At The Bar - December 2022

At The Bar December 2022

Presidency - the challenges and rewards Kings Counsel 2022 Judicial Diversity

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YOUR ASSOCIATION

From the President – Maria Dew KC

New Members – New members of the Association

Kōrero – Bar news

Student Sentencing Competition 2022 – Another great competition

LEGAL MATTERS

Judicial Diversity – Beyond "acknowledging" and getting to the "doing"

Kings Counsel 2022 – The appointees

Sir Richard Ian Barker KC – Obituary

Chief Justice pays tribute to John Fogarty KC

Q&A with the Privacy Commissioner

New Zealand Legal Information Institute –The ultimate access to justice project

PRACTICE AND LIFESTYLE

Presidency – the challenges and rewards

The English Text of the Treaty of Waitangi –Book Review

CSC/1 Team – benefiting you

Causes of burnout – myths to avoid

Petrol Heads’ Corner – Range Rover First Edition

Thank You!

With this issue, we wrap up another year of At the Bar. Thank you to our contributors, our advertisers / sponsors, all those involved in the magazine's production and most importantly, our readers. Our next issue will be March/April 2023.

The New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture wishes its members and staff a happy holiday season, however they choose to spend it. For those who observe Christmas, Meri Kirihimete me te tau hou. We hope you manage to find some time to relax and if you are travelling either locally or abroad, safe journeys. Ngā mihi o te wā.

The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

EDITORIAL COMMITTEE

David O’Neill - Editor-in-Chief

Tel: +64 7 839 1745

Email: david.oneill@nzbarrister.com

Jacqui Thompson (Editor)

Tel: +64 9 303 4515

Email: jacqui.thompson@nzbar.org.nz

Lisa Mills (Compilation and advertising)

Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz

DESIGN AND LAYOUT BY Kirsten McLeod

Tel: +64 9 834 2224

NEW ZEALAND BAR ASSOCIATION | NGĀ AHORANGI MOTUHAKE O TE TURE

Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President

Maria Dew KC*

Meri Kirihimete | Merry Christmas | Happy Holidays

This is it for the year.

A burst of frantic activity in this new role as President for our Bar Council and Executive team and then a much-needed holiday for us all, perfect. I know from speaking with other barristers and lawyers, we are all tired and in need of a break. So, over these last few weeks, enjoy the company of your clients and colleagues and then enjoy a sun and sand filled holiday with friends and whanau. This final President’s report for 2022 finishes with some good news, highlights, from October and November, and thanks to all for a successful year.

Kings Counsel appointments – a first since 1952

Congratulations to our ten new King's Counsel Northland – Catherine Cull, Auckland – Bronwyn Carruthers, Nicholas Chisnall, David Cooper, Tiffany Cooper, Jason Goodall, Simon Mitchell, Wellington –Andrew Butler, Christchurch – Stephanie Grieve and Lisa Preston. They each carry the unique privilege of being our first appointed King's Counsel since 1952. These appointments reflect the Attorney-General David Parker's continued commitment to recognising the rank of King's Counsel as important both to the profession and the community. It is a mark of excellence and leadership in the profession. I do want to acknowledge that these are ideals that I know all barristers aspire to achieve and support in our daily work, whether we have the responsibility of the rank of King's Counsel or not. However, we can be rightly proud of those who achieve this position. The work of living up to the rank begins on appointment. We look forward to sharing this special moment with each of you at your call ceremonies and dinners in the New Year, likely to be in late February or early March 2023.

Royal Commission of Inquiry into Abuse in Care

This may seem like a sombre note for a final Christmas column. However, it is important to acknowledge the significance of this event, our largest and longest running Royal Commission in New Zealand’s legal history. The Commission started its work in 2020, and in October 2022 the last in-person hearing days concluded. The final report is due to be released in June 2023.

Over 2,200 survivors shared their experiences with the Commission. Over 150 barristers and other

lawyers have been involved as counsel assisting the Commission, acting for participants and on the legal assistance panels, spread across the country. I also had the privilege of appearing as counsel for one of the faith-based institutions in the last week of hearings and attended the very moving final closing of the Royal Commission hearings.

The barristers involved have either worked for the Commission, survivors or the state and faith-based institutions. The skills and learnings that we have all gained by participating in this Commission are likely to impact the way we practice law into the future. The Chair of the Commission, Judge Coral Shaw has remarked recently that it is one of the most challenging events that she has been involved in across her career.

Judge Shaw delivered the 25th Annual Ethel Benjamin Address in Dunedin on 29 September 2022, on the eve of the closing of the hearings in the Royal Commission. Judge Shaw said:

“…this is a job like no other and has stretched me like no other. It has affected me profoundly both personally and professionally. It has opened my eyes to a previously unspoken and shameful history of cruel abuse and neglect of the most vulnerable in our society. It has caused me to reflect long and hard on what it truly means to be a responsible citizen of Aotearoa/New Zealand.”

The lawyers involved are also likely to have experienced something similar. They will all have gained valuable knowledge about trauma informed legal work and “do no harm” models for practising law and dealing with clients and survivors. These are skills for lawyers that, in my view, will increasingly be recognised and valued as we are called upon to assist clients in more sophisticated ways to resolve disputes.

On a more superficial note, the purpose-built hearing rooms in Newmarket, Auckland were a superb hearing venue. They provided private meeting rooms, flexible hearing room space and state of the art remote public hearing facilities. It is pleasing to hear that the space may well be taken over by the Ministry of Justice for future use.

Juniors Committee

Our Bar Council had its final in-person meeting in Auckland on 25 November. We know that 2023 is going to be a busy year. However, among the many items we discussed, I am pleased to report that the Council has committed to establishing and supporting a

Junior Bar Committee. We have had various iterations of this in past, but after Covid-19 we know that the junior bar has a real desire to connect with one another. So, we are welcoming all junior barristers to join the Committee (i.e., generally those who have 5 years PQE or less). If you are interested, please email president@nzbar.org.nz.

Senior barristers, if you employ or work with other juniors, please encourage them to join, or even better, pay for them to join the Bar Association. This connection is so important to ensure juniors get the regular support of other juniors at the bar.

Annual Conference 2023

Following on from our highly successful conference this year, we are already in full planning mode for 2023. I can now announce that our annual conference will be held in Christchurch on 15-16 September 2023, so block those days out in your calendar. We will update you on our plans as they progress.

Thank you

Thank you to our Council and Executive team It has been a delight to work with each of you. I want

to recognise the significant voluntary work you do for the Bar Council and ultimately for the benefit of the profession and community. The mahi of this Council and our Executive team, cannot be understated; speaking out on rule of law, administration of justice and law reform issues and working on our education and conference is for the benefit of us all at the bar. So, thank you all for your work this year.

• Paul Radich KC

• Simon Foote KC (VP Auckland)

• Victoria Casey KC

• James Rapley KC

• Kellie Arthur

• Felix Geiringer (VP Wellington)

• Phillip Cornegé (Treasurer and VP Provincial Areas)

• Gowan Duff

• Taryn Gudmanz

• Genevieve Haszard

• Iswari Jayanadan

• Sam Jeffs

• Stephen Layburn

• Richard McGuire

• Tiho Mijatov

• Kingi Snelgar

• Anne Toohey (VP South Island)

• Maggie Winterstein

I particularly wish to acknowledge our Executive team, Jacqui Thompson, Executive Director, Lisa Mills, Education and Events Director, Dianne Tietjens, Accounts Manager and Carolyn Kay, Administration Assistant.

Dedication

This edition of “At the Bar” is dedicated to the memory of Sir Ian Barker KC who died in November 2022.

Maria President@nzbar.org.nz

New Members

Her Honour Judge Kathryn Beck

Josie Beverwijk

Sally Brick

AUCKLAND

AUCKLAND

AUCKLAND

Pauline Courtney WELLINGTON

Deborah (Debbie) Crawford AUCKLAND

Claire Farquhar AUCKLAND

Andrew Finnie AUCKLAND

Robyn Glynn AUCKLAND

Susan Hayward HAWKES BAY

Samuel (Sam) Henry CANTERBURY

Anthony Hill WELLINGTON

Ronja Holz WAIKATO

Bingqing (Tracey) Hu

Peter Magee

Clare Murphy

AUCKLAND

NORTHLAND

AUCKLAND

William Potter AUCKLAND

Graeme Riach CANTERBURY

Jacinda Rennie WELLINGTON

Jane Rushton WAIKATO

Katherine (Kate) Venning Cooper AUCKLAND

Emily Walton CANTERBURY

Jennifer (Jen) Wilson AUCKLAND

Bridgette White AUCKLAND

face

legal publishing

Article provided by LexisNexis®

When you think of legal publishing, you probably think of massive books filled with extremely dense and technical information. Legal research involves stacks of books on your desk, and several screens all working at once. However, according to New Zealand’s foremost legal publisher, this format is increasingly becoming a thing of the past.

According to head of content management Chris Murray, huge encyclopaedia can be a great starting point for law students, judges, and many lawyers, but most practising lawyers shouldn’t be expected to wade through thousands of pages of content to find the information they need. Instead, accessing the right materials from a broad range of authors needs to be easy – a goal that has been the key focus for LexisNexis over the last decade.

“One of the biggest changes that I’ve seen in the last eleven years has been a move away from publishing really large, 1500-page tomes of black letter law,” Murray says.

“In my experience, lawyers really want more practical content that they can actually use day to day. If a client has just left their office, they want guidance on what their key next steps are - they don’t have the time to read through 500 pages of law.”

Murray has been in legal publishing for over a decade, and he says he’s seen an increasing shift towards publishing precedents, checklists and targeted guidance – in short, practical assistance tools for lawyers in their day-to-day work.

As part of this shift, LexisNexis has been deliberately expanding its pool of authors over the last several years. It has also been issuing new guidance around writing style, which involves producing much smaller, more concise volumes of content, but with the ability to quickly find sources and refer back to the original text.

“This new style is particularly important for authors who are highly experienced and specialised, and our new writers have all done a really great job of putting themselves into the shoes of practising lawyers, not only academics or students,” Murray said.

“We still produce all of our large encyclopaedic works, but our Practical Guidance products really turn the traditional research method around the other way. Rather than only writing 100 pages of content, our authors are also compiling a guidance note or a checklist that may be five steps long, but the points on that checklist will feed out to that 100 pages.

As a further example, some of LexisNexis’s most popular content is its annotated legislation. This involves publishing an Act in full, but with commentary throughout the text that then links into case law. This saves lawyers from having to constantly flip between sources, and LexisNexis is regularly adding new and amended Acts.

“Between our Practical Guidance and annotated legislation content, we’re just trying to make it much easier for lawyers to do their jobs,” Murray says.

As part of its goal to make legal content more accessible, LexisNexis is on an ongoing drive to recruit new authors. With the aim of representing the increasingly diverse face of the legal profession, it wants to provide content from a broad range of voices – and according to Murray, lawyers approach LexisNexis with excellent ideas for content every day.

“We’ve worked hard to bring in a more diverse set of authors,” Murray says. “Over half of law graduates have been women for several decades now, and we have seen that demographic change represented in our author base too. It is important our author teams reflect the profession, and more work needs to be done to ensure we have the right authors creating the content our customers need.”

Things are changing in the world of legal content and LexisNexis is leading the product evolution and is also seeking new authors to join that journey.

Scan the QR code to find out more about the solution designed for barristers or please email ana.cathcart@lexisnexis.co.nz to arrange a chat.

How the

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is changing in response to the needs of modern legal practitioners.

Kōrero – Chambers News

Bankside Chambers news

Official opening in Singapore

We are excited to have formally launched our Singapore practice. Our official opening was held at the New Zealand High Commissioner's Residence in Singapore on 24th November 2022, and with the support of our Silver Sponsor, the New Zealand Chamber. Bankside is the first and only New Zealand barristers’ chambers committed to a permanent presence in Singapore. Our Singapore practice is centrally located at Maxwell Chambers Suites.

All of our Singapore members are experienced international dispute resolution lawyers. We act on complex cross-border litigation and international arbitrations (both commercial and investment-treaty based). Several members also sit as arbitrators and mediators. Our members are: Hon Paul Heath KC, Dr Anna Kirk, Dr Simon Foote KC, Ben Prewett, Graeme Christie, Jeremy Johnson, John Walton, Lauren Lindsay, and Sam Carey. Learn more at bankside.co.nz/ singapore.

completing an LLM at Harvard Law School. Tiaan is available for instruction, whether as sole counsel or in support of senior counsel.

Julie Ding 丁嘉昱 began her career primarily defending criminal cases, appearing in the District Court, High Court, and Court of Appeal. Julie acts as counsel in a wide range of cases, having led and assisted in civil, criminal and family proceedings.

William Potter joined Bankside in October. Will is a commercial litigator, with particular experience in property, insolvency and construction. Prior to joining the bar, Will was a partner at Meredith Connell where he enjoyed a broad civil practice as part of the commercial litigation group.

Paying Tribute to The Honourable Sir Ian Barker

KC

New members

Bankside is thrilled to welcome its newest members Tiaan Nelson, Julie Ding 丁嘉昱 and William Potter, and Junior Barristers Debbie Crawford, Grace Cullinane, James Clark and Josie Beverwijk.

Tiaan Nelson is a civil and commercial barrister, with particular expertise in disputes involving companies, contracts, fiduciaries, negligence and trusts. Tiaan previously worked for Lady Deborah Chambers KC and Kate Davenport KC during his undergraduate studies and now joins Bankside after

Bankside is deeply saddened by the passing of the Honourable Sir Ian Barker KC on 11th November 2022. Sir Ian was a founding member of Bankside Chambers and for the last twenty years had filled the informal but important role as our senior Kaumātua. We pay tribute to Sir Ian: bankside.co.nz/post/paying-tribute-to-thehonourable-sir-ian-barker-kc.

Awards

Several Bankside members have been awarded for leadership and excellence in their practice areas. See the full list of members and learn more at: bankside. co.nz/post/awards-season-at-bankside.

Kate Cooper joins Britomart Chambers

Kate Cooper (née Venning) has joined the independent bar at Britomart Chambers following a period of parental leave. Kate has broad experience in reviews and investigations, civil and regulatory litigation, criminal law and commercial crime, and employment law. She has worked in New Zealand and the United Kingdom and appeared for individuals and companies in various courts, tribunals, and mediations.

Jane Rushton joins Riverbank Chambers

On 1 November 2022 Jane Rushton joined Riverbank Chambers as a barrister and is now also available as a mediator. The focus of her practice is civil dispute resolution. Her experience includes complex trust, estate, and relationship property cases for farming clients.

Born in Hamilton, Jane graduated LLB/BA (English) from the University of Auckland and was admitted in 1989. Since then, she has had 27 years either practising or teaching litigation, and six years working in her other area of interest: literacy. Jane gained a Master of Teaching and Learning in 2018 and returned to legal practice as a solicitor in 2019.

Employment Committee News

The Employment Law & Privacy Committee has continued to gain in numbers over the year and since our last issue of At the Bar, we have been joined by well-known Auckland Barrister, Catherine Stewart. A profile of Catherine can be found at the end of this update. Welcome on board, Catherine.

Some of our committee members very much enjoyed the opportunity to meet for dinner at the Employment Law Conference in October 2022. The dinner provided a valuable opportunity to discuss pertinent issues face to face and enjoy the connections established over the past year with the formation of the committee.

We are keen to make this dinner at the Employment Law Conference an ongoing fixture.

In November, committee member Juliet Philpott, a public law and privacy barrister, spent many hours coordinating and then hosting a successful webinar for the Bar Association with the Privacy Commissioner and his General Counsel. See the article on page 25. Thank you Juliet for your dedicated and positive assistance. We were delighted the Bar Association agreed to make the webinar available to members of ELINZ and the Employment Court clerks, as one of our aims is to

encourage greater collaboration between the different employment law groups around the country.

Next year our focus will be on ways to build and encourage greater diversity and inclusion in our specialist bar. We also want to work with ELINZ, ADLS and the NZLS to streamline current systems for probono employment and privacy work. In doing so, our hope is to also create more opportunities for junior barristers and clerks to be involved in advocacy.

It is a pleasure and privilege to chair this committee. Thank you to all committee members for your attendance and support over the year. Thank you in particular to Maria Dew KC, Geoff Davenport, Steve Wragg, Kathryn Dalziel, and Karen Radich, who willingly give so much of their time to assisting the committee and its efforts.

Rachel Burt Committee Chair

Catherine Stewart

Catherine is an employment law barrister with 30 years’ experience who provides the full range of employment law services and acts for both employers and employees. She joined the independent bar in 2012 and now leads a team of three staff barristers. She has been involved in several high profile employment law cases and is the Convenor of the Auckland District Law Society Employment Law Committee.

A band of barristers from the Employment Law & Privacy Committee - supping together during the NZLS Employment Law Conference in Christchurch.

From back left anticlockwise to back right - Maria Dew KC, Geoff Davenport, Amy Keir, Rachel Burt, Tanya Kennedy, Kathryn Dalziel, Andrew Marsh, Anna Price, Steve Wragg, Catherine Stewart, Karen Radich

Judicial DiversityBeyond “acknowledging” and getting to the “doing”

Genevieve Haszard*

Diversity is a word du and at risk of lip service and tokenism in the context of business and societal structures. Yet, diversity in all spheres, business, nature, and our community has been recognised as a critical element in improving decisionmaking, resilience and responsiveness to challenges.

The legal profession is on notice – our profession has serious diversity challenges. The present levels of diversity in our profession do not reflect the diversity of our population. It is improving, but there is work to be done. This then has a knock-on effect in terms of achieving meaningful diversity of our senior lawyers such as partners and directors of law firms and our King's Counsel.

However, the disparity is even greater when comparing the diversity of lawyers to that of our judiciary. Again, while there are incremental improvements, we are still

a long way from being able to celebrate having a truly diverse judiciary.

So why does having a diverse judiciary matter? To answer this question I spoke with Raana Zahmatkesh, a University of Canterbury PHD candidate who, all going to plan, is four months away from concluding her research reviewing the current levels of gender diversity of the judiciary in New Zealand and the Australian State of Victoria, together with each jurisdiction’s respective judicial appointment processes. Importantly, Raana has been looking at initiatives and policies to improve judicial diversity in the two jurisdictions.

Raana came to study in New Zealand, having obtained both an undergraduate and Masters degree in Law in Iran. Raana had no direct connection with New Zealand but was drawn to studying in a country with a very different legal system to her own.

Raana’s interest in the matter of judiciary diversity was significantly influenced by her direct experience of growing up in Iran where the judiciary is overseen by the President of the Judiciary who can only be a man. The President is accountable to the Supreme Leader of Iran. Raana’s father is a lawyer, and as a result her childhood was filled with dynamic legal discussion, including about

Genevieve Haszard interviews Raana Zahmatkesh, a University of Canterbury PHD candidate researching current levels of gender diversity within the judiciary in New Zealand and the Australian State of Victoria, along with initiatives and policies to improve judicial diversity in the

judges and decision making. There was an expectation she would go on to study law.

Following completion of her undergraduate degree, Raana elected to remain at University and continue her studies. As she noted to me during our interview, she really enjoys academic research and this was the next logical step. For her Master’s research she decided to focus on the role of the President of the Judiciary and the issue of judicial accountability. Raana’s research considered whether better accountability could be achieved through a judicial council and reviewing other judicial systems from both common law and civil law systems. She also looked at the universal conundrum of accountability versus independence.

One of her observations from this research was the common law systems she looked at often had less diversity than some of the civil law systems in which the judicial pathway often follows specialised graduate courses where you train to become a judge, rather than being appointed. Raana notes this allows a person to make a conscious decision to follow a judicial career pathway with clearly understood criteria and a reasonable assurance that appointment will follow completion of the requisite courses. In contrast, appointment processes have no such guarantees and are often not well understood and may have other issues which impact the ability to ensure diversity.

Another important reflection from Raana’s initial research, was diversity within the judiciary might be an essential element in improving judicial accountability and, perhaps, in a way which more effectively allows for the continued maintenance of judicial independence.

Raana’s PhD studies at the University of Canterbury continue the theme of gender diversity, this time within the New Zealand and Victorian judicial systems. However she was curious to look more deeply into this issue by analysing legal systems in which judges are appointed from the legal profession, as opposed to those jurisdictions in which judges completed specialised graduate courses. She also wanted to consider the ability to improve diversity of those appointed generally.

While her final research is yet to be completed, Raana was able to provide insight into some of her observations to date. For a start, Raana says the State of Victoria has better judicial gender diversity statistics than New Zealand, although she is quick to emphasise there is a fundamental difference between gender diversity and diversity per se. She also observes care needs to be taken when simply thinking about a system focusing only on having equal gender splits. “Consideration of what diversity means and looks like goes well beyond that,” Raana explains.

For example, Raana delved into the statistics of women appointed to judicial roles in Victoria and specifically what professional group they came from. They were often from the Victorian Bar. To be a barrister in Victoria requires a

significant financial commitment to complete the training and enter chambers. Therefore those women who successfully become barristers tend to be from higher income backgrounds and/or will have support in some way in order to complete the pre-requisites for being admitted to the Victorian Bar and then enter a Chambers. The same factors apply to men. Consequently these factors inevitably impact the degree to which there is meaningful diversity of socioeconomic backgrounds, practice areas and experience across the Victorian bar. It then follows, as Ranna observes, despite the Victorian judiciary having better gender balance than New Zealand, you cannot say it is truly diverse. It does not include a range of people who are very different from each other. Raana says there needs to be an intersectional perspective. In her view, in addition to improving diversity of the legal profession generally, it requires greater transparency of the judicial appointment criteria.

Turning then to practical ways in which diversity can be improved, and specifically the transparency of the judicial appointment criteria, Raana is clear that one of the most fundamental tools to improving judicial diversity is embedding an obligation to take diversity into account in the legislation governing judicial appointments. This obligation would take the form of a requirement that the appointing body/individual must take account of diversity when making judicial appointments, together with guidelines as to what diversity actually means and looks like. Raana acknowledges this requires careful thought and is not necessarily a straightforward exercise. However, one area Raana is particularly passionate about is diversity of practice background. She observes both Victoria and New Zealand statistics reflect an overwhelming weighting toward litigation specialists being appointed which she accepts is not surprising. However, when Raana reflects on the skills necessary to be a judge she asks why can an academic not become a judge? The skills required to be an effective judge are often quite different to the skills needed to be a litigator. She muses, “Isn’t the more important approach to consider the various other qualities and skills of the person being appointed?”

Reflecting on New Zealand, Raana acknowledges our present Attorney-General and Chief Justice have both been open about a need for focussed consideration of diversity in judicial appointments. They are clearly committed to this cause, and, to an extent, we can see this in practice in judicial appointments over the last three or so years. However, as Raana emphasises, this approach is not a given. “What are the safeguards for this approach in the future?” she asks. Her view is that legislation requiring consideration of the need and obligation for diversity is an important part of the matrix.

Raana stresses this is only part of the picture. Another challenge is how to ensure there is diversity of those considered for judicial appointment, which reinforces the question she posed about those with a background in legal academia being appointed as judges. As noted, Raana has looked at various legal systems including

those in which judges are appointed after completing a specialised judicial course. There are examples of these systems in France and Nigeria. Interestingly, Raana notes in those systems the majority of judges are women. Raana reflects this may have something to do with the fact judges in these systems, relative to other professions, are not particularly well paid. She is, therefore, cautious about whether the higher number of women holding judicial office in those systems is a true reflection of gender diversity in action.

And this leads to Raana sounding a note of caution about how you achieve diversity. In particular, she is wary about the use of bare numbers to ensure diversity (for example a 50:50 ratio). The same applies to a fixed list of the skills needed to be a judge. These approaches can be blunt tools and limit the pool of applicants. Raana’s research also considers the issues that may underscore who gets a say in the appointment process and what can happen when they come from the existing judicial demographic.

This is an issue raised by UK barrister, Dinah Rose KC, commenting on recent appointments to the UK Supreme Court:

“Since its foundation in 2009, 28 men and 4 women have served on the [Supreme Court]. All have been white. These figures do not reflect the bar, legal academia or even the rest of the senior judiciary. The appointment process is completely opaque and strongly influenced by current judges. I strongly believe that all appointments should be made on merit. I just find it hard to believe that merit always looks the same.”1

Raana considers networking is a significant factor involved in the judicial selection processes in the various systems she has looked at. While judicial criteria and selection processes are often published, there are

unwritten but critically important factors applicants need to know about. Having a judge as a mentor or connections with senior practitioners and those involved in the appointing process will allow you to better tailor your application and approach, which is more likely to result in appointment. Some of Raana’s interviews with judges have indicated for several of them, a mentor was key. However, as Raana notes, women and people from different backgrounds can struggle with networking.

As part of her research, Raana looked at the background of all the District Court, High Court, Court of Appeal and Supreme Court judges. While her thesis is yet to be published, she does consider we need to have an honest look at the way we identify applicants for judicial office. "If we are to improve diversity, we need to be realistic. Change will require finding ways to encourage practitioners from different backgrounds to consider a career as a judge and to support them in putting themselves forward for selection and to ensure when they apply, they can engage fully in that process".

Given the observations and reflections Raana was able to share with me during our interview, her research might well provide a foundation for developing practical and meaningful systems to improve judicial diversity here in New Zealand. This will ultimately enhance and strengthen our legal system.

I will be doing a follow up article in the next issue of At the Bar covering more specifically Raana’s legal education in Iran and her pathway to the law.

* Genevieve Haszard is a barrister from Kate Sheppard Chambers. She has specialist expertise in appeals, both civil and criminal, the Coroners court and Relationship Property. Genevieve is also on the Royal Commission Abuse in Care Legal Assistance Panel. For more information: https://genevievehaszard.com/

REFERENCES

1“UK Supreme Court faces diversity backlash following latest appointees” Micah Guiao, The Lawyer Magazine, NZ Lawyer, 19 August 2022

Presidency - the challenges and rewards

Barbara Relph*

Have you ever wondered what drives the busy people who take on the time consuming role of presidency of our legal organisations? Frequently exposing themselves to unhappy members of the profession or vexatious litigants, and almost always unpaid, the sacrifice seems immense. Do they regret it just months into the job? Or do they thrive on challenge, inspired by their team members?

The Bar Association conducted eight interviews with past or current presidents. Readers will note we did not include all Presidents, such as our current President, Maria Dew KC, Ish Jayanadan from South Auckland Bar Association, or Fiona Guy Kidd KC from CBA. This is because we have slightly different plans for them in our next issue - but don't tell them.

Frazer Barton – New Zealand Law Society | Te Kāhui Ture o Aotearoa

The 33rd President of the NZLS | Te Kahui Ture o Aotearoa had been in the job less than a week when interviewed. With his extensive governance experience both within and outside the Law Society, Frazer Barton’s philosophy is to be involved and “just step up if you think you can add value to the role”. Frazer feels a sense of responsibility to the profession and a strong desire to give back from what he sees as a privileged position as a senior member of the legal community.

With 16,000 members, each with their own opinion –and the ability to express it, Frazer’s greatest challenge is to ensure the oars are all pulling in the same direction, since many of the issues faced are common to the entire profession. “There are big challenges out there for our profession, so there is a need to be united and make sensible, well-thought out decisions, and execute them. We have a lot of talent to draw on, with a lot of energy and deep commitments.”

Frazer has plenty of advice for others considering a leadership role. Build up to a presidency through lower level governance positions; have an excellent support structure at work and home; keep an open mind and listen so you can extract the best from all around the table, not just the noisy ones. “When you have truly listened, you can synthesize from each and put a solution together. This encourages buy in and a sense of collective responsibility from your team.”

When asked about the current challenges he sees for the profession, Frazer had a list, and this became a somewhat common refrain among all interviewed. Access to justice, upholding the rule of law, ensuring diversity in the sense that the profession must reflect society. He also sees change on the horizon with new practicing structures and ways to supply legal

services. But the biggest challenge in his term so far, Frazer quips, has been coping with the hundreds of congratulatory email messages!

Arti Chand – Pacific Lawyers’ Association

The Pacific Lawyers’ Association (PLA) would ideally have two presidents, one male and one female. However one of the challenges the PLA faces is that there are more female than male members, and so Arti Chand finds herself sole President. With a solid background in NZLS leadership roles, Arti has a broad understanding of the wider profession which she finds very helpful in her current role.

When asked to take on this presidency, Arti faced a dilemma. She had recently decided to step back from the heavy time commitment of board roles to focus on her practice. Her decision fell on the side of service to the Pacific people in the profession, the place she feels most connected.

With its young and enthusiastic executive, the PLA is just 21 years old and has a lot going on and a lot to achieve. “There’s so much brilliance coming through the ranks; this is such a positive role.” The PLA is, according to Arti, a true home to Pacific lawyers where the issues they face are addressed squarely. “With only 500 of us in New Zealand, we are vastly underrepresented in the profession. Our greatest challenge is to fix the pipeline, starting at high school – our people are often the first in their family to go to university, let alone study law.”

Her advice? “Clear your diary and learn to prioritise. There’s a lot to do and you can’t do it all, so focus on what benefits members most.” Arti gets a lot of ‘soul’ out of her role. “Not all governance roles are like this – the PLA’s focus is on the wider Pacific community. We are in high schools, we support Pacific law students, we are on Pacific radio – we have true grass roots community involvement. We are all about family, support and service.”

In Pacific culture, service is the core path to leadership. Arti believes it is essential to remind yourself why you are there – to help members achieve what is best for them.

“The profession faces a huge challenge in terms of its composition. Alongside addressing current issues of racial profiling in the court system, this means acknowledging different cultures and ensuring growing populations feel they belong in the profession. In the next 20 years we will see 30% of the population Māori and Pacific, and 35% Asian. At the moment, only 10% of lawyers are Asian, and there are no Pacific KC or High Court judges.”

Arti is a woman with a mission to change the status quo and help the profession to move with the times. Watch this space.

Marie Dyhrberg KC District Law Society

Marie Dyhrberg KC completes her three year term at the ADLS in March 2023. Committed to the criminal justice system and a well-known leader, Marie sees her current role as a natural transition from the Criminal Law Committee and the ADLS Council.

“I had no hesitation taking on this role; there’s a job to be done. If I have spare time I fill it, whether with Netflix or committee work, but I have high energy and do like to be involved.” Taking the helm of any organisation or committee is a personal challenge, and Marie thrives on gathering a group together and making change, leaving any leadership role with a path to the future and the satisfaction of knowing she has made a difference.

The most difficult aspect of leading a team –particularly a team of volunteers – is to keep the balance between motivating and overworking. Marie believes it is essential to create a sense of unity and a single purpose, which of course means high level juggling, monitoring everyone’s contribution and ensuring an open door should issues arise. “You must allow for humanity. It’s a great challenge and very rewarding.”

From a personal perspective, Marie says, “As soon as you think you know it all, you are doomed. I always ask myself what I would like if I was on the receiving end. It’s common sense really.” Her advice to others taking on a leadership role is to be very careful about doing things behind the scenes or off the record. Be open and honest, especially if things are not going well. “But the main thing is to enjoy it, take time for humour and goodwill amongst committee members.”

“To be seen as a leader, you must behave like one, and that means looking and acting professionally. If you are not sitting at the head of the table and not seen by the group and as leader, you’ll never achieve what you want. There’s no harm in getting out-voted but be prepared to either persuade or reassess your own thinking. And don’t take anything personally.”

Like others, Marie believes listening and involving all committee members is key to being an effective president.

Marie ardently hopes the profession holds on to the good that came out of Covid-19. “People learned a lot about themselves and how they work. They learned new skills and the value of socialising and being with other people. They realised how important it is to rely on each other and be aware of how others are coping. This more humane approach is something to value and nurture.”

Elizabeth Hall – Defence Lawyers Association | Te Matakahi

The baby among legal organisations in Aotearoa, the DLA was only established in 2020. Current CoChair Elizabeth Hall’s passion for the DLA and for the people at the defence bar is immediately evident. “I worry furiously about what would happen if we did not have a strong and robust criminal defence bar. The work is acutely difficult and comes with distinct pressures, and that is the driving force behind the establishment of the DLA.”

With six children and a busy practice, one might wonder where Elizabeth finds the energy for this added burden. “Proactive by nature, I could see how I could add value in a bigger way than just looking after my own cases.” Elizabeth is immensely proud of what has been achieved in such a short time, believing the DLA will strengthen the profession overall which is, of course, integral to how the legal community operates. “To protect human rights, you need a strong defence system.”

This “idea drenched” organisation reimagines how legal associations can work. The DLA is responsive and reactive, already holding exceptionally well-attended conferences solely focusing on meeting the needs of criminal defence lawyers. There is no conference fee, just koha. If someone can’t afford to attend, they get help. They operate a buddy system so young practitioners learn from the experience of others. The tensions for practitioners which the DLA is working to address include marrying obligations to practice, family and self, given the extraordinary expectations on practitioners at the defence bar. Elizabeth believes in the importance of building and maintaining professional relationships and supporting those around you.

Liz's advice for future DLA Presidents is to remember why the organisation was founded, the underlying philosophy and ethos. “Anyone filling this role will need to be decisive and to show leadership, know when to consult, and of course time management.” With her seemingly infinite capacity and passion, Elizabeth feels protective and concerned for the future of the defence bar with its relatively poor financial rewards and relatively great pressures. “There’s only so much people can take.”

Baden Vertongen - Te Hunga Rōia Māori o Aotearoa | Māori Law Society

Baden Vertongen states he was “voluntold” to take on the role of Tumuaki Tāne, the male CoPresident of Te Hunga Rōia alongside Renika Siciliano. He has held governance roles prior to this but admits to being intimidated by this role; having such respect for the Rangatira of the Māori legal profession who had gone before, he just didn’t think he could do the role justice. Baden’s “imposter syndrome” is a common refrain in this area of the profession.

Acknowledging the challenge of being the voice of such a diverse group, Baden treads a delicate line while also providing space for everyone to have a view. “I am very conscious of not placing too great a burden on any one individual, but the reality is that there are just not that many of us.” It’s also proven to be something of a challenge working this commitment around his sole practice. Noting how easy it is to narrowly focus on one’s own practice niche, Baden relishes exposure to other parts of the profession that this role has given him.

As the year has passed, Baden’s imposter syndrome has faded. His advice to others is that you can do it. “There are all sorts of amazing people involved who are there to help. They want you to succeed. You don’t have to do it all and you shouldn’t – if you need help, just ask.” Baden has developed his ability to be open to the different perspectives of everyone he deals with, noting that each person comes from a particular personal place on each issue.

Baden is deeply immersed in the challenge of growing an indigenous Aotearoa legal system that incorporates both western legal traditions and tikanga Māori. “Young Māori law students coming through need a profession where they feel at home and supported, and where they will stay. It’s not currently a place that encourages growth, with our young people having to climb over hurdles at every step – getting into law school, getting a clerkship, moving through the ranks. Te Hunga Rōia was set up to provide this support and pave a way for them to get through and succeed.”

Kate Davenport KC

In accepting the challenge to be President of the NZ Bar Association | Ngā Ahorangi Motuhake o te Ture in 2016, Kate Davenport KC saw her chance to be involved in the profession and to do what she could to bring about effective change.

And in 2019, there was unimaginable change. Where once there was territoriality, the pandemic forced close collaborative connections among legal organisations all working to keep the justice system operating during lockdowns. “It was frustrating, and sometimes very sad, but it was a privilege to be involved at a time when the profession pulled together in ways

not previously seen before.”

“It’s my belief that the legal profession will never be the same; we will never have this experience again. A poignant moment for me was writing a Bar Association newsletter full of advice and encouragement for members, knowing we were all in this together, all working through the same huge challenges in every area of our practice and life – balancing family with working from home, adopting new means of communication and technology, isolation and frustration.”

“Recognising your own shortcomings is a lifelong lesson, brought to the fore in a role such as this. My advice to others stepping into a leadership role is simply to enjoy it; you will never get this time again.” Observing how hard others work towards achieving organisational goals was eye opening. “Jacqui Thompson, for example. She just gives it her all, but others don’t observe this, and so don’t necessarily appreciate the effort.”

“These positions are time consuming and the work seemingly never-ending, but if you are doing it out of passion for the profession, have the ability to delegate and take responsibility, and of course a sense of humour, they are incredibly satisfying.”

Kate also spoke of the pressures on the justice system caused by societal pressures, and that those most in need of legal services are the least able to afford it. “This need will only increase, so the challenge is to find innovative ways to deal with it and ensure the legal profession is available to everyone, not just those who can afford it.”

Known forever as “the Covid President”, when stepping down from her position Kate describes a melancholy moment as she handed over the reins to Paul Radich KC and settled back into her normal working life, aware she would likely not be in this privileged position again.

Paul Radich KC – NZ Bar Association | Ngā Ahorangi Motuhake o te Ture

When it came to accepting the role of President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, Paul Radich KC looked back on his three decades of solid legal work and decided it was time to put his head above the parapet and look more broadly at the profession as a whole.

Paul relished the opportunity to address real issues facing practitioners: legal aid, access to justice, diversity. From the NZBA council table, he had seen the differences that could be made and thought just maybe he could make a difference himself.

He quickly became master of his calendar. There was no time to ponder, and time took on a whole new dimension. “You learn that you have to make decisions quite quickly. At the start, it takes time to formulate views and how to go about it, but you soon learn that

you need to make judgment calls frequently and back yourself to express them. I found myself on the spot all the time, and just got familiar with that.”

Reminding himself daily that he was doing it for the issues and at a time in his career when he could immerse himself in the profession in ways he could not have done earlier, the most challenging aspect of the role was to accommodate and reflect the desires and views of a diverse membership – “that’s particularly hard when dealing with lawyers!” Genuinely getting value from the disparate views, often changing his own perspective through the process, he found the shared experience of enabling a consensus enormously rewarding. “It really helps to have the ability to bring people along with you, so you are doing it together, all on the same page.”

Paul believes one of the biggest challenges facing the profession is the legal aid crisis where practitioners are leaving the scheme because it’s simply too difficult and unrewarding to work within, meaning we are still a long way off reflecting a system which really provides access to justice. Another barrier to justice currently being addressed by Justice Goddard is the advance in technology and how that has affected the cost and time involved in discovery.

The final challenge Paul raised was the need to address diversity. “The Bar Association has done significant work towards gender equitable briefing in our senior bar but there’s a lot more to be done here in cultural diversity, again in senior positions such as KC and the bench.”

The most significant and moving event for Paul in his tenure was the gifting ceremony of the Bar Association’s te reo name - Ngā Ahorangi Motuhake o te Ture. The NZBA and Paul personally strive to incorporate te ao Māori and this was a symbolic and substantive part of making great strides in that area.

NZLS out of that low. This crisis had been a motivating factor for Tiana to take on this demanding role, having first-hand experience of many of the issues presented.

The pandemic then required 100% focus to work out how to keep the courts functioning and managing the IT implications for communication across the legal community, forcing the legal world into a more technologically savvy state and paving the way for wider tech improvements in the justice system. The pandemic also presented another health and wellbeing crisis, somewhat ironic as Tiana unexpectedly discovered she was pregnant.

As the pandemic raged, Tiana spent countless hours on yet another crisis – legal aid. Carting her new baby around to meeting after meeting, she launched a big campaign to address legal aid rates. While the result was not quite what was hoped for, Tiana believes this campaign was her greatest achievement as President, working closely with presidents of other legal organisations, developing cohesion and common purpose across the industry.

Reflecting on her time as President, Tiana learned her capacity for challenge is greater than she anticipated –as evidenced by having a baby mid-term. She counsels people to reach out for help if they are struggling. She received strong support from her team, from her ally Paul Radich KC, and others among the profession such as the then NZBA President Kate Davenport KC, with whom Tiana worked closely.

“Leadership is not as easy as it looks, and it gets hard very very quickly. The issues to be addressed must be fundamentally at your core to be able to keep going when being hammered by everything. The goal for me was to leave the profession in a much better place than when I came in, and that’s what kept driving me forward.”

Tiana

Epati - New Zealand Law Society | Te Kāhui Ture o Aotearoa

It would be surprising if Tiana Epati emerged emotionally unscathed from her tumultuous term as President of the NZLS, and she admits to a wide range of emotions. Alongside relief and complete exhaustion, Tiana misses connection with close colleagues but is thrilled to be able to enjoy time with her family, for the first time in three years.

As a Pacific Island woman practising law in a small town, Tiana saw the presidency as an an opportunity to address issues she had faced. Just perhaps, she thought, it was time. Her aspirational plan set out three clear strategic pillars. Health and wellbeing, communication, and access to justice.

Stepping into the role as the #MeToo crisis in the profession was unravelling, Tiana spent the next year on the road every day delivering speeches and attending more events than any other President had, pulling the

Tiana believes the key challenge for the NZLS will be to maintain the momentum of change in legal aid and access to justice. A second, no less important challenge, will be to continue to work closely and collaboratively with professional organisations like the NZBA as was developed through the pandemic.

Talking about the legal aid crisis on Radio NZ, Tiana had senior members of the criminal bar contact her to say they sat in their cars and cried as they listened –finally, someone was listening. She had been given the opportunity and she took it.

Conclusion

So there you have it. These presidents, past and present, share common goals for the future of the profession. They value the good that Covid brought about while digging deep to work through a crisis. And they all share a passion for the profession and for their particular organisation, without which their roles would be so much more difficult.

* Barbara Relph is a freelance writer and proof-reader –www.barbararelph.com

King's Counsel 2022

Barbara Relph*

The appointment of ten new King's Counsel is a welcome opportunity for everyone at the Bar to celebrate. This year, we experienced the sad but expected change from Queen's Counsel to King's Counsel. But the rank itself retains the qualities that have been promoted over the years. We outline the criteria for King's Counsel.

In 2022, 88 candidates applied to become Queen’s Counsel. At the end of the process, 10 were successful. But they will not be Queen’s Counsel. They will receive letters patent as King’s Counsel, the first time our Governor-General will make these appointments in the name of a King in 70 years.

The wording of the letters patent may seem arcane:

To [Name], Barrister of [Location], Greetings! We, confiding in your knowledge, experience, prudence, ability, and integrity, do nominate, constitute, and appoint you ... to be one of Our Counsel learned in the Law for New Zealand for and during Our pleasure, to take rank... and you are to discharge the trust hereby reposed in you to the best of your knowledge and ability, with due respect to the law and usages of New Zealand, mindful always of your obligations to the court.”

However, this language, together with the appointment criteria, sets the tone for what is expected of Silks. The Queen’s Counsel – Guidelines for Candidates 2022 specify the criteria for the recommendation of candidates and say that they “… reflect the position of the office as the top echelon of barristers in New Zealand.” These factors include the overarching requirement for excellence, which requires considerable length and depth of experience. Added to this are expert and up to date knowledge of the law, a commitment to improving access to justice, superior skill in oral and/or written advocacy, independence in devoting themselves to their clients’ interests, integrity and honesty in all dealings, and leadership in setting and maintaining the standards of the profession.

It is a tall order, but our new King’s Counsel have many examples that they can follow, both present and past. And on that note, we thank those who have left the profession. Ian Millard KC retired in June and is looking forward to a well-deserved change. All the best, Ian.

Sadly, Sir Ian Barker KC died this year. While Sir Ian had retired in 2019, this could best be viewed as a part-time retirement, and he remained involved in the legal profession. And very recently, we farewelled the Hon. John Fogarty, much to the sadness of many at the bar. An obituary for Sir Ian appears on p19 of this issue and a tribute to Justice Fogarty from the Chief Justice is on p21.

The Bar Association warmly congratulates the new Silks and wishes them the best as they undertake the duties and responsibilities of their rank.

Andrew Butler, Wellington Andrew Butler graduated BCL (First Class Honours) from University College Dublin in 1989 and LLM from Osgoode Hall Law School, Toronto, in 1991. He was admitted to the bar in New Zealand in 1994 and began independent practice while also teaching at Victoria University of Wellington. In 1999 he joined the Crown Law Office as Crown Counsel in the Human Rights Team.

He graduated from the European University Institute, Florence with his PhD in 2002. In 2005 Andrew joined Russell McVeagh’s Wellington litigation team, becoming a partner in 2007. In 2018 Andrew re-commenced practice as a barrister at Thorndon Chambers and is also a member of Mills Lane Chambers, Auckland. Andrew’s practice is broad, spanning commercial law, tax, governance (corporate and public entity), trusts, public regulatory, administrative law and human rights. He acted as Counsel Assisting the Royal Commission of Inquiry into the terrorist attack on Christchurch masjidain.

Andrew edits and has authored significant legal texts, articles and journals in his specialist areas. Most recently with Sir Geoffrey Palmer KC he proposed that New Zealand adopt a written constitution: Towards Democratic Renewal (Wellington, VUP, 2018). Andrew is Chair of the New Zealand Law Foundation and a member and convener of the New Zealand Law Society’s Human Rights and Privacy Committee.

Bronwyn Carruthers, Auckland

Graduating LLB(Hons) and BSc (Environmental Science) from the University of Waikato, Bronwyn Carruthers was admitted in 2000. She specialises in environmental, resource management and local government. She started her career at Simpson Grierson, joined the Russell McVeagh partnership in 2011 then Shortland Chambers in 2018.

Bronwyn acts for a broad range of clients across the country, with experience at all levels of the justice

system. She is also the convenor of the Environmental Law Committee of the NZLS and editor of the Resource Management Law Association’s Journal.

Nicholas Chisnall, Auckland Nicholas (Nick) Chisnall holds a BA (History) and LLB from Victoria University and was admitted to the bar in 1999. Initially embarking on a career in commercial, property and employment law at Gibson Sheat Lawyers, he soon changed career direction to criminal law.

Nick joined the Police Prosecution Service in 2003, becoming a senior Crown Prosecutor in 2004 and joining Crown Law in 2008 where he became Crown Counsel. A move to the Public Defence Service in 2011 saw Nick appointed General Counsel in 2013, where he oversaw the Service’s appellate practice in the Court of Appeal and Supreme Court.

In 2017, Nick joined Blackstone Chambers as a barrister, specialising in criminal law, employment law and professional disciplinary proceedings. He has conducted many high-profile appellate proceedings and contributed extensively to criminal law publications.

Nick was appointed a Deputy Chair of the Teachers’ Disciplinary Tribunal in 2016 and is the Co-Chair of Te Matakahi | Defence Lawyers Association New Zealand and a member of the NZLS Criminal Law Committee.

Dr David Cooper, Auckland David Cooper graduated from the University of Auckland in 1991 with an LLB(Hons) and was admitted to the Bar later that year. He joined Bell Gully’s litigation department before continuing his studies at the University of Cambridge, graduating with a PhD in law in 1996. During this time, he spent a year teaching at the University of Chicago Law School as a Bigelow

David returned to Bell Gully and was a litigation partner for 14 years until he commenced practice as a barrister at Shortland Chambers in 2017. An experienced trial and appellate advocate, David appears in the courts at all levels, in arbitrations and before specialist tribunals. His litigation practice focuses on complex contractual disputes, company and securities law, takeovers, competition law, regulatory investigations, class actions, construction and insurance.

David is a co-author of Corporate Law in New Zealand and a Convenor of a Law Society Standards Committee.

Tiffany Cooper, Auckland

Tiffany Cooper KC was admitted to the bar in 1999. Starting her career practising commercial and civil law, she has been a litigator since 2004 when she began work at Hamilton Crown Solicitor Almao Douch, followed by a move to Meredith Connell in 2005 where she was a Senior Associate before joining the independent bar in 2014.

Tiffany’s practice now primarily consists of criminal defence work. She specialises in sexual assault cases and represents clients in all criminal matters including drugs, fraud and homicide.

Tiffany is legal aid approved for all categories in criminal proceedings, including matters in the Court of Appeal and Supreme Court, and has experience representing clients before the Parole Board and at coronial inquiries. She regularly represents clients in appeals against conviction and sentence.

Catherine Cull, Northland Catherine Cull graduated LLB(Hons) from Auckland University and was admitted to the bar in 1985, joining Meredith Connell. In 1988 she moved into legal education at the Institute of Professional Legal Studies. Joining the Christchurch Crown Solicitor’s office Raymond Donnelly & Co, her practice comprised criminal and family law.

Appointed to Christchurch Counsel for Child list in 1990, Catherine joined the independent bar, practising from Clarendon Chambers and later expanding her experience working as Investigating Officer of South Island Prisons in the Office of the Ombudsman.

Catherine moved to Northland and re-joined the independent bar in 2001, where she has a front-line law practice in Kaikohe. Making significant contributions to legal education throughout her career, she was appointed a Youth Advocate for Kaikohe and Kaitaia in 2004, Legal Services Agency Auditor in 2016 and to the Northland Crown Prosecution Panel in 2021.

With extensive experience in criminal jury trials for both defence and prosecution, Catherine’s passion is “crossover court”, to her knowledge currently only available in Northland and Auckland. Crossover court addresses the care and protection needs of young people who find themselves in trouble as well as addressing their legal needs.

Jason Goodall, Auckland

Jason Goodall graduated from the University of Auckland with an LLB(Hons) in 2003, having previously obtained a commerce degree in finance. From 2003, he was the Judge’s Clerk to Justice Blanchard in the Court of Appeal. He was admitted to the bar in 2004 and joined Russell McVeagh’s litigation department. During this time, he guestlectured civil procedure and co-lectured civil remedies at Victoria University of Wellington.

In 2008, he joined Slaughter and May in London as a senior associate in the litigation department, returning to New Zealand in 2010 to join the independent bar at Bankside Chambers, practising in commercial litigation. Jason has a long history of acting pro bono and working with community law centres and is a member of the Pacific Lawyers’ Association and Restructuring Insolvency & Turnaround Association of New Zealand.

Jason is co-editor of Hinde McMorland & Sim Land Law in New Zealand and Principles of Real Property Law, and author of Hinde on Commercial Leases. His practice focuses on banking and insurance litigation, insolvency, professional negligence, trust and property disputes, and class actions.

Stephanie Grieve, Christchurch Stephanie Grieve graduated with a BA LLB(Hons) in 1997 and was admitted to the bar the same year. She joined Christopher Caldwell Chambers as a barrister, acting as junior counsel in civil and criminal matters.

Moving to Europe in 1999, she acted as a Common Law Advisor in Paris for the defence team in a matter before the International Criminal Tribunal for the former Yugoslavia, then as a Legal Advisor at Chase Manhattan Bank in London and as Legal Counsel at UPC in Amsterdam.

On her return to New Zealand in 2002, Stephanie joined Anderson Lloyd Lawyers becoming a partner in 2005. In 2011 she joined the partnership at Duncan Cotterill, co-leading the litigation team in Christchurch before joining the independent bar in 2018.

Now practising at Plymouth Chambers, Stephanie acts in civil, regulatory and disciplinary trials and coronial inquests. She assisted in the establishment of the Christchurch branch of the Mothers’ project in which volunteer lawyers assist women prisoners with issues relating to their children.

She has acted on a pro bono basis in a number of earthquake and contractual claims and is also involved in regular advocacy coaching and training initiatives.

Simon Mitchell, Auckland Simon Mitchell graduated in 1990 from Auckland University and was admitted to the bar in 1991. He has worked as a litigation lawyer since 1990 specialising in family and employment law. Simon regularly appears in the Family Court and all employment institutions, from the Mediation Service to the Court of Appeal.

Joining the independent bar in 2005, Simon practices out of Hobson Chambers in Auckland. He enjoys the challenge of assisting clients through difficult transitions and has acted for children in the Family Court for 20 years, frequently working in areas of domestic violence, care of children and property disputes. With strong litigation skills, Simon negotiates settlements where possible, acting for workers, employers and unions.

Simon regularly appears in the Family Court and on appeals from Family Court proceedings, and in all of the employment institutions including the Mediation Service, Employment Relations Authority, Employment Court and Court of Appeal.

He frequently presents at NZLS seminars and conferences in his specialist areas of practice.

Lisa Preston, Christchurch Lisa Preston graduated from Victoria University BA LLB(Hons) in 1992 and was admitted to the bar later that year. She commenced practice in Bell Gully’s commercial litigation team before joining Luke Cunningham & Clere, the office of the Crown Solicitor, Wellington, in 1994. After practising commercial litigation in the UK, Lisa resumed practice as a Senior Crown Prosecutor in 2003. In 2011 she was Crown Counsel in the Crown Law Office, conducting criminal case appeals in the senior courts.

Joining the independent bar in 2014, Lisa specialises in in criminal, medico-legal, professional disciplinary and regulatory law, as trial and appellate counsel. She joined Bridgeside Chambers in 2021, is a member of Te Kāhui Tātari Ture | Criminal Cases Review Commission independent legal counsel panel, conducting application reviews and a member of the Solicitor-General’s Senior Crown Prosecutors panel. She is regularly appointed Amicus Curiae including in the senior courts.

She serves on the New Zealand Law Society Criminal Law Committee, has guest lectured at the Otago University Faculty of Law and conducted residential advocacy training courses for the NZLS and police and departmental prosecutors at the National Police College.

* Barbara Relph is a freelance writer and proof-reader –www.barbararelph.com

Sir Richard Ian Barker KC 17 March 1934 – 11 November 2022

Barbara Relph*

It is with great sadness that we farewell Sir Ian Barker KC, Honorary Member of the NZBA | Ngā Ahorangi Motuhake o te Ture and a man with deep connections to many within the profession.

Following his childhood in 1930s Taumarunui, Sir Ian undertook the study of law because, in his words, he was “too clumsy to be a medical practitioner, not mechanically inclined for engineering … and [he] did not want to be a teacher”. Entering the profession in the 1950s, Sir Ian began in general practice with Thomas Doole, gaining knowledge he claimed was useful later in his career, such as the mechanics of conveyancing which helped him when he was confronted with land cases (including the seminal indefeasibility of title case, Fraser v Walker1). Thanks to what he described as a “maverick insurance client”,2 Sir Ian also spent a great deal of time in the Magistrates Court, where he acquired witnesshandling and cross-examination skills.

Sir Ian was admitted to the bar in 1958 without fanfare. Back then, he said, admission was simply a matter of turning up in chambers, where the oath was administered, and then you went back to work. There were no gowns or wigs, no open court with family watching on or other ceremonial trappings. His call to the inner bar in 1973 fared slightly better, but only marginally – he was the only candidate and there were only two judges, but at least it was held in open court.

Following his admission, Sir Ian joined Morpeth Gould in Auckland, where he quickly became a partner practising mainly personal injury, family protection and property disputes. While he did not practise criminal law, he did junior in a murder case in 1969. Lead counsel was Martyn Finlay QC (former Labour politician and Attorney-General), described by Sir Ian as a very good criminal lawyer. Unfortunately, their client was convicted and sentenced to death. While the death penalty was repealed before the sentence could be carried out, Sir Ian described this experience as “slightly creepy”.

In the mid 1960s Sir Ian had the opportunity to appear with Paul Temm (as he was) before the Privy Council in two cases, argued one week after the other. Sitting in Downing Street at the time, the Privy Council comprised some of the most famous names in jurisprudence: Viscount Dilhorne, Lord Denning, Lord Hodson (who slept some of the time), Lord Wilberforce (whom Sir Ian described as the brightest Judge he ever

appeared before), and Sir Garfield Barwick, the Chief Justice of Australia. Viscount Dilhorne was intrigued by the fact that while Temm led in Fraser v Walker, a week earlier Sir Ian had led in Jeffs v New Zealand Dairy Production & Marketing Board. 3 It turned out that both Temm and Sir Ian had been admitted on the same day and neither could claim seniority.

Sir Ian found the decision to join the independent bar difficult as he would be making himself and his family “hostages to fortune”. However, with relatively few barristers sole in 1969, there was room for newcomers. Setting up chambers in a new building housing a couple of solicitors’ firms, Sir Ian remarked that “the law of propinquity is a good thing.”

When Sir Ian took silk in 1973 the process simply involved a discussion with the Chief Justice followed by approaching the Attorney-General. Sir Ian’s discussion with Chief Justice Sir Richard Wild caused him some trepidation, but Attorney-General Martyn Finlay QC of course recalled Sir Ian from their early murder case. Before the call ceremony, the other silks took him to lunch, encouraging him to drink sufficient red wine to falter over the oath. Fortunately, they failed, and Sir Ian managed to get through it without problem.

In 1976, at the age of 42, Sir Ian became a High Court Judge. There were only eight judges in Auckland at the time, and he described his office as a broom closet at the top of the stairs in the old High Court building. Asked about the highlights of his time on the bench, he recalled the Securitibank litigation. It more or less fell into his lap. He was taking a quick break when a court official asked if he would urgently see a lawyer – James Farmer KC – whose client wanted to put Securitibank into provisional liquidation.

This request led to what was the largest commercial case in New Zealand’s legal history, resulting in ten years of litigation with 41 judgments related to Securitibank itself and another dozen or so in relation to its subsidiaries. Farmer says it was almost certainly the first time a judge case managed major litigation.

The first and most important judgment was an application for directions by the Provisional Liquidator, represented by Farmer. Because there were several groups or different types of creditors, different counsel were appointed by the Court to represent each of those groups. They included Richard Craddock and Don Dugdale, then arguably the leaders of the bar and Rhys Harrison KC and Colin Nicholson KC (later High Court Judges and in Harrison’s case, a Court of Appeal Judge) and Alan Galbraith KC.

Sir Ian’s judgment occupies 115 pages of the New Zealand Law Reports4 following a four-month hearing and just seven weeks to write his judgment. Farmer recalls that:

“[T]he Securitibank case] also heralded calls for the establishment of a specialist Commercial List to ensure that commercial litigation was accorded a degree of priority and specialisation. The Commercial List was eventually established, and Ian was the first Judge appointed to manage it, which he did with great skill for several years. It was a disappointment that the List was confined to managing commercial cases to the point of readiness for trial and that there was not a panel of Judges with commercial experience appointed to try the cases. However, I have no doubt that he used his position and influence to ensure that the Judges who were allocated to conduct the trials were not completely inappropriate or unsuited to do so.”

Famous in legal circles for his outstanding memory, Sir Ian relished complexity and obscure detail as exemplified in his last case, Shell (Petroleum Mining) Co. Ltd v Kapuni Gas Contracts Ltd involving splitting ownership of a gas field. Sir Ian was also the Executive Judge for six to seven years and created the duty judge role.

Chief Justice Dame Helen Winkelmann paid tribute to Sir Ian, saying that he was “… an outstanding judge and a true leader of the profession. His distinguished career in the law spanned sixty years of service to the law, to the judiciary – both here and in the Pacific – and to our society. His passing is a loss that will be widely felt.”6

Matthew Andrews, now Chief Legal Advisor at Te Arawhiti | Office for Māori Crown Relations, fondly remembers his time as Sir Ian’s clerk at the Auckland High Court. “I had the great fortune to clerk for Sir Ian at the Auckland High Court. His in-court persona was of someone who expected high standards, especially in the crazily busy Auckland Commercial List of the early 1990s which rapidly developed Aotearoa's commercial law in so many areas.”

“To his clerks he was kind and encouraging. He showed his appreciation for help on his many speaking and academic commitments through excellent red wine. My strongest memories of him at this time were those cases where he sought to align the law with what was right, when it wasn't always clear that the outcomes would be the same.”

Sir Ian retired from the bench in 1997 at the age of 63 and began what he called his third career in the law. He became a foundation member of Bankside Chambers in 2001 where he practiced as an arbitrator and mediator. He was chair of the Banking Ombudsman Commission, a

REFERENCES

1Fraser v Walker [1967] 1 AC 569; [1967] NZLR 1069

World Intellectual Property Organisation (WIPO) panellist for domain disputes, and he conducted investigations. He said that his most interesting inquiry involved the award of a Master of Arts degree for a thesis that essentially denied the holocaust had happened.

Regularly sitting on the Court of Appeal bench in the Cook Islands and that of other Pacific nations, Sir Ian developed an affinity for the Cook Island people and found the work to be very interesting and his cases diverse, ranging from the Cook Islands superannuation scheme, land cases, and fishing rights issues concerning the Cook Islands’ extensive exclusive economic zone.

Sir Ian also served as President of the Legal Research Foundation from 1982-1991 and was appointed a Fellow at the end of his presidency. He taught law and was the longest serving chancellor at the University of Auckland from 1991 to 1999, enjoying seeing the joy on the faces of the students being capped.

Becoming an associate member of Bankside in 2019, Sir Ian’s version of retirement involved many morning tea catch-ups with old and new colleagues seeking advice and a friendly ear. Not one to waste time, Sir Ian also provided weekly remedial reading assistance at Otahuhu College alongside two other retired High Court judges.

Many colleagues at Bankside Chambers have paid tribute to Sir Ian. NZBA President Maria Dew KC was a former Bankside colleague. She notes, “We are saddened by Sir Ian’s loss, and he will be deeply missed. He was a wonderful mentor to me and many others. He contributed to many organisations over the years, the NZBA included. At Bankside, he was kaumātua to all. He rarely spoke about his own accomplishments, and instead focused his interest on others and the world outside the law, travelling, writing, and engaging to the end. His warm smile will be missed.”

Deeply respected by all, Sir Ian was held in the highest esteem by colleagues and fellow judges alike. He was famous for his warmth and kindness, his sharp intellect, efficiency, and endless capacity. Sir Ian was knighted in 1994, acknowledging his huge contribution to law. In a 2020 webinar, Sir Ian was interviewed about his career by Kate Davenport KC. She asked him what he would like his legacy to be. He replied, “That he dealt with people justly and efficiently and tried to make the system work better.”7 Few would argue with that, but they would also add that he contributed more than he took.

Sir Ian is survived by his wife Mary, his five children, Clare, John, Andrew, Mary Elizabeth and Lucy, and his grandchildren.

* Barbara Relph is a freelance writer and proof-reader –www.barbararelph.com

2A Chat with Sir Ian Barker QC (Webinar, 21 May 2021, New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture)

3Jeffs v New Zealand Dairy Production & Marketing Board [1967] 1 AC 551; [1967] NZLR 1057

4Re Securitibank Ltd (in liq) [1978] 1 NZLR 97

5Shell (Petroleum Mining) Co. Ltd v Kapuni Gas Contracts Ltd (1997) 7 TCLR 463

6Chief Justice pays tribute to Sir Ian Barker KC (https://www.nzbar.org.nz/news/chief-justice-pays-tribute-sir-ian-barker-kc)

7Above at n2.

Chief Justice pays tribute to John Fogarty KC

The Honourable John Fogarty KC (1947-2022)

The Chief Justice, The Rt Hon Dame Helen Winkelmann, today paid tribute on behalf of New Zealand’s judiciary to the Honourable John Gerard Fogarty KC, who passed away on Saturday 10 December 2022.

“On behalf of the New Zealand judiciary I acknowledge the Hon John Fogarty KC’s service to the judiciary and extend my deepest sympathy to his family.

John will be greatly missed by his many friends and colleagues in the judiciary and in the profession. John brought to the bench a broad and deep knowledge of the law. As a lawyer, and then as a judge, he worked selflessly for a just outcome. He was a man of unfailing courtesy – his colleagues on the bench remember his courtesy to them, to counsel, and to litigants. He was also a kind, humble and elegant man – elegant in his style, in his thinking and in his writing.”

John graduated from the University of Canterbury with an LLB (Hons) in 1971, before studying at the University of Toronto where he graduated with an LLM in 1974. He then joined Weston Ward & Lascelles, becoming a partner in that firm in 1978. He went to practice as barrister sole in 1985 and was appointed Queen's Counsel in 1990.

As a barrister he developed an extensive public law (including competition law) and commercial practice, appearing in many of the leading cases in those areas. He also worked as a mediator and arbitrator.

Deeply involved in his community, John was an advisor to the Deaf Sports Federation of New Zealand (formerly NZ Deaf Sports Association) for many years and was part of the organising committee for the 15th World Games for the Deaf, held in Christchurch in 1989.

John was appointed as a Judge of the High Court in 2003, sitting in Christchurch. He was the Civil List Judge for Christchurch in 2013, and was also a member of the criminal and civil division of the Court of Appeal between 2007 and 2015. From 2014, he sat at the Auckland High Court. He retired from the bench in 2017.

Among his many noted judgments is his first instance decision in the Takamore case (Clarke v Takamore HC Christchurch CIV-2007-409-001971, 29 July 2009) which addressed the place of tikanga in the common law.

Throughout his 14 years of judicial service, John also made a number of important extrajudicial contributions to the work of the High Court. He was a longstanding member of the Rules Committee, serving from 2005 to 2013 (including as Chair from March 2008). He was involved in several Rules subcommittees including in relation to the obligation of counsel to cooperate, class actions, and the Commerce Amendment Act 2008. As Chair of the Committee, he oversaw the reform of the rules relating to discovery, with the aim and effect of reducing the cost burden imposed by that step in proceedings.

His firm grounding in constitutional and public law was called on by judicial leadership to assist with tasks of judicial administration in support of a strong and independent judiciary. He helped to navigate the important boundaries between the judiciary and the executive in matters of judicial administration. He also assisted judicial leadership with commenting on law reform proposals where they impacted on the administration of justice. In this work he was able to draw on the experience he gained prior to appointment serving on the New Zealand Law Society Legislation Committee (including for two years as its Chair) and his 10 years serving (under appointment from the Minister of Justice) as a member of the independent Legislation Design and Advisory Committee.

John is survived by his wife Nan, his three children, Peter, Bridget and Francesca, and his six grandchildren.

Book Review

Ned Fletcher, The English Text of the Treaty of Waitangi

Book review by Karen Feint KC*

The only dull thing about this book is the title: The English Text of the Treaty of Waitangi. It would be a mistake to judge the book by its cover, however, because this fascinating and exemplary work of scholarship turns on its head the contemporary understanding of the meaning of the Treaty. As the Hon. Justice Sir Joe Williams says in his foreword to the book, there is no doubt that “Dr Fletcher has shifted the debate’s centre of gravity, and for that, Treaty law, history and scholarship owe him a debt of gratitude” (p.viii).

Dr Ned Fletcher’s ground-breaking conclusion is that the Māori and English texts of the Treaty of Waitangi reconcile, because the British fully intended to preserve Māori tribal self-government, property, and tikanga Māori (customary law). He thereby rejects the prevailing orthodoxy that the British Crown intended to acquire absolute and indivisible sovereignty in law and government over Aotearoa, and to assimilate Māori into settler society. Fletcher persuasively argues that the British objective was rather “to set up an arrangement similar to a federation, in which the sovereign power did not supplant tribal government” (p.529), and was limited to the objects of foreign relations, justice, peace and good order, and trade.

Since Ruth Ross’s insightful essay of 1972 comparing the English and te reo Māori texts of the Treaty, the conventional wisdom has been that they hold different and irreconcilable meanings in at least two key respects. First, the chiefs ceded “sovereignty” in the English version of Article 1, but the te reo version uses an ambiguous coined term “kāwanatanga” (governorship; it is thought that “mana” would have been the more precise term to express the source of power and authority). Secondly, in the English version of Article 2, the Crown guarantees to the chiefs the “full exclusive and undisturbed possession” of their lands and other properties, but the te reo version refers instead to their “tino rangatiratanga” (absolute chieftainship or political authority).

The argument advanced by historians such as Ross and Claudia Orange is that the acquisition of sovereignty was incompatible with the guarantee of rangatiratanga, and that Māori were misled by the mistranslation of the English text, most probably by deliberate design rather than sheer incompetence. This has led many historians, and the Waitangi Tribunal, to regard the Māori text as the authoritative version, because it is the one signed

by nearly all the 500-odd signatories (bar 39 rangatira at Waikato Heads and Manukau who signed an English version), and the contra proferentem rule presumes that ambiguity in meaning should be construed against the party that drafted it.

Fletcher warns us against taking an ahistorical view of the Treaty, interpreting it in light of events after the mid19th century, when successive settler governments aggressively attempted to crush Māori political autonomy through the wars of the 1860s and pursued assimilation of Māori society as a means of “civilisation”. To build his case, Fletcher lifts his gaze from a narrow focus on the text of the Treaty, to consider imperial policy throughout the British Empire in the 18th and early 19th centuries. He shows that in many parts of the British Empire the Crown tended to accommodate plurality by recognising indigenous systems of law and government, and protecting preexisting property rights (although, interestingly, Australia was an outlier in adopting the legal fiction of terra nullius).

The 1830s and 1840s were a time of flux in the history of European ideas. Liberal ideals sought to reconcile colonisation with the protection of indigenous populations, and the British government was lobbied by the humanitarian movement, which having succeeded in outlawing slavery had turned its attention to the plight of indigenous peoples in British colonies (fully aired in the Select Committee on Aborigines in British Settlements over the 1835-1837 period). However, there were also competing ideas based on racial discrimination and notions of racial superiority that were in the ascendancy throughout the 19th century, such as “stadial theory”, and the argument that indigenous peoples would benefit from colonisation through assimilation into a “civilised” society. Some scholars, such as Paul McHugh, argue that by 1840 the previous tolerance of plurality had been eclipsed by

a policy of developing colonies for British settlement subject to absolute rule, but Fletcher does not agree that this was the intention for New Zealand, at least in 1840.

Fletcher methodically works his way through the documentary record to reconstruct the thinking of the time. Britain was reluctant to colonise New Zealand, but by 1839 had concluded that it had no choice but to intervene in order to protect Māori from the lawless environment created by the thousands of disorderly and profligate British subjects living there. Its hand was forced by the New Zealand Company setting sail for New Zealand in May 1839, intent on acquiring as much land as it could before the imposition of British sovereignty and the outlawing of private purchases from Māori.

The Colonial Office, cognisant of the humanitarian concerns, decided that a cession of sovereignty from Māori was a necessary precondition to establishing a colony. The ideology was developed by James Stephen, the under-secretary who headed the Colonial Office, and a brilliant and principled lawyer. Fletcher describes Stephen as the “chief architect” of the Treaty (p.493) because he was primarily responsible for drafting Lord Normanby’s instructions which framed its terms. Those instructions set out important principles, stipulating that the “free and intelligent consent” of Māori had to be obtained to the cession of sovereignty, that Māori “indisputably” had title to the land, that Māori needed to retain the land necessary for their comfort and subsistence and not be permitted to enter into any contracts injurious to themselves, and that it would be necessary for the Crown to impose pre-emption (a Crown monopsony right of purchase of Māori land), ostensibly to protect Māori from land speculators.

The Article 2 guarantee of Māori tino rangatiratanga, tribal autonomy, is not explicitly spelled out in Normanby’s instructions, or the English text, but Fletcher argues that it is consistent with both the principal purpose of establishing government over British subjects for the protection of Māori, and with imperial policy elsewhere in the Empire, which Stephen well understood. His fine-grained analysis of the text also reveals some support for the argument (the reference in the preamble to protecting the “just Rights and Property” of Māori; the Article 1 cession of sovereignty over territories, not tribes; the promise of Royal protection in Article 3; and that retention of tribal property self-evidently requires the retention of customary law).

Fletcher’s conclusions may be startling to modern eyes, but he argues they are entirely consistent with the thinking of the architects of the Treaty and the leading Pākehā intellectuals of the 1840s. Fletcher cites contemporary understandings of officials and eyewitnesses present at the Treaty signings as the “most compelling evidence” that the Treaty protected Māori independence and tribal government (p.527).

These witnesses include Governor Hobson himself, who confirmed in writing in April 1840 that Māori customs would be protected (p.528), and Henry Williams, the missionary who translated the Treaty and who regarded the Treaty as the “Magna Carta of the aborigines of New Zealand”, in which sovereignty was surrendered for the preservation of order and peace, while chiefs retained their full rights of chieftainship (pp.480-481). Some accounts invoked the rangatira Nōpera Panakareao’s eloquent imagery that “the shadow of the Land goes to the Queen, the substance remains to us” (p.332). In 1860, the first Chief Justice, William Martin, advocated that Māori had retained full tribal authority, and only ceded sovereignty or governorship to the extent necessary “to avert the evil consequences which must result from the absence of the necessary Laws” (borrowing the language from the preamble to the Treaty) (p.484).

Fletcher closes his book by opining that the Treaty was “conceived, written and affirmed in good faith” (p.529). This is a contestable - and arguably naïveconclusion which made this (perhaps unduly cynical) Treaty practitioner raise an eyebrow. Fletcher makes a convincing case for the Colonial Office’s principled position that the Crown would be responsible for protecting Māori property rights, and that the early constitutional arrangements were devised to achieve that end (including the Crown’s right of pre-emption, and the Land Claims Ordinance 1841 that provided that pre-1840 purchases of Māori land were invalid, until proven as fair on inquiry). However, it is debatable whether the Crown’s role was wholly protective, given that the right of pre-emption also served the ulterior purpose of financing colonisation. Further, the Crown was aware that the New Zealand Company was proceeding with its colonisation scheme based on land speculation on a large scale. And, of course, those protective policies unravelled alarmingly rapidly once politics got in the way. Fletcher posits (fairly I think) that the 1840s cannot be judged by the revisionist views that had taken hold by the 1860s, when the Crown waged aggressive wars against Māori to defeat the Kīngitanga and secure land for settlers, and the Treaty was treated as a “simple nullity” (to quote Wi Parata). But even in the 1840s, although the Crown rejected outright the New Zealand Company’s arguments that sought to deny Māori property rights, it ultimately reached a forced resolution of the Company’s audacious land claims (based on an entirely spurious “purchase” of 20 million acres of land in 1839), in a way that prioritised settler interests in Wellington and Nelson over the Māori landowners.

This book is not the final word on the Treaty: it consciously only tells one side of the story; the te reo Māori version, and Māori understandings of Te Tiriti o Waitangi, are beyond the scope of the book. What is striking and important, however, is that the British understanding of the Treaty that Fletcher has conveyed appears to resonate much more closely with Māori understandings of the nature of the compact. In

2014, the Waitangi Tribunal found that the rangatira who signed Te Tiriti agreed to share power in a relationship in which they would be equal - “equal while having different roles and different spheres of influence” – while retaining their authority to make and enforce law over their people and their territories (Waitangi Tribunal, He Whakaputanga me te Tiriti: The Declaration and the Treaty (2014), p.xxii).

There is an extraordinary breadth and depth of scholarship in this book (even judging by the standards of the doctoral thesis that it started life as), as it ranges across the British Empire, and deep into the annals of colonial records in London and Wellington. Quite apart from the impressive research, this book is an enormously enjoyable read. Fletcher is an insightful and curious writer, and an astute judge of character. He builds into the history interesting vignettes of the key players, such as the redoubtable James Stephen, the opinionated, dogmatic, and self-aggrandising British Resident James Busby, and the dutiful but unimaginative Governor William Hobson.

While Fletcher has set the Treaty firmly in the context of 1840s’ thinking in the Colonial Office, paradoxically those ideas seem curiously contemporary today. First, modern case law recognises that Māori customary title survived the acquisition of sovereignty and is

cognisable in law (Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA)), a conclusion which aligns wholly with Stephen’s understanding of English common law in the 1840s. Secondly, recent Supreme Court jurisprudence has recognised that tikanga Māori is part of the common law, and that the tino rangatiratanga guarantee in Article 2 recognises “Māori rights to live by and benefit from tikanga” (Ellis v R [2022] NZSC 114, at [98] per Glazebrook J). Fletcher’s thesis that the Treaty was intended to protect Māori selfgovernance raises questions about the implications for the law. Is the Crown’s sovereignty qualified by the tino rangatiratanga rights of Māori? Might there be a convergence between the recognition of tikanga as part of the common law of Aotearoa New Zealand, and an acknowledgement that tikanga necessarily has to function through Māori self-determination? These are questions to ponder over the Christmas holidays when I finally have the time to pay this important book the attention it deserves.

*Karen Feint KC practises from Thorndon Chambers in Wellington. She has a wide-ranging civil litigation and public law practice, with particular expertise at the interface of Crown and Māori relations - constitutional law, judicial review, equity, indigenous rights, and Treaty of Waitangi law. For more information see: https://www.chambers.co.nz/barristers/karen-feint

The English Text of the Treaty of Waitangi

by Ned Fletcher

How was the English text of the Treaty of Waitangi understood by the British in 1840? That is the question addressed by historian and lawyer Ned Fletcher, in this ground-breaking new book.

‘A masterful exegesis . . . the quality of Dr Fletcher’s research and the power of his reasoning demands attention and respect.’

— The Hon. Justice Sir Joe Williams

736pp, RRP $69.99

Available now through bookstores and at www.bwb.co.nz (use code NZBAR on checkout for 10% discount)

Q&A with the Privacy Commissioner

Michael Webster*

In November, The Employment Law & Privacy Committee chair Rachel Burt and Committee member, Juliet Philpott, coordinated and hosted a successful webinar for the Bar Association with the Privacy Commissioner Michael Webster, and his General Counsel, Joanna Hayward. There was so much to cover on the topic, the one hour webinar could not cover all the questions raised, so we are pleased to bring you this follow up article.

Almost two years in, are you able to comment on how the OPC is using the new tools in the Privacy Act (access directions, compliance notices, breach reporting) and how these are affecting general privacy compliance and agencies’ willingness to comply with their Privacy Act obligations?

The Office’s Compliance and Regulatory Action Framework is the guide we use to prioritise our compliance actions.

We are seeing positive responses to compliance actions such as requests for information, explanation or assurance; letters of concern or investigation; and draft compliance notices. We also see agencies engaging independent experts to carry out investigations and working through implementation of their recommendations.

We are now able to look routinely into systemic

issues, however, we are finding that levels of privacy compliance are lower than should be reasonably expected for 30-year-old legislation. This will likely result in future regulatory action.

What themes are you noticing in privacy complaints that the Office is dealing with?

Access complaints continue to be the largest type of privacy complaint, and we are starting to see more complaints following cyber-security incidents that have led to financial losses.

To what extent does the OPC perceive that agencies focus on their “external” (public-facing) privacy obligations to the detriment of their internal obligations (for instance to employees or contractors)?

We sometimes observe employers overlooking their Privacy Act obligations in routine day-to-day work, for example over-collecting or sharing personal information within the workplace.

Employers should build privacy into their policies and procedures and be comfortable advising and explaining what personal information is being shared with whom, for what purpose, and on what basis.

The Ministry of Justice has recently closed engagement on changes it is proposing to the Privacy Act to broaden the requirements for an individual to be notified when an agency collects their personal information from a third party. Are

you able to give us a sense of your views or the views of your office on these proposed changes?

The proposal is to strengthen transparency by extending the notification obligation, so it applies to the collection of personal information, regardless of its source.

The Office made a submission to indicate support for the proposed amendment, noting that it is important to consider transparency in the context of online and digital privacy given the information and power asymmetries in the online environment.

Are you able to comment on how IPP12 is operating and whether it is achieving its purpose?

IPP12 addresses the risk that personal information being disclosed offshore may not be subject to data protection safeguards.

New Zealand agencies have various means to comply, and we have not seen particular issues since we provided FAQs about the model clauses option, even though not all the compliance options are operational as yet.

We have had positive feedback about the model clauses from other jurisdictions, to inform their own standard clauses.

Withholding personal information on the basis that it was not “readily retrievable” was previously an exception listed under the old Act. Now, it is not listed as an exception in ss 49-53 of the Act, but is listed as a possible response that is given when responding to an IPP 6 request (s44). What’s the practical impact of removing this as an exception? Commentary still seems to discuss it as an “exception.”

This appears to be a drafting rationalisation. Because a response on this basis can be reviewed on complaint under section 69(3)(c) as a decision under Part 4 of the Act, this type of response can still be treated in the same way as when it was framed as an exception.

When an individual makes a complaint to the Privacy Commissioner regarding an interference with privacy, the Commissioner can decide not to investigate the matter by response email. There does not appear to be any recourse for an individual to have this decision reviewed under the Act. How does this sit with access to justice? Commentary suggests that an HRC complaint can only be made once a) the Commissioner has investigated the matter, or b) when the matter has been referred to mediation without investigation, but the matter did not resolve. It suggests there is a gap when the Commissioner decides not to take either of these steps.

There are review mechanisms to ensure the Privacy Commissioner’s gatekeeper role is being exercised in accordance with the statutory scheme under the Privacy Act. There is a right to complain to the Ombudsman if the Privacy Commissioner decides not to investigate a complaint. The Privacy Commissioner is listed in Part 2 of Schedule 1 to the Ombudsman Act. There is also the potential for judicial review in the courts: see Mitchell v Privacy Commissioner [2017] 7NZHC 569.

Is there any recent privacy case law you want to highlight for our members?

In the webinar, we talked about two important decisions in relation to privacy breaches and the vulnerability of compromised data, in the context of last year’s Waikato District Health Board cyber-attack. See Waikato District Health Board v Radio NZ and unknown defendants [2021] NZHC 2002 (injunction decision to protect the stolen dataset) and Seven Complainants and Radio New Zealand BSA 2021-090, 14 September 2022 (the BSA upholding aspects of the complaints made by the Privacy Commissioner and others about RNZ’s broadcast under the privacy and fairness standards).

These developments illustrate the increasing need to actively consider court orders to protect compromised data and prevent further harm to individuals, with the injunction decision providing guidance about the relevant public interest assessment.

From the Human Rights Review Tribunal, the most substantive decision of 2022 has been the Netsafe decision – Director of Human Rights Proceedings v Netsafe [2022] NZHRRT 15.

The Tribunal found Netsafe interfered with the privacy of three women when it refused to provide them with personal information held as a result of a complaint made under the Harmful Digital Communications Act 2015 (HDCA). The complaint to Netsafe was made by a person known as Mr Z about certain digital communications made by one of the women. Following Netsafe’s processing of the complaint, Mr Z obtained interim District Court orders that were served on the women constraining any posting of information about Mr Z.

Two of the women explained they had each previously been in a relationship with Mr Z, had been subjected to online and other harassment, and had been granted protection orders against Mr Z in the Family Court. The third woman had supported the others through the civil court processes in relation to the protection orders, and then in criminal proceedings arising from Mr Z’s breaches of those orders (Mr Z was convicted). The women believed Mr Z’s use of the HDCA processes was another form of harassment by Mr Z. They were concerned Mr Z was continuing to access their private communications in continuation of the cyber stalking activity that resulted in the previous protection orders against him.

The Privacy Act became relevant as the women each requested their personal information from Netsafe in April 2017, which Netsafe refused. Netsafe released some information in January 2018, but argued its withholding of the remaining information was justified under section 27(1)(a) (avoid prejudice to the maintenance of the law), and section 29(1)(a) (unwarranted disclosure of the affairs of another) of the Privacy Act 1993.

The Tribunal disagreed, finding the refusal to release the information was based on an overriding, but misguided, concern that releasing the information to the women would undermine the confidentiality of Netsafe’s processes, and impact its ability to carry out its functions.

Among other things, the Tribunal confirmed the Privacy Act requires agencies to undertake a case-by-case assessment of the individual circumstances and found Netsafe failed to take into account a number of relevant factors.

The Tribunal did not accept there was a real and substantial risk to the maintenance of law if the requested information was released to the women or releasing the information to the women would involve the unwarranted disclosure of the complainant’s affairs.

The Tribunal made the formal declaration Netsafe had interfered with the privacy of the three women and ordered Netsafe to provide the women with access to their respective personal information within 20 working days. The Tribunal ordered Netsafe to pay $5,000 each to two of the women for loss of benefits, and $30,000 to each of the three women for humiliation and injury to feelings.

The key reminders from this decision are the need to make a specific assessment of the access request, and the need to sift the relevant considerations from the irrelevant ones.

As we near the end of the year, what are the current areas of focus for the Office? What challenges to do you see on the horizon - are you predicting any themes for 2023?

We had a very good response to our consultation about possible regulation of biometrics. This will help us with decisions about the future regulatory approach to this type of sensitive personal information.

We are scoping up other important areas of work across the office, including supporting agencies to make privacy a real priority through the design of privacy risk management systems, and to address pressing issues such as children’s privacy.

Other big challenges will come through the intersection of privacy and other important contexts. That includes the work to build our understanding of the intersection

between privacy and tikanga Māori. The opportunity to appear as intervener in the 2021 Te Pou Matakana judicial review of access to Māori vaccination data was a good example where issues of access to personal data in a public health emergency intersected with te Tiriti, tikanga and iwi data sovereignty.

Personal information is also increasingly being monetized as people access the benefits of free online applications without understanding their information is being collected and on sold.

Technology is continuing to bring privacy challenges as government and businesses are increasingly driven by data collection, analytics, and reuse of data.

* Michael Webster took up the role of Privacy Commissioner on 5 July 2022. Prior to Michael’s appointment, he worked in the Cabinet Office, Department of the Prime Minister and Cabinet for 14 years and held the position of Secretary of the Cabinet and Clerk of the Executive Council from March 2014.

*Joanna Hayward joined the Office in July 2014, and assumed the role of General Counsel in August 2019.She was previously an advisor to the New Zealand Law Commission and is an experienced lawyer with particular expertise in privacy and law reform. As General Counsel, she is responsible for providing legal assurance and compliance advice to the Commissioner, and legal representation on behalf of the Commissioner.

Members of the Bar Association can access the free recorded webinar with Michael Webster, and Joanna Hayward, along with other recorded webinars, in the "On Demand" section of the Bar Association website. https://www.nzbar.org.nz/resources/qa-privacycommissioner-michael-webster-cpd-10-hr

New Zealand Legal Information Institute:

The ultimate access to justice project Barbara

Relph*

If you are looking for a simple way to make a real contribution to access to justice, look no further. The New Zealand Legal Information Institute (NZLII) is seeking support from the profession to ensure the invaluable service they provide can be sustained and survive long into the future. Their needs are modest, but without funding they risk extinction.

NZLII provides a free legal information database to any and all who need access to the law. Primary funding comes from the New Zealand Law Council and Otago University which has provided the administrative structure for the database since 2004. It’s no secret that universities across New Zealand face expenditure cuts and Otago University is no exception, potentially leaving NZLII exposed financially.

If NZLII were to founder, its Australasian counterpart AustLII would become the only free source of New Zealand legal data. The problem is that the name doesn’t hint at New Zealand, and so those seeking the information are highly unlikely to find it.

The impressive 213 databases provided by NZLII contain over 510,000 documents and covers all the major courts and tribunals, plus many niche databases not available elsewhere. Fulfilling hundreds of millions of requests in the nearly 18 years it has been part of New Zealand’s legal landscape, in 2021 alone the database had over 31.5 million interactions. In two years the New Zealand Gazette has had 5 million interactions, and the NZ Law Style Guide 120,000 interactions since March 2022.

The Legal Information Institute network internationally is committed to the Free Access to Law Movement (FALM). This means free and unmonitored, so it is impossible to accurately identify who the users are, but feedback suggests lawyers and law firms, students, the police, government departments, court reporters and journalists, and of course members of the public who find themselves in a dispute and needing to know the law.

Alongside the frequently accessed Acts as Enacted, Historical Bills and databases which are not commercially viable for publishers to host, such as the Motor Vehicle Disputes Tribunal and the Student Allowance Appeal Authority, much of the information on NZLII mirrors that available on commercial databases, except for decisions with suppression orders. Of course, a free service cannot possibly

compete for form or functionality, but for practicing lawyers not in a position to pay for one of these services, NZLII is an excellent resource.

To ensure NZLII’s stability, regular funding is required – not just to plug any gap should Otago University be unable to continue its support, but to grow and develop its offering. Renewing the front face of the NZLII website would be a start. The service is currently updated and managed by Otago University Library workhorse and access to justice enthusiast, Judi Eathorne-Gould, who is largely unpaid. Judi is full of new ideas for the database and is open to suggestions for new information, particularly guides such as the ACC guidebook.

The Canadian equivalent, CANLII, is funded primarily from within the profession. AustLII also relies on contributions from the profession. It seems somewhat obvious that the profession in New Zealand would help NZLII improve access to justice in this country.

Judi is under pressure to demonstrate NZLII is financially stable. To do that she needs commitment in the form pledges to donate into the future. To contribute any amount – either a one off donation or a regular monthly pledge – simply click the link to complete the online form below or contact Judi on nzlii@otago.ac.nz. NZLII will be eternally grateful for your support. All donations are tax deductible. To contribute, follow this link: https://alumni.otago.ac.nz/donate/NZLII

* Barbara Relph is a freelance writer and proof-reader –www.barbararelph.com

NZBA-sponsored Student Sentencing Competition 2022

Hart Reynolds*

Sponsored by the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture and the Ministry of Justice, the competition gives 20 law students from the University of Auckland, AUT and the University of Waikato the opportunity to make submissions in a fictional sentencing hearing before High Court judges. Most rounds were held in-person this year at the Auckland High Court, which was a great change after the last few COVID-addled years.

As one of the only criminal law-based competitions available during law school, law students are provided an opportunity to learn how the sentencing process works and to develop their advocacy skills. Each round of the competition featured a different fictional offender charged with different offences. Competitors this year had to apply Taueki v R to a case where a man chopped off the finger of a home intruder, apply the new guideline judgment on strangulation in Shramka v R, and make totality arguments for offending related to a ramraid.

It was a privilege to have Rachael Reed KC representing the Bar Association at the final. She spoke to students in attendance about the importance of advocacy, particularly in sentencing, and the value of competitions such as this. Support from the Bar Association in the form of monetary prizes for the winner and runner up and funding the function after the final ensures that participation in this competition is a sought after endeavour – more than double the number of students applied than we had space for.

We would like to sincerely thank John Richardson and Ching Zhou for their help, the court security guards

working after hours, and the judges for giving up their

for

time to judge the competition: Justices Walker, Gordon, Robinson, Tahana, Harvey, Lang, Gault and Duffy.

*Hart Reynolds is a Judges Clerk at the Auckland High Court;

The Auckland High Court clerks held the annual Sentencing Competition over four nights in September, culminating in the final held on the night of 28 September 2022 in Courtroom 1 presided over by Duffy J. Marcus Mackenzie from AUT won the competition and Campbell Walker from the University of Auckland was the runner up.

CSC / 1 team

The NZ Bar App is powered by CSC Buying Group. The Bar Association have been working with CSC for several years now. You might still remember the NZ Bar discount card. We thought it would be the perfect time for some background about CSC, where it all started and how the business has evolved over the years.

CSC Buying Group started in Craig Johnson's garage in Cambridge back in 2002. Craig was talking with some of his chef colleagues and couldn’t understand why one of the group was buying coffee for $18 a tin and the same coffee was being purchased by another for $28? He thought there must be a better way to share ideas, even the playing field with suppliers and somehow create a business. One of the chefs said, “Well I don’t want to do it,“ but Craig said, “Well I think I do!” and this was the genesis of CSC Buying Group now 20 years ago!

The first supply contracts were exclusively for food suppliers such as Bidfood, Anchor Milk and Quality Bakers bread. There were 16 kitchens in the group to start with and the buying group, although small, always had good cash flow.

After a number of years, the chefs in the group started asking if there would be other non-food contracts added, and Craig went about adding suppliers such as Bunnings, Noel Leeming, and Beaurepaires.

A website was set up - www.csc.org.nz with free membership as it still is today.

Our CSC members asked for more; businesses wanted to offer their staff and members with exclusive discounts from leading kiwi retailers. In 2010 the humble discount card was born. Our graphic designer Sara Cameron started creating customised discount cards with a selection of discounts from the likes of Noel Leeming, Guthrie Bowron, Repco, Bunnings, OfficeMax, Dulux, and Beaurepaires with their branding and our discounts. The first one was Master Painters.

Today we have over 30 discounts to choose from! In 2016 we noticed a shift from discount cards to a demand for a digital discount card. This sparked another idea in Craig's mind. CSC teamed up with an app developer and began developing our own CSC Member App and customised branded apps for a range of organisations.

2019 the brand Perk was launched, and we began offering Perk to our customers with over 25 discounts from our suppliers in the Apps.

In 2021 a significant rebranding exercise was undertaken and as a result what we knew as Perk was rebranded as 1Team.

1Team was created to focus on member and employee benefit programs to increase wellbeing in the workplace, improve culture and is now a communication tool for many businesses throughout New Zealand.

1Team is now New Zealand’s leading employee and member benefits program provider, creating apps with your brand and our perks.

Fast forward to 2022 and the CSC Buying Group's philosophy is still the same: to be the buyer’s friend, with the bulk of the benefit going to the members that they serve.

We are proud of our long association with New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, and we look forward to continuing to provide value for its members now and into the future.

LexisNexis

Marsh MAS

The Private Office

Thomson Reuters Officemax

ANZ

Noel Leeming

EDiscovery

Epiq Transcription/Proofing Filecorp

Legal Accounting Bureau Moore Markhams

Nuance - Dragon Dictate

OP Creative Web Design Rocketspark Team Network IT Vlex

Bill Simple Base 2 Managed IT Teleflora

Warehouse Stationery Active Adventures

Allianz Travel Insurance Avis

Causes of burnout and myths to avoid

Nick Wignall*

In our October issue of At the Bar, we printed the first of a three part series on burnout at the Bar. This is the second article in the series, and it has been provided by our member benefit partner MAS.

What causes burnout at work?

According to a study by the Gallup organization, the most common causes of burnout at work were unfair treatment at work, an unmanageable workload, unclear communication from managers, a lack of support, and unreasonable time pressures.

In this section, we’ll briefly look at each of these as well as other, more subtle factors that can be playing a role as well.

Keep in mind that there’s a lot of overlap between the signs and symptoms of burnout and the causes. This is because the relationship between these factors is complex and often bidirectional.

For example:

• When you’re overloaded with work, stressed, and experiencing prolonged job burnout, you are more likely to procrastinate. However, procrastinating will likely increase your levels of stress, anxiety, and overwhelm, and as a result, lead to more burnout.

Finally, when it comes to professional burnout, keep this in mind: Burnout is not all in your head.

While our attitudes, thought patterns, beliefs, and behaviours do affect our experience of burnout at work, it’s a mistake to ignore the many external and environmental factors that contribute to burnout.

Environmental causes of burnout

Unfair treatment at work. One of the most commonly reported causes of burnout at work is the perception of being treated unfairly by managers, bosses, and coworkers. Of the many negative consequences of an unfair and highly critical work environment, perhaps one of the worst is that it leads to low levels of organisational trust. And when you don’t feel you can trust people at work, your stress levels become chronically elevated which leads to many of the most common symptoms of professional burnout such as anxiety, exhaustion, and isolation.

Lack of agency and control. There’s a fundamental human need to feel a sense of control over one’s life, including work. Of course, almost no one is completely in control of every aspect of their work. But when people have little to no say over how they get their

work done, it very quickly can sap motivation, energy, enthusiasm, and effort—all of which can lead to burnout if left unchecked.

Excessive workloads. While it may sound obvious that too much work will lead to feeling burnt out at work, there’s more subtlety here than it would seem at first glance. Specifically, one of the reasons excessive workloads are so common is that there’s poor communication between the people doing the work and those assigning it. If a manager doesn’t actually see how their direct reports are working on a regular basis, it would be easy to develop misconceptions about appropriate workloads. This is especially likely if employees feel that they can’t speak up assertively about excessive amounts of work.

Poor job clarity. Even if your workload is reasonable and you have a fair degree of control over how you do it, a lack of clarity about what you are actually required to do can be incredibly stressful in the long term. This is especially true for managers and leaders whose job descriptions become increasingly less technical and specific and more general as they “move up” in their workplaces. Confusion, frustration, and procrastination are all often a sign of poor job clarity.

Poor communication and support. In many workplaces, the culture of communication is poor: many people are afraid to speak up or voice their concerns, while others are hyper-verbal to the point of being aggressive about what they want and think should happen. Poor patterns of communication in the workplace frequently lead to either conflict, resentment, or both. And when conflict and resentment become a norm, often burnout does too.

Unreasonable timelines and deadlines. “Pressure” is one of the most common words people use to describe their experience with burnout at work. Specifically, the seemingly never-ending pressure to get an unreasonable amount of work done in an unreasonably short amount of time. While this can be the result of a company culture that is simply too demanding, more often than not it’s really a communication and expectation problem where managers and workers are not on the same page about what is reasonable.

Not enough time for “deep work.” Deep work is a concept coined by author Cal Newport to describe a kind

of highly demanding but also highly satisfying form of work where we focus intensely on one thing in a deep way for an extended period of time. It’s essentially the opposite of “busy work”. Ironically, a constant stream of tedious busy work (meetings, logistical tasks, etc) can be more likely to lead to burnout for some people than less frequent but more intense bursts of highly demanding but highly focused and creative deep work.

Internal causes of burnout

Perfectionism. One way to think about burnout is when the side effects of hard work outweigh the benefits. And for folks who struggle with perfectionism, it often means they end up continuing to work hard well past the point of diminishing returns. Perfectionism is a psychological process where we feel compelled to work hard despite knowing that it’s ultimately not in our best interest. Importantly, perfectionism isn’t actually about striving for perfection in outcomes as it is striving for perfection in feeling. In other words, perfectionists don’t have a need to do perfect but a need to feel perfect about what they’re doing. The solution is to get more tolerant of feeling less than perfect.

Poor self-care. Self-care means consistently doing the things that keep us mentally and physically healthy and resilient. Unfortunately, when stress levels rise, self-care activities like regular exercise, healthy eating, and quality time with friends are often the first things to go. Ironically, these are the very things that buffer us from the negative effects of stress in the first place. And without them, intense stress is much more likely to develop into full-blown burnout.

Procrastination. Procrastination means putting off something we need to do despite knowing we’ll be worse off for it in the long term. While occasional procrastination is perfectly normal and not terribly detrimental, when it becomes a habit it can greatly magnify the effects of burnout because we’re constantly adding more and more to our workload by avoiding it in the short term. And on top of the extra work we give ourselves, procrastination also leads to an accumulation of mental stress because we chronically feel guilty and anxious about avoiding what we know needs to get done.

Self-criticism. Self-criticism is an especially dangerous cause of burnout because it often feels right. There are, of course, always things we’re making mistakes on. And self-criticism can temporarily feel like the correct response to these mistakes because we’re A) acknowledging reality, and B) motivating ourselves to do better in the future. There are a few problems with this… First, just because a mistake is a reality doesn’t mean that reminding yourself of it is helpful. Second, while self-criticism can feel motivational, it actually does the opposite—it saps us of energy and drive to move forward. Finally, when we get stuck in the habit of self-criticism, we add a layer of shame and negativity on top of our already high levels of stress and anxiety. This “double layer” of stress is a serious driver of burnout.

Lack of assertiveness. At the end of the day, burnout

really comes down to boundaries. When we can’t set and enforce healthy boundaries with our work—either internal boundaries or external ones—burnout is virtually guaranteed. But the reason so many people struggle to set healthy boundaries is that they were never taught how to communicate assertively—in a way that’s honest to their own wants and needs but also respectful of those of others. Most are so afraid of coming across as rude or disrespectful that they end up constantly deferring their own needs. When this goes on long enough, it’s a major risk factor for developing burnout at work.

Myths and misconceptions about professional burnout

Along with the rise in awareness of job burnout as a serious problem, several myths and misconceptions have unfortunately become widespread as well. Here are several of the most common:

The solution to burnout is more vacation and time off. While total work time is related to burnout, the much bigger factors are related to how individuals think, feel, and experience their workloads, and how organizations as a whole operate.

Burnout is a personal issue, not an organizational one. One of the most pervasive and destructive misconceptions about burnout is that managing it is solely an individual responsibility. While it’s true that many of the factors influencing burnout are individual ones, organizational culture, expectations, and operating procedures play a critical role in the development and maintenance of employee burnout.

Passion prevents burnout. A recent Deloitte survey found that while 87% of people surveyed reported having passion for their job, 64% also said they were frequently stressed at work.

Experiencing burnout means you’re depressed. Research has shown that while up to 20% of burnout may be attributable to depression, that means at least 80% is not and therefore caused by other factors. Even if depression contributed to burnout, it’s often the case that workplace stress itself contributes to depression.

You need a major career change to address burnout. Often burnout can be addressed by reshaping a job rather than needing to leave and finding a better one.

*Nick Wignall, Clinical Psychologist. For more information on how to deal with burnout at work, visit his website https://nickwignall.com/burnout-at-work/.

This article has been provided for At The Bar by MAS. It can be found on Aki, the MAS Wellbeing Portal. All Bar Association members have free access to Aki. For more information on how to access Aki, visit our website at www.nzbar.org.nz/resources/mas-wellbeing-portal.

Petrol Heads’ Corner Range Rover – First Edition

David O’Neill*

If you have $300,000 spare just idling away in your bank account waiting to be pointed in the right direction, then I suggest you purchase the new Range Rover First Edition. It starts, as a base price, at $295,000 and then, when you add in some of the goodies, it rapidly rises.

I had the version with the 23 inch wheels ($2000), powerassisted doors ($4200), shadow exterior pack – I think ($2550). It was black with black wheels and blacked out insignia with………..wait for it………a white leather interior, acres of it.

Speccy Bits

My car was the 4.4L V8, twin turbo petrol version. It has 390kw, 750nm of torque and could accelerate 0-100km/h in 4.6 seconds.

It weighed 3.4 tonnes (gross weight) and this was the short wheel base model.

What’s It Like

The thing was enormous. Even the doors were heavy. My car had white leather throughout (soft as butter). Clearly it was aimed at the no kids/no pets market. I don’t recollect seeing any plastic anywhere, apart from possibly the cup holder.

It had two iPads in the back of the front seats for the chauffeured guests to play with. Everything was electric. There were 24 different positions that your seat could be moved into and the exterior cameras (I still don’t know how they did it), gave you multiple views of the car from inside, outside, above and along the rear, the sides and the front-even from different angles looking back at the car.

The seats were absolutely superb. You sat there, cosseted in fine leather which was as soft as any seat I have ever sat in, shut away from the rest of the world to the extent that you could whisper to each other, while travelling at speed, and still hear what was being said. The car was extraordinarily quiet, despite the fact that it had massive tyres,

which made plenty of noise. I mean, it’s not often you sit in a car with seats like this knowing the seats cost as much as your current car. These were nicer than pretty much any seat I have sat in. It lends a whole new meaning to the word ‘soft’.

Performance

It certainly went like stink. Taking it on the usual route to the beach meant going up and over the Kopu-Hikuai Road with ease. It toddled up there and back down the other side easily. However, I have to say that economy is not its strong suit. We didn’t drive over to the beach very quickly because it was dark and wet, and still managed to achieve no better than 12.9L/100 km. When you put your foot down, you can hear the slurp as the petrol tank empties. It was like being at a University Drinking Horn listening to competitors chug down huge quantities of beer.

To put it in context, my own car, which is an Audi RS6, is cheaper to run, and that is saying something.

By the same token, if you can buy one of these, you can afford to have Jeeves, the chauffeur, fill it up at the gas station with your card.

Originally, I wasn’t a great fan of Range Rovers. My first drive of one of these was about 10 years ago and I had a Range Rover Vogue to run around in for a week. It consumed petrol at a prodigious rate to such an extent that I thought there was a hole in the tank.

Additionally, it was very tall, quite unstable on the road and a relatively unpleasant ride because neither suspension nor its steering was particularly precise.

By contrast this new version has 4 wheel steer, looks better and is more luxurious but still slurps the gas like it’s going out of fashion.

Criticism

I know it’s a first world problem, but the only criticism I would have, is that when I went to put the back seats down, they kept bouncing off the iPads mounted on the back of the front seats.

I couldn’t get them to move and, other than make sure the seat was hard up against the steering wheel, that

seemed to be the only way that this could happen. I gave up and left the seats up. Hardly a biggie……

Other Bits

It even has a chauffer’s button for managing the seats (honest) and you could put the centre armrest down which then became a control panel for things in the back and a place to put your drinks.

This really is the ultimate shooting brake, carriage to the country club or wagon to go looking for pheasants to shoot at. It was seriously cool. I know they are depicted as the ‘go-to’ wagons for developers, UK gangsters and overpaid soccer players but I suggest you forget about them and go and over indulge in some ‘genteel’ car madness.

Performance

In addition to this, I wanted to see how it compared to one of the faster cars from yesteryear such as the E-type Jag.

Remembering that this is a modern-day wagon, but weighs an awful lot, it accelerates 0-100 kmh in 4.6 seconds. By comparison the E-type Jag 4.2 fixed head coupe (remember this was the ultimate sports car back then) could accelerate 0-60 mph in 7 seconds back in the day. That was considered quick. This car is almost as quick to 100 kmh as an Audi S4 (4.4 seconds).

Summary

This is a cracker of a car. It is abject luxury, beautifully quiet, beautifully made and a real joy to drive. Additionally, it will pull the side off your house if you really wanted to. It can tow up to 3.5 tonnes. It can also whistle through the creek on the way to your estate, up to a depth of 900 mm (up to your waist). The long wheelbase seems to have the ability to take just about anything in it and comes in the SV version at the very smart price of $390,000.

As I said at the beginning of this article, it looks very smart, the foldaway door handles give it very sleek lines and everything is, sort of, sculpted. The only bits that stick out when the car is locked up are the mirrors on either side of the front doors and even they fold in once the car is locked.

So, there you have it. I am a convert. If I had a spare $300,000, I might go and spend it on one of these. However, I don’t, so I won’t. I think I’ll stick with my current car. If I didn’t, I’d get into trouble anyway.

So, this combined report has really been about the latest iteration of an icon and the other extreme end of the scale, the luxe barge, namely the Range Rover First Edition. Therefore, you have a choice – either get a really good car or get an even better one. Your call. Happy motoring.

* David O’Neill is an expert in the law, but his knowledge of driving is even better. Unfortunately, he is not a member of the Royal Family and will not be buying the Range Rover First Edition in the near future.

2022 – 2023 COUNCIL

MARIA DEW KC – President

Ph +64 9 307 5251 maria@mariadew.co.nz

KELLIE ARTHUR Ph +64 9 972 2052 kelliearthur@fortyeightshortland.co.nz

VICTORIA CASEY KC

Ph: +64 4 212 4679 victoria.casey@cliftonchambers.co.nz

PHILLIP CORNEGÉ Ph +64 7 282 0572 Phillip@phillipcornege.com

GOWAN DUFF Ph +64 27 2828 287 gowan@mataichambers.com

SIMON FOOTE KC

Ph: +64 9 307 8784 swbf@simonfoote.co.nz

FELIX GEIRINGER

Ph: +64 4 909 7297 felix@geiringer.law

TARYN GUDMANZ

Ph: +64 3 477 8781 taryn@princeschambers.net

GENEVIEVE HASZARD Ph: +64 7 571 2447 genevieve@kennedychambers.co.nz

ISWARI JAYANANDAN

Ph: + 64 9 263 0047 iswarij@yahoo.co.nz

SAM JEFFS

Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz

STEPHEN LAYBURN Ph: + 64 9 300 5485 stephen@stephenlayburn.co.nz

RICHARD MCGUIRE Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz

TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz

PAUL RADICH KC – Immediate Past President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz

JAMES RAPLEY KC

Ph: +64 3 964 8000 jrr@bridgeside.co.nz

KINGI SNELGAR

Ph: +64 21 293 6520 kingi.snelgar@bankside.co.nz

ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com

MAGGIE WINTERSTEIN Ph: +64 9 262 1126 m.winterstein@libertylaw.co.nz