LawNews- Issue 36

Contents

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

Editor: Jenni McManus

Publisher: ADLS

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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

There is little practical benefit for inserting a specific reference to the treaty when lawyers already have a statutory obligation to uphold the rule of law

How the legal profession might be re-imagined

Jenni McManus

Lawyers don’t want or need an independent regulator. The job should be done by the New Zealand Law Society, but NZLS must first relinquish its representative role as an advocate for the profession to avoid actual and perceived conflicts of interest.

Triage is needed for the complaints process which is broken and not fit for purpose. And any move to incorporate the Treaty of Waitangi into the Lawyers and Conveyancers Act is likely to be divisive and have unintended consequences.

These are among the key submissions made by ADLS committees to the independent panel which has been tasked with a wide-ranging review of the profession.

Fourteen of ADLS’ 18 committees devoted at least part of their monthly meetings to discussing a consultation paper released mid-year and their responses were collated into a single submission.

In particular, the committees were asked to consider whether there should be an independent regulator for the legal profession, how to promote diversity and whether the corporatisation of law firms should be permitted.

Police or advocate?

On regulation, the committees’ biggest concern is the potential for conflicts of interest between the regulatory and membership representative functions of NZLS.

They say NZLS hasn’t been performing in its role as an advocate for lawyer members and this function should be picked up by the growing number of lawyer membership organisations, “many of which have demonstrated their ability in promoting the interests of their members and meeting their expectations as an independent voice of law without the burden and constraints as a regulator”.

The committees were unanimous on this issue. There is

confusion as to whether NZLS is the police or an advocate and there is a perception that the model is skewed disproportionately towards the regulator role. This reduces NZLS’ ability to make submissions to Parliament on bills and to other government agencies on relevant matters.

Most committee members agreed, however, that there was no need to establish a new, independent regulator. One committee said it would be undesirable for the government to make such an appointment as the legal profession plays an important role in the doctrine of separation of powers, where lawyers are officers of the court and are required by statute to uphold the rule of law.

Litigators often need to advocate for their clients in positions against the government, the committees said. “Any regulation must respect the constitutional role of lawyers as being independent from the government.

“Having a new, independent regulator, likely with members appointed by the government of the day, may impede the ability for lawyers to fearlessly uphold the rule of law, challenge the government and as a result diminish access to justice. Indeed, any arrangement other than the legal profession self-regulating may lead to such an unintended perceive and/or actual outcome.”

Self-regulation did not mean going soft on practitioners, the submission said.

Other professions, such as accountants, have evolved with the times

Complaints

The current model is not working, most committees found. Major issues include the way fees disputes are handled, with a potential finding of unsatisfactory conduct, and extensive delays in resolving matters because of inadequate resources. Another problem is the volume of fictitious complaints which consume the energy of practitioners over extended periods of time.

The ADLS committees support the introduction of a triage system to screen complaints at an early stage. For fees disputes and other simpler matters that don’t question a practitioner’s fitness to practice, alternative dispute resolution methods are suggested.

Some members want to restrict complaints to only those with a client-solicitor relationship to avoid the process being used tactically. For example, beneficiaries of an estate can file a complaint against a law firm acting as executor and a selfrepresented litigant in a relationship property matter can file a complaint about the other party’s lawyers.

“This is often done for tactical rather than genuine reasons, with the complainants aiming to protract the issue, causing a great deal of stress for law practitioners in the hope of extracting concessions to avoid a prolonged matter.”

One committee recommend the complaints service be widened to include non-lawyers providing legal services. Another identified as a concern the lack of support for junior lawyers facing complaints made against them.

There was a resounding ‘no’ from all committees on the issue of establishing an independent body to investigate and resolve complaints. The legal profession is unique, they say, with circumstances, obligations, requirements and an operating environment that was not always understood by lay people.

“There is no issue of bias with the current complaints model where complaint outcomes are determined by professional peers,” the submission said.

“There is motivation for lawyers to maintain the standards and integrity of the legal profession. Currently, the National Standards Committee can receive complaints of a more serious nature and exercise a satisfactory degree of independence in those situations.”

Two committees supported the restorative approach, incorporating tikanga, alongside mediation, to be considered as a tool to resolve less serious complaints.

Treaty of Waitangi

Only two committees discussed in any depth a proposal to

incorporate the treaty into the Lawyers and Conveyancers Act.

They had very different views. One committee did not support explicit references to the treaty within the Act. While it is an important part of New Zealand’s legal framework, the treaty is not superior law. So, it is not principled to isolate a single component of New Zealand’s largely unwritten and non-entrenched constitutional framework as worthy of being held above all other components.

There is little practical benefit for inserting a specific reference to the treaty when lawyers already have a statutory obligation to uphold the rule of law which, in New Zealand, includes the principles of the treaty.

Further, they say, there has been no legal or social consensus about the definition of these principles. “Incorporation of such into the Act is considered a legally wrong move.” In fact, incorporating into the Act a legally undefined term that was open to very different interpretations was “a dangerous move” and the risk “significantly outweighed the benefits of such virtue signalling”.

The other committee said the treaty should be acknowledged in the Act insofar as it aligns with the Te Ao Marama work being implement by the Chief District Court Judge, providing there is a consensus on a method or roadmap about how such incorporation would be done. It should also be subject to the release of details and extensive consultation.

This committee acknowledged that Te Ao Marama had considerable support within the senior courts.

Alternative business structures

The views among the committees were mixed on the issue of allowing non-lawyers to own, manage and invest in law firms. Even within individual committees, it was sometimes difficult to achieve consensus.

Those opposed to such a move said they were worried that non-lawyers would not fully understand the professional obligations expected of lawyers and that commercial imperatives from the owner of a law firm could place lawyers with no (or

There is confusion as to whether NZLS is the police or an advocate

While it is an important part of New Zealand’s legal framework, the treaty is not superior law

Evicted tenant arrested, court refuses to award costs

Sacha Jugum

Costs in Criminal Cases Act 1967 – appeal against refusal of application for costs of $8,680.64 in District Court, after dismissal of charge of trespass and withdrawal of a charge of resisting arrest – applicable principles – police procedure – public policy – claimable costs and quantum –scope of costs – relevant circumstances – “good faith” – “in the execution of his duty” – exercise of discretion – precedent and academic commentary – appeal dismissed

Cavanagh v New Zealand Police [2022] NZHC 2174 (Dunningham J)

Maria Elena Jean Cavanagh had an informal tenancy agreement with an elderly woman. However, Cavanagh was asked to leave the property after a dispute arose. She refused to leave the property and police were called to discuss the matter with both parties.

Cavanagh was told to leave, declined to retrieve her personal belongings and drove off. She later attended the police station during which visit the position was reiterated to her. Cavanagh nevertheless returned to the property and police were called again. They offered to drive her elsewhere and attempted to discuss matters with her.

However, this approach was unsuccessful, and Cavanagh was then arrested, a process which necessitated the assistance of six police officers to lift her into the police van and during which she now accepts she was wholly uncooperative.

Cavanagh was charged with trespass and resisting arrest. She maintained her grievance about the sequence of events and her complaint to the Independent Police Conduct Authority was dismissed.

Cavanagh’s case suffered from procedural delays during covid-19 lockdowns and when the matter came before the District Court, her application for a discharge of the trespass charge was successful. Police then made the “pragmatic” concession of withdrawing the resisting arrest charge [which the learned judge found would likely have been sustained, had it proceeded].

Cavanagh subsequently claimed costs of $8,680.64 pursuant to the Costs in Criminal Cases Act 1967. However, not all of the sums claimed related to her defence and included, for example, alternative accommodation costs and the cost of books left at the original address. Cavanagh’s claim for costs was unsuccessful in the District Court and she now appeals that decision.

Applicable principles – assessment of the scope of costs claimed, some of which were clearly outside what could be claimed – detailed analysis and

discussion of police procedure in disputes such as these, including the judicial comment [in the District Court] that “police officers dealing with dynamic situations cannot be expected to always make the right call on technical legal points, and what is important is that they approach situations in good faith” and “police were doing their best in difficult circumstances to try and find a solution to what was clearly a problem” [judicial comment in the High Court on appeal, reiterating judicial comment in the District Court] – relevance of the tenancy arrangement between the parties – recognition that the Police were acting in good faith, and had attempted to resolve the matter informally before arresting Cavanagh –consideration of the circumstances of the dismissal and withdrawal of the relevant charges, where police were then in an “invidious position”, and made a pragmatic concession to withdraw the charge of resisting arrest – the learned judge noted that “the touchstone for determining costs in criminal cases is that the court do what it thinks is right in the particular case” – assessment of relevant circumstances and the appropriate exercise of the court’s discretion – reference to both case law and to academic commentary

Held: Cavanagh’s appeal is dismissed. ■

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■

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Incorporating tikanga: what Ellis will be remembered for

The Supreme Court did not hold that Ellis was probably innocent or that the evidence was insufficient to sustain a conviction. Rather, it held that the trial had gone badly wrong

The minority judges opined that this was not a suitable case for the court to make pronouncements of a general nature about the incorporation or application of tikanga as part of New Zealand’s common law

Warren Pyke

Peter Ellis’ convictions, while long ago, were not final. Unfortunately, neither will be the outcome of his appeal to the Supreme Court.

Ellis had been granted an extension of time to appeal but died before the appeal could be heard. Therefore, a decision had to be made on whether to allow the appeal to proceed, which meant deciding whether the issues in the appeal had become moot. Before examining that important procedural decision, I first summarise the outcome of the successful appeal against conviction.

Before the Supreme Court, questions were raised about the reliability of the complainants’ evidence, as child witnesses, particularly regarding suggestibility, contamination and unsound expert evidence about their observed behaviours.

The court ruled on these issues in its substantive judgment (Ellis v R [2022] NZSC 115), allowing the appeal on the basis that there had been a miscarriage of justice. That holding amounted to the court determining that the combined unsatisfactory aspects of the case, particularly the evidence given by an expert under the now-repealed s 23G of the Evidence Act 1908, meant there was a real possibility of different verdicts.

Evidential problems

Section 23G enabled qualified experts to give evidence about exhibited behaviours that were “…consistent or inconsistent with the behaviour of sexually abused children of the same age group as the complainant.”

The court held that the Crown expert’s evidence on the behaviours of the children was not balanced; her evidence also failed to adhere to acceptable standards. The expert did not inform the jury of other possible causes of the children’s behaviours and, when she did so, she discounted or minimised other possible causes. Her evidence also involved circular reasoning.

The Supreme Court observed that a strict approach

had been taken to the rules governing admission of s 23G evidence, with departure from them resulting in some cases in a miscarriage of justice, citing the 1991 decision in Crime Appeal (CA244/91) v R, where Hardie Boys J, in delivering the judgment of the Court of Appeal, said the limits of evidence given under the section were so clearly in place that any exceeding of them must be regarded as serious, because “[o] ne cannot know what influence it will have on a jury”. It follows that by the date of Ellis’ trial, the risks associated with such evidence were well-established.

The court also concluded that while the risk of contamination of the children’s evidence was canvassed at the trial, the jury was not adequately informed about the level of risk of contamination. Further, incomplete evidential records went before the jury, and medical evidence (from an examination of some of the children) was flawed (this is a class of evidence that was criticised by the Court of Appeal in 2008, see R v Garraway [2008] NZCA 2).

The Supreme Court did not hold that Ellis was probably innocent or that the evidence was insufficient to sustain a conviction. Rather, it held that the trial had gone badly wrong.

Ordinarily, had the appeal been allowed closer to the trial, there would have been a retrial. But, as the Supreme Court observed, Ellis did not promptly exercise his right to seek permission to bring an appeal before the Privy Council (the court’s judgment did not convey why Ellis had not done so); nor had he promptly sought the Crown’s agreement to bring an appeal before the Supreme Court – ie, after the court had been constituted in 2003 (the Crown’s later agreement for him to do so allowed the Supreme Court to hear the appeal).

While all the judges agreed that the court had the power to hear the appeal despite Ellis’ death, had the minority judges controlled this gateway decision the appeal would not have been heard.

Warren Pyke

The minority observed that because tikanga had come up for consideration only in the context of an interlocutory matter (before the Supreme Court), it was not appropriate for the court to extensively explore and opine upon it

Continued from page 06

Tikanga Māori

All the judges explored tikanga. There was broad agreement about the principles of tikanga since they had been agreed after a wananga of the parties’ lawyers and experts.

But this was not a case where tikanga arose as part of the context or subject matter of the underlying litigation. In fact, the question arose only after it was raised by a member of the Supreme Court bench, after it became apparent that, if the appeal was to be heard, it would have to be heard posthumously.

The minority dissenting judgment of Justices Arnold and O’Regan is my focus in the balance of this article (I am sure the majority’s reasoning will be fulsomely discussed by other commentators).

The minority judges opined that this was not a suitable case for the court to make pronouncements of a general nature about the incorporation or application of tikanga as part of New Zealand’s common law.

In my opinion, their dissent was for orthodox reasons, having little to do with tikanga per se. While respecting the work done on the issue, the minority observed that because tikanga had come up for consideration only in the context of an interlocutory matter (before the Supreme Court), it was not appropriate for the court to extensively explore and opine upon it.

The court did not have the benefit of decisions from lower courts; the issue arose in “an uncontested environment” and the court had heard no contrary argument.

The minority pointed to a number of difficult issues of legal and constitutional significance that might arise, including: how the court can identify when tikanga is relevant to the case at hand and when it is not; if it is relevant, how it should be addressed; whether tikanga is a separate or third source of law; how the relevant tikanga should be brought to the court’s attention (noting the acknowledgement in the reasons of Glazebrook J that the process used in this case, though commendably thorough and authoritative, cannot be followed in more run-of-the-mill cases); how the application of tikanga in one area of the law affects the common law in another area; and how to avoid tikanga being distorted when applied by courts (a concern shared by Williams J).

The minority thought tikanga did not appear to have materially affected the opinion of Glazebrook J about whether

to give permission to continue the appeal. The implication is that the majority did not need to rely on tikanga when deciding whether to give permission to hear the appeal posthumously (if that is what they thought was the just decision on the application of ordinary principles).

The minority added that incorporating tikanga Māori values in a criminal process, which usually proceeded on the basis of a very different set of values, was not straightforward. There is force in these arguments.

Despite the extensive publicity over the years about the safety of Ellis’ convictions, the exploration and application of tikanga by the Supreme Court is what the Ellis appeal will be remembered for.

The not-uncommon reasons for the court holding that there had been a miscarriage of justice are likely to fade over time, as against the power of the first judgment as a precedent.

The examination of tikanga in the context of a criminal appeal was not the ideal vehicle for the Supreme Court to explore the positioning of tikanga in the law of New Zealand.

As the minority observed, judicial pronouncements about the place of tikanga in a broader legal context might be better made following the work of the Law Commission (see Te Aka Matua o te Ture | Law Commission Tikanga Māori www.lawcom.govt.nz; as referenced by Glazebrook J, in footnote 138 of Ellis v R [2022] NZSC 114: “the study paper plans to explain tikanga Māori, its sources and its expression in the courts and the Waitangi Tribunal, with the aim of providing a framework for engagement with tikanga Māori within Aotearoa New Zealand’s legal system”).

Moreover, despite the aspirational aspects of tikanga for the resolution of conflict in this context, the outcome of the appeal has nonetheless left open the question of Ellis’ guilt for serious sexual offending.

While it should not be overlooked that Ellis served a long prison sentence, there is no finality for the complainants or for Ellis’ family. The complainants and Ellis’ family do not have the option of final verdicts after a fair trial. Given the nature of the questions raised in the appeal and observing that there was no ground of appeal upheld that the verdicts were unreasonable, this outcome was entirely predictable, even on a best-case scenario for a posthumous appeal in this case.

The Ellis case is more proof of the maxim that justice delayed is justice denied, for all involved. ■

Pyke

an Auckland

Critical lessons to be learned from Ellis

The expert for the prosecution was allowed to go well beyond the bounds of what an expert is allowed to do, such as commenting on the credibility of the child witnesses which has a strong influence on the jury

Rod Vaughan

Peter Ellis’ former lawyer Nigel Hampton KC says he feels a poignant mix of sadness, relief and pleasure at the Supreme Court’s decision to quash his sex abuse convictions.

Hampton, who represented Ellis in the Court of Appeal, says he’s relieved an appellate court has at last got to grips with the case’s real issues “which have always been present but avoided, and could have been avoided again if the minority view not to hear a posthumous appeal had prevailed”.

But the eminent lawyer is also pleased that after 29 years, a miscarriage of justice has been recognised and corrected.

He told LawNews he was sad that Ellis and his mother are no longer alive to hear the verdict. The former Christchurch Civic Creche worker died from bladder cancer in 2019.

The Supreme Court late last week overturned the convictions, ruling there had been a substantial miscarriage of justice resulting from evidence going back to 1993.

Auckland University Law School Professor Mark Henaghan was part of the Innocence Project which investigated the Ellis case. He was not surprised by the Supreme Court’s ruling.

“So many people have built the case for the decisions that were reached,” he says. “It started with Lynley Hood’s book, then the hard work and advocacy of Nigel Hampton KC and Judith Ablett-Kerr KC, then the work of the Innocence Project led by Dr Bridget Irvine which I was humbled to be part of.

“As well, there was the outstanding work of Professor Rachel Zajac and Bridget Irvine who did a great deal of work to prepare the evidential brief on child witnesses for Professor Harlene Hayne to present in the Supreme Court hearing.

“There was also the brilliant advocacy of Natalie Coates and Kingi Snelgar who argued the crucial tikanga [issue] to ensure the appeal was heard after Peter Ellis died.”

Henaghan says the case is testament to the resilience, dedication, persistence and loyalty of criminal defence lawyers.

“Much of the work done for these long-haul cases is pro bono and done at major cost, both emotionally and financially. Criminal lawyers are the heroes of the legal profession and they ensure that the rule of law is upheld.”

He is in no doubt that the estate of Peter Ellis should be compensated.

“Peter and his family have been through a lot. It will require an addition to the Cabinet manual for this to be considered as it is not provided for at the moment.

But Hampton believes there will be a number of obstacles. “Not least, Peter Ellis’ death and present requirements necessitating, effectively, proof of innocence – an inherently difficult concept in itself.”

Failed badly

Asked whether the Supreme Court’s decision was a damning indictment of the judicial process and whether it would prevent such a situation from arising again, particularly with respect to the reliance on children’s testimony, he said: “Both the New Zealand appellate courts and the New Zealand government failed badly.

“First, the appeal courts through their self-imposed constraints and an unwillingness to look at the whole ‘affair’ in its fullness and in its context, leading to a narrowed approach focused only on what occurred in the trial court and suggesting that such wider contextual matters were ones suited to a commission of inquiry.

“And second, the government – of several stripes over time –for failing to set up such a royal commission.

“But, as an indirect result of the ongoing Ellis controversy, and to the good, New Zealand now has a Criminal Cases Review Commission which should help prevent such appalling

Both the New Zealand appellate courts and the New Zealand government failed badly

Nigel Hampton KC

dilatoriness to right a wrong in the future.”

Henaghan says there are crucially important lessons to be learnt from the case.

“First, if we look at other recent cases where a miscarriage of justice has been found, the key similarity is the vulnerability of those subject to a miscarriage of justice.

“Tena Pora suffered from foetal alcohol syndrome. Alan Hall was a very vulnerable person. Peter Ellis was not part of the mainstream with a unique personality which made him a vulnerable target.

“Second, the context in which a case is investigated and a trial held has a major influence on the mindset that everyone brings to their part in the process.

“I remember at the time of the original investigation, meeting on a plane one of the detectives investigating the Christchurch Crèche case and he made strong statements about Peter Ellis’ sexual orientation which had convinced the detective that Peter was capable of doing what was alleged against him.”

Henaghan believes everyone involved in an investigation and trial should have to watch the epic 1959 movie Twelve Angry Men which shows the dangers of judging a person based on prejudice rather than evidence.

“Also, at the time of the original trial there were reports from around the world such as the Kelly Michaels case in the USA, the Cleveland case in the UK and a case in the Isle of Skye where allegations were made about sexual and ritual abuse of large numbers of children.

“Context also affects the way we see things.”

Henaghan says while expert evidence is important for the courts, it always needs to be closely critiqued and tested.

“Court expert Sir Roy Meadow’s statistical error when he said ‘two cot deaths is suspicious, three is murder’ lead to a number of mothers in the UK being falsely found guilty of killing their babies.

“In the Peter Ellis case, the expert for the prosecution was allowed to go well beyond the bounds of what an expert is allowed to do, such as commenting on the credibility of the child witnesses which has a strong influence on the jury.

“The contamination of the child witnesses by all the conversations around them and by the way leading questions were put to them was raised at the trial in 1992, but not fully explored. We now know that contamination makes evidence

unsafe to rely on. We owe it to child witnesses and defendants to avoid contamination to ensure a fair trial,” Henaghan says.

“The only way we will do this is by eternal vigilance to keep an open mind in the investigation and court process and by expert witnesses giving evidence which is balanced and explains the limitations of any expert evidence.

“It would be a backward step if the evidence of children is seen as always unreliable because of the Peter Ellis case. We owe it to children to not contaminate their evidence as much as we owe it to defendants.”

Role of tikanga

The Supreme Court’s decision also raises another crucial question. Does it now enshrine tikanga Māori in New Zealand law, given that the appeal was based on it and, if so, is this a good thing?

Nigel Hampton sees it as a step in that direction. “Tikanga Māori entered into the decision only to allow the appeal to proceed post the death of the appellant.

“And the relevant tikanga aspect – survival of mana, in effect – was folded into and became a part of the judicial answer to whether the public interest test, as to whether the appeal should go on, was met on these facts.

“[It’s] another move towards the concept of a pluralist common law, with courts being advised to proceed carefully in effect, developing such folding-in on a case-by-case basis, dependent on context.

“I see this as a positive development – a further step in the evolution of New Zealand law into a jurisprudence unique to, and inherently tied to, this country.”

Henaghan says tikanga has been part of New Zealand law for a long time. “It started well before Pakeha arrived. It’s been hidden and ignored for too long.

“The Council of Legal Education has required it to be a compulsory part of the law degree. We have a great deal of thanks to give to the late Moana Jackson, Justice Sir Joe Williams and many other Māori scholars for keeping tikanga alive. This case shows the great benefits tikanga brings to the law in Aotearoa.”

“The statement of tikanga by Sir Hirini Moko Mead and Professor Pou Temara, combined with the other tikanga experts who held a wananga for two days to understand the tikanga principles applicable to the continuance of the appeal once Peter Ellis passed away, were crucial to the outcome.” ■

Criminal lawyers are the heroes of the legal profession and they ensure that the rule of law is upheld

Mark Henaghan

Peter Ellis

A mighty big hint

Chris Trotter

Wayne Brown’s pollster must have scratched his head as he analysed the data.

The bulk of his client’s support was, as expected, coming from Aucklanders over the age of 55 who listened to Newstalk-ZB and, more often than not, voted National/Act. But, alongside these solid, conservative Kiwis, dubbed “Country Calendar watchers” by Brown’s campaign boffins, there were others who diverged from the stereotype.

Sure, they were baby boomers but that’s where the similarities ended. These were National Radio listeners who, right up until this election, had been rock-solid Labour/Alliance/Green voters.

In this contest, however, they were willing to step across the tribal boundary lines. Brown didn’t need their votes, he was going to win easily without them, but the fact that he had them boded very ill for the Left. Very ill, indeed. Boundaries crossed once can be crossed again.

The local government elections of 2022 unfolded in circumstances far removed from those held three years earlier in 2019. It wasn’t simply the fact that New Zealand had spent the intervening years in the grim shadow of the global covid-19 pandemic that had altered the political equations. Covid and everything that came with it had also altered New Zealanders’ hearts and minds.

In 2020, elated at having emerged virtually unscathed from their encounter with the delta variant of the coronavirus, Kiwis swung wildly behind their young prime minister and her Labour-led government. Credited with bringing the country safely though the danger, Jacinda Ardern’s Labour Party was returned to office with more than 50% of the votes cast. The “transformation” she had promised in the early months of her first term was now possible. She was no longer at the mercy of Winston Peters’ “handbrake”. This was ‘Jacinda’s’ moment.

Two years on, the situation has radically changed.

If the prime minister’s handling of delta had been a triumph, her handling of the omicron variant of covid-19 was a disaster.

The exceptional solidarity achieved during the first nine months of the pandemic had evaporated. The government’s strategy for fighting the virus had changed – and then changed again.

The clarity of the PM’s strategy disappeared. In its place arose a regime of coercion and confusion that angered and alienated tens of thousands of New Zealanders. Vaccination refuseniks lost their jobs. Auckland was locked down for months.

Then, as suddenly as it had been erected, Labour’s regime of mandates and lockdowns was dismantled. By the time the local body elections rolled around in September 2022, hundreds were being infected with covid-19 every day, and 2,000 New Zealanders had died of the virus. Elation had given way to a brooding, sullen silence.

Nothing seemed to work. Omicron and long covid scythed through international and local workforces. Labour shortages became acute. Supply chains stretched and broke. Behind the necessary, covidinspired, monetary expansion marched its inevitable corollary – rapidly rising inflation. Then, Russia invaded Ukraine and everything got a lot worse. Still, nothing worked, but now everything – especially energy – cost even more.

Cities that work

Those running for local office had two choices: embrace the steadily hardening public mood or attempt to rise above it.

Mayoral candidates and other local politicians could not, credibly, make promises that only central government has the power and resources to keep. Accordingly, candidates supportive of the Labour government urged voters to exercise patience

and keep the faith. Overdue investment in crucial infrastructure was happening all around them. Central government was acting. Better times were coming. Stay the course.

Not all voters were so easily mollified and neither were those who intended to ride to victory on their discontent.

Right across New Zealand, the message conveyed to conservative contenders for the mayoral chains was the same. People are sick of road cones. Sick of waiting in traffic jams. Sick of buses that never turn up. Sick of major projects that never seem to get finished but whose budget over-runs (when they are disclosed at all) continue to rise and rise, and rise again. We are heartily sick of grand schemes, the voters told the Right.

What did these hard-pressed ratepayers of New Zealand want from their local councils? Surprisingly little. They wanted the electricity to stay on, the water to stay clean, the rubbish to be carted away, the bus and train timetables to tell the truth and for all those bloody potholes to be filled in. Not to put too fine a point on it, they wanted their towns and cities to work

It wasn’t that they didn’t care about climate change, colonisation or the shortfall in affordable housing; it was simply that, as ordinary citizens of modest means, they had only so much caring to offer.

If covid-19 had taught them anything, it was the importance of putting first things first: your health, your family, your sanity, your job. All the stuff that happens close to home. All the stuff that happens over the hills and far away, no matter how important, could – and probably should – wait.

This was the mood revealed by Wayne Brown’s pollster, Tim Hurdle – described by veteran political journalist Richard Harman as “one of the country’s top

If covid-19 had taught them anything, it was the importance of putting first things first: your health, your family, your sanity, your job

Elation had given way to a brooding, sullen silence

political operators”.

But, there was a problem. Older, whiter, wealthier and more settled than the rest of Auckland, these “Country Calendar watchers” had become the favourite target of politicians and journalists purporting to represent the views of younger Aucklanders.

These self-proclaimed “progressives” angrily rejected older voters’ minimalist expectations of local government. It is simply wrong, they insisted, to suggest that action on climate change can wait. Or, that mandatory housing intensification represents an unwarranted central government intrusion upon the rights of property-holders. Or, that the establishment of Māori wards contravenes longstanding constitutional principles. If older voters continued to obstruct the progressive agenda of younger voters, they argued, then the state should use its powers to force them out of the way.

Control and coercion

It is this willingness to invoke central government coercion that has sharpened the edge of both national and local politics.

The idea that if local authorities resist the plans of

central government, then the latter is entitled to simply pull rank and legislate over the top of them, is fraught with all manner of political difficulties.

Local politicians will justifiably object that if the democratically-inspired opposition of regional, district and city councils is to be regularly and peremptorily over-ridden by Parliament, then what is the constitutional purpose of local government? Why bother with it at all?

On no other issue are these questions more sharply debated than in relation to the Labour government’s Three Waters legislation. The proposed law has been attacked by a multitude of local authorities –many now led by vocal opponents of Three Waters – as being economically, politically, culturally and constitutionally unacceptable to the degree where it should be withdrawn immediately and revised comprehensively.

If Wayne Brown can persuade a majority of Auckland councillors to join him in rejecting the effective confiscation of the storm, drinking and wastewater networks constructed and paid for by generations of Auckland citizens, then it will require a positively Putinesque assertion of Wellington’s will to smack them down. To borrow an expression from the new mayor of Nelson, Nick Smith: Labour would have

to have a death wish.

The prime minister has laughed off the suggestion that the results of the 2022 local government elections can be read as harbingers of Labour’s doom in 2023. By doing so, she has lost the opportunity to accept them as a timely reminder that governments endure only by virtue of the voters’ continuing support.

With the general election a year away, there is still time for Ardern and her colleagues to re-think and re-set their policies.

But if the arrogance and political tone-deafness afflicting this government persist, then the temptation for a growing number of angry and alienated Labour/ Green supporters to migrate across tribal political boundaries can only grow. There is no reason why the fate of the social democratic parties of Europe should not also overtake the New Zealand centre-left.

The voters, or at least those sufficiently motivated to return their local government ballot papers, have given the prime minister and her colleagues a mighty big hint.

They should take it. ■

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

Events

Jonathan Gill, Tania Goatley and Hannah Wilson

Sir Anand Satyanand leads legal community in a toast to celebrate the reign of Her Majesty the late Queen Elizabeth II

On Thursday 22 September, two weeks following the death of Her Majesty Queen Elizabeth, members of the legal community gathered at Administrator House in Auckland to toast the memory of the late Queen.

Her legacy

The Queen came to the throne in 1952 and served as New Zealand’s Head of State for more than 70 years. That time has been marked by great change. In 1952, you could buy a house in Auckland for less than $5000. The population had just nudged two million. Flights from Europe to New Zealand had just begun and took a gruelling 50 hours.

When the Governor-General, Lord Freyberg, proclaimed Queen Elizabeth II as Queen of this realm, New Zealand had been a fully independent country for only five years. (Although the Statute of Westminster removed the UK Parliament’s right to legislate for New Zealand, it was not finally removed until 1986 with the Constitution Act.)

The Queen visited New Zealand 10 times. She was also beside us when we celebrated as a country – such as the All Blacks’ Rugby World Cup victory – and when we suffered tragedies like Pike River, the Christchurch earthquakes and the March 2019 mosque attacks.

During her long reign, we have had 18 prime ministers, starting with Sir Sidney Holland. And for our thousands of ADLS members, the Queen has held a special place. As the sovereign Head of State, she played a pivotal role in our democracy – both constitutionally and ceremonially. She signed bills into law, appointed governments and ministers and appointed judges – albeit this power was most often devolved to her representative in New Zealand, the Governor-General. Our top barristers were QCs and are now KCs. And any prosecutor conducting cases in the name of Regina will now act for Rex.

With this in mind, we assembled to pay our respects.

The toast

“No reira, nga mihi nui, tena koutou katoa. The toast I raise is to the memory of Her Majesty the late Queen Elizabeth II, the Queen.”

Former High Court judge and ombudsman Sir Anand Satyanand spoke with warmth and eloquence as he recounted the Queen’s life. He spoke of her “service, legal authority and centrality of the Commonwealth” which characterised her reign.

Sir Anand spoke not only as a respected member of the profession but as a former Governor-General. This important position is “a symbol of New Zealand’s unity and leadership, the holder of which fulfils constitutional, ceremonial, international and community roles”.

As members of the profession raised their glasses, they were asked to reflect on “her 70 years of wise leadership”. The sentiment was well received.

“It is important to mark this occasion. The Queen announced at 21 that she would devote her life to our service and I feel this remarkable reign and her dedication to that service is indeed worthy of note,” said one attendee. Few of us make such a solemn declaration in our youth and have the tenacity to live by it. The Queen did just that.

“She gave us a sense of continuity. It is only now that I realise the impact of her reign. Everything from the simple change from Queen to King, from QC to KC but also a loss of a figurehead that was always there, even if distantly, that represented a common purpose, a sense of belonging,” said another attendee.

In memory

In 1953, the Queen addressed the commonwealth from Government House in Auckland. In the address she stated, “what is really important to me is that I set out on this journey in order to see as much as possible of the people and countries of the Commonwealth and empire, to learn at first hand something of their triumphs and difficulties and something of their hopes and fears.

“At the same time, I want to show that the Crown is not merely an abstract symbol of our unity but a personal and living bond between you and me.”

We at the ADLS feel she achieved these goals and more.

Lythan Chapman ■

Anya Satyanand and Monique Pearson

Sir Anand Satyanand and Julie-Anne Kincade KC

Featured events

New Zealand lawyers

Annual dinner with the Minister of Immigration

Wednesday 2 November

– 9.30pm

Northern Club,

Princes Street,

New Plymouth sundowner

Thursday 3 November

– 7.30pm

Brougham Street,

New

Annual breakfast with the Attorney-General

Friday 2 December

7.15am – 8.30am

Rydges Auckland,

Federal Street,

CBD

November

Leading in law series

Workshop (online)

4 CPD hrs

Thursday 20 October

9am – 1.15pm

Price from $400 +GST

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

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.

OUT MORE

Health and safety case law update

Webinar 1 CPD hr

Tuesday 25 October

12pm – 1pm

Price from $80 +GST

Presenters Joseph Lill, senior associate, Chapman Tripp; Grant Nicholson, partner, Anthony Harper and Angus Everett, senior solicitor, WorkSafe

Get up-to-speed with recent and key workplace health and safety case law. This webinar will summarise recent noteworthy cases and current trends and covers pretrial applications, defended hearings and penalties.

Purchase price allocation rules

Webinar 1 CPD hour

Tuesday 1 November 12pm – 1pm

Price from $80 +GST

Presenters Helen Johnson, partner, PwC Legal; Iain McConville, technical specialist, Customer Compliance Services – Business, Inland Revenue; Nico Murray, customer compliance specialist, Customer Compliance Services –Business, Inland Revenue

These rules have tax implications for vendors and purchasers in property and business transactions and in situations where it may not be obvious that a purchase price allocation is required. Legal advisors need to fully understand these rules and be able to advise clients when deals are being negotiated and agreements are being signed.

Avoiding pitfalls with business sales

In Person | Livestream

2 CPD hrs

Tuesday 8 November

4pm – 6.15pm

Price from $140 +GST

Presenters Shane Hussey, director and principal, Hussey & Co and Sian Heppleston, analyst, Hussey & Co

Whether it is the sale of a business, the transfer of a business as part of a relationship property settlement or the execution of an estate, there are pitfalls when advising on transactions which lead to the sale of all, or part of, an interest in a business and which impact on the value of a business. Learn how to avoid these issues.

IN PERSON

Workplace mental health

Livestream | In Person

1.5 CPD hrs

Monday 14 November 4pm – 5.30pm

Price $110 +GST

Presenters John Rooney; Myriam Mitchell and Dr John Fitzgerald

With the spotlight on mental wellbeing at work, employers must understand their obligations under the Health and Safety at Work Act 2015 (HSWA). This seminar will offer insights and practical guidance on how best to advise clients. Chair Tim Clarke, partner, Bell Gully

IN PERSON

Partnership law

Webinar 1 CPD hr

Tuesday 15 November 12 pm – 1pm

Price from $80 +GST Presenters Gerard Dale, partner, Dentons Kensington Swan and Sarah Gibbs, senior associate, Dentons Kensington Swan

Is the partnership structure still relevant in the 21st century? What is a partnership and how do you know if you’re in one? How do you establish a partnership and what are the common issues and pain points?

Personal effectiveness workshop

Online workshop

4 CPD hrs

Thursday 17 November

9am – 1.15pm

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

Back by popular demand, this workshop offers a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

Limited spaces available

FIND OUT MORE

Advanced parole law

Live Stream | In Person

1.5 CPD hours

Monday 21 November

4.30pm – 6pm

Presenters Emma Priest, barrister, Blackstone Chambers and Hannah Kim, barrister

Parole law is a growth area, as more prisoners are wanting legal representation when seeking parole. Broaden your skills with this practical session on advanced parole law and complex applications.

Chair Sir Ron Young, chairperson NZ Parole Board

IN PERSON

Managing IP disputes

Livestream | In Person

1.5 CPD hrs

Tuesday 22 November

4pm – 5.30pm

Presenters Jane Glover, barrister, Sangro Chambers and Kevin Glover, barrister, Shortland Chambers

Making restorative justice work

Livestream | In Person

2 CPD hrs

Tuesday 29 November

4pm – 6.15pm

Price from $140 +GST

Presenters Samira Taghavi; Helen Bowen; Colin Rose and Jean Staples

LIVESTREAM

Decisions made at the outset of an intellectual property dispute can have a strong bearing on how the case is ultimately resolved. This seminar will outline typical scenarios and how you can be an effective first port of call for your prospective plaintiff or defendant client.

IN PERSON

LIVESTREAM

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

IN PERSON

Advanced Parole Law and Practice

Monday 21 November | In Person & Live Stream | 1.5 CPD hours

Visit adls.org.nz for more information.

LIVESTREAM

minority) equity interests “in difficult, challenging or even compromising ethical positions”.

One committee suggested that non-lawyer owners could be forbidden from becoming involved in the operational decisions of the firm and directorships could be restricted to lawyers.

But some committees were open to exploring the idea of alternative structures. One said the current options to raise capital within the legal industry were dysfunctional and inefficient.

Another practitioner, described as “very senior”, said the significant level of capital investment required, particularly in technology, meant the current ban on non-lawyers in law firms was outdated. “Other professions, such as accountants, have evolved with the times,” the submission said.

Another committee member was interested in the option of listing law firms on the NZ Stock Exchange and raising funds by issuing debentures.

Others noted the de facto approach in multidisciplinary practices such as PwC with PwC Legal and EY with EY Law, where the law firms exist as separate entities. But only one committee supported the idea of allowing multidisciplinary practices for lawyers.

The main concern is that multidisciplinary practices often have profitmaximisation as their main aim. “This can conflict with law practitioners’ professional obligations and put lawyers in a difficult, compromising position.”

But the committee that took a different view and is open to the idea of multidisciplinary practices sees huge synergy with law and accounting firms. Without multidisciplinary practices, this committee warned, some niche and technical areas of practice, such as tax law, could face succession issues in 20 years’ time.

Diversity

The submission said further study is needed to fully understand why junior female lawyers are leaving the profession in the early stages of their careers. This has led to a gender bias of 7:3 (male to female) at advanced levels of practice.

The committees also noted cultural change was needed within the profession and the courts to make legal practice more inclusive and family-friendly.

“This may involve specific/targeted cultural and diversity training, an awareness of how timetabling decisions in the courts and tribunals may impact on practitioners with family responsibilities and an increased adoption of AVL/ VMR as opposed to requiring counsel to appear in person.” ■

Litigation and Dispute support – taxation

Are you requiring professional and technical support for client litigation or disputes involving tax matters? We can help.

Contact Anne Edgar at: anne.edgar@shellockconsulting.co.nz or 021 037 8150

Independent, efficient, experienced and confidential www.shellockconsulting.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)

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

BULLEN Karen

• Late of 56 Ian Sage Avenue, Long Bay, Auckland

• Married

• Accountant

• Aged 56 / Died 13’09’22

DOWRICK Peter Winton

• Late of 16 Shelley Beach Road, Waiheke Island, Auckland

• Marriage dissolved

• Professor of psychology

• Aged 77 / Died 01’04’22

LANE

David Brian

• Late of 2/35A Koraha Street,

Remuera, Auckland

• Single

• Retired engineer

• Aged 69 / Died 17’09’22

NIUTAO

Christina Tina

• Late of 12 Vimy Place, Mangere, Auckland

• Married

• Sewing machinist

• Aged 64 / Died 26’05’21

SIMPSON

Ross John

• Late of 22 Waerenga Road, Te Kauwhata

• Greenstone carver

• Aged 34 / Died 06’07’19

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