LawNews - Issue 39

NEWS Nov 3, 2023 Issue 39

Inside ■ RIGHTS

Lord Sumption on the rule of law, human rights P06-09

■ TECHNOLOGY

Unpacking the Fair Digital News Bargaining Bill P10-11

Do we need standards around

GREENWASHING? thelawassociation.nz

Contents 03-05 INVESTMENT ESG REGULATOR

Lack of common standards divides investment industry

LawNews is an official publication of The Law Association Inc. Editor: Jenni McManus Publisher: The Law Association Inc.

12-15 TECHNOLOGY DIGITAL REVENUE

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.McManus@thelawassociation.nz

Mainstream media needs a better business model

Reweti Kohere 09 306 3997 Reweti.Kohere@thelawassociation.nz

16-17 COMMITTEES FAMILY JUSTICE

Meet TLA’s Family Law committee convenor, Stuart Cummings

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@thelawassociation.nz All mail to: The Law Association Inc., Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010. PO Box 58, Shortland Street DX CP24001, Auckland 1140, thelawassociation.nz

18-19 FEATURED CPD

21 Photo: Prostock-Studio / Getty Images

EVENTS

Write for LawNews LawNews welcomes commentary and opinion pieces from The Law Association Inc. members and readers. We ask that contributions are civil in tone, factually correct, well-written and logically argued – and fewer than 800 words. And we won’t publish anonymous commentary.

Any questions, please email the editor at: Jenni.McManus@thelawassociation.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 The Law Association Inc., and available by subscription to nonmembers for $140 (plus GST) per year.

To subscribe, please email reception@thelawassociation.nz. ©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of The Law Association Inc. or its members.

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

Cover: VICTOR de SCHWANBERG/ SCIENCE PHOTO LIBRARY /Getty Images

02

Nov 3, 2023 Issue 39

Photo: Travelstoxphoto / Getty Images

FINANCIAL SERVICES

Does the market need standards around greenwashing?

Reweti Kohere

How can the consumers have any confidence in the claim that something is ‘green’ or ‘ethical’ or ‘responsible’ or ‘sustainable’ when they don’t really know what they’re referring to?

After more than a year of tough talk and other regulatory sabre-rattling, action from the financial services watchdog to combat “greenwashing” appears to be on hold.

Overseas watchdogs, including the Australian Securities and Investments Commission, are taking enforcement action and the Kiwi investment scene is ripe for an equally serious response. But the Financial Markets Authority (FMA) says it’s not its job to set industry standards for products described as ESG (environmental, social and governance) investments and local fund managers have been left to define ethical investing as they see fit.

Not all have come up to scratch. A recent review by the FMA found the managed fund sector’s disclosure documents were vague and imprecise, with information incomplete, scattered across different places or lacking enough detail. Fund managers have been on notice for the past year that they won’t be given much leeway if they fail to improve their ESG documentation, especially where investors consistently express concern about where their investments are being made and feel increasingly put off by impenetrable industry-speak and confusing information.

Greenwashing – or making false or misleading claims about

a fund or product’s ethical credentials – is a breach of the fair dealing provisions under the Financial Markets Conduct Act 2013. These provisions, among other things, prohibit misleading or deceptive conduct, the making of false or misleading representations and the making of unsubstantiated representations.

Contravening the provisions may give rise to civil liability, including a pecuniary penalty set at whichever is the greatest: the consideration for the contravening transaction, three times the amount of the gain made or loss avoided, or $1 million for individuals and $5m in any other case. The FMA can also make stop orders to ban advertising or other representations that confuse, or are likely to confuse, investors on matters that influence their investment decisions. Compliance failures can attract a fine of up to $300,000.

The regulator in August 2022 was “done signalling, basically” and was sharpening its focus on greenwashing, FMA response and enforcement executive director Paul Gregory told LawNews at the time. But despite the FMA’s chief executive, Samantha Barrass, telling the market at the beginning of 2022 that cracking down on greenwashing was a priority, it’s understood

Continued on page 04 03

Continued from page 03

Paul Gregory

People do have different ethics but it’s far less of an issue than most people think

the regulator has yet to bring a case before the courts.

It did formally warn the Australian arm of US fund giant Vanguard in March this year for failing to disclose within the required time details of infringement notices filed against it in Australia for alleged greenwashing. But the warning was more about procedural oversight rather than greenwashing itself.

Asked whether a court case was imminent, an FMA spokesperson declined to comment, saying fair dealing enforcement action was only part of the regulator’s supervisory work on integrated financial products.

The FMA regularly gathered and assessed information on such offers, the spokesperson said, and checked for compliance.

“To date, this work has resulted in a number of changes to disclosures for new and existing products and is ongoing,” he said.

Hot topic Late in July 2022, the FMA released a review of 14 KiwiSaver and other managed funds, benchmarked against ESG investment guidance the regulator issued back in December 2020. Aimed at checking the industry’s uptake of December 2020 guidance, which included the type of framework the FMA expects managers to use to substantiate on reasonable grounds the claims they’re making about the credentials of their funds, the review found the managed fund sector’s view on disclosure was “immature”.

With “lots of imprecision, lots of vagueness” in the sector, “the reality is that there aren’t any defined standards as to what ‘ethical’ and ‘responsible’ mean and the regulator is the last person who should do that”, Gregory told LawNews last August.

“So, if [fund managers] are doing that, [they] need to be very clear what [they] mean.”

In other words, it is up to individual managers to define “ethical”, “responsible”, “green” and “sustainable” – terms the FMA skips over in favour of using “integrated financial products”, which means financial products incorporating natural, social, human capitals and other non-financial factors alongside the traditional financial factors. In defining these terms, fund managers then determine the level of risk they are willing to accept.

There are broader policy and consumer tailwinds behind the FMA, including those that require claims to be “articulate, accurate and meaningful”, such as mandatory climate reporting standards for large financial organisations, which will come into force from January 2024.

Recent FMA research has shown more than two-thirds (68%) of New Zealand investors prefer their money to be invested ethically and responsibly, although just over a quarter (26%) of that portion have followed through on selecting an

04

ethical fund manager. Complementary qualitative research has also found most investors are overwhelmed by technical jargon and rely on fund managers’ websites and marketing materials, and the opinions of their friends. Others abandon the search altogether, saying it’s too hard.

The regulator has so far concentrated on the hygiene of fund managers’ disclosure practices rather than the veracity of their specific claims. Following the review, which did not investigate whether greenwashing existed in the funds under scrutiny, the FMA said it had communicated its findings to each of the 14 selected funds and, “where appropriate”, offered feedback on how they could improve their disclosure. The FMA concluded all the funds were weak in at least one area of disclosure.

Vacuum of agreed rules The industry appears to be trying to resolve the definitional issue. The local sector is exploring the implementation of its own sustainable finance taxonomy, a system to classify ESG activities and facilitating the allocation of capital to them, with efforts underway by the government and the sustainable finance industry.

The Responsible Investment Association Australasia’s responsible investment certification program also helps investors identify good-quality ESG products and services on both sides of the Tasman. Internationally, in response to the fragmented requirements of different voluntary labels and industry standards, Institutional Shareholder Services’ ESG arm has created a solution to help asset managers and owners meet multiple label, awards and industry standards requirements in a single, regionally focused solution.

LawNews wanted to ask the FMA’s Gregory how ESG funds are being appraised ethically, how their ethical performance can be quantified and compared if no common set of standards exists and why the FMA shouldn’t define ethical investing.

While Gregory wasn’t available to discuss this issue, his recent comments indicate the regulator is unwilling to wade into this debate. Last month, speaking on the FMA’s “5 mins with the FMA” podcast, Gregory said only individuals define ethics.

“Regulators don’t – and they shouldn’t – have a view on what investors and the fund managers they use should and should not invest in…From a regulatory perspective, it’s actually ok for managed funds to do very little in environmental, social and governance areas, provided they don’t pretend or advertise they are doing otherwise. But for investors, of course, that might not be good enough.”

But Barry Coates, founder and CEO of the Mindful Money charity, wants the FMA to get involved in problem definition.

The biggest issue facing the financial sector is figuring out what

Continued on page 05

Nov 3, 2023 Issue 39

Continued from page 04

Samantha Barrass

The law is a natural constraint on how creative people might be in describing what it is they are doing

standards fund managers are being compared to. And yet the lack of defined standards doesn’t sit right, he says.

“How can the consumers have any confidence in the claim that something is ‘green’ or ‘ethical’ or ‘responsible’ or ‘sustainable’ when they don’t really know what they’re referring to? There needs to be a process of defining those standards and [it] should be up to the financial regulator to say, ‘When you use the term “sustainable”, then you are referring to these characteristics of a fund’.”

Coates says a regulator can’t do its job if it’s operating within a vacuum of agreed rules. “How can they do their job and say ‘we’re going to challenge misleading claims’ if they have never really said what it is that’s misleading? The danger is that they then look around and pick somebody and say, ‘We’re going to make an example of you’.”

This ad hoc regulatory approach can send a chilling effect throughout an industry, he says, and it’s already playing out in at least one way. The phenomenon of “greenhushing” – when organisations go radio-silent on their green or ESG credentials to avoid scrutiny, either by under-reporting or hiding their efforts from public view – is becoming more prevalent internationally.

Coates says even the relatively few green funds that are practising what they preach are reluctant to share their stories for fear of being outed.

Beyond acceptable evils One of the main reasons the FMA is refusing to define ethical investing is because ethics are personal and capable of shifting or, in Gregory’s words, “There is not a fixed catchment of unacceptable ethical harm”. But what the FMA does expect, and what fund managers can anticipate, is the need to make such judgment calls.

Much of the concern about greenwashing relates to funds

investing in companies that cause harm. The kinds of harm that the public wants to avoid in their investments have been remarkably stable since 2018, according to Mindful Money’s Voices of Aotearoa: Demand for Ethical Investment in New Zealand 2023. The top five issues – human rights violations (90%), labour rights abuses (89%), environmental damage (88%), indigenous rights violations (87%), and companies that don’t pay their fair share of tax (86%) – were unchanged from the 2022 survey results and have sat at similarly high levels.

There’s a high degree of commonality across ethical preferences, Coates says. “People do have different ethics but, actually, it’s far less of an issue than most people think.”

While there are some universally accepted evils – slavery, cluster bombs, and other illegal activities, to name a few – some things that one person might see as immoral may be seen amorally or morally by others. “The further away you get from the core of ethics, the more subjective it gets,” says Dentons Kensington Swan partner David Ireland. “A bit of differentiation is a good thing.”

Greenwashing is a hot topic for the FMA, Ireland says. But placing the burden to make value judgments on the regulator would be a “negative, retrograde step”, as it would result in disputes about a topic where “no one is actually going to be right. It isn’t a black-and-white equation in this space. There are different shades of what ought to or what ought to not count.”

The emergence of a homogenous view of morality or the pigeonholing of investments into tightly defined boxes of “good” and “evil” would stifle innovation – a concern of Ireland’s. So long as investment product providers are clear in how they view the world and what steps they take to make their worldview real or meaningful, then “we should be encouraging differentiation within reason”, he says.

In any event, the fair dealing provisions can do much of the heavy lifting. “The further you push the envelope, the greater the risk you might be regarded as confusing or misleading people. [The law] is a natural constraint on how creative people might be in describing what it is they are doing.” ■

Burning Issues

in Employment Law Forum 2023

Thursday 30 November 2023 | 4.00 – 6.00pm 2 CPD hours | In person Auckland

CPD 05

RULE OF LAW/HUMAN RIGHTS

How the rule of law intersects with human rights The question is what rights are truly fundamental to the subsistence of civil society so that they should be placed beyond the reach of political choice

The rule of law is one of the most familiar catchphrases in the legal lexicon. But like other familiar catchphrases, it is frequently deployed without a great deal of thought about what it actually means.

It's a concept which can be invoked with equal solemnity by President Biden and President Putin, by President Mugabe and Mrs Thatcher, by President Khatami of Iran and President von der Leyen of the European Union. It must therefore have a certain degree of elasticity.

All of these very different regimes and personages claim to be governed by the rule of law. The question which divides them is the place of rights in their view of the world. And that is the question which I want to explore.

It has become traditional to refer to the rival views about what the rule of law is as the thin definition and the thick definition. So I will adhere to that tradition for the moment. The thin definition is essentially procedural. It would require only that the laws should be publicly accessible, should not be retrospective and should apply generally – ie, to the ruler as well as the ruled.

The thick definition, by comparison, would require the law to have some substantive content conferring a minimum of rights on individuals. Those rights are generally identified with those proclaimed in the classic human rights instruments the United Nations Declaration, Universal Declaration of Human Rights and in Europe, perhaps elsewhere, the European Convention on Human Rights.

Now, of course, this is a gross oversimplification.

There are plenty of positions in between, but it will do for the moment. Until recently, the thin definition 06

Former British Supreme Court Justice, renowned historian and free-speech advocate Lord Jonathan Sumption visited New Zealand this week as a guest of the Legal Research Foundation, and spoke to a packed house at Chapman Tripp’s offices in Auckland. Below is a slightly abridged version of his lecture held the field. The phrase ‘the rule of law’ was, in fact, first coined by the Victorian constitutional scholar Albert Venn Dicey. Dicey's great work on the law of the constitution was published in 1885 and remained the bible of English constitutional lawyers for many years.

His definition of the rule of law was entirely procedural.

It meant that nobody could be penalised except in accordance with some established legal rule and that nobody was above the law.

But if Dicey invented the phrase to describe what we would now call the thin definition, the actual concept was a lot older. It dates back at least to Aristotle, who distinguished between the rule of laws and the rule of men. The rule of men depended on the changeable whims of the ruler. It was essentially discretionary and therefore arbitrary and unconfined.

By comparison, the rule of law provided a common template against which to measure the conduct of everyone, including the ruler.

The leading modern exponent of the thin definition was Professor Joseph Raz. Professor Raz died last year after a distinguished career, culminating in his two decades as Professor of the Philosophy of Law at Oxford University. He was a pupil of Herbert Hart and therefore, like him, a legal positivist. In successive books and lectures, Raz taught that the rule of law

Photo: Fairfax Media / Contributor / Getty Images

Lord Sumption

Lord Jonathan Sumption

meant, first, that people should be ruled by law rather than by discretion, and secondly, that the law should be such that people could be guided by it.

In other words, it should be stable, publicly accessible, clear, not retrospective and applied by independent judges in accordance with fair procedures. But that was all. In Raz's view, the rule of law had no substantive content at all. The rule of law was not, he thought, necessarily the same thing as the

Continued on page 07

Nov 3, 2023 Issue 39

Continued from page 06

rule of good law. It should not therefore be confused with democracy, justice, equality or human rights.

These might be entirely admirable values in themselves, but they were not implicit in the rule of law, and Raz took this to its logical conclusion.

He famously observed that a state which instituted slavery by statute would be a wicked state, but it would not infringe the rule of law.

Prevailing definition The thick definition became increasingly influential after the end of the Second World War as a result of attempts to codify fundamental human rights.

This was largely a reaction against the atrocities of the totalitarian regimes of the wartime and pre-war period, notably Nazi Germany and Soviet Russia. One of its earliest and most expansive formulations can be found in the 1959 statement of the International Congress of Jurists meeting in Delhi. This declared that the function of a legislator in a society governed by the rule of law was “to create and maintain the conditions which will uphold the dignity of man as an individual”. That dignity, they continued, “requires not only a recognition of his civil and political rights, but also the establishment of the social, economic, educational and cultural conditions which are essential to the full development of his personality”.

Now, the thick definition of the rule of law is probably the prevailing definition today. It is endorsed by most common law judges who have considered the question at all. Lord Bingham, a former senior law lord in the United Kingdom, was the author of one of the most ambitious modern attempts at a comprehensive definition of the rule of law. In his book The Rule of Law, published in 2010, he argued that the rule of law embraced the entire code of rights contained in the European Convention on Human Rights, essentially on the ground that they were to be regarded as the basic entitlements of a human being.

In New Zealand, substantially the same view was expressed in a notable lecture delivered two years ago by Justice Susan Glazebrook. She considered that the rule of law was the guiding principle so long as it included, among other things, human rights and redress for historical disadvantage. The rule of law, she suggested, was a catch-cry for a better and more just world.

Now, these statements, like the Delhi Declaration of 1959, suggest that the rule of law requires one to treat law not just as a framework for decision-making, but as an active agent of social change. The problem is that when an idea like the rule of law acquires supreme

intellectual prestige, there is a natural tendency to expand its meaning so as to embrace all sorts of other things that we would like to have, but which may be a lot more controversial. And that is what has happened to the concept of the rule of law.

As a result, we are in danger of becoming the prisoners of artificial categories and of asking the wrong question. The question I suggest is not what label to attach to some rights of the citizen against the state. The question is what rights are truly fundamental to the subsistence of civil society so that they should be placed beyond the reach of political choice. Now, if that sounds a bit vague, I will try to give it a more precise shape in due course. I would suggest that it's necessary to start from first principles. The rationale of the Universal Declaration of Human Rights is that there are certain inalienable rights which are inherent to human beings simply by virtue of their humanity. That was also, of course, Lord Bingham's view. Now, I find that view difficult to accept for three overlapping reasons.

The first is that rights do not exist in a vacuum.

Rights are the creation of law and law is a product of social organisation. It is therefore necessarily, as it seems to me, a matter of collective political choice.

Secondly, rights are claims against society. They imply corresponding duties on the part of the claimant's fellow citizens. Morally, I think that requires a measure of consent by those on whom these duties are being imposed. Again, that depends on political choice. But thirdly, laws are, among other things, an expression of collective values in the society which makes them.

They are not an expression of humanity at large.

Humanity is not a uniform product. Human societies have their own historical experience, their own political traditions, their own social conventions and their own moral and religious values. They do not all have the same basic legal needs or priorities and should not necessarily be expected to confer the same rights simply on the basis that they have the common feature of comprising human beings.

The challenge Now, I regard these points as obvious, but I recognise that they are not beyond challenge. The most ambitious and brilliant challenge has come from the Anglo-American legal philosopher Ronald Dworkin.

Dworkin was one of a number of philosophers of the post-war period who tried to find an objective test for determining what moral claims human beings have against the societies to which they belong.

He was, together perhaps with John Rawls, perhaps the best known of these philosophers.

Dworkin argued that there were binding principles of public morality which were objectively true and should

Moral principles don’t exist in a vacuum any more than rights do. They are products of the human mind

be enforced by judges independently of the choices or opinions of the societies which they served. These principles of public morality, he said, would be just as true even if nobody believed in them or even knew about them.

It might be difficult to know what the correct principles of public morality were. But, like the truth about the origin of the universe or the composition of the stars, the truth about moral principles exists somewhere out there. And because they exist independently of human institutions and human choices, they are necessarily fundamental.

Now, as a rhetorical tour de force, Dworkin’s books and lectures are in a class of their own. But I do not accept his central thesis. Moral principles don't exist in a vacuum any more than rights do. They are products of the human mind. They are inherently sensitive to experience and to the premise, often instinctive, from which one starts. In what sense can such principles be said to exist independently of the opinions and choices of men and women? How are we supposed to determine objective truth in an area which is so redolent of subjective judgment, imperfect observation and flawed reasoning?

But I think the main problem about Dworkin’s arguments is a different one. They do not cater for the possibility of disagreement. There are profound differences of opinion among serious analytical thinkers as well as ordinary citizens about what the true moral principles are. Dworkin reasons his way towards a number of moral rules. But if we disagree with his premise or his reasons or his conclusions, how are we supposed to resolve the difference?

All laws require some source of legitimacy. We have to have a reason for complying with laws that we disagree with, other than the prospect of state coercion. In a democracy, the legitimacy of laws depends on their having been enacted or approved by some accepted legislative authority – ie, by collective choice. If you want to create a body of law that is independent of collective choice, you have to identify some other source of legitimacy apart from

Continued on page 08 07

Continued from page 06

the institutional mechanisms and arrangements by which we have chosen to be governed. There's got to be some transcendent authority independent of our political institutions.

Now, in a more religious age than ours, this was a very simple matter. Rights were part of the moral law ordained by God in a totalitarian state. Rights, so far as they exist at all, are ordained by the ruling group in accordance with its ideology. But in a secular democracy, what is it that makes rights legitimate, if not political institutions? The truth is that when we speak of some rights as being inherent in our humanity, we are only making a rhetorical statement that we attach particular importance to them. We think they are so fundamental and so widely accepted that they should be above legitimate political debate.

Almost all of us believe that there are some rights in that category but the idea actually works only if they are both truly fundamental and generally accepted.

If there is room for disagreement about what the moral principles are, then we have to have a political process for resolving that disagreement. In that case, they cannot be beyond legitimate political debate or institutional choice.

Fundamental rights Not all human rights are fundamental to the subsistence of civil society. We have to distinguish between those rights which are truly fundamental and indispensable and those which are just a good idea.

Now, I have argued so far that rights are the creation of social institutions. They depend on political choices that human beings make through their machinery for collective decision-making. And that, I think, brings us closer to a test for deciding what rights are really fundamental.

I would identify two categories of fundamental rights. First of all there are rights without which life would be nothing more than a crude contest in the deployment of force. So, freedom from coercion without established legal authority, freedom from arbitrary detention, from physical violence, from injury or death, recourse to an impartial and independent tribunal for the purpose of enforcing those rights.

Now, those are rights which are clearly implicit in the rule of law. They are quite close to Professor Raz's thin definition but I think there is a better way of explaining them and that is that they are rights without which social existence and civil society are not possible. If life is simply a contest in the deployment of force, then there is no society. The basic bonds of human solidarity which make a society do not exist in 08

those conditions.

Now, there is a second category of rights which I would also regard as fundamental and that comprises rights without which our society can exist but cannot function as a democracy. I don't, as it happens, believe that democracy is a necessary part of the rule of law.

Britain enjoyed the rule of law long before she was even a limited democracy and the same is true of most western countries. They had orderly systems of law before they ever had universal suffrage.

But I add this second category for this reason: the distinction between rights which are fundamental and those which are merely optional is only relevant in a democracy. That is because the reason why we make this distinction at all is that we believe that some rights should be protected against encroachments by populist politicians and by other critics who may be able to garner majority support among the electorate.

The Federalist papers which Alexander Hamilton, James Madison and John Jay wrote in order to promote the ratification of the 1787 Constitution of the United States, remains to this day amongst the most influential analyses of this dilemma. They were concerned with the need to place constitutional limits on the measures which an elected majority might otherwise be able to force through.

Hamilton and his colleagues were mainly troubled by debt-forgiveness statutes which a number of states had passed in 1787. In the past century, we have had plenty of reminders of much more extreme measures which democratic majorities can authorise. To take an extreme case, Hitler in Germany and Marshal Petain in France were both granted irrevocable power by democratic majorities, even in less extreme circumstances. Democratic legislatures have authorised a variety of arbitrary or oppressive laws.

These cases have provoked demands that some rights should be placed beyond the limits of democratic choice. So I would add to the category of fundamental rights freedom of thought and expression, assembly and association and the right to participate on equal terms with everyone else in regular and fairly conducted elections.

It also, I think, follows that people must have sufficient liberty to be able to exercise those particular rights. Now, I don't think these rights are part of the rule of law but they are fundamental for the same reason as the rule of law is fundamental. They are the necessary foundation of every human society founded on democratic decision-making. Everything else apart from those two categories is open to argument and therefore properly the subject of democratic choice through a political process. They are optional rights which may be desirable but are not fundamental.

I am conscious that that is a more limited view

We have to distinguish between those rights which are truly fundamental and indispensable and those which are just a good idea of the role of fundamental rights than many people would wish. It leaves out many things which they would regard as important: privacy, race relations, penal policy, immigration, education, social benefits to name only some of those which have proved most controversial. The Universal Declaration of Human Rights includes in its catalogue of human rights a right to social security, to fair remuneration for work done and an adequate standard of living and free education.

Those are admirable aspirations. They are highly desirable objectives. But in a democracy they have to depend on political choice because otherwise almost all social policy would be determined by the courts rather than the political forum of the nation.

Entrenchment Now, these questions are particularly relevant in the United Kingdom and New Zealand. Apart from the rather anomalous case of Israel, we are the only states in the world without a written constitution or any other legally entrenched code of fundamental law.

Both of our countries accept the unlimited legislative sovereignty of Parliament. Neither has a written constitution which can limit the way that Parliament legislates in both countries. Calls for one have so far garnered only limited support.

However, both the United Kingdom and New Zealand have in practice achieved some degree of entrenchment for human rights by adhering to international treaties which binds them as a matter of international law, even if they are not incorporated into domestic law. Indeed, the UK has gone further by conferring a supervisory jurisdiction on institutions standing outside its constitutional order. The law of the European Union prevailed over domestic law, including Acts of Parliament, between 1973 and 2020. The decisions of the Court of Human Rights in Strasbourg do not prevail over Acts of Parliament but they do prevail over every other source of domestic law. And by convention, statutes which are found to be inconsistent with them are amended in order to make

Continued on page 09

Nov 3, 2023 Issue 39

Continued from page 08

them conform.

Now there are, I think, good reasons why a democracy should take a narrower view of fundamental rights than the Universal Declaration and should be extremely cautious about entrenching rights. International human rights are generally born of a suspicion of democratic decision-making. Those who would like to see rights to a better world given fundamental status generally do so because they fear that democratic electorates will never be morally pure enough to adopt them voluntarily. Of course their fears are, in one sense, justified. The decisions of voters are not morally pure. They are based on a variable mixture of wisdom and folly, of prejudice and understanding, of idealism, pragmatism and self-interest that cannot, I think, be a good enough reason to constrain the choices of voters by law.

Open to dispute The interests and opinions of citizens conflict. It's selfevident that we cannot all have our own way. What we can expect is that the decision-making process will treat our various interests and opinions with equal consideration and respect. That is achieved by giving all of us an equal share in decision-making even if, as individual voters, our personal influence on the outcome is minimal. A constitution that was based not on democratic choice but on some embedded scheme of values such as human rights, Islamic political theology or the dictatorship of the proletariat, to take three possibilities, would not achieve that. It would privilege those citizens who happened to agree with those values. It might not matter if the values in question were almost universally accepted. But outside the two categories of truly fundamental rights which I have already sought to identify, rights are necessarily open to dispute and frequently are hotly disputed.

In practice, disputable rights cannot be truly fundamental. In sum, what I would suggest is that the essence of democracy is not moral rectitude – it is participation. The proper function of a constitution is to determine how we participate in the decisionmaking process but not what the outcome has to be. Whether voters act from good or bad motives is not the point. We can't make a constitution for some fantasy world in which people are without prejudices or indifferent to their own personal interests.

All that a political system can realistically aspire to do is to provide a method of decision-making that has the best chance of accommodating disagreements between citizens as they actually are, with all their

vices and self-interests. That calls for a political process in which every citizen can engage and whose results, however imperfect, are likely to be acceptable to the broadest possible range of interest and opinion.

Now that, to my mind, is a much more important priority for a political community than finding some objectively-just answer to its moral dilemmas. Legally entrenched rights marginalise the political process.

They involve the creation of a class of rights whose existence and extent are not to be determined by unfettered political choice.

That has very serious implications of which our societies are not, I think, sufficiently conscious. We have to have a minimum of fundamental rights in order to function as a democracy. That I accept. But if we place too many rights beyond the limits of democratic choice, then we cease to be a democracy just as surely as if we had no rights at all.

The debate about abortion in the United States conveniently illustrates some of these themes.

Personally, I am in favour of a regulated right of abortion, but I would question whether it can be treated as a fundamental right, displacing legislative or political choices.

Abortion was once just as controversial in Britain as it still is in the United States. After extensive parliamentary debate, it was introduced by ordinary legislation in 1967 within carefully defined limits and subject to a framework of clinical regulation. The same pattern was followed in the whole of the rest of Europe, where all but one state has now legislated for regulated rights of abortion. New Zealand legislated for abortion in 1977 and more extensively in 2021.

The reason why abortion remains so controversial in the United States is that it was introduced as a judicial interpretation of the US Constitution – in other words, by a method which relegated the wider political debate among Americans to irrelevance. This means that a framework of clinical regulation was hard to achieve because it would operate to limit a constitutional right The justification commonly put forward for treating such matters as constitutional issues is that it protects minorities against majoritarian tyranny better than a democratic legislative process. I would question whether there is any factual basis for this assumption.

In stable democracies, what constitutes majoritarian tyranny very much depends on how you define your majority and what you regard as tyranny, except perhaps in classical discrimination cases, where the animating principle is to treat like cases alike.

There are no legal standards by which these questions can be answered. The only available standards are political standards. Experience suggests that judges charged with making essentially political

The distinction between rights which are fundamental and those which are merely optional is only relevant in a democracy decisions are no more likely than professional politicians to make enlightened ones. But there's also perhaps a wider issue, namely, whether it is wise to make law in a way which marginalises the choices of the electorate.

In the US it has done enormous political damage, polarising opinion and turning presidential elections into contests for the right to appoint suitably biased Supreme Court justices. In our societies we have, I think, too much confidence in law as the agent of social change. We need to value and defend truly fundamental rights, but we also need to understand the moral and practical limits of what law can achieve in a democratic society.

In the end, law simply has no answer to the problem of majoritarian tyranny, even in a system of perfectly entrenched constitutional rights like that of the United States. Law can certainly insist that public authorities have some legal basis for everything that they do. Law can supply the basic level of security on which civilised life depends. It can protect minorities identified by some personal characteristic, such as gender, race or sexual orientation, from discrimination.

But what law cannot do is to parry the broader threat that legislative majorities will act oppressively unless judges assume legislative powers for themselves. The only effective constraints on the abuse of democratic power are political. They depend on a culture of active citizenship, on a shared culture of political sensitivity, and on the capacity of representative institutions to perform their traditional role of accommodating division and mediating dissent.

Politics may be a dirty word, but the alternative to politics is a great deal worse: dysfunctional communities, lacking the cohesion to meet any of their social or economic challenges and exposed to mounting internal and external violence in the United States. This is a potential catastrophe in the making that we can see.

There is nothing that law can do about that. As Montesquieu pointed out some three centuries ago, the spirit of the law matters a great deal more than anything that law can ever really guarantee. ■ Read more here 09

LEGAL PROFESSION

Reform of legal profession likely to be put on ice We are looking at losing the ability to self-regulate as a profession and having an elected or an appointed board to regulate lawyers.

These are really fundamental systemic changes for the legal profession Jenni McManus

Tony Herring

I’m not sure they’ve got the appetite or the keenness or the time to be looking at how lawyers are regulated 10

The Law Association’s President Tony Herring predicts the incoming government will shelve the independent panel’s controversial recommendations to reform the legal profession as it will have more urgent “systemic and fundamental big-ticket items” on its legislative agenda.

In the dying days of the Labour government, the New Zealand Law Society (NZLS) sent a report to former Justice Minister Ginny Andersen on 24 August which responded to the independent panel’s recommendations.

At the time, Herring said this was premature as the profession remained divided on several key issues, including proposals to appoint an external regulator and to incorporate the principles of the Treaty of Waitangi into the Lawyers and Conveyancers Act 2006.

In Herring’s view, more work is needed before NZLS can present the government with a clear and consistent way forward. He also points out that only 5.8% of New Zealand’s 15,000 lawyers have formally expressed a view on the panel’s recommendations.

In the meantime, the NZLS report is likely to be put on ice. Herring says he has spoken to senior National MPs (and likely Cabinet ministers) Paul Goldsmith and Chris Penk “and they don’t seem particularly interested in progressing it.

“They've obviously got their own agenda of what they want to achieve and they'll be focused on that. So, I don't think that NZLS response will see the light of day for a long time.”

Looking more broadly at National’s justice policies, Herring says it wants to resurrect the “three strikes” legislation and, equally controversially, restrict the

ability of judges to reduce sentences, introduce a “young serious offenders” category, target gangs and boost police numbers. The incoming government has also pledged to reform the Resource Management Act (after scrapping most, if not all, of the changes made by the Labour government) and amend the Residential Tenancies Act. “These are huge issues so I'm not sure they've got the appetite or the keenness or the time to be looking at how lawyers are regulated,” Herring says.

But lawyers should not be sitting on their hands.

Herring wants to see the profession educate itself about – and recognise the importance of – the issues raised by the independent panel’s recommendations.

“We are looking at losing the ability to selfregulate as a profession and having an elected or an appointed board to regulate lawyers. These are really fundamental systemic changes for the legal profession.”

Herring says he likes the fact that National and Act are both talking about speeding up court processes and relying more on technology. But money is likely to be tight – an issue that will become clearer when the incoming government formally opens the books.

“If you've got courthouses that are failing and leaking and unhealthy and you've got no technology, where do you put your money? You've only got a limited pool of funds.”

He points out that the court system is so antiquated and paper-based that staff are pushing trolleys laden with hard-copy files from court to court and from the registries to the court houses. “And we've written provisions into leases whereby they must have a covered walkway between their building and the court so the person with the trolley doesn't get wet!” ■

Nov 3, 2023 Issue 39

POLITICS

New Parliament faces unfinished business but some bills headed for the scrap-heap Some bills may be revised and put up again for debate but others will immediately and permanently expire as the new government pivots in a new direction Reweti Kohere

Constitutionally, these bills lapse as a result of dissolution or expiration

When Governor-General Dame Cindy Kiro dissolved the 53rd Parliament on 8 September, 52 bills were still passing through the legislative process.

Constitutionally, these bills – and any other parliamentary business, including committee hearings, petitions and the inquiry into managed retreat – lapse as a result of dissolution or expiration.

Left unfinished, the bills disappear and a new Parliament can begin with a clean slate, except where MPs wish to pick up where the previous Parliament left off. Section 20 of the Constitution Act 1986 permits the House of Representatives, sitting for the first time in the new Parliament, to pass a resolution to reinstate any business that has lapsed.

Any business that is reinstated, according to Parliament’s Standing Orders, resumes at the stage it had reached before the dissolution. So if a bill was before a select committee in the last session, for example, it would pick up at the select committee stage.

Generally, the House does choose to breathe life back into

some of its previous work. Some uncontroversial bills continue on their way to gaining royal assent; some may be revised and put up again for debate but others will immediately and permanently expire as the new government pivots in a new direction.

It’s not yet clear how much of the last Labour government’s lapsed legislative program will survive the red pen of the incoming National-led coalition, which is yet to be finalised and formally sworn in.

But parties making up New Zealand’s new centre-right government have been nothing but explicit about which of Labour’s law reforms will be thrown onto the scrap-heap: the Fair Pay Agreements Act 2022, the new legislative framework that replaced the Resource Management Act 1991, the provisions in the Pae Ora (Healthy Futures) Act 2022 that established the Māori Health Authority and the March 2021 tax initiatives that gave us, among other things, a 10-year bright-line test and removed mortgage interest deductibility for property investors, to name but a few.

Unfinished business An overwhelming majority (42) of the 52 unfinished bills belonged to Labour, of which most were government bills.

Outgoing Labour cabinet minister Andrew Little had nearly a

Continued on page 23

Fingerprint Evidence – Making a Mark Tuesday 7 November | 5.15 – 6.30pm Webinar | 1.25 CPD hours

CPD 11

TECHNOLOGY/MEDIA/REGULATION

Photo: Matt Cardy / Contributor / Getty Images

Unpacking the Fair Digital News Bargaining Bill

Between 2011 and 2020, newspaper advertising revenue in New Zealand fell from $533m to $210m. In contrast, all digital advertising revenue tripled to $1.06 billion

David Harvey Governments love to regulate. It’s what they do. For years, they have regulated aspects of our daily lives. Little by little, our liberties are eroded incrementally with every regulatory interference.

12

Governments have become aware of a largely unregulated ecosystem in the form of the digital paradigm and especially in the form of internet-based platforms. We already have the Harmful Digital Communications Act (HDCA) which provides remedies for individuals who suffer harm – serious emotional distress – from an electronic communication.

Further steps are proposed. The Department of Internal Affairs (DIA) lays out ways and means of regulating online content in its Safe Online Services and Media Platforms discussion paper.

On 17 August 2023, the Fair Digital News Bargaining Bill was introduced into the House and had its first reading on 30 August, the day before Parliament rose. Submissions on the Bill

Continued on page 13

Nov 3, 2023 Issue 39

Continued from page 12 close on 1 November 2023.

The market It may come as some surprise that for several years the State has been subsidising mainstream media. The State has provided $105 million through subsidies for mainstream media since 2020 via the 2020 Media Support Package ($50m) and the Public Interest Journalism Fund ($55m).

But the problems facing mainstream media (MSM) predate these injections. The onset of the digital paradigm means there has been a shift in the way people consume news media.

News media is now accessed via online digital platforms. The explanatory notes to the Bill and the Cabinet Paper of 23 November 2022 that argued for the introduction of the Bill do not provide any statistics to support this, but it has been well-known for many years that online platforms have been the entry point for news consumption.

The digital platforms act as content aggregators. They gather news information from a number of sources and provide access to it. An example is Google News. It is a news aggregator service that presents a continuous flow of links to articles organised from a large number of publications and magazines. The link allows the user to access the full article on the MSM website. Facebook provides a similar service, as do several other news aggregator platforms.

This has affected MSM profitability and especially on revenue derived from advertising.

Between 2011 and 2020, newspaper advertising revenue in New Zealand fell from $533m to $210m. In contrast, all digital advertising revenue tripled to $1.06 billion. Since 2003, New Zealand newspapers have generated $1 in digital advertising for every $4 they have lost in print advertising.

This has meant that to remain viable, MSM have had to make cutbacks. The increasing cost to produce news content, combined with reduced income, has contributed to the halving of the number of journalists in New Zealand and, consequently, reduced public interest journalism. Local and community news, investigative journalism and international news have been particularly hard hit.

The platforms, on the other hand, have a different business model and derive their revenue from advertising which has

Since 2003, New Zealand newspapers have generated $1 in digital advertising for every $4 they have lost in print advertising

shifted from MSM. But by the same token, according to MSM, the platforms are “free riding” by aggregating the content from MSM sources and presenting it to the public.

What is unstated by MSM is, as I have observed, if a user follows a link from the aggregated site, that user ends up on the MSM platform. So, it isn’t a complete free ride. The MSM platform still benefits but not from direct access to its platform.

But underlying all of this is a State interest and this is where the regulation comes in. The State interest is cunningly presented as a public interest. The State has an interest in maintaining MSM because of its objectives of countering misinformation and supporting democracy and social cohesion.

The State argues that a sustainable, local news media sector provides reliable, balanced information on which the public base choices as participants in political, economic and social life, and acts as a watchdog on those in power. It also supports broader social wellbeing through, for instance, the use of te reo Māori and promoting the culture of New Zealand.

For those reasons the State has been propping up MSM but can no longer afford to do so.

For news media companies to survive in an online environment, they are increasingly engaging in business relationships with large digital platforms, particularly Google and Meta as the dominant players in online search and social media.

News media organisations are attempting to reach commercial arrangements for the use of their content online, such as headlines, short blurbs and images used on Google News and on Facebook or Instagram.

A small number of arrangements have been reached. I am aware that Google has entered into commercial arrangements with BusinessDesk, Newsroom, RNZ, Pacific Media Network, Crux and NZME (the latter could potentially see a new revenue stream of $2.5m to $3.5m per annum over the next five years, with scope for this to potentially increase towards $5 million per annum).

These arrangements are to supply Google News Showcase with content and receive financial compensation. Meta has not made any similar arrangements but has provided some companies with grants to assist with transition to the digital environment.

Bargaining imbalance?

The Commerce Commission has found that despite a two-way

Continued on page 14 13

Continued from page 13 value exchange between news media and digital platforms, individual news media companies are likely to be in a relatively weak bargaining position.

While media companies are dependent on the digital platforms for a relatively significant segment of news consumers, the digital platforms are less dependent on any given news media company for New Zealand news content.

We consider that this in turn is likely to result in an imbalance of bargaining power in favour of the digital platforms.

Google and Facebook are operating on a “take it or leave it” basis.

This suggests a limitation on MSM companies’ ability to negotiate a fair return for their investment in news content. It also means there is no opportunity to negotiate in relation to other concerns, including the lack of warning of changes to algorithms that impact directly on the distribution of content and therefore the number of views the content receives, or the lack of access to their customers’ engagement data.

Since the Commerce Commission’s provisional authorisation in May 2022 to allow collective bargaining, the NPA (Newspaper Publishers’ Association) has indicated it has had little engagement from Google or Meta.

This is consistent with overseas experience and suggests regulatory action is required to improve the quality of commercial deals. The State considers that fair and appropriate commercial arrangements are unlikely without government intervention.

Let the market decide?

Under normal circumstances, absent State subsidisation, MSM would have to adapt or die. Rather like the recording and movie industries when faced with digital music and film piracy and which adapted new business models like Spotify, Netflix and streamed content, MSM should develop a new business model.

But the State steps in to provide a subsidy so MSM will continue to provide a convenient outlet for State messaging. This may not be the reality, but the optics are terrible. It looks as if MSM has been bought and sold and sadly the Fair Digital News Bargaining Bill does little to redress that problem.

Rather than the State subsidising MSM, the aggregating platforms will do so, compelled to go to the bargaining table by the State.

The State is too invested in MSM and is in fact dependent upon it for messaging. Although there are comfortable words 14

David Harvey

News media are increasingly engaging in business relationships with large digital platforms, particularly Google and Meta

such as the media “speaking truth to power” or its importance in democracy as the Fourth Estate, current trends suggest that there is a lack of public confidence in the media and the behaviour of MSM over the course of the pandemic and afterwards conveys a strong suggestion of partiality.

There is no problem with an MSM outlet taking a position but it should be transparent in doing so. MSM potentially carries a lot of informative power and must be careful to use that power judiciously. Fact-based stories should report the facts without underlying subjective analysis. Opinion pieces should be clearly labelled as such to distinguish them from news. Opinions are a subjective analysis of facts, rather than objective reporting.

But despite these obvious shortcomings, and the difficulty in getting any firm direction from the NZ Media Council or the Broadcasting Standards Authority, the State has a vested interest in the preservation of MSM in the current – albeit unsustainable – model. And it is going to require the platforms to prop up the edifice.

The Bill sets out to ensure fair revenue-sharing between digital platforms and news media organisations by: ■ promoting voluntary commercial agreements between digital platforms and news media organisations, with minimal government intervention; ■ where agreement cannot be reached, establishing an arbitration process to determine commercial arrangements between digital platforms and news media organisations; and ■ providing for collective bargaining with digital platforms by news media organisations.

“Fair revenue sharing” will be achieved by: ■ creating a fair bargaining environment through a bargaining code that will be established by the independent regulator and operate as secondary legislation; ■ requiring bargaining parties to comply with the bargaining code and to bargain in good faith, as well as requiring parties registered under the legislation to participate in the bargaining process; ■ promoting voluntary commercial agreements between operators of digital platforms and news media entities, with minimal government intervention; ■ where agreement cannot be reached, creating a stepped

Continued on page 15

Nov 3, 2023 Issue 39

Continued from page 14 bargaining process to facilitate fair and equitable outcomes;

■ providing for collective bargaining by news media entities; and ■ establishing civil penalties for non-compliance with the legislation.

An independent regulator will be appointed and the Bill proposes that this be the Broadcasting Standards Authority (BSA). It is interesting to note that the appointment of an independent regulator is an integral part of the DIA proposals for safer online platforms, although that discussion paper envisages a reduced role for the BSA, given that MSM disseminates news via online platforms.

There is a range of stick-and-carrot approaches. Operators will be “incentivised” by the threat of compelled coercive action if there is non-compliance or hesitancy in complying. This is not incentivisation. It is velvet-glove compulsion. The iron fist comes later. If “fair bargaining” does not produce a satisfactory result, the State steps in and imposes agreements on platforms.

To be fair, it should be observed that in overseas jurisdictions, the threat of a compulsory bargaining regime has been sufficient to bring companies to the negotiating table. For example, in Australia the bargaining, mediation and arbitration provisions have not been used, with agreements reached outside of the framework.

It is suggested that the legislation serves as a backstop, encouraging companies to enter voluntary negotiations. The word “backstop” is a polite way of describing a threat.

The BSA has certain enforcement powers. Enforcement of the bargaining provisions does not involve the creation of an offence but the creation of civil liability which may result in a pecuniary penalty order or the issue of an injunction. Pecuniary penalty orders are a feature of the Unsolicited Electronic Messages Act. The remedies are available for contravention of the civil liability provisions. Pecuniary penalty orders would be imposed by the High Court.

Another alternative In the Cabinet paper that developed the policy for the Bill, it was suggested that changes to copyright law would not be a feasible option primarily because the EU directive referred to in the paper was based on a different copyright model.

This dismissal of a copyright option overlooks the provisions

The State considers that fair and appropriate commercial arrangements are unlikely without government intervention

of Part 8 of the Copyright Act 1993 which provides for copyright licensing schemes. This has been in existence for some time. It requires payment for a licence from an organisation representing MSM providers and would distribute the payments proportionately.

This arrangement would remove any State involvement from the equation, would locate the rights and remedies within the existing area of law where they belong – copyright and intellectual property – and avoid the unfortunate optics of a State-endorsed scheme to prop up and subsidise MSM. A licensing body already exists in the form of the Media Copyright Agency (MCA) which is in the business of providing licences to organisations which copy, store and distribute newspaper, magazine and news website content so that they can do so legally.

The only possible statutory change that might be required would be to bring the aggregation of content and the provision of snippets within the licensing scheme.

By obtaining a licence from the MCA, organisations can protect themselves from non-compliance risks and possible infringement proceedings and gain the right to copy articles from most major New Zealand news media publications.

Conclusion Over the past few years, the State has subsidised MSM. In doing so, it has provided artificial support for the industry. That support is no longer sustainable. So, the State is now going to put in place a compelled bargaining process to ensure online platforms subsidise MSM. Subsidies are a form of artificial support. They enable businesses that cannot survive in the marketplace or will not adapt to changes in the marketplace or to the disruptive change that follows a new technological paradigm to lumber on in their current way.

I have suggested there is an existing model available that will compensate MSM for the “free riding” undertaken by the platforms. Intellectual property law and principles are well attuned to the problem of free-riding and know how to deal with it.

The solution is in the hands of MSM, perhaps with some minor statutory amendments. And it can be undertaken without the interfering hand of the State in the form of the Fair Digital News Bargaining Bill. ■ David Harvey is a retired District Court judge and a member of Sangro Chambers in Auckland ■ 15

LAW ASSOCIATION COMMITTEES

Meet Stuart Cummings, Convenor Family Law Committee This is the first in a series of profiles of The Law Association’s committee convenors, written by Brenda Newth We will need to work hard to continue to have a legal system and law that reflects the culture and the diversity. That needs to be done with care and consultation if the rule of law is to be maintained Where do you work, what’s your role?

I am head of chambers at Surrey Chambers, where I work alongside a fantastic team who specialise in family law with a focus on relationship property and complex matters affecting children.

16

How long have you been involved with The Law Association’s committees and which committees have you worked with?

Where did you study?

I’ve been on The Law Association’s committees since the early-to-mid 1980s: the Family Law Committee, the Legal Aid Committee, and the Human Rights Committee. I was the then The Law Association’s civil liberties spokesperson for many years.

University of Auckland, where I completed a Bachelor of Laws.

Why is committee work important?

What’s been your career to date?

Stuart Cummings

I was truly fortunate to be invited to join John Adams as a barrister at Halcyon Chambers in 1990.

Halcyon Chambers was a fantastic environment which over the years has produced a number of stand-out judges. I replaced Judge David Brown when he went to the bench. Rosemary Cox (now retired) joined John and me and when John went to the bench, Sarah Fleming, now Judge Fleming, joined the chambers.

David Burns, now Judge Burns, joined when I left and, of course, there is Judge Ginnen, a more recent appointment from Halcyon Chambers.

I’ve had an unusual career, by modern standards. I supported myself during my last two years of high school and then I spent a year working in Tokoroa as a cleaner at the Kinleith Pulp and Paper Mill. There’s nothing like a year in the single men’s quarters in Tokoroa in the ‘70s to inspire you to get to uni!

As I was having to work a lot during the intermediate year to support myself, I investigated whether I could obtain employment in the law area and was very fortunate to start clerking for Haddow & Co early in my first year. In year two, I worked for Duthie Whyte and in law three through to admission at Cairns Slane where I worked with a number of fantastic family lawyers, including the incredibly talented John Adams, later Judge Adams. While those early years created some fantastic relationships, I recall them all as a blur of working hard during the day and studying hard at night.

Committees provide a voice for practitioners, as well as disseminating information to practitioners. They are also able to influence and reach out to regulators, ministries and the judiciary. That is such a critical part of our role. Without that, nothing changes. The committee seems to be a real conduit for ideas and information. We get to hear what is going on from our colleagues and we get some early warning on ideas and intentions from, for example, the Ministry of Justice. We hope to ensure that both sides hear the other’s position and take account of that before things are set in stone.

For example, the much-maligned family law changes in 2014. Those reforms came about because no-one was talking to the people who had the most extensive and informed engagement with the Family Court – our clients and lawyers. By contrast,

Continued on page 17

Nov 3, 2023 Issue 39

Continued from page 16 the review of the Property (Relationships) Act has involved a good deal of consultation, but even there I can see that what is proposed will create a number of challenges and still, in my opinion, ignores some aspects of the human condition and does so at a cost to all. Unfortunately, it is the human cost and the impacts on our clients that we family lawyers have to navigate through and deal with. For my part, I am still lobbying for change!

How do you see the role of a committee convenor? What specific skills do you think a convenor needs?

For convenors, it’s the ability to concisely summarise the information that you’re wanting the committee to discuss, and also what comes back from the committee. It’s really concise summaries of information, opinions and outcomes.

Meeting management skills are crucial, too. Family lawyers work in litigation. So, you’ve got people going back to court, people giving up their lunchtime, whether they are turning up personally or at a distance. So, it’s meeting management, keeping people focused and finishing the meeting on time having achieved what we set out to achieve.

What is your biggest frustration as a convenor?

The timing of submissions by the government. I haven’t empirically researched this. But what I would say is the more important the submission is, the more likely it is to be delivered in December with a response date of the 20th.

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

Why was that important?

There’s been the covid response, the Law Commission’s Property (Relationships) Act review, the surrogacy review and the Adoption Law review.

That’s quite a bit. And quite a big contribution to CPD. There’s also just been lots and lots of smaller stuff.

At the moment, we’re going back to the minister, seeking a review of the thresholds under the Protection of Personal and Property Rights Act, to inflation-proof them. They are currently at ridiculously low levels, requiring court applications because they haven’t moved with the times. That sort of day-to-day stuff that makes a huge difference to the amount of

court time and lawyer time and (it follows) cost to the public. We’re constantly trying to help the public navigate more easily through these processes that we’re involved in.

Over the past year, has your committee made submissions on a parliamentary bill or any consultation paper?

The ones mentioned above, plus many others.

Consistency of outcomes. There should be one rule for everybody; I cannot countenance it being otherwise.

Have you done any media interviews/ provided any statements to the media in the past year as a committee convenor and spokesperson for ADLS/The Law Association?

No

What would you say to anyone thinking of becoming involved in a Law Association committee?

It is a great opportunity to keep up to date, to meet a variety of practitioners in your chosen field, share ideas and have ideas honed. The committee has access to information at a slightly earlier stage and the opportunity to have some influence on where things are going.

What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?

Recovering from the impacts of covid and delays in the family courts. Streamlining of processes where, in my opinion, we should be adopting/retaining some of the learnings that came from covid. Also, the ongoing access to justice problems. We are pushing hard for amendments to the provision of legal aid. There is also the uncertainty for clients around how long their case will take to get to hearing, which has very real repercussions in family situations.

There’s been a lot of change in the law, as well as societal and demographic changes. Take the Auckland housing market, for example. House prices make it almost impossible for many separating parents to buy houses, individually, in the same part of town. That has a huge effect on shared parenting with school-aged children. The delays referenced above add often quite significantly to the cost of proceedings and the costs of legal representation.

What’s the best-kept secret about The Law Association?

Forming/enhancing relationships and the constant updating of your knowledge. The Family Law Committee is a safe place for open debate where ideas can be honed, tested and improved. And the catering is an added bonus!

What is the biggest issue facing the legal profession right now?

What is your vision for the legal profession in 2050?

I’m at the stage in my career, where I’m more interested in what’s going to happen in the next five to 10 years. We’re in a watershed period. We’re moving towards specialised courts, which I think is really good.

We’ve got more nuanced specialist facilities where I hope we will have better interface between the judiciary and clients. In the criminal justice sector with things like the drug and alcohol courts and the family violence courts, there seem to be better outcomes for everybody, and I suspect an enhanced sense for clients that they are truly being heard.

I think the next 10 years are going to be the crucial ones. New Zealand is changing a lot. With many others, I campaigned for many things that reflected a bicultural approach in the ’80s. I’m not sure that the positions I took then are transportable to this century and the increasing diversity of our population. We will need to work hard to continue to have a legal system and law that reflects the culture and the diversity. That needs to be done with care and consultation if the rule of law is to be maintained. In the family sphere, that is more readily apparent in consistency of outcomes which of course enhance the ability of lawyers to give sound advice.

What do you think The Law Association could do to improve its offering to members?

The Law Association is doing a really good job. Where I think they can improve is to break the stranglehold that NZLS has. Why does the government always listen to NZLS on matters of family law and not The Law Association? We do not get the recognition that we deserve. ■ If you’d like to find out more about The Law Association’s committees, please contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz ■

Access to justice. Ease of interaction with the courts.

17

FEATURED CPD

FINAL NOTICE

WEBINAR ALL LEVELS CRIMINAL

Fingerprint evidence – making a mark Webinar 1.25 CPD hours Tuesday 7 November 5.15pm – 6.30pm Price from $120 + GST Presenter Tom Coyle, managing director, Forensic Insight Ltd

In this webinar, experienced fingerprint expert Tom Coyle will help you better understand the science behind fingerprint evidence and offer practical tips for preparing and conducting cases where such evidence is involved.

FIND OUT MORE

Residential care subsidies: smoothing the way WEBINAR ALL LEVELS ELDER LAW

FINAL NOTICE

WORKSHOP ALL LEVELS ALL AREAS

FINAL NOTICE

Webinar 1.25 CPD hours Thursday 9 November 12pm – 1.15pm Price from $120 + GST Presenters Vicki Ammundsen, director and notary public, Vicki Ammundsen Trust Law Limited and Theresa Donnelly, legal services manager, Perpetual Guardian

FIND OUT MORE

Networking 101 Workshop 2 CPD hours Thursday 9 November 4pm – 6.15pm Price from $200 + GST Facilitator Ben Paul, CEO, The BD Ladder

This two-hour, interactive training session provides practical tips on how to network effectively and confidently, so attendees can hone their skills in small groups and in a safe environment.

FIND OUT MORE 18

In this webinar, Vicki Ammundsen and Theresa Donnelly will address key issues and offer practical insights into residential care subsidies, including current rules and ways of improving an applicant’s position.

Nov 3, 2023 Issue 39

thelawassociation.nz

Excellence in legal writing

CPD@thelawassociation.nz

Workshop Hamilton 3 CPD hours Tuesday 14 November 9am – 12.15pm Price from $375 + GST Facilitator Andrea Ewing, crown counsel, Crown Law Office (Criminal Team)

09 303 5278

Legal writing is the bread and butter of a lawyer’s practice. But writing well is harder than it looks. For years, we’ve been told that we should “write like Katherine Mansfield”. But how?

WORKSHOP ALL LEVELS ALL AREAS

FIND OUT MORE

Crossroads of immigration and employment WEBINAR ALL LEVELS IMMIGRATION

Webinar 1.5 CPD hours Wednesday 15 November 12pm – 1.30pm Price from $140 + GST Presenters David Fleming, barrister; Melissa MacRury, principal labour inspector, migrant exploitation team and Heather Collins, associate, Pitt & Moore

Employment issues for migrants on temporary visas can involve complex strategic questions, overlapping statutes and potential civil and criminal liability.

Practitioners must have a comprehensive understanding of these challenges. This session uses a combination of case scenarios and presenters’ expertise.

Chair Jenni-Maree Trotman, barrister and former ERA member

FIND OUT MORE

Lawful, successful and productive meetings

Webinar 1.5 CPD hours Thursday 16 November 12.30pm – 2pm Price from $140 + GST Presenter Mark von Dadelszen, barrister, Not for Profit Law

This webinar, presented by the author of the popular Members’ Meetings Handbook, now in its 3rd edition, will assist both meeting chairpersons and participants to have better meetings.

WEBINAR ALL LEVELS DEVELOPMENT

FIND OUT MORE 19

CPD EVENT

Planning your legal career: a hands-on workshop for female lawyers You can have a portfolio, rather than a linear career actually a time when she considered Miriam Dean CNZM KC says she throwing in the towel. “But I’m glad I was wishes someone had been around 20 talked out of it.” And now, after nearly or 30 years ago to offer advice about 40 years in the law, she’s keen to pass managing her career - not just the on what she’s learned to women who technical, legal bits but also advice on want to put some structure around their how to plan the next steps and develop careers and gain the confidence to take skills such as building self-confidence the next step. and being comfortable with risk-taking.

Miriam Dean KC On 22 November, Dean is running a Now a barrister at the top of her day-long workshop, Leading your career, game, specialising in dispute resolution, for female lawyers with 4+ years’ PQE. She did a similar governance and inquiry and review work, Dean says course herself 15 years ago and wished at the time experience has taught her the importance of career she’d been able to do something like that a lot earlier. planning for lawyers and taking the time to figure There are several components to Dean’s workshop out exactly what they want. Women, she says, are which she describes as “building a career backbone”: generally not as good as men at making a career plan.

Most important, Dean says, is to develop what she ■ Defining what motivates you – your purpose. calls a “growth mindset” – as opposed to a fixed-mind ■ Figuring out what you want. “You don’t just have thinking. “I clearly had a very fixed mindset in my to practise law,” Dean says. “You can have a early days, and I wasn’t very receptive to criticism,” she portfolio, rather than a linear career. I talk about says. “But I’ve realised there’s always room to grow, to a ‘squiggle’ because I’m a real squiggle now. I do improve and as long as the criticism is constructive, it’s governance, I do legal, I do review work in a really good thing.” leadership, I do facilitation. So really look at what Back in those early days, Dean says there was you want to do.”

■ Planning how to get there and how to build your brand. In this segment, Dean talks about sponsors, mentors and how to work connections (she hates the term “networking”).

■ Understanding different behavioural styles and leadership models and learning how to deal with them. “You’ve got to think about who you’re working with and adapt,” she says.

■ Understanding storyline models. “I think women are particularly bad at this as we create stories in our heads. When I was a junior, I had a particularly bad court experience and I used to think I was no good at court work. I developed that storyline in my head. It really set me back and yet it was rubbish. So, we look at that whole storyline model – that how you see yourself can affect how you come across and then how you actually perform.”

Dean says one of the things that held her back was a lack of self-confidence. “People might not believe that now, but it did. The lack of self-confidence is a key theme that still emerges from these workshops.”

Register for Miriam Dean’s workshop here

Networking 101

Thursday 9 November 2023 | 4.00 – 6.15pm 2 CPD hours | Auckland workshop

20

CPD

Nov 3, 2023 Issue 39

Featured events

Connecting New Zealand lawyers

Hamilton After 5 Wednesday 8 November 5.30pm – 7.30pm Gothenburg Restaurant, 17 Grantham Street, Hamilton Central Sponsored by MAS

Learn more

Upcoming December

Northland Lawyers’ Lunch

Soon to be added, 2024 Feb | Central Auckland Lawyers’ Lunch Feb | NextGen Lawyers’ Speed Networking Mar | Rotorua Lawyers’ Lunch Mar | Tauranga Lawyers’ Lunch Mar | Criminal Law Dinner

Christchurch After 5 Thursday 9 November 5.30pm – 7.30pm Botanic, 126 Oxford Terrace, Christchurch Central City Sponsored by MAS

Learn more

Photo: Claudia Totir / Getty Images

Inside the in-house experience Wednesday 15 November 5.30pm – 7.30pm Duncan Cotterill, Level 1, Australis Nathan Building, 37 Galway Street, Auckland CBD Sponsored by MAS

Learn more

Book Here

Events@thelawassociation.nz thelawassociation.nz

21

Matthew Harris

SOLICITORS OFFICES FOR SALE South Auckland, Manurewa

Shortland Chambers is pleased to announce that Matthew Harris has joined as a member.

Growing and productive area with great potential and not overly serviced. (Possibly selling the business as well which is longestablished – open to negotiations. Phone: Martin (09) 268 8067) Great accessibility and visability with client parking. Very suitable for smaller operation. Live in separate minor home and income.

Matthew is an experienced trial and appellate advocate who practises in most areas of commercial law, including company and commercial, class actions, insurance and professional liability, construction and property.

He joins chambers from Gilbert Walker.

For Auction: Wednesday 15 November 2023 See Barfoot & Thompson website. I.D: 855654 Trade Me property I.D: 4374657385

We wish Matthew well in his career at the bar. shortlandchambers.co.nz

Offices Available

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise The Law Association Inc. 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@thelawassociation.nz

The Law Association Inc.

Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst.

No long-term commitment required.

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

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Ph: (09) 303 5270

PRACTICE FOR SALE – North Shore – $200,000

KEENE Maureen Anne

SAMI Chandan

• Late of Auckland • Director • Aged 76 / Died 19’05’23

• Late of 4A Colonel Nixon St, Onehunga, Auckland, formerly of Tavua, Fiji • Business owner • Aged 68 / Died 26’05’23

Finance available on 10% deposit.

Settlement 31st March 2024 (or earlier). No tyre kickers please.

Don’t be a sucker and work for someone else when you can earn much more working for yourself.

Grab a friend or colleague and set up on your own with a real growth opportunity on offer. Have a crack with some real experience to help you on your way.

Reply in confidence to: advertiser@thelawassociation.nz, quoting ref: NS1023

Leading Your Career Exclusively for women lawyers 4+ years PQE

Wednesday 22 November 2023 | 8.45am – 5.00pm 8 CPD hours | Workshop

22

CPD

Nov 3, 2023 Issue 39

Continued from page 11 quarter of the government bills, with all but one of the 10 related to his work as Treaty of Waitangi Negotiations Minister.

Former Police and Justice Minister Ginny Anderson came in second with five government bills, including efforts to criminalise ram raids and empower the police to charge offenders as young as 12, better protect complainants in family and sexual violence proceedings and simplify New Zealand’s surrogacy laws.

Seven of Labour’s members’ bills included Wellington Central candidate Ibrahim Omer’s proposal to clarify that, under the Crimes Act 1961, the withholding of employee wages was theft; Arena Williams’ bill to entrench the Māori seats; and Mt Albert MP Helen White’s bill prohibiting employers from using restraints of trade clauses for lower-paid workers.

More than half of National’s seven members’ bills were focused on health. Likely Health Minister Dr Shane Reti sponsored two of them: to extend the breast cancer screening age to 74 from 69 and to improve access to public medical care for cancer patients who purchase unfunded cancer medicines.

Waimakariri MP Matt Doocey, who could become New Zealand’s first Mental Health Minister, sponsored a bill to unlock a strategy to improve mental health and addiction outcomes.

And Invercargill MP Penny Simmonds’ amendment bill would permit medical practitioners, including nurses, to supply medicines unapproved by Medsafe.

Another National member’s bill stands out: Barbara Kuriger’s New Zealand Bill of Rights (Right to Lawfully Acquired Property) Amendment Bill. Kuriger aims to add a “right to property” to New Zealand’s Bill of Rights Act 1990, thereby protecting the right to “lawfully acquired” property, the right to property owned individually or collectively and the right to not be deprived of property except where established by law and with reasonable compensation.

Oldest to youngest Half of the 52 bills had reached the select committee stage, with an additional eight awaiting their second reading. The remaining 18 had not passed their first reading.

The Justice Select Committee had the most bills to report back on (eight), followed by Māori Affairs (four) and Education and Workforce (three).

The oldest bill was a treaty claim settlement law for the Tauranga Moana Iwi collective, introduced in November 2015 during the 51st Parliament. The Māori Affairs Select Committee had reported back to Parliament in March 2017.

The next oldest bills were the Kermadec Ocean Sanctuary Bill, introduced in March 2016, and the Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill that was introduced two months later.

Another treaty bill as well as Privacy Act changes were the most recent bills pulled, introduced just two days before Parliament was dissolved.

List of bills Accessibility for New Zealanders Bill Child Protection (Child Sex Offender Government Agency Registration) (Overseas Travel Reporting) Amendment Bill Corrections Amendment Bill Crimes (Theft by Employer) Amendment Bill Digital Services Tax Bill District Court (Protecting Judgment Debtors on Main Benefit) Amendment Bill Electoral (Equal Protection of Māori Seats) Amendment Bill Electoral (Lowering Voting Age for Local Elections and Polls) Legislation Bill The Emergency Management Bill Employment Relations (Protection for Kiwisaver Members) Amendment Bill Employment Relations (Restraint of Trade) Amendment Bill Employment Relations (Trial Periods) Amendment Bill Fair Digital News Bargaining Bill Fair Trading (Gift Card Expiry) Amendment Bill Family Proceedings (Dissolution for Family Violence) Amendment Bill Fisheries (International Fishing and Other Matters) Amendment Bill Girl Guides Association (New Zealand Branch) Incorporation Amendment Bil Hauraki Gulf / Tīkapa Moana Marine Protection Bill Human Rights (Prohibition of Discrimination on Grounds of Gender Identity or Expression, and Variations of Sex Characteristics) Amendment Bill Immigration (Mass Arrivals) Amendment Bill Improving Arrangements for Surrogacy Bill Kermadec Ocean Sanctuary Bill Māori Fisheries Amendment Bill McLean Institute (Trust Variation) Bill Medicines (Exemption for Authorised Prescribers) Amendment Bill New Zealand Bill of Rights (Right to Lawfully Acquired Property) Amendment Bill New Zealand Public Health and Disability (Restriction on Crown Funding Agreements and Unfunded Cancer Medicines) Amendment Bill New Zealand Superannuation and Retirement Income (Controlling Interests) Amendment Bill Ngāi Te Rangi and Ngā Pōtiki Claims Settlement Bill Ngāti Hei Claims Settlement Bill Ngāti Paoa Claims Settlement Bill Ngāti Tara Tokanui Claims Settlement Bill Pae Ora (Healthy Futures) (Improving Mental Health Outcomes) Amendment Bill Pae Ora (Healthy Futures) (Provision of Breast Cancer Screening Services) Amendment Bill Pare Hauraki Collective Redress Bill Privacy Amendment Bill Ram Raid Offending and Related Measures Amendment Bill Regulatory Systems (Climate Change Response) Amendment Bill Regulatory Systems (Education) Amendment Bill Regulatory Systems (Primary Industries) Amendment Bill Residential Property Managers Bill Restoring Citizenship Removed By Citizenship (Western Samoa) Act 1982 Bill Sale and Supply of Alcohol (Cellar Door Tasting) Amendment Bill Secondary Legislation Confirmation Bill (No 2) Social Workers Registration Legislation Amendment Bill Tauranga Moana Iwi Collective Redress and Ngā Hapū o Ngāti Ranginui Claims Settlement Bill Taxation (Annual Rates for 2023–24, Multinational Tax, and Remedial Matters) Bill Te Korowai o Wainuiārua Claims Settlement Bill Te Pire Whakatupua mō Te Kāhui Tupua/Taranaki Maunga Collective Redress Bill Victims of Family Violence (Strengthening Legal Protections) Legislation Bill Victims of Sexual Violence (Strengthening Legal Protections) Legislation Bill Whakatōhea Claims Settlement Bill ■

23