At The Bar - April 2023

Hoki mai anō | Welcome back.

The summer has drifted away without giving us many of the slow steady sunny spells we are used to during February and March. Other types of weather events we did get, sadly, with on-going impacts for those in the north, west Auckland, Gisborne and Hawkes Bay.

Our regular meeting with the Heads of Bench, Ministry of Justice, Corrections, Law Society and others, has proved a useful on-going conduit for information both from, and to, the profession about what lawyers and clients are experiencing in the courts and with their personal and professional workloads. Thank you to those barristers who have been feeding back information to the Bar Association, so that we can pass it on in Heads of Bench meetings. The Heads of Bench have acknowledged the need for flexibility in scheduling and meeting timetable orders for those impacted by shortcomings apparent in these areas.

Judicial independence

There are signs that the independence of the judiciary and the profession may be a key theme for the Bar Association’s work in 2023. Two events in March 2023 highlighted this theme.

The first was the Final Report of the Review Panel, Regulating Lawyers in Aotearoa New Zealand | Te Pae Whiritahi i te Korowai Rato Ture o Aotearoa. This has rightly been described as a “once in a generation” report for the legal profession. Its recommendations signal fundamental change for the profession. The key recommendation is to split the regulatory and representative functions. While many will not be opposed to this change, the devil will be in the detail about how this is achieved alongside our protection of the independence and standards of our legal profession.

Currently the NZLS Council is seeking feedback from all members of the profession on this report. Which recommendations should we adopt to ensure we remain a strong, credible and independent profession?

Alongside submissions to the report writers, the Bar Association also sits on the NZLS Council where we now have an opportunity to shape the outcome and implementation of the report’s recommendations. While there is much in the report with which the bar is likely to agree, there are some areas that need further scrutiny, and our Bar Council and the NZLS Council will be doing this. Because of the magnitude of this change, we encourage everyone to read the report and to send feedback, either via the Bar Association or direct to the Law Society. The Law Society plans to report back to the Minister of Justice, Hon Kiri Allan, with the recommendations that are accepted in July 2023.

The second matter that arose in March 2023 was a Minister’s comment that also highlighted our role to speak out in support of judicial and police independence. On behalf of the Bar Association, we released a media statement which responded to the recent discussion about Stuart Nash MP’s public comments. The Bar Association highlighted the fact that Ministers are in special positions and have a greater media and public platform than members of the general public, so they have to be careful not to, even inadvertently, exert pressure or influence on the judiciary in their comments. This is why Ministers are subject to the Cabinet Manual, which sets out Ministers’ obligations when considering comment on judicial decisions.

Constitutionally, the role of judges is to speak through their judgments, steering clear of the political fray. But the converse convention is that ministerial criticism of judges is kept within reasonable limits, so the administration of justice is not adversely impacted.

As lawyers, we have an important role in supporting the judiciary and commenting in circumstances where they are prevented from doing so. This role is articulated as one of the objectives in the Rules of the Bar Association. We encourage members to speak out whenever there is a matter that may undermine this independence.

Our Strategic Goals

This leads me to sharing with you our Bar Council Strategic Goals for the next three years, 2023 to 2025. These goals are drawn from the Rules of our Association, which remain as relevant today as they were when they were drawn up almost 35 years ago. Under each of these Objects 1 to 5, our Council and committees have developed a set of initiatives and targets that we aim to achieve over these three years.

We will be reporting back to you on how we are tracking and looking for your support in achieving these goals. Renewing your membership this month and encouraging others to join the Bar Association and support our work will all help!

It’s Bar Council election year

While many will be focused on the upcoming general election, we also have a Bar Council election which will be held in July/August 2023 and the results announced at our Annual General Meeting.

Over the next few months, we will be calling for nominations for Council members and the President Elect. I invite both senior, intermediate and junior barristers to seek nomination. Under our Rules we look for true representation of the bar across all regions, practice areas and experience. We value the growing diversity of the bar and want to continue to ensure we have a range of voices at our Council table.

We have approximately four in-person meetings each year and three online Council meetings, with projects, submissions, training, conference, social events and other work with government, courts, and universities. It is humbling to see the contributions barristers are willing to make for the good of the profession. This includes not just Council members but barristers who also willingly support the Council through the work of our committees.

It is a great way to meet colleagues from across New Zealand and from other areas of practice. We do also try and have some fun along the way!

Risks to counsel and the courts

The recent attack on a counsel for the child in the Whangārei District Court was a very difficult time for the barrister involved, his family and other lawyers and court staff in the region. Sadly, barristers around the country also report increased stress on defendants and other parties in criminal and family proceedings.

Over the years, the Bar Association has advocated for several initiatives that members have suggested would improve their security. These include ID cards to allow counsel to enter and leave by separate doors, similar to the system currently in use by judges and prosecutors. Options have also included pre-emptive analysis of upcoming matters and situations to identify any triggers that may result in violence and assigning more security to that matter.

Other feedback is that lawyers cannot predict the risk of violence in advance, as it is not always obvious when someone is at breaking point. If you believe you may be in danger in any case, we encourage you to discuss any fears you have and to talk to senior counsel.

Following the Whangarei incident, the Law Society has been working with the Ministry of Justice. The aim is to ensure that we have improved security protection for all counsel coming into court.

Appointment to the Bench

It is with great pride that we congratulate New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture (NZBA) Past President, the Hon. Justice Paul Radich, on his recent appointment to te Kōti Matua | High Court bench. His swearing in was a memorable occasion with the speakers enumerating the many qualities that he will bring to his new role. It was a proud moment for his whānau, friends, and colleagues.

King’s Counsel appointments

Finally, on a very positive note, the Bar Association hosted the Auckland Silks’ dinner on 31 March 2023, and the Christchurch Silks' dinner on 21 April 2023. At these dinners, we celebrated the call to the inner bar for the 2022 silks, Andrew Butler KC (who came up from Wellington), Bronwyn Carruthers KC, Nick Chisnall KC, David Cooper KC, Tiffany Cooper KC, Catherine Cull KC, Jason Goodall KC, Simon Mitchell KC, and Christchurch Silks Lisa Preston KC, and Stephanie Grieve KC. We were also lucky to have some of the Silks from 2019 and 2021 attend the Auckland dinner and there is a group photo of them below.

These were both wonderful evenings to celebrate their very different backgrounds and pathways to King’s Counsel and the people who encouraged them along the way. The number of younger barristers in attendance was pleasing, it was an opportunity for them to celebrate their mentors.

I spoke about the value of our King’s Counsel role remaining a strong force for good in the profession and I wanted to share a brief passage from my speech with you:

While some may argue that there is an air of elitism about the rank of King’s Counsel, I would argue that it is not to be seen as a “rank” but a “role”. It is a “role” to serve as a professional leader at the bar. Viewed through this lens, there is nothing elite about the role, it is granted to recognise past, current, and future excellence, leadership and service to the law.

To each of you who we honour tonight, you are joining a group of colleagues who are expected to help shape, protect, and inform the legal system in some of the most complex legal issues that face our clients and society more generally. These will not always be the best paying briefs; in fact, I know most King’s Counsel have always done a very fair proportion of their work in challenging pro bono cases or legal aid cases. This “role” as King’s Counsel is something that is valued by the profession and the community. It is a role that expresses the aspirations of our profession, to strive for excellence and service. Why would we not want to celebrate and honour this role, for the benefit of all…….. My hope for the profession and the community is that our King’s Counsel role remains strong for these reasons, and, for that to be true, it can’t be seen just as a “rank”.

As you may have heard by now, the Attorney General has decided that there will not be a King’s Counsel appointment round for 2023, given the general election and later than usual appointments made in 2022. However, we look forward to the 2024 round, which will come around soon enough!

Aku mihi nui ki a koe, Maria Dew KC

L-R Backrow: Simon Mitchell, Catherine Cull, Middle row: Nick Chisnall, Maria Dew, Jason Goodall, Andrew Butler, Stephen Hunter, Front row: Tiffany Cooper, Fletcher Pilditch, Simon Foote, Bronwyn Carruthers, Julie-Anne Kincade