LawNews Issue- 12

Contents

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

Editor: Jenni McManus

Publisher: ADLS

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Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

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Photo: Rouzes Getty Images

Reform of legal profession

‘in the lap of the gods’ if National-led govt elected in October

Reweti Kohere

Should voters elect to change governments in October, a “degree of uncertainty” surrounds whether potential reforms to how New Zealand’s lawyers are regulated and represented will get off the ground, says New Zealand Law Society’s president Frazer Barton.

Following the release of the independent review panel’s final report, two webinars were held recently to walk members of the profession through recommendations and answer questions.

The recommendations include establishing a new, independent regulator, overhauling the system for handling complaints about lawyers, incorporating Te Tiriti o Waitangi into lawyers’ obligations, permitting new business models and empowering the new watchdog to better protect consumers and support practitioners.

Feedback om these recommendations is due by 31 May.

Barton told webinar attendees that this year’s election – and the possibility of a change of government – meant “we are going to be in the lap of the gods”.

“We do have to deal with a period of uncertainty perhaps, and if there is a government that’s not of a mind with these recommendations in the short-term, we are going to need interim arrangements,” he said.

“That will involve discussion within the council and feedback from council constituents.”

Legislative change

Review panel chair Professor Ron Paterson said several improvements were already being made, but legislative change was necessary to give effect to the full range of recommendations.

“That, in turn, will require political will,” Paterson said.

“Our job is done now. But as we say in the report, we hand it over trusting that the once-in-a-generation opportunity of this review will be seized.”

The Law Society board was taking soundings from its 25-member council, which is also consulting with constituents.

The council comprises the president, four vice-presidents, presidents of all 13 regional branches, and seven “sector” groups representing areas of law (family and property, for instance) and broader interests (such as in-house lawyers, Te Hunga Rōia Māori and Pacific Lawyers Association).

Barton said the board will meet with the council at the end of June to discuss the feedback received, with the aim of sending its final response to the government at the end of July. From there, it’s up to the Justice Minister to decide whether the recommendations would be put on the legislative agenda.

In a subsequent Q&A session moderated by prominent Māori businessman Whaimutu Dewes, Barton confirmed all 13 branches were conducting surveys of their respective members.

“Yes, the means of getting feedback is via those council members.”

Dewes, who chaired the seven-member steering group that developed the terms of reference for the review panel, said the survey process ran alongside the opportunity for members of the profession to provide feedback.

One attendee asked how the branch surveys were being notified to members and whether practitioners would have enough time to respond.

Barton said surveys were being released via email from council members. “[Those] should be with people. If they don’t get it, then get in touch with someone to make sure that happens.

“As I say, it is important to get that feedback so it should be with people if not now then shortly.”

Not talking

But while Barton appears happy to speak to lawyers within the

Continued on page 04

We do have to deal with a period of uncertainty and if there is a government that’s not of a mind with these recommendations in the short-term, we are going to need interim arrangements

Continued from page 03

structured framework of a webinar, when it comes to answering specific questions from the legal media it’s a different story.

LawNews approached the NZLS president directly last week for an interview but was fobbed off onto NZLS PR-man Liam Kernaghan on grounds that Barton was “too busy” to talk to ADLS.

We wanted to ask Barton for comment on what appears to be a high level of suspicion within some areas of the profession that the short timeframe for feedback is a deliberate move to reduce the risk of negative feedback which NZLS would then be duty-bound to pass on to the minister.

We also asked for a firm deadline for submissions which did not appear to have been publicised at that point.

After confirming the 31 May deadline, Kernaghan said reducing the risk of negative feedback “is not our motivation”.

Rather, he said, “we are mindful that there will be a lot of different views across the profession on the recommendations. We made a commitment to provide the Minister of Justice with a response to the recommendations by the end of the parliamentary term, so the timeframes are set in mind for the Law Society board and council to collate the information and provide a holistic picture to the minister within that timeframe.

“The Independent Review Panel also conducted a comprehensive consultation with the profession and the public last year where a lot of different views were put forward Regulatinglawyers-final-report.pdf (lawsociety.org.nz).”

But there is nothing to stop practitioners from bypassing their local branches and sending submissions direct to the NZLS board, copying in the minister.

‘Compelling logic’

The most significant recommendation is to hand a new, independent body the Law Society’s watchdog status. The Law Society would then act solely as a representative body for the profession.

Barton said there was a “compelling logic” to it.

“It’s not entirely surprising what the conclusion was. We are being constantly confronted, on a day-to-day basis, with the inherent conflict that sits with being in these two roles.

“There’s a logic to most of the other recommendations. I would also suggest there’s probably some that we’ll be looking particularly for feedback from the profession and there may be some tweaking needed,” he said.

“But overall, we welcome the recommendations and particularly the most significant one. As I say, I think it’s pretty hard to argue against.”

One attendee asked whether the panel had considered

a future where the Law Society dropped its representative function for solely regulating the profession.

Paterson confirmed the scenario had been considered, with feedback sought from Canadian commentators on how it’s worked out practically in that jurisdiction.

“This is the time for a separation. We see the most valuable future of the Law Society in being the national representative body,” he said.

This will, however, come at a cost to NZLS.

In the original consultation document it was revealed that regulation is NZLS’ major source of income. Last year it received $22 million from its regulatory functions (from fees and levies on lawyers) and $8m from its membership services.

Rule of law

One attendee was concerned about how the Law Society might effectively uphold and safeguard the rule of law “if it is reduced to a voluntary membership body”.

Panel member Professor Jacinta Ruru said the Law Society was an “incredibly important” entity for upholding the rule of law.

“If there is a separation, where the New Zealand Law Society becomes the representative body, the New Zealand Law Society will be able to continue to speak freely and strongly on the rule of law without being hindered, I suppose, by that regulator role.

“We can see some real benefits there.”

Paterson added that representative bodies in jurisdictions that have established separate, independent watchdogs have been able to demonstrate they offer additional value to their professions.

“It is certainly the case that lawyers, when it’s voluntary, will look and say ‘who’s going to best serve our interests?’ There will be a challenge for the New Zealand Law Society to say ‘we’re the national body. And yes, [you] can belong to Te Hunga Rōia… but we can bring something special and distinct’.”

Barton said safeguarding the rule of law will continue to be important to the Law Society if it becomes solely a representative organisation.

“Yes, with less funding, that is going to be a major challenge. That’s something we’ve got to come to grips with. But at the moment, the Law Society has to ask the minister for sign-off on a number of things.

“I do see an attraction in having a Law Society that doesn’t have to bow, scrape and beg and we can speak up really strongly, independently. But to be able to do that, we’re going to have to have a high level of membership and resolve funding issues.”

Barton said, with the election looming, work has already been started to ensure the Law Society’s representative function was “sustainable and strong going forward”. ■

Additional reporting by Jenni McManus ■

Last year NZLS received $22 million from its regulatory functions and $8m from its membership services

I do see an attraction in having a Law Society that doesn’t have to bow, scrape and beg and we can speak up really strongly, independently

How the climate-related disclosures regime will work

investment away from emission-intensive activities and towards low-emission, resilient development pathways. However, this unprecedented economic transformation will require the disclosure of consistent, comparable, reliable, and clear information about climate-related risks and opportunities that are, for the most part, not being made available to investors at present.

Lloyd Kavanagh & Shaanil Senarath-Dassanayake

While the International Sustainability Standards Board (ISSB) is still finalising the standards that many countries are hoping will become their climate reporting framework, New Zealand has already done the hard thinking and is walking the talk.

Our new mandatory climate-related disclosure (CRD) regime, under Part 7A of the Financial Markets Conduct Act 2013 (FMCA), is in force, acting as a model for other countries and intergovernmental bodies wishing to develop their own climate reporting requirements and standards as part of their response to the climate crisis.

The CRD regime is expected to capture around 200 financial institutions and listed companies and applies to reporting periods from 1 January 2023.

The government intends using financial markets to drive change. In 2020, Climate Change Minister James Shaw said climate risk reporting would be introduced as part of New Zealand’s journey towards a low-carbon future to give businesses a good understanding of how climate change will impact them.

In October 2021, the Financial Sector (Climate-related Disclosures and Other Matters) Amendment Act amended the FMCA (inserting Part 7A), the Financial Reporting Act 2013, and the Public Audit Act 2001, making it mandatory for specified entities to prepare climate statements.

The intent was recorded in the explanatory note to the bill as introduced into Parliament:

Financial markets globally can play a major part in shifting

The bill went on to say New Zealand’s disclosures would be aligned with the framework provided by the Task Force on Climate-related Financial Disclosures (TCFD). This was created by the Financial Stability Board because of the need for better information to support investment, lending and insurance underwriting decisions and to improve analysis of climate-related risks and opportunities.

Importantly, while this is positioned as a disclosure regime, the analysis required to make the disclosures is expected to lead to significant changes in how business is conducted.

Climate reporting entities

The CRD regime applies to “climate reporting entities” (CREs), including:

■ large NZX-listed issuers of quoted equity securities or quoted debt securities (ie, with a market capitalisation or nominal amount exceeding $60 million);

■ large registered banks, licensed insurers, credit unions and building societies (ie, with total assets exceeding $1 billion or, in the case of licensed insurers, where premium income exceeds $250 million a year); and

■ large licensed managers of registered managed investment schemes (ie, with total assets in registered schemes exceeding $1 billion).

Various governmental agencies are also expected to comply under Ministerial Letters of Expectation, even though they are not covered by the definitions in the legislation.

Continued on page 16

The CRD should be viewed not as a compliance regime but instead as an analytical framework

If you undertake the analysis required by the CRD regime and conclude your existing business strategy does not need to change, you should be surprised and consider whether you need to do it again, given the magnitude of what is coming

Photo: David Trood / Getty Images

Which is better: adversarial or inquisitorial?

Lomax states that the cost of legal aid in England and Wales is about 15 times the European median and that while the European median for the cost of defence is about 25% of the cost of prosecution, in England and Wales it is nearly 400% more

So, which is better: the adversarial system or the inquisitorial system? Many people have strong views on this question. The Australian judge, Ray Finkelstein, argues that the adversarial system is bad at discovering the truth. He says, “…the parties’ self-interest does not aid the search for truth in a system where it is routine:

■ for opposing testimony to be discredited regardless of whether it is true or not;

■ for the incompetence of opposing counsel to be exploited;

■ for material facts to be omitted from pleadings or withheld due to privilege;

■ for probative evidence to be excluded; or

■ for counsel to indulge in sophistry and rhetorical manipulation of which the primary aim is to obscure the truth.”

Finkelstein’s arguments are focused on civil cases. He recommends several reforms. He calls for judges to have a more active role, including the power to call a witness where the interests of justice so require, the ability to question witnesses beyond their present restricted role and primary control over the questioning of witnesses.

He also calls for judges to have the power, in appropriate cases, to appoint an independent examiner to question witnesses prior to trial. And he calls for the court to control the appointment of expert witnesses.

However, it is in the context of criminal cases where the adversarial versus inquisitorial debate tends to be most heated.

Richard Lomax, in his report Reforming Justice for the

charity Toynbee Hall, robustly argues that the inquisitorial system of criminal justice is superior to the adversarial system. He argues that significantly more resources are expended on criminal defence in the English and Welsh adversarial system than in continental European inquisitorial systems.

He states that the cost of legal aid in England and Wales is about 15 times the European median and that while the European median for the cost of defence is about 25% of the cost of prosecution, in England and Wales it is nearly 400% more.

By contrast, he says, “We spend significantly less on police, prosecutors and on professional judges. Evidence gatherers, case presenters and assessors of evidence in comparative terms are all starved of resources.” He goes on to argue that England and Wales and other common law systems tend to have higher rates of imprisonment per capita than European civil law systems.

Lomax argues that “inquisitorial trials are capable of working much faster, giving rise to higher conviction rates, higher public confidence and less probability of being distracted by irrelevant considerations”.

Pausing there, we might wonder why Lomax sees higher conviction rates as a good thing. But he addresses this in a footnote, where he asserts, “It would be an error to imagine that continental courts are all biased. Their systems commence fewer weak cases and allocate the necessary resources to those that they prosecute.”

Continued on page 07

Professor Leslie Thomas KC

In the second of a three-part series, British KC Professor Leslie Thomas analyses the pros and cons of the adversarial system and runs the rule over cross-examination

Continued from page 06

He goes on to argue that the adversarial model means a lower probability of the truth being discovered, meaning there are greater prospects of the innocent being wrongly convicted and the guilty being wrongly acquitted. He argues that to maintain the principle of deterrence, adversarial systems must punish more severely, which he says is why these systems tend to have higher prison populations.

So, is Lomax right that inquisitorial systems are better at getting to the truth? There are perhaps reasons to be sceptical about whether judicial supervision of the investigation makes the process any fairer. Jacqueline Hodgson, an academic at the University of Warwick who has written extensively on the differences between the British and French justice systems, told the Select Committee on European Union in 2005:

“My own empirical research in this area suggests that suspects in France are just as vulnerable to the hostility of the police environment as in England and Wales. Judicial supervision in most instances is conducted by the procureur (the prosecutor, who also enjoys a judicial status as a magistrat) and exists as a form of bureaucratic and retrospective review: the police are required to inform the procureur of a suspect’s detention in custody and the file is later reviewed. The procureur remains in her office and is responsible for supervising tens of cases at any one time. Whilst this procedure is able to weed out obviously weak cases early on, and to review the outcome of investigations, it provides no real guarantee as to the reliability of the evidence gathered. The process of investigation and evidence gathering is shielded from scrutiny.”

In a 2001 article, in which Hodgson reported findings from an empirical study of the French pre-trial process, she described how French procureurs, the prosecutors who oversee most pre-trial investigations, were tolerant of aggressive questioning by police to pressure suspects to confess.

She described a “general tolerance… of the kinds of pressure that the police might need to exert to make the suspect tell ‘the truth’. And the crime control ideology of the procureur means that in most instances, ‘the truth’ is a confession”.

She described a lack of interest in investigating whether the police had abused suspects: “In one area observed there was concern that suspects were being brought to court bloodstained and untidy. The police were instructed by the procureur that this was not acceptable and that it did not look good before the court. No enquiry was made, however, into why suspects arrived in this state.”

She went on to say, “Even questioning which might be classed as overbearing or oppressive by a British court is considered acceptable, and at times necessary, to get at ‘the truth’.”

I acknowledge of course that Hodgson’s study is two decades old, and that it is specific to France. Inquisitorial judicial systems are widely varied, and the French system itself has

undergone significant reforms. So, I’m not saying that Hodgson’s study is necessarily representative of how all inquisitorial systems operate or even of how the French system operates today. But the point is that judicial supervision of the pre-trial investigation is not in itself a guarantee of justice. Both the inquisitorial and the adversarial system allow opportunities for oppression and miscarriage of justice.

Imprisonment

I would also question whether Lomax is right in his assertion that inquisitorial systems tend to have lower rates of imprisonment. According to the Council of Europe, on 31 January 2020 the English and Welsh prison population was 138.8 per 100,000, only slightly ahead of the European average of 124.0.

Numerous European countries with civil law systems had higher rates of imprisonment, including Poland, the Czech Republic, the Slovak Republic, Estonia, Latvia and Lithuania. Conversely, the Republic of Ireland, which has an adversarial system based on the English model, had a rate of imprisonment of only 81.6, significantly below the European average.

In my view, Lomax doesn’t adequately justify his claim that there is a direct link between the adversarial system and higher rates of imprisonment.

There are numerous other factors that we would expect to affect the imprisonment rate, including sentencing policy, judicial attitudes, crime rates and social inequality. Lomax doesn’t attempt to control for these factors. There is no doubt that we imprison far too many people in England and Wales and many factors are to blame for this. But I am unconvinced that switching to an inquisitorial system would bring those numbers down.

Is cross-examination beneficial?

Turning to the question of cross-examination, one of the distinctive features of the English adversarial system is the importance placed on cross-examination of witnesses.

The traditional rule, in both criminal and civil cases, was that a party wishing to rely on the evidence of a witness had to call them to give evidence at trial. Hearsay was inadmissible except in very limited cases. And an advocate cross-examining a witness had to “put their case” to the witness. If the advocate failed to challenge the witness’s evidence in cross-examination, they would not be able to ask the judge or jury to disbelieve that evidence in their closing speech.

To some extent, English law has departed from the traditional position. Hearsay is now generally admissible in civil cases. And even in criminal cases, there have been changes in recent years, such as the curtailing of cross-examination in some cases for vulnerable witnesses and the use of Achieving Best Evidence (ABE) interviews.

But it’s still the case in both criminal and civil cases that oral

Continued on page 08

When it comes to assessing credibility, police officers, prosecutors and judges, as well as lay people, have hit rates just above the level of chance

Continued from page 07

evidence and cross-examination are considered to be of great importance to the English system of justice. Cross-examination is one of the central skills in which English barristers are trained.

There are, however, several reasons to be sceptical about the value of cross-examination in getting at the truth. The first is that cross-examination technique often relies on catching the witness in an inconsistency. It relies on the assumption that if a witness contradicts him/herself, they must be lying.

But we know from decades of psychological research that that assumption is false. Human autobiographical memory is highly fallible. We have a very poor memory for temporal information such as dates, duration and sequences, for proper names and for the exact words used in a conversation. And people can experience hypermnesia, remembering more over time, so a witness’s earlier account is not necessarily more accurate than their later account.

We also know all these problems are exacerbated in people with mental health problems. Depression and post-traumatic stress disorder can cause over-general memory, which make it more difficult to remember specific events in one’s past.

The second is that the process of giving oral evidence may induce judges and juries to rely too much on a witness’s demeanour: whether they look and sound credible when giving evidence.

Such assumptions are unreliable because many factors may affect a person’s demeanour in court, such as cultural background, trauma and neurodivergence. In the past, appellate courts referred to the advantage that the trial judge gained from seeing and hearing the witness, but today there is increasing judicial recognition that demeanour is an unreliable guide to credibility.

The third is that the cross-examination process relies heavily on the experience and skill of the advocate. A seasoned barrister who has cross-examined hundreds of witnesses will generally do a better job than a pupil barrister doing his/her first trial.

To an extent, it also depends on the witness. An expert

witness who’s been cross-examined hundreds of times will generally fare better than a nervous witness who’s in court for the first time. In short, how well a witness performs under crossexamination is not necessarily a reliable guide to whether they are telling the truth.

A particularly serious problem in this regard has been the proliferation of unrepresented litigants, following the swingeing cuts to legal aid made by the Legal Aid, Sentencing and Punishment of Offenders Act 2012. A litigant in person cannot be expected to cross-examine effectively and is therefore at a huge disadvantage.

And in some cases, this creates an even bigger problem. It is obviously inappropriate that a person accused of sexual violence, for instance, should cross-examine their victim in person. But in the family courts, many people accused of sexual violence are now unrepresented. This sometimes forces the judge to descend into the arena by questioning the witness themselves, which can compromise the fairness of the proceedings.

You might think the solution is simple: just expand legal aid and fund it properly so everyone who needs to be represented is represented. And I agree that we should do that. But it isn’t a complete answer. It will still be the case that some counsel are better at cross-examination than others and some witnesses withstand it better than others, for reasons unrelated to the truth or falsehood of the evidence.

On the other hand, this doesn’t necessarily mean the inquisitorial system would be better. As we have seen, that system suffers from its own problems. And it doesn’t escape the fundamental problem, which is that decision-makers are simply bad at assessing credibility.

As Hilary Evans Cameron states, “when it comes to assessing credibility, police officers, prosecutors and judges, as well as lay people, have ‘hit rates just above the level of chance’.”

This problem will persist whether we have an adversarial system or an inquisitorial one. ■

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

Next week: The benefits and limitations of restorative justice

Inquisitorial trials are capable of working much faster, giving rise to higher conviction rates, higher public confidence and less probability of being distracted by irrelevant considerations

Rent rise not retaliatory, tribunal says it cannot reformulate the law

Sally Lindsay

The Tenancy Tribunal has thrown out a novel argument raised by a tenant in a bid to avoid a $100-a-week rent hike.

Parker Van Lawrence, representing tenant Tracy Constable, maintained the tribunal should find the notice raising the weekly rent from $515 to $615 invalid because it was retaliatory or a constructive termination notice.

Constable has been living in the average-condition, three-bedroom, two-bathroom premises in Massey since July 2014.

Previous rent increases had been modest; $10 in 2017 and $15 in 2020, the tribunal was told. The rent was $490 a week at the beginning of the tenancy and the new rent of $615 a week represented a 20% increase over seven and-a-half years, equating to about 3% per year.

Van Lawrence told the tribunal it could strike down the rent increase if it was motivated by the tenant exercising her lawful rights.

He urged the tribunal to interpret s 54 of the Residential Tenancies Act (RTA) purposively, using its jurisdiction under s 77(2)(j)), and treat “retaliatory”

rent increases as analogous to retaliatory termination notices under s 54.

Under s 54, a tenant can apply to the tribunal for a termination notice to be declared retaliatory. The tenant must prove that in terminating the tenancy, the landlord was motivated wholly or partly by the tenant exercising a right under the tenancy agreement or any Act, or by any complaint against the landlord.

Section 77(2)(j) gives the tribunal jurisdiction to order that a provision of the RTA “shall not apply to, or in relation to, any tenancy agreement or any residential premises or shall apply in such modified form as the tribunal may specify in the order”.

But tribunal adjudicator R Kee said the submission went beyond what he could do when interpreting the legislation.

“The tribunal is a creature of statute. It can only apply the RTA. It cannot reformulate the Act in fundamental ways that clearly go beyond Parliament’s intent.” What Van Lawrence was proposing went beyond interpreting the RTA to reformulating it, he said.

Kee did not find it proven that the landlord’s rent increase notice was “retaliatory”.

“Van Lawrence placed a lot of emphasis on an

email in which the property manager had commented to her manager: ‘I am looking at increasing her rent in line with current market for three bed, two bath (which will see it increase by $100 per week) with the hearing being next week. Is there an issue doing this …[a]s I am not wanting to be seen as retaliatory should [w]e lose the case next week and then issue the notice’.”

Van Lawrence portrayed the email as betraying guilty knowledge that the landlord’s true motivation for the rent increase was retaliatory.

However, Kee said he did not consider the email betrayed guilty knowledge. Rather, it showed an awareness of how the rent increase might be seen as being retaliatory.

“If such an email emerged in a s 54 case, it would indicate a competent professional awareness of the law. It would probably not (depending on the context and wording) of itself have proved a prohibited motive.”

Nor, he said, had the tenant shown the rent increase amounted to effective unlawful termination.

“That might have been the case if the rent increase

Continued on page 14

The tribunal said there was no smoking gun-type evidence that the landlord wanted to force the tenant out by charging an unaffordable rent

Consistency needed in how we treat financial crimes

Nearly 17 years ago, the Law Commission raised the idea of an independent sentencing council to develop sentencing guidelines in New Zealand

Lisa Marriott

As it stands in Aotearoa New Zealand, beneficiary fraud is largely dealt with under the Crimes Act, while tax evasion is prosecuted under the Tax Administration Act. This, among other factors, means beneficiaries engaging in financial fraud face significantly stiffer penalties than professionals doing the same.

This inconsistency in how fraud is handled in New Zealand underscores the strong case for ensuring financial crimes are treated the same. Sentencing guidelines are a good place to start.

To be fair, sentencing is more of an art than a science. The art is balancing consistency with fairness, alongside all the aims of sentencing: deterrence, denouncing the behaviour, holding offenders accountable, providing for the interests of the victim and, in some cases, protecting the community, assisting in rehabilitation and providing reparation.

It probably goes without saying that the combination of these objectives creates a system that is multi-faceted and complex. What may be less clear is that the complexity generates the potential for inconsistencies in sentencing decisions. Sentencing guidelines could help.

Typically these provide a sentencing range with some, usually limited, opportunity for judges to depart from this range. Guidelines prescribe sentences based on the seriousness of the current offence, while considering any prior offending.

This approach is not unheard of in New Zealand. Guideline judgments exist for a range of serious offences, including aggravated robbery, sexual violation, grievous bodily harm and various categories of manslaughter. These guidelines primarily deal with offending that is likely to result in a sentence of imprisonment.

But this limited approach is problematic because

inconsistency is more likely to occur at lower levels of offending. This is also where there is less transparency of sentencing outcomes as there is generally less media, and therefore public, attention on these cases.

There have been efforts to establish sentencing guidelines across the spectrum of offences. Nearly 17 years ago, the Law Commission raised the idea of an independent sentencing council to develop sentencing guidelines in New Zealand.

The council came close to a reality. A bill establishing the council passed in 2007 and subsequently received royal assent the same year. But the legislation was never introduced after the change of government in 2008. It was repealed in 2017.

Minimising inconsistency

Research has identified inconsistencies in sentencing practice in New Zealand for many years. Findings include that the type of offender, the location of the court and/or the individual judge may influence the sentence handed down. Sentencing guidelines can minimise these inconsistencies. They also offer a range of other benefits including:

■ increased transparency;

■ efficiency gains, as sentencing guidelines generate a singlesource reference for a judge;

■ improved public trust and engagement in the sentencing process; and

■ removal of the politicisation of sentencing, whereby judges may feel pressure – or may wish to – move in response to the prevailing political or public mood.

We have seen this in action. In 2008, Justice Graham Panckhurst wrote, “sentence levels, and therefore the prison population, have increased in response to popular demand”.

Continued on page 11

Photo: Image Source / Getty Images

Agreement for Sale and Purchase of real estate, 11th edition 2022

The ADLS and REINZ Agreement for Sale and Purchase of Real Estate, 11th edition 2022 (3) (ASPRE), will be released on Tuesday 9 May.

This will coincide with the date that the second tranche of provisions under the Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act 2022 come into force. The amendments in the 11th edition 2022 (3) reflect the new improved requirements for pre-purchase disclosure to protect buyers of unit titles.

In light of these regulatory changes and feedback received, the amendments include:

■ a new function to allow parties to enter a LIM, building report, OIA, Land Act and toxicology dates and, as a consequence of this function, an amended procedure as to how to satisfy or waive conditions under clause 9;

■ clarification to the compensation clause to clarify each

Continued from page 10

party’s rights when a reasonable claim is made; and

■ reinsertion of the original warning under the signatory provisions.

For unit title sales, there will be:

■ a new requirement that all rights to cancel or defer settlement as provided by the Unit Titles Act are satisfied or waived before the deposit is released;

■ clearer obligations requiring the vendor to show periodic contributions to the operating account on the settlement statement; and

■ new provisions under clause 8, specifically relating to new vendor warranties.

To register for an upcoming ADLS webinar discussing the Unit Titles Act changes in May and explaining the changes in the latest version of the ASPRE, please click here ■

The increased visibility that sentencing guidelines can bring is important for addressing either the presence of, or the potential for, institutional bias.

Independence of the judiciary is essential. And at least some level of discretion is necessary to ensure the judiciary can consider all relevant factors when making sentencing decisions. However, where there is complete discretion, there will be disparities.

Some of the clearest illustrations of these disparities can be seen in how we respond to financial fraud.

Sentencing disparity

Historically, there have been clear differences in the numbers of investigations and prosecutions, and severity of sentences, for tax evaders and benefit fraudsters. That said, this is changing. A similar number of tax evaders and benefit fraudsters are now prosecuted in New Zealand.

But there are still stark differences in how different types of financial fraud are dealt with.

My research, to be published later this year, found that between 2018 and 2020, most benefit fraud cases were prosecuted under the Crimes Act (83%) with 17% charged under

the Social Security Act 1964. This situation reversed for tax cases, where 84% were prosecuted under the Tax Administration Act and 16% were prosecuted under the Crimes Act 1961.

The Crimes Act provides for harsher sentences than the Tax Administration Act. This is despite the tax offences typically comprising higher average values of offending.

Sentencing guidelines cannot address inconsistencies of treatment prior to sentencing, such as the use of different charging legislation, or even choices about who is, or is not, investigated or prosecuted.

However, guidelines can limit discrepancies in the sentence. Moreover, they can provide an opportunity for greater public engagement, as justification is typically required when sentences are outside the specified range.

With this in mind, there is a strong case to revisit introducing sentencing guidelines in New Zealand for financial fraud – and potentially many other offences.

Perhaps the strongest argument is that of fairness. To the extent that sentencing guidelines can minimise the potential for different outcomes for offenders who commit similar offences, they can positively contribute to the justice system. ■

Lisa Marriott is a Professor of Taxation at Victoria University of Wellington ■

The increased visibility that sentencing guidelines can bring is important for addressing either the presence of, or the potential for, institutional bias

ADLS/REINZ ASPRE 11th Ed (3): Key points

Webinar 1 CPD hour

Monday 8 May 12pm – 1pm

Price from $80 +GST

Presenters Thomas Gibbons, principal, Thomas Gibbons Law, supported by Janine Tan, legal advisor, REINZ

Ready, set, retire! Crafting succession and lifestyle change

ALL LEVELS PERSONAL SEMINAR

Cradle to Grave™ 2023

In Person

ADLS/REINZ will release the new version of the 11th edition of the Agreement for Sale and Purchase of Real Estate on 9 May 2023. It reflects legislative changes to the unit titles disclosure regime (which take effect on 9 May) and other practical matters, including real estate agents’ retention of deposits and new definitions. This webinar, timed for the day prior to the new version’s release, will cover the reasons for, and details of, the changes.

GENERAL PRACTICE

ALL LEVELS CONFERENCE

Christchurch & Auckland

Livestream 7.5 CPD hours

Monday 22 May &

Thursday 25 May

8.15am – 5.15pm

Price from $600 + GST Chair Bill Patterson

In Person | Livestream

2 CPD Hours

Tuesday 16 May 4pm – 6.15pm

Price from $140 + GST Presenters Don Thomas QSM; Janine Roberts and Carmel Byrne

So, you want to retire or have a change of lifestyle? Where do you start? Do you have succession options? Drawing on the experience of two lawyers, an accountant and a career coach, this seminar will arm you with practical information and insights to take you from ‘what if’ to ‘made it’. Chair John Hart, barrister, John W Hart Limited

Cradle to Grave™ is the flagship conference for general legal practitioners as well as those working in the areas of property, family law, trusts, taxes, wills and estate planning. The Cradle to Grave™ conference offers a unique opportunity to engage, connect and learn from the best legal minds in your area of practice.

In-person conference includes networking from 5.15pm.

Courtroom conduct and courtesy

LITIGATION

ALL LEVELS SEMINAR

In Person | Livestream

1.5 CPD hours

Tuesday 23 May

5pm – 6.30pm

Price from $110+GST

Presenters Justice Mathew

Downs and Judge Anna Skellern

Where criminal and immigration law collide

CRIMINAL IMMIGRATION

ALL LEVELS

Webinar 2 CPD hours

Tuesday 30 May 4pm – 6pm

Price from $140 + GST

Presenters Jack Cheng, senior associate, Meredith Connell; Elly Fleming, associate, Pitt and Moore; Yvanca Clarisse, associate, Duncan Cotterill and Matt Stansfield, practice lead, Manukau Office

| Border and Visa Operations | Immigration New Zealand, MBIE

Leading your career –for women

WOMEN

INTERMEDIATE WORKSHOP

With perspectives and insights from a High Court judge, a District Court judge and an experienced litigator, this seminar offers the practical information you need to present yourself, your case and your profession in the best light.

Chair David Jones KC

If you practise in criminal law, chances are you’ve had a client facing charges that could impact his or her immigration status. And vice versa for those who practise in immigration law. Attend this webinar to better understand and manage the intersection of these two areas of law.

Chair Judge Jonathan Moses

In Person Auckland

8 CPD hours

Thursday 8 June

8.45am – 5pm

Price from $980 + GST

Facilitators Miriam Dean KC and Liz Riversdale

This practical, interactive one-day workshop will arm you with resources, self-confidence and focus to apply immediately to your role and enhance your future career.

The workshop will be followed by a networking event from 5pm.

Featured events

Wellington Express Lawyers’ Lunch

Tuesday 16 May 12.30 – 2pm Dirty Little Secret, 54 Taranaki Street, Te Aro, Wellington

Newly Suited Fark Knows Quiz Night

Wednesday 17 May 5.30 – 7.30pm Coops Corner Pub, 204 Quay Street, Auckland CBD

ADLS Employment Law Dinner 2023

Wednesday 31 May 6pm – 9.30pm Park Hyatt, 99 Halsey Street, Auckland CBD

North Shore Express Lawyers’ Lunch

Wednesday 7 June 12.30pm – 2pm Franc’s, The Strand, Takapuna, Auckland

Upcoming

Tauranga Express Lawyers’ Lunch July

Christchurch Lawyers’ Lunch

events@adls.org.nz adls.org.nz

Continued from page 09

was substantially above market value and in excess of what the tenant could tenably be expected to be able to afford.”

However, in this case the increase was in line with market rent. Moreover, WINZ paid the tenant’s rent and there was no evidence that WINZ would not meet the higher rent.

Kee said there was no smoking gun-type evidence that the landlord wanted to force the tenant out by charging an unaffordable rent.

On the other hand, there was evidence to the contrary: the property manager specifically mentioned in her email to the landlord dated 1 February 2022 that she did not believe the tenant would move because of the rent rise.

There was evidence that in setting the new rent, the landlord took into account the tenant had installed a portable cabin at the premises, without permission.

On 1 February last year, the day the notice of the rent increase was sent to the tenant, the property manager emailed the landlord seeking instructions as to the $100 per week rent increase, explaining: “Keeping in mind the tenant moved a tiny house onto the property early last year without approval, I feel the rent increase is acceptable as it is highly likely...[she] will be allowed to the keep the tiny house there.”

Kee said although the presence of the cabin was factored into the amount of weekly increase, the landlord did not rely on this additional amenity. “Rather, it relied on data showing the rent increase was in line with similar properties in the same area, without factoring in the portable cabin.” ■

Privacy Law in New Zealand, 3rd edition

Authors Nikki Chamberlain, Stephen Penk Privacy Law in New Zealand offers a broadranging examination of privacy principles from both theoretical and practical perspectives. It includes chapters on privacy related to social media, common law privacy protection, media regulation, Māori concepts, children, education, the courts, healthcare, employment, business and surveillance.

Price for ADLS members $151.20 plus GST* Price for non-members: $168 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.

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

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)

reception@adls.org.nz ADLS, PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726 (09) 303 5270

CLARK

Gladys

• Late of Sunnyhills, Auckland

• Widow

• Retired

• Aged 86 / Died 27’10’2022

LATU

Sailini Tahitoto

• Late of 1/277A Mt Albert Road, Sandringham, Auckland

• Married

• Machine operator

• Aged 67 / Died 05’03’2023

RAYNER

Mark Eric

• Late of 22 Fisher Place, Masterton

• Married

• Fitter and turner

• Aged 44 / Died 30’03’2023

NZ Climate Litigation Conference 11-12 May 2023

New Zealand is an increasingly active climate litigation jurisdiction, and this event aims to promote debate and discussion around climate litigation in an international context. Speakers include New Zealand, Australian and European judges and leading practitioners and academics in climate litigation from New Zealand, Australia, Singapore, the United Kingdom, Canada, and the USA.

Senior Employment Lawyer - Corporate Legal

Are you a senior employment solicitor looking for interesting, challenging work as well as a genuine work/life balance?

Now is a great time to join Inland Revenue!

As a senior solicitor in the Corporate Legal group, you will be part of a specialist legal team within Inland Revenue that advises on corporate law including employment, commercial, property and public law issues (we do not deal with any tax technical matters).

This is a permanent, full-time role preferably based in Wellington or Christchurch. We are open to considering flexible working arrangements. To be successful in this position, you will have at least five years experience in and thorough understanding of employment law, a proven ability to accurately assess legal risks and provide sensible solutions. You must hold a current New Zealand practising certificate for this role. For more details, please check the full role advertisement. Does this sound like you? Have we piqued your interest? Please apply online with a copy of your CV and a cover letter outlining how you meet the role requirements.

Like you, we pride ourselves on our friendly and informative communications, so do not hesitate to contact us with any questions IRDcareers@careers.ird.govt.nz

Applications close at 5pm on Friday, 5 May 2023.

NZ Clima

Continued from page 05

Impacts and emissions

Under Part 7A of the FMCA, CREs are required (for reporting periods beginning on or after 1 January 2023) to:

■ prepare an annual climate statement in accordance with climate standards issued by the External Reporting Board (XRB);

■ comply with record-keeping requirements in relation to the information used in the climate statement; and

■ lodge and make the climate statement available to the public within four months after the CRE’s balance date (or, in the case of NZX-listed issuers, within three months of its balance date).

For reporting periods ending on or after 27 October 2024, CREs must obtain limited assurance on disclosures relating to greenhouse gas emissions. What will drive change is contained in the three climate standards, published by the XRB in December 2022. They are to be read as a package and consist of:

■ NZ CS 1, which sets out the specific disclosure requirements, largely inspired by the TCFD framework and adjusted to take account of ISSB’s developing sustainability reporting standards;

■ NZ CS 2, which provides relief provisions from specific disclosure requirements under NZ CS 1 for mainly the first reporting period because it will take time to develop good quality standards; and

■ NZ CS 3, which sets out the principles and general considerations for the climate statements (eg, concepts of fair presentation, materiality, etc).

The stated objective of NZ CS 1 neatly encapsulates the intent:  To enable primary users [ie, stakeholders] to understand how climate change is currently impacting [the CRE] and how it may do so in the future. This includes the scenario analysis [the CRE] has undertaken, the climate-related risks and opportunities [the CRE] has identified, the anticipated impacts and financial impacts of these, and how [the CRE] will position itself as the global and domestic economy transitions towards a lowemissions, climate-resilient future.

To achieve this, climate statements contain disclosures based on the TCFD’s four pillars on climate disclosures:

■ Governance: enabling users to understand the role of the

governing body (usually the board) in overseeing, and management in assessing and managing, climate-related risks and opportunities;

■ Strategy: enabling users to understand how climate change is impacting an entity and how it may do so in the future;

■ Risk management: enabling users to understand how an entity’s climate-related risks are identified, assessed and managed, and how those processes are integrated into existing risk management processes; and

■ Metrics and targets: enabling users to understand how an entity measures and manages its climate-related risks and opportunities (including scopes 1-3 emissions).

Key to the approach is a scenario analysis requirement. NZ CS 1 requires the CRE to consider at a minimum three climate-related change scenarios since pre-industrial times:

■ a 1.5 degrees Celsius scenario;

■ a 3 degrees Celsius or greater scenario; and

■ a third scenario chosen by the CRE.

The outputs of scenario analysis will identify the climate-related impacts the governing bodies of CREs must then factor into their risk management and strategy disclosures. This is expected to drive both adaption and mitigation by the CREs.

Non-CREs, whether in New Zealand or overseas, will also benefit from voluntarily undertaking the analysis and understanding how their businesses are impacted by climate change.

The CRD should be viewed not as a compliance regime but as an analytical framework. As a senior executive from the XRB recently said at a Risk NZ forum, “if you undertake the analysis required by the CRD regime and conclude your existing business strategy does not need to change, you should be surprised and consider whether you need to do it again, given the magnitude of what is coming”.

Both the XRB as standard-setter and the Financial Markets Authority as regulator under the CRD regime have prepared, practical materials around scenario analysis and how a regulator might approach enforcing this type of regime.

The XRB is finalising guidance on how to approach climate statements for specific types of CREs, including fund managers, banks and insurers. ■

Lloyd Kavanagh is a partner and Shaanil SenarathDassanayake is a solicitor at MinterEllisonRuddWatts ■

While this is positioned as a disclosure regime, the analysis required to make the disclosures is expected to lead to significant changes in how business is conducted