LawNews- Issue 42

NEWS Nov 24, 2023 Issue 42

Inside ■ COMMITTEES

Meet convenor Hannah Kim P08-09

■ OPINION

Time to tweak our defamation law P10-15

Question mark over conduct regime for banks,

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INSURERS

Contents 03-05 CONDUCT BANKS INSURERS

In limbo: uncertainty over conduct and licensing legislation for banks and insurers

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

06-07 PACIFIC DYSFUNCTION RACIST

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

New report calls out ‘irredeemably racist’ criminal justice system

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

10-15 REPUTATION HARM PUBLISHER

Opinion: Why our defamation law is no longer fit for purpose

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

16-17

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Nov 24, 2023 Issue 42

FINANCIAL SERVICES

Banks and insurers seek clarity on good conduct and licensing regime It wasn’t that we were opposed to the idea of good conduct or good customer outcomes. It was just more legislation and more regulation, more compliance, more licensing, more cost.

Just layer upon layer upon layer, for no real apparent reason

Richard Klipin

Diana Clement Financial services businesses are in limbo after a bombshell revelation from the incoming government that it might scrap legislation designed to clean up the conduct of the banking and insurance sectors.

Though passed in mid-2022, after banks, insurers and nonbank deposit-takers and their intermediaries were dragged kicking and screaming to the party, the Financial Markets (Conduct of Financial Institutions) Amendment Act 2022 (CoFI) is not due to be implemented until 31 March 2025. In the meantime, licensing under the Act is open as the sector begins setting up conduct regimes and other structures needed for compliance.

CoFI requires financial services providers to treat customers fairly. Its genesis was the Haynes Royal Commission in Australia, with its revelations of misconduct in the banking and financial services sectors. This was followed in New Zealand by reviews by the Financial Markets Authority (FMA) and Reserve Bank in 2018 and 2019 of the conduct and culture of banks and life insurers, and a further review by the FMA into fire and general insurers.

Most large financial institutions are well on their way to complying, say industry organisations representing them, such as the New Zealand Bankers Association (NZBA) and Financial Services Council (FSC).

But then Opposition leader Christopher Luxon announced at the FSC’s annual conference in August that CoFI would be

Roger Beaumont

repealed. More recently, this has been confirmed National’s commerce, consumer affairs and revenue spokesman Andrew Bayly.

That has left financial services companies and their advisers scrambling. Some are ready to be licensed and others are taking a wait- and-see approach.

Hovering in the background is the Insurance Contracts Bill which, if passed in its current form, will make fundamental changes to insurers’ duties of disclosure, introduce unfair contract terms and change the way insurance contracts are presented to consumers. If the Bill survives, it will shift the power from insurers to the insured.

It is not yet clear what approach the incoming government will take. But neither the CoFI Act nor the Insurance Contracts Bill is on the National Party’s first 100-day action plan.

“The new government will have a range of different policy positions,” says Richard Klipin, chief executive of the FSC, which represents life and health insurers and other large financial services companies. “There were announcements made at our conference back in August around rolling back CoFI and we’ve been in conversation to try and understand what that actually means.

“The sector has always been supportive of good conduct outcomes and supporting consumers. But we were also clear that there were issues in CoFI [including] duplication and cost imposts.”

Other membership organisations, law firms and professional services companies are recommending members and clients get on with their CoFI implementation.

Malcolm Bruce, partner - consulting at KPMG New Zealand, notes that the current CoFI licensing timetable and obligations remain in force and have deadlines that will require compliance.

“Therefore, we’d encourage organisations to continue working on CoFI requirements and to think about how they can truly put customers at the heart of their business operations to

Continued on page 04 03

Continued from page 03

systematically treat customers fairly, in a way that works for all stakeholders. We believe this will ensure better outcomes for customers, staff and probably long-term bottom-line results.”

Likewise, the NZBA is recommending members crack on.

Chief executive Roger Beaumont says, “Banks are working to implement the requirements of the incoming financial institutions conduct regime, including developing their fair-conduct programs.”

Even the Financial Services Federation (FSF), which has been more vocal in its opposition to CoFI, says it realises that member organisations need to prepare for licensing.

As Minter Ellison Rudd Watts partner Lloyd Kavanagh puts it, at this stage any repeal is speculation.

Kavanagh says the law is clear, citing Fitzgerald v Muldoon.

That was a 1976 Supreme Court decision where then Prime Minister Rob Muldoon was found to have breached s 1 of the Bill of Rights 1688 by issuing a statement on the future of the New Zealand Superannuation Scheme, telling employers not to contribute as repealing legislation was on the way. The court ruled that law changes required legislation and the consent of Parliament and could not be done by press release, as Muldoon was attempting to do.

Kavanagh says if, on reflection, full repeal is thought to be a step too far, certain areas of the CoFI legislation could be “refined” by the new government, including some elements of the fair conduct principles.

For example, the fair conduct principle 446C (2) lists ways of treating customers fairly but this could be made clearer, Kavanagh says. “Instead of saying ‘includes the following’, it would be better to say ‘means’ so we’re not all speculating as to whether there’s something else that’s not in the list.

“Another prospect is paragraph (d) which says, ‘ensuring that the relevant services and associated products that the financial institution provides are likely to meet the requirements and objectives of likely consumers (when viewed as a group)’. While some have no issue with the other limbs [of CoFI] such as paying due regard to consumers’ interests and assisting them to make informed decisions, they think (d) potentially goes too far.”

Clarity needed Chapman Tripp partner Tim Williams says financial institutions need to know quickly whether changes are intended and, if so, what these are likely to be so the sector has time to prepare.

Otherwise, CoFI’s start date might need to be extended.

It’s likely that National’s plans are more nuanced than may have been anticipated when the word “repeal” was used at the FSC conference.

“From the National Party announcement and subsequent commentary, it appears that the National Party would wish to wind back the CoFI amendments, rather than repeal them as originally announced,” Williams says. “Of course, much will depend on what the National Party’s coalition partners will agree to, which 04

Lloyd Kavanagh

Blair Keown

Financial institutions need to know quickly whether changes are intended and, if so, what changes are likely to be made, so they have time to prepare

is currently unknown.”

Williams says if there is a willingness to improve the legislation, the improvements could include: ■ requiring financial institutions to review, monitor and manage employees and assess their compliance against their fair conduct programs, rather than against the nebulous fair conduct principle, so the programs can be tailored to the financial institution’s circumstances, as intended; ■ clarifying the meaning of the fair conduct principle to treat customers fairly, with a clear and complete, rather than openended, description of the objective; ■ having the fair conduct requirements apply only to consumers, rather than including retail clients, so financial institutions which deal with both classes have a consistent boundary; ■ requiring fair conduct programs be developed using a risk-based approach with a suitable materiality threshold, so programs are not burdened with minutiae and unnecessary compliance; ■ not requiring financial institutions to review distribution methods when the distributors are licensed with their own consumer protection duties, which is unnecessary duplication; ■ removing duplication in licensing requirements, such as not asking directors and senior managers to demonstrate they are fit and proper if they have already done so under other licences; ■ limiting the incentives restrictions to targets and thresholds, as the minister announced, and not including additional requirements in fair conduct programs; and ■ exempting genuine training courses from the incentive prohibitions.

Bell Gully partner Blair Keown says few would dispute that the basic idea of CoFI - treating consumers fairly - is a good thing.

Uncertainty in the regime as it stands creates risk, however.

“As enacted, the CoFI regime involves a tension between a set of prescriptive systems and control requirements, such as the minimum components a fair conduct program requires, and a much broader and more abstract requirement for systems and controls to ensure consumers are treated fairly,” Keown says.

“Overseas experience illustrates the importance of ensuring institutions have sufficient guidance to navigate such regimes with certainty. The UK regime, for example, comprises 12 principles that are supplemented by a detailed handbook, guidance notes and other regulator communications.”

He says the change in government may provide an opportunity to reflect on exactly what CoFI is seeking to achieve.

In Bayly’s ear Questions have arisen about which organisations have been in the National Party’s ear to reform CoFI. LawNews has been told it’s unlikely the NZBA was calling for it and the FSA has confirmed it didn’t ask Bayly for repeal. But the FSF’s chief

Continued on page 05

Nov 24, 2023 Issue 42

Continued from page 04

executive, Lyn McMorran, confirms she has been talking to the National Party.

McMorran says it’s no secret that her organisation wasn’t particularly supportive of CoFI from the beginning. “The Bankers Association, FSC, Financial Advice New Zealand, the Insurance Council and ourselves collectively wrote a letter to the then minister [Kris Faafoi].”

Their argument was that reforming multiple laws at the same time, including CoFI, the Credit Contracts & Consumer Finance Act (CCCFA), the Insurance Contracts Bill, as well as yet another licensing regime when the entities were already licensed for their prudential supervision by the Reserve Bank, was not necessary.

“We asked for the CoFI legislation to just be halted until everything else was in place. Then, if there was a gap somewhere in the existing licensing regimes around conduct, let’s look at those and make whatever tweaks are necessary to ensure good conduct and good customer outcomes.

“It wasn’t that we were opposed to the idea of good conduct or good customer outcomes. It was just more legislation and more regulation, more compliance, more licensing, more cost. “Just layer upon layer upon layer, for no real apparent reason.

“Our other arguments at the time were that it was badly drafted legislation that was fluffy and woolly around what exactly customer outcomes looked like, and what a fair conduct program was.”

McMorran says the CoFI regime is difficult for small organisations. She cites the example of one credit union member, which has only 13 staff to run its entire operation.

Modernising insurance law Labour’s Insurance Contracts Bill, once lauded for tidying up curly insurance law issues, was thought by some to be dead in the water with the change of government.

But Chapman Tripp’s Williams told LawNews he had heard the bill is “pretty well advanced”, would likely be finalised in December, and would be introduced to the House in the new year.

Sam Hiebendaal

It was badly drafted legislation that was fluffy and woolly around what exactly customer outcomes looked like

LawNews put the question to the Ministry of Business, Innovation & Employment (MBIE’s) manager financial markets Tom Simcock, who said the ministry has been considering the issues raised in public submissions on an exposure draft of the Bill. “Decisions on next steps for the bill will need to be discussed with the incoming government,” he says.

The Bill is designed to modernise New Zealand insurance law, some of which dates back to the early part of the 20th century.

One major change relates to the duty of disclosure. The onus would shift to the insurer to ask the right questions when the customer applies for a policy, rather that the customer being responsible for telling the insurer everything it needs to know, as at present. But policyholders would be required to “take reasonable care not to make a misrepresentation to the insurer”.

Bell Gully senior associate Sam Hiebendaal says the law is fragmented and outdated and there is recognition that the duty of disclosure and other aspects of the law could be changed.

However, the “reasonable care” duty may put insurers in a worse position than they would be under the general law of misrepresentation, Hiebendaal says.

Another important change would be removing the statutory charge that applies to defence costs under the Law Reform Act 1936 and replace it with a right for third parties to make direct claims against an insurer under a relevant policy in certain circumstances, where the insured is insolvent or deceased.

Several parts of the Bill are potentially problematic where there is no strong evidence to show that reform is needed, Hiebendaal says. “For example, the Bill contains a proposal to remove or reduce the existing exemptions for insurance contracts that currently put them outside the scope of the unfair contract terms regime in the Fair Trading Act. “We consider there are good reasons for those exemptions and they should remain.” Unlike other contracts that are subject to the unfair terms regime, the insurance contract is the product itself.

Hiebendaal says it remains to be seen if the Bill will still be introduced to Parliament and in precisely what form. “It was not a policy focus among the parties likely to be part of the incoming government.” ■

Evidence Law

Update

A comprehensive guide for civil and criminal lawyers

Tuesday 12 December | 4.00 – 6.15pm Webinar | 2 CPD hours

CPD 05

CRIMINAL LAW

New report casts spotlight on ‘irredeemably racist’ criminal justice system Interactions with the police were overwhelmingly negative and didn’t improve when dealing with ‘the ‘brown cops’ who were often described as being equally bad, if not worse, than the rest

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Reweti Kohere

inform transformative change.

Treat alcohol and drug abuse and addiction as a public health issue. Remove benefit fraud prosecutions from the criminal jurisdictions. Overhaul the legal aid system and invest more in community law centres. Improve access and resourcing to therapy in prisons and increase Pacific service providers working in criminal justice.

More fundamentally, the current criminal justice system (CJS) is “systemically dysfunctional, irredeemably racist, and exhausted beyond its limits”.

It must be rejected and replaced with alternative systems built on community, belonging, relationships and collective responsibility and accountability.

These are just some of the possible changes that Pacific people who have experienced New Zealand’s criminal justice system (CJS) recommend in a new report, as researchers advocate for more urgent and comprehensive transformation.

Pacific Peoples and the Criminal Justice System in Aotearoa New Zealand: Past, Present and Future is a two-part research project involving an all-Pacific team led by legal scholar Litia Tuiburelevu. The project received more than $250,000 of funding from the Michael and Suzanne Borrin Foundation.

With a focus on Pacific research methodologies and values emphasising communal relationships, reciprocity and holism, the first report analyses the existing research on Pacific peoples and the justice system. Part two then outlines responses to research questions by “knowledge-holders” – Pacific people who have interacted with the justice system, not just as offenders but as survivors, family members ad legal professionals – and how their perspectives may

Urgent and comprehensive Described as short to medium-term possibilities for change, the recommendations make up the most dominant ideas presented by the researchers’ knowledge-holders and include: ■ assessing how current liquor licensing laws impact neighbourhoods most populated by Pacific peoples and ensure that any interventions are done with, and by, the affected communities as part of addressing alcohol abuse and addiction as a public health issue; ■ increasing people’s awareness of alternative justice schemes, especially those available for Pacific peoples; ■ mandating court rehearsals for new entrants into the justice system and adopting a “flat” courtroom hierarchy where parties sit on the same level; ■ expanding support measures and investing in culturally appropriate services for survivors to address “the radiating trauma” of being involved in the justice system; ■ extending visitation rights to prisoners and making phone calls free and readily available; ■ increasing transparency of the system by giving independent researchers and journalists access to prisons for reporting purposes on the principle of open justice; and ■ funding therapeutic interventions within communities to address urgent mental health needs, especially for adult Pacific men.

Longer-term, the researchers point to existing research that informs their vision of “dismantling the justice system’s mono-legal foundations”, chief among

them He Whaipaanga Hou, the seminal work of the late Māori scholar Moana Jackson (Ngāti Porou and Ngāti Kahungunu), and Matike Mai Aotearoa, which advocates for constitutional transformation.

Broadly, the works cited recommend urgently and comprehensively transforming the criminal justice system; rejecting the liberal reformist ideology of making tweaks; affirming tino rangatiratanga and redistributing power from “the current Crown monopoly”; creating a restorative, rehabilitative justice system rather than something adversarial and punitive; abolishing all prisons by 2040 through strategies to progressively reduce prisoner numbers; and reimagining public safety, accountability and punishment through a framework of abolition.

The starting point for transformative change is confronting the drivers of harm, which precede the entry of Pacific peoples into the justice system, the researchers say. This requires prioritising investment in therapeutic responses to address urgent health, education and wellbeing needs in the community, as well as targeted injections into improving the material conditions of the most socio-econmically marginalised people.

“Safe housing is transformative justice. Liveable incomes are transformative justice. Anti-racism is transformative justice. Mutual aid is transformative justice. Education is transformative justice. Quality and affordable healthcare is transformative justice and so on and so,” they say.

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Nov 24, 2023 Issue 42

Continued from page 06 ‘Rather unhappy tale’ Pacific peoples make up just over 8% of all criminal justice proceedings, 9% of sentences and 11% of the prison population. Proportionate to their total population size, Pacific peoples are marginally overrepresented, with the most dominant offences being road violations and low-level assaults. Pacific men under 25 comprise the majority of Pacific peoples’ offenders. Most police proceedings occur in Auckland, concentrated in Counties Manukau where two-thirds of Pacific peoples live.

Most of the 52 knowledge-holders, who shared their experiences through “talanoa”, or mutual exchanges of personal stories, ideas and thinking, were Polynesian (Samoan/Tongan), under 40, and based in Auckland. While their views helped the researchers understand Pacific peoples’ relationship to the criminal justice system, particularly the “problem” of Pacific offending and their overrepresentation, broader engagement is needed to paint a fuller picture, the researchers say.

Nevertheless, the knowledge-holders’ stories describe “a rather unhappy tale” about Pacific peoples’ engagement with the justice system. Offenders said they were often the first in their family to interact with the system, with their most serious offending generally happening in their twenties. Interactions with the police were “overwhelmingly negative” and didn’t improve when dealing with “the ‘brown cops’ who were often described as being “equally bad, if not worse, than the rest”. The court system was “confusing”, “isolating” and “exhausting”.

The stigma of shame also pervades many of their and their families’ experiences. One offender said that, growing up, children never answered their parents back. “They think it’s shameful to talk about whatever’s going on. And they never talked to us about anything

so we just thought ‘oh look, we assume that they don’t talk about those things’, we shouldn’t talk about those things…it’s a sign of weakness,” he said. “Undoing it was pretty hard.”

Giving back Of the four family members related to current or former offenders, one said when a child went through the system, “your whole world falls apart”, while another said that trying to stop their child from going to jail meant “that’s our mental wellbeing gone”.

Two survivors – both women and mothers who have survived intimate partner violence – had markedly different experiences of the system. The first knowledge-holder felt like a “silent party”, watching decisions being made by the police, court advisers and lawyers about her life. By comparison, the second survivor said her experience was “really positive”. She was supported by a “really excellent detective” and her lawyer explained the trial process well, including by taking her and her family through the courtroom the week before the trial to help familiarise them with the environment.

While acknowledging the impossibility of drawing any broad conclusions about Pacific survivors from the accounts of two women, the researchers identified that the critical difference in their experiences came down to the police support they received, and how much agency they were afforded.

Among the legal professionals, comprised of defence counsel, Crown prosecutors, court staff, prison officers and social service providers, the theme of tautua (or service) reoccurred throughout their talanoa. “All spoke of their desire to ‘give back to our people’ and their motivation to pursue a career in the law to serve our communities best,” the researchers said. “There was unanimous agreement that the justice system continues to underserve our people, and all recognised that the privilege of a legal education came

with a responsibility to give back.”

Being the first To the researchers’ knowledge, the project is the first qualitative research on Pacific peoples’ experiences of the criminal justice system. But being the first isn’t worth celebrating, they say, for “it is an indictment of the legal profession’s failure to support, resource and publish research on Pacific peoples and the law”.

Characterising their work as pioneering erases the many previous contributions by other Pacific people outside the world of academia, which have “been buried under the weight of government bureaucracy, relegated to library catalogues, lost to the tides of time or dismissed for their lack of ‘academic’ status”, they say.

It's one of the researchers’ biggest conclusions: a sizeable body of research exists on Pacific peoples and the criminal justice system but much of it remains out of public view. Several reports, commissioned by government agencies over 20 years, were identified in the course of their research, including one authored by now District Court Judge Ida Malosi and barrister Sandra Alofivae in 1996 as part of the Law Commission’s five-year project exploring the proper treatment of New Zealand women by the legal system. While they surveyed only 60 Pacific women in Auckland at the time, Judge Malosi and Alofivae’s report is the most comprehensive discussion of Pacific peoples’ experiences with access to justice, the researchers note.

“From where we stand, one of the biggest obstacles to creating transformative change is the pervasiveness of government/institutional inertia. Successive governments continue to stockpile ground-breaking work without ever actioning transformative change,” the researchers say. “If those working in the system are so impenetrably wedded to maintaining the status quo, how do we make change?”

The project reports can be read here.

Update

on Torts New court decisions impacting torts

Tuesday 5 December | 4.00 – 5.30pm Webinar | 1.5 CPD hours

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COMMITTEES

Meet Hannah Kim, co-convenor Parole and Prisoner Rights committee When I was reading cases, it was How long have you been involved with The Law Association committees and like reading stories of people’s which committees have you worked with? lives I’ve been involved with the committees for about two

Brenda Newth Where do you work, what’s your role?

I’m a barrister sole, working in Manukau, South Auckland.

Where did you study?

Hannah Kim

In the UK, the prisoner representation rate is about 90% and in New Zealand it’s less than 50% 08

I studied at Auckland University, completing a BA/ LLB. Initially, I didn’t really think about law school, I just wanted to do a BA because I wanted to be an art historian or a curator. I just loved the subject. But my parents, being Asian, were very disappointed that I wasn’t going to study science or maths or engineering, like my sister. So, they were resistant to the idea and said: “No, you can do a BA at law school. So, I did a conjoint. But then I ended up really liking law.

In the second year you do criminal law as one of your mandatory papers. When I was reading cases, it was like reading stories of people’s lives. And in every case the facts were different. Every case was unique.

And that taught me that a criminal lawyer’s role is very important because it wasn’t like other fields of law, like commercial or contract where I always felt the law is so rigid and strict that there was not enough room for lawyers to intervene. I felt that as a lawyer working in criminal law, the more work you put in, the more difference you can make. And I was very attracted to that.

What’s been your career to date?

After university I was a junior barrister for Shane Tait for just over five years. I was fortunate to be employed by him when I had absolutely no experience. He is still a good mentor. In 2012, I left to become selfemployed. The move to work as a barrister sole was a natural transition.

years now, as co-convenor of the Parole and Prisoner Rights Law committee and a member of the Criminal Law committee.

I got involved because at the time I was doing a lot of work with prisons. I had a client who was one of the prisoners mistreated in Auckland women’s prison.

And there was a lot of public interest in that case. A lot of people found out about how horrible the prison treatment was and that’s when I really got interested in prisoners’ rights and how prison operated in general.

Why is committee work important?

From my prisoner mistreatment experience, I realised that as a lawyer your role is more than just representing your clients. I was doing interviews with journalists and all these things were being published.

I think that issue brought a lot of people together and brought a greater awareness. During that time many lawyers came up to me and started talking about issues and problems and things that could be fixed.

And I think if you’re doing committee work, you can be an advocate and really represent the people you have as clients rather than just running your practice.

And to me, that’s very, very important.

Defence lawyers often represent people who are vulnerable and marginalised and often society doesn’t really care about them. I don’t think they care about prisoners’ rights. They often think they deserve to be there. But there are things happening in prison – such as human rights breaches – that bea lawyer gave me an opportunity to care more.

How do The Law Association committees make a difference?

You’re involved with other people who are also passionate. And I think it motivates us to do more

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Nov 24, 2023 Issue 42

Continued from page 08 – to be a voice and advocate for people who are vulnerable, who are voiceless and doing that extra work.

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

You must be very diligent. You have to be able to listen – a very important quality – and share ideas.

What is your biggest frustration as a convenor?

When people don’t have an opinion. I would rather we have the discussion. Even if I don’t agree, I respect everyone’s view, that they’ve thought about an issue and want to do something about it.

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

Why was that important?

One of our priorities (that we are still working on) is to increase the number of people who do parole work, so we can increase prisoner representation. We want to encourage this because not all criminal lawyers do parole work.

It’s important because the number of prisoners who are represented in New Zealand is dramatically low.

For example, in the UK, the prisoner representation rate (I’ve been told) is about 90% and in New Zealand it’s less than 50%.

We think it’s important to have a lawyer present for parole and other disciplinary hearings in prison because it also affects treatment of prisoners and how prisons operate in general. Unless there’s someone challenging the prisons and saying, “that’s not the law, and you’re not following protocol”, prisoners would have no chance of challenging it themselves. It’s important that lawyers are there and protecting the client’s interests.

There are several reasons why there’s such low participation by lawyers:

■ prisoners themselves sometimes don’t know they are entitled to a lawyer when they’re applying for parole because no one told them.

■ prisoners don’t know that they can get legal aid to cover the cost, so they sometimes just don’t bother. And they just appear themselves. Lawyers can do so much to help them.

■ the way that parole hearings are run is so different from court. Because it’s a closed court, it’s not

available to other lawyers to observe and learn. So, lawyers interested in this area don’t know how to start.

We are having discussions with the Legal Aid Commissioner to see whether certain hearings can be covered and the fixed fee increased, but I don’t think that is the only problem preventing participation by lawyers in parole hearings. Training might be required and raising awareness amongst lawyers.

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

Yes. We made two submissions on the following topics: ■ Public Safety and Serious Offenders: A review of preventive detention and post-sentence orders (July 2023); and ■ Corrections Amendment Bill (August 2023)

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

They should definitely do it.

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

Law changes. During the last government, we had a real problem with sudden law changes without any consultation. From a lawyer’s perspective – for any law change – there should always be the proper process of consulting all the bodies because we are able to tell them, “In practice, this is what’s going to happen.

Although you’re intending to achieve ‘this’, it’s actually going to make things worse and we are making our submissions in order to protect our clients”.

The new government has promised (in its first 100 days) that it will get rid of funding for cultural reports.

The effect it will have on the clients who are already marginalised is going to be huge and might lead to access-to-justice issues because only those who can afford it privately will be able to pay for that report now.

To me, it’s very short-sighted. When governments make significant changes like that, it is so dramatic.

They see a problem and just want to fix it, without seeing the overall context. And without consultation, it really frustrates us because in practice it has huge consequences.

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

Collegiality. I think we’re a really tight bunch, especially the criminal committee.

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

Attrition and work-life balance. I’ve been doing criminal law for more than 16 years. I have always found it stressful and hard, but really worthwhile.

Today, I see so many lawyers who are leaving the profession or are completely exhausted and they just can’t cope. And I don’t know if I’ve ever seen that kind of effect before. It’s more dramatic. Is there anything we can do? But we’re also very busy. Mental wellbeing is a topic that we need to discuss more.

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, other than the mistreatment case which was about four years ago. I wasn’t on any committees at that stage.

What is your vision for the legal profession in 2050?

I think a lot of people fear AI. There’s a fear that computers or artificial intelligence can do the job that we do, which I don’t hold. In criminal law and jury trials, lawyers will still be required because it’s human interaction. I hope criminal law and jury trials are going strong in 2050. I would be thrilled if I’m still standing in a courtroom running trials in 2050!

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

I think The Law Association does remarkably well.

And it has made so many changes to modernise. It already has a group full of new student members. It encourages young lawyers to join this organisation, which is a really good thing. As a new lawyer, I was so intimidated. I wouldn’t dare join an organisation. The Law Association already does really good work on that front.

On another note, I was excited to hear that The Law Association is also intending to do podcasts. In a recent trial I was involved in, I was surrounded by senior lawyers. I jokingly told them they should do a podcast on travel, food and cooking – eg, “lawyers who cook,” because they didn’t stop talking about it. It’s something that might interest other lawyers who can relate, and to know that lawyers do talk about things other than law! ■ To find out more about The Law Association’s committees, please contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz ■ 09

DEFAMATION

How the Defamation Act might be reformed Legislative reform would be opportune to iron out uncertainty and enjoy the benefits of the considerable bodies of case law on these same issues in comparable jurisdictions

Ali Romanos In the 30 years since our Defamation Act 1992 came into force, comparable jurisdictions have overhauled their legislation: England in 1996 and 2013, Australia in 2005 and 2021, Scotland in 2021 and Ireland in 2009 (with further reforms afoot).

By contrast, in New Zealand there has been no overwhelming exigency or political appetite for change.

This must reflect to some degree the success of the McKay committee, whose 1977 report laid a solid foundation for the Act. The committee was, in fact, ahead of its time. For example, it influenced the renaming of defences - justification to truth and fair comment to honest opinion - decades before New Zealand’s common law counterparts. However, the lack of appetite for change is also likely a reflection of New Zealand’s relatively light body of case law – around 950 defamation judgments (trials, appeals, interlocutories and costs) in the past 30 years.

That said, any piece of communication law which projects booksellers, librarians, newspapers and broadcasters as primary disseminators of potential defamation - and, moreover, an Act which does not conceive of the internet, let alone social media must at least raise questions for reform.

To get this ball rolling, this article puts forward four discussion points: ■ whether New Zealand’s existing common law harm threshold should be revisited by legislation; ■ whether the current remedies framework is fit for purpose; ■ whether civil juries have a place in Aotearoa New Zealand’s future; and ■ whether identification of some of the Act’s anachronisms support a broader legislative overhaul.

10

Should a harm threshold be legislated?

Historically, a plaintiff in defamation was not required to establish actual reputational harm. Upon proof of the elements - publication, identification and a meaning’s inherently injurious character (ie. its “defamatory tendency”) - the tort was established.

This “presumption of harm” was pragmatic: it stopped intending plaintiffs having to, say, scour a newspaper’s readership to find witnesses in whose eyes their reputation had been injured. As a result, any actual reputational harm established, inferred predominantly by an allegation’s gravity and width of publication, went only to damages.

From around the turn of the millennium, English common law began taking a more robust view, recognising some actual reputational harm should be present to ascertain the tort’s commission. Courts came to approach this issue from two directions. First, they could assess whether there was in fact a dispute of sufficient gravity to warrant litigation; whether a “real and substantial tort” had been committed.

This inquiry, which became known as the Jameel principle (Jameel v Dow Jones Ltd [2005] QB 946) applied in cases with a very narrow width of publication; cases where it could be ascertained that the publication’s recipients were unmoved in their estimation of the plaintiff (eg, family members), or the plaintiff’s broader reputation could not have been damaged more than negligibly. Thus, under the Jameel principle, the presumption of harm could be rebutted in an appropriate case.

Second, courts began to scrutinise the intrinsic seriousness

Continued on page 11

Ali Romanos

Palmer J held a threshold of ‘more than minor harm’ was required to found an action for defamation

Nov 24, 2023

Photo: Westend61/Getty Images

Issue 42

Continued from page 10

of defamatory meanings. Put simply, were the meanings sufficiently grave for the plaintiff to have been genuinely defamed? Under this “Thornton threshold”, meanings had to have a tendency of substantial reputational harm to enable proper inference that the claimant had indeed been lowered in the estimation of right-thinking people.

This didn’t change the law per se but, rather, brought sharper focus to the inquiry of defamatory tendency. But importantly, in terms of framework, if a meaning crossed this threshold of seriousness, then the presumption of harm would be activated, although it would remain subject to potential rebuttal under the Jameel principle.

These developments soon gave way to the Defamation Act 2013 (UK), under which a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

Fast-forwarding to 2019, the UK Supreme Court held this serious harm threshold must be determined against a publication’s actual impact, not merely the defamatory tendency of a particular meaning. To be sure, actual impact can still be inferred; a grave meaning and broad width of publication will support this. But crucially, the presumption of harm based merely on a meaning’s defamatory tendency - even substantially defamatory tendency - has been swept aside.

Against this iconoclastic, albeit now-settled English position, some Australian states and territories have adopted a serious harm threshold as a discrete cause-of-action element; Scotland has made serious harm an explicit precondition of actionability;

and the short odds are for Ireland to soon join these ranks.

Pan to New Zealand and one observes a stray from orthodoxy. It began innocuously enough, with a series of judgments that cautiously adopted the Jameel principle or gave obiter support to a requisite threshold of seriousness. But in 2017, Palmer J opted for a slightly different approach in Sellman v Slater [2017] NZHC 2392, thereafter approved uncritically by the Court of Appeal, which has left New Zealand law (one might argue) muddled and undeniably divergent from its overseas counterparts.

To trace this path, Palmer J accepted the underlying rationale of the Jameel principle: to weed out, in exceptional cases, claims so disproportionately burdensome on resources that they may be characterised as an abuse of process. Palmer J was, however, concerned Jameel’s reach could trample fundamental constitutional principles safeguarding access to courts. So, leaning on then-fresh UK Court of Appeal precedent (spoiler: such precedent was subsequently reversed), Palmer J considered “the presumption of damage remains a sensible element of the law of defamation”.

In so finding, Palmer J said this presumption was rebuttable: If the publisher can show there is not, and is not likely to be, sufficient damage to reputation above a certain threshold, then that should be able to be raised as a defence to a claim of defamation.

For the threshold itself, Palmer J disagreed with the Englishlegislated serious harm threshold on the basis that he considered it “possible for an actionable defamation that

It would be fanciful to conclude New Zealand law has settled satisfactorily on these issues

Continued on page 12 11

Continued from page 11 causes less than serious but more than minor harm to reputation to be reflected in a nominal award of damages, combined with a declaration of defamation” and moreover that such outcome “may still constitute a reasonable limit on the right to freedom of expression”.

In so finding, Palmer J resolved to draw a line around a concept of “minor harm”. On one side, Palmer J held that if a defendant could show his or her statement caused “less than minor harm” to the plaintiff’s reputation, then this would defeat a claim and, moreover, ground a Jameel-based strikeout application. On the other side, Palmer J held a threshold of “more than minor harm” was required to found an action for defamation in New Zealand.

As foreshadowed, Palmer J relied on a UK Court of Appeal decision that was later reversed in the Supreme Court (Lachaux v Independent Print Ltd [2017] EWCA Civ 1334). As noted, the Supreme Court held that harm under the UK legislation is to be assessed by reference to actual facts, rather than mere defamatory tendency. Distinguishing the approaches, a defamatory tendency inquiry retains a presumption-of-harm framework, whereas an actual harm inquiry casts this aside.

English law clearly now takes the latter approach.

By contrast, Palmer J’s decision can be seen to “have a bob each way”. He appeared to consider defamatory tendency/ presumption of harm as the better framework, but also envisaged actual-harm considerations in assessing its rebuttal.

It may be that Palmer J’s novel threshold presents a difficulty for cases where simply minor harm (not less than, but also not more than) is established. Such cases will apparently survive strike-out, but not prevail at trial. Further, if Palmer J’s approach is to be followed to the letter, only nominal damages should be available in cases where the harm is assessed to be “less than serious but more than minor”.

It doesn’t seem credible that a case where more than minor harm is established (so, moderate harm?) would give rise only to nominal damages. And further, it is probably the exception rather than the norm that a plaintiff will seek damages and a

declaration, since the costs benefits of a declaration fall away if one seeks damages.

But as perhaps the most pressing issue arising from Palmer J’s decision, to what extent is the more-than-minor-harm inquiry to be resolved by dint of meanings’ defamatory tendency vis-àvis actual reputational harm as a matter of evidence?

The Court of Appeal had an opportunity to scrutinise Palmer J’s approach in 2020. In Craig v Slater it held as follows: We approve adoption of the “more than minor” harm requirement in New Zealand common law, for three reasons.

The first is that damage to reputation is an essential element of the cause of action of defamation, for the reasons Tugendhat J canvassed in Thornton v Telegraph Media Group Ltd. The fact that damage is rebuttably presumed (in most cases) does not alter the fact that damage to reputational credit remains an element of the tort. Principle and proof should not be confused. Secondly, a threshold of this kind is a necessary consequence of the right to freedom of expression protected by s 14 of the New Zealand Bill of Rights Act 1990. We agree with the reasoning of Palmer J in Sellman v Slater on that point. Thirdly, we consider the requisite threshold standard – “more than minor harm” - was correctly identified in the same decision and is to be preferred to a higher standard based on the word “serious”.

While this paragraph may look substantive, on close inspection there is no meat to the court’s analysis. Further, the court, in approving Palmer J’s more-than-minor-harm threshold, tended to confuse the situation further with its characterisation of harm being “rebuttably presumed (in most cases)” – whatever that ultimately means. Finally, to underscore the uncertainty, the Court of Appeal blandly cited the UK Supreme Court’s decision in Lachaux, but did not address, much less reconcile, the fact that Palmer J’s decision had been influenced by the now-reversed UK Court of Appeal decision.

Where to from here? Respectfully, with the Court of Appeal’s approval of Palmer J’s more-than-minor-harm threshold and

In practice, abuse of s 24 has been fairly rampant

Continued on page 13

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Nov 24, 2023 Issue 42

Continued from page 12 lack of reconciliation of the framework for this threshold, New Zealand law is trapped in presumption-of-harm cement while its overseas counterparts forge ahead.

It would be fanciful to conclude New Zealand law has settled satisfactorily on these issues. It is submitted that a legislative response is warranted, both as a means to address the appropriate threshold of harm (be it serious, substantial, more than minor, minor or something else), and to reconcile whether a presumption of harm is and/or should remain part of a modern New Zealand defamation law.

In any case, legislative reform would be opportune to iron out uncertainty and enjoy the benefits of the considerable bodies of case law on these same issues in comparable jurisdictions.

Is New Zealand’s remedies framework fit for purpose?

For present purposes, the remedies discussed are apologies and declarations. Provisions in the Act addressing damages are addressed in the “anachronisms” section of this article.

First, apologies. Historically, these weren’t “ordered” by a court, given the once-felt oddity of the state ordering people to feel or express contrition. But this libertarianism has subsided.

In 2005, a BSA-ordered apology by Radio New Zealand for a broadcast about Peter Ellis was upheld by a full court of the High Court in Radio New Zealand v Peter Ellis [2006] NZAR 1. We then had the Harmful Digital Communications Act 2015, under which Parliament empowered judges explicitly to order the publication of apologies. And finally, we had a substantive defamation decision in which Collins J, in Newton v Dunn [2007] NZHC 2083, read into s 26 of the Act (which addresses the remedy of corrections) the power to order an apology.

Against this backdrop, it seems sensible for any reform to consider court-ordered apologies as an explicit remedy in defamation. Indeed, for many plaintiffs, a prominent apology that at least conveys contrition (even if not actually felt by the defendant) is a more satisfactory means of vindication than some staid correction.

Second, declarations. This initially unique remedy is another badge of the McKay Committee’s legacy. Section 24 of the Act provides: (1) In any proceedings for defamation, the plaintiff may seek a declaration that the defendant is liable to the plaintiff in defamation.

(2) Where, in any proceedings for defamation, – (a) the plaintiff seeks only a declaration and costs; and (b) the court makes the declaration sought, – the plaintiff shall be awarded solicitor and client costs against the defendant in the proceedings, unless the court orders otherwise.

Subsection 1 is uncontroversial. In any given case, a formal declaration of liability for defamation will serve as a valuable stamp of vindication for a plaintiff’s reputation (an award

of damages will also achieve this, the amount indicating the measure of vindication). Subsection 2, however, is most controversial. For one thing, it serves as a legislative exception to the costs regime under the High/District Court Rules.

And though there are relatively few judgments where it has been applied, for defendants with an arguable defence, the indemnity-costs presumption makes for an ugly bedfellow of general litigation risk.

It is helpful to explore the intention of s 24. For the McKay committee, declarations were perceived as a means to prevent third parties alleging a plaintiff’s claim was simply a gold-digging exercise (ironically, a potentially defamatory claim in itself) and would remove obstacles the McKay committee perceived stood in the way of such relief being ordered under the Declaratory Judgments Act 1908.

While the McKay committee accepted the efficacy of declarations was dependent to some extent on the speed with which such claims could be heard in court, it rejected calls for streamlined litigation procedures or declaration-based claims to be prioritised.

Without any consideration of its potential abuse, the McKay committee proposed to “further enhance the attractiveness of this avenue for plaintiffs” by offering presumptive indemnity costs to those who sought only a declaration.

In Hansard, the declaration remedy is barely mentioned.

In 1988, then Justice Minister Geoffrey Palmer considered the declaration-and-indemnity-costs combination would suit “persons who are more interested in clearing their name quickly than in obtaining damages”. As with the McKay committee, noone in Parliament articulated any contemplation of abuse.

In practice, abuse of s 24 has been fairly rampant. Now, most experienced practitioners can recall cases where a deserving plaintiff has achieved settlement utilising the s 24 solicitor-client costs provision against a defendant who might otherwise have chanced their arm and put the plaintiff through the ordeal of a trial.

However, the much more common scenario is that of defendants, although facing relatively weak claims, buckling under s 24(2) costs pressure and settling. Anecdotally, certain prolific plaintiffs have made a somewhat cottage industry out of threatening and settling declaration claims based upon isolated social media comments and/or reviews.

The short point is that nowhere in the legislative history of s 24 was its potential for abuse examined. But now, with 30 years under our belts, perhaps it is time to right the ledger.

Perhaps presumptive indemnity costs could be offered to defendants where a court has refused to grant the declaration.

Or perhaps declarations could be utilised solely for reputation vindication, rather than sheeting home liability.

In this respect, if a claim was restricted to truth or falsity of a factual allegation, with other defences such as privilege and responsible public interest communication made unavailable,

Anecdotally, certain prolific plaintiffs have made a somewhat cottage industry out of threatening and settling declaration claims

Continued on page 14 13

Continued from page 13 then this could enable a streamlined process. Then again, maybe this massively wishful thinking!

Whatever the case, it is submitted both apologies and declarations warrant formal legislative review.

Are civil juries part of our legal future?

Civil juries recently survived the enactment of the Senior Courts Act 2016. Parties may seek a jury only for claims in defamation, false imprisonment and malicious prosecution, the latter two civil actions being so rare that it would seem civil juries’ retention stands or falls on their ongoing relevance to defamation claims.

The arguments for and against juries in defamation haven’t changed much over the years. The usual strengths and weaknesses revolve around the appropriateness of juries’ determining defamation issues, cost to litigants and stress upon court resources.

When the Act was first passed, Parliament protect the role of the jury. For example, the McKay committee’s draft Bill proposed that punitive damages be solely the domain of the trial judge but this restriction was rejected during the legislative process.

However, that was decades ago. More relevantly, one hears from the courts a fairly consistent tone against juries’ retention. For example, during the Williams v Craig litigation, Katz J expressed misgivings about response-to-attack qualified privilege defences being tried before a jury. Meanwhile, when the Court of Appeal determined Durie v Gardiner, the court resolved that both the public interest and responsibility elements of responsible public interest communication would be decided by the judge in a jury trial.

Moreover, the court referred, among other criticisms of juries’ involvement in defamation cases, to the “diminishing importance of the jury in defamation trials”. And in Cato v Manaia Media Ltd, Goddard J suggested that parliamentary review of juries’ availability in defamation cases “may well be desirable”.

Whatever one’s views on the merits of civil juries, it seems this issue should be at least placed on the legislative reform agenda.

Do the Act’s anachronisms support a more general overhaul?

Some parts of the Act are of certain historical significance that is now virtually imperceptible to those other than defamation trainspotters. Some parts of the Act have lost all real currency since their enactment. And some parts have long been problematic and are prime candidates for legislative surgery.

As an example of the first matter, s 7 provides: Single publication to constitute one cause of action Proceedings for defamation based on a single publication constitute one cause of action, no matter how many imputations the published matter contains.

Judges have read this section and perceived its relevance 14

to be tied up with the single-publication rule. But as Ursula Cheer observes in Media Law in New Zealand, s 7 overrides the common law rule that a claim based on both natural and ordinary vis-à-vis innuendo meanings gives rise to discrete causes of action. And even more obscure, s 7 also served as a departure from the once-prevailing custom in New South Wales, where each substantive imputation complained of gave rise to a separate cause of action.

In respect of provisions that have lost their currency, one can cite the once trailblazing s 35 conference. Now, to be fair, such conferences are still convened every few years. Then again, it should be kept in mind that when the Act came into force, the then-extant High Court Rules 1985 did not provide for judicial conferences. They are now a firm (and likely growing) part of civil procedure, so does s 35 still retain currency? It does provide additional powers and procedures, but it would seem much of its procedure is already spoken for under modern High Court Rules.

One provision clearly needing excision is s 38 “particulars of truth”. Long ago, the Supreme Court cleared up this provision’s mislabelling and lack of relevance. Since 1957, all defendants have been required to give particulars of affirmative defences.

And yet, from time to time, this section’s inexplicable retention has led courts down faulty paths.

Section 43, too, calls for a re-think. In full, this provides: Claims for damages (1) In any proceedings for defamation in which a news medium is the defendant, the plaintiff shall not specify in the plaintiff’s statement of claim the amount of any damages claimed by the plaintiff in the proceedings.

(2) In any proceedings for defamation, where – (a) judgment is given in favour of the plaintiff; and (b) the amount of damages awarded to the plaintiff is less than the amount claimed; and (c) in the opinion of the Judge, the damages claimed are grossly excessive, – the court shall award the defendant by whom the damages are payable the solicitor and client costs of the defendant in the proceedings.

On inspection, other than addressing the mischief of the fabled gagging writ, these subsections have no bearing on one another. But that’s an aside. Subsection (1) was always a confused means of addressing gagging writs. Taken at face value, the chilling effect of a defamation lawsuit is apparently neutralised because, while a plaintiff may state in correspondence to a media outlet that he or she is suing for seven figures and may state this in open court, such a sum is expressed in the statement of claim. It has always been a headscratcher; even the most patent non-compliance has been excused.

Subsection (2) is bizarre for different reasons. On its face, it seems a sensible means of stopping gagging writs. But it

Continued on page 15

New Zealand law is trapped in presumptionof-harm cement while its overseas counterparts forge ahead

Nov 24, 2023 Issue 42

Continued from page 14 doesn’t really work. For one thing, courts have interpreted the provision to allow a plaintiff to avoid its consequences simply by amending their damages claim at a late stage of proceedings.

For another, it is odd that a nominally successful plaintiff is penalised with indemnity costs for seeking an exorbitant sum, whereas an entirely unsuccessful plaintiff also seeking such sum, would face only scale costs.

One can make a point of ss 19 and 41, which concern rebuttal of qualified privilege. Following the McKay committee’s recommendations, Parliament did away with the terminology of ‘malice’ as a means to mark a dominant improper motive.

Instead, s 19 provides for qualified privilege’s rebuttal if the plaintiff can prove “the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication”. However, this language has long given an unprincipled primacy to “ill-will”. As William Young J reasoned in Craig v Williams [2019] NZSC 38, the real test is improper advantage, with predominant ill-will merely one way in which improper advantage can be taken.

Given that ‘malice’ terminology was removed because of the McKay committee’s concern about juries’ understanding of it, if juries were abolished for defamation proceedings, then it could make sense to reinstate ‘malice’. Indeed, in claims of malicious

prosecution and malicious (or injurious) falsehood, ‘malice’ is an element of proof – and, ironically, may still call to be determined by a jury.

Further areas for reform In addition to harm threshold, remedies, juries and the noted anachronisms, some interesting further areas for potential reform include: ■ single-publication versus multiple-publication rule ■ pre-action protocol for intending plaintiffs ■ an offer-of-amends regime for defendants ■ suppression orders for plaintiffs of limited-recipient defamations ■ anti-SLAPP (strategic lawsuits against public participation) laws ■ harmonisation of defamation with the Harmful Digital Communications Act 2015 ■ harmonisation of defamation with the privacy torts ■ Durie v Gardiner responsible public interest communication defence versus UK/Australian public-interest defence ■ Legislative clarification whether the ‘likely’ pecuniary loss requirement of bodies corporate means likely future loss after trial, or likely retrospective losses following publication ■

Nowhere in the legislative history of s 24 was its potential for abuse examined

Ali Romanos is a barrister specialising in defamation and media law ■

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