth Justice in New Zealand, 3rd edition Health and Safety at work in New By Nessa Lynch Zealand: Know the Law, 2nd edition By Rachael Schmidt-McCleave and Stacey Shortall Since publication of the second edition in 2016 there has been major This is a new edition of one of the legislative and policy reform in youth books which appeared following the justice – a “radical re-drawing of the new legislation. Developments since parameters and principles underpin- then have prompted a new chapter, on ning the youth justice system”, says workplace bullying, harassment and Dr Lynch. This has included raising mental health and their relationship the youth justice age to 18 for most with the Act and WorkSafe. Written by offences, a new operating model for two lawyers specialising in health and Oranga Tamariki and major changes in the theoretical safety law with contributions from framework of the legislation. With the new edition, Dr MinterEllisonRuddWatts lawyers Megan Richards, Emma Lynch’s intention remains one of analysing law, policy and Warden, April Payne and Matthew Ferrier, the book’s 14 practice from the minimum age of criminal responsibility

88 LAWTALK 936 · February 2020 LEGAL INFORMATION

Free law online Cannabis Law Report Will With legalisation of the cannabis industry possible in this year’s Notices referendum, lawyers wanting to start pondering the potential legal issues PAGE 89 which might arise may find a (free) subscription to Cannabis Law Report is useful. Delivered weekly Avery, Nigel John since 2016, and created by long-time legal pub- Brownson, Roderick Alwin lisher Sean Hocking, the extensive report features Chaloner, Robert Austen a number of regular lawyer columnists. Australian PAGE 90 expat Hocking keeps a close eye on Australia and Cook, Aaron James New Zealand. Cousins, Janice Lee To sign up, visit the website at https://cannabislaw. Deng, Funfa report/ and click the Join Newsletter icon. Huang, Xiaowen Charity Law in New Zealand Meehan, Perry Brian Nagaiya, Sadhu Nagaiya This is indeed charitable. Written by Dr Donald Pivac, Allan Marian aka Poirier and published by the Department of Pivac, Allan Marino Internal Affairs, the full 397-page PDF of this Pritchard (nee Ford), Orapa Margaret work can be freely downloaded at www.charities. Robinson, Peter Leonard govt.nz/assets/Uploads/Resources/Charity-Law-in- Sampson, Merlin Jeanette New-Zealand.pdf. It was published in 2013, so Sepp, Nanette Morgan some checking of the latest developments will Sionetali, Dino Misili be needed, but the work contains an extensive Teaheniu, Castro Casper discussion of case and statute law. Walker, Susan Joy Yeung, Kwok Wai William to the time of transfer to the adult jurisdiction. A new chapter looks at the situations in which children and Avery, Nigel John young people are dealt with in the adult criminal justice Would any lawyer holding a will for the above- named, late of Auckland, chartered accountant, system. The book provides a comprehensive analysis and born on 8 August 1970 who died on 6 October assessment of what is often described as the “New Zealand 2019, please contact Isabelle McKay at Morgan model of youth justice”. Each of the 12 chapters closes with Coakle: some concluding remarks in which Dr Lynch succinctly  [email protected] draws together the themes and issues. Her thoughts in  (09) 379 9077 a final “Closing Remarks” section appropriately end an  PO Box 114, Shortland Street, Auckland 1140 important resource for anyone involved in the youth Brownson, Roderick Alwin justice system. Would any lawyer holding a will for the above- named, late of Carters Beach Road, Westport, Thomson Reuters New Zealand Ltd, 978-1-988591-13-1, Retired, born on 10 July 1952, who died on 6 Paperback and e-book, 369 pages, December 2019, $112 September 2019, please contact Vicky Brown, (GST and postage not included). Helmore Stewart Lawyers:  [email protected]  (03) 311 8750 Legal books  PO Box 44 Rangiora 7440 This information is compiled from books which Chaloner, Robert Austen publishers have sent to LawTalk. It does not imply Would any lawyer holding a will for the above- endorsement by the New Zealand Law Society and named, late of Hamilton, Contractor Silage the objective is to provide information on books Bailer, born on 18 January 1977, who died on 10 November 2019, please contact Lena Wong which may be of interest to the legal community. of Complete Legal Limited: Purchase inquiries must be directed to the appro-  [email protected] priate publisher.  (09) 238 7004  PO Box 264, Pukekohe 2340 or DX EP77026

89 WILL NOTICES February 2020 · LAWTALK 936

Cook, Aaron James Nagaiya, Sadhu Nagaiya Sepp, Nanette Morgan Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- named, late of Te Kauwhata, Businessman, born named, late of Papatoetoe, Auckland, born on named, late of Christchurch, born on 20 August 2 August 1986 who died on 10 November 2019, 29 March 1953 who died on 11 September 2019, 1938, who died 23 December 2019, please please contact Karen Brown: please contact Conveyancing Plus: contact Siobhan Cuttance, Lane Neave:  [email protected]  [email protected]  [email protected]  (07) 839 1258  (09) 236 5016  (03) 379 3270  PO Box 1329, WMC, Hamilton 3204  PO Box 231, Waiuku 2341  PO Box 2331, Christchurch 8140

Sionetali, Dino Misili Cousins, Janice Lee Pivac, Allan Marian aka Pivac, Would any lawyer holding a will for the above- Would any lawyer holding a will for the Allan Marino named, late of Avondale, Auckland, who died on above-named, late of Christchurch, born on Would any lawyer holding a will for the above- 4th March 2019, please contact Mark Henley- 16 October 1953, who died on 2 October 2019, named, late of Auckland, retired, who died on Smith of Henley-Smith Law: please contact Richard John Little of Eagles, 06 December 2019 aged 86, please contact  [email protected] Eagles and Redpath: Philip Dreadon, MinterEllisonRuddWatts:  (09) 818 6153  [email protected]  [email protected]  PO Box 20067, Glen Auckland, Auckland  (03) 218 2182 Fax (03) 218 2185  (09) 353 9808 0641  PO Box 1445, Invercargill 9840  PO Box 3798, Auckland 1140 Teaheniu, Castro Casper Deng, Funfa Pritchard (nee Ford), Orapa Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Margaret named, late of Auckland, Despatch Coordinator, named, late of 48 Saint Johns Road, Saint Johns, Would any lawyer holding a will for the above- born on 30 October 1966, who died on 20 Auckland, Businessman, born on 8 August named, formally of 57 Yvonne Street, Melville, November 2019, please contact Bernadette 1950, who died on 1 December 2019, please Hamilton, latterly of Negara, Brunei, born on 16 Power: contact Winston W. Wang of Winston Wang & February 1977, who died on 12 September 2019,  [email protected] Associates: please contact Natalie Whitelock, McCaw Lewis:  (09) 520 4477  [email protected]  [email protected]  First Floor 217 Great South Road,  (09) 522 2258  (07) 958 7435 or Fax 07 839 4652 Greenlane, Auckland 1051  PO Box 99974 Newmarket, Auckland 1149  PO Box 9348, Hamilton 3204 DX GP 20020 Walker, Susan Joy Huang, Xiaowen Robinson, Peter Leonard Would any lawyer holding a will for the above- named, late of 4/109A Kolmar Road, Papatoetoe, Would any lawyer holding a will for the above- Would any lawyer holding a will for the above- Auckland, Cleaner, born on 18 February 1964 named, late of Auckland, Businesswoman, born named, late of 44 Murdoch Crescent, Raumanga, who died on 12 November 2017, please contact on 17 June 1972 who died on 1 September 2018, Whangarei, Retired, born on 26 October 1935, Rosalie McGuire: please contact Kelly Xu of East Law: who died on 1 December 2019, please contact  [email protected]  [email protected] Tina Herman, Marsden Woods Inskip Smith:  (09) 23 58179  (09) 533 6228  [email protected]  PO Box 121 Waiuku 2341  PO Box 39 360 Howick, Auckland 2145  (09) 438 4239  PO Box 146, Whangarei 0140 Yeung, Kwok Wai William Meehan, Perry Brian Would any lawyer holding a will for the above- Would any lawyer holding a will for the Sampson, Merlin Jeanette named, late of Unit 2, 73 Hattaway Avenue, above-named, late of Ohaupo, Golf Court Would any lawyer holding a will for the above- Howick, Auckland, Retired, born on 17 August Superintendent, born on 10 June 1959 who named, late of Palmerston North, Retired, born 1946, who died on or about 27 October 2019, died on 26 December 2019, please contact on 31 May 1940 who died on 15 December 2019, please contact Phillip Wong, Wong & Bong Karen Brown: please contact Alison Green Lawyer: Law Office:  [email protected]  [email protected]  [email protected]  (07) 839 1258  (06) 353-1191  (09) 535 5886 Fax (09) 535 5947  PO Box 1329, WMC, Hamilton 3204  PO Box 4017, Palmerston North 4442  PO Box 51454, Pakuranga, Auckland 2140 Advertise with us! LAWTALK OUR WEBSITES LAWPOINTS

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90 LAWTALK 936 · February 2020 CLASSIFIEDS

Call for registrations of interest to be an Vacancies (2) for deputy Inquirer and/or a Lead Reviewer lawyer members of the

We are seeking to establish a panel of approved Inquirers for SSC Mental Health Review Investigations and/or Lead Reviewers for Performance Improvement Tribunal Framework (PIF) Reviews of government agencies. This appointment would be for three years initially and panel members would be our The Ministry of Health is seeking two experienced preferred suppliers for Investigations and PIF Reviews. This is a unique candidates to be appointed as deputy lawyer members opportunity for senior professional leaders to help uphold the high of the Mental Health Review Tribunal (MHRT). The MHRT standards and integrity New Zealanders expect from their public service. comprises of three members: a lawyer (the convener), a If you are interested please view the opportunity on GETS: psychiatrist, and a community member. www.gets.govt.nz/SSC The Minister of Health appoints MHRT members under Registrations close at 5pm on 28 February 2020. section 101 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Act) to consider the condition of patients’ subject to the Act and undertake certain investigations. Deputy members act as equivalent members where that member is unable to perform MHRT duties. You must be a barrister or solicitor with a current practicing certificate, preferably in a current law practice, Commercial/property and have an interest in mental health. law practice for sale Applications must be submitted by 3 March 2020. Interviews will take place during March 2020. Appointments follow two resignations and will expire on 18 September 2021 along Ready to be your own boss? We’re an with the terms of the all current members. established sole practice on the fast-growing For further information please search for the tribunal on www. health.govt.nz or contact [email protected] Kapiti Coast. Our great reputation and client base has developed over eleven years, and All applicants should supply there’s plenty of potential for further growth. • a letter of application • a curriculum vitae Call 027 4988 745 in confidence for • two written references • the application form (to obtain this please contact sarah. further information. [email protected])

GENERAL PRACTICE SOLICITOR Partnership Opportunity

Small, well established Takapuna-based general practice seeks lawyer to assist partner looking to reduce his work load. The successful applicant will likely have at least 4yrs + PQE with SENIOR COMMERCIAL AND a bias towards property, trust and estates work, and be looking to PROPERTY LAWYER move to a partnership role over a period to be tailored to suit the right person, but likely within 3 years. This would also be an opportunity for a lawyer at a more senior level, with partnership aspirations. Fletcher Vautier Moore is one of Nelson’s longest-standing, most reputable law firms with offices in Nelson, Richmond and Motueka. All applications and expressions of interest will be treated in confidence. We attract top quality legal professionals, and this is reflected in our longstanding private, corporate and local government clients. Our Please contact the advertiser, in confidence, at: people enjoy a varied and stimulating variety of top-shelf work, as Confidential Advertiser No. 20-1, [email protected] well as enjoying one of New Zealand’s most beautiful places. We have a great team environment across all our branches. We have an outstanding opportunity for a senior lawyer with partnership aspirations to join our commercial and property team, based in our Nelson office. The work is wide ranging and interesting. LOCUM It includes: • commercial leasing • subdivisions • sales and purchases of • rural transactions commercial businesses • trust and estate work Roger Donnell, retired general practitioner • residential conveyancing • asset structuring. with 45 years’ experience, is now available You will have initiative and drive. You will be a leader, someone who likes engaging with clients and takes a genuine interest in to undertake locum assignments. Any mentoring and supervising junior lawyers. location considered. This role provides a great opportunity to advance your career with quality work and clients in the growing Nelson/Tasman region. If you would like to apply for this role, please send Ph 027 2427390 or your CV and covering letter to Keeley Pitchford at E-mail [email protected] [email protected]

91 CLASSIFIEDS February 2020 · LAWTALK 936

TENANCY ADJUDICATORS Employment Lawyer Auckland my missionAUCKLAND CBD in life is Leading niche employment law fi rm Tenancy Adjudicators are required for the Tenancy Tribunal in the Auckland area. The standard commitment is one to nottwo days merely to survive, per week. Some travel for training or to provide cover in other regions may occasionally be required. LangtonHudsonButcher is a specialist employment law fi rm, recognised as a leader in its fi eld. We are the largest employment The successful applicants will have a legal qualificationbut to thrive;law team in Auckland, providing and advice to toand representation do of or relevant experience in adjudication. Applicants must top-tier corporates. We offer a highly collaborative work demonstrate a capacity for impartial adjudication, the ability environment and an extensive range of employment law work. to conduct a hearing professionally, and an ability to manageso with some passion, hearings with self-representing parties. They must also be able to We want this work to be performed by clever and passionate demonstrate efficient work habits, good time-management and lawyers, who know their clients and their clients’ business. an ability to make clear, logical decisions. Good oral and written communication skills are essential, as is computer literacy.some Some compassion,We are currently seeking a highly motivated someintermediate/ flexibility to travel would be beneficial. senior-level lawyer to join the team. Our ideal candidate will have strong academics, at least 3 years’ experience in employment Further information is included in the application pack which law (contentious and advisory), a commitment to the on-going can be downloaded at: www.justice.govt.nz/about/statutory-humor and some style. refi nement of legal skills, a focus on client service, and a track record vacancies/ of contributing to the achievement of team goals. We are open to For more information about the position, contact Tania Mayadiscussing fl exible Angelou working arrangements for the right candidate. Togiatama, PA to Principal Tenancy Adjudicator – email: tania. For a confi dential discussion about this opportunity, please contact [email protected] or phone (07) 921 7478. Lara Brown, Practice Manager, on 09 916 2593, or submit your application to [email protected] Applications for the position close at 5.00pm, Thursday 20 Stephanie Paxton-Penman LLB (Hons) February 2020. [email protected] 17 Neville Street, Warkworth DDI: 09 425 0968 | Phone: 09 425 7701 Auckland Office Level 5, 26 Hobson Street, Auckland CBD Phone: 09 912 8500 Almao Douch Office of the Crown Solicitorat Hamilton New Year - New Job New Year – New Job Almao Douch is expanding its diverse and progressive Paxton-Penman et al is a small boutique firm with offices in both team of lawyers following the appointment of a new WarkworthPaxton-Penman and Auckland et al is a Central small boutique which specialises firm with in Crown Solicitor. offices incommercial both Warkworth and property and Auckland matters. Central which specialises in commercial and property matters. We are a well-established Hamilton firm with a strong We are looking for a number of people to join our team in 2020 in Crown identity. Our team of expert litigators undertake both our Warkworth and our Auckland offices. So whether you are challenging and publicly important work to exacting We are looking for a number of people to join our team an experienced lawyer with some of your own clients wanting to head standards. in 2020 in both our Warkworth and our Auckland offices. towards partnership, a consultant wanting to enjoy a more balanced So whether you are an experienced lawyer with some of We are looking for skilled communicators who excel lifestyle, a qualified legal executive or solicitor with general practice your own clients wanting to head towards partnership, a in the law, demonstrate a genuine interest in people, experience we would love to hear from you. There is also a role in our consultant wanting to enjoy a more balanced lifestyle, a have a strong sense of justice and an unwavering Auckland office for a receptionist/deeds clerk. The roles in Auckland commitment to doing the right thing. qualified legal executive or solicitor with general practice (other than the consultant role) are full time. The roles in Warkworth experience we would love to hear from you. There is also Ours is a highly collaborative culture with a clear team are part-time and can be flexible to work a role in our Auckland office for a receptionist/deeds focus. We recognise the importance of looking after our around child-care commitments. people and providing opportunities for them to develop clerk. The roles in Auckland (other than the consultant and succeed. What doesrole) it takeare full to betime. part The of ourroles team? in Warkworth You need toare be part- articulate, accurate, passionate, empathetic, interested and interesting. Does this As well as seeking applications from established trial time and can be flexible to work around child-care sound like you? If so, please forward your CV and a covering letter to lawyers, we also welcome applications from diligent commitments. and dynamic lawyers with other courtroom experience, [email protected]. who are interested in undertaking Crown prosecutions, What does it take to be part of our team? You need to be regulatory work and asset recovery actions. articulate, accurate, passionate, empathetic, interested and interesting. Does this sound like you? Please email your CV and cover letter through to our office manager, Sue Brice, at [email protected] If so, please forward your CV and a covering Applications close 10 December 2019. letter to [email protected]

92 LAWTALK 936 · February 2020 CLASSIFIEDS

Due to an increasing workload we are looking for motivated and enthusiastic Kayes Fletcher Walker, the office of the Manukau Crown team members for our busy general Solicitor, is looking to recruit junior prosecutors to begin practice in beautiful Taupo. in early February 2021. The positions are suitable for recent graduates through We have a friendly and capable team with relaxed to solicitors with 3 years PQE (but not necessarily with offices, affordable housing, no parking hassles, prosecution experience). zero traffic worries and access to a wonderful lifestyle in the central North Island. A competitive Successful applicants will be joining a dynamic medium- remuneration package is available depending sized law firm based in South Auckland committed to on experience, we offer 5 weeks annual leave providing great training and career development, with per annum, and you will have the opportunity unrivalled opportunities to appear regularly in court. to participate in an attractive bonus structure. To obtain an application form please visit our website If you are looking to re-locate your family and www.kfw.co.nz. your partner needs a job also, talk to us about the wonders of a small town and using our contacts Applications close Wednesday 11 March 2020, and can be and client base to facilitate that. sent to [email protected] You can drive these roles as hard as you like and be able to participate in other areas of interest available in the firm’s general practice. There are good career prospects for the right applicants.

Property/Commercial Lawyer LAWYER An experienced property/commercial lawyer, working primarily in property, including Gisborne conveyancing, subdivisions, trusts, business sales and purchases, leasing, company Law and general Want more LIFE in your work/ life balance? commercial practice. Ideally you will have at least 3 years PQE, but applications from more junior We’re looking for an energetic and experienced solicitor to work with our partners in commercial, property, trusts and practitioners and graduates may be considered if employment areas. You will need to be willing to deal with a you have an excellent work ethic and references. wide variety of legal issues. You should have some experience in at least two of these areas. Family Lawyer Nolans is a Gisborne based firm covering a wide variety of legal issues. Our firm is founded on knowing our clients, their A Family Litigator with at least 2 years PQE and needs and giving them sound, legal solutions. We give our all Lead Provider status. You will be working with to ensure our client’s get great legal service but we also know the importance of living our lives too. a primary focus on family matters including protection orders, Care of Children Act We understand people and relationships are key, but we proceedings, Oranga Tamariki advocacy and also know that innovation and technology are increasingly important and we are always looking to improve our systems relationship property. Applications from graduates and make use of technology. may be considered.

Gisborne has some of the highest sunshine hours in the We work hard and have fun doing it! country. Our housing market lets you to get more for less. Our farming, forestry and produce industries are thriving and the future is exciting. Applications with accompanying CV So if you want more out of life, get in touch with our Practice Manager, Ernie White 0274 768 461 or should be made by 28 February 2020. [email protected] Email: [email protected] – with “Job Applications will be progressed as received. Application” in the subject line. Email your application to: [email protected]

93 Online registration and payment can be made at: CPD Calendar www.lawyerseducation.co.nz

PROGRAMME PRESENTERS CONTENT WHERE WHEN FAMILY COMPANY, COMMERCIAL AND TAX TRUSTS AND OFFSHORE Terry Baucher Living and working overseas is a New Zealand way of life. Webinar 20 Feb BENEFICIARIES – Add being a beneficiary of a New Zealand trust, and the AMALGAMATIONS – David Josland Currently, a high percentage of amalgamation applications Webinar 11 Feb TAXATION complications start. The tax treatment of distributions can GETTING THE APPLICATION Calantha Juneja are being rejected because of, often, simple drafting vary widely from the New Zealand treatment. Terry will make RIGHT errors. This webinar will outline the key common errors 1.5 CPD hours sense of this for you by examining these issues, the potential that the New Zealand Companies Office in Auckland are potholes for your clients and what can be done to mitigate 1.5 CPD hours encountering and will consider some effective ways to avoid the potential impact. He will steer you on the right course of your applications being rejected. It will provide practical action in different jurisdictions such as Australia, the UK and tips to assist you in reviewing your documentation before the US. submission and supply compliant wording for you to update your short-form amalgamation templates for future use. RELATIONSHIP PROPERTY Toni Brown The PRA provides a framework for the determination of the Auckland 25 Feb – DEBTS AND THIRD The Hon Paul Heath QC division of relationship property of a married or de facto Live Web Stream 25 Feb UPDATE ON CONTRACT Paul David QC Contract law is at the heart of commercial law and practice. Dunedin 17 Mar PARTIES couple. Problems arise when debts or third-party interests must be taken into account. This seminar will provide insight A sound up-to-date knowledge of the area is essential for Christchurch 18 Mar into the way in which third parties, including the Official 4 CPD hours all lawyers. This seminar will address recent developments 2 CPD hours in contract law in a practical manner, including: Formation; Wellington 19 Mar Assignee of a bankrupt spouse/partner may invoke the Act Interpretation – drafting mistakes and rectification; Estoppel Webinar 19 Mar for their benefit. 4 CPD hours – no oral variation clauses; Implied terms; Obligations of Hamilton 24 Mar good faith; Mistake, misrepresentation, FTA, disclaimer LAWYER FOR CHILD Wendy Kelly An integral part of the New Zealand Family Court system is Wellington 25-27 Mar Auckland 25 Mar clauses and reasonableness; Exception clauses; Unfair Lisa Samusamuvodre the state-funded legal representation of children. Lawyers entrusted with these duties must possess a range of skills contract terms; Relief from forfeiture; Liquidated damages, 18.5 CPD hours April Trenberth penalties; and Recovery and assessment of damages. to enable them to represent children effectively in care Jason Wren and protection cases, in addition to facilitating the new TAX SNAPSHOT FOR NON- Chris Harker How does tax impact on transactions and commercial Auckland 3 Mar emphasis on children’s participation in respect of parenting arrangements. This workshop has been designed to ensure SPECIALISTS Tim Stewart agreements for your clients? This seminar will help ensure Live Web Stream 3 Mar that you have a robust understanding of how tax can impact participants have the opportunity to develop the full range Fred Ward of skills, knowledge and attitudes required to carry out the 2 CPD hours on commercial transactions for your clients. role effectively. IN-HOUSE CRIMINAL CPD TOP-UP DAY Chair: Jane Meares Designed for the busy in-house and government practitioner Wellington 12 Feb DUTY LAWYER TRAINING Local Presenters Duty lawyers are critical to the smooth running of a District Various Feb-Oct IN-HOUSE & GOVERNMENT to “top-up” your years’ CPD. A one-day programme offering Live Web Stream 12 Feb PROGRAMME Court list. Here is a way to gain more of the knowledge and 7 hours face-to-face CPD and a bonus 3 hours of online CPD skills you need to join this important group. You MUST be 7 + 3 CPD hours for you to complete when and where it suits you. Offered in 11 CPD hours prepared to do sufficient pre-course study and preparation Wellington and by live web stream. for these sessions. *CPD hours may vary, see website PROPERTY & TRUSTS

EVIDENCE AND TRIAL Chris Patterson Dispute resolution has never been as complex as it is today. Christchurch 15 Feb CONSTRUCTION – CASE Anna Crosbie Following on from a popular session at the 2019 Webinar 19 Feb LAW UPDATE Construction Law Intensive, Anna and Polly will consider PREPARATION Successful outcomes only happen with meticulous planning Wellington 22 Feb Polly Pope and skilful execution. Whether working in a civil or criminal some of the key developments in the law of penalties and Auckland (Full) 7 Mar the practical implications for your clients. This webinar 3 CPD hours context, collecting, organising and using evidence to best 1.5 CPD hours effect are the essential skills of every litigator and dispute will focus on developments affecting the interpretation resolution practitioner. This practical workshop covers the and drafting of construction contracts in New Zealand. core skills of evidence, proof and factual analysis (EPF), as Topics covered will include: the enforceability of liquidated well as approaches to investigations, the development of damages clauses; decisions on the interpretation of standard case theory and how to manage the paperwork associated form termination clauses and the interpretation of popular with any case. special conditions; and possible legislative inroads into freedom of contract in the commercial context. INTRODUCTION TO Jo Wickliffe This practical two-day workshop will cover the fundamentals Auckland 4-5 May CRIMINAL LAW PRACTICE of being an effective criminal lawyer. The course addresses Wellington 18-19 May PROPERTY – CONVERTING Joanna Pidgeon Cross leases are a popular form of subdivision going back Webinar 24 Feb the steps that lawyers new to criminal practice need to CROSS LEASES TO to the 1960s where the land and buildings are owned by the Christchurch 3-4 Aug 13 CPD hours know about to prepare for and run a Judge-alone trial in the FREEHOLD & UNIT TITLE occupants as tenants in common and the flats leased. This District Court. type of ownership has the potential to lead to significant 1.5 CPD hours issues. This webinar will take a practical approach in FAMILY examining the factors that you need to consider when advising your clients whether it is viable to seek freehold DRAFTING WILLS – S 55 The PPPR Act 1988 provides authority to the Court Auckland 18 Feb Theresa Donnelly title, and, if so, the steps to take in order to achieve this. PPPR ACT APPLICATIONS to promote and protect people and under s 55 of this Henry Stokes Live Web Stream 18 Feb It will also consider the situations when it may be more legislation and authorised property manager can apply appropriate to convert a property to unit title. Case law will to the Court to execute a will on behalf of a protected 2 CPD hours be examined, and company lease conversions will also be person. This seminar will look at; when a s 55 will should be discussed. This webinar also looks at conversion issues for contemplated, the entry level jurisdiction and legal tests, converting company lease schemes. the drafting exercise, the potential inclusion of charities, what the application needs to cover, and will conclude with insights into the management of s 55 applications. AGREEMENT FOR SALE Barbara McDermott Practitioners and legal executives can add real value for their Webinar 11 Mar & PURCHASE – VENDOR Gill Whinray clients by providing proactive and practical advice to both WARRANTIES vendors and purchasers regarding the scope and application of the vendor warranties in the Agreement for Sale and 1.5 CPD hours Purchase – prior to the signing of the agreement and when potential breaches arise, before or on settlement.

To contact us | Visit: www.lawyerseducation.co.nz For our FULL CPD calendar with programme details see www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Online registration and payment can be made at: www.lawyerseducation.co.nz

FAMILY

TRUSTS AND OFFSHORE Terry Baucher Living and working overseas is a New Zealand way of life. Webinar 20 Feb BENEFICIARIES – Add being a beneficiary of a New Zealand trust, and the TAXATION complications start. The tax treatment of distributions can vary widely from the New Zealand treatment. Terry will make 1.5 CPD hours sense of this for you by examining these issues, the potential potholes for your clients and what can be done to mitigate the potential impact. He will steer you on the right course of action in different jurisdictions such as Australia, the UK and the US.

RELATIONSHIP PROPERTY Toni Brown The PRA provides a framework for the determination of the Auckland 25 Feb – DEBTS AND THIRD The Hon Paul Heath QC division of relationship property of a married or de facto Live Web Stream 25 Feb PARTIES couple. Problems arise when debts or third-party interests must be taken into account. This seminar will provide insight 2 CPD hours into the way in which third parties, including the Official Assignee of a bankrupt spouse/partner may invoke the Act for their benefit.

LAWYER FOR CHILD Wendy Kelly An integral part of the New Zealand Family Court system is Wellington 25-27 Mar Lisa Samusamuvodre the state-funded legal representation of children. Lawyers entrusted with these duties must possess a range of skills 18.5 CPD hours April Trenberth to enable them to represent children effectively in care Jason Wren and protection cases, in addition to facilitating the new emphasis on children’s participation in respect of parenting arrangements. This workshop has been designed to ensure participants have the opportunity to develop the full range of skills, knowledge and attitudes required to carry out the role effectively. IN-HOUSE

CPD TOP-UP DAY Chair: Jane Meares Designed for the busy in-house and government practitioner Wellington 12 Feb IN-HOUSE & GOVERNMENT to “top-up” your years’ CPD. A one-day programme offering Live Web Stream 12 Feb 7 hours face-to-face CPD and a bonus 3 hours of online CPD 7 + 3 CPD hours for you to complete when and where it suits you. Offered in Wellington and by live web stream.

PROPERTY & TRUSTS

CONSTRUCTION – CASE Anna Crosbie Following on from a popular session at the 2019 Webinar 19 Feb LAW UPDATE Polly Pope Construction Law Intensive, Anna and Polly will consider some of the key developments in the law of penalties and 1.5 CPD hours the practical implications for your clients. This webinar will focus on developments affecting the interpretation and drafting of construction contracts in New Zealand. Topics covered will include: the enforceability of liquidated damages clauses; decisions on the interpretation of standard form termination clauses and the interpretation of popular special conditions; and possible legislative inroads into freedom of contract in the commercial context.

PROPERTY – CONVERTING Joanna Pidgeon Cross leases are a popular form of subdivision going back Webinar 24 Feb CROSS LEASES TO to the 1960s where the land and buildings are owned by the FREEHOLD & UNIT TITLE occupants as tenants in common and the flats leased. This type of ownership has the potential to lead to significant 1.5 CPD hours issues. This webinar will take a practical approach in examining the factors that you need to consider when advising your clients whether it is viable to seek freehold title, and, if so, the steps to take in order to achieve this. It will also consider the situations when it may be more appropriate to convert a property to unit title. Case law will be examined, and company lease conversions will also be discussed. This webinar also looks at conversion issues for converting company lease schemes.

AGREEMENT FOR SALE Barbara McDermott Practitioners and legal executives can add real value for their Webinar 11 Mar & PURCHASE – VENDOR Gill Whinray clients by providing proactive and practical advice to both WARRANTIES vendors and purchasers regarding the scope and application of the vendor warranties in the Agreement for Sale and 1.5 CPD hours Purchase – prior to the signing of the agreement and when potential breaches arise, before or on settlement.

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 Online registration and payment can be made at: www.lawyerseducation.co.nz

OTHER PRACTICE AREAS

THE ART OF HAPPINESS Jonathan Robinson Stress is commonplace in today’s modern world and impacts Christchurch 19 Mar on our feelings of happiness. The field of positive psychology Wellington 23 Mar 6.5 CPD hours provides effective methods and ideas for helping people to be happier, healthier, and better at what they do. This Auckland 26 Mar workshop will show you how to: use simple methods to improve your own and your co-worker’s level of happiness and productivity; identify the key behaviours that get in the way of happiness and productivity; and reduce your sick days, enjoy life more, and handle stress more effectively.

SPEAKING WITH IMPACT – Jonathan Robinson The importance of being an effective speaker with the Christchurch 20 Mar TALKING SO THAT PEOPLE ability to get your ideas across to either a single person, Wellington 24 Mar LISTEN or an audience, cannot be over-emphasised and is a major advantage to becoming successful in your career. This Auckland 27 Mar 6.5 CPD hours workshop will teach you how to organise and present a good speech as well as teaching you ways to overcome your nervousness and stress. PRACTICE AND PROFESSIONAL SKILLS

CPD TOP-UP DAY Various Designed for the busy general practitioner to “top-up” Christchurch 11 Feb GENERAL PACTITIONER your years’ CPD. A one-day programme offering 7 hours Wellington 12 Feb face-to-face CPD and a bonus 3 hours of online CPD for you to complete when and where it suits you. Offered in Live Web Stream 12 Feb 7 + 3 CPD hours Christchurch, Wellington, Auckland and by live web stream. Auckland 13 Feb

STEPPING UP – Director: All lawyers wishing to practise on their own account whether Auckland 1 (full) 13-15 Feb FOUNDATION FOR Warwick Deuchrass alone, in partnership, in an incorporated practice or as a Christchurch 14-16 May PRACTISING ON OWN barrister, will be required to complete this course. Auckland 2 23-25 Jul ACCOUNT Wellington 17-19 Sep 18.5 CPD hours Auckland 3 5-7 Nov

TRUST ACCOUNT Philip Strang How do you keep a trust account in good order? This practical Invercargill 17 Mar ADMINISTRATORS Melanie Ashall training is for new trust accounting staff, legal executives, Wellington 18 Mar legal secretaries and office managers. Palmerston North 19 Mar 4 CPD hours Tauranga 31 Mar Auckland 1 1 Apr Auckland 2 2 Apr Christchurch 7 Apr

TRUST ACCOUNT Philip Strang Under the Financial Assurance Scheme all practices operating Auckland 1 16 Apr SUPERVISOR TRAINING Melanie Ashall a trust account must appoint a qualified trust account Hamilton 14 Jul PROGRAMME supervisor. A candidate must be a lawyer and must pass the NZLS trust account supervisor assessments, which take Wellington 22 Sep Auckland 2 3 Nov 7.5 CPD hours place during a full day programme. The training consists of self-study learning material (approx. 40-50 hours) to help you Christchurch 10 Nov prepare for the assessments.

CPD – A Few Hours Short? Check out our Online CPD 24/7 Access from your Device

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111

To contact us | Visit: www.lawyerseducation.co.nz Email: [email protected] | Phone: CLE information on 0800 333 111 LAWTALK 936 · February 2020 LIFESTYLE

LIFESTYLE

1 2 3 4 5 6 7 8 9 10

A New 11 12 13 Zealand 14 15 16 Legal 17 18 19 20 21 Crossword 22 23 24 25 26 27 28 29

SET BY MĀYĀ 30 31 32 33 34

36 37 38 39

Across answers contain a term 41 42 43 related to 30 in some way, which is ignored in the wordplay except 44 45 in 13, 30 and 41.

Across Across continued 10 Excuse to right falsehood about 1 Regular moolah we own from a 36/19 Leroy almost stood for a First Lady, or vice versa (7) sitcom (definitely not "Porridge") medieval French poem (2,5,2,2,4) 16 Wombles in movement for (4,3,5) 38 Headgear worn by some bottles gender equality? (6,3) 8 Define limits to exclude(5) (5,4) 18 Nearly ease out toward surfer's 11 King and Queen's underwear (8) 41 Sentence obtained after a destination (3) 12 Gore conduit? (5) change of 13 (4) 20 Hitting it off with a daydreamer, 13 Opener traditionally includes 42 Due to nothing? (5) say (5) cake, or vice versa (4) 43 Brian, a musician - yes, 21 Religious type puts religious 14 Reckon half-hearted return for responsible for this 1980 song (5,3) instruction in a good way (5) 1959 Nobel laureate (4,5) 44 Traditional way to prepare food 23 Valued enough to have used as 15 If it's French, it's French for one (5) foundation for shop? (4,5,2) desiccant (6,3) 45 Metallophone used to announce 24 Titus' response to pun? (5) 17 Somewhat leading the paper? (5) Jennifer's striptease (12) 25 Deed makes a sound like a ball 19 See 36 hitting a bell (5) 21/25 Day during which French Down 26 King Neputune, say, almost used King (who?) mixed drink (6,8) 2 Exponent first to enter a state to smooth sunken panels (6,5) 22 Small chap will slowly grow of unreasoning fear of Hegelian 29 I hear you are left with surfer's taller (10) philosophy (11) destination (3) 25 See 21 3 No Scots hold 30's covering (7) 31 Send up Sir Henry about layer 27 Bitterness and pain? Not good (8) 4 Slack cut for Mack? (6) being related to a European river (7) 28 Run ended, caught up for 5 Has Lawrence Rush? (5) 32 Shifting friend, partly orange (7) farewell drink (7,3) 6 Posh millitary officer - that's 34 Hold broken lance (not a snake) (7) 30 Electoral system's active? Little strange (4) 35 Smack aviator with large bill reason for it being so here (6) 7 Dawn's organisation to rebel (7) around one (6) 32 Snowman's creator finding 8 How you might greet David 37 Dip Muhammad X held (5) Gilbert and Sullivan's sources (6) Jason's character in India (5) 39 Double noise of burn? (5) 33 Marine article supplied by French 9 Polish a small projection, say, for a 40 Selection of adagios provide fee (2,3) Comanche War Chief (7,4) for currency exchange (4)

97 LIFESTYLE February 2020 · LAWTALK 936

LIFESTYLE Law on the Telly: The Court Report

BY CRAIG STEPHEN

Thursday nights (at 9:30pm), and The Court Report was fronted was repeated three times over the by barrister Greg King with 80 next few days. programmes being made between 2010 and 2012, discussing and “This is real life” ▴ Greg King dissecting the crucial legal issues King, who was also the show’s of the day. executive producer, made it clear The format was a panel discus- in the show’s trailer what would Among the episodes, one fea- sion, hosted by King (and later by make The Court Report distinctive. tured the retired Supreme Court Linda Clark) with leading experts, “The criminals don’t always get Justice Bill Wilson QC, who was players and commentators. The aim caught; the evidence isn’t always interviewed for the first time on was to ‘go behind the headlines’ conclusive; the sentence doesn’t the circumstances leading to his of the legal news stories of the always seem fair; and psychics resignation. day. It was in in its way, unique, don’t always find out what really Another episode looked at science where legal programmes tend to happened. Because this is real life and the law. be fictional, and some would say and not a TV drama. Law affects “As far as crime fighting tools go, detached from reality. us all, but it can be hard to work DNA is like a gift from heaven for However, its ability to develop out what’s real and what’s make investigators but are we too easily a large following was limited by believe. blinded by science and the dazzle being shown on the now defunct “We’ll go inside the minds of of a white lab coat?” the promo for TVNZ7 channel. After being filmed the lawmakers with experts who this particular episode promised. at Victoria University of Wellington navigate the world of legislation, “While science can sometimes law school, the programme aired on we how our court system works.” prove who did it, or who didn’t do it as we discovered in the David Dougherty case, it’s not always the smoking gun we want it to be. Real life is a far cry from CSI.” That programme also looked at Solution to December Across the Bain killings and the murders 2019 crossword 1. Lydia Ko, 5. Ten-spot, of Eugene and Gene Thomas. 9. Absenting, 10. Woods, The one-hour special L Y D I A K O T E N S P O T 11. Ideal, 12. April fool, 13. Gold, E I R L I E H U 14. Ace of Clubs, 18. Side issues, The 50th episode was a one-hour A B S E N T I N G W O O D S D P O G E B T S 19. Jack, 22. Checkmate, 25. Auden, special filmed in Christchurch I D E A L A P R I L F O O L 26. Extra, 27. Extempore, 28. Typeset, in July 2011. The episode looked N L D R A E 29. Scrunch. into the myriad of legal problems G O L F A C E O F C L U B S E N H M K P and issues arising out of the S I D E I S S U E S J A C K Down earthquakes. I C L P N E 1. Leading, 2. Dispelled, 3. Arnold, Other guests included the then C H E C K M A T E A U D E N K A L V T L D N 4. Oligarchs, 5. Tiger, 6. New black, Minister of Justice, Attorney- E X T R A E X T E M P O R E 7. Photo, 8. Tussles, 15. Omelettes, General and many other MPs, S U U R E E W T T Y P E S E T S C R U N C H 16. Up and down, 17. Nicklaus, present and past, including Sir 18. Sickest, 20. Kenneth, 21. Palmer, Geoffrey Palmer. A number of 23. Eat up, 24. Avert. judges also featured as well as

98 LAWTALK 936 · February 2020 LIFESTYLE

LIFESTYLE Lyon: a culinary gem amid a violent history

BY JOHN BISHOP

Convention that ruled France. ▴ Linda Clark Lyon is a gem of a city. Set on a Paris sent the Revolutionary Army hilly site, it’s where the Rhône and to quell dissent to its programme Saône rivers meet – making it a and 1,684 people are recorded as legal professionals such as QCs. It natural military and commercial being shot or guillotined. also featured Garth McVicar of the junction and an attractive location In 1831, 1834 and 1848 there were Sensible Sentencing Trust and Gill in its own right. uprisings in Lyon led by the silk Elliott, father of Sophie Elliott. Its long history dates back to workers known as Canuts. In the “Public debate is usually driven Roman times when it was called first revolt the silk workers sought by emotion and uninformed com- Lugdunum and was the capital of a minimum price to counter the ment, and is centred on blaming Roman Gaul. By 1032 it was part of effects of falling demand and lower people rather than understanding the Holy Roman Empire but was prices for silk products. The manu- the underlying principles of law,” annexed to France in 1312. facturers refused and the silk work- said King at the start of the series. It is France’s third city (after ers revolted and seized the city in a “Often people simply don’t know Paris and Marseilles), the home of battle that had about 600 casualties what the law says, and why, and French gastronomy, centre of the including 169 deaths. Paris sent in that has a huge effect on the level Marist movement, and a city with the army which peacefully retook of the debate.” a complex and violent social history. the town and plans for a minimum After 68 episodes, King quit as The city flourished in the price were dropped. presenter to take up an Eisenhower Renaissance period; commercial In 1834 the manufacturers wanted Fellowship. After his departure the fairs started in 1464 when Italian to cut wages which the silk workers, show was hosted by journalist and bankers arrived, and from 1473 it who had formed numerous secret new lawyer Linda Clark. Fittingly, was one of the most active printing societies and had absorbed the ideas the final episode of the show centres in Europe. In the 17th cen- of French socialist thinker Henri featured King as the last guest, tury it was the silk manufacturing de Saint-Simon, resisted violently. discussing his experiences on his capital of Europe. Again, they were defeated. After a Eisenhower Fellowship. TVNZ7’s mass trial, about 10,000 people were decline in July 2012 also saw the Gastronomic capital deported or imprisoned for lengthy end of The Court Report, after more of France periods. than 80 episodes. It is known as a centre of the arts There was a further uprising in Greg King died on 2 November and culture, and most particularly 1848 (most of Europe was ablaze 2012. for being the gastronomic capital with revolutions that year), but it Unfortunately, there are no epi- of France, a title bestowed on it by is the 1831 revolt that is best remem- sodes of the show available to see on the gourmet Curnonsky in 1934, bered and commemorated in the TVNZ’s online on-demand service although its culinary reputation silk museum in the city. and none appear on YouTube. goes back to Roman times. This was undoubtedly a show that At the time of the French “Butcher of Lyon” served a great deal of purpose but Revolution, Lyon was a centre In World War II Lyon was a centre given how constrained television of monarchist resistance and of the French resistance movement. is today, it is unlikely it could be later opposition to the new Nazi commander Klaus Barbie, “the repeated. ▪ French Republic and the National Butcher of Lyon”, is thought to be

99 LIFESTYLE February 2020 · LAWTALK 936

▸ An old silk loom in Lyon, a city once the capital of the silk industry in France

responsible for the deaths of 4,000 people including Jean Moulin, a handsome and dashing resistance leader. At the end of the war Barbie was captured but was recruited into American and later West German intelligence to work against the communists. As a reward he was sent to Bolivia, but the French government eventually managed to extradite him to France where he was convicted of war crimes in 1987 and he died in a French jail aged 77, four years into a life sentence. On the hill above the town is the Basilica of Notre-Dame de Fourvière, which is dedicated to the Virgin Mary. It has a large statue of Mary with child positioned over the altar instead of the usual Christ on a cross. The two Christ figures are much smaller and positioned off to each side of the altar, which conventional American Catholics on my most recent visit found both odd and remained to titivate the exterior. Gauls and controlling the wine somewhat distressing. Most recently a statue of Pope trade – all imported back then. Lyon is the epicentre of the Marist Benedict, a great believer in the power Coming from the north or the east, movement which makes the mother of the Virgin, was installed immedi- Lyon is a gateway to wine country; of Jesus almost as important as her ately outside; further testimony to the light and flavoursome reds of son. the power of the Marist movement Beaujolais and then the deeper The basilica was built after the within the church. more complex reds of Burgundy Franco-Prussian War of 1870-71. The Outside the basilica visitors can and the majestic whites of Beaune good citizens of Lyon, scared that take in a panoramic view of the city and Chablis (and Montrachet) and the Prussians would wreck the city, including three skyscrapers known then further south to Provence and prayed to the Virgin to protect them. locally as the pencil, the sharpener its characteristic rosé style whites In fact, the Prussians did not and the rubber because, at a dis- – pink in complexion but tasting come close and marched instead tance, their shape and positioning earthy white. on Paris, but Mary got the credit for in relation to each other make them Numerous tours are available, and saving the city and a public appeal look like a box set of school kids writ- I spent half a day at a typical vine- raised funds to build a church in ing equipment. (Other buildings also yard where a banker from Paris was dedication to her. have nicknames including the cheese converting the place into a purely Inside are extraordinarily elabo- grater and the death star). organic vineyard. rate and beautiful pictures, carvings Back in the 16th century the Dutch and decorative religious art eclips- Wine country humanist Erasmus declared: “It is ing even some of the most lavishly In the 19th century the French not better treated at home than it is painted baroque style churches, but writer Stendhal remarked: “I know in Lyon in a hotel. The mother first outside the stone is rather rough- of only one thing that one does very comes to greet you, begging us to hewn and plain by comparison. well in Lyon, one eats admirably and be in a good mood and to be pleased Apparently other than building better than in Paris.” that we will serve you. The table is the basilica itself, most of the The culinary tradition goes back truly sumptuous.” money raised was spent on art and 2,000 years to when Lyon was The “mothers” are one of the decoration for the interior and none Lugdunum, capital of the Three cornerstones of the local culinary

100 LAWTALK 936 · February 2020 LIFESTYLE

scene and to them is owed much is now heavily oriented towards the ▴ (Left) Inside the basilica in Lyon, a lavish display of of what makes Lyonnaise cuisine tourist trade. religious art distinctive. In the 18th century they (Top) The Basilica of Notre Dame de Fourvievre cooked in the great houses of the Gnafron looks out over Lyon bourgeoisie, but later had their own The origin of bouchons lies in the (Bottom) Beaujolais wine country establishments. small inns visited by silk workers passing through Lyon in the 17th and Three Michelin Stars 18th centuries. Nowadays certified I arrived without a booking and were seated at a table The greatest “mother” is Eugénie restaurants display a marionette for two. Service was as good as anywhere else in France Brazier the first woman to have a called Gnafron, (in puppetry the and better than some more expensive places. restaurant with three Michelin stars. companion of Guignol) who has I started with a dish of what appeared to be thick She fostered a generation of great a glass of wine in one hand and a gravy in which a poached egg had been placed in such chefs including Paul Bocuse, himself napkin in the other symbolising a way that the yolk looked like an enormous yellow eye a legend in the cuisine industry. the pleasures of dining. The agreed protruding from a muddy background. The bouchon is a small intimate standard was that the food was That said, the gravy-like mixture was very tasty and restaurant that serves traditional to be locally sourced, nutritious, filling. A piece of bavette steak followed with lyonnaise lyonnaise food. According to simply prepared and cheap. potatoes and a green vegetable. L’Association de défense des bou- I ate at an accredited bouchon I thought that quite a good meal already, only to chons lyonnaise: “the emphasis is which offered four different menus be presented with a cheese course, which looked like not on haute cuisine but rather on starting at €15 for a four-course whipped white butter and tasted like a young comté, a convivial atmosphere and a per- meal including cheese. There were France’s single most popular cheese. sonal relationship with the owner”. choices in each menu for starters, A fruity dessert followed but I could have had meringue The association certifies res- mains and desserts, and one could and other delicacies. This was €25 which I thought to taurants seeking accreditation as choose a dish from a lower-priced be a bargain. I had certainly paid more elsewhere and authentic bouchons annually, and menu if something particularly took got less, and of a lower quality. ▪ currently there are about 20 such your fancy. establishments although many The room was crowded with John Bishop visited Lyon at his own expense. His travel more trade as such. The whole sector about 40 diners, but my wife and writing can be viewed at  www.eatdrinktravel.co.nz

101 TAIL END February 2020 · LAWTALK 936

TAIL END Butterflies and the law

Um, President Trump… what Congress has since barred the use of appropriated funds to about the butterflies? build a wall along the Butterfly Center. However, in another setback for the butterflies, the NABA sought a restraining order US President Donald Trump’s efforts to build a wall along the in December 2019 against We Build the Wall, a group of allies of Mexican border have resulted in legal action by individuals and President Trump which solicits crowd funding to build sections of organisations, including the North American Butterfly Association the wall on private property. The NABA said planned construction (NABA). The NABA’s 100-acre Butterfly Center in South Texas of an 18-foot tall bollard barrier along a 3-1/2-mile stretch of the is alongside the Rio Grande and part of a designated wildlife Rio Grande would worsen erosion and flood a preserve where corridor. In July 2017 the Center’s Executive Director Marianna butterflies dwell. However, on 9 January 2020, Southern District Wright discovered a work crew on the property armed with of Texas Judge Randy Crane denied the restraining order request, chainsaws and other machinery which they were using to cut saying all evidence of potential injury was “highly speculative”. down trees and widen a road. She also found surveyor flags elsewhere on the property. The Customs and Border Protection agency eventually owned up to starting the work, said it was The Bristol Butterfly Killer totally justified in doing so, and is alleged to have begun a concerted campaign of confronting and harassing Center staff. The Large Blue butterfly became extinct in the United Kingdom On 11 December 2017 the NABA sought declaratory and injunc- in 1979. It’s since been carefully reintroduced at several sites tive relief in the US District Court for the District of Columbia. It and is one of six butterfly species where capture, possession or claimed construction of the proposed wall along the southern killing is illegal under the Conservation of Habitats and Species border would cut off two-thirds of its property, effectively Regulations 2010. destroying the Butterfly Center and leaving behind a 70-acre On 18 June 2015, Phillip Cullen was spotted climbing over no man’s land between the proposed border wall and the Rio a locked fence to access the Gloucestershire Wildlife Trust’s Grande. The court was asked to block the administration from Daneway Banks nature reserve. He was seen trying to catch building the wall until it complies with the National Environmental a Large Blue in a net. When confronted, he claimed he was Policy Act, Endangered Species Act and the implementing regu- attempting to catch parasitic wasps. However, the next day at lations for those laws. The action was very quickly dismissed, with another nature reserve, the Collard Hill reserve, he was seen to District Judge Richard Leon noting that Congress had granted the net and kill a Large Blue. Secretary of the Department of Homeland Security the authority Officers of the National Wildlife Crime Unit searched Cullen’s to waive all legal requirements that in her sole discretion are house several months later and found an illegal collection of necessary to build the wall. The NABA has appealed. some of the UK’s rarest butterflies. These included two Large

Notable Quotes ❝ As part of a wider set of guidelines covering social activities, we have recommended to partners, directors and business leaders that they designate a non-drinking role to a senior ❝ One thing you plainly failed to grasp in your legal education person to assist the smooth running of our social events.❞ Mr Blacker, is that the rule of law applies to us all – it has — A statement from English “Magic Circle” firm Linklaters that no preferences or favourites and those who abuse it are it will now have a sober supervisor at all social events. inevitably found out, as you were.❞ — English Crown Court Judge Paul Lawton, sentencing former ❝ If your clients really want to hit you, they’ve got plenty of lawyer Alan Blacker for benefit fraud after he claimed a opportunities to do so and you couldn’t have it any other disability living allowance, usually available to people with way. You can’t not have contact with your client.❞ no legs or feet from birth or due to amputation. CCTV footage — Christchurch lawyer and new QC Tony Greig after he was at the trial showed him walking freely up and down stairs in punched by his client in the Christchurch District Court. The a courthouse. client had been convicted of assaulting a prison officer.

102 Blue Specimens, one labelled “DB” and the other “CH”. Police Chief’s permission In April 2017 Mr Cullen went on trial at Bristol Magistrates’ Court, needed to move butterflies charged with the illegal capture, killing and possession of Large Blues. He unsuccessfully argued that the labels DB and CH stood Heading south for the winter in Mexico (over the Wall!), thousands for “dark blue” and “cobalt hue” rather than Daneway Banks and of monarch butterflies pause for a rest in the Californian city of Collard Hill. He was found guilty, given a six-month suspended Pacific Grove every year in October. The city has an ordinance sentence and ordered to pay costs. The Gloucestershire Wildlife to protect them, with a fine of $1,000 for breach: Trust said it was the first UK conviction for collecting a butterfly “It is declared to be unlawful for any person to molest or and “a breakthrough in the battle against wildlife crime”. interfere with, in any way, the peaceful occupancy of the mon- Mr Cullen also pleaded guilty to other offences related to pos- arch butterflies in their annual visit to the city of Pacific Grove, session of rare butterflies and moths, and he was made subject to a and during the entire time they remain within the corporate Criminal Behaviour Order after shouting outside the court “See you limits of the city, in whatever spot they may choose to stop in, all on the sites next summer”. The Order prevents him from visiting provided, however, that if said butterflies should at any time three nature reserves for five years. The Butterfly Conservation swarm in, upon or near the private dwelling house or other Organisation also immediately revoked his membership. buildings of a citizen of the city of Pacific Grove in such a way A Department of Conservation report in 2015, Conservation as to interfere with the occupancy and use of said dwelling status of New Zealand butterflies and moths, found that of 202 and/or other buildings, that said butterflies may be removed, New Zealand butterflies and moths, 66 were threatened, 77 at if possible, to another location upon the application of said risk, 12 not threatened and 47 data deficient. citizen to the chief of police.” ▪

❝ Word by word, picture by picture, I put everything important ❝ Sir Joe Williams has brought a unique blend of legal I wanted children whose moms are lawyers to know about intellectual rigour and tikanga Māori to his present role, their moms. I wrote the book so that moms who are and so reflects New Zealand in the 21st century. Having been lawyers would read it with their kids night after night and a Judge of the High Court since 2008, and of the Court of be reminded of their accomplishments.❞ Appeal since 2018, it was only fitting he became a Judge — Kentucky lawyer Michelle Browning Coughlin explains why of the Supreme Court earlier this year, and now is a worthy she wrote a children’s book, “My Mom is a Lawyer”. recipient of this knighthood.❞ — Justice Minister Andrew Little. ❝ The new court will provide both victims and offenders and other users with access to wrap-around services which ❝ There’s two parts of it that are true – my name and that support, restore and rehabilitate, through the co-location I was in prison. Half of it was made up by police and the of social sector agencies and the community on the premises. other half was made up by myself… I’m not giving any more This is a major milestone in ensuring less offending, less evidence. I’m not swearing the oath. Go and catch the real reoffending, and fewer victims of crime who are better killers, rather than having a prosecution based on lies.❞ supported.❞ — Scott Marshall, prison inmate, tells the High Court in — Justice Minister Andrew Little announces that a new Palmerston North that he will not be giving evidence about courthouse in Tauranga for delivery by mid-2025 will be a an alleged confession to murder made to him in prison (North model for future courthouse design. and South, December 2019).

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