LawNews - Issue 39

NEWS Nov 5, 2021 Issue 39

Inside ■ EMPLOYMENT

Could your firm be sued for mandating vaccines?

P03-05

■ POLITICS

Three Waters: govt opts out of democratic process P08-09

Employers and unions

DEMAND VACCINE CERTAINTY adls.org.nz

Contents 03-05 MANDATES LITIGATION COVID-19

‘Nobody wants to be a test case.’

Employers and unions call for assurances and certainty from the government on vaccinations

06 BALLOT DEADLINE ASSET

ADLS urges members to vote on the proposed sale of Chancery Chambers

07 EXEMPTION ISOLATION JUDICIAL REVIEW

MIQ exemptions: another High Court ruling against the govt

08-09 ROYALTIES VETO TREATY

Three Waters: broken promises and a public furore 06

12-13 FEATURED CPD

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

To subscribe, please email reception@adls.org.nz.

14 CPD IN BRIEF

15 EVENTS

ADLS’ plan to sell Chancery Chambers is being put to the vote

02

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

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Nov 5 2021 Issue 39

EMPLOYMENT LAW

Bosses, unions demand clarity from govt on vaccination mandates Employers want a law that says if mandates have been given for a vaccine certificate, then an individual cannot bring a personal grievance or a privacy claim

Diana Clement As Deputy Prime Minister Grant Robertson puts it, covid-19 is taking employment law to places it has never been before.

He knows both employers and employees are demanding certainty about mandates and vaccinations in order to avoid lawsuits but says “this is a very new area of employment law and we want to be careful about the way we move through that”.

Both employers and unions just want the government to get on with it. Business owners need assurances that they won’t find themselves in court for enforcing compulsory vaccination while the unions say they’ll resist any moves by employers to unilaterally impose mandatory vaccines.

The government late last month mandated a ‘no-jab nojob’ policy for ‘close-contact’ sectors such as healthcare and education and for large events, but employers in other sectors say they lack clarity about how far they can go in requiring employees and customers to be vaccinated. Specific guidance from the government is needed, they say.

At present, mandated vaccination for workplaces will extend to only about 40% of businesses. Legislation is due to be unveiled on November 11.

But employers in the 60% of workplaces that fall outside the mandate will find themselves between a rock and hard place, required by the Health and Safety at Work Act 2015 (HSWA), to keep employees safe on one hand, but having also to juggle the competing (and sometimes conflicting) requirements of the Employment Relations Act 2000 (ERA), the Privacy Act 2020, the Human Rights Act 1993 (HRA) and the New Zealand Bill of Rights Act 1990 (BORA).

The stakes are high. No employer wants to be the test case that ends up in the Employment Court but some inevitably will, say employment lawyers.

Peter Kiely

Paul Mackay

Personal grievances Employment lawyer Peter Kiely, a partner at Kiely Thompson Caisley, says his clients need clarity. “They want a law that says if mandates have been given for a vaccine certificate, then an individual cannot bring a personal grievance or a privacy claim.”

It’s not just a black and white situation of workers needing to be vaccinated to do their job. The challenges for employers are numerous, adds Paul Mackay, manager Employment Relations Policy at BusinessNZ. “Employees may be reluctant to work with unvaccinated colleagues or customers,” Mackay says. “Customers and suppliers may not want to interact with unvaccinated workers.”

These comprise a combination of conflicting rights and fears. “Rights not to have private information disclosed to others without permission; fears of exposure to harm because of a lack of information about the status of those with whom people will come into contact.”

Last week the government announced it would extend mandatory vaccination to workers at businesses where customers need to show covid-19 vaccination certificates.

Employers in mandated sectors will not have the same opportunities to reopen if their employees are not vaccinated.

Unvaccinated workers in roles requiring vaccination will be given a four-week notice period to get vaccinated before employment can be terminated.

But even for mandated businesses, the legislation will not be a get-out-of-jail card for employers who feel the need to ditch unvaccinated employees. Without seeing ink on paper, employment lawyers say the rules the government has outlined won’t be foolproof. And, as Kiely points out, every case where an employee is dismissed is fact-specific,.

The trickiest problems will probably not arise in the mandated businesses although as NZ Customs, Auckland International Airport Ltd and the Civil Aviation Authority have found, employees will file personal grievance cases against them if they are sacked for refusing to be vaccinated.

The bigger issue will be the other 60% of businesses that have to date been given no certainty from the government but still need to provide a safe workplace for employees.

Risk assessment Minister of Workplace Relations and Safety Michael Wood said last week that the new legislation would introduce a clearer and simplified risk assessment process for employers to follow when deciding whether they can require vaccination for different types of work.

But Russell McVeagh partner Kylie Dunn says it’s not yet clear whether that simplified risk assessment will extend to the

Continued on page 04 03

Continued from page 03

60% of workplaces not covered by mandates. “What I don’t know is whether it’ll be segmented further and whether there might be, for example, additional groups brought into the vaccine mandate.”

Workplaces in both groups will need to carry out safety risk assessments to decide which roles can be performed only by vaccinated workers, says Jennifer Mills, employment lawyer at Jennifer Mills & Associates. Risk assessments already carried out under the existing rules can be relied upon, she says.

Mills says until the government provides the draft bill, employers ought to consider: ■ the likelihood of the workers being exposed to covid-19 while performing a role; ■ the potential consequences or harm arising from covid-19; and ■ identifying and assessing any further covid-19 control mechanisms that could be put in place to reduce the risks.

But no matter how diligent an employer might be with this risk assessment, there is no guarantee that will protect the business from personal grievance claims.

Mills says in the event of a personal grievance claim by the employee, the onus will be on the employer to show that it has acted fairly and reasonably, both substantively and procedurally, in all the circumstances at the time.

Health and Safety at Work Act When it comes to justifiably dismissing unvaccinated employees, the biggest issue for employers and their lawyers is that none of the array of laws they must comply with trumps the others.

Other than the Privacy Act, the relevant laws largely have flexible concepts, says Dunn. But Mills argues that the HSWA comes closest to being ‘paramount’.

Employers have obligations under the HSWA to do everything they can to reduce risks to staff. If there is a high risk of contracting covid-19, even employers in unmandated organisations might conclude that the role needs to be done by a vaccinated person.

If they can’t amend the worker’s tasks or offer redeployment, employers may have to consider termination after due process, which includes risk assessments in consultation with employees and unions.

Mackay adds that while this is a significant obligation, it is not so absolute as to require an employer to prevent anything harmful from ever happening. “Employers therefore must consider where the risks lie and how significant they are.”

Workplace legislation may appear to be conflicting, says Mills, but employers can navigate the framework and implement mandatory vaccine policies without running afoul of their legal obligations under the different pieces of legislation.

“In our view, the legal obligations imposed on employers under the HSWA are paramount and provide that employers 04

Kylie Dunn

ought to implement and assess the covid-19 risks in their workplace. However, this does not mean that they ought to ignore their legal duties under other legislation.”

Mills says employers will have a strong argument for enforcing mandatory vaccinations as part of their health and safety response as the Delta variant has significantly reduced the efficacy of other control mechanisms.

Workers also have a duty under to HSWA to take reasonable care that their acts or omissions do not adversely affect the health and safety of others, she says. “This extends to complying with the control measures identified in the employer’s risk assessment.”

Privacy Act

Jennifer Mills

If an employee does not disclose his or her vaccination status, an employer can assume they are unvaccinated for health and safety reasons

Under the Privacy Act, a person’s vaccination status is personal information that can’t be collected unless, says Mills, for a lawful purpose connected with a function or an activity of the entity and collecting the information is reasonably necessary for that purpose.

The legitimacy could include preparing contingency plans in the event of a covid-19 outbreak in the workplace or protecting vulnerable employees who cannot receive the vaccination.

If an employee does not disclose his or her vaccination status, an employer can assume they are unvaccinated for health and safety reasons, adds Mills.

Employment Relations Act The ERA requires employers to act in good faith and to follow a fair and reasonable process in taking any action against employees who might object to, or defy, a direction to get vaccinated or produce proof of vaccination, says Mackay.

“Employees are required to obey all lawful and reasonable instructions given to them by their employer. Even if the instruction is lawful and reasonable, any decision to discipline the employee would have to be one that a fair and reasonable employer could make in the circumstances.

“Failure to comply is typically construed as misconduct but will usually justify dismissal only at the severe end of the misconduct scale.”

Human Rights Act Employees who take a personal grievance case on the grounds of their vaccination status could argue that they have been discriminated against because of a medical condition, says Kiely, the medical condition being not vaccinated.

Mills adds that employers have an obligation under the HRA to make reasonable efforts to accommodate the employee’s decision not to vaccinate because of religious belief, disability or medical condition. This would require employers to search for ways to accommodate the employee, such as redeployment.

“However, we note that the Human Rights Act provides an exception for discrimination on the grounds of disability where

Continued on page 04

Nov 5 2021 Issue 39

FIRST Union’s general secretary, Dennis Maga, interview by John Campbell on Breakfast last week said he was concerned about non-mandated employers unilaterally introducing vaccine mandates where they were not justified – for example, where there is no interaction with customers.

Employers who acted unilaterally would open themselves up to litigation, he said. “We want the government to step in.”

Legal challenges

A question mark hangs over businesses not covered by the govt’s vaccine mandates

Continued from page 04

there is a risk that allowing the individual to work would cause a risk of harm to that person or to others, including the risk of infecting others with an illness, and it is not reasonable to take that risk.”

Bill of Rights Act The other Act that also comes into play for public employees is the BORA. It states that everyone has the right to refuse to undergo any medical treatment. Mackay points out that s 5 is the only statutory basis on which the right to refuse medical treatment may be overridden.

“That said, the government has exercised its right to override the BORA via Public Health Orders issued under the Health Act to require [mandated] workers to be vaccinated,” he says.

It applies only in the public sector and there is case law that indicates, even within the public sector, it applies only to public-related decisions and not commercial relationships like employment, says Dunn.

“The Bill of Rights doesn’t directly apply to all of the relationships we’re talking about. But I think what’s fair and reasonable in an employment sense will include the right not to be forced to undergo medical treatment.”

She adds, however, that no one is forcing employees to get vaccinated. “It’s just your decision about whether to get vaccinated might have consequences for your employment.”

Unions The unions, of course, are concerned, although they walk a tightrope between not wanting members to lose their jobs for being unvaccinated on the one hand but wanting members kept safe on the other.

No matter how diligent an employer might be with this risk assessment, there is no guarantee that will protect the business from personal grievance claims

Photo: Phil Walter / Staff / Getty Images

Whatever happens, one thing is guaranteed: there will be more work for employment lawyers and litigators.

Mackay notes there is no case law directly on the topic of vaccination apart from that relating to the employees dismissed under the public health orders.

Dunn says two of the groups of workers dismissed under the order were public employees at Customs and CAA and the third, Auckland International Airport, was a privately-owned organisation. “The same issues are arising in those three cases and they’re around the particular scope of the order,” she says.

All three groups of workers failed to be reinstated in their first attempt at the Employment Relations Authority. Employers need to note that the decisions were interim, Kiely says.

Two of the terminated groups of workers have appealed and, so far, two groups have sought judicial review. One of groups seeking judicial review has failed and the second review is in progress.

As the deadlines for health, education and other mandated workers to be vaccinated pass and employees are dismissed, more challenges are likely.

Clients on premises Russell McVeagh was one of the first organisations outside of the mandates to go public with its vaccine policy, which states that from November 1 only those who are double-jabbed can enter its offices.

“I don’t think our intention was necessarily to move first,” says Dunn. “It was the sorts of discussions we were having onsite [and] the overwhelming feedback we were getting from our people, [who] wanted certainty.”

Even before the latest lockdown, the firm had been discussing how best to accommodate unvaccinated people. “I think the way Delta’s spread so quickly shifted that discussion to ‘what about vaccinated people who may not want to work around, or might have concerns about working around, unvaccinated people?’.

“This will evolve over time,” she adds. “Considerations for a vaccination policy now are different to what they were two weeks ago and different to what they were two weeks before that.”

The easiest situation for employers will be taking on new employees, Mackay says. But as with all employment situations, there are some fish-hooks. The situation is analogous to the existing ability to require potential employees to be drug-tested before they are employed, particularly in safety-sensitive areas, he says. ■

05

ADLS COUNCIL

ADLS Council recommends sale of Chancery Chambers The building is iconic and welllocated, but it can no longer be held in the medium and long term as a passive investment

Marie Dyhrberg QC

06

building on the market,” Dyhrberg says. “Over the past ADLS members are being urged to vote in favour of selling year, the ADLS Council has engaged with property and the society’s heritage building, Chancery Chambers, in heritage experts, including ADLS property law specialists, downtown Auckland. to gain as clear an understanding as possible of the likely Last Friday, ADLS President Marie Dyhrberg QC wrote impacts of our continued ownership. They to members, saying that after extensive have told us that the building is iconic and investigation of all options, the ADLS The likely well-located, but it can no longer be held Council was recommending that the in the medium and long term as a passive building be sold. These investigations complexity of investment. included an independent assessment by a the restoration “The experts says the building needs leading Auckland commercial lawyer. project, coupled the right owner because it has reached The matter will now be put to the vote a point where it needs to be refurbished with the ballot running from 4 November with high until Friday 19 November. property values and repositioned in the market, requiring substantial investment and expertise. If we Dyhrberg says the costs of refurbishing in the Auckland were to continue to own it, the challenges and strengthening to bring the building up commercial of the project are outside our skill base and to new earthquake codes require an owner the costs are likely to be prohibitive for with the resources and expertise to manage market, make ADLS members.” the project. this the right Dyhrberg says if members support the “Places like the Britomart Precinct time to sell sale, ADLS will contract commercial real show what can be accomplished by a estate experts to manage a competitive specialist heritage building owner with the and transparent tender process to achieve right expertise and balance sheet. That the best possible price. Council would consider either is not ADLS, whose role is to support and advocate for our remaining as a tenant after a sale, or purchasing another members. building in Auckland.

“Chancery Chambers is an exceptional heritage asset “The current book value of Chancery Chambers which we all want to see protected and enhanced. The represents around three-quarters of members’ funds. After likely complexity of the restoration project, coupled with a sale, we would look at a more diversified asset base, high property values in the Auckland commercial market, potentially including the purchase of a smaller commercial make this the right time to sell. That is why, reluctantly building in the central business district which could provide a because it has been home for ADLS for three decades, new office space for ADLS.” ■ we are recommending to our members that we put the

Nov 5 2021 Issue 39

COVID-19/JUDICIAL REVIEW

High Court dissects

ministry’s

MIQ exemption process

In October 2021, the covid-19 circumstances are very different from those in September 2020 when the MIQ health order – upon which exemption decisions are still made – came into force

Jenni McManus MBIE’s processes for exempting travellers from 14 days in MIQ when entering New Zealand have been put under the microscope – and found seriously wanting – by a High Court judge.

Delivering his reasons last week for ordering the Ministry of Business, Innovation and Employment to reconsider an application by Auckland businessman Murray Bolton and his partner to self-isolate at their Herne Bay home after travelling to a board meeting in Boston, Justice Geoffrey Venning said MBIE made an error of law when it denied Bolton’s application and ignored key parts of his proposal.

The judge set aside MBIE’s decision, ordering it to rethink the application.

Among other relevant considerations, MBIE is expressly required to consider Bolton’s need to fly to the US, the need for him to enjoy the rights conferred by s 18 of the Bill of Rights Act 1990 (the freedom-of-movement section) and, given his age, the need for him to avoid contracting covid-19 in an MIQ facility.

MBIE must now balance all these considerations against the degree of risk to the community if Bolton and his partner were to isolate at home. It must also take into account their vaccination status (both are double-jabbed) and the circumstances in the community.

The judgment provides a rare insight into the thinking and processes of MBIE’s decision-makers and spells out what the courts might expect if similar cases were to come before them in the future.

MBIE told the court that its

Justice Venning noted there was no such language in the clause Milne was relying on and ‘that alone is an error of law sufficient to vitiate the decision’

interpretation of the law meant it was required to consider only one thing: whether MIQ was capable of meeting Bolton’s health needs. If the answer was yes, the decision-maker was not required to make any further inquiry or take any other considerations into account.

Wrong question That was incorrect, Justice Venning said. Effectively, MBIE’s decisionmaker, Associate Deputy Secretary Andrew Milne, had asked himself the wrong question. Rather than basing his decision on whether MIQ could handle Bolton’s medical needs, Milne was required to consider whether, in the circumstances, Bolton’s other needs would permit him to isolate somewhere other than MIQ. Milne could not confine his decisionmaking power to health issues, the judge said. This was too narrow an interpretation of the health order under-pinning MIQ and the exemption system, and it meant MBIE had failed to undertake a proportionality or balancing exercise. Properly construed, wording of the health order requires the decision-maker to consider other factors. For example, MBIE had failed to consider whether the precautions

Bolton proposed – such as flying to the US in a private jet rather than using a commercial airline and isolating at his home in a gated community when he returned to New Zealand – would adequately mitigate the risk of transmitting covid-19 in the community.

“It was required to consider the other needs raised by the applicant,” Justice Venning said.

Milne also made an error of law by confusing the wording of two clauses (12 and 14) in the health order. And he was wrong in telling Bolton that exemptions could be made only in “exceptional circumstances”. Justice Venning noted there was no such language in the clause Milne was relying on and “that alone is an error of law sufficient to vitiate the decision”.

In fact, MBIE did not even consider Bolton’s proposal for self-isolation in any detail, nor the rigorous precautions he proposed. Nor did the decision-maker consider economic factors, including the potential benefits of Bolton’s business to the New Zealand economy.

Changed context Also not considered was the context of Bolton’s application, Justice Venning said. In October 2021, the covid-19 circumstances are very

different from those in September 2020 when the MIQ health order – upon which exemption decisions are still made – came into force.

“At that time, few New Zealanders were vaccinated, the country was pursuing an elimination strategy and there was no covid-19 in the community,” the judge said. “The situation in New Zealand is now quite different to what it was when the heal th order was made.” Hundreds of people with covid-19 are now isolating at home rather than in government-run quarantine centres.

Bolton and his partner, Wati Zoing, applied for judicial review after MBIE turned down their application for self-isolation. The respondents were MBIE’s chief executive Carolyn Tremain, Director-General of Health Ashley Bloomfield and Covid-19 Minister Chris Hipkins.

Bolton, aged 73, was formerly Ron Brierley’s chief of operations in New Zealand and, later, CEO of the Brierleyowned Skellerup group. Since 1997 he has been involved in direct investment into emerging New Zealand companies.

One of them, Transaction Services Group, recently merged with USbased company Clearant to form Xplor Industries. The merged group, which has 180 employees in New Zealand and annual revenues of between $30 million and $50m, is planning to list on the New York Stock Exchange or Nasdaq. Bolton is heading to Boston next week for a two-day board meeting – a meeting which Justice Venning accepted could not be done virtually – to discuss the planned listing. ■ 07

POLITICS/OPINION

The puzzling

politics of

Three Waters

To dismiss as inconsequential the unequivocal public rejection of a hugely contentious government policy would be extremely unwise

It is the politics of the Three Waters project that puzzles New Zealanders the most.

Governments do not lightly renege on their promises, especially those given with so much public fanfare that any subsequent reversal is impossible to conceal. And yet, this is precisely what the Local Government Minister, Nanaia Mahuta, has done. She promised New Zealand’s local authorities that they could opt-out of her Three Waters (drinking water, storm water, waste water) project, and then, when they showed every sign of doing exactly that, she told them they couldn’t.

The resulting furore was entirely predictable – and hence avoidable – which only makes the case even more puzzling.

Between the minister’s decision to renege on her promise, and the projected coming into force of the Three Waters reforms in 2024, New Zealanders will be given two opportunities to deliver their judgment on the minister’s actions.

The first will be at the local government elections of 2022; the second, at the general election of 2023. That the minister is willing to face these tests is remarkable. That her Cabinet colleagues are willing to do the same is astonishing.

What will Prime Minister Jacinda Ardern do if next year’s local government elections are transformed into a referendum on Three Waters and its opponents up and down the country emerge victorious? All that is required to secure such an outcome is to ask every candidate where they stand.

If public opposition grows to the expected proportions, then any candidate registering support for the proposal will face an uphill struggle to hold or win office. If the final results indicate a wholesale rejection of Three Waters supporters 08

Photo: swissmediavision / Getty Images

Chris Trotter

across the country, how will the Prime Minister respond?

To dismiss as inconsequential the unequivocal public rejection of a hugely contentious government policy would be extremely unwise. It would play straight into the hands of the Opposition parties, who would represent the government’s refusal to accept the voters’ judgment as proof of their contention that it has abandoned democracy for something else – something much more sinister.

By ignoring the outcome of the first electoral test, the

Continued on page 09

Chris Trotter

Nov 5 2021 Issue 39

so fortuitously aligned for Māori to recover their birth right?

Surely, at such a time, the watchword must be ‘boldness’, not ‘caution’?

Even among Labour’s Pakeha MPs there may be a government would, thus, be increasing the likelihood of an sense that ‘this is the time’. A whole new generation of New even more catastrophic outcome in the second.

Zealanders has grown up for whom the treaty is more than Feeding into the Opposition parties’ argument (even a mere rhetorical flourish. In their coverage of Three Waters, assuming it is not a central feature of it) will be a powerful younger journalists in particular are not as willing to play the undercurrent of racial prejudice. race card as their predecessors. Quite the reverse, in fact.

Racial skirmishing As Jack Tame, writing for NZME, puts it: “[T]his is risky, but for all of those who say the Three Waters reforms are Nanaia Mahuta has so far proved utterly immovable on the anti-democratic, it’s worth remembering it’s democracy that question of significant iwi participation in the governance got us in this pickle in the first place. We elect our councils. arrangements of the four entities charged with delivering the For decades, many councils around New Zealand haven’t Three Waters objectives. properly invested in water infrastructure With many of those objecting to the because voters whinge and moan over reforms characterising this aspect of the Translating that the subsequent rates increases, even as entities’ governance arrangements as an requirement homeowners watch their properties balloon attempt to equip Māori representatives in value.” with full veto powers, the scope for racial into some It just might be that the politics of Three skirmishing is considerable. form of water Waters are nowhere near as scary as many It gets worse. Contemporary politics is royalty, payable conservative commentators suggest. Voter increasingly being played out on the pages turnout at local government elections is of social media. As the covid-19 pandemic to tangata notoriously low, primarily because voter has made depressingly clear, these whenua, would interest isn’t high. Let the opponents of platforms lend themselves to the rapid be a powerful Three Waters do their worst. Who’s going dissemination and, sadly, acceptance of the temptation – to notice? most lurid conspiracy theories.

Indeed, it may well prove easier for In this context, Mahuta’s obduracy over especially to the Labour government to rark up public Three Waters is certain to be exploited. Her those in charge opinion against the manifest failings of plans will be presented as proof that the of entities district, city and regional councillors than controversial ideas contained in He Puapua the other way around. Likewise, in a general – the government-commissioned report hermetically election where the campaigning of the into giving effect to the United Nations sealed-off from right-wing parties is seen to be grounded Declaration on the Rights of Indigenous democratic in racism. After all, by 2023 Don Brash’s (in) Peoples – are being implemented without intrusion famous Orewa speech will be almost two regard for majority opinion. decades old.

That the vexed question of ‘who Besides, on the vexed question of owns the water?’ has yet to be answered governance, the art of the possible may definitively in the context of te Tiriti o yet dictate a softening of the minister’s Waitangi (although the Waitangi Tribunal obduracy. Since this would almost certainly come at the has made it clear that any answer which does not include expense of Māori aspirations, it will be interesting to observe Māori is a wrong answer) muddies the Three Waters project Mahuta’s reaction. (Would being asked to back down on still further.

Three Waters be her foreshore and seabed moment?) Also, New generation there is the strong Three Waters regulatory body currently being touted by Commerce and Consumer Affairs Minister Mahuta’s legislation will require those administering the David Clark. new system to give effect to treaty principles. Translating A softening of the Three Waters governance that requirement into some form of water royalty, payable to tangata whenua, would be a powerful temptation – especially arrangements, complemented by the promise of a tough oversight regime. Maybe the politics of the Three Waters to those in charge of entities hermetically sealed-off from project aren’t so puzzling after all? ■ democratic intrusion.

If such a cultural prize were indeed in the offing for Mahuta and her colleagues in Labour’s Māori caucus, then obduracy, Chris Trotter is a political writer and commentator of far from being a bug in the Three Waters project, would more than 30 years’ experience. He is the editor of the become a crucial feature. When again will the political stars be Bowalley Rd blog ■

Between the minister’s decision to renege on her promise, and the projected coming into force of the Three Waters reforms in 2024, New Zealanders will be given two opportunities to deliver their judgment on the minister’s actions

Photo: Hagen Hopkins / Stringer / Getty Images

Continued from page 08

Nanaia Mahuta

09

ADLS COMMITTEES

Auckland Community Law Centre seeks applications for a Director/Manager and Supervising Lawyer The Auckland Community Law Centre, now located in the inner city, has a long history and deserved reputation for delivering quality legal assistance to the many who are not eligible for legal aid, but cannot afford private legal fees.

It is staffed by seven full-time lawyers, three administration support staff, funded by Ministry of Justice and supported by volunteer lawyer supervisors.

It operates a busy triage programme in response to phoned requests for legal assistance and staffed by senior law students on rotation. Any additional assistance needed is undertaken by the permanent staff. There is a strong staff culture of social justice and supportive interaction.

The Centre is looking for a person with sufficient legal experience to provide leadership and guidance for the permanent staff lawyers and overall supervision of all staff. Also, most importantly, that applicant must have proven management experience.

The Centre has a high-functioning Board comprising practising lawyers and community representatives, and the position reports directly to the Board. The role requires stakeholder relations with the Ministry of Justice, Community Law Centres o Aotearoa and other community law centres, as well as working with senior members of the profession on the future of access to justice, including the judiciary, regulators, professional associations and policy makers.

This position would best fit an experienced practitioner with a practising certificate who has had a successful role in the management of a firm. The division of legal and management roles is expected to be about even and could for example suit someone who is looking to scale back from the demands of private practice. This is a rare and special opportunity: the role is varied and dynamic; the organisational culture is supportive.

This is your opportunity to practise law in a highly rewarding and meaningful way.

Please respond in writing to jo@aclc.org.nz

10

How to handle a virtual admission ceremony In regards to general etiquette, this is a formal event and should be recognised as such QUESTION Dear Newly Suited My friend was admitted to the bar by virtual ceremony last week and I am scheduled to be admitted (also by virtual ceremony) next week.

While it is disappointing that we cannot participate in a formal ceremony, we are both very excited to be admitted to the bar.

However, when I watched my friend being admitted, it seemed somewhat informal. While I appreciate that we do not have to wear wigs, gowns and bibs at the virtual ceremonies, what should we wear? What matters of etiquette should we be conscious of?

Kind regards, #signofthetimes

ANSWER Dear #signofthetimes First, congratulations in advance. We are sorry it does not have the usual ceremony and celebration but being admitted to the bar is still a momentous day and you should be very proud.

The High Court has issued guidelines which provide that if you are unable to wear a gown, bib and wig, you and your moving counsel should wear formal business attire.

We suggest this means a dark-coloured blazer, white shirt or blouse and dark dress pants/skirt, even though the camera may not show these. Dress as if you were attending court.

In regards to general etiquette, this is a formal event and should be recognised as such. All those attending should remain seated, keep their microphones on mute (unless addressing the court), focus on the ceremony rather than other people or things occurring around you and remain professional at all times. Again, think about how you might act if you were in court.

We wish you all the best for your ceremony, and welcome you to the profession.

Kind regards, Newly Suited Committee ■

Nov 5 2021 Issue 39

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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 DX CP24001, Auckland 1140

MILNE Kenneth McLean • Late of 7 Macky Avenue, Devonport, Auckland • Married • Retired • Aged 93 / Died 10’10’21

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

(09) 303 5270

COMMERCIAL / PROPERTY LAWYER INTERESTED IN FORESTRY & CLIMATE CHANGE – AUCKLAND  Do you want to contribute to NZ’s efforts to combat climate change?  Do you want to work on pioneering projects for some of NZ’s largest forest owners?

You  5 – 10 years’ PQE with a current NZ practising certificate  Experience in commercial / property law, ideally with forestry industry experience  Experience in climate change laws, including the CCRA  Strong drafting, transactional and statutory interpretation skills The Role Forestry plays a key role in NZ’s economy and in its response to the climate crisis, including commercial rotational forestry and carbon forestry.

Carbon forestry projects are happening in a dynamic regulatory environment, so you need strong statutory interpretation and analytical skills. Ideally you will have a good working knowledge of the CCRA, but if you have the rights skills, we can teach you the specifics.

The work is diverse, and we work closely with other industry experts. Our work includes corporate and structuring advice, regulatory advice, M&A, property transactions of all types including purchases, leases and forestry rights, NZU sales contracts, general contracting and strategic advice.

Contact Craig Nelson has over 20 years’ experience as a commercial lawyer acting for a wide range of clients across a wide range of industries, including a growing forestry / climate change practice.

Craig Nelson BCom LLB 027 808 2461 | craig@baylawoffice.co.nz

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FEATURED CPD

Metropolitan Glass: new guidance on discretionary payments HOLIDAY PAY BONUS

Webinar 1 hr Monday 15 November 12pm – 1pm Presenter Scott Worthy, Partner, Kiely Thompson Caisley

For the first time, the Court of Appeal has interpreted s 14 of the Holidays Act which governs discretionary payments. This webinar explores the court’s landmark decision in Metropolitan Glass & Glazing Limited v Labour Inspector which affects all employers operating incentive or bonus schemes and highlights the important issues that all lawyers advising in this space should know about.

FIND OUT MORE

FINAL NOTICE

Burning Issues Forum 2021 LEGISLATION JURISDICTION COVID-19

Forum 2 hrs Tuesday 9 November 4pm – 6pm Presenters Tim Clarke, partner, Bell Gully; Gillian Service, partner, MinterEllisonRuddWatts; Bronwen Newcombe, director, Davenports Law and Shelley Kopu, principal, Shelley Kopu Law Chair Rachael Judge, senior associate, Simpson Grierson

Cast aside your scarf and hat and warm yourself at the boiling vat that is the Burning Issues Forum 2021. Come see the flickering fangs of orange torch the scorching cauldron’s bottom! Legislation, the expanded jurisdiction of the Authority, and living and working with COVID-19 now and into 2022 are some of the scalding hot topics that will be served, crackling and steaming, at this, our annual inferno.

FIND OUT MORE

FINAL NOTICE

PROCESS PRACTICE PERSPECTIVES

Fitness to stand trial: a practical guide Live Stream 2 hrs Thursday 11 November 4pm – 6.15pm Presenters Judge Claire Ryan; Ish Jayanandan; Dr Jeremy Skipworth; Sally Kedge and Dr Kelly Howard Commentator Justice Collins Chair Marie Dyhrberg QC

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A practical guide to approaching fitness issues: Can you determine when fitness to plead might need to be considered? If you think it might be an issue, do you know what to do and what reports to get? How does the psychiatric report relate to the communication assistant assessment? Do you always need to do both? Which do you do first? What do you do with the reports?

How does the specialist CP(MIP) court work? This seminar will address these and many other questions in this key area.

LIVE STREAM

Nov 5 2021 Issue 39

adls.org.nz/cpd

Towards sustainability: the role of the law firm

In Person | Live Stream 2 hrs Tuesday 16 November 4pm – 6.15pm Presenters Debra Dorrington; Nicole Xanthopol; Mary Heath and Hugo Miller

MEANING RISKS OPPORTUNITIES

IN PERSON

cpd@adls.org.nz

09 303 5278

A thriving, resilient, safe and ultimately sustainable world is an enticing prospect.

It’s also an imperative. What responsibilities do lawyers and law firms have to help bring about that future?

This session is aimed at all legal professionals, particularly partners/ principals, directors and practice/office managers in small to medium sized firms, and barristers.

LIVE STREAM

Class and funded litigation CONDUCT CLIENT RESPONSIBILITY

In Person | Live Steam 2 hrs Wednesday 17 November 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

Competition law update

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

IN PERSON

LIVE STREAM

Live Stream 2 CPD hrs Thursday 18 November 4pm – 6.15pm Presenters Alan Lear; Kim Francis; Matthew Sumpter; Sarah Keene; Ben Hamlin Chair Dr Mark Berry, barrister

Focussing on restrictive trade practices, cartels, monopolisation, mergers and acquisitions, dealings with the Commerce Commission, and compliance programmes, our panel will use case studies to update you on law changes together with recent cases and examples.

ISSUES CASE LAW EXAMPLES

LIVE STREAM 13

CPD IN BRIEF

Evidence law update

Live Stream 2 CPD hrs Wednesday 1 December 4pm – 6.15pm Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister

Presented by two of the co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the current application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions. This seminar will cover recent developments related to rules of evidence that are of interest to civil and criminal law practitioners.

LIVE STREAM

Leading your career Wellington

Workshop 8 hours Thursday 3 February 8.45am – 5pm Facilitator Miriam Dean QC; Liz Riversdale, Catapult

Exclusively for women lawyers with 6+ years’ PQE. Take charge of your career and realise your potential. This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career.

FIND OUT MORE

Written advocacy: what judges want

Seminar 1.5 hours Tuesday 15 February 4.30pm – 6pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used once you put pen to paper and ways to ascertain whether you’ve achieved your purpose.

Chair Paul David QC, Eldon Chambers

IN PERSON

Immigration policy changes

Live Stream 2 hrs Wednesday 16 February 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law

The immigration landscape is constantly evolving. Add covid-19, lockdowns and border restrictions into the mix and what you get is a recipe for unprecedented change to immigration policy. Perhaps most notable is the introduction of the 2021 ‘one-off’ resident visa which will be tested for the first time in December 2021.

FIND OUT MORE

Property Law Half-Day Conference 2022 - Save the Date Thursday 10 March 2022 | Conference | 4 CPD hours Visit adls.org.nz for more information.

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LIVESTREAM

Nov 5 2021 Issue 39

Events Featured events

Connecting New Zealand Lawyers

Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Friday 11 February, 2022 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

New Plymouth sundowner Thursday 24 February, 2022 5.30pm – 7.30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront Catering sponsored by MAS Learn More

Upcoming February

Friday 11 | Christchurch breakfast with Chief Justice Dame Helen Winkelmann Thursday 24 | New Plymouth sundowner

March

Wednesday 2 | Central Auckland express lunch Wednesday 16 | Newly Suited meet the QCs evening, Auckland Monday 28 | ADLS golf tournament

April

Wednesday 6 | Rotorua lawyers’ lunch

Auckland central express lunch Wednesday 2 March, 2022 1pm – 2pm Glass Goose, 78 Federal Street, Auckland Sponsored by CoLegal Learn More

Newly Suited meet the QCs evening Wednesday 16 March, 2022 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD Learn More

ADLS golf tournament Monday 28 March, 2022 2pm – 8pm Remuera Golf Club, 120 Abbotts Way, Auckland

Soon to be added:

Feb – April Newly Suited ‘saved by the bell’ careers evening, Auckland Immigration law dinner, Auckland May – July Hamilton lawyers’ lunch Auckland breakfast with Chief Justice Dame Helen Winkelmann Employment law dinner South Auckland lawyers’ lunch Breakfast with the Attorney-General, Auckland Hawke’s Bay lawyers’ lunch Henderson lawyers’ lunch, Auckland Tauranga lawyers’ lunch Northland lawyers’ lunch

Book Here

Learn More

events@adls.org.nz

adls.org.nz

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Lawyer – Minimum 8 Years’ PQE – Pukekohe

PRO-ACTIVE SENIOR LAWYER Commercial/Commercial Property, 5 YEARS+ PQE

Are you a lawyer with 8 + Years of experience as a general practitioner seeking a partnership in the next year or two? Do you have a background in property, relationship property, trusts, commercial and estate law?

• Competitive salary and bonus scheme • Newmarket location, modern approach • Opportunity to join a busy boutique legal practice If you have strong commercial and commercial property law experience, excellent communication skills and are ready to take your career to the next level, we want to talk to you. We are seeking a senior lawyer with the right skills, but more importantly the right attitude and drive to join a growing legal business.

Blackhawk Law is a well-established highly profitable small law firm specialising in Property Law looking for someone to join our friendly team. Walk into a great long-term client base ready for you to get started in a location close to Auckland that has experienced nothing but growth in the Property Market, but also offers a lifestyle.

Please apply with CV and academic record to sara@lockhartlegal.co.nz

This business is future-proofed against Covid 19 disruptions with tried, tested and proven systems that allow the business to continue through any alert level seamlessly.

This space could be yours

We are looking for someone with an outgoing friendly nature, leaderships skills and you will need to be willing and capable of working in a team of lovely ladies. You will be very busy but well remunerated with a Salary package that will include bonuses with a view to Partnership in a short time-frame for the right candidate.

LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

If this sounds like the job for you, please forward your application by email to: kim@blackhawklaw.co.nz

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

FPA and TPA Claims: An Update Thursday 24 February | 4.00pm - 6.15pm Presenters: Bill Patterson, Partner, Patterson Hopkins; Greg Kelly, Principal, Greg Kelly Law Limited Chair: Brian Carter, Barrister, Bastion Chambers Focussing on topical issues, emerging trends and key case law, this seminar will provide a valuable update for those working in this area of practice.

T 09 303 5278

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E cpd@adls.org.nz

W adls.org.nz/cpd

Nov 5 2021 Issue 39

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide.

Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

Personal Effectiveness Workshop 2022 Thursday 3 March | 9.00am - 1.15pm Returning for 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. It is facilitated by a leading high-performance consultant.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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