From the President – Paul Radich QC

Kia ora koutou.

One of our most challenging years is drawing rapidly to a close. In a range of different ways, we have all grappled with some of the most difficult practical, legal and social issues we could imagine – managing our lives, our families and our work under considerable restrictions, managing clients and hearings through remote technology, dealing with delayed, and then abridged, hearing timetables and navigating – both personally and for clients – some of the most challenging constitutional issues our society has faced at any time in its history. We all deserve a good nurturing and reflective break.

In the meantime, here is a recap on recent events and a summary of the Bar Association’s work, as delivered through its Council, Secretariat, and committees.

Changes to the Council

On 1 October we welcomed the new Council. You can find biographies of the Council members in our September issue of At the Bar. 1 Alongside our new Council members, I am delighted to welcome Maria Dew QC, our President Elect. Maria’s term as President begins on 1 October 2022. But one of the advantages in having the overlap between current and incoming President is that it helps to spread the substantial workload. Maria has (as one would expect) hit the ground running and has already made significant contributions to the Council’s work.

As many of you are aware, under our Rules of Association, we can co-opt up to five members to the Council if it is considered to be in the interests of the Association. We have a considerable workload at the moment, and so Council determined that we would make four immediate co-options. We hope to advise in the New Year a fifth co-option to help us with a particular project. I would like to warmly welcome new Council member, Gowan Duff, and returning council members Sam Jeffs, Stephen Layburn, and Maggie Winterstein.

Finally, as many are aware, we had a vacancy on Council for a candidate from Tāmaki Makaurau | Auckland. Our rules allowed us to either appoint someone to that vacancy, or we could run another election. Given that we had held an election just a month earlier, with a call for nominations at that time, the Bar Council considered that it should respect the outcome of that election and the next highest polling candidate was appointed to fill the vacancy. I am very pleased to welcome back Iswari Jayanandan, a member of our 2020-2021Council, and one who has made an immense contribution to the Bar Association’s work.

Ceremonies

Since my last column, we have seen a number of swearings in of High Court and District Court Judges. I have tried to attend as many of them as possible, but the workload from dealing with Covid issues means I have not been able to get to all of them. I reiterate my warm congratulations to all of the recently appointed judges.

Judith Ablett-Kerr ONZM QC joins the Bridgeside Chambers team on their way to Justice Eaton's swearing in

Swearing in ceremonies are a wonderful reminder of the journey that each judge takes before their appointment. It is often surprising, when attending the ceremonies, how little we know of our former colleagues. It is more than a little humbling to listen to stories of the careers of our new judges, and of the contributions they have made; both to the law and to their communities.

One of the innovations in recent ceremonies, particularly in the District Court, has been the inclusion of mihi whakatau. Less formal than a pōwhiri, the District Court mihi whakatau involves the new judge and his or her family being called into the court room, through a karanga, and then whaikōrero, following which the judge is ushered across the courtroom to be received by members of the judiciary. The ceremonies are always impressive and remind us of the duality of our constitution.

Recent innovations in ceremonies for new High Court judges have seen a bespoke approach to each, tailored around the associations and experiences of the judge. We have, for example in recent months, seen a vibrant ceremony in Christchurch for Justice Eaton, a masterclass in the use of remote technology for Associate Judge Taylor’s memorable ceremony and a dynamic ceremony for Justice Harvey in the Rotorua Māori Land Court.

Another innovation for ceremonies in general has been the introduction of remote particpation. Counsel who cannot attend in person – mostly as a result of Covid travel restrictions – have been able to join by VMR. In particular, I extend my thanks to all Queen’s Counsel who have sat patiently in front of their computer screens, in full regalia, to attend these events. It is fair to say that the technology has been challenging at times and we thank Jo Robb from the Chief Justice’s office for her patience and perseverance.

End of year events and Silk dinner

To date, I have attended end of year/Christmas events in te Whanganui-a-Tara | Wellington, Ōtepoti |Dunedin and Tauranga (see photos on p33). I very much enjoy meeting everyone and taking the time to reflect over the year that has passed.

Covid-related difficulties led to the postponement until early next year of our end of year events in Tāmaki Makaurau |Auckland, Ōtautahi | Christchurch and Kirikiriroa | Hamilton. We hope to instead host "welcome back" events in mid-February.

One event that was able to go ahead recently was the delayed call to the inner bar of Kerryn Beaton QC in Christchurch, which was followed in the evening by her Silk Dinner. This was (literally) a sold out event and it was nothing short of fantastic to see the Christchurch profession and judiciary attend in such numbers. The camaraderie at the bar in Christchurch and the vibrancy of the atmosphere in the room that night was palpable.

Committees

The Advocacy Committee has just delivered a report to the Secretary for Justice on Access to Justice. The report highlights the reality of a legal aid system in crisis. The recent NZLS survey provided strong statistical support. When that is added to accounts from practitioners of the impacts on access to justice on the profession, including lawyers leaving the legal aid scheme altogether, a graphic and disturbing picture is presented. We hope to be able to share the report with you shortly.

Earlier this year we established te Ao Māori committee to help us all transition to a better working partnership under te Tiriti o Waitangi. It will provide education and understanding for us all in partnership with Māori organisations. We anticipate being able to make two significant announcements in the new year, thanks to the committee and the organisations it has been working with. The Membership and Wellbeing Committee has been focusing on the things that we deliver to you, our members. It has been working closely with other committees to ensure that the focus of all of our work is on our members. As you are aware, one of our key deliverables is free training and collegial events. We know that members have appreciated this approach. At the moment the committee is working with juniors to identify the support they may need in light of Covid.

The Commercial Bar Committee is focussing on enhanced deliverables for members, including opportunities to expand the profession’s understanding of the wide range of work they do. Again, we are looking forward to their 2022 programme.

The Criminal Committee is facing an overwhelming workload. It has been participating in an intense criminal processes review, as well as trying to keep up with the impact of Covid and the legislative and practical changes it brings to the operations of the courts. Each week the Committee is providing extensive feedback to judges, officials and stakeholders and often on very short notice. The pace of these consultation and feedback processes puts real pressure, not only on our Committee and Council members, but on the terms of the measures under development.

The Diversity and Inclusion Committee has reviewed our Gender Equitable Engagement and Instruction Policy. That work is almost complete and we will shortly be making announcements about it. In addition, the Committee has been working on a report on gender statistics on appearances in the senior courts, setting up secondary school mooting competitions in South Auckland, and liaising with schools and universities to encourage students to consider a career at the bar.

The Education Committee provided a superb programme in 2021 covering wellness, topics of professional interest, and focusing strongly on core advocacy skills. The feedback we have received from the consistently high numbers of attendees has been more than encouraging. Plans for 2022 are underway, with an innovative approach to advocacy training expected to be delivered in the first quarter of the year.

Governance Audit and Risk forms a core part of our workload. Earlier this year, we appointed a workgroup to review the Marsh/NZBA insurance scheme. That work is almost complete. A more detailed article will shortly be circulated to members. However I do want to make it clear that the Bar Association’s role with this policy is to make it available to members. We do not promote it. This is clarified in the article.

We have appointed a workgroup to consider our Rules of Association. Our Rules have served us well in the thirty-seven and a half years of the Association’s existence but now need to be amended in light of the new Incorporated Societies Act and amendments to the rules of conduct.

Finally, I’m very pleased to be able to say that we have two brand-new committees; our Employment Law and Privacy Committee2, and our Family Law Committee.3 Both have provided considerable value on a number of issues in the short time they have been in existence. If you would like to enquire about either committee, please contact us.4

Covid and Courts

The disruption caused to our courts by Covid and its offshoots cannot be underestimated. The backlog is creating critical issues. The Chair of our Criminal Committee, James Rapley QC, commented on the issue in the media recently.5 As of 30 Septemer, there were 3250 outstanding jury trials nationwide with a further 2635 judge alone trials pending.

As James said, backlogs are about people first and foremost. But there are a range of factors that need to be addressed, not least of which is the safety and well being of counsel. The judiciary has been consulting with heads of professional organisations regularly since the Covid pandemic began. Currently the focus is on the protocols to enable court work to get underway, more substantively under the COVID-19 Protection Framework – the “traffic light system”.

We are going to have to ask your indulgence and patience as we continue to seek feedback from you while we work through the process. It is important that all voices are heard when developing a system for the delivery of justice in a safe, efficient and constitutional manner.

And finally…

As the pōhutukawas burst into life around us, I know how much everyone will be looking forward to a long overdue break. I wish you all a truly joyful holiday season. If you celebrate Christmas, Merry Christmas | Meri Kirihimete. I look forward to seeing you all in the New Year.

Kia noho haumaru – Stay safe

Ngā mihi nui,

*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

REFERENCES

1 https://issuu.com/newzealandbarassociation/docs/at_the_bar_august_2021 2 See https://www.nzbar.org.nz/Employment_Law_and_Privacy_Committee for members 3 See https://www.nzbar.org.nz/Family_Law_Committee for members 4 https://www.nzbar.org.nz/contact-nzba 5 https://www.stuff.co.nz/national/crime/127044273/mans-fouryear-wait-for-trial-one-of-nearly-6000-cases-to-be-heard

Seasons Greetings | Ngā mihi o te wā

We are days away from the start of the summer holidays and Christmas, for those who celebrate it. If you do, we wish you Merry Christmas | Meri Kirihimete.

To mark the end of this year and the season, the New Zealand Bar Association has donated the amount that we would normally spend on buying, writing and posting the cards, to the KidsCan charity. We have done so on behalf of our members, Council, Secretariat, partners, sponsors and stakeholders.

Education can be a ticket out of poverty. KidsCan tries to break the poverty cycle by levelling the playing field. It gives children from struggling families the same opportunities for learning as others. The charity partners with schools and early childhood centres across New Zealand to give the 1 in 5 Kiwi kids affected by poverty the essentials: food, clothing and health products.

Thank you all for your support for the Bar Association over the last year. Like 2020, this has not been an easy year. If anything, we have experienced greater uncertainty. But with kindness and respect for each other, we have survived. We wish you all a relaxing and safe holiday season.

Please take care as you move around these holidays and stay safe,

Ngā mihi o te Tau Hou ki a koutou katoa | Happy New Year to you all.

Paul Radich QC, on behalf of the Bar Council and Secretariat.