From the President

Kia ora koutou,

Well, that was quite a year. With a few exceptions, I think we all pushed personal boundaries and opened ourselves to new experiences: working from home, assembling and managing new technology, working with clients, opposing counsel and judges (and remote family members) through videoconferencing, taking afternoon family strolls through deserted streets, expanding (or learning) cooking skills, discovering a range of local places and businesses to support, and then reaching the last sector of the year at a sprint as cases, adjourned during the lockdown, landed hard up among existing fixtures.

I don’t know about you, but I’m close to being out of puff. But it’s been quite an experience and, while the year has had such harsh health and financial consequences for so many, we shouldn’t let go of the good things we have discovered; how we can spend more time with our families without compromising work outcomes; how we can connect with friends and family around the globe through our devices as often as we wish; and how much we have come to appreciate the simple things in life.

Equally, the Ministry of Justice and the Courts shouldn’t let go of the giant leaps that were made with the use of technology. We are all but ready to use the likes of Microsoft Teams and related products, not just for video hearings where appropriate, but for filing and sharing court documents and evidence.

The summer break might be a good time, once we’ve caught our breaths, to think of ways in which we can integrate some of our new skills with some of our old. We are just lucky to have the freedom of movement to do that. As an overseas friend commented recently, “New Zealand is like a fairytale”. And so, in a comparative way, it is.

But we mustn’t forget how very hard this time of year is for so many people and their families. One in five children in New Zealand live in relative poverty (after deduction of housing costs from household income). A simple donation through one of our charities can bring joy and appreciation that is out of all proportion to anything we might have experienced for quite some time.

The NZBA gave that some thought. Instead of sending out Christmas cards this year, on behalf of our members and all those involved with the Association, we have donated the amount that we would spend on buying, writing and posting cards, to the KidsCan charity. As the charity itself says, education can be a ticket out of poverty and KidsCan tries to break the poverty cycle by levelling the playing field. It gives families that are struggling the same opportunities for learning as others.

End of the Year Collegiality

I visited different parts of the country over the last two weeks as I attended drinks functions in Christchurch, Dunedin, Wellington, Tauranga, and Auckland. As you will see from the photo on this page, visiting Tauranga was something of a struggle. It really is a special place. Unfortunately, due to a timetable clash, I couldn’t be at the drinks function in Hamilton, but I’m looking forward to being there early in the New Year – perhaps for a lunch event.

Thank you to those who joined us at these events. We enjoyed seeing you all, along with members of the judiciary and sponsor representatives from MAS, Marsh and LexisNexis. More than anything, it was so good to be able to come together in person and to exchange stories, laughter and hopes for the year to come.

And, more than that, it is important for me to understand issues faced by members and their practices; to really understand them so that we can find ways of doing something about them together.

I want to thank my co-hosts in the regions - in no particular order, Bill Nabney, Rita Nabney and David Weaver who hosted at Tauranga Chambers; Waikato Council members David O'Neill and Phil Cornegé who provided the lovely Riverbank Chambers as the venue for the Waikato drinks; Judith Ablett-Kerr QC and NZBA Council member Taryn Gudmanz for their help co-hosting the Dunedin event at the Dunedin Club; the NZBA Council for being present at the event in Christchurch; and our Auckland and Wellington NZBA Council members for their attendance in those centres. And my special thanks to my wife and chambers mate, Karen Radich, for all her help with the arrangements in Wellington.

While on the topic of our end of year functions, I was very pleased that, at the Dunedin event, we were able to acknowledge the 50th anniversary of the call to the Bar of long time NZBA member, Judith Ablett-Kerr ONZM QC. Judith was called to the Bar, Middle Temple, London, on 24 November 1970. She has had a remarkable career, having been appointed our first female criminal QC, awarded an ONZM and appearing in many cases of note. Our warmest congratulations, Judith.

These end of year events were our only real chance (apart from the Silks dinner in Wellington) to connect with each other this year. We have run a number of virtual events, which have been well attended, and we thank everyone who signed on for them. But gathering te kanohi ki te kanohi is essential. Collegiality has always been central to the legal profession. We may appear on opposite sides of disputes, but it is critical that we put these disputes to one side and spend time relating to each other as colleagues. The relationships that we build at events such as these are the cornerstone of our profession. We want to make regular regional get-togethers an essential feature of the Bar Association’s ongoing activities.

Conduct and Client Care Rules

The topic of good professional relationships brings me to the proposed changes to the Conduct and Client Care Rules (CCCR). In October 2020, the New Zealand Law Society Council was asked to approve changes to the CCCR that resulted from recommendations from the Cartwright Report into bullying and harassment in the legal profession.

The changes are critical to ensure that those who work in the legal profession can be protected against unacceptable behaviour. It is important that the rules pass. However, it is also important that they are clearly worded, to achieve their goal.

The NZBA has a seat at the Law Society Council table and I attended the meetings at which the changes were discussed. During the process to finalise the wording, what struck me was the deep commitment of all involved to ensuring that the rules were fit for purpose. Some revisions have now been sent to the Parliamentary Counsel Office and the MOJ for their consideration.

Bar Council Business

On 27 November, the Bar Council met in person in Christchurch. We reviewed our current strategic plan and decided that we needed to refocus parts of it for the post-Covid world. The session was constructive, and I believe will pave the way for outcomes that will serve our members well.

One of the first things we decided was that we should meet more often. Online conferencing technologies allow us to do this with little cost. We have increased our meetings to five formal meetings each year, with informal “brainstorming” meetings in the months in which we do not have formal meetings.

At Christchurch, we considered co-options needed for the Council this year. At our October hui, we had already co-opted Sam Jeffs to help us with our governance rules and junior representation. However, the workload is increasing, and we needed to look at two areas closely. The courts are undertaking a great deal of work on criminal justice processes and the NZBA is involved closely with that work. We decided that we needed extra help on the Council from the criminal bar, and that the South Auckland bar should have better representation. I am therefore pleased to welcome Ishwari (Ish) Jayanandan and Maggie Winterstein to our Council. Ish has been on our criminal committee for some time.

The commercial/advisory bar has been growing over the last few years. Some of you will have read the interview with Michael Webb in the last copy of At the Bar. We are facing increasing commercial complexity in the business we undertake on behalf of the Association. In the next two years we will have to review our Constitution to bring it in line with the anticipated new Incorporated Societies Act, as well as continuing our governance project. Stephen Layburn has agreed to join the Council this term and help us with this work. Profiles of Ish, Stephen and Maggie follow this column.

AML/CFT Exemption

Work continues on the AML/CFT exemption. It is with a sense of relief that I can now tell you that there is light at the end of the tunnel. The Ministry of Justice has advised us of the terms of the exemption it will be recommending. On the whole, we feel reasonably happy about the point we have reached. We believe that the terms are a considerable improvement for members on the original suggestions. We are now waiting on the Minister’s final decision. We will keep you informed about progress. But I would like to thank barrister, Ollie Neas for his help over the last few months and acknowledge the earlier invaluable work of Dr Derek Johnson.

And so to holidays

I encourage everyone to take some time over the holidays to think about the things that matter to them and why. The events of this year, nationally and internationally, might give us cause to reflect on ways in which we measure success and well-being. We might, for example, look at ways in which we can help members of our society and younger members of our profession without an expectation of reward.

Finally, we all know that there is pressure on the court system to deal with backlogs. There are people who have been waiting for justice for considerable lengths of time – particularly those in the criminal justice system. However, if you feel that your health is suffering, may I suggest that this becomes your priority. Please contact us if there is anything we can do to help.

So please take care and be safe over the holiday season. For those who celebrate Christmas, I hope the day is joyful. Moreover, I hope that all the days, before and after, are filled with joy for everybody. Ngā mihi o te Kirihimete me te Tau Hau

Paul.

*Paul Radich QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email him via president@nzbar.org.nz

Ishwari (Ish) Jayanandan

Ish was originally born in Sri Lanka but moved to New Zealand as a child. She graduated from University of Auckland with an LLB and a BCom. She has been a barrister sole since 2010 and she practises in South Auckland. Her trial work is varied in nature and includes single/ multiple defendant homicides, multi-accused Police operations (be it serious drugs, aggravated robberies, or serious violence), sexual offending, assaults of varying degrees, fraud matters and cases that are governed by the Criminal Procedure Mental Impaired Persons Act. Ish is a Legal Aid PAL 4 provider, and is on the Duty Lawyer, PDLA and Amicus Panel for Manukau District Court. She is a member of the NZBA, ADLS, AWLA, South Auckland Bar Association (SABA), IBA and CLA.

Ish sits on the both the NZBA and ADLS criminal committees. She is on the executive committee of the SABA. She has been a member of working groups including the Auckland Custody Project implemented at the Auckland District Court and the Remote Participation National Court to Court Custody Operating Model in September 2018.

Stephen Layburn

Stephen is a commercial barrister based in Auckland with experience in a wide range of corporate and commercial matters, particularly in the financial services sector (with a focus on securities law), business transactions and corporate and corporate governance issues. He has worked at Hesketh Henry, Bell Gully, Simpson Grierson and Kensington Swan – as well as secondment to the Securities Commission and the Producer Board Project Team. He is also a member of the Commercial & Business Law Committee of the New Zealand Law Society, an external counsel to the NZX Markets Disciplinary Tribunal and a member of the PWC Audit Advisory Board.

Maggie Winterstein

Maggie Winterstein was admitted to the bar in 1998 and worked as a junior barrister to Simativa Perese in the early 2000s in the area of civil and commercial law, before becoming a Police prosecutor in the Counties Manukau area from 2002-2008. After learning the other side of criminal trials, she chose to specialise in criminal law and became a barrister sole in 2009. She currently practices at Liberty Law in Manukau.