NEWS Mar 11, 2022 Issue 6
Inside ■ UKRAINE
The perils and parameters of sanctions P05
■ PHILANTHROPY
A new way of structuring donations P06-07
Chief Justice calls for
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FULLY DIGITISED COURTS
Contents 03-04 COVID-19 LEGAL AID DIGITISATION
Chief Justice Dame Helen Winkelmann delivers her first annual report
05 UKRAINE ASSETS RUSSIA
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
The Russian Sanctions Bill: the parameters and the pitfalls
Editor: Jenni McManus Publisher: ADLS
09 FAMILY LAW DIVERSITY COURTS
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First of a series: a day in the life of a lawyer
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CPD IN BRIEF
How the influence of the alt-right is growing in New Zealand
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Mar 11 2022 Issue 6
THE COURTS
Covid shows the way towards digitising the courts, Chief Justice says It showed us that things we thought were absolutely unchangeable in the system – that were absolutely concreted into the system – can change if all the participants work together
Jenni McManus
It’s the first of what she intends to be regular reports to the public and the legal profession and the inaugural report covers a wide range of topics ranging from the diversity of the judiciary and Two years ago, when New Zealand experienced its first case of the rules of conduct for judges to the problems with legal aid. covid-19 and was plunged into a nationwide lockdown, the courts “It gives an account of the challenges the courts have faced were forced to reassess the way they operated. recently and those we anticipate in the future,” she says, and it’s It was no small task. “Many of the courts’ operating systems being released in the interests of transparency. would have been familiar to a lawyer in the 19th Our registries “Courts are, after all, a public institution but I also century,” says Chief Justice Helen Winkelmann. “This was the result of a lack of investment in the are stuffed full think it’s important for people to see what goes on within the judiciary that we do together with the courts which stretches back over decades.” There of paper files Ministry of Justice to try to ensure that our courts were paper files, there was no electronic payments meet the needs of our society and that they’re system and audio-visual links were limited. resilient in the face of disruption and change. The In a word, the Chief Justice says, they were courts are part of the bedrock on which we build a civil society, so ‘Dickensian’. But, when the pandemic hit, the courts had to move they have to be resilient.” quickly to remote hearings for much of their business. The annual report details how covid-19 exacerbated the delays “What were initially short-term fixes have become part of our and inefficiencies already present in the court system. Lockdown standard operating model for the pandemic. We now conduct a significant portion of our hearings remotely, payment can be made rules meant jury and judge-alone trials were suspended in the criminal jurisdiction for much of the pandemic though systems electronically, which is just as well as cheques have effectively were gradually put in place to allow the courts to do most of their been abolished, and parties now file their papers electronically.” usual work in this latest wave of the pandemic. Nevertheless, the challenges of dealing with the delays and Not all hearings can be held remotely – in general, if the complexities of covid-19 were exacerbated by the lack of an defendant needs to be present the hearing must be in-person – effective digital operating model, Chief Justice Winkelmann says. but much of the procedural work is now being disposed of via AVL. “This makes efficient management of the courts’ workload Most recently, RAT tests have been introduced for all participants difficult, is a constraint upon innovation and creates a risk of in jury trials and to enable the unvaccinated (who cannot be critical events and deadlines being missed for those who are banned from court hearings they are compelled to attend) to involved in the proceedings. Innovation in technology to support a attend court. digitally based operating model is a high priority.” Most potential jurors, however, are fully vaccinated. According While she says the courts have increased the extent to which to Chief High Court Judge Susan Thomas – who, with Chief they can operate remotely, their systems are still paper-based. District Court Judge Heemi Taumaunu and the Chief Justice “Our registries are stuffed full of paper files. By a digital fronted the media at last Friday’s release of the annual report – of operating model, I mean that we don’t have digitally stored and the 753 jurors who turned up the week previously, only 12 were managed files. We don’t have a digital case flow system. This is unvaccinated. an investment the courts badly need. A digital case flow system The Chief Justice acknowledges all this change has been will not only support remote operation but it will also enable us to disruptive. manage our existing workload with more flexibility and efficiency “When we change the system, we were asking all the people and convenience for those who use the court system.” Chief Justice Winkelmann’s comments come at the release of her first-ever annual report, covering the period 1 January 2020 to Continued on page 04 31 December 2021. 03
Continued from page 03 who use the courts to change the way they work – the legal profession, the police, media, corrections – all these other agencies whose work impinges on the courts,” the Chief Justice said. “I am grateful to all, and profoundly grateful to the people of New Zealand who continue to turn up for jury service so that jury trials can continue.”
cases about the legality of vaccine mandates for certain jobs, Whānau Ora’s request for data in relation to Māori vaccination rates, a challenge to the government’s MIQ requirements (Bolton) and a decision late last year to stop processing visa applications for Afghan nationals after the Taliban takeover. All this demonstrates the High Court’s critical constitutional role in reviewing the actions of public and private administrative bodies, including the executive branch of government, Justice Thomas said, to determine whether they acted within the powers given to them by law.
Justice Susan Thomas
Broad church Speaking to the annual report, Justice Thomas noted that the pandemic had highlighted the importance and breadth of the High Court’s work in both its criminal and civil jurisdictions. On the civil side, there have been multiple judicial review applications and other pandemic-related decisions affecting many people and, in the criminal jurisdiction, “media scrutiny of pandemic-related delays indicates the importance to New Zealanders of timely access to criminal justice”. Defendants awaiting trial who were remanded in custody – a high percentage of those appearing in the High Court – were affected by the suspension of jury trials in March 2020. And while they resumed in August that year, Auckland was plunged back into lockdown in August 2021. At that point, Justice Thomas said, the High Court had almost cleared its backlog of criminal jury trials and for the first six months of 2021, the High Court at Auckland ran up to six jury trials a week. “We are very conscious of the impact of any delay on defendants who are in custody, on victims, whānau and community,” she said. “From the end of February 2020, before the arrival of covid, to the end of January this year, the average time from first appearance to trial date has increased by four and a half months. Over the same period, the number of criminal trials in the High Court on hand has increased by 39.” The arrival of Omicron has again placed restrictions on jury trials. The court has been forced to vacate several very long hearings and some with multiple defendants because of the high risk of not being able to complete the trials because of illness. During covid, the High Court has made ‘great use’ of remote technology, Justice Thomas said. “Even before the pandemic, the court was using remote technology for some criminal justice procedural work. This has been extended further during the pandemic and it enabled us to keep trial files progressing – for example, by hearing pre-trial matters remotely.” Civil cases were less easy to conduct remotely “as they often feature voluminous documents and complex issues”. But more were being done via AVL, including pandemic-related judicial review applications. The first proceeding, challenging the legality of the lockdown (Borrowdale), was brought in June 2020 and heard remotely. The High Court has since heard and decided under urgency 04
Hit hard The country’s busiest court – the District Court – has been hit hardest by covid delays. Chief District Court Judge Taumaunu says the court had no option but to reduce operations and workforce capacity. Normally it would dispose of about 200,000 cases and one million court events a year. “But under previous alert levels, when only priority proceedings could go ahead, an unprecedented number of hearings were adjourned or rescheduled,” he said. About 128,000 court events were affected which had a huge impact on court users. “We know that when cases are delayed, people’s lives are put on hold. This has very real human consequences and the longer it goes on, the worse it gets.” But while the disruption continues, the adjournments and rescheduling of cases is significantly lower than during previous restrictions, Chief Judge Taumaunu says. “It’s about 100 a day compared with 600-700 per day during the previous alert-level settings.” But Omicron is now affecting jury trials and he expects there will be more pressure on court capacity. About 30 District Court judges are conducting court business remotely and Chief Judge Taumaunu says this resilience-building will enable the court to continue with priority hearings when the full force of Omicron hits. The government’s decision to appoint more judges has been helpful, and the District Court is also heavily reliant on acting judges to supplement the permanent judicial workforce. It might consider more use of community magistrates and justices of the peace. But it’s not all a tale of doom and gloom. Chief Justice Winkelmann says the pandemic has shown that people can do things differently. “It showed us that things we thought were absolutely unchangeable in the system – that were absolutely concreted into the system – can change if all the participants work together. The difficulty we have is that it’s such a complex system. Times of great stress and challenge are good times to change complex systems so although the pandemic has been difficult for the courts, it has also created those opportunities to think about and do things differently.” ■
Chief Judge Taumaunu
What were initially shortterm fixes have become part of our standard operating model for the pandemic
Mar 11 2022 Issue 6
INTERNATIONAL LAW
How will the Russian sanctions law work? Alexander Gillespie With the cabinet agreeing to targeted Russian sanctions legislation, New Zealand is preparing to circumvent its normal United Nations-based response to international crises. The Russia Sanctions Bill will allow additional sanctions against Russia, including the ability to: ■ freeze assets in New Zealand; ■ prevent people and companies from moving their money and assets to New Zealand to escape sanctions imposed by other countries; and ■ stop super yachts, ships and aircraft from entering New Zealand waters or airspace. Passing the law under urgency this week is justified due to Russia being one of the UN Security Council member states, allowing it to use its veto power to block any proposed UN sanctions. But this is a sad development and a break with 30 years of diplomatic history. Since 1991, New Zealand has worked within the UN framework and largely based its sanctions regimes around what the UN has mandated. On Ukraine, New Zealand has taken some small and supplementary steps against Russia, such as travel bans and export controls on technologies that may have military value. But this has been inadequate compared with the actions of its allies and the rapidly worsening situation.
Aligning with allies To create a new sanctions regime outside the UN system, New Zealand will need to take into account various important factors, including the law’s scope and how it fits with the actions of its allies. Above all, the legislation must recognise this is a unique situation and must not create a precedent that enables other actions outside the UN system. The new law must expressly state why the urgent actions are justified and the objectives it wants to achieve, and it should have a sunset clause whereby it will lapse on a
Above all, the legislation must recognise this is a unique situation and must not create a precedent that enables other actions outside the UN system
set date unless expressly renewed. The law must be effective, proportionate and targeted. Anti-Russian hysteria must be avoided. Due process, fairness to those involved and compliance with existing international obligations, must be uppermost. Detail must be applied to creating of a crossparty sanctions committee and a monitoring group. The evidence used to justify sanctions should come from secure and robust sources, which should be as transparent as possible. Coordination with friends and allies is uppermost. It’s not a question of how large New Zealand’s sanctions are but rather that they are consistent with those of other countries. If there are inconsistencies, these risk being exploited both politically and economically.
Military aid In a normal situation, a ‘laddering’ process for sanctions is used: sanctions start softly (sporting or cultural events, for instance) and escalate (with some diplomatic restrictions) towards increasingly harsh trade restrictions prohibiting goods, from luxuries to near essentials. Exclusion from airspace, maritime zones and even travel restrictions for ordinary citizens may be added to the mix as Russia is increasingly isolated from the wider world. With events moving so fast already, New Zealand is already halfway up the ladder. Military aid needs to be an option, too. The goal is to help the Ukrainians fight for their own freedom without putting foreign boots on the ground. A distinction between lethal and non-lethal aid (such as body armour, communications equipment, food and medical kit) will need to be made. Again, the question is not one of scale but consistency with friends and allies. The symbolism of such support is important. Supplementing the efforts of Australia, for example, would be useful. The new law may also need to cover those
New Zealanders who want to fight in Ukraine – on either side. New Zealanders without dual Ukrainian citizenship are unlikely to be given prisoner of war status if they’re captured. Such volunteers will be in a grey area of domestic law, too, as current legislation covering the activities of mercenaries, or those who seek to go overseas to fight for terrorist groups, is inadequate. Fighting the Russian invasion of a sovereign country is not an act of terrorism and some may be willing to fight without significant financial incentives. The government should make the rules clear – again, consistent with friends and allies.
Unintended consequences Despite what Vladimir Putin has suggested, sanctions are not an act of war. They are an unfortunate but sometimes necessary non-military strategy aimed at changing or ending a country’s harmful actions. But even if New Zealand and other like-minded countries apply maximum pressure through sanctions, there is no guarantee Putin will change his policies. Sanctions have the best chances of success when a country’s leadership feels affected by the pressure of its own citizens – or, in Russia’s case, its oligarch class, as the prime minister hinted. So, sanctions may work better with Russia than North Korea. But there is also a risk, if Putin starts to feel this pain, that he will respond in unexpected ways. The only real certainty is significant collateral economic damage – for Russia and the world, including New Zealand. Everyone will see or feel the impact as economic and diplomatic relationships hit turbulence. Right now, however, there is no viable alternative. ■ Alexander Gillespie is a Professor of Law at the University of Waikato ■ The above is republished with permission from The Conversation. Parliament passed the Russian Sanctions Bill as LawNews went to press. 05
CHARITIES/INVESTMENT
The costs associated with establishing a private charity previously made this kind of long-term giving feasible only for the wealthiest of philanthropists
A new way of thinking about charities and investment Henry Brandts-Giesen The greatest inter-generational transfer of wealth in human history is underway, which is estimated to be about $150 billion across New Zealand over the next 20 years. It’s come as a result of many New Zealand families having enjoyed unprecedented inflation-fueled growth in their net worth to the point where surplus funds are available for fulfilling philanthropic objectives. Meanwhile, across the world people are getting more strategic with their giving and are seeking out enduring structures to manage their charitable gifts. Worldwide, we are seeing an increase in popularity of donor-advised funds (DAFs) and endowment funds as a way to achieve long-term
charitable giving. While the idea of a DAF or an endowment fund is a relatively new donor concept in New Zealand, interest in this form of giving is growing. Community foundations manage a range of such funds, collectively pooling individual funds in local communities and achieving economies of scale with their investments. This type of invested giving has been described as the fastest-growing form of philanthropy in the world today. New Zealand’s young network of community foundations has seen rapid growth in endowment funds: 33% (from $150 million to $200m) in the past financial year alone. Community foundations are recognised as being more cost-effective and versatile and they are certainly less administratively burdensome than creating a new charity or trust. Benefits offered by community foundations include: ■ taking care of compliance, administrative matters, investment and governance; ■ being an easier alternative to setting up a charitable trust, whilst still being flexible enough to meet donors’ personal, and sometimes specific, philanthropic aspirations; ■ having close connections with local charities and causes. As a result, community foundations are in a unique position to facilitate effective giving locally; ■ achieving economies of scale and maximising returns to communities by resettling small local trust funds into one, independent local structure; and ■ as not-for-profit entities themselves, local community foundations are built around a lean, transparent and costrecovery model to maximise the impact of every dollar given. The growing appreciation of community foundations also sees more donors able to access what we might call more ‘strategic philanthropy’ as they can make contributions (and receive the associated tax benefits) up front, and they can advise distributions from their funds into the future. The costs associated with establishing a private charity previously made this kind of long-term giving feasible only for the wealthiest of philanthropists.
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Mar 11 2022 Issue 6
Community foundations manage a range of such funds, collectively pooling individual funds in local communities and achieving economies of scale with their investments
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issues facing grant-makers and philanthropists in Aotearoa New Zealand’s non-profit sector. A well-designed donor-advised fund or special interest Professional advisors fund obviates the need for standalone legal architecture and governance of an endowment fund or bequest. This can relieve The role of professional advisors in providing specialist the governance, compliance and administrative burden and philanthropic advice and the ways that can influence the enable funds to grow and grants be efficiently level of charitable donations should not be channeled to the third-party project deliverers overlooked. It is critical that (who themselves are likely to be standalone It is critical that individuals looking to individuals registered charities). engage in philanthropy receive sound, expert looking to engage Meanwhile, grant-makers and advice on how to do so effectively and in philanthropy philanthropists receive the same tax and social strategically. capital benefits and can remain connected With the assistance of organisations like receive sound, to the fund through their membership of the local community foundations, advisors are expert advice advisory board of the relevant fund. perfectly placed to help ensure the charitable on how to do so Professional advisors have a key role to sector is efficient and sustainable. play in the philanthropic advice they give and Recent studies from the USA, Australia effectively and should not underestimate how crucial their and the UK show clients want to have a strategically role is. They should be encouraged to have philanthropic conversation in the beginning these conversations with their clients now if stages of their relationship with their we, as a nation, are to make the most of the professional advisor and would be more likely unprecedented wealth we see beginning to change hands. to leave a gift to a charity in their will if the option was more Your clients will thank you for it. top-of-mind and options presented when planning their estate. Read the newly-released white paper, which our team has These studies show the crucial role professional advisors co-authored with Community Foundations of New Zealand, play in raising philanthropic possibilities and working with their here. ■ clients to ensure they can give in a meaningful and strategic manner. In summary, I think community foundations can resolve Henry Brandts-Giesen is a partner and head of private some of the big governance, compliance and administrative wealth at Dentons Kensington Swan ■
NOW PUBLISHED
Adams on Criminal Law 2022 Student Edition Authors Simon France, Debra Wilson Adams on Criminal Law has been New Zealand’s most trusted criminal law reference for more than 50 years. In an easy-to-follow format, this new edition includes the text of the Crimes Act 1961 and Criminal Procedure Act 2011, supported by extensive, indexed and practical commentary on key sections. This is supplemented by comprehensive tables of cases, statutes and regulations. The content is derived from Adams on Criminal Law, with the
selection of sections made by Associate Professor Debra Wilson under the guidance of Justice Simon France. The 2021 edition is generally current to 1 December 2021. Price for ADLS members $91.80 plus GST* Price $102 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740 or email: thestore@adls.org.nz * + Postage and packaging
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A WEEK IN THE LIFE: FIRST OF A SERIES
A week in the life of a family lawyer Ellen Snedden ■ Prepare and file submissions for registrar’s review – the court If you are looking for diversity and better work stories, look no further: family law might be the job for you. Family lawyers’ scope of practices (and experience) vary significantly. Some practise only in one domain, being care of children, family violence, adoption, surrogacy, dissolution of marriages, PPPR, relationship property and estates while others do the full spectrum. I acknowledge that family law is not everyone’s cup of tea. It is often a thankless job and can be emotionally tiring (as we are mostly dealing with people at their worst) but it can also be very rewarding. I love working in family law as you really are helping people. I commenced working in this area of law in 2012 and I have worked in all areas, except for surrogacy and estates. No two days as a family lawyer look the same. Every new set of instructions we receive is unique and fact-specific. Sometimes we might act for the father or husband, wife or mother, perpetrator or victim, third parties or other family members. Some family lawyers also represent children and/or the mentally incapacitated. Last week, in between emails and telephone calls, my day-to-day (kind of) looked like this:
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Wednesday ■ Again, check emails to see what has come in overnight.
Monday ■ Check emails to see what has unfolded with existing clients
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over the weekend. Did a parent not comply with changeover arrangements for the children? Will an urgent court application be required? Attend weekly team meeting. Debrief about antics over the weekend and check everyone’s capacity (mentally and workload). Respond to emails received over the weekend. Prepare a letter to a lawyer, asking his client to undertake a paternity test. A while ago, client learned his wife was having an affair and has now had the baby. Timing suggests the baby might not be his. Meet with a new client via Teams to take instructions and give initial advice about a guardianship matter. The parents are disputing where to send their kids to high school. Prepare and send email to a new client confirming advice, next steps and what we require from them. They respond saying they will collate information over the next week. Prepare letter of advice regarding relationship property division for a client I met last week. Send to client.
Tuesday ■ Check emails to see what has come in overnight and respond to the same. Client desperate to meet that day to update me on her sister not conforming with rules and regulations pursuant to the welfare guardianship order made for their mother. 08
is checking in to see whether we have served dissolution proceedings on a respondent. Meet with client via Teams to address aforementioned welfare guardianship order matter. Prepare and send letter to other side in accordance with client’s instructions and advice. Review proposed changes to contracting out agreement received from lawyer. Advise client in respect of the same. Assist junior colleague with file they are working on. Meet with new client and advise her about dividing assets and liabilities, spousal maintenance and economic disparity, now her husband has left her with four kids, a dog and no access to bank accounts. Prepare letter of advice to aforementioned ‘wife client’ and prepare letter to husband seeking disclosure of assets/ liabilities and seeking maintenance payments. Send to client for review.
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Urgent instructions received from client seeking orders pursuant to the Family Violence Act due to former partner entering her property, stealing her dog and sending abusive and incessant text messages. Attend business development meeting. Prepare for and attend judicial conference. Court checking in re status of care of children proceedings whereby mother is required to file hair follicle test results after father found drug paraphernalia left in reach of children. Attend urgent meeting regarding aforementioned family violence matter. Receive detailed instructions and advise as to prospects, process and options. Prepare without notice application, affidavits for the protection order matters. Send to client for consideration. Meet with client to take further instructions. Collate exhibits to support the affidavit. File protection order proceedings in court.
Thursday ■ Again, check emails to see what has come in overnight. Result from urgent family violence proceedings received from court – success! Advise client and liaise with police about service of documents on respondent. ■ Consult with partner about dreaded, tricky file. Deal with that. ■ Researching and preparing submissions which are due next
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Mar 11 2022 Issue 6
TRUST LAW
A new deed of delegation coming for trustees Emma Tonkin The ADLS Trust Law committee has prepared a new Deed of Delegation of Trustee Powers and Functions which ADLS will soon release. This form replaces the previous Power of Attorney and Deed of Delegation which ADLS removed from its system after it became obsolete when the new Trusts Act 2019 came into force last year. Section 70 of the Trusts Act 2019 sets out a new framework for the delegation of a trustee’s powers and functions to a person qualified to be a trustee. Under the Trustee Act 1956 (on which ADLS’ Power of Attorney and Deed of Delegation form 4095 was based), s 31 provided for the delegation of trustee powers and functions during specified circumstances. The power was revoked by the trustee’s return to New Zealand or recovery from the temporary incapacity. Keeping an accurate record of the period when the delegation was in place became more difficult as travel increased and less relevant with the use of technology. Form 4095 is now obsolete and ADLS will soon issue a new form for the delegation of trustee powers and functions pursuant to s 70.
For any delegation in place before 30 January 2021, s 5 of Schedule 1 provides that it continues, subject to the terms of the delegation and the terms of the trust. The circumstances under which a delegation can be made have not changed: namely, absence from New Zealand, temporary inability to be contacted, temporary physical incapability and temporary lack of capacity to perform the functions of a trustee. The appointment must be made by way of a power of attorney, under which a trustee can delegate all or some of a trustee’s powers and functions to another qualified person. The requirements related to powers of attorney are set out in the Property Law Act 2007. The standard form of certificate of non-revocation of power of attorney is set out in Schedule 1 to the Property Law Act. However, the new legislation now makes it clear that the delegation can be in place only for the shorter of the relevant circumstance and the period of 12 months. If the delegation has been in place for 12 months and the relevant circumstance continues, the delegation can be extended but only for a maximum of another 12 months. In keeping with the accountability principles of the Trusts Act, there is now a formal requirement to give
notice of the delegation to co-trustees and any person with the power to remove or to appoint trustees of the date of commencement, duration and reason for the delegation, as well as the contact details of the delegate trustee. If there is a sole trustee, further considerations can be taken into account under s 53. Section 67 also sets out other circumstances where a trustee can appoint others to exercise or perform certain powers or functions. However this does not include any dispositive powers which can be delegated only under s 70. The new form will deal only with a delegation under s 70. A trustee must exercise its general duty of care and any relevant mandatory duties in appointing a delegate under s 70. A trustee is not liable in a proceeding brought by or on behalf of a beneficiary for any act or default of a delegate trustee unless it has failed to exercise such duties. Application can also be made to Public Trust for consent for Public Trust to be made the delegate of the trustee but Public Trust is not obliged to take on the delegation. ■
school today in accordance with terms of parenting order. Attend meeting with father client. He has instructed us to enforce the parenting order as mother has done this one too many times. Urgently prepare and file documents in the Family Court (by 2pm). While waiting for the response from court, continue to prepare and finalise submissions for hearing next week. Send to client for review over the weekend. Glass of wine in hand. Brief catch up with the team about weekend plans. Check calendar for what is on the agenda next
week – submissions due, hearing then roundtable meeting (similar to a mediation). It will be busy! ■ Receive response from court (5pm) regarding enforcement proceedings. Court has put the matter on notice. Bugger! Explain to client and deal with his reaction. Give best attempt at contacting lawyer on other side in attempt to resolve the matter promptly. No luck (not surprising being after 5pm on a Friday). Accordingly, assign task to Monday. ■ Ellen Snedded is a senior solicitor at Simpson Western, with eight years’ PQE. She is a member of the ADLS Council and Convenor of the Newly Suited Committee. ■
Continued from page 08 ■ week, in anticipation of a hearing deciding who shall have occupation of the family home pending division of all relationship property. Takes most of the day.
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Friday ■ Always hoping for a quiet day on a Friday to catch up on admin, CPD, long lunches etc. Unfortunately, not today. ■ Email received overnight from father client, saying mother is refusing to drop children to him after
The new legislation now makes it clear that the delegation can be in place only for the shorter of the relevant circumstance and the period of 12 months
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Emma Tonkin is a partner at Hesketh Henry and a member of the ADLS Trust Law committee ■
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COVID-19
Alt-right extremism in NZ: is enough being done? Paul Spoonley It has been interesting to watch media and public commentators come to the realisation – sometimes slowly – that the siege of Parliament was not simply an anti-vaccine mandate ‘protest’ but something with more sinister elements. While researchers and journalists have noted the toxicity of some of the politics on display, as well as the presence of extreme fringe activists and groups, it should have come as little surprise. These politics have been developing for some time, heavily influenced by the rise of a particular form of conspiratorial populism out of Donald Trump’s America, and by the networking and misinformation possibilities of social media. Internationally, researchers noted a decisive shift in 2015-16 and the subsequent exponential growth of extremist and vitriolic content online. This intensified with the arrival of conspiracy movement QAnon in 2017 and the appearance of a number of alt-tech platforms that were designed to spread mis- and disinformation, conspiracy theories (old and new) and ultranationalism and racist views. While local manifestations developed slowly, there was evidence that some groups and activists were beginning to realise the potential. The Dominion Movement and Action Zealandia embraced these new politics – white nationalism, distrust of perceived corrupt elites and media – along with the relatively sophisticated use of social media to influence and recruit.
Covid and conspiracy theory These anti-authority, conspiratorial views have been around in New Zealand for some time within the anti-1080, anti-5G and anti-UN movements. But we began to see the formation of a loose 10
These anti-authority, conspiratorial views have been around in New Zealand for some time within the anti-1080, anti-5G and anti-UN movements
were 750 followers per 100,000 internet users in New political community around the 2020 general election. Zealand, compared to 399 in Australia, 252 in Canada It was notable, for instance, that online material from 233 in the USA. the Advance NZ party had 30,000 We began to see andThose numbers should give us all followers and their anti-covid material the formation of pause for thought. The volumes, the was viewed 200,000 times. relatively high density, the extensive Covid gave new impetus to these a loose political use of QAnon and the mobilisation movements, partly because the community of a not insignificant part of the New pandemic fed many of the now wellaround the 2020 Zealand community indicate the altestablished tropes of those inclined general election right and its fellow travellers are now to believe in conspiracies – the role well and truly established here. of China, government ‘overreach’, the influence of international ‘Sovereign citizens’ at Parliament organisations like the UN or WHO or the ‘malign’ influence of experts or institutions. This is reinforced by the Department of Internal Covid not only encouraged others to be convinced Affairs’ digital harm log. Not only are the numbers that conspiracies were at work. The lockdowns also growing, but the level of hate and threats directed at meant more were online and more were likely to individuals and institutions remains high. engage. QAnon proved to be a key influence. In this context, it was not surprising to see these The election saw Advance NZ (and the NZ ideologies surface at the occupation of Parliament Public Party), along with the New Conservatives, the grounds, or the fractious and divided nature of those Outdoor Party and Vision NZ all peddle versions of attending, and that their demands are so diverse and covid scepticism, the distrust of elites or of ethnic and inchoate. religious ‘others’. Nor should it come as a surprise that the protesters Combined, they received 2.73% of the party vote displayed a complete unwillingness to trust authorities and 3.01% of electorate votes. Not large, but related such as the police or Parliament. online activity was still troubling. For some time, the so-called ‘sovereign citizens’ movement has been apparent in New Zealand, again The alt-right in NZ heavily influenced by similar American politics. Laws By mid-2021, when the Institute for Strategic Dialogue and regulations are regarded as irrelevant and illegal, as are the institutions that create or enforce them. (ISD, a UK-based research organisation) undertook What’s perhaps more surprising is that New a study for the Department of Internal Affairs of New Zealanders have generally not known more about Zealand’s extreme online activity, things had ramped these politics and the possibility they would produce up yet again. the ugly scenes at Parliament. The ISD looked at 300 local extremist accounts and 600,000 posts. In any given week, 192 extremist accounts were active, with 20,059 posts, 203,807 likes or up-votes and 38,033 reposts/retweets. Continued on page 11 When it came to far-right Facebook pages, there
Mar 11 2022 Issue 6
ADLS CPD EVENT
Crime scene experience: channelling your inner Sherlock Continued from page 10 Information and action While there has been some excellent media coverage, there has been a sense of playing catch-up. The degree of extremism fuelling the protests and the various demands appeared to catch Parliament and the police off guard. Our security and intelligence agencies are devoting more resources to tracking these politics but they need to be more public about it. The Combined Threat Assessment Group and the SIS provide updates and risk assessments but these often lack detailed information about local activists and actions. We need to be better informed. The police are enhancing existing systems to better record hate crimes and activities (Te Raranga) which should become an important source of information. And the Department of Prime Minister and Cabinet will be announcing some of the details of the new centre of excellence, He Whenua Taurika, that will provide evidence of local developments. If many New Zealanders have been surprised and saddened by the extremist politics visible at the Parliament protest, there is now little excuse for not understanding their background and momentum. The challenge now is to ensure further hate crimes or violence do not follow. ■ Paul Spoonley is Distinguished Professor, College of Humanities and Social Sciences, Massey University ■ The above is republished with permission from The Conversation
How much do you really know about what goes on behind the scenes of a crime? What’s involved before the evidence reaches your desk for a court hearing? Forensic workshops are presented by Thomas Coyle, a forensic practitioner with more than 34 years’ experience, including 18 years at New Scotland yard, 13 years with the New Zealand police and practising for the past five years as a consultant expert witness for the courts in crime scene examinations and the identifications of people by their finger, palm and footprints. These workshops provide a good understanding of the procedures and protocols that should be adhered to in examining crime scenes from a variety of examiners, including scenes-of-crime officers, ESR and fingerprint staff. This insight will enhance your skills and knowledge of crime scenes which can be used effectively during crossexaminations in court. During the workshop, you will view a mock crime scene, pre- and post-examination, and discover the processes undertaken by qualified practitioners to gather, collate and preserve evidence. Dressed in full CSI PPE gear and armed with your own CSI case, the hands-on experience in your own mock crime scene allows you to participate in physically locating and developing fingerprints, shoeprints, DNA and other trace evidence commonly found at crime scenes. This crime centre can also search the fingerprints developed from the mock crime scene against their very own automated fingerprint identification system (AFIS) which is the only one known in private hands. After attending our mock crime scene, you will have a clearer appreciation of your clients’ explanations of events and their involvement at the time of the offence, coupled with the examination results provided by ESR and the fingerprint section. Issues related from the exhibits taken from the crime scene and the chain of evidence procedures are addressed in detail, giving you an insight into the forensic management system used by the authorities today. Each attendee at our previous workshop left with a clearer understanding of background crime scene knowledge while playing out their inner Sherlock Holmes. ■ Our next workshop is scheduled for Saturday 26 March 2022. Places are limited so book your Sherlock spot ■ 11
FEATURED CPD
FINAL NOTICE
ETHICS SUPPLY RISK
Modern slavery and responsible supply chains Livestream 1 CPD hr Tuesday 15 March 4pm – 5pm Presenters Rebekah Armstrong, director, Business and Human Rights Consultants and head of advocacy and justice for World Vision and Nicola Swan, partner, Chapman Tripp
A lawyer’s guide to emerging requirements This seminar discusses the existing and emerging legal and ethical requirements around engaging suppliers and vendors, and the resulting impact on businesses. It outlines some practical steps businesses can take to minimise modern slavery-related risk in their supply chains and operations.
LIVESTREAM
FINAL NOTICE
Rural law series: demisting the environmental fog
Webinar 1 CPD hr Thursday 17 March 12pm – 1pm Presenters: Mark Dineen, partner, Anthony Harper and Charlotte Glass, director/ consultant, Agri Magic Limited
Covering a range of rural due diligence environmental issues, this webinar will assist practitioners to demystify and digest the bow wave of amended or pending legislative and regulatory content so they can navigate and advise safely and with best practice.
CHANGES ISSUES GUIDANCE
LIVESTREAM
Self-represented litigants INSIGHTS STRATEGY SOLUTIONS
Webinar 1.5 CPD hrs Wednesday 23 March 4pm – 5.30pm Presenters Brian Carter, barrister, Bastion Chambers; William Fotherby, principal, Meredith Connell and Joanna Trezise, senior solicitor, Russell McVeagh
Challenges & solutions This webinar will offer strategies and practical insights into how lawyers can effectively deal with situations involving self-represented parties. It will particularly focus in on the challenges encountered by civil and commercial litigators and those practising in criminal, family and employment law.
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Mar 11 2022 Issue 6
adls.org.nz/cpd
Written advocacy: what judges want
In Person | Livestream 1.5 CPD hrs Thursday 9 June 4pm – 5.30pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers
cpd@adls.org.nz
09 303 5278
Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used and ways to ascertain whether you’ve achieved your purpose. Chair Paul David QC, Eldon Chambers
APPROACH PURPOSE INSIGHTS
IN PERSON
LIVESTREAM
‘Court’ by forensics workshop CRIME EVIDENCE INVESTIGATIONS
Workshop 4 CPD hours Saturday 26 March 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd
Forensics never go away! Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of the type of evidence preserved from the scene and used effectively in court. It will cover the importance of the chain of evidence and offer insights into dealing with expert forensic witnesses. Strictly limited spaces available. Registrations close on 24 March.
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Personal effectiveness workshop 2022
Online workshop 4 CPD hrs Tuesday 29 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams
PERFORMANCE SKILLS DEVELOPMENT
Reflecting on your goals for this year? Are you performing at your peak? Is there room for improvement in your work methods? Coming to grips with how to be effective working virtually? Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-oneffort at work. It is facilitated by a leading high-performance consultant. Limited spaces available. Register now to avoid missing out.
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CPD IN BRIEF
Client capacity
Livestream 2 CPD hrs Wednesday 30 March 4pm – 6.15pm Presenters Vicki Ammundsen; Andrew Steele and Dr Mark Fisher Chair Professor Kate Diesfeld
Practical considerations and best practice. Client capacity can be a grey and challenging area for lawyers and with our ageing population it will continue to be so. Understanding capacity issues in different legal contexts and the relevant legal tests and thresholds for capacity is essential. Recognising red flags and having strategies to sensitively advise your client, knowing when and how to obtain the relevant capacity assessment from a medical practitioner and your obligations regarding client instructions when capacity is in question but not medically assessed, are all key. FIND OUT MORE
Deportation: a practical guide
Cradle to Grave™ Conference 2022
Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small, director, Pacific Legal; Deborah Manning, barrister, Landmark Chambers; Bernard Maritz, compliance manager, INZ and Terri Thompson, senior solicitor, MBIE Legal
If your client is facing deportation, an urgent and thorough response is required. Having a clear understanding of each step in the process, who to contact and when, your role (and that of your client, INZ, MBIE Legal, and the courts) and any issues to be aware of, is vital.
Conference 7 CPD hrs Christchurch Monday 2 May 8.45am – 5.05pm Auckland Thursday 5 May 8.45am – 5.05pm
For lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ conference is back in 2022. With a great range of pertinent and interesting topics presented by leading lawyers, it promises to be another outstanding event.
Chair Stewart Dalley, partner, D&S Law
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CHRISTCHURCH
Drafting complex wills
Workshop 3.5 CPD hrs Wednesday 13 April 9am – 12.45pm Facilitators Henry Stokes, general counsel, Perpetual Guardian and Theresa Donnelly, legal services manager, Perpetual Guardian
Led by two facilitators immersed in wills and asset planning, and known for their practical focus, this workshop will give you tips on what to look out for in complex wills and demonstrate how to draft fit-for-purpose wills.
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Top Up your CPD with ADLS before 31 March 2022 6 CPD hours for the price of 4 until 31 March 2022 Visit adls.org.nz for more information.
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AUCKLAND
Mar 11 2022 Issue 6
WILL INQUIRIES
Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document. LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz
ADLS, PO Box 58, Shortland Street,
DX CP24001, Auckland 1140
Fax: (09) 309 3726
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CHEN Daming
• Meat worker • Aged 35 / Died 30’01’22
• Late of 1B Wheturangi Road, Greenlane, Auckland • Engineer • Aged 56 / Died on or about 03’11’20
MURATA Shinichi
KEIL Jordan Ihaia Keanu • Late of 129 Edgewater Drive, Pakuranga, Auckland • Aged 25 / Died between 07’02’22 and 08’02’22 KERR Dorothy Evelyn • Late of 55 Carisbrook Crescent, Papakura, Auckland • Retired • Aged 93 / Died on or about 01’02’22 LAL Sohan Keswa (a.k.a LAL, Keswa) • Late of 44 Porritt Avenue, Chatswood, Birkenhead, Auckland • Retired printer • Aged 78 / Died 27’12’21 McLAREN Lance Thomas Barbarich Wahapu Kite
• Late of Kanagawa, Japan • Married • Retired • Aged 63 / Died 08’08’21 PETERS David Bob Te Karaea • Late of 18 Hocken Place, Mangere Bridge, Auckland • Born in Rarotonga • IT Analyst • Aged 37 / Died 19’03’21 WAITI Gordon Hape • Late of 59 Manawahe Road, Lake Rotoma RD 4, Rotorua • Sickness beneficiary • Aged 56 / Died between 12’11’21 and 13’11’21 ZHU Bixia • Late of Sylvia Park Rest Home and Hospital, Mt Wellington, Auckland • Retired • Aged 89 / Died on or about 07’11’21
Lawyer opportunity Hawke’s Bay Unique opportunity to become an intrinsic part of a small well-established firm. Significant learning and career development on offer with option to acquire equity. Work across a range of legal matters using sound judgement and high levels of integrity. SJ Scannell & Co, a sole practice, is a trusted and well-known law firm based in Hastings. The firm has a very strong and large client base which comprises of commercial, farming, horticultural and family clients. The main areas of expertise cover commercial law, conveyancing (rural, commercial and residential), estates, trusts and matrimonial property matters coupled with providing general legal services to clients including civil litigation, employment law and certain areas of family law. Currently an opportunity exists for an experienced and driven lawyer to become an intrinsic part of this small well-established firm. This is a unique opportunity for somebody seeking learning and career development, to acquire an equity share in the practice over time and ultimately full ownership. You will have the chance to build your own client base in addition to the firm’s existing client base and grow and develop the firm for your future benefit and ownership. There are also opportunities to expand the areas of the law the firm practises in. The firm has a reputation for high-quality, efficient and friendly service and these values will need to be maintained. To be successful these values will resonate with you and you will need to be able to demonstrate strong initiative and drive towards developing and growing the business as well as assisting the current principal with the succession plan. If this sounds like the opportunity you have been looking for, please apply online with a CV and covering letter to martin@engagers.co.nz. For a confidential discussion please contact Martin on 021 959 303.
S J SCANNELL & CO BARRISTERS & SOLICITORS
• Late of 16 Pitt Street, Waharoa • In a de facto relationship
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Senior Lawyer We are looking for a Senior Lawyer with a minimum of 5 years’ PQE to join our team. This role is to take over the workload of a Director who is retiring. This is a great opportunity for an ambitious and dynamic person with a sound understanding of Trusts, Property and Business. The ability to supervise Estate work undertaken by another team member would be beneficial.
Work-related distress and indirect/vicarious trauma among New Zealand lawyers
Key attributes required for this role: • Have experience in dealing with clients and able to manage your own files with minimum supervision. • Relate well to clients and referrers. • Have good time management, interpersonal skills, attention to detail and operate in a collaborative team environment. • Be able to work in a Paperlite office and manage an electronic file using Infinity Software.
The Law in Distress research team, formed by members of the legal profession and academics from AUT, is inviting lawyers to participate in its nationwide research project by 28 March 2022. The research aims to gain an in-depth understanding of how lawyers are impacted by work-related distress and indirect/vicarious trauma in New Zealand. Lawyers from all practice areas are welcome to complete a short anonymous survey and/or to sign up for an interview with a member of the research team.
We offer: • An innovative firm with a great team environment. • An opportunity to be part of one of the Eastern Suburbs’ largest legal practices. • Market salary, team monthly and annual bonus schemes. • Excellent established precedents, systems and technology. • Free parking and iPhone. • The excellent training, conferences and benefits that are available to members of NZ LAW legal firms.
This research will be especially relevant to lawyers who work with distressing or traumatic cases and/or clients. The research team also wants to hear from lawyers who have suggestions for risk-mitigation strategies, training, and/or other interventions that could benefit lawyers. The findings from the survey will be used to inform further solutions for safer practice.
Please email your resume and covering letter to our Practice Manager, Brandon Tam brandont@dglaw.co.nz or Director, Kelly McCullough kellym@dglaw.co.nz.
For further information about the project and the research team see: www.lawindistress.co.nz
No Agencies please
Written Advocacy: What Judges Want Thursday 9 June | 4.00pm - 5.30pm Written submissions remain at the core of advocacy; they are a fundamental tool in the litigator’s armoury. So how do you craft your submissions to gain the Judge’s attention, and in turn help guide them to the right answer?
T 09 303 5278
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Mar 11 2022 Issue 6
This space could be yours
PRACTICE FOR SALE OR MERGER
LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.
• • • • • •
Get your message in front of them. Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz
North Shore base but with clients on both sides of the bridge Plenty of potential Requires an efficient enthusiastic practitioner(s) Assistance available to the right person(s) Genuine opportunity to go out on your own with low overheads Flexible options available Reply in confidence to: advertiser@adls.org.nz ref: NS03
YOU NEED A BREAK (OR AN EXTRA HAND)? I can help you. After 50 years in suburban Auckland as a general practitioner, I‘ve decided it’s time to get out and see the rest of New Zealand. If you are thinking about taking some extended leave when we can, you are struggling to get on top of the work, or you require some assistance with new systems or technology, let’s see if we can help each other. I am flexible so it doesn’t matter where in New Zealand you’re located. A little bit about me: I’m a trust account partner and Landonline conveyancing professional. During the past 50 years I have operated my own practice as a sole practitioner and managing director in three-partner firms. I’ve employed up to 18 staff and built up a solid reputation for client service, practice development and technology innovation. Even if you do not have any particular plans, a discussion might help you to figure out what might be possible.
Contact me by mobile 021 610 980 or don@thomas.co.nz
Cradle to Grave™ Conference 2022 Christchurch Conference | Monday 2 May Auckland Conference | Thursday 5 May For those lawyers working at the interface between trust, property and family law, our annual Cradle to Grave™ Conference is back again in 2022.
T 09 303 5278
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