LawNews- Issue 3

The constitutional implications of changing

Contents

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus

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Three nominations have been received for President of the ADLS Council. They are:

Terence John Darby

Anthony Robert Herring

Angela Mary Elizabeth Parlane

A candidate booklet and voting instructions have been emailed to ADLS members. Voting closes at 4pm on Wednesday 1 March. The AGM will be held on Thursday 2 March.

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Cover: Jill Ferry / Getty Images

The mechanics: how a centre-right govt might reverse a raft of Labour policies

Could National and ACT enact wholesale legislative change all at once – for example, in some form of omnibus repeal Bill? Or would they need to repeal the “offending” legislation Act-by-Act?

Reweti Kohere

Should it have the numbers to form a government in October, National is expected to take immediate and comprehensive action to fulfil its election promises, including the unwinding of a raft of Labour-introduced legislation and other reforms.

Both National and ACT are strongly opposed to many of Labour’s marque policies, including the Māori Health Authority, fair pay agreements, the Credit Contracts and Consumer Finance Act (CCCFA) changes, the 10-year brightline test, the removal of interest deducibility on investment properties and Three Waters.

The centre-right has promised to reverse, amend or repeal these initiatives and countless others as soon as possible after taking office. Come October, National’s Christopher Luxon, the most likely centreright prime minister, has vowed to “get things done and deliver for all New Zealanders”.

But how quickly could New Zealand’s centre-right bloc move to undo six years of Labour reforms? And could National and ACT enact wholesale legislative change all at once – for example, in some form of omnibus repeal Bill? Or would they need to repeal the “offending” legislation Act-by-Act?

Legal academics caution that quick and efficient law-making does not guarantee clear, accurate and fit-for-purpose laws.

“A government could – and governments in

the past have – in the very first few days of taking office essentially rushed the core of their legislative programs through the House under urgency in order to basically say they’re delivering on their election promises,” says Otago University law professor Andrew Geddis.

The use of “urgency”, in which Members of Parliament rush through Bills without the typical degree of scrutiny or work beyond Parliament’s regular sitting hours, inevitably raises the question of what has been sacrificed or traded. Speed and efficiency don’t

guarantee clear and accurate laws.

Geddis says governments want to get political points on the board “to show ‘we are different from the previous government’. Doing so at speed, of course, comes at the cost of the law not being as fully scrutinised as it would otherwise, at the risk of errors being made or problems [arising] that were already known about the law.”

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Photo: E4C / Getty Images

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Geddis says the newly-elected government will feel emboldened to reshape the statute books. However, new laws can bind New Zealanders in ways that lawmakers don’t fully anticipate or comprehend at the time. It’s an unavoidable tension, he says.

“On the one hand, [MPs] do need to be responsive and show they can act as the public demands. But they also have a kind of custodial role and a long-term responsibility to make sure the law is fit for purpose.”

Sawn-off shotgun

One legislative tool available to governments in a hurry is the omnibus Bill. Designed to have as wide an impact as possible, these Bills have been described as the “sawn-off shotgun in Parliament’s legislative weapons rack”.

Omnibus Bills package together several, similar measures in one piece of legislation. Using them is governed by Standing Orders, which set out what MPs can do when creating law and how and when they can do it.

Standing Order 264 states that Bills must relate to “one subject area only”. The Speaker of the House acts as a legislative gatekeeper, empowered by the rules to check that each introduced Bill is covering only one subject. Should a Bill reach too widely, the Speaker can discharge it or demand amendments.

There are, however, explicit exceptions. Standing Order 266 lists the kinds of omnibus Bills that lawmakers can introduce: finance and tax Bills; Bills affecting localities or Māori affairs; land and reserves disposal Bills; and Bills that consist entirely of amendments to Acts.

Four additional exceptions exist: amendments dealing with an interrelated topic, which can be brought under one broad policy; amendments across multiple Acts that are similar in nature; the Business Committee agrees to ignore Standing Order 264; and MPs vote to suspend the rule.

The rationale behind discouraging omnibus Bills relates to MPs’ work. Particularly at the select committee stage, elected representatives probe

proposed laws; scrutinise, test, and critique them; hear public submissions on their potential impacts; and determine whether they will do what is intended.

But Omnibus Bills, by their jumbled nature, can serve to circumvent closer examination, stifle necessary debate and even leave open the risk of political, personal or malicious motives creeping onto the statute books through additional amendments.

Act-by-Act

In the early months of the pandemic, Parliament passed the Covid-19 Response (Further Management Measures) Amendment Bill. Its effect? The amendment of 45 different statutes, ranging from the Arms Act 1983 and Companies Act 1993 to Freedom Camping Act 2011 and Waste Minimisation Act 2008.

At the time, a speedy response was deemed essential to get on top of covid-19. And, rather than amending each of the 45 statutes one-by-one, the omnibus nature of the Further Management Measures Bill was the most efficient way of dealing with the numerous impacts of the pandemic and lockdown.

Lawmakers intended the Bill would introduce two tiers of amendments that would help New Zealand “respond to the wide-ranging effects of covid-19” – a signal, at least, the amendments dealt with an interrelated topic, capable of being brought under one broad policy.

But for more run-of-the-mill legal issues, an Act-by-Act approach is preferred, Geddis says.

“For instance, you can’t use one Bill to reintroduce Three Strikes while at the same time get rid of the Plain Language Act. The Clerk of the House and the Speaker will simply say ‘sorry, it doesn’t comply with standing orders. This legislation just isn’t allowed’.”

‘Mouse with a match’

Geddis says it’s understandable that governments feel the need to rush through law “to show the public they are ‘doing their job’.” Part of living in a parliamentary democracy is that elected representatives will respond, and are answerable, to the voting public.

With an eye on October’s election, Prime Minister Chris Hipkins has delivered the first phase of the

government’s planned policy “reprioritisation”, recently announcing the RNZ-TVNZ merger would be scrapped and the controversial income insurance scheme delayed until economic conditions improve.

National and ACT had promised to scrap both initiatives, yet the government has beaten them to the punch in order, it says, to focus on the cost-of-living crisis.

Also among National’s explicit targets are Labour’s 39% top income tax rate, Auckland Light Rail, the Three Strikes Repeal Bill, Auckland’s regional fuel tax, the clean car discount and the Plain Language Act. Similarly, ACT opposes policies ranging from the “so-called fair-pay agreements”, Three Waters and the CCCFA changes, to “the assault” on landlords via tax and Residential Tenancies Act changes and “the chaotic” merger of polytechs into Te Pukenga.

“So, it goes on and we’re already sure we’ve missed a few there. Two bad policies dumped, two on the backburner, and two made worse. It doesn’t make up for a dozen bad ones still in play,” ACT said in a recent press release, adding that Hipkins was a “mouse with a match” when it came to abandoning key policies.

“Even if the bonfire were real, praising Hipkins’ policy reversals would be like decorating an arsonist for putting out his own fires. Billy Joel claims he didn’t start the fire, Hipkins has no such excuse. He’s been at the centre of Labour for five years.”

Fastest lawmakers in the West

In an article for The Listener in 1977, Sir Geoffrey Palmer described New Zealand’s MPs as the “fastest lawmakers in the West”. Nearly 40 years later, while delivering the 2014 Harkness Henry lecture, Sir Geoffrey said lawmakers had lost that label and in fact, Parliament was “constipated” by the volume of legislation in front of it.

At the time, the legislative backlog had been a feature of Parliament for several years and had become more acute in the MMP era, Sir Geoffrey said.

“In sum, big and important Bills containing significant new policies are often rushed because of the three-year term with insufficient efforts to get them right. There is more pressure to get such measures through than to get them right. On the other hand, important but often uncontroversial smaller care and maintenance provisions that often would be very beneficial languish on the order paper, sometimes for

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Omnibus Bills, by their jumbled nature, can serve to circumvent closer examination, stifle necessary debate and even leave open the risk of political, personal or malicious motives

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years. That is the conundrum that any new legislative process must address.”

Geddis agrees the backlog still exists. “Time in Parliament is a limited resource and so if it’s spent on one thing, it comes at the cost of not being able to spend it on the other,” he says, adding that governments prioritise laws they believe will have a greater public impact or serve as “political trophies” over revisiting less high-profile areas of law.

“Once again, for any government there’s a tension between wanting to be seen to be dealing with the big, bright, shiny public issues while also doing the regular maintenance of the statute book to make sure it doesn’t get outdated.”

Majority rules

Another factor determining the speed of legislative change is the size of a government’s mandate. The current Labour government’s victory in the 2020 general election was historic as it was the first time since MMP was introduced in 1996 that a party had won enough seats to govern alone.

Previous governments in the MMP era have comprised coalition partners or support on matters of confidence and supply.

While Labour has enjoyed the advantage and ease of its own majority, a government commanding 51% of MPs – in whatever shape that takes – is still a working majority.

University of Auckland law professor Mark Henaghan says: “If you’ve got a majority in Parliament, you’re sovereign, you’re able to make whatever changes you want.”

Majorities can take on different configurations. In 1956, MPs from both sides of the political divide agreed to entrench a handful of legislative provisions –such as the voting age, the length of the parliamentary term and the method of voting – governing how New Zealand’s elections would work. The Electoral Act 1956

(and its current version from 1993) require a vote of three-quarters of MPs (or more than half of voters at a referendum) to change those constitutionally significant provisions.

More recently, and during the quieter committee stages of the law-making process, Green and Labour MPs tried to make it much harder for future parliaments to change or remove entirely protections against privatisation under the government’s controversial Three Waters policy.

Their 60%-majority requirement may have passed but the backlash was instant, centred either on Labour not knowing what had happened or on MPs not fully comprehending what entrenchment is usually used for. Eventually the government announced a U-turn, with then leader of the House, Hipkins, describing the entrenchment clause as “a mistake” and saying it would be fixed as soon as possible.

Henaghan says numerous Acts can be changed with a bare majority of MPs. “Remember, the Labour Party changed the Three Strikes legislation, for example. They never liked that so they changed it. That’s how it works – that’s politics – and if National came back in, they might resurrect the damn thing.

“But it’s not a big constitutional issue. It’s parliamentary sovereignty…But there is an Act that is fundamental to our constitutional structure – the Electoral Act – that can’t be changed by one party just by a majority. It’s got to be done by 75%.”

Politicians may talk policy, but legislative draftspeople are tasked with transforming ideas into coherent, workable statutes. Should poor drafting dent how an Act is supposed to work, Henaghan notes the judiciary must step in, interpret the law and resolve the uncertainty that has forced people to litigate.

“What we have is a balance of powers,” he says. “Parliament can change the laws but it’s up to the draftspeople, in the executive, to draft them and then it’s up to the courts to interpret them. And at those other stages, things can come out slightly different from what was intended.” ■

You can’t use one Bill to reintroduce Three Strikes while at the same time get rid of the Plain Language Act. The Clerk of the House and the Speaker will simply say ‘sorry, it doesn’t comply with standing orders’

Meet Jason Goodall KC

CBL

Reweti

Kohere

Like many newly-appointed Silks, Jason Goodall didn’t fully appreciate the sense of achievement until messages of congratulations started pouring in.

Informed of the news by Attorney-General David Parker a few days before it was made public in November 2022, Goodall says he’s excited about starting the next phase in his legal career.

Goodall seemed destined to be a barrister, as the winner of written and oral advocacy awards while studying at the University of Auckland at the turn of the millennium. In 2002, he graduated with a Bachelor of Commerce and Bachelor of Laws with Honours and clerked for Sir Peter Blanchard in the Court of Appeal. Across the next seven years, he was a litigator at Russell McVeagh and London firm Slaughter & May before joining Auckland’s Bankside Chambers in 2009.

Commercial advocacy defines Goodall’s practice. With expertise in banking and financial disputes, insurance, professional negligence, insolvency and property disputes, the new KC has advised the likes of Vector, Westpac, Fletcher Building and Spark. And he has acted for clients in most of New Zealand’s biggest class action lawsuits, including the Southern Response, James Hardie and CBL cases.

This interview has been edited for clarity.

Had you always aspired to take silk?

No, I hadn’t. At law school, I knew I wanted to be a barrister and doing interesting work. However, the idea of taking silk was too far into the future. It has only been over the last few years that I seriously considered the idea and started applying after it was suggested by some senior Silks. I would encourage anyone thinking about applying to take a sounding from senior practitioners around them. They provided invaluable advice to me.

Should we retain the title of King’s Counsel or revert to Senior Counsel?

I personally like King’s Counsel because it is known as a mark of legal excellence throughout the Commonwealth. The New Zealand Bar Association has confirmed recently that it would not support a change of name at this time. It is likely the issue will arise if, or when, our country decides to become a republic. However, it will be a long way down the list of concerns.

Over the past three years, which significant case that you’ve been involved in stands out the most and why?

This is a difficult question because nearly every case is significant to the parties involved and most stand out in some way if parties are in litigation. One of the most high-profile cases I am involved in is the CBL litigation, where I act for the liquidators of CBL Corporation. The company was listed on the NZX and went into liquidation in 2019, wiping out around $750 million in shareholder value and causing creditors hundreds of millions of dollars in losses. The failure has spawned six civil proceedings, all being case-managed together.

How can barristers continue to improve access to justice?

One of the ways all lawyers can, and do, help is through pro bono and community work, special fee arrangements and encouraging the early resolution of disputes. There is a large number of lawyers in New Zealand (around 15,000), so we can collectively make a real difference. I would encourage anyone interested in doing further work in this area to join Te Ara Ture Pro Bono Legal Service, which offers an online portal for pro bono instructions. ■

was listed on the NZX and went into liquidation in 2019, wiping out around $750 million in shareholder value and causing creditors hundreds of millions of dollars in losses

Jason Goodall KC

Lessons from the Twitter takeover

Steven Moe

The many-months-long saga involving the world’s richest person who bought a media company in the name of free speech has been bizarre to watch.

After an initial offer in April 2022 and months of legal wrangling, the sale was finally completed – almost on the courtroom steps - with a valuation of US$44 billion at the end of October 2022. On that day, Elon Musk walked into Twitter’s headquarters with a sink (and a tweet “Entering Twitter HQ – let that sink in”). Musk promptly sacked the board and started laying off staff, claiming the business was losing US$4 million a day.

Apart from its entertainment value, does the takeover throw up any principles from a law and technology perspective? Or any issues that might signal future trends?

Free speech vs ill-informed opinion

This is the big issue. No one knew at the time but Musk had already bought almost 10% of Twitter when he tweeted on 25 March 2022, “Free speech is essential to a functioning democracy. Do you believe Twitter rigorously adheres to this principle?”

The acquisition has been driven by his stated desire to save free speech. When announcing the completion of the deal, Musk announced, “the bird has been freed”.

But does that mean (or should it mean) that all speech is now okay? There is a danger that hate speech with ill-informed opinions will become defensible as free speech.

Musk himself recently tweeted from a right-wing site to his 112 million followers. It was an untrue story – a conspiracy claim about an attack on Paul Pelosi, the husband of former Speaker of the House Nancy Pelosi. He then deleted it.

The point is that an “anything goes” approach is probably falling too far towards allowing hate speech and untruths rather than championing free speech. It makes you suspicious about who is actually out there tweeting and what their identities are, which leads to our second point.

Paying to prove your identity: Twitter Blue

So, who is on Twitter anyway? We know there are many fake accounts and one solution – and a way to generate revenue –was a new US$8 monthly charge to get a “blue tick” verification. But to get that status, all you needed to do was pay the money.

The Washington Post described the situation as “…the equivalent of paying someone to paint a sign on your car that says, ‘I’m a really cool dude’.”

The blue tick is basically worthless as a verification tool which may be why Twitter suspended the offering, then brought it back later in a different format. Verification now has two forms, the ‘legacy’ and the ‘new’. But even having read the explanation here, I remain confused about how it all works. Musk himself tweeted recently, “Please note that Twitter will do lots of dumb things in coming months.”

A social media platform is incredibly difficult to monitor and control, especially when you’re trying to make money from it and one way of monetising the system is by allowing people to prove who they are by paying money to gain a status.

Simple language is best?

Let’s be honest, sometimes lawyers use an excessive number of words. How often do we draft long and convoluted documents when a short form might work better?

The offer for Twitter was a model of simplicity. This is what Musk filed with the SEC:

Bret Taylor Chairman of the Board, I invested in Twitter as I believe in its potential to be the platform for free speech around the globe and I believe free speech is a societal imperative for a functioning democracy. However, since making my investment I now realize the company will neither thrive nor serve this societal imperative in its current form. Twitter needs to be transformed as a private company.

As a result, I am offering to buy 100% of Twitter for $54.20 per share in cash, a 54% premium over the day before I began investing in Twitter and a 38% premium over the day before my investment was publicly announced. My offer is my best and final offer and if it is not accepted, I would need to reconsider my position as a shareholder.

Twitter has extraordinary potential. I will unlock it.

Could we learn something from the offer and its bare-bones language and format?

No doubt other implications will emerge from such a highprofile takeover as this. Has the bid become a major distraction for Musk at the expense of his other business interests? Maybe. Is Twitter a dying technology platform? Maybe.

But change doesn’t happen by continuing with the status quo and Elon Musk seems to be a catalyst for doing things differently. What he does next and how Twitter develops will be one to keep watching. ■

Steven Moe is a partner at Parry Field Lawyers and a member of the ADLS Technology & Law committee ■

Musk himself tweeted recently, ‘Please note that Twitter will do lots of dumb things in coming months.’

Steven Moe

The thorny issue of appointing judges

the second of a three-part series entitled

Professor Leslie Thomas KC

How judges should be appointed is often one of the most contentious issues in constitutional law.

In some countries, the executive and/or the legislature play a decisive role in appointing judges. Federal judges in the United States are nominated by the President and confirmed by the Senate. An even more striking feature of the American system is that many state court judges are elected.

Conversely, in other countries, judges are nominated by an independent commission designed to be insulated from politics. Many commonwealth countries have a constitutional body called a Judicial Service Commission to advise the head of state on the appointment of judges.

The composition of these commissions varies considerably from country to country but they usually include judges and some non-judicial members. Some include members of the legislature, while others do not.

At the most extreme end, there are some countries where the appointment process is wholly controlled by existing judges. This is the case with the “collegium” system for appointments to the Supreme Court of India.

Each of these options has advantages and disadvantages. Where judges are appointed by elected politicians, this ensures some level of democratic involvement in the process. But it also increases the likelihood that party political considerations will play a role in judicial appointments and that judicial decisions will be affected by political considerations.

Similarly, where judges are elected, they are democratically accountable but this also increases the risk that they will seek to make popular decisions instead of correct ones and that they will be beholden to the private interests which bankrolled their election campaign.

On the other hand, where the appointment process is independent and dominated by existing judges, this reduces partisan influence. But such systems can also be criticised on the ground that they turn the judiciary into a self-selecting elite which is not democratically accountable to the public.

Radical changes

So how does it work in England and Wales? There were radical changes to judicial appointments in the early 2000s. Before then, the key figure in judicial appointments in England and Wales was the Lord Chancellor. The Lord Chancellor occupied an anomalous position: he was simultaneously a politically appointed Cabinet minister, the head of the judiciary and the speaker of the House of Lords.

Most judges were appointed by the Queen on the advice of the Lord Chancellor. Some senior judges were appointed by the Queen on the advice of the Prime Minister but the Prime Minister in turn would consult the Lord Chancellor.

There was no formal recruitment process. Judicial vacancies were not advertised and there was no open competition. The process was often described as a “tap on the shoulder”.

Although this might sound like a politically partisan process, it was mitigated to some degree by the fact that the Lord Chancellor would always consult senior judges on judicial appointments and that the judges’ views generally carried significant weight.

But this came with some problems of its own. Most judges were drawn from wealthy backgrounds, had attended feepaying schools and were white and male. There was inevitably a temptation to appoint judges who fitted the same mould as existing judges.

How far did political considerations influence judicial appointments in practice? In Victorian and Edwardian times, the answer was “quite a lot”. For example, Lord Halsbury, who was Conservative Lord Chancellor for three periods between 1885 and 1905, was well-known for appointing Conservative politicians and even his own relatives to judicial roles, regardless of merit.

In a 2009 lecture, Lord Justice Toulson, as he then was, said that “[b]efore the First World War, judicial appointments were highly political and frequently made with scant regard for whether the person showed any sign of having judicial qualities,”

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In

Do we need judges?, a senior British KC runs the rule over the process of judicial appointments

Where judges are elected, they are democratically accountable but this also increases the risk that they will seek to make popular decisions instead of correct ones

Continued from page 04

although he acknowledges there was a “marked improvement” between the First and Second World Wars.

At that time, there was also a convention that the AttorneyGeneral, the government’s politically appointed chief law officer, would be offered the office of Lord Chief Justice when it fell vacant.

Lord Toulson highlights that this convention led to the appointment of Lord Hewart, who was Lord Chief Justice from 1922 to 1940 and who was “widely regarded as the worst Lord Chief Justice of the twentieth century”. His poor performance led to the end of this convention.

More positively, however, Lord Toulson says that “[b]y the second half of the twentieth century, there were few instances where political factors were suspected of influencing the judicial appointment process and certainly none in the last 30 years. In recent decades all Lord Chancellors were scrupulous in seeing that the judicial appointment process was strictly apolitical.”

Chris Hanretty of the University of East Anglia has carried out a statistical analysis of all judicial appointments in England between 1880 and 2005. Among the factors he looked at was political affiliation. He found that there was no advantage to having the same political affiliation as the incumbent Lord Chancellor, but that judges were more likely to be promoted if they had been appointed by a government of the same party.

So by the end of the 20th century, there was no longer a strong perception that political partisanship influenced the judicial appointment process. However, there were still undeniable difficulties with the process. The “tap on the shoulder” system was the opposite of an open and transparent recruitment process. As Lord Toulson states, “there was a double complaint: that the selections were made in the image of the selectors, resulting in an over-narrow judiciary, and that the process was hidden from public view.”

Open competition

Under New Labour, there were significant changes. In 2001 the Commission for Judicial Appointments was created, although this was an oversight body and was not directly responsible for recruiting judges.

However, the Constitutional Reform Act 2005 brought about a sea change. The Judicial Appointments Commission, an independent statutory body, was established. For the first time, judges were selected on the basis of open competition and had to apply for their jobs.

The principle that judges should be selected on merit was enshrined in statute. The commission consists of a mix of judicial members, lawyer members and lay members. So it is not completely controlled by the existing judiciary but they play a major role in it.

The 2005 Act also made several other changes to the English judicial system. The role of Lord Chancellor was radically reformed, so the Lord Chancellor was no longer the head of the

judiciary or the speaker of the House of Lords. Today the Lord Chancellor, who is always also the Secretary of State for Justice, is normally an MP rather than a peer and does not even have to be a lawyer. And the Act replaced the Appellate Committee of the House of Lords with the UK Supreme Court.

The Lord Chancellor now plays much less role in judicial appointments than previously. Judges of lower courts and tribunals are appointed on the recommendation of the commission. Until 2014 the Lord Chancellor was still formally the appointing authority for judges of lower courts and tribunals, although in practice they simply rubber-stamped the candidate selected by the commission.

The Crime and Courts Act 2013 removed even this residual role, so that the Lord Chief Justice and the Senior President of Tribunals are now the appointing authorities for lower courts and tribunals respectively.

Although the Lord Chancellor continues to be involved in the appointment of the higher judiciary, his discretion is very limited. High Court judges are appointed on the recommendation of the commission. The most senior judges, including the Lord Chief Justice, the Master of the Rolls, the Heads of Division and the Lords Justices of Appeal, are appointed on the recommendation of selection panels appointed by the commission.

The Lord Chancellor does have power to reject the commission’s recommendation or request its reconsideration, but these options can be exercised only twice in relation to a given vacancy.

Highly controversial

This removal of ministerial influence from the process has not been uncontroversial. In 2009 Jack Straw, then Lord Chancellor in the Labour Government, requested reconsideration of the Commission’s recommendation to appoint Sir Nicholas Wall as President of the Family Division. Sir Nicholas had previously been critical of the government’s reforms to the family justice system. When the commission recommended him for a second time, Straw had little choice but to acquiesce.

In analysing this case, Professor Graham Gee argues that the Lord Chancellor should have a greater role in appointments. He says, “Ministerial involvement can inject a substantial degree of democratic legitimacy and accountability into the selection regime—and, by extension, into the judiciary as an institution of government.”

He argues that instead of having to accept or reject a single name, the Lord Chancellor should be able to choose from a shortlist of between three and five names prepared by the commission.

We can see, then, that the question of how judges should be appointed is highly controversial. If the selection process is dominated by the existing judiciary, this may produce a more independent judiciary but some argue that it also produces a judiciary which is wholly unaccountable to the public. Conversely,

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For the first time, judges were selected on the basis of open competition and had to apply for their job

Continued from page 09

if the selection process has a significant degree of political involvement, this might be said to make the process more democratic but it might also make it more partisan and reduce its independence from the government of the day.

Accountability

In England and Wales, judges are supposed to enjoy judicial independence and a major component of that independence is that it is difficult to remove them.

For the senior judiciary, at High Court level and above, it is virtually impossible to remove judges from office against their will. They can be removed only by the King on an address by both Houses of Parliament.

No English or Welsh judge has ever been removed through this process; the only time it was ever used was when Sir Jonah Barrington, a judge of the Irish High Court of Admiralty, was removed in 1830 for corruption.

This does not mean they are completely unaccountable. A judge who loses the confidence of his or her colleagues may be pressured to resign.

For example, in 1998 Mr Justice Jeremiah Harman was harshly criticised by the Court of Appeal for failing to deliver judgment in a civil case for 20 months. Harman was already a controversial character, who was frequently accused of rudeness and discourtesy to barristers who appeared before him, particularly women, and was criticised for kicking a taxi driver in 1992 under the mistaken apprehension that he was a press photographer.

After being criticised by the Court of Appeal, Harman resigned. But had he refused to resign, it would have been very difficult for his colleagues to get rid of him.

On the other hand, judges below the level of the High Court can be removed by the Lord Chancellor with the concurrence of the Lord Chief Justice. There is also a power to suspend them from office. So they have significantly less security of tenure.

Security of tenure

Like judicial appointment, judicial tenure and accountability is an intensely controversial subject. Traditionally, in liberal democracies, security of tenure for judges has been viewed as an important safeguard against political interference with their decisions.

In fact, total insecurity of tenure is likely to breach the requirement of Article 6 of the European Convention on Human Rights that cases be tried by an “independent and impartial tribunal”.

On the other hand, a critic of the judiciary might ask whether the senior judiciary, given their virtually absolute security of tenure, are accountable to anyone except themselves.

That said, security of tenure doesn’t mean judges can do whatever they like. Judicial conduct complaints are dealt with by the Judicial Conduct Investigations Office, or JCIO. And in fact,

at times the JCIO has been accused of overreach.

For example, Peter Herbert, a well-known black lawyer who sat as a part-time recorder and tribunal judge, had a complaint of misconduct made against him in relation to his comments at a rally in April 2015.

At the rally, Herbert spoke out against racism in the judiciary. Eventually, in 2017, a JCIO panel held that his speech was misconduct and was “likely to undermine public confidence in the judiciary”.

The panel held that he should be given “formal advice”. It also held, however, that he should receive an apology because pressure had been put on him to refrain voluntarily from sitting as a judge, which should not have happened. Herbert later brought a race discrimination claim in the Employment Tribunal against the Lord Chancellor and the Lord Chief Justice, which in 2021 was settled without an admission of liability.

That brings us on to another important question: how representative is the judiciary of society as a whole?

Traditionally, as I have said, the English and Welsh judiciary has been dominated by white men who attended fee-paying schools and Oxbridge. This has been a subject of much discussion in recent years.

In England and Wales, minoritised ethnic people constituted 10% of all judges in 2022, which was 3 percentage points higher than in 2014. However, this representation was not evenly distributed across the judiciary. In the senior judiciary, at High Court level and above, only 5% of judges belonged to minoritised ethnic groups. Conversely, 12% of tribunal judges belonged to minoritised ethnic groups.

For comparison, minoritised ethnic people constituted 16% of barristers and 18% of solicitors, though their representation generally fell with increasing experience and seniority. Women make up 35% of all court judges and 52% of all tribunal judges.

Based on these statistics, you might think judicial diversity in the lower levels of the judiciary isn’t too bad. But the statistics also show a huge disparity in the appointment process.

In 2021-22, ethnic minority candidates accounted for 23% of applications for judicial posts, but only 11% of those recommended for appointment.

And the statistics don’t tell the whole story. We don’t have detailed statistics about the social and economic background of current judges, for instance.

While the 2022 statistics contain a breakdown of how many of those recommended for appointment in 2021-22 attended a state school and were the first in their family to attend university, they do not include this information in respect of judges currently in post.

This is very important. A black man from a wealthy background who went to Eton won’t have the same life experiences as a black man who grew up on a council estate and attended a state school.

Continued on page 11

In England and Wales, judges are supposed to enjoy judicial independence and a major component of that independence is that it is difficult to remove them

Continued from page 10

‘Woeful’ under-representation

Another important consideration that isn’t reflected in the statistics is the professional experience of appointees, and how this has shaped their attitudes.

Although the statistics tell us how many solicitors and barristers are appointed, they don’t tell us what kind of law they practised or on whose side.

The outlook of a legal aid lawyer who has made a career out of representing the oppressed is often very different from that of a commercial lawyer who represents large companies, or Treasury Counsel who represent the government.

My experience is that the most senior judicial appointments, at High Court level and above, disproportionately go to lawyers who have spent their careers representing the powerful, rather than the powerless.

And some other groups are woefully under-represented. For example, transgender people, whose lives are often profoundly impacted by litigation amidst the current climate of anti-trans hostility, have little representation in the judiciary.

So we don’t have a judiciary that is representative of the public. And we’ve looked at many of the common criticisms of judges, as well as many of the common counter-arguments. But what are the alternatives? ■

Next week: Do we truly need judges? And what role might they play in a fairer and more equal society? ■

Professor Leslie Thomas KC is a lecturer at Gresham College in central London

New Zealand Employment Law Guide 2023

Author: Simon Schofield

The New Zealand Employment Law Guide is an essential reference for anyone involved or interested in employment relations or employment law.

Decisions of the Employment Court, the Employment Relations Authority and other courts and tribunals are used to show how employment laws and agreements are interpreted and applied in real life. The guide is revised annually, so the law and decisions it reports are up-to-date.

Price for ADLS members: $89.10 plus GST*

Price for non-member lawyers: $99 plus GST*

(* + Postage and packaging)

To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.

Overseas Investments in New Zealand small businesses

INTERMEDIATE COMMERCIAL WEBINAR

Webinar 1 CPD hour

Tuesday 21 February 12pm – 1pm

Price $80 +GST

Presenters Members of the monitoring and intelligence team, Overseas Investment Office

Insights into ESOPs

INTERMEDIATE COMMERCIAL WEBINAR

This webinar will cover the overseas investment regime as it applies to investments in businesses or business assets under $100 million. It will explain the different types of businesses covered by the National Security and Public Order notification regime and help you to recognise when a mandatory notification could be required.

Webinar 1.5 CPD hrs

Monday 27 February

12pm – 1.30pm

Price from $110 +GST

Presenters Alex Franks, partner, Chapman Tripp and Bevan Miles, partner, Chapman Tripp (Tax)

Chair Andrew Lewis, principal, Andrew Lewis Law

Working with lawyer for child

Livestream | In Person

To advise on ESOPs, you need to understand the different types of ESOP, tax and securities law considerations and the practical steps needed to establish and administer a scheme. This webinar will provide key information to enable you to effectively navigate this area.

FAMILY INTERMEDIATE SEMINAR

2 CPD hrs

Tuesday 28 February 4pm – 6.15pm

Price from $140 + GST

Presenters David Amodeo; Val Muller; Sonya Singh and Craig Walker

Providing perspectives from those in the role, the judiciary and the ministry, this seminar provides key insights into what the role is (and is not); the statutory framework; the balancing act required in considering the child’s views and his or her welfare and best interests; the role in different contexts; managing challenges and the use of reports.

Chair Judge Alexander Laurenson

Privacy for legal professionals

ALL AREAS

ALL LEVELS WEBINAR

Webinar 1.5 CPD hours

Thursday 2 March 12pm – 1.30pm

Price from $110 +GST

Presenters Amy KingstonTurner; Edwin Lim and Luke Han

Chair Lloyd Gallagher, managing partner, Gallagher & Co

Assessing capacity workshop

VARIOUS AREAS ALL LEVELS WORKSHOP

Workshop 3 CPD hours

Tuesday 7 March 9am – 12.15pm

Price from $350 +GST

Presenters Alison Douglass; Dr Greg Young and Dr John Kennelly

Leading a team

ALL AREAS INTERMEDIATE WORKSHOP

Join our panel to harness key information and insights into the interface between privacy and technology in legal practice.

Assessing capacity has many applications – for health care, finances, making a will, personal relationships and even liberty and placement in care. In this workshop, two developers of the popular Toolkit for Assessing Capacity, together with a general practitioner working at the coalface, will provide insights into the legal and medical tests, the method of assessing capacity, referrals, the lawyer’s role in supportive decision-making and cultural considerations.

Workshop 4 CPD hours

Thursday 16 March

9am – 1.15pm

Price from $400 +GST

Presenter Tony Gardner, managing director, Archetype Leadership + Teams

This four-hour Auckland workshop distils proven and emerging team leadership best-practice into a practical ‘how-to’ guide.

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

FOLAU

Vaimo’unga

• Late of 11 Fairview Road, Papatoetoe, Auckland

• Married

• Carpenter

• Aged 62 / Died 24’11’22

HENLEY

Joseph Bryant

• Late of 83 Kanohi Road, Kaukapakapa

• Retired

• Aged 75 / Died 20’01’23

LUAMANUVAE

Filipo

• Late of 9/18 Bellevue Road, Mount Eden, Auckland

• Divorced

• Security officer

• Aged 47 / Died between 24’01’22 and 03’02’22

PYE

Atholl David

• Late of 29 Hanna Street, Te Aroha

• Single

• Retired

• Aged 84 / Died 22’12’22

RIMA

Teiva Ariki William George

• Late of 81a Kenderdine Road, Papatoetoe, Auckland

• De facto relationship

• Warehouse worker

• Aged 55 / Died 04’12’22

TAUKIRI

Michelle Arnis

• Late of Oamaru, and formerly of various locations throughout New Zealand

• Fisherwoman

• Aged 53 / Died 03’01’23

UMALI

Jamie Orbeta

• Late of Pasig city, Metro Manila

• Married

• Retired

• Aged 77 / Died 25’11’22

WADSWORTH

Adrian Dean

• Late of 4/4 Woodside Avenue, Northcote, Auckland

• Married

• Insurance clerk

• Aged 88 / Died 18’12’22

WALKER

Terrence Neil

• Late of 144 Pomona Road, Kumeu RD1, Auckland

• Married

• Retired

• Aged 77 / Died 22’05’22

Offices Available

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

Senior Lawyer

We are a friendly full-service law firm in Central Auckland focusing on the legal needs of people in business and their families. Our firm has been established for a long time and the work is varied and interesting. We represent mid-size companies and long-established private clients. One of our senior lawyers is retiring soon and we are looking for someone to replace him. We are ideally looking for someone with 8+ years’ PQE experience in property and commercial law in New Zealand. We are happy to discuss flexible working arrangements. Please email Victor Mechkov at victor@staintonchellew.co.nz or phone 09 300 5859

Time to take down your shingle?

Do you want to retire or move away from the practice of law?  We are a small Auckland CBD practice.  We do litigation, commercial, property and trust and estate work.  We want to expand our client base by acquiring one or more client bases.  We are open to different arrangements to achieve this.  If this sounds like you, please email us on takedownyourshingle@gmail.com.

All replies will be treated with absolute confidentiality.