From the President

Maria Dew KC*

The Ministerial roles that impact the profession

When I started writing this column in late November, we were waiting on the announcement on the formation of our new Government, including importantly for the legal profession, our new Attorney General | Rōia Matua and the new Minister of Justice.

We now know that the Hon. Judith Collins is our new Attorney General, and the Hon. Paul Goldsmith is the Minister of Justice. Congratulations to them both. The Bar Association looks forward to working with them over the coming years.

While awaiting these new appointments, I was prompted to consider the roles of Attorney General and the Minister of Justice. The two roles are not generally held by the same Minister simultaneously and this protocol has continued.

To give you a flavour of the last 12 years, we have had seven Ministers of Justice, including:

• Judith Collins 2011 to 2014;

• Chris Finlayson, for a few months at end of 2014;

• Amy Adams 2014 to 2017;

• Andrew Little 2017 to 2020;

• Kris Faafoi Nov 2020 to June 2022;

• Kiri Allan, June 2022 to July 2023;

• Ginny Anderson, July 2023 to current.

By contrast, over the same period, we have had only two Attorney General’s hold the role:

• Chris Finlayson 2008 to 2017; and

• David Parker, 2017 to present.

The Attorney General’s office first started in 1856 with the appointment of Fredrick Whitaker. Since that time, we have only had 32 Attorneys, including many prominent lawyer politicians such as David Lange, Geoffrey Palmer and Doug Graham. Until 2023, only one female had held the role being the former Attorney-General Margaret Wilson, who was the Attorney for five years during the early 2000’s. Judith Collins is therefore only our second female Attorney.

The role of Attorney General is unique in Cabinet. It holds simultaneously a ministerial position as a member of Cabinet, but must at the same time, act in an apolitical function as the chief legal officer of the Crown. The ministerial jurisdiction for the

Attorney General covers the Crown Law Office, the Parliamentary Counsel and the Serious Fraud Office.

As the chief legal officer of the Crown, the Attorney is required to act with independence from the usual business of being a politician, including as the check on the government. The role must ensure the government upholds the rule of law and acts in compliance with the Bill of Rights, while advising the Government on other domestic and international obligations. There are four key functions of the office, which highlight the breath of the legal role.

Legal Counsel to the Government:

The Attorney General offers legal advice to the government on constitutional, legislative, and policy matters. This includes advising on the development and implementation of laws and policies.

Guardian of the Public Interest:

The Attorney General has a significant role in the prosecution process. While the day-to-day prosecution duties are typically carried out by the Crown Solicitor or the Crown Prosecutor, the Attorney-General oversees matters of significant public or constitutional importance.

Prosecutorial Functions:

Acting as a guardian of the public interest, the Attorney General ensures that the government's actions are consistent with legal principles and uphold the rule of law.

Representation in Legal Proceedings:

Representation in Legal Proceedings: The Attorney General often represents the government in legal proceedings and plays a key role in litigation involving the Crown

Chris Finlayson KC, when speaking last month at the Bar Association webinar “Perceptions of the Bar from above”, described his approach to the Attorney General’s role as being “a lawyer in politics, rather than a politician who is a lawyer ”.

We look forward to working with the new Attorney General and the Minister of Justice both in supporting the important roles they have and in furthering our general functions. Our Rules set for the Bar Association 36 years ago remain as relevant today as they did then, namely to:

• promote the interests of the public in legal representation and the judicial system;

• preserve and maintain the independence and integrity of barristers;

• preserve and maintain the independence and integrity of the judiciary;

• promote improved access to the Courts and to justice for everyone;

• assist in and promote the reform of the law and legal procedure.

The importance of independent advisers

Another matter that has occupied my reading time this month has been a submission helpfully provided to me by the Victorian Bar Association. The submission attracted some media in Australia last month when it was presented to a Parliamentary Inquiry into Ethics and Professional Accountability. The submission seeks to highlight the value of the independent bar in avoiding conflicts between government and private clients. The Inquiry itself is a cautionary tale for governments both in Australia and New Zealand about the conflict challenges for multi-disciplinary professional firms. A full copy of the Victorian Bar submission is available on our website 1

The Inquiry arises out of a case concerning PricewaterhouseCooper’s (PwC) Australian multidisciplinary firm of professional advisers.2 As many will know, these firms include accountants, consultants and lawyers. The Federal Court of Australia in its decision released last year, exposed difficulties in the way claims of legal professional privilege are dealt with in the context of multi-disciplinary firms. This gave rise to concerns that the firm’s client arrangements created the risk for the transfer of the confidential information of one client, the Commonwealth, in PwC’s commercial activities with other private clients. These matters were investigated, and adverse findings were established in the Senate Finance and Public Administration Committee Report in June 2023 “PwC: A calculated breach of trust ”, presented to the Inquiry.3

The Victorian Bar submission to the Inquiry focuses on three matters:

• The difference in the professions that arise not only out of different regulatory environments, but different ethical norms;

• The use of claims of legal advice privilege by multi-disciplinary partnerships which are business entities that provide legal services and other professional advisory services; and

• The government procurement protocols which had been, in the words of the submission, ”skewed towards the provision of services primarily by muti-disciplinary and consulting firms (not only for the provision of legal services but professional services generally)”, when in some cases the better provider of those services may have been independent individuals such as barristers, who may be more cost effective and accountable and may mitigate the costs of services provided to the public sector, increase accountability and protect against conflicts of interest.

Interestingly, this matches with some of what we heard from our former Solicitor General, Mike Heron KC, reflecting on his time in the Solicitor General role. His comments at our recent Bar Association event “Perceptions of the Bar from above”, included his observation that in his time in the Solicitor’s role, he placed some reliance on the independent bar to provide frank, robust and importantly, independent advice. He acknowledged that the importance of the independent bar, had not been as obvious to him in private practice.

While there is always a danger in seeing the value of “our own importance”, there is certainly no reason for false modesty. There remains an important role for independent bar.

Getting together at the end of 2023

Our Bar Association Council met in Auckland on Friday 24 November, to discuss the projects, advocacy, and education we are working on for the bar. This meeting was followed by an enjoyable end of year function in central Auckland at the Pavilion, Shortland Street, where we had the opportunity to socialise with both members and the judiciary.

I also joined members at our Wellington event at Shed 5. Once again, I was delighted by the collegiality at the bar, and I thank everyone including the members of judiciary, and the Chief Justice Dame Helen Winkelmann, who all made time to attend.

Richard Raymond KC hosted our Christchurch end of year gathering at the Christchurch Club. This was a special occasion as the bar was able to pay a special tribute to Mark Zarifeh, the retiring Crown Solicitor. Mark is a member of the Bar Association, and we wish him well in the future.

By the time you read this, we will have hosted end of year functions for our members in South Auckland, Tauranga, Hamilton, and Dunedin. I am only sorry I wasn't able to attend them all. However, other Council Members were there to thank you all for supporting the Bar Association this year.

Ngā mihi o te Kirihimete me te tau hou | Merry Christmas

I wish you all a happy holiday season and look forward to seeing you all in 2024. Mark your diaries for our combined Australian Bar Association and NZBA TransTasman Conference on 14-15 August in Queenstown.

Kia pai ngā hararei me kia noho haumaru | Go well and stay safe.

Maria Dew KC