LawNews- Issue 31 by The Law Association

adls.org.nz NEWS Sep 9, 2022 Issue 31 Inside ■ TECHNOLOGY Judiciary releases draft digital plan P07 ■ POLITICS Bluff and bluster P08-09 Sexual harassment law change comes a STEP CLOSER

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©COPYRIGHT and 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.

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Select committee considers changes to sexual harassment lawEXTENSIONGRIEVANCETIME-BARRED 03-05 Covid restrictions on church gatherings ‘not unjustified’, court rulesCOVID-19LIMITATIONSBORA 06 Courts’ long-awaited digital strategy released and open for consultationJUSTICECOURTSTECHNOLOGY 07 FEATURED CPD 12-13 Cover: Michaela Begsteiger / Getty Images Build your brand and grow your legal practice by writing for LawNews! We welcome opinion pieces and other contributions for publication in our weekly magazine. Please contact the editor to discuss: Jenni.McManus@adls.org.nz ImagesGetty/ArnoldLloydPhoto: CPD IN BRIEF 14 EVENTS 16-17

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EMPLOYMENT LAW

“People are badly affected by sexual harassment at work and yet the Employment Relations Authority hears very few cases,” she said. “That suggests something is wrong in our settings.” Defying reality In a paper attached to the ADLS submission on the bill,

Why sexual

the outside, a sexual harassment victim looks like a once-performing employee who gradually loses confidence, starts to under-perform, begins taking excessive sick leave and makes careless mistakes ImagesGetty/erhui1979Photo: Continued on page 04

grievancestimecomplainantsharassmentneedmoretoraisepersonal

Some submitters want the deadline pushed out to two years or more; others want the legislation to include bullying, racial discrimination and other forms of disadvantage.

A bill sponsored by Labour backbencher Dr Deborah Russell to extend the deadline for filing personal grievances for sexual harassment has come a step closer to becoming law.

From

Parliament’s Education and Workforce select committee has considered submissions from 43 parties, 39 of whom support Russell’s draft legislation aimed at extending the timeframe for filing sexual harassment personal grievances from 90 days to a year.

The select committee is due to report back to Parliament on 18 November, after which the Employment Relations (Extended time for sexual harassment) Amendment Bill will receive its second reading. National and ACT have agreed to support the bill – at least, until the end of the select committeeSpeakingstage.toher draft legislation, Russell told the select committee it was a simple bill, dealing with a complex and difficult matter. “The problem is with the nature of sexual harassment,” she said. Victims were often slow to report it because of embarrassment, a lack of understanding of what had happened to them, the power dynamics in the workplace which make it too hard to speak out and “the cultural norms of shame”.Thislack of reporting is evident in work commissioned by NZLS in 2018 to survey bullying and harassment in the legal profession. This revealed 31% of women and 5% of men said they had been sexually harassed. Of those, 39% of respondents said the behaviour had affected their emotional wellbeing and 32% said it had damaged their career prospects.Despite these numbers, between 2015 and 2019 the ERA considered only 14 cases where sexual harassment was the main basis for a personal grievance, Russell said. The Employment Court considered none.

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Jenni McManus

Others are seeking some form of relaxation of the “exceptional circumstances” test which enables the Employment Relations Authority (ERA) to allow more time for filing sexual harassment claims. Many who made oral submissions before the select committee said the ERA was interpreting the test so narrowly that few – if any – claimants wereHowever,succeeding.Russell acknowledges that these issues might be outside the scope of her bill and more work might need to be done.Among those appearing before the select committee last month to speak to their submissions were barrister Catherine Stewart, convenor of the ADLS Employment Law committee, David Fleming of Fleming Singleton (another member of the ADLS Employment Law committee), Lauren McGee on behalf of the Unite union and Russell herself.

The truth is that the longer the law carries on in justicedeniedvictimsandtechnicalaccountabilitywillperpetratorstheincontinueharassmentthatstate,unsatisfactorythisthelongersexualwilltothrivetheshadows,longertheavoidongroundsthelongerthewillbeaccessto

“So, unsurprisingly, when talking about these workers, 93% of them have not lodged a personal grievance,” McGee said. “The process is entirely in the hands of employers and perpetrators.”Mostofthe victims in her survey were younger female Catherine Stewart

The firm notes that sexual harassment claims can also be brought under the Human Rights Act 1993 where complaints have 12 months to lodge their claims and the commission has discretion to further extend that deadline.

All those harassed were under 40 and 26% were under 20. Of the 13%, 17% reported that they hadn’t processed their experience or understood what had happened. And 80% of those who had been harassed did not know what a personal grievance was at the time they were harassed. To this day, 45% still do not know, McGee said.

‘Sad’ findings Appearing before the select committee on behalf of the Unite union, legal consultant and strategist Lauren McGee says those opposing the extension of the timeframe are “out of touch with reality to the way these situations are played out on the ground”.

Numb despair

Another submitter, Buckingham Employment Relations Ltd, says victims of sexual harassment often don’t report their experiences immediately “and often do it reluctantly”.

“Victims of sexual harassment in the workplace often find themselves numb, leave their employment early, usually without an alternative income or employment and sometimes in an overwhelming state of despair,” Buckingham said. Not surprisingly, the legal and technical aspects of raising and fighting a personal grievance “are not always at the forefront of their mind”.

“The nature and reality of the offending is that it takes many victims a prolonged period of time to come to terms with their experience and to have the confidence to come forward.”Ninety days is a “harsh limit”, Buckingham says, where there has been a complex pattern of harassment or bullying that may not be apparent at first, even to the victim. “People who are being groomed or gaslighted are often not aware of what is going on until they are out of the situation.”

Continued from page 03 Simon Schofield, who teaches employment law at the University of Auckland, says the 90-day deadline for filing personal grievances fails the victims of sexual harassment.

From the outside, Buckingham says, a sexual harassment victim looks like a once-performing employee who gradually loses confidence, starts to under-perform, begins taking excessive sick leave and makes careless mistakes.

“In our experience, it’s a very rare circumstance where we have a worker who has managed to overcome pressure from management and the employer, workplace culture, and has processed what has happened to them and the trauma of it and has then been able to muster the courage to speak out and come forward all within the space of 90 days,” McGee says. “It’s simply not been a reality that has worked out in practice.”McGee says Unite recently surveyed its members about sexual harassment. The survey revealed 13% of respondents reported they had been sexually harassed at work and another 26% said they had witnessed or been reliably informed about sexual harassment.

Continued on page 05

Buckingham suggests sexual harassment claims brought under employment legislation should align with the provisions of the Human Rights Act, including its discretion. And it would like to see racial harassment claims treated in the same way as sexual harassment as they involved the same type of discrimination and cause equally severe harm.

It does not reflect the way sexual harassment plays out in practice, says Schofield, a former member of the ADLS Employment Law committee. Victims deserve better and the law ignores the reality of sexual harassment. “The truth is that the longer the law carries on in this unsatisfactory state, the longer that sexual harassment will continue to thrive in the shadows, the longer the perpetrators will avoid accountability on technical grounds and the longer the victims will be denied access to justice.” In Schofield’s view, a major reason for the delayed reporting of complaints is the power imbalance in the employment relationship and the fear of retaliation.

While the 90-day rule ensures employers can remedy personal grievances quickly, the argument isn’t relevant in the context of sexual harassment, Schofield says.

Complainants also fear generating ill-feeling among coworkers. Instead, they will avoid or try to appease their harasser and often suffer from self-blame and guilt. The idea of reliving the experience in a courtroom can be traumatising.

But “saddest of all” was that not a single survey respondent under the age of 20 indicated that they knew what a personal grievance was at the time they were harassed. And 58% of those under-20s still don’t know.

Inherent vulnerability Barrister Catherine Stewart, representing the ADLS Employment Law committee, told the select committee that her members support the bill but also understand the importance of claims being raised as expeditiously as possible.“So,we acknowledge and understand the need for the 90day rule in most circumstances because dragging things on is not in either party’s best interests in general,” Stewart said. “Resolving them as close as possible to the point of origin is a really good aim that employers and employees benefit from.”

Nor should flexible deadlines be limited to sexual harassment grievances, he says.

Telecom v Morgan is the case most often quoted, where the Employment Court determined that the reference to trauma in the legislation “connotes very substantial injury”.

Just how substantial is, of course, the issue. Psychological distress, the court said, didn’t meet the threshold.

People who are being groomed or gaslighted are often not aware of what is going on until they are out of the situation

“The 90-day limit routinely operates to prevent people from being able to have their stories properly told, their claims heard and the issues dealt with on their merits,” he says.

In most cases he sees, Fleming says it takes at least two to three years after the sexual harassment begins before people get to the point where they feel able to sue their employer. It’s important to remember that before the claim is filed, a lot of other strategies have been tried.

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Exceptional circumstances

Continued from page 04 workers. “We are talking about 16-year-olds here in their first McDonald’s job.”

The current legislation (s 115) allows personal grievances to be filed out of time in exceptional circumstances. Trouble is, the ERA interprets the law so narrowly that claims almost never succeed.

SimonFlemingSchofield

Stewart believes the onus should be put on the employer to explain why extra time cannot be given. Schofield says the legislation is poorly worded and sets a very high bar for legitimate claimants who have experienced psychological trauma to raise a claim. ■ David

Stewart notes there is no provision for a bullying personal grievance in the Employment Relations Act and no harassment personal grievance, though there is provision for sexual and racial harassment personal grievances. Because of this significant gap in the legislation, bullying complainants often bring their claims under a disadvantage personal grievance, meaning the parties inevitably end up discussing definitions of bullying because no definition exists in current employment law.

“That is really the bottom line in terms of difficulties that we see employees face when raising these types of claims and these sexual harassment concerns,” Stewart said. Victims of bullying are in a similar situation.

Having specific timeframes “tucked away in case law” can be a huge barrier. McGee says one of these victims told her: “I was in that stage where I wanted to end my life. I was really depressed and had no idea what I should do. I had no money and my company kept on forcing me to work with my manager. And all I wanted to do at that point was to die.” In her view, personal grievances exist to provide an accessible avenue for workers to seek redress, McGee said.

The deadline also results in expensive and time-consuming arguments about whether personal grievances can be raised and, if so, their scope.

Fleming says significant change is needed to the timeframes for raising sexual harassment personal grievances, including an ability to raise a grievance beyond any stipulated time limit.

His clients tend to be from a different cohort to those from Unite – they are older women but are also in vulnerable situations and feel disempowered. Typically, they are being harassed by senior managers or business owners.

“Employers almost never consent to a personal grievance being raised out of time.”

Fleming says the changes that Russell’s draft legislation proposes are a “necessary step in the right direction” but don’t go far enough. People often don’t feel able to raise a claim because of the “major inequalities of power” and should be permitted to do so only when they feel it is safe.

“And those workers most in need of protection are not currently using this avenue.”

Flexible limits David Fleming, from Fleming Singleton Employment Law, told the select committee his firm has dealt with thousands of personal grievances and hundreds of sexual harassment complaints. The firm is also one of the biggest providers of legal aid for employment matters and sees a “significant portion of people who are relatively vulnerable in an employment situation”.

But on a day-to-day basis, Stewart said, she and her fellow committee members could see the imbalance of power in sexual harassment situations. People complaining about sexual harassment are in a situation of “inherent vulnerability” because their livelihoods depend on them remaining at work.

application of s 15 of the New Zealand Bill of Rights Act –discussion of expert evidence in relation to church gatherings where singing, for example, may result in higher potential levels of covid transmission – whether OCC had applied for an exemption or whether one would be available – extensive review of legal and scientific commentary from both New Zealand and overseas and legal precedent, particularly in relation to religious freedom/practice and reasonable limits on this right Held: the [health order] was not an unjustifiable limitation on the applicants’ rights under s 15 of the New Zealand Bill of Rights Act [and so the applicants’ application for judicial review is declined] – the respondents do not seek costs, in recognition of the fundamental public interests and rights in this matter. ■ Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■

Orewa Community Church v Minister for Covid-19 Response [2022] NZHC 2026 (Gwyn J)

Whether the health order was ultra vires – applicable principles – extensive discussion of the health order, the reasons for it, the covid pandemic, the vaccination program and the legislative framework that was introduced in response to covid – assessment of reasonableness and proportionality in relation to the “traffic light system” and the different gathering limits set – weighing of evidence, including scientific evidence, expert evidence and evidence from parishioners and pastors – “gathering” as a legal concept – scope of the New Zealand Bill of Rights 1990 – whether the minister has made an error of law or misdirected himself in the extent to which he considered/did not consider the

Both churches argued that the health order limited the numbers of people who could gather and therefore created a breach of the right to manifest religious beliefs

Sacha Jugum Covid-19 Public Health Response (Protection Framework) Order 2021 [the Health Order] – Judicial Review Procedure Act 2016 – New Zealand Bill of Rights Act 1990 – application for judicial review – “right to manifest religious beliefs” – applicable principles – lawfulness – objectiveness and proportionality –reasonableness – government health advice and policy – the Church and the State and the appropriate role of the court – social policy – extent of consultation –availability of exemption – New Zealand and overseas scientific papers, academic commentary (both legal and scientific) and precedent – the [health order] was not an unjustifiable limitation on the applicants’ rights [and so the applicants’ application is declined]

Two churches filed proceedings against the Minister for covid-19 response and the Director-General of Health. While each church’s legal arguments had points of difference, both (OCC) argued that the health order limited the numbers of people who could gather and therefore created a breach of the right to manifest religious beliefs.

Orewa churches lose court battle over covid restrictions

ImagesGetty/Jaap2Photo:

CASE NOTE

The consultation paper itself outlines why the judiciary believes change is needed. “The use of appropriate digital technology is essential to enable the courts to perform their function in upholding the rule of law and to enable the judiciary to administer justice for the benefit of all people,” it Peoplesays. increasingly expect to be able to engage with the government online. But the consultation paper says the ability to do so with the courts is very limited. For example, while people can file some documents and pay court fees online, this generally involves preparing paper documents, scanning them and submitting them via email, rather than simply entering the information online. And people cannot check the status of proceedings they’re involved in by going online. They can do this only by making phone calls or physically visiting the court registry. Justice David Goddard has been put in charge of the project.

The consultation paper is open for feedback until 30 September and can be found here ■

Maybe you’ve had experience as a court reporter or worked the business, politics, science, or economics rounds. Or you’re a great all-rounder who’s ready to take your career to the next level. Ideally, you will also know something about the law.

Courts to go fully digital – at last Chief Justice Dame Helen Winkelmann is seeking feedback on a just-released consultation paper outlining for the first time a digital strategy for the courts and most tribunals to be implemented over the next five years. Full digitisation of the courts has long been a pet project of the Chief Justice and the momentum for change has grown since March 2020 when lockdown forced the court system to reassess the way it operated.

ADLS is an independent, national membership organisation representing the legal profession. We’re offering a great opportunity to work in a small but very active organisation at a time when the legal profession is undergoing significant change. So, what are you waiting for? Please forward your CV and a cover letter to the LawNews editor: jenni.mcmanus@adls.org.nz Applications close Friday 23 September 2022.

Inner-city Auckland location and flexible working. What we’re looking for: ■ ability to generate story leads ■ newsroom experience (a non-negotiable) ■ excellent news judgment, meaning you have a nose for potential stories and can recognise risk ■ strong writing skills ■ ability to meet deadlines ■ excellent inter-personal skills, particularly the ability to build relationships and establish credibility with the legal profession ■ strong attention to detail ■ highly organised ■ ability to work autonomously with minimal supervision ■ a team player ■ video journalism skills (a nice-to-have)

When introducing her office’s inaugural annual report in March this year, Chief Justice Winkelmann described the court systems as “Dickensian”, with paper files, no electronic payments systems and very limited audio-visual links. But the pandemic has created the opportunity to change all that.

The three highest priorities for the next five years are: ■ digitising the court records, court files and the case management systems; ■ implementing a single high-quality, reliable and flexible system for remote hearings; and ■ ensuring reliable, secure and fit-for-purpose infrastructure is in place across all the courts and tribunals to make these changes happen.

Briefs

ADLS: Careers Senior Journalist

The Auckland District Law Society Incorporated (ADLS) is looking for a senior journalist or talented and ambitious midgrader to work on its flagship weekly magazine LawNews and assist with The Bulletin, another weekly ADLS publication. We’d expect you to be an experienced news-hound who can nail down your own stories. You’ll have great contacts, and your writing skills will be exceptional.

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In a press release earlier this week announcing the planned digital strategy, she said it addresses the issue of how the courts can capitalising on the lessons learned about the use of technology during the covid-19 “Itpandemic.alsolooks at how technology can enable courts to administer justice in new ways to better serve the community, including those whose justice needs are not currently being met. The government’s announcement of significant investment in digitising court processes makes this especially “Reducingtimely. costs, simplifying court processes, providing better information to participants and providing better online tools for management of court processes will all improve access to justice,” the Chief Justice said.

All of this, however, is nowhere near good enough for Willie Jackson: “It is disgraceful that [the Opposition] would use such spiteful and racist dog whistles by claiming that the honouring of the treaty amounts to a desecration of the ‘one person, one vote’ democratic value. There are multiple examples from the democratic tradition they pretend to care about that shows ‘one person, one vote’ is but one value within democracy, not the onlyExcept,value.” of course, it is the only value that counts. Without every elector being as good as every other elector; without your vote counting for as much as every other elector’s vote there is no effective democracy.Howcould there be? Democracy is the political expression of the principle of human equality. And the history of democracy is the history of the steady expansion of the definition of what constitutes a human being.

As does Winston Peters, who proved repeatedly that standing for election in one of New Zealand’s most racist general electorates is no barrier to political achievement. His successor, Simon Bridges, is also Māori.

A minister blessed with a wise and trusted bureaucratic adviser would have been spared the embarrassment of unwittingly sharing the glaring gaps in his knowledge with the rest of the country. He should get one. Written in response to the opposition parties’ loud objections to the Canterbury Regional Council (Ngāi Tahu Representation) Bill, Jackson presents the legislation as the culmination of a lengthy political struggle “to gain the most basic of Māori representation at the local and regional levels”. This is, of course, a serious mischaracterisation of the legislation’s purpose.

POLITICS/OPINION Willie Jackson

ImagesGetty/Stringer/RowlandDavePhoto:

The New Zealand Herald Jackson’s opinion piece in the Herald of Monday, 8 August 2022 was a shocker. Wrong in fact, and wrong in interpretation, it communicated nothing useful to the public except its author’s alarming ignorance of the state he is charged with governing.

Chris Trotter Willie Jackson needs a scribe. Someone with the wit and the words to translate their master’s rough-and-ready grasp of politics and history into language more befitting of a Minister of the Crown –and a Minister of Māori Development at that.Jackson’s bare-knuckle political style may get results when brought to bear against his caucus colleagues. When you’ve got the guts and the grit to call the Prime Minister’s and the Finance Minister’s bluff, a working knowledge of New Zealand’s constitution and the history of democracy is merely a “nice to have”. It is a necessity, however, if you’re presuming to pronounce upon both subjects on the op-ed pages of

Ngāi Tahu’s representatives are not required to endure this triennial trial-byelection. The processes by which they are appointed – or removed – remain culturally and politically opaque.

08 Continued on page 09

But if Jackson’s point is that the House of Lords began its life and What the Treaty of Waitangi promised, and the Constitution Act of 1852 at least contemplated, was a nation of parallel political power centres

“The House of Lords is not one person, one vote,” declaims Jackson. Except, of course, that it is – one lord’s vote being the precise equal of any other lord’s. Or what’s all that blue blood for?

The Ngāi Tahu iwi has requested – and been given – representation of the regional council by virtue of its status as mana whenua. The tribe’s two voting members will not be elected to serve on the council in the manner of their mostly Pakeha colleagues, but were appointed in accordance with Ngāi Tahu’s internal governance arrangements.Thebillthus introduces a dual pathway to membership of the Canterbury Regional Council. Pakeha and Māori aspirants lacking the imprimatur of Ngāi Tahu must submit themselves to the judgment of their fellow citizens by standing for election. Having served for three years, the successful candidates are then required to re-submit themselves. Those found wanting are voted off the council.

Bluster and bluff is no match for history

Jackson’s characterisation of the bill as a signal victory in the long struggle for Māori civil rights thus falls well short of the mark. The truth of the matter is that Māori have been enfranchised for at least as long as their Pakeha compatriots: eligible to stand for every elected body, from the local Rabbit Board, to the House of Representatives on exactly the same basis as any other citizen. And many have done so successfully.Manymore, however, have not. Since representative democracy was first introduced to New Zealand by the Constitution Act of 1852, the ability of Māori to participate freely in the political life of their country has been severely limited by the prevalence of a pernicious and severely debilitating strain of Pakeha racism. Māori of fortitude might secure nomination for public office but their chances of overcoming the prejudice of the Pakeha majority were, until relatively recently,Perhapsslim.in recognition of their own racism, colonial legislators made provision for four parliamentary seats (now seven) to be set aside for Māori exclusively.Theindigenous people of New Zealand, in tragic contrast to the indigenes of other British colonies, were not rendered politically invisible and voiceless. Indeed, the Māori parliamentarians James Carroll and Sir Apirana Ngata rank among New Zealand’s most successful politicians.

Memoranda of Wishes

Author Vicki Ammundsen This guide to memoranda of wishes considers the development of memoranda of wishes and relevant case law. It provides valuable guidance on how to construct a memorandum of wishes that will properly promote the settlor’s intentions and directions to Thistrustees.textalso considers the legal position of memoranda of wishes with respect to the Trusts Act, both as core documents and in light of trustees’ disclosure obligations.

■ Chris Trotter is a political writer and commentator of more than 30 years’ experience. He is the editor of the Bowalley Road blog ■

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Continued from page 06 remains an hereditary, not an elected, chamber, then it cannot be included in any argument about democracy. The subjugation of the hereditary House of Lords to the elected House of Commons is one of the most thrilling chapters in the democratic story. (An even more exciting chapter will be the one in which the British people finally abolish this ridiculous feudal relic!)

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The processes by which they are appointed – or removed – remain culturally and politically opaque

The same argument, mutatis mutandis, applies to the American Constitution, a document which established not a democracy but a republic – which is not quite the same thing. The Founding Fathers feared democracy, taking special care to separate the powers of the state into their executive, legislative and judicial branches, lest in some future time a cunning and unscrupulous demagogue should goad the American citizenry into fashioning a Republic of Men out of their Republic of Laws. The most excruciating passages of Jackson’s op-ed do not, however, deal with other people’s democracies, but our own. His most fatuous observation is, without doubt, the following: “In Aotearoa New Zealand, our own country, thanks to MMP it is not one person, one vote, it’s one person, two votes.”Two votes, which every citizen is entitled to cast and which are worth no more, and no less, than every other electorate vote and party vote deposited in a ballot box. Nowhere in Jackson’s egregious essay is his need for a wise and trusted ministerial advisor more evident. Had such a person been on hand, he or she could have patiently explained why Pakeha are becoming so enraged by legislation like the Canterbury Regional Council (Ngāi Tahu Representation) Act. To attack the core democratic principles of one-person-one-vote and one-vote-one-value is to attack the principle of equality itself.

Topics covered include: ■ introduction to memoranda of wishes ■ the legal basis for a memorandum of wishes ■ parameters of instructions and guidance that can be provided in a memorandum of wishes ■ nominee settlors ■ updating memoranda of wishes ■ disclosure of memoranda of wishes ■ nomination of “right” to provide a memorandum of wishes and intergenerational aspects ■ capacity and fiduciary considerations ■ retention and storage ■ jurisdictional considerations ■ precedent memoranda of wishes Price for ADLS members $72 plus GST* Price $80 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz

Yes, it is a peculiarly Western – oh, all right, White – political principle. And, yes, it does sit uneasily with the curious blend of aristocracy and egalitarianism that is Māori society. But the Whites, and many Māori too, value democracy above every other alternative. They have fought for it. They have died for it. And, to keep it alive, they will kill for it. What the Treaty of Waitangi promised, and the Constitution Act of 1852 at least contemplated, was a nation of parallel political power centres.

Exactly what these might look like and precisely what powers they should wield is a matter for serious discussion and mutual agreement by Māori and Pakeha, talking together. Certainly, it is possible to devise a political body whose members are chosen not by general election but by appointment – in the manner of Ngāi Tahu – to represent not the undifferentiated mass of electors but the key constituent groups that make up our Suchsociety.abody would include the indigenous iwi representatives, of course, but also, following the example of Seanad Éireann, the Irish Senate, members appointed to represent public administrators, the legal profession, employers, farmers, trade unions, the universities and people prominent in the world of arts and letters. Perhaps Willie Jackson could apply all his undisputed powers of political persuasion to convincing the Prime Minister that she may have been a little hasty in ruling out such an upper house from the New Zealand Parliament. Just imagine what the Minister of Māori Development might achieve if he added just a touch of wisdom and a dash of imagination to all the bull**** and bluster.

* + Postage and packaging

AndersonTroy&HarstdervanPieter

If anyone wondered about the importance of the current NZLS review of the legal profession, consider the recent events around mayoral candidate Viv Beck (of whom I have no knowledge or interest) and the effect on what to my knowledge is an otherwise completely legitimate and valid mayoral campaign by the actions of a “legal service agency” and the publication of correspondence between that agency and the mayoral candidate Put simply, that media campaign spells the end of any prospects for the candidate, who was running third until recently in these elections. All of this over a disputed bill where Matt Blomfield’s agency has never denied two-thirds has already been paid.

We can help you prepare, produce and proceed with clarity: Formal statements, affidavits and briefs of evidence File Scenereviewsexaminations (photography, video and aerial footage) Trace enquiries Telco Analysis and reporting (for trial) Witness Liaison (including court induction) CCTV Analysis and Synopsis (for trial) Service of Summons Contact: clarity@pinpointpi.co.nz Find out more: www.pinpointpi.co.nz

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Is this

The media coverage was extensive and one wonders why. Perhaps it was Blomfield’s reference to his “very dear friend” Andrew Krukziener? Would any lawyer want to be associated with putting in the public domain the communications and allegations that have arisen?

There seems to be no understanding of the democratic process in respect of a fair election and appropriate behaviour in respect of collecting a debt. The elections are only weeks away: is the firm in question so desperate for money that it must have the unpaid one-third of $353,000 within that time? What was the real intent behind all the publicity associated with a commonplace commercial dispute? There are much bigger and more damaging disputes at large on any day of the week. You just don’t get to hear about them. Perhaps it was Blomfield’s idea to coerce Beck into settlement with a threat of going public when it went public anyway and his threat proved valueless. ■

Stuart AucklandBarristerCummings behaviourappropriateforalawyer?

Letter to the editor

The Australian economy, like all of us, looks increasingly older, fatter and slower. Rates of company start-ups and exits declined in the years before covid, impeding the normal flow of resources from lower-productivity to higherproductivity activities.

In an economic landscape that is increasingly digital, increasingly focused on services sector work and increasingly focused on a looming deadline for net zero emissions, I would like to put forward three priorities for future-proofing Australia.

This is an edited extract from Wood’s keynote address to the Australian jobs summit last week

There is a growing evidence base around what works in terms of teaching, but we struggle more with how to flow that through to practice on the ground. And we need to do much more to attract and retain high-performing teachers.

Using our talent pool Australian women are some of the world’s most highly educated, yet we rank 38th in the world when it comes to women’s economic opportunities. Women are often excluded from full-time work and from the most prestigious high-paid roles because these so-called “greedy jobs” are incompatible with the load of unpaid care still disproportionately shouldered by women.Ican’thelp but reflect that if untapped women’s workforce participation were a massive ore deposit, we would have governments lining up to give tax concessions to get it out of the ground.

High-quality, low-cost early education and care is necessary to unlock participation from women who would like to work more but who are sidelined by substantial cost hurdles.

Grattan Institute work shows that among the 20% of Australia’s most profitable firms in 2015, almost one-third were among the most profitable a decade previously. Recent research by Australia’s Competition Minister Andrew Leigh finds turnover among our Continued on page 15

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But generational change will come only if men are also encouraged to participate more in unpaid care.

■ boosting the vocational education and training system that has been left as the poor cousin to universities; ■ improving links between industry and vocational and higher education institutions to build feedback loops on what’s needed as jobs evolve; ■ acknowledging that education is a lifelong endeavour – for example, through recognition of micro-credentials and support for on-the-job training; and ■ attracting the best and brightest to Australia by improving the composition and functioning of our migration program.

There are other aspects of education that will need to evolve if we are going to remain a leading economy in coming decades:

Investing in human capital Microsoft founder and philanthropist Bill Gates has argued that the best leading indicator of a country’s outlook in 20 years’ time is the performance of its education system. Unfortunately, that indicator doesn’t look too crash-hot for Australia.

Lower levels of dynamism and innovation have been linked to a lack of competitive pressure in the economy. In competitive markets, excess profits should be dissipated as new and innovative competitors enter. Increasingly, the most profitable firms are untroubled by new competitors.

Not only is Australia not experiencing a “great resignation”, we are experiencing something like the opposite – the proportion of workers switching jobs has been declining for decades.

Just as worrying, the learning gap between students from advantaged and disadvantaged backgrounds more than doubles between year 3 and year 9. If we are going to thrive as a nation, we simply have to turn this around.

Restoring economic dynamism

THE

Three priorities for future-proofing the economy ECONOMY Danielle Wood

OECD data show the performance of Australian school students in reading and maths is going backwards, both over time and compared with other countries.Theaverage year 9 student is more than one year behind in maths compared to where the student of the same age was at the turn of this century. For reading, it is around nine months.

Cultural shifts like this tend to play out over decades rather than years, but policy can shape culture.

It is equally important we tackle the economic and structural barriers to other groups participating to their fullest, including Australians with disabilities, our First Nations people and older Australians. Make sure care jobs are good jobs. Properly remunerating care work is going to be critical to providing the quality and quantity of health, disability and aged care services that our older population will need.Fifty-eight per cent of early childhood workers are paid award wages, which can be as low as $22 an hour. You can certainly understand why an early childhood educator might decide to step away from their important but emotionally taxing role to take up a higher-paid position at Bunnings or McDonalds.

If untapped women’s workforce participation were a massive ore deposit, we would have governments lining up to give tax concessions to get it out of the ground

This distilled leadership development program will give participants a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best practice where the primary role of a leader is to empower people to perform and grow, this is an engaging and sometimes challenging leadership development experience. Limited spaces available.

Whether you are a sole practitioner, remote worker, hybrid worker or contractor, working on yourself and your practice is essential to the longevity of your career. The presenters will share some best practices, helpful tools and key insights to ensure that you build and maintain a strong foundation in your career life – and enjoy it.

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12 FEATURED CPD ALL-LEVELS FORUMEMPLOYMENT

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Creating and maintaining control

Leading in law series

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Burning Issues

Burning Issues is back and this year it’s hitting new heights with a raft of red-hot employment law topics. This year’s theme is worker vulnerability in 2022, so join us as we consider the latest developments.

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Chair Bronwen Newcombe, General Counsel and COO, North Shore Toyota

ALL-LEVELS ALL WEBINARAREAS

Webinar 1.25 CPD hours Tuesday 20 September 12pm – 1.15pm Price from $90 +GST Presenters Jeremy Sutton, barrister, Bastion Chambers and Lesley Chapman, senior solicitor, Alan Jones Law Limited Auckland 2 CPD hrs Wednesday 21 September 4pm – 6pm Price from $130 +GST Presenters Judge Kathryn Beck; Maria Dew QC; Angela Evans and Peter Cranney Workshop (online) 4 CPD hrs Thursday 22 September 9am – 1.15pm Price from $400 +GST Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

ALL-LEVELS SEMINARCOMMERCIAL New SocietiesIncorporatedAct

This seminar will provide an update on the new Incorporated Societies Act 2022 and will include practical scenarios from those at the coalface.

Workshop 2 CPD hrs Tuesday 27 September 9am – 11.15am Price from $300 +GST Facilitators Johnny Quinn, Audience Alive and Wayne Christensen

You have been instructed to appear for an offender in prison who is eligible to be considered for parole. Where do you start? A practical guide to Parole Board hearing preparation with the chairperson of the NZ Parole Board. Livestream | In Person 1.5 CPD hours Wednesday 28 September 4.30pm – 6pm Presenters Sir Ron Young, chairperson NZ Parole Board and Emma Priest, barrister, Blackstone Chambers Chair Marie Dhyrberg QC

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Presentation skills series

Livestream | In Person 2 CPD hrs Tuesday 27 September 4pm – 6.15pm Price from $130 +GST Presenters Mark von Dadelszen, barrister and Joanna Pidgeon, director, Pidgeon Judd FIND OUT MORE OUT IN

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This is a practical workshop developed by experts and designed to increase your basic knowledge about delivering effective presentations and teach new skills and techniques.

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Increasingly, family law matters involve one or more international issues. This conference will explore the key areas of property, maintenance and parenting. The focus will be on trans-Tasman proceedings and with insights into other jurisdictions.

Livestream | In Person 2 CPD hrs Tuesday 18 October 4pm – 6.15pm Price from $140 +GST Presenters Samira Taghavi, Helen Bowen, Trevor Slater, Colin Rose and Jean Staples In Person | Livestream 5.75 CPD hrs Thursday 10 November 9.15am – 4pm Price from $480 +GST Presenters Margaret Casey QC, Ewan Eggleston, Isaac Hikaka, Jennie Hawker, Calina Tataru, Inger Blackford, Zandra Wackenier and Duncan Holmes Online Workshop 4 CPD Hours Thursday 17 November 9am – 1.15pm Price from $400 +GST Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

Tuesday 18 October | In Person | Livestream | 2 CPD hours

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Don’t approach restorative justice as just another box you need to tick to proceed through the criminal justice system. Benefit from practical insights into how you can make the most of the restorative justice process and how it can serve the needs of all parties.

Chair Judge Phil Recordon

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Practical insights and advice on effectively representing your client in the Employment Relations Authority and tips on the advocacy skills needed to get the best outcome.

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Chair Simon Jefferson QC

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Returning for a further session in 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work.

Making Most of Restorative Justice

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Visit adls.org.nz for more information.

Livestream | In Person 2 CPD hrs Thursday 29 September 4pm – 6.15pm Price from $130 +GST Presenters Vicki Campbell, barrister, Equilibrium Legal; James Crichton, barrister, Three60 Consult and Anthony Drake, partner, Wynn Williams

justicerestorativeMakingwork

The summit comes at an extraordinary time. Unemployment is lower than I’ve experienced in my lifetime, and we are in the early phase of significant structural shifts in jobs and activity as our economy decarbonises and digitises.

We need to lock in full employment as a policy objective, and capitalise on the extraordinary opportunity to give our long-term unemployed, older jobseekers, and people with a disability a chance to participate in paid work.

Continuedpermission

We need to invest in human capital big time, turning around the slide in our school results, rebuilding vocational education, and improving the quality of the signals we send to our young people about what will be needed in future.

PERRY Mary Jocelyn • Late of Algies Bay, Warkworth • Retired • Aged 97 / Died 03’07’22 SNOOK Ruth Marie • Late of 95/219 Swanson Road, Henderson, Auckland • Call centre representative • Aged 65 / Died 10’07’22

This lack of awareness of the universe of possible jobs, particularly in fastgrowing sectors, diverts young people from career paths that would generate the greatest benefits for them and the country. High household indebtedness constrains the capacity of young people to change jobs later or take the risk of starting a business.

KENNEDY Veronica Ann • Late of Auckland • Retired • Aged 83 / Died 09’06’22

15 Sep 9, 2022 Issue 31

Grattan Institute’s 2018 report Who’s in the Room? suggests this concern is real for Australia. Heavily regulated sectors such as mining, property and construction, and gambling are characterised by remarkably high levels of political donations and lobbying compared to their relative economic contribution. Be bolder Finally – what of our people? How do we encourage workers to be bold and thrive in a more dynamic economy of the future?

This space could be yours market leaders has slowed.

If we want to genuinely improve worker mobility, we have to also consider the role of the social safety net. Upgrading skills or even changing jobs can be costly and risky, particularly for more vulnerable workers.

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz ADLS, PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax: (09) 309 3726 (09) 303 5270 LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week. Get your message in front of them. Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

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Making sure Australia’s competition laws are fit for purpose would help. The former head of the Australian Competition and Consumer Commission, Rod Sims, has argued the current mergers laws are failing to adequately protect competition. His warnings should prompt serious thought.

Economists have long warned of the productivity-sap from rent-seeking (seeking special favours). We should not be a country where firms see more upside in lobbying to get a better deal from governments than from investing in better products and services.

HESSELL Kerry Dwyer • Late of 37 Seafront Road, Castlecliff, Whanganui • Retired • Aged 69 / Died 16’08’22

EITIARE Matatari • Late of 58 Chingford Close, Mangere, Auckland • Mother • Aged 45 / Died 17’08’16

MCINNES Quona Autumn • Late of 12 Dundas Street, Whitianga • Married • Homemaker • Aged 93 / Died 02’07’22

The 2018 international OECD school education survey found 42% of Australian teenage boys and 52% of teenage girls expect to work in one of just 10 common jobs by the age of 30, including lawyer, doctor or police officer. This set of aspirations has actually narrowed since the turn of the century.

Being relaxed and comfortable may be profitable, but it is not good for Australia’s long-term economic prospects.

We need to embrace the principle that no one who wants a job or more hours should be held back by structural barriers such as expensive or inaccessible care. And we need to recognise the importance of boosting innovation, of strong market competition, of better policy design, and of government investment in enablers like cyber security to become an economy on the technological frontier. ■ Danielle Wood is CEO of the Grattan Institute. ■ The above first appeared in The Conversation and is republished with from page 11

Crystal Wildey and MAS sponsor Justin Bentley

16 Events Thank you to those who attended the Christchurch lawyers’ lunch at the Dux Central. Christchurch lawyers’ lunch

Adam Neylon, Marie Dyhrberg QC and Louise Smith Hugh Matthews, Richard Hearn and Pervinder Kaur

Helena Austen, Glenn Jones and Gillian StuartNathan Ngatai, Robb Bautista and Rob Wilson

Stuart Stock and Naoka Iwase

17 Sep 9, 2022 Issue 31 Soon to be added: November | Immigration dinner with the Minister of Immigration November | New Plymouth Sundowner November | East Auckland lawyers’ lunch November | Tauranga Sundowner December | Northland lawyers’ lunch Upcoming Book events@adls.org.nzHere adls.org.nz Featured events Connecting New Zealand lawyers Takapuna lawyers’ lunch Wednesday 28 September 12pm – 2pm Fantail & Turtle, Goodside, The Avenue, Smales Farm, Takapuna, SponsoredAucklandbyMAS Wellington express lawyers’ lunch Wednesday 19 October 12.30pm – 2pm Flamingo Joe’s Bar & Eatery, 1/10 Waterloo Quay, Pipitea, Wellington Arthur Young’s Retirement Dinner Save the Auckland19TheThursdaydate!20OctoberNorthernClub,PrincesStreet,CBD Learn more Learn more ImagesGetty/d3signPhoto:

TEAM LEAD ACQUISITIONS EASTERN BUSWAY

Are you excited about making a difference to Tāmaki Makaurau through contributing your skills and experience to the success of vital transport Weinitiatives?havean opportunity available to lead the Acquisitions team who are responsible for delivering the acquisitions programme for the Eastern Busway, ensuring that acquisitions are completed on-programme and within budget. About the role You will provide high-level strategic advice and guidance to support the achievement of project outcomes and the broader acquisition programme. This permanent role leads a team of five property specialists who work closely within Auckland Transport and with Auckland Council and Eke Panuku to ensure the property acquisition programme is developed and implemented in accordance with statute. If you are passionate about property and working towards progressing transport for Tāmaki Makaurau now and for generations to come, Apply Here Now! For more information on this role and other similar roles, please contact Nesh Pillay, AT’s Planning and Acquisition Manager on nesh.pillay@at.govt.nz

The applicant should preferably have 1 to 3 years’ experience.

18 Burning Issues in Employment Law Forum 2022 Wednesday 21 September | 4pm - 6pm | In Person - Auckland Burning Issues is back and this year it’s hitting new heights with a raft of red-hot employment law topics. This year’s theme is worker vulnerability in 2022, so join us as we consider the latest developments. T 09 303 5278 E cpd@adls.org.nz W adls.org.nz/cpd 2 HOURSCPD

The successful applicant will be a motivated and energetic person with a positive attitude who is able to use initiative and multi-task, with excellent written English, and will be confident and well spoken.

SOLICITOR – LITIGATION

Please apply to Price Baker Berridge by email to zbinns@pbb.co.nz for the attention of Clinton Baker.

PRICE BAKER BERRIDGE, SOLICITORS Barristers Chambers Available Vulcan Lane  Sunny,70.56 square metres plus shared kitchen  Gross rent approximately $2,000 per calendar month  Suit two practitioners plus secretary. Recently vacated by two barristers retiring.  Adjacent to building owner’s office on the top floor.  Most of the other office tenancies in the building are barristers. For further details or to arrange an inspection, please phone 09 304 0730 or email www.msa.co.nzinquiries@msa.co.nz

We are a boutique law firm specialising in unit titles advice and dispute resolution looking for a full-time junior solicitor to work in our litigation team.

Are you keen for a role that enables you to move to the coalface of property acquisition work whilst utilising your expert legal knowledge and experience?

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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

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

THOMAS MORE DINNER

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

DINNER

Christian Name Surname

19 Sep 9, 2022 Issue 31 Leading in Law Workshop 2 Thursday 22 September | 9am - 1.15pm Online - Zoom Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience. T 09 303 5278 E cpd@adls.org.nz W adls.org.nz/cpd 4 HOURSCPD

TitleName(s)EmailName:Address:ofattendee(s): Christian Name Surname BPS 107472 1 667 V1 ST

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

The ticket price of $175.00 covers pre-dinner drinks, dinner and wine. Tickets are limited so you are requested to RSVP. Direct deposit to Dawson Harford Limited Trust Account; ASB 12-3109-0032560-02 and confirm by email to bernard.smith@dawsonharford.com

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

ST THOMAS MORE DINNER 2022



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. 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 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. 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

TitleName(s)EmailName:Address:ofattendee(s):