LawNews - Issue 28

THIS WEEK’S ARTICLES

Issue 28 21 Aug 2020

Borrowdale case: a win for the rule of law p1

ADLS committee convenor profile: Brett Harris p3

Should punishment become a ‘right’? pages 6-7

LawNews adls.org.nz

PUBLIC LAW

Borrowdale v D-G of Health: a win for the rule of law

By Jenni McManus

If you had to pick a winner, it was probably the rule of law.

But, along with the constitution, legal academic and former parliamentary draftsman Dr Andrew Borrowdale was also celebrating yesterday after a full bench of the High Court gave him the declaration he’d been seeking since filing judicial review proceedings in early May: that the first nine days of New Zealand’s Covid-19 level 4 lockdown, between 26 March and 3 April, was unlawful.

Specifically, the government’s announcements (backed by threats of police enforcement and warnings that the military “was standing by”) which told New Zealanders they were required to stay home and in their ‘bubbles’, were not, in fact, requirements prescribed by law and were therefore contrary to s 5 of the New Zealand Bill of Rights Act 1990 (BORA).

The court – Chief High Court Judge Susan Thomas, Justice Geoffrey Venning and Justice Rebecca Ellis – said there was no question that the requirements were necessary, reasonable and proportionate responses to the Covid-19 health crisis – a point Borrowdale has never disputed.

Here we go again

able, without due difficulty, to find out what it is we must or must not do on pain of criminal penalty’.

“Even in times of emergency…and even when the merits of the government’s response are not widely contested, the rule of law matters,” the court said in its decision, released late on Wednesday.

Even in times of emergency…and even when the merits of the government’s response are not widely contested, the rule of law matters

There was no dispute that the governmentimposed restrictions limited rights and freedoms affirmed by the BORA, particularly the rights and freedoms of assembly, association and movement, the court said. But the question was whether these limits were authorised by law at the time of the lockdown. In the court’s view, they were not.

“The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable,” it said. “As Lord Bingham has explained extrajudicially, if individuals are ‘liable to be prosecuted, fined and perhaps imprisoned for doing or failing to do something, we ought to be

During the three-day hearing late last month, Crown counsel Victoria Casey QC strongly opposed the making of such a declaration. If errors of legality had been found, she said, it would be sufficient for the rule of law if these were simply

But the court said the effect of statements by the Prime Minister and other officials was that New Zealanders believed they were required by law to stay at home during those first nine days of lockdown when that wasn’t the case.

“The required clarity was lacking here. Although the state of crisis during those first nine days goes some way to explaining what happened, it is equally so that in times of emergency the courts’ constitutional role in keeping a weather eye on the rule of law assumes particular importance.

For these reasons we conclude that it would be appropriate to make a declaration.” The question, the court said, was “finely balanced”.

Continued on page 2

PUBLIC LAW

Borrowdale v D-G of Health: a win for the rule of law Continued from page 1 acknowledged by the court. In Casey’s submission, a declaration was not necessary nor appropriate.

“It is absolutely clear that the lockdown was necessary and had to be implemented urgently, and a way would have been found to do that.”

The NZ Law Society, as intervener, said the government should not have directed the public in mandatory terms when those directions were not backed up by the force of law and gave the public the erroneous impression “that lawful activities were unlawful”. But NZLS’ lawyer Tim Stephens opposed any declaration of illegality, saying the rule of law would be vindicated if the judgment “simply affirms that clarity is required in government communications of the kind at issue here”.

Three orders Borrowdale’s application for judicial review covered three separate but related causes of action, covering the initial nine-day lockdown period (Order 1) and two further orders made by the Director-General of Health, Ashley Bloomfield, under s70 (l), (m) and (f) of the Health Act 1956 during April.

In his second cause of action, Borrowdale argued that Bloomfield exceeded his legislative authority by ordering the entire country to be locked down, rather than imposing regional lockdowns on the basis of where Covid-19 cases were occurring.

These orders were therefore unlawful and ultra vires, he said, because the wording of s 70 meant the restrictions could apply only to individuals. In his view, that section must be construed in a way that is consistent – or at least not inconsistent – with the BORA. The court rejected this argument, citing (among other things) ‘textual’, ‘purposive’ and ‘contextual’ factors which also needed to be taken into account. Nor did Borrowdale win on his third cause of action – that Bloomfield unlawfully delegated to MBIE the task of determining which businesses were ‘essential services’ and could therefore remain open during lockdown. Here, the Crown argued that Bloomfield’s job was to define essential services, then leave it to MBIE to interpret and apply this definition. NZLS argued that the generality of the definition offended the rule of law’s requirement for reasonable certainty.

The court agreed with the Crown on the third

cause of action. It would have been “entirely inappropriate” for Bloomfield to become involved in the operational side of his determination that all but essential businesses should close. His expertise and focus were on the health response, the court said, and assessing businesses was not his role. There was no delegation and no breach of the rule of law.

Attorney-General David Parker has taken the court’s judgment as a win. But in a statement released late on Wednesday, he avoided any mention of the court’s key finding – the declaration of unlawfulness for the first nine days of the lockdown – focusing instead on the court’s view that the government’s response had been proportionate, reasonable and necessary (which Borrowdale has always acknowledged).

But others in the legal profession told LawNews yesterday that Borrowdale had succeeded in his most significant and compelling cause of action, and the one most focused on calling the government to account.

Lockdown not voluntary The first cause of action centred on the public announcements made by the Prime Minister and other officials – in particular, former Police Commissioner Mike Bush – as the country was placed into lockdown in late March and early April.

The Crown characterised these statements as mere ‘guidance’, ‘information’ and ‘advice’ rather than commands. But the court pointed to the prescriptive and mandatory language of government communications, such as “you must stay at home”, “we will play the role of enforcer” and, from Bush: “The way I put it is, you’re better off to stay on the comfort of your couch of your own home than be cooling yourself on a very cool bench in a police cell.”

John Ombler, head of the All-of-Government response team, reinforced this by saying the government would take enforcement action if people did not stay at home. These types of statements were repeated at all press conferences and public briefings over a number of weeks.

The court said it would be “quite unreal” to interpret the government’s statements as a request for voluntary compliance. “Even though the enforcement powers did not exist in respect of a breach of the restrictive measures prior to Order

LawNews

Editor: Jenni McManus

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

Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus, phone 021 971 598 or email jenni.mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney, phone 021 936 858 or email Darrell.Denney@adls.org.nz

2

2, it is not possible to conclude sensibly that the achieved compliance was truly voluntary.”

Borrowdale argued the order made by the Director-General of Health on 23 March was not a stay-at-home order. Made under s70 (1) (m), it required all premises to be closed except for those listed in an appendix to the order and banned people from congregating “in outdoor places of amusement or recreation of any kind or description”. It didn’t forbid indoor congregation or require people to remain in their bubbles. Nor did it prevent people from surfing, boating, fishing or riding their mountain bikes – providing they didn’t “congregate” outdoors. So, prior to Order 2 on 3 April, there was no legal obligation to comply with the restrictive measures the government was demanding.

NZLS sided with Borrowdale on this issue. It said there was a “disjunct” between the restrictive measures the government was outlining at its press conferences and the wording of Bloomfield’s 23 March order. “Because of this, the [government’s] statements were problematic in light of the rule of law,” it said. NZLS also noted that the “disjunct” was cured in Bloomfield’s second order on 3 April but this was presented to the public as ‘clarification’ and ‘further guidance’ rather than a correction.

Borrowdale said yesterday he did not want to comment on the decision, saying the judgment should speak for itself.

Read more in LawNews How legal was our lockdown?

The dubious legality of Covid-19 level 4 Has Covid-19 infected the rule of law?

Covid-19: legitimacy of our system under threat Lawyer takes govt to court over Covid-19 lockdown Lockdown case has its first day in court Legality of the lockdown plays out in court

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LawNews Issue 28 | 21 Aug 2020

ADLS COMMITTEE CONVENOR

Brett Harris: Health & Safety committee convenor Brett Harris has taken up the reins as convenor of the ADLS Health and Safety Committee, replacing Fletcher Pilditch who was the committee’s inaugural convenor when it was established in 2015.

This is part of a series of profiles on ADLS committee convenors.

Where do you work, what’s your role?

I am a barrister operating from my offices/chambers overlooking Auckland’s Britomart area.

Like most barristers, I take on a typical range of litigation, dispute resolution and some risk management/corporate advising but I am probably recognised for my work and about 20 years’ experience in workplace health and safety defence work, typically those accidents involving fatalities.

As at August 2020, I am briefed in 10 workplace fatality cases including the tragic events of Whakaari – White Island. I am typically instructed for the defence by insurers/in-house counsel.

Other areas of my regulatory practice include investigations and prosecutions relating to animal welfare, maritime, resource management, building and construction etc.

Where did you study?

At the University of Canterbury. I graduated with a BA (English literature with some Classics thrown in for good measure)/LLB. What’s been your career to date?

I was admitted in 1995 and started work at an Auckland litigation firm, Holmden Horrocks. I took my OE in London in 1997 and courtesy of another Auckland lawyer (James Foley) I worked with a specialist (largely Kiwi) law firm in the City to acquire and lease the requisite land across the UK to set up the ‘One2One’ cellphone network.

I distinctly remember the delightfully English senior partner of this firm praising the skills of New Zealand lawyers and our ability to make quick commercial decisions while at the same time commenting that none of us was driven towards careers in the law and, instead, all we wanted to do was travel widely in Europe.

On my return from London in 1999 I joined Keegan Alexander to assist the inimitable Peter Spring with a large intellectual property/anton piller claim. I started to specialise in health and safety work, including fatalities, which was unusual at the time. When I first started practising in health and safety, the maximum fine was $50,000 and you could obtain insurance for the fines. Now, of course, the standard, maximum fine is $1.5 million and since 2003 it has been illegal to insure or to indemnify for fines, although reparation and defence cost cover is still available (and essential).

In July 2006, after about 10 years of practice (which I had unilaterally decided was the minimum litigation experience possible), I decided to make a move to become a barrister. I have been in two city chambers since then and in 2017 I decided to take my own space.

As a defence lawyer, I find myself passionately involved for employers and business owners. The impact of these accidents and any prosecutions that follow is huge. It can be devastating for all involved, recognising (of course) that the impact of any workplace accident on victims and their families is undeniably the primary impact and the primary concern.

Outside defence work, I have enjoyed making a few ‘top of the cliff’ changes in safety, such as my suggested colour coding of risk for forestry workers chaining up logs for extraction (or, “breaking out”). This coloured, safe-retreat system has now been adopted by many forestry companies and endorsed

Brett Harris

In 2020, perhaps more than ever, the profession and the entire country are aware of how quickly things can change, and the value of professional guidance and of leadership during times of adversity or uncertainty

by WorkSafe NZ. I have also been working on a unified safety protocol for all motorsport groups in New Zealand with almost universal buy-in across most of the major motor sports.

How long have you been a member of ADLS? I was with ADLS in the earlier stage of my career when membership was compulsory. I decided to re-join in 2015 because I learned that ADLS was establishing a new health and safety committee, initially suggested (I understand) by barristers Sam Moore and Fletcher Pilditch. Fletcher became the committee’s inaugural convenor and I agreed to help out.

I first met Fletcher when we were on opposite sides of New Zealand’s biggest animal welfare cases, linked with the Crafar Farms. The dairy cow herd on that main farm was approaching 4,200 animals and MPI/MAF brought 716 charges relating to allegations of the under-feeding of cows in some herds against five defendants.

Fletcher was the Crown Solicitor at the time. I acted for the defence and we also engaged (now) Justice Paul Davison QC. It was through that case that we struck up a friendship. Fletcher recently stood down as the convenor and I have agreed to carry the torch.

How long have you been involved with ADLS committees and which committees have you worked with?

I have had colleagues on other committees but it wasn’t until this specialist committee was established in 2015 that I decided I should offer to become involved.

Why is committee work important?

In my view, the profession needs support in different ways, such as the provision of continuing professional development and education, collegial support and occasionally from specialist groups as advocates for the Continued on page 10 3

LEGAL PRACTICE

Covid-19: paperless affidavits and digital signing

By Andrew Easterbrook

During the first lockdown, some parties and lawyers encountered difficulty in having affidavits sworn.

(b) the person before whom the affidavit is sworn must initial each page preceding the page on which the jurat appears.

Accordingly, there is no explicit requirement that the deponent’s signature be witnessed or that the deponent undertakes the process of affixing his or her signature in the presence of the person before whom it is sworn.

Auckland is now in lockdown again and other areas of the country may shortly follow. Swearing affidavits might become difficult again.

Below is a method which I think is likely to satisfy the court that an electronically signed-and-sworn affidavit should be accepted.

Remote affidavits The level 3 rules currently applying in Auckland prohibit any close personal contact with customers or clients (lawyers and law firms being a category C business under clause 11(5)(d) of the Covid-19 Public Health Response (Alert Levels 3 and 2) Order 2020.

The question is therefore whether (and how) the paperless taking of affidavits could be justified and how it would need to be done in practice.

Two parts of the process may be impacted by physical distance requirements – taking the oath and the signatures being affixed to the document itself.

The deponent of an affidavit must swear or affirm that the contents of an affidavit are true and correct.

Rule 168 of the Family Court Rules 2002 says affidavits must be “sworn before a person who is authorised under s 104 of the District Court Act 2016 to take it”. Section 104 says a lawyer (and certain others) may take an affidavit or affirmation (except for use in a proceeding in which the lawyer is engaged).

In short, the deponent swears or affirms the contents of the affidavit, and he or she must do so before an authorised person including a lawyer.

That person is the administrator of an affidavit.

Clause 4 of the Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 provides that to the extent that Part 1 of the Oaths and Declarations Act 1957 requires an oath to be sworn or an affirmation made “in the presence of the person administering the oath or affirmation”: that requirement is waived; and

the administrator may administer the oath or affirmation using an audio-visual or audio link with the person swearing or making the oath or affirmation.

The Immediate modification order allows the taking of the oath to be done remotely. The order applies until the Epidemic Preparedness 4

mark on each page preceding the page on which the jurat appears; and

Both the deponent and the person before whom the affidavit is sworn must sign the affidavit, but the rules do not require both people to do so at the time the deponent swears it in accordance with sections 3 and 4 of the Oaths and Declarations Act. Andrew Easterbrook

(Covid-19) Notice 2020 expires or is revoked. It has been renewed once and is due to expire on 24 September 2020.

The signatures The fact that an oath or declaration has been made by the deponent is separate to (and capable of proof independently of) the deponent’s signature and the signature of the administrator.

The Oaths and Declarations Act does not include anything that requires a signature for an oath. The Act is directed only at the words the deponent must say. Likewise rule 168 of the Family Court Rules simply requires that an affidavit be “sworn before a person who is authorised”. The simple step of swearing (or affirming) does not necessitate a signature and rule 168 does not require a signature.

The requirement that a deponent must sign an affidavit is instead found in rule 158: (1) Every affidavit— … (c) must either— (i) be signed by the deponent; or (ii) if the deponent cannot write, have the deponent’s mark set to it by the deponent; and …

(3) The date on which, and place at which, an affidavit is sworn must be stated in the jurat (that is, in the brief statement at the end of an affidavit of when, where, and before whom, the affidavit was sworn), and the jurat must be signed by the person before whom the affidavit is sworn.

The Epidemic Preparedness (Oaths and Declarations Act 1957) Immediate Modification Order 2020 says nothing about signatures and does not modify any requirement for affidavits to be signed by a deponent or an administrator.

As such, the current legislative framework is that taking the affidavit may be done remotely by AVL (for example, Zoom or Microsoft Teams) but the deponent and lawyer must still sign the same document.

There is no legislative guidance (yet) on whether a deponent or an administrator may affix a signature to an affidavit other than by doing so on the same physical document.

That may pose some problems, for example, in the case of: urgent affidavits for without-notice applications; and

a deponent or an administrator not having a printer readily accessible without breaching the relevant alert level rules.

Electronic signatures One option may be to use electronic document signature software.

There is no legislative authority permitting the electronic signature of a deponent or administrator of an affidavit. Part 4 of the Contract and Commercial Law Act 2017 provides a general authority to use an electronic signature (subject to certain requirements) in place of a physical signature anywhere an enactment requires a signature.

But s 218 and Part 3 of Schedule 5 have the effect of excluding “provisions of enactments that relate to … affidavits, statutory declarations or other documents given on oath or affirmation.”

(4) If an affidavit is two or more pages long—

Rule 158 of the Family Court Rules requires the deponent’s and administrator’s signatures. So, the CCLA authority to use electronic signatures does

Continued on page 5

(a) the deponent must initial or make his or her

LawNews Issue 28 | 21 Aug 2020

Continued from page 4 not apply to affidavits in the Family Court.

However, given the circumstances, lawyers might consider making use of electronic document signatures anyway. That could be argued on the following basis: rule 158 is the rule that requires a signature; signing a document electronically is a breach of only that rule. There will have been no breach of the rules or legislation about swearing affidavits; an affidavit will be properly sworn if the provisions of the Oaths and Declarations Act are adhered to. One might argue that the swearing or affirming is the more important part;

rule 17 of the Family Court Rules says a failure to comply with a rule must be treated as an irregularity and does not nullify the relevant step or any document in the proceedings;

processes can be followed which will effectively ensure the breach of the rule will have no prejudicial effect; and

absent prejudice, the court is likely to accept an electronically-signed document as valid and apply rule 17.

The question then is what processes should be followed. The starting point will be the rules about electronic signatures in other contexts. Section 226 of the CCLA says that: 226 Legal requirement for signature (1) A legal requirement for a signature other than a witness’s signature is met by means of an electronic signature if the electronic signature— (a) adequately identifies the signatory and adequately indicates the signatory’s approval of the information to which the signature relates; and

(b) is as reliable as is appropriate given the

purpose for which, and the circumstances in which, the signature is required.

Using a reputable electronic document signature service such as Docusign or ADLS Digital Signing is likely to pass muster under s 226. Those providers keep detailed records (including, for example, the IP address of the computer used to sign) and can be asked to validate a document signature at a later stage.

They differ in that respect from simply copying and pasting an image of a signature (often the process used to “sign” letters electronically).

Both ADLS Digital Signing and Docusign meet LINZ requirements in respect of the signing of authority and identity forms (Authority and Identity Requirements and Electronic Signing of Documents Interim Guideline 2020 LINZ OP G 01247 30 March 2020 at 3.1), whereas simply copying and pasting an image of your signature onto a document would not.

And:

an electronic signature by the deponent of an affidavit given in court proceedings where that same deponent is a witness can be verified by the deponent at the hearing of the matter; and

an electronic signature by the administrator of the oath can be verified by the administrator completing a certificate. There will also be an email or other record of the signature process.

In fact, electronic signature software can be set up as multi-party, ensuring higher quality and preventing changes to the document. So, signatures are likely to be more reliable than scanned copies of paper documents.

Electronically-signed affidavits Where an affidavit is required under time pressure, I suggest the following process is likely to satisfy the court that rule 17 should apply and the affidavit accepted, despite any non-

compliance with rule 158.

The deponent and the administrator meet by AVL.

The administrator takes the affidavit via AVL under authority of the Immediate Modification Order. This order allows an audio-only link but I suggest AVL should be the preference.

The taking of the affidavit is limited to the deponent swearing (or affirming) that the contents of the affidavit are true and correct.

The document is signed by the deponent.

While there is no requirement for the deponent’s signature to be witnessed, the administrator needs to know the document signed by the deponent is the same document the oath was given in respect of, and which the administrator will sign. If the affidavit was taken

by AVL, this can be established by using electronic signing software together with screen-sharing software. The deponent’s computer screen is made visible to the administrator over AVL and the administrator can see the deponent using the electronic signing software to affix his or her signature.

The document is signed by the administrator using the same electronic signing software as part of a multi-party signing process. The administrator should also complete a certificate outlining the process that was followed.

Using electronic signing software will increase the reliability of the document. It will decrease the risk of the wrong document being signed, pages going missing, bad quality scans (or worse, a photo of the documents which is printed and another photo taken).

Andrew Easterbrook is an associate at WRMK Lawyers To find out more about ADLS Digital Signing, email: melissa.fini@adls.org.nz

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Price: $191.30 plus GST* Price for ADLS members: $172.17 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by email: thestore@adls.org.nz * + Postage and Packaging

5

CRIMINAL/HUMAN RIGHTS LAW

Should punishment be included in the BOR Act?

By Sam Meyerhoff

Earlier this year, the Equal Justice Project presented to the Justice Select Committee on the Electoral (Registration of Sentenced Prisoners) Amendment Bill. This aimed to restore voting rights to prisoners serving less than three years. However, in parliamentary debate it received forceful pushback from the opposition. At one point, National’s Nick Smith alleged “the current government does not believe in punishment”.

While it is fair to assume this is an exaggeration, it highlights a flaw in our legal and political system.

Members of the legislature often mean different things when talking about punishment. For such a fundamental element of our justice system, it seems a grave oversight that the law lacks any specificity about punishment.

The discourse about punishment in New Zealand politics has broken down. The major political parties cannot agree on what it means for our society and unless we see progress, issues like prisoner voting rights will continue to be political footballs, passed between successive governments.

What is punishment? What justifications are there for its existence? How should we treat it?

If answered with any level of specificity, these questions would ensure the debate on the rights of criminals and victims had some common grounding on which all sides could agree.

New Zealand is uniquely situated to answer these philosophical questions through legal means. Our jurisprudence is well suited to further specificity about the nature of punishment and has the perfect vehicle for doing so: the New Zealand Bill of Rights Act 1990. Quite simply, if punishment were made a right included in one of the most important parts of New Zealand’s constitutional landscape, we might see a philosophical and legislative breakthrough that hitherto has been only theoretical.

A right to punishment?

Were punishment made a right, there are two possible ways to formulate it: either as a right to be punished for the choices we make or a right to punish those who wrong us. The first formulation best fits into our existing legal framework but before discussing how to go about incorporating a right to be punished into the NZBORA, it is necessary to think about why there should be such a right at all.

At its most basic, the right to punishment would be aimed at protecting the interests of personal responsibility, autonomy, and dignity of the 6

The debate about punishment in New Zealand has broken down at a political level

By placing a right to punishment in the NZBORA as opposed to the Human Rights Act 1993, the interplay between wrongdoers and their individual victims is lessened person. Punishment in a legal context is tied to choices. Legal doctrines like automatism and novus actus interveniens cover a wide range of circumstances but are all centrally concerned with ensuring people are not punished for what they are not responsible for, because punishment is an affirmation that someone is human enough and responsible enough to be held accountable for his or her actions.

The American legal philosopher Herbert Morris has advocated for punishment being viewed as a right, stating that: We treat a human being as a person provided: first, we permit the person to make the choices that will determine what happens to him and second, when our responses to the person are responses respecting the person’s choices.

This logic – that someone is treated as a person only when he or she is given the chance to make choices and bear the consequences – is reflected in New Zealand case law to some extent. Katz J, when writing on causation, has cited with strong approval English case law arguing that criminal law is premised upon notions of free will and autonomy.

Additionally, since even before the enactment of the NZBORA, New Zealand has written in United Nations reports that the main goal of our penal system is “the rehabilitation of the prisoner and the encouragement of self-respect and a sense of personal responsibility”.

Therefore, the right to punishment – the right to be justly held accountable – underlies a great deal of our existing law. By codifying this existing right, we would be taking existing jurisprudence and developing it in a way that would advance our country’s political stalemate, while also accomplishing several important goals.

For example, the utilitarian view of punishment would argue that the imprisonment or even execution of an innocent person is justified if such a system would produce the greatest amount of utility.

Viewing punishment as a right attached to a person’s individual autonomy shows this view not only endangers the rights of innocent people, but also diminishes the worth of those being justly punished. Systems of punishment designed with utility in mind imply that those bearing the consequences of their actions are not being treated with respect or dignity but are simply unwanted integers whose effect on society can be altered or outweighed by others either through actions, or by being unjustly punished.

Consider a case brought by the cellmate of a prisoner who was mistreated. The case would be brought on the basis that by being punished alongside someone so wronged, the dignity and personal responsibility inherent in the plaintiff’s Continued on page 7

LawNews Issue 28 | 21 Aug 2020

Continued from page 6 right to punishment had been disregarded, and his or her rights violated.

By making punishment a right, the burden would be on the government and private prisons to ensure they provided an appropriate environment for those serving sentences not only in an individual context, but communally.

Finally, by using punishment to affirm people’s autonomy, we would be implicitly rejecting any kind of barbaric treatment that seeks to change aspects of a person which he or she has no control over.

The current government has a troubling record on its approach to conversion therapy, the affront to the rights of LGBTQ New Zealanders that pretends sexual orientation is a choice. This “treatment” would not stand in a society that recognised punishment as a right inseparably intertwined with actions that individuals have chosen.

Because the NZBORA affects government actions, they would have no choice but to cut ties with any kind of process seeking to punish people for that which they did not choose or control.

The NZBORA The Normative Argument What are the specific benefits of including a right to punishment in the NZBORA? From a normative perspective, the NZBORA is appealing as punishment is a function of the state interacting with the individual to uphold certain established values.

Scholars have argued that one of the goals of punishment is to better unite the wrongdoer not with their victim per se but with society as a whole.

Therefore, since the NZBORA is concerned with mediating relations between people and bodies serving a public function, any change to how our legal system views punishment should naturally be grounded in it.

This choice is not without consequence. By placing a right to punishment in the NZBORA as opposed to the Human Rights Act 1993, the interplay between wrongdoers and their individual victims is lessened. The Human Rights Act deals with interactions between people, not people and the state. Therefore, it could conceivably frame a right to punishment as a right to punish those that wrong you, something the NZBORA would struggle to grant. The relationship between people and the state is undoubtedly at the heart of this conversation, but victims’ rights carry a great deal of pathos in Aotearoa.

Relying on the NZBORA may take emphasis away from victims but legislation such as the Sentencing Act 2002 ensures victims’ voices are heard in the process of punishing wrongdoers. Additionally, if victims wish for legal recourse that puts more emphasis on their own relationship with the wrongdoer, the law of torts is a valid option.

Torts actions are less focused on punishment per se and courts are wary of allowing a defendant to be punished for the same act in public and private legal settings. However, they would ensure victims had a path to find closure in the legal field even if

The current government has a troubling record on its approach to conversion therapy, the affront to the rights of LGBTQ New Zealanders that pretends sexual orientation is a choice punishment were developed to focus more on the bond between state and wrongdoer.

The legal argument A “right” to punishment will undoubtedly be controversial and should be introduced only into legislation which already has provisions that clearly show the role such a right would play.

The NZBORA has two provisions dealing with punishment. Section 9 grants people the right not to be subjected to “torture or to cruel, degrading, or disproportionately severe treatment or punishment”. This complements s 23(5) which states that those deprived of liberty will be treated with humanity.

The presence of these two sections already lays out the basic shape of what a right to punishment might be. The courts have ruled that s 9 demands that no punishment be inhuman while s 23(5) demands all punishment be humane. This distinction allows us to infer what the New Zealand courts see as being the definition of appropriate punishment.

Developing the law of punishment through the vehicle of the NZBORA would allow a smoother progression of the law as there would be fewer questions about how such a change would fit into the wider legal landscape.

Moreover, while a right to punishment would further political debate, it would be foolish to consider that society’s perception of punishment would thereafter remain in stasis. The NZBORA, from a legal perspective, manages to straddle the line between being a fiercely important part of our constitutional system while also being relatively easy to amend. Despite having political significance, the statute is not entrenched, meaning any provision dealing with a right to punishment could be changed to better suit the social needs of the time.

Finally, s 5 of the NZBORA also provides a necessary qualification on the right to punishment.

As discussed, this would be based on the values of autonomy, responsibility, and individual dignity.

People should have the right to be punished for their actions and decisions.

There is, however, one glaring flaw in this logic.

Strict liability offences, while rare, undermine all these values and would be complicated by a right to punishment. But s 5 states all the rights in the NZBORA are subject to reasonable limitations which can be demonstrably justified in a free and democratic society. While it is impossible to know the exact response courts would have to this conundrum, it is conceivable that s 5 would

alleviate any potential danger.

The right to practise Legal systems across the globe have become aware of the reality that punishment as it is currently envisioned disproportionally impacts members of certain minority groups. Given that, in New Zealand, Māori and Pasifika re more likely to bear the burden of legal punishment, be it through imprisonment, disenfranchisement or myriad other forms, it is important to discuss how a right to punishment may impact everyday New Zealanders.

This new view of punishment might be seen as reifying existing inequitable realities but it is vital to remember that, as discussed above, inclusion in the NZBORA would make the right respected, but also flexible.

There is no reason to believe a right to punishment could interact only with our current Eurocentric view of sentencing. The High Court has ruled that alternative paradigms like tikanga interact with our legal system best through the lens of sentencing as opposed to through the criminal trial procedure.

Legal scholars have remarked that this emphasises how New Zealand’s view of punishment is evolving.

A right to punishment would therefore develop alongside the one area of criminal law which is best-suited to evolution over time.

The right to punishment, if treated with the appropriate level of respect by the judiciary, could move with Aotearoa on its journey to becoming a more equitable society. Indeed, part of the justification for implementing it would be to give future debates a more solid legal grounding, allowing for faster and fuller development.

New discussions The right to punishment is supported by our existing jurisprudence. The law about causation, the NZBORA and the way we discuss our penal system already shape the outline of what this right may entail. Implementing it would affirm our recognition of the fundamental autonomy, responsibility, and dignity of everyone affected by our legal system. It would open the door to new discussions around how we conceive of justice and the social contract.

New Zealand is famous for leading the world with bold ideas. Social, scientific, and political achievements are what make this country what it is. The time is right for us to take another such step, and instead of languishing in a political stalemate, allow our legal system to do what it does best: lead.’’’

Sam Meyerhoff is part of the Equal Justice Project 7

To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Climate Change Series (3): Key Considerations for Corporate & Commercial and Banking & Finance Lawyers With an eye on where climate change or emissions trading scheme (ETS) issues might arise, or where sustainable finance can play a role, the third session of this series will focus on what corporate & commercial lawyers, and banking & finance lawyers need to know about carbon law matters. The presenters will provide an overview of the ETS, and will provide insights around which types of clients may be affected by the ETS and wider carbon issues, and how they may be impacted. The session will also include consideration of infrastructure and the role of sustainable finance in helping to capitalise the transition towards a net zero position. Relatable case studies will assist attendees to recognise where climate change-related input is required.

Learning outcomes: •

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Consolidate your understanding of the emissions trading scheme (ETS): what it is, who it affects, and how it’s changing.

Become aware of where climate change or ETS issues might arise for your clients.

Benefit from case studies on a range of industries, which will highlight the climate change input (issues and risks) in relation to common corporate transactions.

In respect of commercial agreements/arrangements, become apprised of the nature and flavour of advice required, such as the passing-on of carbon liabilities and carbon costs.

Become aware of what sustainable finance is and its role in capitalising the transition towards a net zero carbon economy.

Become aware of the legal considerations to take into account when assisting your clients with sustainable finance matters.

Gain insights into what’s ahead, and what that means for advising clients, as we move towards net zero.

Openings and Closings in Criminal Trials

 Mon, 24 Aug 4pm – 5.30pm

 Presenters Simon Watt, Partner, Bell Gully Kate Redgewell, Consultant, Bell Gully Joanna Silver, Head of Sustainable Finance, Corporate & Institutional Banking, Westpac

Livestream

Focusing on effective preparation and presentation of opening and closing addresses from both a prosecution and defence perspective, this seminar will also cover content, structure, applicable principles, and best-practice approach.

Learning outcomes: • • •

Livestream CPD 1.5 hrs

Receive guidance on how to effectively prepare and present an opening statement.

Gain valuable pointers on how to effectively prepare and present a closing statement.

Learn more about the content and structure of openings and closings.

CPD 2 hrs

 Tue, 25 Aug 4pm – 6.15pm

 Presenters Marie Dyhrberg QC, President, ADLS Aaron Perkins QC

 Chair Contempt and Recusal: New Legislation, Old Saws

Covering two topics of importance for all litigators, this seminar will provide a refresher and updater on contempt of court and judicial recusal.

When the Contempt of Court Act 2019 comes into force on 26 August, familiarity with it will be desirable for all litigators, particularly those who practise in Criminal law. The potential for contempt – and the need for lawyers to deal with potential contempt issues – will increase.

In a country the size of Aotearoa, the need for judicial recusal would seem to be great – but proper procedures and various guidelines exist, and the threshold for recusal is high. When is – and isn’t – applying for recusal appropriate?

Learning outcomes: • In respect of contempt of court: o Become apprised of the coverage, scope and application of the Contempt of Court Act 2019, with particular focus on publication contempt (for example, involving the media and name suppression). o Receive insights into how potential contempt issues might arise (for example, the taking of photographs in a court waiting area), and how to avoid or at least manage them. o Benefit from finding out about real-life examples, and the learnings from those.

• In respect of judicial recusal: o Improve your understanding of when recusal is and is not required, and of the appropriate procedures and applicable guidelines.

Future Fit Workshop Being Future Fit has evolved as a new paradigm, designed to help you and your team move from a state of panic to thriving. Attendees will also have post Workshop access to Jumpshift’s Adeption Platform to further support their learning and achievement of their goals. Numbers are strictly limited so book now.

The Honourable Justice Moore

Livestream CPD 1.5 hrs

 Thu, 27 Aug 4pm – 5.30pm

 Presenters Robert Stewart, Barrister, Shortland Chambers

 Chair The Honourable Kit Toogood QC

 Workshop CPD 2 hrs

 Wed, 2 Sep

Learning outcomes:

10am – 12.15pm

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Jimmy Burroughes, Leadership Sounding Board and Coach, Jumpshift

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Gain practical tools and insights to help you and your organization deal with the changes we’re now facing as a result of COVID-19.

Learn more about how to strategize and plan for a post-COVID business shift.

Gain an opportunity to think through the problems you are facing, whilst engaging in a collaborative session about what business post-COVID-19 might be like.

 Presenter

LawNews Issue 28 | 21 Aug 2020

CPD in Brief The Art of Communication – Be a Powerful Advocate

 Workshop

How often have you heard that communication is key? And how often have you thought (to your or your client’s chagrin and possibly disadvantage) that you should have slowed down when making an address, used more eye contact, and/or come across as more confident? Led by an experienced advocate (and media spokesperson) and an accomplished teacher/director, this workshop will arm you with the skills for developing the art of communication for your role as an advocate – so you won’t let yourself down, or your clients on behalf of whom you speak.

This workshop sold out in 2018 and 2019 – register now to avoid missing out.

Feedback from the previous sessions included the following comments: • “Interesting, lively workshop – well presented.”

• “Great anecdotes, relevant stories and examples.”

• “The presentation was relaxed, informative and encouraging.”

Presenters: Marie Dyhrberg QC, President, ADLS; Isabel Fish, Director, Producer and Educator

CPD 3 hrs

 Sat, 5 Sep 9am – 12.15pm

Livestream

Climate Change Series (4): Dispute Resolution Trends and Insights This fourth session in the series will provide an overview of trends and insights in domestic and international climate change dispute resolution. Presenters Jenny Cooper QC, Daniel Kalderimis and Nicola Swan will cover international and domestic climate change-related litigation and arbitration brought to date against governments and corporate entities, including claims in judicial review, tort, corporate and commercial law, and Treaty-based and indigenous rights; regulatory actions and investigations regarding climate change; and climate change-related commercial and investor-state arbitration.

Presenters: Jenny Cooper QC; Daniel Kalderimis, Partner, Chapman Tripp; Nicola Swan, Senior Associate, Chapman Tripp

Commercial Leases – Protecting Landlords from Defaulting Tenants This webinar will look at the remedies available to commercial landlords when tenants default on rent payments. It will cover how to protect landlords’ interests when things go wrong, including cancellation of leases for non-payment of rent, re-entry into premises and mitigation of loss, legal proceedings, security enforcement, and insolvency issues. The webinar will also cover the temporary amendments to the Property Law Act 2007, which the Government has made to support tenants in response to the COVID-19 pandemic.

Presenters: James McMillan, Partner, Dentons Kensington Swan; Mark Broad, Senior Associate, Dentons Kensington Swan

Faces, Traces & Places – Identification Tech and Evidence In Person | Livestream Forensics never goes away! It’s everywhere and every contact leaves a trace. In this seminar our expert panel will elaborate on the different types of identification technology and evidence that is available and being used in New Zealand such as: • Key DNA case considerations and the review of the CIBS Act • Voice identification evidence – forensic voice comparison and profiling • Fingerprint evidence • Facial recognition technology and CCTV Presenters: Dr Anna Sandiford, Director & Expert Witness, The Forensic Group Ltd; Sue Petricevic, Principal, Legal Advisor WorkSafe; Paige McElhinney, Expert Witness, Scientific Consultant, The Forensic Group Ltd; James Ruhfus, Video expert Presenter & Chair: Dr Viktoria Papp, Academic – Teaching and Administration, University of Canterbury; expert witness, data scientist in identity at MBIE, research associate of the New Zealand Institute of Language, Brain and Behaviour

CPD 1.5 hrs

 Mon, 7 Sep 4pm – 5.30pm

 Webinar CPD 1 hr

 Tue, 8 Sep 1pm – 2pm

Livestream  Seminar CPD 2 hrs

 Thu, 10 Sep 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member

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Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST

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Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

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CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

For group bookings for webinars and seminars, contact cpd@adls.org.nz ADLS members and non-member lawyers who have registered their Airpoints™ membership with ADLS can earn Airpoints Dollars™ on eligible ADLS CPD purchases.

Terms and conditions apply.

Climate Change Series: What Lawyers Need to Know A 5-part series providing practical guidance on this key topic across a range of areas of law Visit adls.org.nz for more information.

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Continued from page 3 profession. The ADLS and its committees make significant contributions in these areas.

How do ADLS committees make a difference?

I suspect the true difference will depend upon the composition and energy of the particular committee, the area of law and the profession’s needs.

In 2020, perhaps more than ever, the profession and the entire country are aware of how quickly things can change, and the value of professional guidance and of leadership during times of adversity or uncertainty.

During the Covid-19 lockdown period, ADLS was asked to provide guidance and submissions on the urgent progression of Covid-19 legislation and regulation.

ADLS reached out to the specialist committees and I think, from what I saw at that time, committee members made valuable and practical contributions to submissions on very little notice. I am not 100% sure how much of what was queried or suggested was influential in the final form of the legislation, but it is a great example of the kind of difference that ADLS can make as a professional society.

What’s been the most notable achievement or biggest focus of your committee over the past few years? Why was that important?

Health and safety is an unusual area of law. All law is fact-dependent but health and safety law hinges on the specific facts of a certain circumstance and workplace.

This means case law updates, case trends and CPD updates are not always especially helpful unless there are policy or process (or perhaps sentencing) implications of wider relevance.

For example, I was involved with the Zion Wildlife fatality of a zoo keeper many years ago in Northland which occurred while feeding white tigers in captivity; I was involved with the St Kentigern College “Sweeney Todd” investigations arising from a school play and I am helping with the events of the eruption of Whakaari in early December 2019.

To me, these are interesting cases and facts, which is what keeps me interested in my work. But there may not be any significant precedent created as a result of these cases, especially in those where no legal or enforcement action arises.

Contrast this with employment law, where fair contract negotiations, holiday pay interpretations, unjustified dismissals and redundancy case law have a broad application and relevance for the profession and for society. This has been a challenge for our committee.

The work of the Health and Safety Committee has mainly been to monitor and to comment on the evolution of the law since the 2015 Act came into force.

This has included some important cases on the correct processes for sentencing s 36 and s 34 cases, for assessing the value of “emotional harm” reparation and consequential losses, (which at one point moved towards a personal injury style analysis and actuarial assessment of economic “lost opportunity”) and the relevance of ancillary orders, such as enforceable undertakings and work project orders, and finally financial capacity at a strict liability corporate sentencing.

To return to the question, I am not sure we can truly single out a most notable achievement or single success but I am sure we have assembled a specialist group of lawyers who will help to mould the law in this area, and, I hope, to keep the profession current.

What would you say to anyone thinking of becoming involved in an ADLS committee?

It is very rewarding. However, done properly, it requires a commitment to the committee and to the profession. It is a responsibility which is not to be taken lightly. Balance that with the opportunity to assist the profession and work alongside other specialists and the great team at ADLS. What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?

This year has thrown up several new and unexpected issues and challenges for everybody. I am sure there will continue to be challenges for the regulator, for employers and for business owners as a result of all that is unfolding with Covid-19 and the extent to which you can manage a workplace to honestly “ensure” the health of all workers, contractors and visitors.

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There will likely be health monitoring and health privacy issues to come, perhaps in conjunction with the new Privacy Act 2020 and any changes to the Health Information Privacy Code.

Alongside that, there are real opportunities arising here that we as a profession should try to seize. Our committee is talking with the courts and the judiciary about the potential extended use of some technology in our work areas (eg, category 1 cases) and there are possible benefits and cost savings in the administration of justice in health and safety cases too.

What’s the best kept secret about ADLS? The friendly professionals that you work alongside and, of course, the sausage rolls!

To find out more about ADLS committees, contact Melissa Fini: e: melissa.fini@adls.org.nz

WILL INQUIRIES LawNews The no-hassle way to source missing wills for $80.50 (GST Included) Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

Wills 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.

Norma Olive ARDERN, of Ngaruawahia, Late of Amberlea Hospital and Rest Home, Algies Bay, Warkworth, minister of religion, aged 74 (died 15’06’20) David Shane Hemopo HURINUI also known as David Shane HURINUI, Late of Australia, Formerly of Mount Maunganui, de facto, miner, formerly manager, aged 58 (died 29’01’20) Susanadaisy Jill JENSEN, Late of Auckland, single, aged 41 (died 31’07’20) Vijay PRAKASH, Late of 12 Canmore Drive, Pokeno 2402, aged 64 (died 28’12’19) Hashem SLAIMANKHEL, Late of 4 Merivale Avenue, Epsom, Auckland, aged 57 (Died 27’01’18) Hekewai George John TAIROA also known as John, Late of Econolodge City Central Hotel, 37 Wellesley Street, Auckland, aged 63 (died 01’08’20)

LawNews Issue 28 | 21 Aug 2020

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P: (09) 302-2476 E: team@docuserve.co.nz W:www.docuserve.co.nz

021 685 910 nigel@nigeldunlop.co.nz www.nigeldunlop.co.nz

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

There are two shared meeting rooms and a communal kitchen area. Telephones, internet connection, printing and secretarial services are available. Some furniture is also available.

The cost is $280, $210 or $140 plus GST per week plus overheads (around $120 or $75 per month) depending on size (19 sq metres, 12 sq metres and 10 sq metres).

No long-term commitment is required.

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

Get your message in front of them.

Contact: Shane Hussey for further details. shane@hco.co.nz

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

tel. (09) 300 5481

Upcoming Criminal Law Sessions • • • • • •

Openings and Closings in Criminal Trials Tuesday 25 August | 2 CPD hours Contempt and Recusal: New Legislation, Old Saws Thursday 27 August | 1.5 CPD hours Faces, Traces & Places – Identification Tech and Evidence | Thursday 10 September | 2 CPD hours Communicating during Virtual Court Appearances Wednesday 23 September | 1 CPD hour Criminal Law Pot Pourri 2020 Thursday 29 October | 2 CPD hours Cross-Examination Workshop (Auckland) Saturday 28 November | 4 CPD hours

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz

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Niche has a proud history of recruitment in Aotearoa New Zealand, with a core focus on the legal market alongside Executive, HR, Public Sector and NGO recruitment.

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Collegiality Events The health and wellbeing of members of the profession, our staff and the wider community is our highest priority. With this in mind, as well as to follow government imposed restrictions, online registrations for upcoming events have been suspended.

If you are interested in attending one of the upcoming events that we have scheduled, please email events and we’ll keep you updated.

View upcoming events

T 09 978 3970

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