LawNews- Issue 28

Navigating the new boundaries of

Contents

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

Editor: Jenni McManus

Publisher: ADLS

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz

Reweti Kohere 09 306 3997 Reweti.Kohere@adls.org.nz

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year. To subscribe, please email reception@adls.org.nz.

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Maria Korneeva / Getty Images

Photo: RichLegg / Getty Images

How to navigate the expanding boundaries of sick leave

Reweti Kohere

Besides healing a broken arm or fighting a winter cold, there are many reasons why employees need to use sick leave – and workplaces are becoming more accepting of them.

And a further expansion to the boundaries of sick leave is possible as both employers and employees grapple with more holistic notions of wellbeing.

The Holidays Act 2003 entitles employees to sick leave where they, their spouse or partner or a dependant are “sick or injured”. Proof of sickness or injury rests on a medical practitioner certifying a person isn’t fit to go to work because he or she is sick or injured.

The terms are relatively broad and can include mental health, says Daniel Erickson, a partner at Tompkins Wake and an employment law specialist.

“Where it gets into more of a grey area is in terms of spiritual or emotional wellbeing because that’s not necessarily a medical issue. It probably doesn’t sit comfortably within the Holidays Act framework to run an argument that an absence [from work] was justified on the basis of spiritual or emotional wellbeing.”

Te whare tapa whā

However, with the courts showing a greater willingness to engage with tikanga and its values, the possibility of accepting alternative models of health, which transcend the physical and mental to include the spiritual and the social in determining sickness or injury, is real.

In 1984, Māori health advocate Sir Mason Durie (Rangitāne, Ngāti Kauwhata and Ngāti Raukawa) developed Te whare tapa whā, a model describing health and wellbeing as a wharenui with four walls. The walls represent taha tinana (physical wellbeing), taha hinengaro (mental and emotional wellbeing), taha whānau (family and social wellbeing), and taha wairua (spiritual wellbeing). The connection Māori have with the whenua forms the foundation.

When these aspects of health stand strong, people thrive; when one or more is missing or damaged, one’s wellbeing becomes unbalanced, according to the model. Māori have viewed a person’s wairua, the strength of their connections to

Continued on page 04

You should take real care not to prejudge what activities may be consistent with genuine sick leave and, in some cases, what is ‘sickness’ will need to be considered in light of a Te Ao Māori perspective

Continued from page 08

others and the balance of their mind as vital to their health as their capacity to grow and develop physically.

Such a model could be taken into account today if an employee were dismissed for taking sick leave and attended a secondary school tournament for waka ama, a sport he or she was passionate about.

In attending a tournament for a sport he or she was passionate about, and by making their boss aware of issues affecting their wellbeing, an employee might be seen as doing what was necessary to heal when taking into account Māori views of health, including Tā Mason’s model. That’s the conclusion Simpson Grierson’s Rebecca Rendle, who heads the law firm’s employment national practice group, recently came to.

Rendle referred to the 2013 case of Taiapa v Te Runanga o Turanganui a Kiwi. There, the Employment Court ultimately upheld an Employment Relations Authority determination that the charitable trust was justified in dismissing program supervisor Bruce Taiapa, who had taken sick leave only for social media posts to reveal he had travelled out of town to a waka ama tournament.

Taiapa had given evidence that a culturally appropriate process should have been followed with reference to the tikanga of identifying and treating physical and spiritual maladies in an individual.

Graeme Colgan, then Employment Court Chief Judge, said it wouldn’t have been unreasonable to have expected a Māori organisation, founded on and governed by tikanga, to have treated Taiapa’s “sickness” accordingly.

But, critically, Te Runanga o Turanganui a Kiwi must have known about Taiapa’s issues. “Neither Mr Taiapa nor anyone else took any step to make his employer aware, even indirectly or obtusely,” the court said.

The realm of possibility

Rendle believed the court’s decision would still stand today –even with the increased understanding of the place of tikanga in employment processes. That’s because Taiapa had given 52 different explanations, many of them contradictory, which showed his sick leave wasn’t genuine.

However, the result might be more favourable to him if, for example, Taiapa’s explanations were consistent and he had informed his manager of the serious matters he was dealing with personally, which were impacting his health.

“You should take real care not to prejudge what activities may be consistent with genuine sick leave and, in some cases, what is ‘sickness’ will need to be considered in light of a Te Ao Māori perspective,” Rendle said.

William Fussey, an associate in Anderson Lloyd’s

employment team and a member of ADLS’ Employment Law committee, agrees that cultural or spiritual illness doesn’t necessarily fit into the current legislative definition.

But its inclusion “is not beyond the realms of possibility. The thing is, it’s highly contextual”, Fussey says. Where a workplace doesn’t accept an employee’s reason, the dispute then turns on whether rejecting a sick leave request is reasonable or not.

“That’s where those frameworks, tikanga or any other cultural element, come in…That’s where you might look at the particular circumstances of the employee. If they’ve grown up under a particular framework, it’s part of [showing] good faith to say ‘actually, we need to respect that by allowing you some time off here’.”

‘We’ve moved on’ Erickson, who is on ADLS’ Employment Law committee, says while employers may be ahead of the curve in having policies addressing these ambiguities, the meaning of being unwell has at the very least broadened.

“Back in the day, sickness meant you were at home, ill in bed and you couldn’t come to work. But we’ve moved on from that point.”

Sick leave can be taken for mental health reasons, to recharge after a busy and stressful work period or, in the case of period products business Hello Period, as a “duvet day” for those experiencing menstrual pain or the side effects of menopause.

Erickson says people are becoming more aware of the impact their mental health may have on their ability to work and ensuring they “aren’t doing themselves harm at work”. This, in turn, is helping to expand the boundaries of employment wellbeing.

“As the concept of wellness has expanded, the concept of sickness has expanded…People are more motivated to stay home if they are unwell whereas in previous years, if you had a sniffle or a sore throat, you’d probably keep going to work,” Erickson says.

“But there’s more of a mindfulness now of being contagious and not wanting to spread your germs. That is a covid thing, but it predates that in terms of the widening of the boundaries of sick leave.”

Not inconsistent

It’s generally accepted that exercise helps improve one’s mental health. Equally, the association between catching up with friends and better physical health has been made

Erickson says these activities aren’t necessarily inconsistent with being unwell and doing things to heal and recover. Where

Continued on page 05

People are becoming more aware of the impact their mental health may have on their ability to work and ensuring they aren’t doing themselves harm at work

Continued from page 08

the inconsistency might arise is “if you’ve called in [sick] with a back injury and you’ve put a photo on Facebook of you carrying a rather large pig on your back”, he says, having been involved in such a case.

Fussey agrees that there has been a shift in perception. Certain circumstances that people used to view as being inconsistent with sick leave are being accepted as sicknessrelated.

“A person being depressed or being anxious or having other mental health issues that don’t really stop them in many ways from, say, competing in a sport or spending a day with friends. They’re not going to be passing on any bugs, they’re going to be doing something positive for their wellbeing,” he says. “Arguably that could be consistent with mental health situations…if the person is genuinely struggling mentally and they need some time out, then potentially it is consistent to do that.”

Fussey acknowledges a stigma still exists around discussing mental health and this will continue to lead some employers to question mental illness as a reason for taking time off.

“You’ll probably find there are employees who ring up and say ‘I’ve got a cold’ where they haven’t got a cold. They are still genuinely unwell as it relates to their mental health. They don’t want to tell their employer about it because they don’t want to be looked at in a particular way by that employer,” he says.

“The stigma is far less than it used to be. It’s only perhaps in a far smaller percentage of employment places, but it certainly still exists and it’s a shame that it does still exist.”

Sickness as wellbeing

Sickness is also being perceived more broadly as wellbeing. Consequently, many wellbeing leave policies are rolling in existing sick leave entitlements or are being added to employee documentation as a benefit.

Since October 2021, in addition to their statutory four weeks’ annual leave entitlements, more than 4,500 Westpac New Zealand employees have received five days of wellbeing leave every year to help them look after themselves and their families. The move coincided with other improvements the trans-Tasman bank made to parental leave and bereavement leave.

Kiwibank also provided employees with a broader, more flexible alternative to sick leave from July 2022. “Expanded supported leave” wraps up the traditional sick leave, compassionate leave and domestic leave entitlements into one benefit, which also covers leave for gender affirmation procedures, menstruation and menopause.

More than 2,000 permanent and fixed-term staff can take as much leave as they need and when they need, provided the request is genuine and within reason. Moreover, the bank’s

introduction of quarterly wellbeing leave has given employees a day off to recharge, as long as the benefit is used within the three months it has been allocated.

Fussey asks whether some of the more harder-to-justify reasons for taking sick leave will, over time, become easier to accept as more businesses start to offer additional wellbeing leave.

If they can use the additional entitlement, do workers need the ability to take sick leave for “some of those more questionable elements, where you can’t quite work out whether it falls under sick leave or not?” Fussey asks.

“Does a person really need that when they have additional wellbeing leave versus someone who isn’t given an additional wellbeing leave and has to fit [their reason] within the existing framework? Is there a difference there?”

Trust and confidence

The taking and granting of sick leave is founded on mutual trust and confidence. Employees receive a benefit, employers incur, and expect to incur, the loss. Erickson says there is always scope for misuse.

“If you are offering expanded benefits, you are putting trust in your people that they’re not going to abuse this and they’re not going to seek to misuse sick leave by pretending or exaggerating that they’re not [sick].”

While some people might deliberately push the boundaries of what’s considered acceptable, others might do so innocently, he says.

“Everyone’s different. Some people are a bit more resilient and will keep showing up if they are feeling unwell, be it physically or mentally. There will be a variety of reactions to that. But you have to take people as you find them.

“You do have to take employees on trust sometimes, that they’re not going to abuse it. But there is still scope to ask questions…Even if you are offering enhanced sick leave or unlimited sick leave even, you can still protect yourself by, in your documentation, reserving your right to ask questions, to seek proof, to get a doctor’s certificate.”

Fussey adds it has become difficult to determine genuine reasons from not-so-genuine ones. But the ability of employers and employers to earn and keep trust in one another is critical.

“The more a person is upfront about things, then the more you’re going to keep that trust alive in the employment relationship. It is hugely important. Good faith, trust – all those things, they’re the fundamental basis of the employment relationship,” Fussey says.

“Obviously, there are many instances when that doesn’t happen and I see many of them day-to-day, but I also see a lot of examples where there are people operating in that matter and it really is beneficial.” ■

Back in the day, sickness meant you were at home, ill in bed and you couldn’t come to work. But we’ve moved on from that point

How to interpret deeds of trust

Anthony Grant

My article this week is short. It involves the principles of interpretation of deeds of trust. In Dewat & Others v Lal & Others [2023] NZHC 1908, Sussock AJ wrote succinctly about the matter.

I write about the decision because in my experience, most deeds of trust contain mistakes and errors and it is helpful to have some clear and succinct guidance on the principles to be applied when interpreting them. Sussock AJ has distilled them down to three.

The first principle is that “the court’s approach is objective. It must determine what the contract would mean ‘to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract’.”

It is common sense that the “background knowledge” of the parties should be investigated and appropriate weight be given to it. The days of looking clinically at the words of a contract as if their dictionary meaning must prevail have gone. The background knowledge of the parties to the deed may be of fundamental importance to the meaning to be given to the words.

The second principle is that “if the language at issue has an ordinary and natural meaning, construed in the context of the contract as a whole, that will be a powerful, but not a conclusive,

LinkedIn for L awyers

indicator of what the parties meant”.

This also is a sensible proposition. The “ordinary and natural meaning” of words will usually be the meaning the parties intended the words to have.

But if the court, having all the background knowledge of the parties to the contract, knows that some words are intended to have an unusual or special meaning, the court is not bound by the meaning given to them in a dictionary. Instead, the meaning to be given to them is the meaning that the parties intended them to have.

The third proposition is that “if there remains an ambiguity after the interpretive exercise, the court will generally prefer an interpretation that does not flout business sense”.

This reminds me of Lord Mansfield’s approach to commercial law. Mansfield, one of the giants of the common law, used to dine with businessmen so he could learn from them the realities of commerce; to understand how it worked; what the expectations of commercial people were; and how he could be a better judge when dealing with commercial matters.

The process helped him to become a highly successful judge. Except in rare cases, the law should never flout commercial common sense. ■

Anthony Grant is an Auckland barrister and trustee specialising in trusts and estates ■

The days of looking clinically at the words of a contract as if their dictionary meaning must prevail have gone

Except in rare cases, the law should never flout commercial common sense

Anthony Grant

Letter to the editor

Answers needed from NZLS over scrapped Rule of Law committee

Further to Gary Judd’s article in the August 4 edition of LawNews, I note that the most recent (2022) annual report of the New Zealand Law Society includes this statement on page 5, “A lessknown aspect of the Law Society’s role is that it must serve the people of Aotearoa New Zealand by being a strong and independent voice for the rule of law”.

I think a question needs asking of how the Law Society intends to be this strong and independent voice if it has disbanded the rule of law committee.

It surely has to have reduced or limited the

“strong” rule of law voice through the merger because, as Mr Judd alludes to, none of the eminent rule of law experts that were on the prior specialist committee appears on the Public Law committee.

The NZLS website itself describes the Public Law committee being made up of “public and administrative law experts”.

There is no mention of rule of law experts.

Nick Kearney Special Counsel Davenports law

ST THOMAS MORE DINNER 2023

ST THOMAS MORE DINNER

We are honoured to have as this year’s speaker, The Hon. Justice Joe Williams KNZM Justice Williams’ distinguished judicial career began in 1999 as Chief Justice of the Maori Land Court, then as Chairperson of the Waitangi Tribunal in 2004. In 2008 Justice Williams was appointed a judge of the High Court. He served on the Court of Appeal for a year before his appointment to the Supreme Court in 2019. He was knighted in 2020. Justice Williams’ iwi are Ngati Pūkenga, Waitaha and Tapuika.

We are honoured to have as this year’s speaker, Principal Youth Court Judge, Judge Ida Malosi

Judge Malosi was born and raised in Southland and graduated from Victoria University. She was a founding partner of the all-Māori and Pasifika women law firm King Alofivae Malosi specialising in family law and youth justice.

In 2002 Judge Malosi was appointed to the District Court bench. In November 2022 her Honour was appointed the Principal Youth Court Judge.

Members of the committee extend a cordial invitation to all lawyers and friends to this year’s St Thomas More dinner to be held on Wednesday 4 October 2023 at the Northern Club, Auckland.

Members of the committee extend a cordial invitation to all lawyers and friends to this year’s St Thomas More dinner to be held on Thursday 22 September 2022 at the Northern Club, Auckland

As is our usual practice, the dinner will be preceded by Mass to be celebrated in the Maclaurin Chapel at the University on Princes Street at 6:30pm

As is our usual practice, the dinner will be preceded by Mass to be celebrated in the Maclaurin Chapel at the University on Princes Street at 6:30pm

Pre-dinner drinks will be served at the Northern Club from 7:15pm for dinner at 7:45pm

Pre-dinner drinks will be served at the Northern Club from 7:15pm for dinner at 7:45pm.

The ticket price of $175.00 covers pre-dinner drinks, dinner and wine.

The ticket price of $175.00

Tickets are limited so you are requested to RSVP by completing the form below together with payment by direct credit immediately to avoid disappointment.

 Detach here

By direct deposit to Dawson Harford Limited Trust Account; ASB 12-3109-0032560-02 and confirm by email to bernard.smith@dawsonharford.com the information set out on the slip below

I think a question needs asking of how the Law Society intends to be this strong and independent voice if it has disbanded the rule of law committee

Censorship and the panopticon state

Warren Pyke

“The Building circular – an iron cage, glazed – a glass lantern about the size of Ranelagh – The Prisoners in their Cells, occupying the Circumference – The Officers, the Centre. By Blinds, and other contrivances, the Inspectors concealed from the observation of the Prisoners: hence the sentiment of a sort of invisible omnipresence. The whole circuit reviewable with little, or, if necessary, without any, change of place.”

Jeremy Bentham, Panopticon: The Inspection House (1791)

“Intellectual freedom is a deep-rooted tradition without which our characteristic western culture could only doubtfully exist. From that tradition many of our intellectuals are visibly turning away. They have accepted the principle that a book should be published or suppressed, praised or damned, not on its merits but according to political expediency...

At any given moment there is an orthodoxy, a body of ideas which it is assumed that all right-thinking people will accept without question. It is not exactly forbidden to say this, that or the other, but it is ‘not done’ to say it, just as in midVictorian times it was ‘not done’ to mention trousers in

the presence of a lady. Anyone who challenges the prevailing orthodoxy finds himself silenced with surprising effectiveness. A genuinely unfashionable opinion is almost never given a fair hearing, either in the popular press or in the highbrow periodicals.”

George Orwell, Preface to Animal Farm (1945)

We pride ourselves on our democracy and rail against totalitarians, who govern by silencing dissent. But we also clamour for the cancellation of “misinformation”, “disinformation” and its evil child, “malinformation” (together, the “axis of information evil”).

There is a department in the office of the Prime Minister and Cabinet which enacts a campaign against the axis of information evil because “New Zealanders have told us they are concerned about the effects of disinformation and misinformation.”

The website adds: “A set of reports will be commissioned to monitor and analyse Aotearoa’s online information ecosystem, and the impacts of disinformation. These reports will be made publicly available, to help all New Zealanders [not ‘Aotearoans’]

Continued on page 09

There is a high social value of freedom of expression in an open society: it is a core value for the effective functioning of a democratic system of government

People are entitled to know, with precision, the line between cancellation and censorship on the one hand, and where freedom reigns supreme on the other

Photo: Peter Summers Getty Images

Continued from page 08

to better understand the challenges of disinformation in Aotearoa and to inform the other two workstreams,” defining two members of the axis of evil as “false or modified information knowingly and deliberately shared to cause harm or achieve a broader aim”, and “false or misleading, though not created or shared with the direct intention of causing harm”.

What the website does not say is who decides what is false or misleading information, and it does not define “harm”.

Harm is subjective

The notion of harm is a part of proposed reforms in this area in the UK, where Lord Sumption has pointed out that the notion of harm is subjective and that “The range of material covered is almost infinite, the only limitation being that it must be liable to cause ‘harm’ to some people. Unfortunately, that is not much of a limitation. Harm is defined in the bill in circular language of stratospheric vagueness.”

On the other hand, Karl Popper opined that if we allow unlimited tolerance, intolerance will use its freedom to attack tolerance and destroy it. But Popper did not want us to silence or censor the intolerant; he argued for responding with reasonable arguments (Karl Popper, Chapter 7 of The Open Society and Its Enemies, wherein he explores the “paradox of intolerance”). Notice, Popper did not say that we should respond with ‘true’ arguments.

Censorship and surveillance

When considering a form of State censorship which co-opts corporate media, including social media, to silence dissent or debate, the use of surveillance is an important factor to consider. Online publication is widespread and it is sometimes hard to pin down to a single publisher because it is ubiquitous.

The fight of the anointed against the axis of information evil involves not just suppressing the publication and dissemination of disapproved information, but it also involves leaving in place approved information. To sift the wheat from the chaff the censor must be able to identify authorship and have access to content.

Effective censorship is achievable in the modern world by using a digitally powered version of the panopticon. Michel

Foucault described the effect of the panopticon as being “to induce in the inmate a state of conscious and permanent visibility that assures the automatic functioning of power. So, arrange things so the surveillance is permanent in its effects, even if it is discontinuous in its action...In view of this, Bentham laid down the principle that power should be visible and unverifiable.” (Michel Foucault, Discipline and Punish, The Birth of the Prison, Vintage Books English trans 1977, italics added)

Smartphones and similar electronic devices are today’s version of the panopticon. We entrust them with sensitive information. We use them to carry out day-to-day tasks such as shopping, emailing, communicating with family members, socialising on social media apps, for entertainment, for inducing sleep, for tracking our health and for taking care of our finances and business affairs. They are always with us, in our homes, our cars and workplaces.

The smartphone has a camera, a GPS microchip, and a microphone. The device occupies the ‘centre’, we the periphery. Mobile phones were not designed for privacy and security. Turning them into a surveillance tool is easy for those who know how, potentially exposing users to constant surveillance. Mobile phones and smart devices can be infected by spyware, viruses and other kinds of malware, either because the user was tricked into installing malicious software or because someone was able to hack into it using a security flaw in the device.

Spy apps may be used by suspicious employers, jealous spouses, political or business rivals and State spy and law enforcement agencies for monitoring users’ online activity, speech and physical movements.

For the censor, these devices and a person’s online presence enable societal control by creating doubts in the minds of people about who may be watching their communications, online activities and posts. At a more sinister level, they allow for the easy collation of a dossier on an individual.

As a prelude to censorship, the censor manufactures a contrived consensus through the use of propaganda. In his book Propaganda, The Formation of Men’s Attitudes (Vintage Books, English trans 1965), Jacques Ellul observed that propaganda has become a general phenomenon in the modern world. Differences in political regimes do not matter, although

Continued on page 10

Karl Popper opined that if we allow unlimited tolerance, intolerance will use its freedom to attack tolerance

George Orwell

Photo: Hulton Archive

/ Getty Images

LITIGATION & COMMERCIAL PROPERTY SOLICITORS

Get the best of both worlds with top quality work and life by the beach!

Holland Beckett Law is a progressive and growing full-service law firm, situated in the sunny Bay of Plenty with offices in Tauranga, Rotorua and Whakatane. With over 130 employees, it is one of the largest provincial practices in New Zealand.

We are looking for Solicitors to join our busy Litigation and Commercial/Property Teams based in Tauranga.

What we are looking for:

• Strong client service orientation and a desire to add real value to every client interaction;

• Strong work ethic;

• Excellent communication, written and technical skills; and

• Down to earth and collaborative interpersonal style.

Commercial/Property

• NZ admitted lawyer with 2-4 years’ PQE.

• Property experience with demonstrated commercial nous. Trust and estate planning knowledge would be useful.

Litigation

• High academic achievements, ideally an Honours degree or LLM.

• 4 to 8 years PQE litigation experience from a national firm or as a judges clerk.

In return we offer:

• Flexible work arrangements;

• A great culture with regular social events;

• A wellness focused firm, offering an innovative wellness package;

• Community focus including pro bono legal work, team-based community service days, and an employee driven charitable trust fund;

• Access to leading technology;

• Employee support and career initiatives such as mentoring schemes and coaching; and

• A generous and supportive Parental Leave Policy and entitlements.

If you are seeking an opportunity to take the next step in your legal career, whilst maintaining a wonderful lifestyle in the Bay of Plenty, then please send a copy of your cover letter, CV and academic transcript to careers@hobec.co.nz

Continued from page 09

differences in social status may. The propagandist has two primary concerns: effectiveness and the pursuit of partisan self-interest.

According to established tenets of propaganda, people must be convinced that certain approved information is true and right, and other information is wrong and harmful. It follows that emanations from the axis of information evil must be dressed up as being ‘without evidence’ and must be ‘fact-checked’; they may then be weighed in the balance by a ‘One Source of Truth’, or censor.

As such a regime of monitoring and control ramps up, it becomes more and more like the activities of a police state. People are encouraged to demand censorship, for ‘safety’, or to feel ‘safe’; disclosures about the supposed iniquity of those to be silenced are revealed publicly in order to justify further censorship (as an example, see the “Fire and Fury” hit piece by Stuff.

Fearing the consequences

While presented as a documentary, it lacked balance, included a creepy interview with Rebecca Kitteridge, was hyperbolic, failed to interview individuals who were targeted for harsh criticism and made disparaging claims against a successful practising attorney, who is also a member of the Kennedy clan and is a possible candidate for the Presidency of the United States.

This is where those New Zealanders who were said to have complained to government come in: they play the role of victims of the axis of information evil, who must be rescued.

Some of them may be counted on to perform heroically for the greater good by surfing the net, looking for evidence upon which they may take offence, to the applause of fellow travellers. Many of their targets cannot be bothered defending themselves or they fear the consequences of exercising their right of free expression, so they fall quiet. This is the stuff, not of ‘Fire and Fury’, but of Orwell’s Preface to Animal Farm

There is a high social value of freedom of expression in an open society: it is a core value for the effective functioning of a democratic system of government. Without free political expression there can be no democracy. Robert Bork has observed that the problem is that what some people want to hear, some other people do not want to hear (or wish to actively banish), which necessitates a judgment about social value, entailing comparisons of competing values and requiring predictions about the effects of the speech and any ban (Robert Bork, Neutral Principles and Some First Amendment Problems in A Time to Speak, ISI Books, Delaware, 2008, p 213).

But as Bork observes at 214: “In our system there is no absolute set of truths, to which the term political truth can refer.” This conclusion entails, in open societies, that a wide margin of appreciation must be given to the individual’s right of freedom of expression.

We must continuously remind ourselves of the war-time scholarship of escapees of fascism, such as Popper and Hayek, of the post-war message of the UN Charter and of the fundamental principles embodied in charters and bills of rights as applied by courts throughout the common law world.

We must affirm that freedom and civil rights matter, especially in the

Continued on page 21

In the long run, the open society works, coercion and censorship does not

Criminal Defence Lawyers, Legal Team Managers & Principal Lawyer Manukau

Te āhuatunga a te tūranga - About the Roles

South Auckland has one of the most diverse communities in New Zealand and our Manukau o ce has an important role in helping some of the most marginalised people in that community. We are looking to appoint lawyers at all levels.

PAL 1 - Junior Lawyers: You will have at least 12 months criminal litigation experience and a strong desire to develop your career in the specialist area of criminal advocacy.

PAL 2 - Intermediate Lawyers: taking on more complex matters in the jury trial jurisdiction, while using your skills and experience supervising and developing junior lawyers.

PAL 3 and 4 - Senior Lawyers: You will find challenge and satisfaction as part of our group of senior lawyers - representing clients in the more complex, serious and high-profile cases.

Principal Lawyer (PAL 4) - You will be recognised as an expert legal practitioner, o ering support, professional leadership and supervision to junior lawyers.

Team Manager (minimum PAL 2) - As part of the wider leadership team of the o ce, you will manage your own caseload while leading and providing guidance to a small team of junior lawyers.

Mō te tīma - About our Team

At Tāhū o te Ture - the Ministry of Justice, we’re committed to working together for a fair and safe Aotearoa.

The Manukau o ce is the largest PDS o ce, providing high quality legal advice and representation in the full range of

criminal cases. We promote the values of respect, integrity, service and the delivery of excellent service to our clients.

Joining the Ministry of Justice means you will become part of an inclusive organisation that values you and the communities we serve.It’s our promise to ensure our workplace is one where our people feel healthy and safe, supported and able to be themselves at work. We value respect as the foundation for building a positive workplace culture and one where diversity is welcomed and celebrated.

Ka whiwhi koe i te aha - What you will get in return

As a valued member of the team, you will enjoy benefits such as:

• an incredible work/life balance with flexible working arrangements

• generous leave entitlements

• first class training and outstanding professional development

• outstanding administrative support

• a competitive salary

• free and confidential counselling sessions

As well as other benefits such as discounts on gym memberships, dentists, medical insurance and hearing and eye test contributions.

Tono mai - How to apply

If you would like a confidential discussion before making an application, please contact Mark Williams, Manukau Public Defender via email; Mark.williams@PDS.govt.nz or one of the Assistant Public Defenders: Jo Murdoch (jo.murdoch@pds.govt.nz) or Amy Jordan (amy.jordan@pds.govt.nz).

If you have any questions, please contact recruitment@justice.govt.nz

Revamping New Zealand’s ancient and ‘clunky’ electoral law

The review is expected to propose changes in everything from offences dating back to the 1800s to how to handle fake news in the electoral process and the length of the parliamentary term

Diana Clement

If there is one clause that spells out just how antiquated New Zealand’s electoral law is, it’s 206ZH of the Electoral Act. “That tells you that it has been revised so many times that we’ve got to a section 206, Z and H,” says Deborah Hart, chair of the Independent Review of Electoral Laws.

Hart says. “Lots of it has been subject to piecemeal change. So, it’s become clunky, outdated and confusing.

“It is very difficult for people to understand their rights and responsibilities and hard for lawyers to advise on that as well. It is not fit-for-purpose.

“We need to improve clarity, modernise outdated language, remove provisions that are no longer fit for purpose, improve the order and organisation of the actual legislation to make it much more logical, and to [have] a more technology-neutral approach, particularly in primary legislation.

Hart can reel off a long list of language in the Act that would never pass muster today. She cites s 218, covering undue influence, as an example.

Deborah Hart

It’s but one example of how “clunky” New Zealand’s electoral law has become, Hart says.

While there was a Royal Commission on the Electoral System in 1985 and its 1986 report Towards a Better Democracy led to mixed member proportional representation [MMP], its recommendations for a wide-ranging overhaul of the legislation led to nothing. MMP was slipped into the Act, says Hart, rather than being part of a thorough review.

Fast forward to 2022 and the Independent Review of Electoral Laws was formed to consider how to make New Zealand’s electoral system clearer, fairer, and more accessible for current and future generations.

The panel’s initial report in late 2022 received more than 5,000 submissions. It’s working through those submissions with its final report for government due in November.

The review has made headlines for recommending the voting age be reduced to 16. But that’s just a tiny corner of the work, which is expected to propose changes in everything from offences dating back to the 1800s to how to handle fake news in the electoral process and the length of the parliamentary term.

The focus of the review is on future-proofing the law because it’s unlikely to be reviewed for another generation at least, says panel member Andrew Geddis, professor of law at the University of Otago.

The basic framework hasn’t changed in more than 60 years,

“The offence of undue influence refers to “inflicting any temporal or spiritual injury, damage, harm or loss upon or against any person”. And the special voting regulations refer to ‘convalescent, aged, infirm, incurable, destitute or poor people’.”

Penalties and sausage sizzles

The penalties regime is perhaps the area most in need of modernisation, Hart says. Many of the 100+ offences are either outdated, unclear or have inconsistent penalties. With some, it is not clear that an offence is the best means of obtaining compliance.

Hart cites as examples what she calls the “sausage sizzle offences”. The first such provision refers to treating voters with food, drink or entertainment before, during or after an election for the purpose of influencing them.

The second is corruptly accepting food, drink or entertainment under these conditions. “The law actually comes from the 1850s and predates the secret ballot. That’s how old it is.”

Hart also questions whether all the offences need to be criminal, as they are now, and whether jurisdiction should be revisited. Currently, the Electoral Commission can investigate and escalate offences under the Act to the police, who in turn

Continued on page 13

Andrew Geddis

Lots of it has been subject to piecemeal change

Continued from page 12

can further escalate to the Serious Fraud Office.

Lower-level breaches could be dealt with by infringement notices enforced by the Electoral Commission, and fines. This would reduce double-handling, as would the ability to escalate offences directly to the Serious Fraud Office where appropriate.

Hart says the offences and penalties regime is a detailed and technical piece of work.

“We’re recommending that, when the Electoral Act is redrafted, a comprehensive and detailed overhaul and consolidation of the offences and penalties happens at the same time. The three principles that should guide this work are proportionality, effective effectiveness and practicality.

“But of course, what a future minister or Parliament decides to do is up to them.””

Fake news

A particularly challenging area for electoral law worldwide is the growth of false news, Hart says. There’s already an offence of knowingly publishing false information to influence voters. The panel recommends extending that from two days prior to the election to the entire advanced voting period.

Electoral laws alone cannot solve disinformation, she says. It’s a serious risk to the electoral system, but also needs to be balanced against the right of freedom of expression, particularly to free and open debate during elections.

“In our view, education is the best way to reduce the risks of disinformation. To teach people to think critically about information they hear about elections. Not just for young people, but for us all. We have recommended funding for community lead education initiatives that would support those efforts.”

Catastrophic emergency

One of the more difficult aspects of the review has been what to do in the case of catastrophic emergencies, particularly where Parliament has risen. Recalling Parliament in these situations can be difficult.

“How do we fix that problem? How do you put an election on hold and how long can you put it on hold?” Hart says. Some of the suggestions included recalling Parliament or giving more guidance to the Chief Electoral Officer.

In its interim report, the panel recommended updating the existing emergency provisions to include a new last-resort power. This would enable reconvening an expired or dissolved Parliament in the event of a catastrophic disaster. One of the issues, however, is a recalled government may not have legitimacy.

“We will no doubt be considering that afresh because we’ve had some really useful submissions in our engagement coming from the legal fraternity.”

In its submission, the New Zealand Law Society (NZLS) questioned the recommendation to increase the powers of the Board of the Electoral Commission in an emergency or disruption, in particular the last-resort power to reconvene Parliament.

“In the absence of very clear criteria for reviving a dissolved or expired Parliament, these practical and procedural difficulties are disproportionate to the risks of continuing under the current arrangements,” Debra Angus, convenor, NZLS Public and Administrative Law committee wrote.

Angus added that if the draft recommendations are adopted, NZLS would

Intermediate / Senior Level Crown Prosecutors WHANGAREI

MWIS Lawyers is a well-regarded mid-size law firm based in Whangarei and has held the Crown warrant since the warrant was established in Northland. We are looking for people with a genuine love of criminal law who have experience in running trials to join our team as Intermediate and/or Senior Crown Prosecutors.

He angitūtanga I The opportunity

You will be involved in a wide array of criminal matters. You will appear in the District and High Courts on all manner of hearings and be responsible for the review of files and charges, drafting applications, and being involved in pretrial work. The work is varied and rewarding, and you will engage with a broad range of persons.

He kōrero mōu I About you

To be successful in this role you will:

• have a genuine love of criminal law,

• have experience in trials, and a sound understanding of criminal law and evidence,

• thrive in a fast-paced, high-volume work environment,

• have tenacity and resilience to deal with criminal cases,

• have excellent communication, digital, and written skills,

• be a team player who can deal respectfully and professionally with a wide range of people.

Nōu te rourou| What’s in it for you

• Professional development – be mentored by our Partners and have an opportunity to support the development of others.

• In-house training – theory and practical development sessions on all aspects of trial advocacy, and collaborative in-house sessions on matters relevant to the criminal justice system,

• Family environment – we understand the need to make time for priorities outside of work,

• Plenty of variety – to keep your skills honed and sharpened.

If you would like to get in touch first to see if the role is right for you, please contact Secha Alach or Bernadette O’Connor on 09 438 4239.

Please apply to the General Manager, Secha Alach on sechaa@mwis.co.nz with your cover letter and CV.

122 Bank Street, Whangarei 0140 P 09 438 4239 www.mwis.co.nz

Continued on page 14

The members of Sangro Chambers are delighted to announce that they have been joined by Dr David Harvey. David is recognised internationally as an expert on internet and information technology law. He has presented extensively over the years on these topics at international conferences and symposia and taught Law and IT at the Faculty of Law, University of Auckland for 18 years. He is the author of the leading New Zealand text on internet law –Internet.law.nz - selected legal issues in the Digital Paradigm and Collisions in the Digital Paradigm

– Law and Rulemaking in the Internet Age published by Hart, Oxford.

David is available to provide advice and opinions in the fields of

• internet and information technology law and policy

• media law and policy

• artificial intelligence and the law

As a former District Court Judge, David also has vast experience in all areas of criminal law and practice, including:

• criminal law and liability

• admissibility of evidence and potential challenges to admissibility

• criminal disclosure

• criminal jury trials, together with trial strategy, tactics and procedure

• sentencing and sentence indications

In addition, David can give advice on media and open justice, non-publication orders, contempt of court and access to court documents.

Contact details

Email: David.Harvey@sangro.co.nz; djhdcj@gmail.com Phone: 021-1840-177

Continued from page 13

find it helpful if the legislation gave more information about what comprises “a catastrophic emergency or disaster with ongoing impacts” and whether it needed to be widespread to trigger the use of the power or could be limited to a particular area.

Te Tiriti o Waitangi

The panel has made multiple recommendations about the Treaty of Waitangi. “We really need to better uphold the treaty,” says Hart.

“The main recommendation that we’ve made is to include a provision in the Electoral Act, requiring decision-makers to give effect to the Treaty of Waitangi and its principles when exercising functions and powers.

“We’ve also made a recommendation that the Electoral Commission prioritises establishing Māori governance over data.”

The panel has also given thought to issues of distrust in the electoral system by Māori. “The legacy really is consistently lower Māori voter participation rates. We need to try and fix that problem.”

Entrenchment

The panel recommended that the Māori seats be entrenched in the same way as general seats, says Geddis, meaning there would be a requirement of 75% of MPs or a majority vote in a referendum for that to be changed.

Certain parts of the Electoral Act have been entrenched since 1956. “The electoral system has developed significantly since then,” Geddis says.

“We’re recommending that the threshold at which parties are able to get into Parliament should be entrenched. We’re recommending that the right to vote and the qualifications for being able to vote should be entrenched, and also that the method of appointing and removing members of the Electoral Commission be entrenched.

“While this will make those aspects of the electoral system harder to change, they also represent fundamental rules of our electoral system that should be beyond a mere majority of MPs to change as they see fit.”

NZLS warns that entrenchment makes it excessively hard to change the law and can create friction. It recommends entrenchment should be confined to constitutional matters.

Geddis says, however, that there is a balance involved in working out which aspects are so crucial they should be put beyond temporary majorities, and which aspects should be left free for majorities to decide for themselves. “We’ve made some recommendations but if others disagree, well, then we’re open to revisiting that issue,” he says.

Donations and privacy

The entire review relates to legislation and is therefore of interest to lawyers, Geddis says. Two areas stand out as particularly interesting.

One is electoral financing, where a recommendation was made to limit to $30,000 the amount individuals could donate to a political party and its candidates within one parliamentary term. The panel also recommended that donations be limited to individuals on the electoral roll, which would exclude corporations and unions.

“We’ve heard widespread disquiet as to how political parties are able to be funded through very large donations,” Geddis says. “Even with publicly disclosed

Continued on page 21

Events

Featured events

Upcoming

East Auckland Lawyers’ Lunch

Wednesday 23 August 12.30pm – 2pm Goode Brothers, Shop 36/588 Chapel Road, East Tāmaki, Auckland

Connecting New Zealand lawyers Learn

Funding the Future (Newly Suited Lawyers)

Wednesday 30 August 5.30pm – 7pm GHD Centre, Level 3, 27 Napier Street, Freemans Bay, Auckland

Hawke’s Bay Lawyers’ Lunch

Wednesday 20 September 12.30pm – 2pm Lone Star Corner Marine Parade & Emerson Street, Napier

Christchurch After 5

Thursday 19 October 5.30pm – 7.30pm Botanic, 126 Oxford Terrace, Christchurch Central City

Sponsored by MAS

September

Thursday 21 September | Tips & Tricks for Junior Lawyers moving In-House

November

Wednesday 8 November | Hamilton After 5

Soon to be added:

Oct | Wellington After 5

Book Here events@adls.org.nz adls.org.nz

Photo: Stephanie Nantel / Getty Images

The Taliban’s war on women in Afghanistan must be formally recognised as gender  apartheid

The Taliban’s brutal two years in power in Afghanistan have taught us that ordinary human rights initiatives, while important, are insufficient for addressing gender apartheid

Vrinda Narain

The second anniversary of the Taliban takeover of Afghanistan is fast approaching. Since then, Afghan women have been denied the most basic human rights in what can only be described as gender apartheid.

Only by labelling it as such and making clear the situation in Afghanistan is a crime against humanity can the international community legally fight the systematic discrimination against the country’s women and girls.

Erasing women from the public sphere is central to Taliban ideology. Women’s rights institutions in Afghanistan, notably the Ministry of Women’s Affairs, have been dismantled while the dreaded Ministry for the Propagation of Virtue and the Prevention of Vice has been resurrected.

The Afghan Independent Human Rights Commission has been dissolved and the country’s 2004 constitution repealed, while legislation guaranteeing gender equality has been invalidated

Today, Afghan women are denied a post-secondary education, they cannot leave the house without a male chaperone, they cannot work, except in health care and some private businesses and they are barred from parks, gyms and beauty salons.

Women targeted

Of the approximately 80 edicts issued by the Taliban, 54 specifically target women, severely restricting their rights and violating Afghanistan’s international obligations and its previous constitutional and domestic laws.

The Taliban appear undeterred, continuing where they left off 20 years ago when they first held power. The results of their ambitions are nearly apocalyptic.

Afghanistan is facing one of the world’s worst humanitarian crises. About 19 million people are suffering from acute food insecurity, while more than 90 per cent of Afghans are experiencing some form of food insecurity, with female-headed households and children most impacted.

Gender-based violence has increased exponentially with corresponding impunity for the perpetrators and lack of support for the victims, while ethnic, religious and sexual minorities are suffering intense persecution

This grim reality underscores the urgent need to address how civil, political, socioeconomic and gender-based harms are interconnected.

International crime

Karima Bennoune, an Algerian-American international law scholar, has advocated recognising gender apartheid as a crime under international law. Such recognition would stem from

Continued on page 17

Gender-based violence has increased exponentially with corresponding impunity for the perpetrators and lack of support for the victims

Photo: WAKIL KOHSAR / Getty Images

Continued from page 16

states’ international legal commitments to gender equality and the United Nations’ Sustainable Development Goal 5 aimed at achieving global gender equality by 2030.

Criminalising gender apartheid would provide the international community with a powerful legal framework to effectively respond to Taliban abuses. While the UN has already labelled the situation in Afghanistan gender apartheid, the term is not currently recognised under the Rome Statute of the International Criminal Court as being among the worst international crimes.

Presenting his report at the UN Human Rights Council, Richard Bennett –the UN Special Rapporteur on the Situation of Human Rights in Afghanistan –stated: “A grave, systematic and institutionalised discrimination against women and girls is at the heart of Taliban ideology and rule, which also gives rise to concerns that they may be responsible for gender apartheid.”

Criminalising gender apartheid globally would allow the international community to fulfil its obligation to respond effectively and try to eradicate it permanently. It would provide the necessary legal tools to ensure that international commitments to women’s rights in all aspects of life are upheld.

Shaharzad Akbar, head of the Rawadari human rights group and former chair of the Afghanistan Independent Human Rights Commission, has urged the Human Rights Council to acknowledge the situation in Afghanistan as gender apartheid.

She’s noted that the “Taliban have turned Afghanistan to a mass graveyard of Afghan women and girls’ ambitions, dreams and potential”.

South African support

A number of Afghan women’s rights defenders have also called for the inclusion of gender apartheid in the UN’s Draft Convention on Crimes Against Humanity

Most remarkably, Bronwen Levy, South Africa’s representative at the Security Council, has urged the international community to “take action against what [Bennett’s] report describes as gender apartheid, much like it did in support of South Africa’s struggle against racial apartheid.”

Elsewhere, the chair of the European Parliament’s Committee on Women’s Rights and Gender Equality, as well as the head of its Delegation for Relations with Afghanistan, have described the “unacceptable” situation in Afghanistan as one of gender apartheid.

Whenever and wherever apartheid systems emerge, it represents a failure of the international community. The situation in Afghanistan must compel it to respond effectively to the persecution of women.

Recognising Taliban rule as gender apartheid is not only critical for Afghans, it is equally critical for the credibility of the entire UN system

As Afghan human rights activist Zubaida Akbar told the Security Council: “If you do not defend women’s rights here, you have no credibility to do so anywhere else.”

The Taliban’s brutal two years in power in Afghanistan have taught us that ordinary human rights initiatives, while important, are insufficient for addressing gender apartheid. The world needs resolute collective international action to end the war on women. Not in two months. Not in two years. But now. ■

Vrinda Narain is an Associate Professor, Faculty of Law, Centre for Human Rights and Legal Pluralism, McGill University, Montreal ■ The above first appeared in The Conversation and is reprinted with permission

Senior role available in our Family team

Woodward Chrisp is a well established Gisborne legal firm of 40+ working in spacious offices, with modern technology and a supportive team environment. While we value hard work, we are people-focused and try to ensure all staff have time to enjoy a good work life balance. The position is ideally suited to a person who appreciates all that living in a small city with its relaxed lifestyle has to offer, with its sun, surf and great outdoors in near proximity. We are looking for a Senior Solicitor, but would also welcome to the team a solicitor with a couple of years experience.

You will have the determination and drive to continue your career in a full service legal firm, joining our family team in a busy practice with lots of opportunity for court time.

You will have an interest, and/or experience, in the following areas – parenting, relationship property, asset protection, challenging a will, incapacity, paternity, domestic violence and mediation.

Our family team consists of four solicitors and two support staff. Our senior lawyers are able to provide support and mentoring in areas where you may need to get up to speed.

What we expect from the ideal candidate:

• A positive and enthusiastic attitude

• Ability to get on with a wide range of people

• Strong client service orientation

• Must be proactive and flexible with a collaborative interpersonal style

• Able to work independently

• Great time management skills with the ability to prioritise

• A desire to develop skills in all aspects of law

• A sense of humour

If you are enthusiastic and keen to get quickly in the thick of it, come join our fun, professional and dedicated team. Being based in the regions we offer a broad range of experience in this hands-on role. We provide ongoing training, opportunities for professional development and a competitive salary based on experience along with fantastic social opportunities in a friendly work environment.

Any enquiries or to apply send a detailed cover letter with your CV to Cherie Mirko (cherie.m@wwclaw.co.nz). Visit www.woodward-chrisp.co.nz for more information.

DEVELOPMENT ALL LEVELS WORKSHOP

Mastering motivation workshop

Workshop 3 CPD hours

Tuesday 22 August 9am – 12.15pm

Price from $350 + GST

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

Mastering the Criminal Procedure Act

CRIMINAL ALL LEVELS WEBINAR

PROPERTY ALL LEVELS WEBINAR

In this three-hour workshop, you will discover the secrets of motivating yourself and those around you.

Webinar 1.5 CPD hours

Wednesday 23 August 5.15pm – 6.45pm

Price from $110 + GST Presenters Samira Taghavi, barrister and practice manager, Active Legal Solutions; Trevor Ng, deputy registrar, Auckland District Court; Kristy Li, Crown prosecutor, Meredith Connell and Jerry Jiang, police prosecutor

This webinar will focus on the nuances of the Criminal Procedure Act 2011 with a comprehensive overview of the different stages involved.

Chair Judge Belinda Sellars KC

Death and relationship property

Webinar 2 CPD hours

Thursday 24 August 4pm – 6pm

Price from $140 + GST

Presenter Ross Knight, barrister, Old South British Chambers

Chair Stuart Cummings, barrister, Surrey Chambers

Attend this webinar to gain valuable insights into the death provisions under Part 8 of the Property (Relationships) Act and an understanding of trends and likely reforms.

Estate administration –getting started

ESTATES

JUNIOR WEBINAR

LinkedIn for lawyers

LINKEDIN ALL LEVELS WEBINAR

Expert evidence

Webinar 1.25 CPD hours

Thursday 7 September

1pm – 2.15pm

Price from $100 + GST

Presenter Anne Casey, founder and director, Marketing Minds

Webinar 1.5 CPD hours

Tuesday 29 August

12pm – 1.30pm

Price from $110 + GST Presenters Alison Gilbert, partner, Brookfields and Sacha Jugum, senior associate, Brookfields

This webinar will provide useful guidance and a practical overview of the fundamentals of estate administration, from receiving notification of a client’s death to identification of the executor(s) and the assets through to the distribution and winding up of the estate.

This webinar will be presented by a digital marketing expert who will give you a better understanding of why LinkedIn is important for lawyers. She will offer practical guidance on how to start using this platform effectively and will delve into strategies for optimising the benefits of being an active LinkedIn user.

Webinar 1.5 CPD hours

Tuesday 12 September

5.15pm – 6.45pm

Price from $110 + GST Presenters Justice Francis Cooke; John Katz KC, Bankside Chambers and Shane Hussey, director, Hussey & Co Chartered Accountants  Chair Justice Cooke

Expert evidence can make or break a case. So, if it is going to be used, it must be effective and comply with applicable rules. Yet expert evidence sometimes misses the mark or can even undermine a party’s case.

LITIGATION

ALL LEVELS

WEBINAR

Are you considering selling your Law Firm?

If you are looking at selling your Law Practice and are curious about the value of your business call me today for a confidential discussion.

Nick Stevens 021 641 978 nick.stevens@linkbusiness.co.nz

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)

BROSNAN

Christine Mary

Independent workplace investigations

• Licensed Private Investigators

• In-depth understanding of diverse workplaces

• Experienced HR Practitioners

Contact Chris Wright: chris.wright@bakertillysr.nz

Workplace investigators available

Anderson Lloyd have a number of experienced independent investigators, including two AWI-Certificate holders, available to conduct workplace investigations for your clients. Our investigators have significant experience conducting workplace-based investigations in the private and public sector, including:

• sexual harassment and sexual harm investigations

• bullying and harassment investigations

• conflicts of interest and corruption investigations

• fraud investigations

• serious misconduct investigations

• whistle-blower investigations

• sexual misconduct investigations

• education disputes investigations

• health and safety investigations

We pride ourselves on being responsive and flexible to meet your clients’ needs. We are a regular referrer of workplace investigation work, and welcome collaborating with other lawyers who also both conduct and advise on workplace investigations.

To find out more visit al.nz or contact:

AJ Lodge (AWI-CH) ashley-jayne.lodge@al.nz | +64 27 233 4650

John Farrow (AWI-CH) john.farrow@al.nz | +64 27 437 2131

James Cowan james.cowan@al.nz | +64 3 471 5415

• Late of 35C Avon Street, Oamaru

• Aged 70 / Died between 30’06’23 and 6’07’23

GRANT

Louisa Mahurangi

• Late of 10 Alf Simpson Drive, Whitianga

• Spouse/Partner deceased

• Bakery worker

• Aged 90 / Died 25’05’23

KHAN

Irshad also known as Irshad A Khan

• Residing at 48A Carbine Road, Mt Wellington, Auckland 1060

• Age 79 / Still Living

LAMB

Margaret Anne

• Late of 18 Hannan Road Whitianga

• Spouse/Partner deceased

• Housewife

• Aged 83 / Died 23’06’23

LANE

Ida Olive

• Late of 24A Moewai Park Road, Whitianga

• De facto

• Homemaker

• Aged 88 / Died 6’07’23

ORSBOURN

Steven James

• Late of 127 Greens Road, Dairy Flat, Auckland

• Married

• Camera operator

• Aged 56 / Died 11’07’23

ROKSTAD

Eivind

• Late of 5 Simpson Place, Whitianga

• De facto

• Fisherman

• Aged 82 / Died 25’04’23

SENG

Damian Wong Kim

• Late of 2/27 Kind Edward Avenue, Papakura, Auckland

• Process worker

• Aged 76 / Died 06’08’23

VAHUA

Ani Keu Matangaro-OMum

• Late of 162/22 Landscape Road, Mt Eden, Auckland

• Divorced

• Retired

• Aged 72 / Died 14’04’23

Tāmaki Makaurau Auckland

Ōtautahi Christchurch

Tāhuna Queenstown Ōtepoti Dunedin

Continued from page 10

face of great power. People are entitled to know, with precision, the line between cancellation and censorship on the one hand, and where freedom reigns supreme on the other. However, it is a tactic of totalitarians to fudge this line, thereby maintaining control and giving rise to a panopticon effect.

Instead of enclosing everyone in a virtual panopticon, we should follow the US Supreme Court’s wartime judgment in Chaplinksy v New Hampshire, 315 U.S. 568, 571-2 (1942):

“There are certain well defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ – those which

Continued from page 14

donations, [there is a concern that] some people appear to be able to get greater access and attention from parties through monetary donations.” Concerns were also raised with how donations are shielded behind companies and trusts and therefore not properly disclosed.

The other area Geddis highlights is the publication of electoral rolls.

“The panel has recommended that electoral rolls are no longer disclosed. They contain information about individuals’ names, addresses and sometimes occupations. Given that enrolling on the electoral roll is legally required in New Zealand, we believe that this widespread access to what is private data for any purpose is no longer appropriate.”

by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

The experience of the recent pandemic conveys a clear warning. States which coerced less and valued individual autonomy did better. Where arrogant power was wielded, where fear was manipulated and speech and protest suppressed, the results were worse. Notwithstanding lockdowns, vaccination coercion and the demeaning cancellation of critics, the virus spread anyway, trailing after it, as a result of misconceived policies, social division, the severe harming of the young, the compromising of the wider public health, economic destruction and the

Political will

Legislative change will ultimately be determined by political will. The panel was commissioned under the Labour government. Should there be a change of government in October, the outcome of the review could be less certain.

In June, Prime Minister Chris Hipkins ruled out a referendum, at the same time as the election, to rule on extending the parliamentary term from three to four years, capping donations at $30,000 per party and electoral cycle, and lowering the threshold for from 5% to 3.5% for minor parties to get representation in Parliament, while abolishing the one-seat threshold.

National Party leader Christopher Luxon said electoral reform was the wrong conversation to be having when ordinary New Zealanders were doing it tough. He said that he was in favour of a four-year term, but there would be a range of views in his caucus.

fall of coercive leaders and governments. The lesson, again, is this: in the long run, the open society works, coercion and censorship does not.

Robert Bork observed that it is a measure of our current culture that the law and law-makers uphold online displays of hardcore pornography and graphic violence in movies but simultaneously seek to confine or suppress the questioning of government policy on wide-ranging and important questions.

Winston Peters recently said that Norman Kirk once told his ministers “your job is not to protect your department from the people, it is to protect the people from your department”. The upshot of this, and I suggest that Kirk would likely have agreed, is that the law should regulate the panopticon state, and its corporate partners or conscripts, rather than seek to further chill citizens’ speech. ■

Business website Interest.co.nz reported that ACT was dismissive of proposals to reform the electoral system, but the Greens and TOP were supportive.

Hart remains positive and says any government will be interested in a comprehensive look at the electoral system, which is key to New Zealand’s democracy.

“So, will they put it in the bottom drawer? I don’t think so. I would think that any government will be interested in this kind of comprehensive and independent review that [will] ensure that New Zealand has a fairer, clearer electoral system in which as many people as possible can take part.”

She says much of the existing system works really well. “But there are some key parts to it that we really need to do better.”

For a more information, read the executive summary of the interim report here ■

Warren Pyke is an Auckland barrister ■