From the President – Paul Radich QC

It has been a time of real change, certainly in health, housing and travel. Our 20 DHBs are to be replaced by one national organisation, Health NZ, together with a new Māori Health Authority, the Government has announced a $3.8 billion housing acceleration fund to pay for infrastructure and a $1.2 billion fund for Kāinga Ora land purchases and, New Zealanders and Australians can once more enjoy quarantine-free travel between our countries on a flyer-beware basis.

In other areas, notably climate change and international human rights, significant change is needed. More on that a little later. In the meantime, here at the New Zealand Bar Association, we have undertaken a number of changes ourselves. My monthly member updates have taken over detailing our numerous activities, so in this issue of At the Bar I am going to focus for the most part on our Council and one of our Committees in particular.

Our Council and Committees

A notable feature of our Council is the amount of work it undertakes. We meet every month – two meetings are kanohi ki te kanohi (in person), and the balance are held by Zoom. The meetings rotate between full day meetings, which deal with the Association’s accounts, business, governance and, on alternative months, policies, and half day meetings which proceed on a non-agenda/blue sky basis to focus on deliverables and initiatives.

The Council’s meeting schedule and the level of work for its members places heavy, but professionally satisfying, demands on members. We owe them a real vote of thanks. A list of our Council members can be found on our website.

Recently, the Council met in Wellington at the stunning new offices of our sponsor partner, MAS, with a sparkling Wellington Harbour as our backdrop. It was a pleasure to welcome MAS Chief Executive, Martin Stokes to the beginning of our meeting and to learn a little more about the way in which the 100 year old company was born in New Zealand, has grown with the country and the way in which it delivers a socially responsible service with an emphasis on professional groups. Martin’s pride in MAS’s approach and its journey is well justified.

The primary purpose of the meeting was to confirm the creation and composition of our new committees and to develop achievable goals, or deliverables, for each of them. To ensure that our work is focused and that deliverables for our members are readily achieved, we have reduced the number of committees from 14 to six, including several sub-committees.

The new committees are:

• Advocacy – to promote access to justice and the rule of law and to submit on legislative developments

• Te Ao Māori – to educate and inform the organisation and its members

• Diversity and Inclusion – to embed gender equity and diversity initiatives and outcomes

• Education – to deliver advocacy training, conferences and webinars

• Membership and Wellbeing – to provide collegiality, support and benefits

• Specialist Areas – to provide an umbrella for our Criminal Committee, Commercial Bar Committee and for the development of other specialist areas

If you would like to know a little more about the committees and what they do, please look at our committees page on our website. I extend my sincere thanks to all of our members who have put up their hands to serve on these committees. They have all committed themselves to hard work, for the benefit of us all. I extend my thanks, also, to our outgoing committee members for their considerable contributions.

L-R Back row: Stephen Layburn, Richard McGuire, Felix Geiringer Middle row: Setareh Stienstra, Sam Jeffs, Phillip Cornegé, Taryn Gudmanz, Paul Radich QC, Iswari Jayanandan Front row: Quentin Duff, Anne Toohey, Esther Watts, Maggie Winterstein and James Rapley QC Absent: Kate Davenport QC, Simon Foote QC, David O’Neill and Tiho Mijatov.

Te Ao Māori Committee

I want to focus on the role, and the work, of this committee in this column. I will discuss the work of our other committees in later offerings.

L-R Back row: Stephen Layburn, Richard McGuire, Felix Geiringer Middle row: Setareh Stienstra, Sam Jeffs, Phillip Cornegé, Taryn Gudmanz, Paul Radich QC, Iswari Jayanandan Front row: Quentin Duff, Anne Toohey, Esther Watts, Maggie Winterstein and James Rapley QC Absent: Kate Davenport QC, Simon Foote QC, David O’Neill and Tiho Mijatov. The role of the committee is to seek knowledge and to find opportunities to educate the Bar Association and its members on ways in which we can live up to our Treaty obligations and, more holistically, on ways in which we can come to view our work in the law, and the law itself, through a Treaty lens and from a te ao Māori perspective. The Committee will support members to achieve these objectives by arranging guidance and training from those bodies who have the right qualifications and credentials to deliver it.

The Committee does not presume to be a voice of Māori. And neither is it about advocacy. There are other organisations (such as Te Hunga Rōia Māori o Aotearoa) that have this kaupapa through their constituency and their knowledge. We acknowledge them and their work.

The work of the Te Ao Māori Committee is crucial for us. Many members, from different practice areas and backgrounds have told us that they are discovering that they need to know a good deal more about te ao Māori and about tikanga – in the law and its institutions and in public life in general. We have had several requests to facilitate this learning. And the best way for us to do that is to consult with experts and to find ways of conveying the knowledge they have shared with us.

The judiciary, through the Institute of Judicial Studies – Te Kura – have been focussing purposefully on this area so that judges, instinctively, can address legal issues through a Treaty and a te ao Māori lens. They are keen for counsel to catch up so that they can frame submissions, when applicable, on that basis. We have to support our members through this “catchup”.

Learning about tikanga is a step along this pathway. Learning te reo Māori is another. In 2020, Justice Joe Williams said:

“When the reo walks in the room, te ao Māori walks in the room and that changes the law. I know its subtle, I know it’s not revolutionary but once you get a different flavour in the water, stuff changes and I think we are in the process of hobbling towards that in an ad hoc way … yet we are walking there organically.”1

As an employer, we are trying to talk the talk ourselves. I am delighted to say that our Executive Director, Jacqui Thompson, has taken up an opportunity we offered to attend te reo Māori lessons at AUT, a course that Kate Davenport QC is taking as well. Both want to have a basic grounding in what is one of our country’s official languages. We are certainly not suggesting that all must follow suit, but I take my hat off to them for the enthusiasm they are displaying for learning something new.

In case anyone is in doubt about how widespread the need for a greater understanding of te ao Māori is, a recent interview on Radio NZ/Te Reo Irirangi o Aotearoa2, noted that Māori academics are doing double shifts, by working both as researchers and as unpaid cultural guides for their non-Māori colleagues. This was a point discussed at our last Council meeting. We recognise the difficulty and Te Ao Māori Committee is factoring the issue into their plans.

Investiture of Justice Sir Joe Williams

About two thirds of the way up the Coromandel Peninsula, not too far from the town of Coromandel to the north, sits the Ngati Pūkenga meeting house, by the name of Te Kouorehua, in the town of Manaia. Te Kouorehua was the paramount Chief of the Ngati Pūkenga and Te Tawera during much of the 19th century. He was known as a great warrior in battle and for his superior knowledge of battle strategies.

Gathered there, on 10 April 2021, were a number of contemporary chiefs known, also, for their mastery of strategy – the Governor-General, Dame Patsy Reddy, the Minister of Foreign Affairs, Hon Nanaia Mahuta, the Chief Justice, Heads of Bench, Judges from all of our courts, the Deputy Commissioner of Police and kaumatua from across the nation. They included a familiar face, Simon Dallow, a member of Ngati Pūkenga himself, who played an active role in the ceremony.

The ceremony was both uplifting and thought provoking. It was overlaid with very good humour. Dame Patsy referred to the honour as recognising “your mana and your humanity” and Sir Joe referred to his work for iwi – for the Hauraki claims, for the iwi of te Tai Tokerau, for Tauranga Moana, for Ngāti Kahungunu and for various Matātua people, as “the joy of my life”. Referring to the wananga that followed the ceremony, he said, “Here we are, for a day and a half, to dream visions of an iwi future”.

And so it was with the wananga that followed. Speakers including Dame Patsy Reddy, Hon Nanaia Mahuta, Hon Dame Tariana Tūria, Professor Rawinia Higgins and several other prominent members of our society. They spoke about partnerships between iwi and the Crown, thriving together, growing healthy and strong whānau, caring for vulnerable members, growing up as part of a Māori speaking generation, seeing iwi enterprise as a path to iwi wellbeing, and reimagining our iwi as important institutions in the lives of their people.

A special day. A time to imagine what is possible.

The need for change

1Value of Te Reo Māori for All ‘Is What Will Save It’ - Justice Joe Williams (5 November 2020) https://www.rnz.co.nz/news/te-manu-korihi/429933/valueof-te-reo-maori-for-all-is-what-will-save-it-justice-joe-williams 2Māori Academics Doing Unpaid Work as Cultural Guides for Colleagues, Study Finds (16 April 2021) https://www.rnz.co.nz/news/te-manukorihi/440585/maori-academics-doing-unpaid-work-as-cultural-guides-for-colleagues-study-finds

This chart says it all really.3 It shows that among industrialised countries expected by international climate change agreements to do more than the global average to reduce emissions, New Zealand has instead experienced the second highest increase in emissions since 1990. The figures and building political pressure suggest that there is a mandate for the Government to act.

Lawyers for Climate Action NZ have made a substantive submission to the Climate Change Commission on its draft advice and have published a recent webinar that is well worth a watch over your lunch time sandwich sometime soon.4

We can be thankful that the steps that we need to take as lawyers to adapt to changes in our society are of a radically different nature to those in other jurisdictions where lawyers are fighting, both procedurally and physically, to uphold fundamental rights. For example, in Myanmar, which has recently seen some of its deadliest days since February’s coup, the Independent Lawyers Association of Myanmar, established with support from the International Bar Association’s Human Rights Institute, has seen scores of lawyers representing without charge the hundreds of people who have been unlawfully detained; representation which brings direct risks to the lawyers themselves.

An example of risks of that type comes through Lyudmila Kazak, a human rights lawyer in Belarus who has been disbarred following a decision of the Minsk City Court in the course of executing her duties as a lawyer in representing a leader of the opposition. The Hon Michael Kirby, former Judge of the High Court of Australia and Chair of the International Bar Association’s Human Rights Institute, referred to the violation of international law as “[a] stark example of a concerning pattern of disbarment of lawyers in Belarus who represent opposite candidates or express views sympathetic to the opposition”.

And so, while the challenges we face in adjusting our paradigms from time to time are not to be underestimated, we can reflect with a good dose of anguish on the work of counsel in those places in which the rule of law has all but ceased to exist.

NZBA/Marsh Indemnity Insurance plan

For some time now we have been reviewing our NZBA/Marsh Indemnity Insurance plan. Together with Marsh and a workgroup, we are developing a customised policy with language that suits the needs of barristers. As part of this review, we will be asking members for their views as to the terms, the renewal process and any claims experience that they may have. We will be sending a survey out shortly and would appreciate it if you could complete it.

I want to acknowledge the work of the review team, which is convened by Michael Webb, and two co-opted team members, Michael Robertson, and Helen Twomey from Robertsons. Michael and Helen specialise in professional indemnity insurance law and have kindly agreed to assist in this review.

Queen’s Counsel

As I write, we are beginning our QC consultation process. We have a panel of 14 QCs who will examine the applications that have been made in the context of the appointment criteria. A great deal of care and attention is paid to each application; to the cases, sources and referees mentioned. Members of the panel meet on a number of occasions, to focus on particular practice areas and then to consider the pool of applications as a whole, meeting also with the Law Society’s assessors along the way. The process enables the Law Society and the Bar Association to each make recommendations to the AttorneyGeneral (through the Solicitor-General) under the process prescribed by the Lawyers and Conveyancers Act (Lawyers: Queen’s Counsel) Regulations 2012.

As emphasised in the Law Points on 25 March, applicants and those supporting them are asked not to make direct approaches to Presidents or assessors of representative organisations involved in the process and, likewise, not to make contact with the Solicitor-General, the Attorney-General or members of the bench directly in relation to an application. The applications themselves, and the references, speak volumes and are a reflection of the quality and the strength of our Bar.

Hei konā mai