At the Bar April 2019

At The Bar April 2019

Community Law - Pro Bono Rule of Law and Human Rights Trusts and Forced Heirship www.nzbar.org.nz

p7

p16

p21

p41

p45

YOUR ASSOCIATION 4 From the President – Kate Davenport QC 7 The Christchurch Massacre and the Rule of Law – comment from Past President Clive Elliott QC 17 Make your NZBA Membership Pay for Itself – using our member benefits 32 New members – recently joined members 33 Putting Well-Being at the Heart of Things – new member benefit from MAS 44 Events – pictures from recent events LEGAL MATTERS 9 Pro Bono – Unlocking Potential in New Zealand – the report on the Litigant in Person Pro Bono Pilot 10 The Community Law Manual – Making Justice Accessible to All – a highly respected resource 12 International Trust Jurisdictions and Forced Heirship – dealing with claims 18 Defending the Rule of Law: An Interview with Kingsley Abbott – the issues confronting human rights and the rule of law 25 Swearing-in of Rt. Hon. Chief Justice Dame Helen Winkelmann GNZM 27 Valedictory Sitting of the Rt. Hon. Chief Justice Dame Sian Elias GNZM PC 30 Valedictory Sitting of the Hon. Justice Asher PRACTICE AND LIFESTYLE 23 How Much More Do They Want? – Following on from International Women’s Rights Day, Kate Davenport looks more closely at the gender gap 35 Investing vs Speculating – Separating the Crystal Clear from the Crystal Ball – is it time to stop listening to media speculation on the future of the market?

38 Buckle Up and Be Safe Online – authentication tips 41 Petrol Heads’ Corner – David O’Neill on the new BMW X5 43 Join David on the BMW Alpine Experience – an adventure for members

The views expressed in the articles in publication may not necessarily be the views of the New Zealand Bar Association.

EDITORIAL COMMITTEE David O’Neill - Chair Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz

Jacqui Thompson (Contributions & Advertising) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Shortland St Auckland 1140

Drafting doesn’t need to drain your time.

Save time and reduce risk with Lexis® Draft.

Enhanced research, editing and proofreading functions allow you to avoid mistakes and revisions so you can deliver accurate and concise legal documents every time.

Seamless workflow with Microsoft® Word & Outlook integration Quick-links to Lexis Advance® bringing clickable research capabilities Visit us at www.lexisnexis.co.nz/Brushstroke find out how to turn your keystrokes into brushstrokes for your next legal masterpiece.

www.LexisNexis.co.nz/Brushstroke | Lexis® Draft LexisNexis, Lexis Advance, Lexis Draft and the Knowledge Burst logo are registered trademarks of RELX Inc. © 2019 LexisNexis NZ Limited. All rights reserved.

From the President Kate Davenport QC*

Tēnā koutou.

My first column for 2019 must sadly begin by acknowledging the horrific terror attack in Christchurch on 15 March. Messages of condolence were received from the International Bar Association, Chair of the United Kingdom Bar Council, President of the Australian Bar Association, and the President of the Yazd Bar Association of Iran.

please reach out for help.

The NZBA has been working with the Community Law Centre in Canterbury and the Canterbury branch of the New Zealand Law Society to connect those who would like to offer pro bono legal services to those affected by the attack. Information about how you can assist is also on the news section of the NZBA website (https://www.nzbar.org.nz/ news/christchurch-mosque-shootings-how-you-can-help). If you are personally struggling with this tragedy (or with any aspect of your life)

Annual Conference Bookings for our annual conference will be open shortly. We are co-hosting this conference with the Australian Bar in Queenstown on 23 and 24 August. Confirmed speakers so far include: Jennifer Batrouney QC, Kate Davenport QC, Matt Howard, David O'Neill, Chief Justice Dame Helen Winkelmann, Simon Mount QC, Mary Scholtens QC, Rowena Orr QC, Justice Christian Whata, Keiran Pender, Kate Davenport, Jonathan Eaton QC, Justice Geoffrey Venning, and Hamish Ross. There are some great topics in the programme, as well as some exciting excursions on offer for delegates and partners. The event will conclude with a formal dinner at the spectacular Skyline Restaurant.

The Judiciary It has been a busy few months. In March, I had the honour of speaking at the valedictory sitting for our first woman Chief Justice, the Rt. Hon. Dame Sian Elias. Coincidentally, this sitting took place on International Women’s Day. Dame Sian is the third longest serving Chief Justice.

I was also honoured to represent the NZBA at the swearing-in ceremony for the Rt. Hon. Chief Justice, Dame Helen Winkelmann. It was 15 years after I spoke at Her Honour’s swearing-in ceremony as a Judge of the High Court in 2004. Dame Helen is our 13th Chief Justice. We look forward very much to working with her Honour.

The valedictory sitting of his Hon. Justice Raynor Asher was held on 7 March, just one day before the retirement of Dame Sian. Justice Asher is a former president of the NZBA and was part of the steering group for the establishment of the Bar Association. I was delighted to have the opportunity to speak at his Honour’s final sitting.

Articles about these sittings appear later in this issue of At the Bar. Silks’ Appointments Call ceremonies for 10 Queen’s Counsel were held in February. Celebratory dinners were held in March in Auckland and Invercargill. Photos of some of the call ceremonies and the Auckland dinner are on pages 45 and 46.

The Christchurch Silks dinner to celebrate Anne Stevens QC, James Rapley QC and James Wilding QC's call to the Inner Bar was to be held on 15 March, the day of the terror attack. It has now been rescheduled for 20 June. Please contact Lisa Mills at nzbar@nzbar.org.nz for details.

www.nzbar.org.nz

4

I was able to attend the Auckland, Dunedin and Invercargill ceremonies and the dinners. It was great to see so many travel to Dunedin and Invercargill to witness the call of the new QC’s. It was a very enjoyable day and night in Invercargill, where we celebrated Fiona Guy Kidd’s call to the Inner Bar, a first QC for Invercargill and her 50th birthday.

Mentoring Following the very successful relaunch of the NZBA mentoring programme in 2018, we held an event which was kindly hosted by 48 Shortland Barristers in Auckland, for current and prospective mentors and mentees and others interested in knowing more about mentoring and the bar as a career path.

Following my introduction, we heard from Natalie Walker, Crown Solicitor for Manukau, Tania Sharkey, President of the Pacific Lawyers Association and Maria Dew QC, Chair of the NZBA Mentoring Committee. We were delighted that in addition to Tania Sharkey, 10 members of the Pacific Lawyers Association joined Tania at the event. We are hoping it will be the first of more joint gatherings.

Photos of the event are on page 44.

Bullying and Harassment The International Bar Association is releasing a report on 15 May about the Bullying and Sexual Harassment in the Legal Profession. We hope to collaborate with the IBA which is potentially having events in New Zealand in August this year as part of a global engagement strategy to follow the launch of their landmark research into this topic. I have been invited to speak at a session Does this profession reward bullies? What is the bar response? at the 14th Annual IBA Leader’s Conference being hosted by the Bar Issues Commission in late May in Budapest.

As part of our ongoing work in this area, we are planning a session on bullying and harassment at our Annual Conference and NZBA Council member Jenny Cooper QC has joined the New Zealand Law Society Culture Change Taskforce.

Wellness at the Bar The NZBA Council has as one of its strategic objectives, the fostering of support and well-being at the Bar. I am delighted to announce that the NZBA has entered into a partnership with the Medical Assurance Society (MAS), which will mean NZBA members will be able to access the MAS health and wellbeing portal and wellbeing services. Further information on this new partnership is on page 33 and additional information will be made available to members shortly.

Promotion of the Bar My thanks to Council member Lara Mannis and her colleagues at Richmond Chambers in Auckland for hosting a drinks event for Auckland-based junior practitioners in March. These junior events are always popular and are open to friends and colleagues at firms who may want to know more about life at the bar. Richmond Chambers has been a great supporter of these events over the last few years.

On 4 April, in conjunction with the ANZ Bank, we hosted a networking event in Auckland for members of the Bar, who were joined by potential clients and instructing solicitors. The event had a panel discussion, following the release by the Environmental Defence Society (EDS) of its report on phase 1 of its resource management reform project, which takes a first principles look at how New Zealand’s resource management system could be improved.

Panel members included Gary Taylor QSO, Chair and Executive Director of EDS, Stephen Selwood, CEO of Infrastructure New Zealand and Martin Williams, barrister and resource management expert and was moderated by Bronwyn Carruthers, barrister and resource management expert.

Our thanks to the ANZ for hosting this, and to the panel members for their participation in what was an excellent discussion with great audience participation. Photos of the event are on page 44.

Submissions We have also been very busy in preparing submissions. On 6 April we filed a submission on the proposed amendments to the Arms Act 1983. From the time the legislation was introduced into the house, there was a two day period for submissions. The NZBA’s position was that legislation to ban

www.nzbar.org.nz

5

military styled semi-automatic rifles was essential. However, there were real gaps in the legislation caused by the rush to pass it. We made suggestions for improvement and will be following up on future amendments. I particularly want to thank Josh McBride and Fletcher Pilditch for a great job in drafting the submission in a very short timeframe.

Since my last President’s Column, we have also responded to: • • • • •

the Ministry of Justice’s January 2019 paper entitled The Anti-Money Laundering and Countering Financing of Terrorism Act 2009 – Second Consultation Paper on Proposed Class Exemption; to a Barrister (Sole), The Rules Committee on representative proceedings; The Solicitor-General's guidelines for prosecuting sexual violence; The Criminal Cases Review Bill; The Law Commission in respect of its review of the Use of DNA in Criminal Investigations.

My thanks to all those who have contributed a significant amount of time into drafting these submissions.

NZBA has been invited to appear as intervenor in a review the guideline sentencing judgment for methamphetamine R v Fatu, in R v Zhang. The hearing is scheduled for April this year. My thanks to James Rapley QC and Esther Watt who are representing the NZBA. QC’s at admission ceremonies Thanks are also due to Marie Dyhrberg QC, who travelled to Napier for the recent admission ceremony.

We believe it is important for the profession for the senior bar to attend these ceremonies. We will advise members of upcoming admission ceremonies via our Member Update email. If you can attend, please contact Lisa Mills at nzbar@nzbar.org.nz.

The larger picture It has, of course been a very hard time for the rule of law in New Zealand and abroad. Later in this issue of At the Bar former President, Clive Elliott QC, comments on the events in Christchurch on 15 March within the context of the rule of law.

Things don’t look much better on the international scene. Brunei has introduced a new penal code which imposes the death penalty for a number of offences, including death by stoning for adultery and gay sex. There are a number of other inhumane penalties including amputation and flogging. We support the Law Society’s condemnation of this decision. It is a backward step for that country and for the rule of law internationally. In an article later in this edition, international criminal and human rights lawyer, Kingsley Abbott, comments on the difference between the rule of law and rule by law.

Brunei has concentrated on the latter at the expense of the former.

So, what can we do? We can support organisations dedicated to human rights and the rule of law. We can boycott products from countries with poor human rights records. But most importantly, we need to make our voices heard in condemning such practices. And we should never give up.

Get involved As you can see it has been a very busy time and we look like being even busier in the next few months.

Talk to me about anything on your mind and don’t forget your chocolate fish if you sign up to Civil Legal Aid (my application has been completed – do I give myself a chockie fish?)!! Let me know your thoughts please and how you want to be involved by emailing me at President@nzbar.org.nz.

Please Join us on social media – Instagram and LinkedIn. *Kate Davenport QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email Kate at President@nzbar.org.nz or our Executive Director, Melissa Perkin at melissa.perkin@nzbar.org.nz.

www.nzbar.org.nz

6

The Christchurch Massacre and the Rule of Law Clive Elliott QC

regrettably true. The increasing retreat from facts and truth as the cornerstone of a properly informed and truly free liberal democracy is disturbing.

Equally disturbing is the attack against the rule of law and the separation of powers that ensures that democracy survives. These principles simply cannot be taken for granted any longer.

The brutal massacre of ordinary New Zealanders worshipping in Christchurch on 15 March is a long overdue wake-up call for New Zealand. The first and most important thing is of course to mourn and respect those who have died and to join and support them in their grieving.

The Bar Association expresses its sincere condolences to all the families suffering their unimaginable and terrible loss.

In times like this we really need to take stock of the situation. Christchurch tells us that the line between order and chaos is a very fine one.

What right-wing extremists like this seek to do is to reject the rule of law and replace it with their own warped view, where the superior white races rule the inferior, through force of arms rather than respect for others, the pursuit of truth and respect for justice.

The second is to ensure that the premeditated and cold-blooded killing of innocent people on such a large scale never again happens in this country.

Timothy Snyder of Yale University’s comments in “On Tyranny: Twenty Lessons from the Twentieth Century” have a particular resonance. He argues that it is critical for liberal democracies to defend their institutions because it is only through institutions, including civic groups, that decency and respect for others will be preserved.

He contends that institutions are unable to protect themselves and it is only through individual action that this can be achieved and that this applies equally to our courts and judges, the media and civic groups.

This callous act, perpetrated against peaceful worshippers going about their own lawful business reminds us that the line between a peaceful, free and safe community and one ruled by the fanatics with lawfully purchased automatic weapons dressed in military fatigues is a very fine one. All it takes is one radicalised individual to enter a place of worship, whether it be a church, temple or mosque and wreak havoc on the group of innocent people, including women and children he has never met and will never know.

Sadly, the retort that it won’t happen here is no longer true. It can and has happened here and we all need to stand up and call terrorism for what it is and regardless of the cause. Parliament, and that means both sides of the House, need to finish what they have started and ban automatic and semiautomatic military-style weapons. They have no place in a law-abiding, tolerant and free democratic society. If we don’t do this now those who seek to replace the rule of law with the rule of the gun, will have won the battle. The sincere hope is that the days of military style weapons in the hands of ordinary citizens are numbered, this time for good.

This is the cold, faceless terror which radicalised and extremist elements seek to inflict on their perceived inferiors and enemies. The manifestoes propagated by the likes of both ISIS and white supremacists are disturbingly alike; based on perverted religious interpretations, delusion and deep-seated imagined wrongs - fanned by hatred and a sick sense of superiority. Whether Jihadists or right-wing supremacists their goals are the same; to drive decent, caring people from the political centre towards their extremist views and towards a holy war of their making.

The Attorney-General’s observation at the recent candlelight vigil in Auckland that the enlightenment is under attack around the world is

www.nzbar.org.nz

* Clive Elliott QC is the immediate Past President of the NZBA and a barrister at Shortland Chambers.

7

Don’t get lost in the research maze.

Discover the shortest route to your most relevant case with Graphical View.

Experience the power of data visualization on Lexis Advance.

The new Graphical View feature on Lexis Advance enhances your case research efficiency by color coding your search results so that you can get to the most relevant search faster.

The colored searched results also indicate where your search terms are located in each result set, allowing you to quickly gauge case relevance just by looking at it.

Lexis Advance® LexisNexis, Lexis Advance and the Knowledge Burst logo are registered trademarks of RELX Inc. © 2019 LexisNexis NZ Limited. All rights reserved.

KS032019LL

REDEFINING LEGAL RESEARCH

Pro Bono – Unlocking Potential in New Zealand Auckland Community Law Centre

panel of about 10 NZBA members was convened to provide services through the pilot.

The pilot was designed to test and develop many of the processes, techniques and strategies used by pro bono clearing houses. “Highly effective pro bono partnerships require more than arms-length referrals,” says Mr Aitchison. “They depend on trust between the agency making the referral and the pro bono provider. They also require good communication and a good match between need and supply.”

Auckland Community Law Centre (ACLC) recently published its final report into the Litigant in Person Pro Bono Pilot. Launched in 2017, the pilot aimed to encourage the growth of pro bono services in New Zealand by addressing some of the challenges associated with the presence of litigants in person in the justice system.

A priority for ACLC was to provide a positive experience for the barristers. ACLC retained the client relationship rather than making an outright referral. Barristers were comprehensively briefed, and instructed to provide discrete, unbundled pieces of work.

This meant administrative tasks and regulatory compliance were kept to a minimum for the barristers. Most engagements took around 2 hours of the barristers’ time. The types of tasks the barristers provided were:

The pilot has strong connections to the New Zealand Bar Association and work it has been doing. In 2015 the issue of a pro bono clearing house was discussed at the NZBA conference.

Following that discussion, an Access to Justice sub-committee was formed. Members of the sub-committee at the time (Frances Joychild QC, Andrew Barker QC, and Stephanie Thompson) were responsible for looking at the potential of a pro bono clearing house in New Zealand. NZBA convened a pro bono clearing house round-table meeting in September 2016, including sponsoring Fiona McLeay, CEO of Justice Connect, to address the meeting.

a) Advice on the law relevant to their case (both substantive and procedural); b) Guidance on how to observe court rules and procedures; and c) Support around settlement strategies and implementation.

Following the round table meeting, Darryn Aitchison* flew to Sydney with the support of New Zealand Law Society. The purpose of the trip was meet with people and agencies involved in pro bono partnerships in Australia, and to scope potential pro bono projects for New Zealand. The Australian Pro Bono Centre recommended the road to a clearing house was to find a project that could be launched quickly, get it started, and use it to build momentum.

In addition to discussing the pilot, the final report addresses broader issues to do with the development of pro bono in New Zealand. “The pilot provides a clear demonstration that pro bono partnerships can address access to justice needs” says Mr Aitchison. “Our centre has a much better understanding of the limits of pro bono, and the levers available to maximise the considerable potential that is there.”

A litigant in person service in the bankruptcy jurisdiction was chosen as the initial focus.

Several organisations in Australia ran similar services, and evaluations of those services showed they were effective. Justice Connect offered to gift ACLC operational resources and IP, and to support ACLC to develop the service.

Following discussions with ACLC, the NZBA subcommittee agreed to support the pilot. A small

www.nzbar.org.nz

One clear recommendation from the pilot is the need to invest in capability building. The supply of pro bono services should be carefully matched to demand. This involves an understanding of where unmet legal needs sit within the community, an understanding of the motivations and goals of lawyers wanting to do pro bono, and the coordination of services to ensure alignment.

9

Other jurisdictions who invest in capability have seen significant increases in the amount of pro bono being done. They have also seen pro bono play an increasing role in promoting access to justice in high need communities.

Community law centres are currently awaiting the outcome of a services and funding review with the Ministry of Justice. One proposal being considered by Government is the establishment of a pro bono clearing house. Mr Aitchison is hopeful the moment has arrived for pro bono in New Zealand. “There is broad support for a pro bono clearing house in New Zealand. The pilot has connected community law with large firms, the Courts and Judiciary, the Bar, the Law Society, and various Ministries. We regularly field

enquires from people wanting to be involved in pro bono work. What is needed now is sustainable funding to seize this momentum and unlock the opportunities.”

The pilot operated throughout 2018 with funding from the New Zealand Law Foundation. ACLC has continued the operation beyond the pilot phase as it awaits the outcome of the funding review.

It now operates in the bankruptcy jurisdiction in Auckland High Court, the Employment Court, and will soon launch in the Employment Relations Authority. The final report is available at the following link: https://www.aclc.org.nz/publications * Darryn Aitchison is the General Manager at the Auckland Community Law Centre.

The Community Law Manual – Making Justice Accessible to All Sue Moroney*

From its humble beginnings in the 1980s as a loose-leaf resource in a ring-bound folder, the Community Law Manual has grown into a glossycovered, 1000-page book setting out complex legal information in clear language.

But in the most critical way it hasn’t changed its kaupapa at all. The Community Law Manual exists to make our justice system fairer and more accessible to all.

The Manual is accessed online over a million times every year and Community Law also sells hundreds of hard copies. The demand for the Manual is evidence of its value, yet the Community Law Manual remains staunchly committed to its founding principles and is therefore free online to everyone who needs it.

The Manual is comprehensive yet accessible, offering real-life examples in plain language across 34 chapters to help everyday New Zealanders understand the practical application of the law.

Given how rapidly the law changes, The Manual needs to be updated every year to ensure that it is accurate and relevant to users. There are no other legal publishers in New Zealand producing a legal resource of this size, quality and detail every year.

www.nzbar.org.nz

10

Legal Resource Writer, Marcus Pawson, Community Law Centres o Aotearoa CEO Sue Moroney and Publications Administrator Mahala Pinchen discuss plans for the 2019 edition of the Community Law Manual

Last year, Community Law collaborated with individuals and organisations from the Disabled and Deaf community to produce a new chapter on Disability Rights. This included all the topics in the old “Health and Disability” chapter but is much broader and more practical. It covers things like supported decision-making, discrimination in employment, a person’s right to use New Zealand Sign Language, reasonable accommodation, and access to special education services.

Every year the Community Law Manual evolves, changes and grows. With a combination of support from volunteers, funders, like-minded individuals and organisations, and the legal profession, Community Law can respond to changes in the law, keeping pace with developments in society and technology in order to provide a legal resource that supports the most vulnerable in the community.

fully updated chapter on Dealing with Oranga Tamariki. Community Law wants to be able to send fully sponsored copies of the Manual to every organisation in the country that works with disadvantaged youth or the LGBTQIA community.

Members of the Bar Association should consider sponsorship of the Community Law Manual – it’s a great way to give back by improving access to justice while supporting the upkeep of this vital legal resource. Email info@wclc.org.nz to find out more about sponsorship and what we can offer you as a sponsor.

The Community Law Manual is truly a communityled resource. It is so well respected that many people mistakenly assume it is produced and funded centrally by the government – i.e. by the Ministry of Justice.

You might also want to buy a copy or two for your own practice, whether as a resource for staff or as a book to stay in your reception area for clients to look over as they wait. By buying a copy of the Manual you are not only getting a hard copy to keep within arm’s reach, you’re also directly improving the chances that others in the community will be able to do the same. Together, we can continue to improve and refresh the Manual, next year and beyond. Pre-order your Community Law Manual 2019–2020 now. Email: info@wclc.org.nz

In fact, the Community Law Manual is produced by a small team of plain-language experts at the Wellington and Hutt Valley Community Law Centre. The Community Law Manual is likely the most-read legal resource in the country.

Funds generated from the sale of the hard-copy Manual are channelled straight back into production costs for the next year so that each year it can be updated, refreshed and improved. Starting in 2017, Community Law also launched a sponsorship campaign to make sure that hard copies of the Manual were getting to the people who need it most. Law firms and individual lawyers from across the country came to the table to sponsor copies of the Manual that Community Law then sent out to organisations and support services who work with our most vulnerable communities.

CLM timeline • 25ish years ago – a resource was created called the "Legal Reference Manual": o this came from Wellington Community Law staff creating fact sheets and resources for our education sessions o all voluntary work o updated every 3-4 years • 2007 – WCLC gets funding from the Legal Services Agency to repackage the whole thing as loose-leaf sheets for 3 years of 6-monthly updates • 2008 – first folder back from printer. They did 2 or 3 loose-leaf updates which was much more difficult and expensive than expected.

• 2011-12 – back to book form, this time as the ‘Community Law Manual’ • 2015-16 – Publications role created at WCLC to manage the Manual and all our other legal information resources

Last year, Community Law was able to send over 40 free copies of the Manual to organisations who work directly with people who are homeless, thanks to sponsorships by Simpson Grierson, Whāia Legal, Lauren Hibberd at Sainsbury Logan & Williams, Rachel Roff at Thorndon Chambers, Sam Perry at Brandons Lawyers and some individual sponsors from our wider community who contributed to an ActionStation campaign online.

We’re also grateful to have some short-term funding from the Borrin Foundation at present that has enabled us to undertake some ground-breaking work including improving online accessibility and adding new content across three editions of the Manual.

* Sue Moroney is the Chief Executive Officer of the Community Law Centres o Aotearoa.

See https://communitylaw.org.nz/ for more information.

This year, Community Law would love to see the legal community pay it forward on an even greater scale.

The new edition of the Manual will have a brand new chapter on Gender and Sexuality and a

www.nzbar.org.nz

11

International Trust Jurisdictions and Forced Heirship

By Michael Reason*

With increased population mobility over the last half century, trustees and beneficiaries of family trusts in common law jurisdictions have been faced from time to time with claims by “heirs” (the spouse or dependents of a settlor or other beneficiary) who are resident or citizens of a civil law jurisdiction, or who have property situated in a civil law jurisdiction.

These heirs may claim under laws applying in that jurisdiction to succession or separation.

www.nzbar.org.nz

12

The claim would be on the basis that the settlor of the common law trust exceeded his or her rights in the civil law jurisdiction, to settle or divest him or herself of their property in their lifetime.

The trustee in the common law jurisdiction may accordingly be faced with, for example, a judgment from a civil law court that the trust property was never lawfully settled on the trustee, and that the civil law state views the property as belonging to the civil law heirs or spouse (an action in rem). Alternatively, if it is viewed as settled, the spouse or heirs may claim a refund of its equivalent value (an action in personam).

Harris2 considers that the first category of the rule “seems clearly” to affect the validity of transfer of assets to the trustee. The third category does not.

The third category is uncertain but the first and third category of rules are likely to be categorised as mandatory rules within Article 15 of the Hague Convention on the Law Applicable to Trusts (the Hague Trusts Convention) whose application the convention does not prevent.

This article discusses the nature of forced heirship, how a “clawback” action of a foreign state may play out in a common law jurisdiction and what a common law trustee may do to prepare for such an eventuality. It examines the experience of the English and New Zealand trustees.

Forced Heirship Forced heirship can be described as a restriction on the freedom of an individual to write a will. It is a feature of many jurisdictions, in particular those with civil law or Islamic law traditions.

Generally, the rules dictate that a prescribed portion of an individual's assets must go to their family on their death, and that they can therefore dispose of only the remainder in accordance with their own wishes.

Forced heirship is a part of the public policy of the countries with these rules and any will made contrary to such rules would be null and void at least to the extent by which it contravenes the forced heirship rules.

Duckworth1 categorises forced heirship jurisdictions into three types: - Strict forced heirship whereby the individual may dispose of only part of their estate; such as France, Scotland (which has forced heirship but almost total freedom to make lifetime gifts) and Islamic states; - Forced heirship by indivisible shares whereby the testator has power over all of his/her estate, but certain family members have a minimum entitlement which they can enforce if the testator fails to leave them the requisite amount, such as Germany and a number of US states; and - Judicial adjustment whereby certain family members may apply to court in its discretion, to make provision for them such as England (if the deceased died domiciled in England but it also applies to property outside England), Ireland, New Zealand (if the deceased died domiciled in New Zealand but it also applies to property, other than real property, outside New Zealand) and China.

In a civil law environment (subject to defences which are only briefly mentioned for the purposes of this article3) the only way in practice to avoid forced heirship rules from applying is to hold assets in a structure in a country in which such restrictions are not recognised. The avoidance of forced heirship rules may be a reason for establishing an inter vivos trust.

Specific legal actions are possible against parties who have received donations for amounts that exceed the freely disposable part.

Philanthropy is restricted. Anyone receiving a donation from an individual who is subject to forced heirship rules is, eventually, liable to actions by the heirs of the donor to reduce such donation. Any agreement in relation to the future estate is null and void. The transfer of rights can only be validly made after the death of the deceased.

To prevent reserved shares being undermined, lifetime gifts by the deceased are commonly taken into account when calculating the value of the estate on which the shares are based (clawback). Clawback may affect the validity of gifts made during a specified period before the death or during an unlimited period (as in France).

The value taken into account may be that at the date of the gift or at the date of death.4 Trustees should therefore consider their personal liability before dealing with assets where there is a possibility of a forced heirship claim. They need to consider the likelihood of a claim based on a foreign judgment being recognised by the common law courts and whether they should be seeking directions from the court under the relevant Trust(ee)s Act. The Trusts Bill 2017 section 8 specifically preserves the courts inherent jurisdiction to "supervise and intervene in the administration of" a trust and section 125 of the bill replaces the Trustee Act 1956 section 66 power of the trustee to apply for directions.

Duckworth, A. “Forced Heirship and the Trust”, in International Trust Laws Section B Special Topics in International Trust Laws. Ch B1, p5 (1999-, Jordan Publishing, UK) 2 Harris, J. The Hague Trusts Convention (2002, Hart, UK) p 366 3 Below at p???

4 See more at: http://www.step.org/tale-two-systems#sthash.Ni1aj0ov.dpuf 1

www.nzbar.org.nz

13

The Convention does not apply to preliminary issues relating to the validity of wills or of other acts by virtue of which assets are transferred to the trustee.

Common-law Jurisdiction Although the English court will enforce reserved shares when applying civil law, it does not apply clawback. This is because English law does not characterise the validity of a lifetime gift as an issue of succession law.5 The matter has not been decided but the same may be presumed to apply in New Zealand.

Article 15 of the Hague Trusts Convention preserves the mandatory domestic law rules designated by the conflicts rules of the forum concerning the establishment of a trust such as marriage, death, bankruptcy and succession:

The percentages of forced heirship in each jurisdiction apply after the assets of the surviving spouse arising from the dissolution of the marriage are distributed to the spouse.

“The Convention does not prevent the application of provisions of the law designated by the conflicts rules of the forum, in so far as those provisions cannot be derogated from by voluntary act, relating in particular to the following matters —

In common law jurisdictions, in general a deceased law of domicile will apply to the will and the law of the place of situation of immovable property will apply to immovable property. For example, a will made subject to New Zealand law by a New Zealand domicile comprising only of UK immovable property may only be administered in the UK and vice versa.

(a) the protection of minors and incapable parties; (b) the personal and proprietary effects of marriage;

A change of situs by imposing a company that owns immovable property can be attacked.

However the English Court of Appeal6 has ruled that the domicile of a trust will normally be England where there is an express choice of English law in the deed of trust.

(c) succession rights, testate and intestate, especially the indefeasible shares of spouses and relatives;

This accords with article 6 of the Hague Trusts Convention, which in any case appears to apply the underlying rule of English conflict of laws.7 Article 6 is worded as follows:

(e) the protection of creditors in matters of insolvency;

(d) the transfer of title property and security interests in property;

(f ) the protection, in other respects, of third parties acting in good faith.

A trust shall be governed by the law chosen by the settlor. The choice must be express or be implied in the terms of the instrument creating or the writing evidencing the trust, interpreted, if necessary, in the light of the circumstances of the case.

If recognition of a trust is prevented by application of the preceding paragraph, the court shall try to give effect to the objects of the trust by other means.“ Article 16 preserves the role of the forum's mandatory rules:

Where the law chosen under the previous paragraph does not provide for trusts or the category of trust involved, the choice shall not be effective and the law specified in Article 7 shall apply.

“The Convention does not prevent the application of those provisions of the law of the forum which must be applied even to international situations, irrespective of rules of conflict of laws.”

The Hague Trusts Convention explicitly failed to deal with clawback claims in this context.

Article 4 of the convention (enacted in England and Wales as Article 4 of Schedule 1 of the Recognition of Trusts Act 1987) states that it does not apply to trust settlements:

This reference to mandatory rules of the forum irrespective of conflicts rules indicates that the doctrine of Renvoi is preserved if the chosen law has one. New Zealand is not a signatory to the Hague Trusts Convention.

For example, see Gorjat v Gorjat [2010] 1537 (Ch) - See more at: http://www.step.org/tale-two-systems#sthash.Ni1aj0ov.dpuf Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065; [2009] Ch 245 [ 62] to [63], cited in Innovia Films Ltd v Frito-Lay North America Inc [2012] EWHC 790 (Pat), ( [82] … forum non conveniens …excluded in cases where there is mandatory jurisdiction under art 5(6) (Gomez v Gomez-Manche Vives) 7 Deschamps v Miller [1908] 1 Ch 856, 863 and Gomez v Gomez-Monche Vives [2008] EWCA Civ 1065; [2009] Ch 245 [ 62] to [63] 5 6

www.nzbar.org.nz

14

Forced Heirship clawback claims From an English or New Zealand lawyer’s point of view, the most serious concern regarding claw-back is that an English or New Zealand law trust will be subject to a claw-back claim under the law applicable to succession.8 There appears to be a difference between academics as to whether forced heirship issues should be classified as matters of succession or as matters of trusts. In Lewin on Trusts9 “...if the applicable law [of trusts] includes forced heirship rights, the English court will enforce them”

gives the court a discretion over property alienated by the deceased within six years of his/her death if made with the intention of defeating claims under the Act. The trustee cannot, however, be liable for more than the value of the value of the trust assets remaining in hands at the date of the claim (s13).

The Family Protection Act 1957 (NZ) does not contain a similar provision but rather gives the court jurisdiction to vary the will or intestacy if adequate provision is not available from the estate for proper maintenance and support.

Harris11 comments that:

Harris however10 considers that this statement should be treated with caution and that it should not be for the law applicable to trusts to determine whether forced heirship rules apply to testamentary trusts:

The influence of the law of succession is so strong that even a living trust may fail because it infringes on mandatory rules governing succession, notably those concerning the reserved share of children.

“In the case of testamentary trusts, the question of forced heirship is not to be classified for private international law purposes [such as whether a state’s court will accept jurisdiction and which state’s law it will apply] as a trusts matter. In the case of inter vivos trusts, the question whether rules of forced heirship are infringed appertains to the validity of an alienation of property by the settlor and should be determined by the lex situs (because it will normally concern the ability to alienate property inter vivos at all, not the question whether property can be alienated inter vivos by trust).”

The commentators agree that trustees might find themselves liable in an overseas jurisdiction beyond the extent of the trust assets which they hold. The problem may be compounded by the difficulty of foreseeing the law of succession applicable at the time of the creation of the inter vivos trust since in the case of movables, this will depend on the testator’s domicile at the time of their death.12

The author also states (at n1391): “The law applicable to succession should not be applied to impugn an inter vivos trust on forced heirship grounds, because the forum will apply the lex sucessionis only to assets which it regards as forming part of the testator’s estate on death. Where those assets have already been validly dissipated inter vivos, they do not form part of the testator’s estate on death.”

Harris13 has argued that an English court was not likely to permit a validly created inter vivos trust to later be impugned by foreign forced heirship rules and that it would be likely to treat retrospective claw-back as contrary to English public policy.

With respect to the learned author, there is no direct authority for his interpretation of public policy and this author considers that additional measures can and should be taken to protect a trustee.

Although as stated above, the Hague Trusts Convention does not specifically deal with clawback provisions, Article 18 of the Convention states that: The provisions of the Convention may be disregarded when their application would be manifestly incompatible with public policy.

Sections 10 and 12 of the Inheritance (Provision for Family and Dependents) Act 1975 (England)

See for example In re Annesley, Davidson v Annesley [1926] Ch. 692, in which an English court held that a trust created in a will of a person residing in a civil law jurisdiction yielded to the law of the domicile and succession, subject to forced heirship. See also In re Ross. Ross v. Waterfield. [1930] 1 Ch. 377; In re Askew. Marjoribanks v. Askew [1930] 2 Ch. 259 9 Mowbray, J and others, Lewin on Trusts, 17th ed. (London, Sweet & Maxwell, 2000) p301 10 Above at n2, p 366 11 Above at n2, p368 12 Hayton, D “Trusts and Forced Heirship Problems” (1993) 2 J Int Corp P 3, 3-4 13 Above at n8.

8

www.nzbar.org.nz

15

Hayton’s view14 is that most rules of forced heirship will only affect assets of inter vivos trusts when those assets are situated in the state where the settlor’s forced heir is habitually resident.

The relevant question is whether at the time of settlement of the trust, the settlor was entitled by law to alienate his/her property to the settlor.

If the lex situs requires the property to be held for the benefit of the settlor’s children, the transfer would be invalid. If the lex situs permits the transfer of the property, that transfer is valid and cannot be impugned on the testator’s death.15 It is not for the law governing succession to determine, in an English or New Zealand court, which assets form part of the settlor’s estate.

Assets validly disposed of inter vivos according to English or New Zealand private international law will not be subjected to the law applicable to succession.16

claim before making a distribution of the trust assets. In New Zealand, if a direction is obtained authorising the trustee to limit the class of beneficiaries to exclude forced heirs, and the direction was obtained without fraud or wilful concealment or misrepresentation in obtaining the direction or in acquiescing in the court making the order giving the direction, the trustee is to be protected by being deemed to have discharged their duty as trustee of the subject matter of the direction notwithstanding that the order giving the direction is subsequently invalidated, overruled, set aside, or otherwise rendered of no effect.18 In England the Trustee Act 1925 section 61 provides a power in the court to relieve a trustee from liability when acting reasonably. To obtain relief under section 61 of the Trustee Act 1925 the trustee has to satisfy the Court that they ought fairly to be excused for omitting to obtain its directions in the matter. It is implicit that a trustee is protected by obtaining directions following proper disclosure, service on interested parties and advice to take independant legal counsel.

The reported commonwealth decisions recognise that inter vivos lifetime gifts to trusts of property situated in the commonwealth jurisdiction contrary to the interests of a forced heir will to be valid despite the gift defeating the interests of a civil law resident forced heir. The English cases where forced heirship applied contrary to the existence of the common law trust rely for their reasoning on the trust appointing the property to the beneficiary’s personal estate to “blend the appointed fund into one mass with the appointor’s free estate.”17 There are no reported examples of civil law judgments being recognised as binding the common law trustees.

A prior direction order, made in the forum of administration under the proper law clause of the deed of trust, might also be sufficient to establish a later res judicata defence. The same may apply to an arbitration award under Part 7 of the Trusts Bill 2017.19 It would appear to be viable, for example, to authorise distributions to beneficiaries contrary to forced heirship rights in the foreign state but could struggle to prevent recognition of judgments in favour of spouses following separation.

Where there is a claim from a “foreign” jurisdiction, there are various defensive mechanisms that the trustee might rely on (such as defences under reciprocal enforcement of agreements, exclusive jurisdiction clauses, arguments based on public policy etc.). However, this can lead to the trust’s assets being diminished in an unnecessary battle and again the trustee needs to balance these options.

What to do?

Where trustees are concerned that the settlor of a trust might be attempting to alienate property contrary to the laws of the place where that property is situated, they must exercise caution.

Accepting the property could have unfortunate results for both the settlor’s intentions and the trustee him or herself. The terms of the trust must be carefully constructed to include clauses relating to exclusive jurisdiction and indemnities.

* Michael Reason is a barrister who was called to the UK bar in 2013, having had a long career as a New Zealand barrister and English solicitor. He is now based in New Zealand and can be contacted at Michael.Reason@fieldcourt.co.uk

The trustee also has options under section 66 of the Trustee Act 1956 (section 125 and 127 Trusts Bill 2017) (NZ) and section 57 of the Trustee Act 1925 (UK) to seek directions and apply to bar a

stated in International Trust Laws ch 3, 14 Harris, op. cit. p369.

Ibid. See also Lewin on Trusts above at n9, p302.

17 Khan's Settlement, Re, Coutts and Co v Senior Dowager Begum of Bhopal [1966] Ch 567 18 Trustee Act 1956 s 69 (NZ) 19 Boxer Capital Corp v. JEL Investments Ltd, 2015 Carswell BC 96, 379 D.L.R. (4th) 712, Res Judicata: An Analysis for the Sake of Public Policy, Selin Ece Tekin (Akinci Law)/February 24, 2019, Kluwer Arbitration Blog 14 15 16

www.nzbar.org.nz

16

Make your NZBA Membership Pay for Itself Your NZBA membership can save you money.

Aside from great insurance rates which in some cases, more than covers the membership fee cost, we have a range of commercial benefits.

Here are some examples of recent savings that our members have experienced: “I recently had to buy new computer cables to fit with different monitors and docks. I also regularly lose my cell headphones. At Noel Leeming I get great prices on accessories such as a $68 cable which was reduced to around $35, a set of headphones reduced from $35 to $22 and a four port USB dock which was originally priced at $25 but I paid $15.78. I also bought a soda stream maker which was on sale but was still cheaper using the NZBA member deal – I needn’t have waited for the sale!”

“I saved a lot by buying my wallboard from Carter’s using the NZBA app. I didn’t need that much but it still gave me $110 worth of savings. I also had to do a lot of painting and I bought my paint through Dulux using the app. I saved 40% on the retail price.”

“I always use the app for renting cars when I go away. I check out all the options but one of the things I like best is that it allows me to have zero excess as well as a good daily rate. But it does pay to shop between the options.”

Executive Director, Melissa Perkin often hears stories from members of how they have saved through using the app: “I once got a call from a member telling me he had just gained benefits potentially worth thousands of dollars from the Mercedes Benz Corporate Programme. The BMW Corporate Advantage offer is also excellent,” she says. Ms Perkin uses the app herself wherever possible: “The discounts differ according to the supplier, so it is worth checking them out. I know someone who saved quite a bit of money at Guthrie Bowron. Another person was renovating a bathroom and got a very good deal through Mico Plumbing.”

We also have offers that will support members in their practice. Our member benefit offering for LexisNexis is excellent and we have had significant uptake. But we also have a range of other services that can make a big change to your practice. For example, using DragonDictate voice recognition software will revolutionise the way that you work, and after you have used it for a while, you will wonder why you didn’t buy it earlier.

Whether you’re interested in qualifying for corporate rates for Koru, 25 % off travel insurance through Allianz or just want to send someone flowers, check out the options on our member benefits app or on our website.

For information on how to access the app, please email Lisa Mills at nzbar@nzbar.org.nz.

Got your NZBA App?

Download the NZBA app onto your smart device from the Google Play/App Store to take advantage of member benefits from around 50 suppliers. Contact nzbar@nzbar.org.nz for more information.

www.nzbar.org.nz

17

Defending the Rule of Law: Interview with Kingsley Abbott* Jacqui Thompson

Accountability, he travels widely, most recently to Colombia, Bangladesh, Geneva and Tunisia.

The work has been highly challenging. When he first joined the Cambodia Tribunal, the team members were essentially designing from scratch the rules of procedure for their Tribunal, including the administration, logistics and the “how to” of the investigation. Although they could obtain guidance from the procedures of some other tribunals, each tribunal has its own challenges that requires a new response.

Abbott was a legal adviser to the investigation team, which faced the initial challenge of how to begin to analyse the massive amount of evidence and information. There were dozens and dozens of crime sites, with the whole spectrum of international crimes that had allegedly occurred in the country over the course of several years including genocide, war crimes and crimes against humanity.2

From scuba diving instructor to international criminal and human rights law might seem an unusual career progression, but this was nonetheless the path that Kingsley Abbott took.

He began his career in the normal way, working for a New Zealand law firm as a junior solicitor.

He then was fortunate to move to the bar where he worked mainly with Stuart Grieve QC and Antonia Fisher QC. But as he approached 30, he felt the time had come for him to move on to the next level and he had to make a call whether that would be in New Zealand or overseas.

Abbott’s background at the New Zealand criminal bar proved invaluable. He was working with a relatively young team, many of whom had academic backgrounds but little or no practical experience. Abbott did not have an academic background in international criminal or human rights law but his time working with Stuart Grieve helped provided his team with some of the solutions for organising and analysing the evidence, creating the case file, and ultimately issuing indictments.

He planned to travel slowly overland to look for work at the UK bar, but after a stint relaxing on beaches in Indonesia and teaching others about his passion of scuba diving, he secured an internship with the special tribunal that had been set up by agreement between the United Nations and the Cambodian government to investigate and prosecute members of the Khmer Rouge for their actions during the mid to late 1970s1.

At the end of his three-month internship, Abbott was offered a consultancy with the UN which later translated into a full-time position. After three and a half years in Cambodia, he moved to the Hague for a couple of years where he was a Trial Counsel in the Office of the Prosecutor at the Special Tribunal for Lebanon.3 That tribunal, the first established to prosecute international terrorism, was also in the pre-trial investigation phase and was investigating and building a case file on those responsible for the 2005 political assassination of the former Prime Minister

This was the start of his career in international criminal and human rights law. Since then, he has worked for two special tribunals for the United Nations and is now celebrating his fifth year of working for the International Commission of Jurists (ICJ). He has spent much of the last 13 years in Asia, and in his new role as Senior Legal Adviser for Global Redress &

This Tribunal is a hybrid tribunal with a domestic arm and an international one. For more information see http://www.unakrt-online.org/about-us and https://www.eccc.gov.kh/en(accessed 31 March 2019) 2 For a fuller description of the years of the Khmer Rouge regime see https://www.eccc.gov.kh/en/about-eccc (accessed 31 March 2019) 3 https://www.stl-tsl.org/en/ (accessed 31 March 2019) 1

www.nzbar.org.nz

18

Protests spilled onto the street and were taken up by other groups with grievances, such as factory workers and unionists who protested working conditions and the minimum wage.

Choeung Ek, is the best-known of the sites known as The Killing Fields in Cambodia. The Khmer Rouge regime executed about 17,000 people between 1975 and 1979.

of Lebanon, Rafic Hariri, as well as some connected cases.

Abbott notes that all of these kinds of Tribunal’s have the huge complexities; “International criminal justice by its nature is buffeted by all kinds of political winds and financial challenges.

The subject matter is usually complex, and, in that case, we were indicting alleged members of Hezbollah. There were tremendous security concerns,” he says. “My work took me to Beirut a few times where we were conducting investigations to get our case ready in very sensitive circumstances.”

There have been a few dicey moments during his career, Abbott admits, but says that “internationals” like himself are a lot safer than their national colleagues who are considerably more vulnerable. In his experience, a government that wants to retaliate usually weighs up the political cost of doing so. They are much more likely to retaliate against their own citizens who are more vulnerable in their own countries, than an international person whose arrest, disappearance or death must be explained.

Abbott was then asked to return to assist the Cambodia Tribunal as a Senior Legal Officer during a transitional phase to share his institutional knowledge of the investigation with a new team. This proved to be a turning point and led to him leaving the UN and joining the ICJ as an International Legal Adviser in 2014, initially focussing on Southeast Asia. At that time, Cambodia was experiencing some upheaval on the domestic front following allegations that a recent election had not been free and fair.

Unfortunately, the protests turned deadly and violent. Abbott knew some of the people who were working for civil society organisations on observing and documenting the protests. They invited him, in his personal capacity, to help monitor and observe. He also found himself unwittingly in the middle of a protest which he later heard had turned violent as security forces shot into the crowd.

For Abbott, these experiences cemented the feeling that it was time to stop working on 1970s Cambodia and look at ways of working on some of the challenges in Asia in 2013. That led to the ICJ. The ICJ was established in 1952 and is based in Geneva. The Commission is a standing group of 60 pre-eminent international legal experts, including judges, lawyers and academics from around the world. Former New Zealand Governor-General and judge, Dame Silvia Cartwright, serves on the Executive Committee.

The organisation is reliant on donors for its funding. Unlike some organisations, it does not rely on a membership structure. Instead it seeks donors such as the European Union and member countries, and also the George Soros Foundation (the Open Society Foundations).

It also accepts private donations. However, a major problem for the organisation is finding core funding rather than project funding.

More core funding would allow it to respond effectively as needs arise.

Abbott says that the ICJ’s approach is “… a top to bottom of international human rights legal work. At the very top, the ICJ has over the decades worked to develop and push for the creation of international human rights law and standards.” It was therefore involved in the development of some of the well-known UN conventions such as the Convention against Torture,4 the Convention Against Enforced Disappearance5 and the Convention on the Rights of the Child.6 It cooperates and does advocacy with human rights bodies in Geneva such as the UN Human Rights Council, the UN Human Rights Committee7 and other treaty bodies and special procedures.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1) https://www.ohchr.org/en/professionalinterest/pages/cat.aspx (accessed 28 March 2019) 5 International Convention for the Protection of All Persons from Enforced Disappearance https://www.ohchr.org/en/hrbodies/ced/pages/conventionced.aspx (accessed 28 March 2019) 6 United Nations Convention on the Rights of the Child https://www.ohchr.org/en/professionalinterest/pages/crc.aspx (accessed 14 April 2019) 7 https://www.ohchr.org/en/hrbodies/ccpr/pages/ccprindex.aspx (accessed 28 March 2019) 4

www.nzbar.org.nz

19

The ICJ has also worked with the development of international legal standards, or what Abbott describes as more “declaratory instruments” that elaborate upon international human rights law. An example of these was the recent development of new international standards that apply to the investigation of unlawful deaths, which Abbott himself assisted in drafting with a team of experts from all over the world.

The ICJ then persuades governments to ratify conventions and advises on how to implement those obligations domestically. It also works with the judiciary, prosecutors, lawyers, victims and civil society to increase their understanding of international human rights laws and standards and how to apply or seek protection through them. The ICJ also conducts trial observations, undertakes legal training, works on domestic legal reform and carries out human rights investigations in the field, among other activities.

Abbott stresses that the approach they take with national governments isn’t just being critical of the government, although that is sometimes necessary; “[Q]uite a lot of [our approach] is to work collaboratively and assist a government in its work… [and] say ‘Look, our job is not to criticise you from a political perspective. Our job is to say here is where you are failing in your international human rights legal obligations and we would like to help you address that by providing you with our legal expertise.’” Abbott says that this approach is usually well received, depending on the issues, because of the ICJ’s

reputation of being legal and constructive in its approach.

Many of the better-known intergovernmental organisations, including the United Nations and the European Union, were put in place after the Second World War to try and advance peace and prosperity. “This was on the basis that we are stronger together than we are separately,” Abbott says. “We all succeed – and without building walls. Then we have the International Criminal Court (ICC) and the international justice movement that really took off in the ‘90s, which was all set up with the concept that multilateralism and a rules-based international order was good for people.”

But now, says Abbott, this work and many of these bodies are being undermined. A recent example of this was the scathing attack on the ICC by US National Security Advisor, John Bolton. Although the US had never become a party to the ICC, it had engaged with the diplomatic processes around it to a limited extent. Abbott comments that Bolton’s attack doesn’t do a lot for accountability around the world for international atrocities; “The ICC is imperfect, but it is still a body that requires support.”

Abbott is concerned about these recent trends and their implications for the rule of law.

He describes this as a norm laden concept that includes the separation of powers; the independence and impartiality of judges and lawyers; equality; access to courts;

18th ICJ World Congress in Tunis

www.nzbar.org.nz

20

accountability; and non-discrimination against minorities, vulnerable groups and women. A 2012 resolution in the General Assembly8 has, in Abbott’s opinion, given the international community’s stamp of approval to the rule of law embodying many of these different ideas and concepts. This means, he says, that the rule of law is not just a case of whoever has power, has the law and can wield it. It is much more nuanced than that.

He cites a recent example from 2017 when the Cambodian Supreme Court dissolved the main opposition party. In a massive conflict of interest, one of the judges sitting on that court was a member of the ruling party’s standing committee.

“This was an example where the judiciary lacked independence and impartiality. So, that decision - notwithstanding that it was made by the Supreme Court - was inconsistent with the rule of law because it violated the norm of the independence and impartiality of the judiciary.”

Abbott says that in a lot of places around the world, authoritarian regimes are adopting the language of human rights law, the rule of law and development concepts. “They will say that nothing that happens in their country is inconsistent with the rule of law, because (for example) when they arrested a journalist – such as in Myanmar where journalists have been arrested for documenting the alleged genocide of the Rohingya – or when they dissolved the main opposition party in Cambodia, they are merely applying the law, and nobody is above the national law and they are therefore a country that accepts the rule of law.”

The ICJ describes this as the difference between rule of law and rule by law. Rule by law means the idea that everybody in the country is ruled by a law that is often wielded as a tool of oppression, whereas the rule of law is all about respecting the international human rights legal framework and all those norms encapsulated in it.

Using Cambodia as an example, Abbott points out that it has ratified a lot of the key conventions such as the International Covenant on Civil and Political Rights9, the International Covenant on Economic, Social and Cultural Rights10 and the Convention against Torture.11 But Abbott believes that the rule of law and whether Cambodia is complying with it or not

is actually the extent to which it is protecting and promoting the rights contained in those conventions. “If you arrested a journalist for merely criticising the government, that is a violation of that journalist’s right to free expression and media freedom. Is it consistent with national laws? Technically it might be. Is it a violation of the rule of law? Well yes, it clearly is.”

In Abbott’s view, the rule of law is now under attack in many places around the world. The ICJ held a Global Congress in Tunis in late March 2019 to look at this issue and to essentially reaffirm the ICJ’s commitment to the rule of law.

“It is a very hot issue right now,” he says. “The… attacks are coming from many quarters and I think it’s wrapped up in a lot of the trends we are seeing around the world, which are well-known now but weren't so obvious four or five years ago. These are the rise of popularism and the attraction of popularist leaders who claim they are standing with the people against corrupt government institutions that aren’t serving their interests, the rise of nationalism, the challenges of different refugee and migrant crises - and the idea that some people have that the international human rights legal framework is failing and is not well-equipped to deal with these issues.”

Abbott says this is accompanied by a trend of clamping down of freedom of expression, and the rights to assembly and association and the ability of civil society to function freely. He points to suggestions that these rights in some way are not improving the situation in countries and a consequent silencing of dissenting voices.

Abbott acknowledges the complexity of the challenges facing many countries but is adamant that the answers being offered up, such as higher walls and the undermining of the judiciary and other independent justice actors, such as civil society and human rights institutions, are not the solution: “The solution has to be grounded in a human rights/rule of law approach,” he says. “A non-discriminatory approach that respects the rights of refugees and promotes and protects the independence and impartiality of the judiciary, among other measures.”

Abbott believes that an important step is to reaffirm the importance of the rule of law.

“I think there needs to be inserted into the dialogue around issues such as refugees a more

Resolution 67/1. Declaration of the High-level Meeting of the General Assembly on the Rule of Law at the National and International Levels https://www.un.org/ ruleoflaw/files/A-RES-67-1.pdf (accessed 28 March 2019).

International Covenant on Civil and Political Rights: Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 23 March 1976, in accordance with Article 49 https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx (accessed 29 March 2019).

10 Adopted and opened for signature, ratification and accession by General Assembly resolution 2200A (XXI) of 16 December 1966; entry into force 3 January 1976, in accordance with article 27 https://www.ohchr.org/en/professionalinterest/pages/cescr.aspx (accessed 27 March 2019).

11 Above at n2 8 9

www.nzbar.org.nz

21

human rights violations are held accountable as part of the global fight against impunity, and that victims are provided with effective remedies and reparations.

accessible discourse on human rights – the rights to non-discrimination and the obligations that countries have with respect to refugees. It is horrifying to see the idea that we shouldn’t be letting more refugees - who are fleeing war or persecution - into a country just because we want to preserve some notion of ‘our way of life’.

Abbott’s day to day work is quite varied.

Recently, he has led a team that filed an amicus before the International Criminal Court, arguing for jurisdiction over international crimes committed by the Myanmar Army against the Rohingya. He has trained prosecutors and investigators on the duty to investigate serious human rights violations, including unlawful deaths; spoken on expert panels in Geneva at the UN Human Rights Council on effective UN mechanisms responding to crimes under international law; and published on several human rights issues including the standards that apply to documenting and investigating mass atrocities.

However, Abbott thinks that a level of optimism is warranted. On the whole, he says, while in 2019 it all seems grim and some people would say it has been a difficult decade, in many respects the world is better off than it was 70 or 80 years ago. He asserts that while these are enormous challenges, they can be overcome in part by reaffirming and building on the international human rights’ legal framework that was put in place gradually since the last world war. He hopes that over time that discourse will win out.

Abbott acknowledges there have also been some failings in the human rights movement that need to be addressed - including its failure to fulfill the promised equal emphasis on economic, social and cultural rights. These do contain some answers to the often heard suggestion that human rights are some kind of projection that is irrelevant to peoples’ day-to-day lives.

Abbott also believes that New Zealand, in many respects, is uniquely placed to take on a leadership role on many of these issues in the Asia/Pacific region and globally. He notes that we are seeing a retreat from a strong human rights based foreign policy approach by some other international actors: “The US is tangled up with re-evaluating its own foreign policy position globally, and in the Asia Pacific. The UK does a lot of great work, but it has issues at home.

The European Union is dealing with challenges within its own membership in terms of right wing governments coming through and that causes difficulties for it to operate on a consensus basis on these issues. And Latin American countries, which were some of the strongest voices on human rights from the 1990s, are also struggling with domestic issues in some instances.”

Although it is a small country, Abbott points to New Zealand’s strong judiciary and an equally strong tradition of the promotion and protection of human rights. He says New Zealand has so much to offer by sharing its experiences in terms of a pluralistic society, a democracy, with a commitment to human rights and a free press.

Abbott now leads the ICJ’s global work on redress & accountability. The thrust of this work involves ensuring that perpetrators of serious

www.nzbar.org.nz

Abbott has just launched a new ICJ project in Latin America, focussed on post-conflict environments such as in Colombia, Guatemala and Peru. The ICJ is working with governments, lawyers, prosecutors, judges and forensic experts on how to investigate past and ongoing violations, including enforced disappearance and extra-judicial killings. It is also working with civil society and victims helping them find ways to access justice . “The forensics component is quite strong,” says Abbott, and “very interesting.”

It can be a hard job. “The difficulty with this type of work is that the results are not always immediately apparent or tangible. You don’t always know about the successes but you hope that just the fact that you are doing it matters.

Often you are simply providing a counter narrative to some of the human rights abusing authoritarian narratives that are out there.

Sometimes … we can frame a situation [for the media] through a human rights and rule of law lens, which is an important element for readers of newspapers to think about these issues.

Or we might simply raise issues that may not otherwise merit a hearing.”

Acknowledging that it might sound clichéd, Abbott says that while he is often exhausted at the end of the week, he is grateful to be exhausted by doing something that is meaningful, rather than being exhausted by doing something that isn’t. Asked how long he will keep this work up, he admits that while it sometimes takes a toll mentally and physically, he intends to keep on going. * For more information about the ICJ see: https://www. icj.org/. Kingsley Abbott can be contacted via linked in at https://www.linkedin.com/in/kingsleyabbott/ and you can follow him on twitter here: @AbbottKingsley

22

How Much More Do They Want?

Kate Davenport QC *

Friday 8 March 2019 was International Women’s Day (#WomensDay). It was also the day that we held the valedictory sitting for the first woman Chief Justice of New Zealand, who had the distinction of being one of the first two women QCs appointed in our country.

It was particularly in keeping with International Women’s day that all three counsel who addressed the Court were women, of whom I was one. The other two women were our first woman Solicitor-General, Una Jagose QC and Kathryn Beck, the President of the New Zealand Law Society. I found this deeply empowering and it led me to reflect on how far we have come as women in New Zealand.

The gender gap is in fact alive and extremely (un)healthy: •

Based on current trajectories, existing interventions will not suffice to achieve a Planet 50-50 by 2030.2

•

The gap alters according to economic status, ethnic origin, education, ability and age.3 While younger, highly educated Pakeha women might feel they have parity, this experience changes for many of those who fall outside this category. A recent report revealed that Pacific women working in the public service earned on average 21 per cent less than the mean wage for all employees.4

•

Political empowerment is the biggest area in terms of the gender gap. There are seven countries that have closed 50% of their gap – and New Zealand is not one of them.5 We remain at 47% despite the improvement resulting from more women in Parliament.

•

In terms of leadership positions, the higher women climb, the more biases, challenges and stereotypes they face.6

•

The economic participation and opportunity gap for New Zealand is 76%. We are ranked number 23, notwithstanding our educational attainment level is 100%.7

But is it far enough?

International Women’s Day was recognised by the United Nations in 1975 as a day dedicated to the rights of women, although some countries have had a women’s day since the early 1900s and some even celebrate it as a public holiday.

The theme for 2019 was Think equal, build smart, innovate for change (#BalanceforBetter). It looked at innovative ways for advancing gender equity particularly in social protection systems, access to public services and sustainable infrastructure.

In New Zealand, many argue that women have equality and that this day is no longer necessary.

We have all heard the question asked: how much more can woman possibly want or need?

At first glance the question is not unreasonable.

We are ranked 7th in 2018 figures on closure of the gender gap1, indicating that we have closed 80% of the gap. This is the first time we have entered the top ten countries. It is, however, mostly due to an improvement on the Political Empowerment Index, with more women in Parliament, so we cannot be complacent about the gap in other areas of our lives.

World Economic Forum, The Global Gender Gap Report 2018 (Geneva 2018) p7. http://www.unwomen.org/en/news/in-focus/international-womens-day (accessed 4 March 2019) Enabling women’s potential - the social, economic and ethical imperative: A White Paper from the National Council of Women of New Zealand (2015) https://www.ncwnz.org.nz/wp-content/uploads/2015/11/EnablingWomensPotential_OnlineViewing-1.pdf (accessed 8 March 2019) 4 http://www.scoop.co.nz/stories/PO1812/S00200/pacific-women-paid-lowest-in-new-zealand-s-public-service.htm?from-mobile=bottom-link-01 (accessed 29 March 2019) 5 Above at n1, p8 6 World Economic Forum, From glass ceiling to glass cliff: women are not a leadership quick-fix https://www.weforum.org/agenda/2018/12/glass-ceiling-cliffwomen-leadership-fix/ (accessed 8 March 2019) 7 Above at n1, p13.

1 2 3

www.nzbar.org.nz

23

•

Trends indicate a growing gender digital divide and that women are underrepresented in the field of science, technology, engineering, mathematics and design.

we in New Zealand where clearly, we are still struggling to achieve parity.

•

With the growth of AI, it is probable that we will see a shift of money and power from traditional professions such as banking, law etc to the digital technology/science fields, which remain heavily male dominated.

•

Violence against women remains a serious concern in our crime statistics.

A December 2016 United Nation’s report on the linkages between women’s economic empowerment and their rights to decent work in full and productive employment, noted that:8 “… gender gaps are rooted in historically unequal power relations between women and men in the household and in the economy and society more broadly; gender-biased design and impacts of macroeconomic fiscal, monetary and trade policies; discriminatory laws and social norms; and greater constraints on women in balancing work and family responsibilities.”

The legal profession is an example of this struggle. We continue to see fewer women than men at the senior levels.10 Although the number of women lawyers has steadily increased to exceed that of male lawyers, in 2019 they still make up only 32.7% of partners and directors in multi-lawyer firms.11 We often hear younger professional women say that they have never felt unequal and believe that they have achieved equality. There is however a difference in perception among women who are in the middle or later stages of their careers and are seeking positions of power. Statistics indicate that the gender gap up until the age of 30 is less than 5% but it widens considerably thereafter.12

The United Nations is trying to address this by introducing social innovations that work for both women and men:

Many women who began work in the 1980s with a sense of equality with their male colleagues, have realised that equity becomes a significant issue as they seek to advance to senior levels. And the harsh reality is that a woman in her middle age is often dismissed as somehow having less to say, notwithstanding her experience and knowledge.

We have all heard the phrase “Oh she is menopausal!” as if that somehow makes a woman stupider or less capable. Eliminating stereotypes is obviously very much a work in progress.

"From urban planning that focuses on community safety to e-learning platforms that take classrooms to women and girls, affordable and quality childcare centres, and technology shaped by women, innovation can take the race for gender equality to its finishing line by 2030."9

When you consider that the women’s movement in NZ began in the late 1800s and the acceleration of women’s rights issues from the late 1960’s to 1970’s is now a half century on, you have to ask why this is the first year we can say we have closed 80 per cent of the gender gap and wonder how long it will take to close the remaining 20%?

The same report states: "Violence against women is an obstacle to gender equality in economic opportunities and outcomes, and its elimination is key if women are to manage their livelihoods… The cost to the global economy of discriminatory social institutions and violence against women is estimated to be approximately $12 trillion annually."

Addressing gender balance and eliminating violence against women is a humanitarian issue but it is also a significant economic issue. The world cannot afford to ignore it, and neither can

And crucially, how long will those with diverse backgrounds and experiences take to reach average gender equity figures in New Zealand?

So, when asked “how much more do women want?”, the answer is simple. They want the same opportunities as men. They want an equal share, irrespective of gender, ethnicity or age.

And they don’t want to wait another decade or three to get it. * Kate Davenport QC is the NZBA President. Please email her at President@nzbar.org.nz

United Nations Women’s economic empowerment in the changing world of work” Report of the Secretary-General 30 December 2016 4/19 https://undocs. org/E/CN.6/2017/3 (accessed 4 March 2019) 9 http://www.unwomen.org/en/news/in-focus/international-womens-day (accessed 4 March 2019) 10 NZ Law Society, “New Zealand lawyer numbers continue to grow” (https://www.lawsociety.org.nz/news-and-communications/news/new-zealand-lawyernumbers-continue-to-grow (accessed 7 March2019) 11 Above at n2.

12 The gender pay gap closing, figures show - but will it ever completely close? (NZ Herald, 15 August 2018) https://www.nzherald.co.nz/personal-finance/news/ article.cfm?c_id=12&objectid=12107334 (accessed 8 March 2019).

8

www.nzbar.org.nz

24

Swearing in of Rt. Hon. Chief Justice Dame Helen Winkelmann GNZM On 14 March 2019, Dame Helen Winkelmann GNZM was sworn in as the 13th Chief Justice of New Zealand and Tokelau. The line of Chief Justices began with Sir William Martin in 1841. However, her Honour’s appointment was the first ever appointment of the head of our final appellate court, the Supreme Court of New Zealand, which was only formed in 2004 at a time when Dame Sian Elias was already Chief Justice.

Live streamed from the courthouse, the swearing in ceremony demonstrated the unique traditions of New Zealand/Aotearoa. Both the Māori and common law traditions are centuries old and it was fitting that they were both represented.

The new Chief Justice was welcomed by Āti Awa, as mana whenua of Te Whanganui-a-Tara (Wellington), the land on which the Supreme Court sits. There was a hongi (an exchange of breath) between the judges of the Supreme Court and representatives of the iwi.

President of the New Zealand Law Society, Kate Davenport QC, President of the New Zealand Bar Association and a very moving address was given by Chris Farrelly, the Auckland City Missioner, on behalf of the community.

The ceremony was simultaneously translated

by Karena Kelly and signed by Alan Wendt and Melissa Sutton.

Speaking on behalf the Bar Association, Kate Davenport QC noted that she had spoken at her Honour’s swearing in as a judge of the High Court in 2004 and had predicted great things for her future as a judge, which she was delighted to see had indeed come true.1 Ms Davenport said that the ceremony was of constitutional significance to all New Zealanders. The Court had been formed to ensure that those areas of law that were of great importance to the lives of New Zealanders were accessible and not subject to expensive litigation in a remote foreign country. Within this context the Treaty of Waitangi was of particular constitutional significance, and the Supreme Court therefore had an important role in upholding its legal recognition at all levels.

Prior to her Honour’s appointment, the SolicitorGeneral prepared and circulated criteria for the appointment of the Chief Justice. The Bar Association was asked to comment on these criteria. The Candidate was to:

The Registrar of the Court passed the mauri (authority) of the court to Te Āti Awa, using the words “Te Āti Awa kei a koe te mauri o te whare” (“Te Āti Awa you have the life force of the house.”).

Rikirangi Gage (Te Whānau-a-Apanui and Ngāti Porou) gave the response on behalf of Justice Winkelmann and the Winkelmann whanau.

Mr Gage has Winkelmann whakapapa on his mother’s side.

The mauri of the Court was then returned to the court, and the Supreme Court’s most senior judge, Justice William Young, asked the Queen’s counsel for their appearances. He then administered the oath of allegiance and the judicial oath.

Speeches were then delivered by the AttorneyGeneral, the Hon David Parker, Kathryn Beck,

1) be an outstanding judge; 2) have outstanding leadership skills; 3) have an excellent understanding of and ability to work within the environment in which the administration of justice operates; and 4) show certain personal qualities including: a. the ability to work courteously in and out of Court, respecting the views of others; b. superior written and oral communication skills; c. resilience, stamina and firmness of purpose under pressure; d. interpersonal skills; e. patience and the ability to listen; and f. decisiveness.

Address by the President of the New Zealand Bar Association, Kate Davenport QC on the Occasion of the Swearing in of the Rt. Hon. Chief Justice Dame Helen Winkelmann GNZM, 14 March 2019, Supreme Court, Wellington

1

www.nzbar.org.nz

25

Ms Davenport noted that her Honour clearly fitted all these criteria, as not only did she get the job, but her appointment was met with great support from colleagues on the bench, from the profession, and from the Executive.

Dame Helen, Ms Davenport said, is noted for her extremely impressive intellect, combined with an ability to deliver well written and reasoned judgments. While the Chief Justice is the "first among equals", her Honour sits on a bench full of outstanding judges. The Chief Justice must therefore be a leader and must inspire confidence in those who receive justice and those who are involved in the delivery of justice.

Ms Davenport said that this was clearly one of the new Chief Justice’s strengths and her former colleagues from the High Court bench spoke very highly of her Honour’s leadership of that court and her ability to inspire all to accept her decisions whatever their own views because they all felt that she had taken the time to listen to and understand all perspectives before making her decision.

Judges swear an oath that they will "...do right to all manner of people after the laws and usages of New Zealand, without fear or favour, affection or ill will." Ms Davenport commented that this is not an easy oath to uphold and resilience and firmness of purpose are essential in doing so.

There are often great pressures and external forces that attempt to sway judges one way or another. Sometimes that pressure results from unfair criticism or personal attacks by the public (and sometimes politicians) on our judges as they seek to uphold that oath. There is frequently a lack of understanding of the legal principles to be applied and the constraints on judges.

The profession itself has a duty to support the judiciary in these situations and Ms Davenport suggested that this is one of the more important duties on the profession. As judges cannot comment on criticism notwithstanding that it is wrong or unfair and lawyers must do so in their place. While fair comment and criticism are appropriate, where there have been personal attacks or criticisms of the judge, rather than the judge's decision, Ms Davenport said that everyone should stand up, and clearly condemn such comments, as they are direct attacks on the independence of the judiciary.

The NZBA President drew attention to another of the criteria for appointment to the role of Chief Justice, namely that the candidate must have an excellent understanding of and ability to work within the environment in which the administration of justice operates. Her Honour is well-known for innovative approach to judicial administration

www.nzbar.org.nz

and has in the past been given an award by the Australasian Institution of Judicial Administration.

Ms Davenport said; “This requirement for judicial administrative excellence is critical currently, particularly as we seek to ensure that everyone has effective access to justice”.

In her statement when she was first appointed, Dame Helen said: "Access to justice is the critical underpinning of the rule of law in our society: it is the notion that all, the good, the bad, the weak, the powerful, exist under and are bound by the law.

That condition cannot exist without access to courts, and without the ability to obtain a just resolution of claims before those courts. Cost, delay and a lack of representation all can act as barriers to justice.”

Ms Davenport noted that somewhere along the line, we have priced the ordinary New Zealander out of the legal market. “We" didn’t just mean the profession; it also meant the limited civil legal aid structure (where the upper threshold for qualifying for legal aid is ridiculously low), reduced criminal legal aid spending and other costs of litigation such as court fees.

The President said that the challenge for the Judiciary, Executive, Legislature and the legal profession was to ensure that all those whose cases were legitimate and fitted within the criteria set out in the relevant legislation, could turn to our lowest or our highest court for determination of their case, without facing debilitating barriers.

Ms Davenport asked the question of what justice should look like in the years her Honour will be Chief Justice. She said that it promises to be a time of startling change. We are all trying to predict the effects of artificial intelligence and what benefits might be found in online courts and alternative dispute resolution structures. In facing this uncertainty, the one certainty was that the judiciary and the Chief Justice had to be central to the conversation about how we move forward.

But in doing so, Ms Davenport emphasised that we must never lose sight of the human face of justice, which is represented by all those who sit on the benches of our courts, and all those who work in or come to our courts. "This is particularly important for those cultures that depended on the building of relationships to resolve disputes. They are entitled to be heard by a person and not a system," she said.

Ms Davenport concluded by ensuring the Chief Justice that the profession stands firmly behind her and the judiciary.

The NZBA wishes her Honour every success.

26

Valedictory Sitting of the Rt. Hon. Chief Justice Dame Sian Elias GNZM PC The valedictory sitting of former Chief Justice, Dame Sian Elias, was held on 8 March 2019, some 24 years after she was first sworn in as a judge of the High Court of New Zealand. At that time, she was a highly respected member of the independent bar and in 1988 was one of the first women to be appointed QC in New Zealand.

At the sitting, speaking for the New Zealand Bar Association,1 Kate Davenport QC remarked that her Honour had been a smart, bold, brave and resolute advocate, these being qualities which were essential in an advocate.

Solicitor-General, Una Jagose QC, referred to Dame Sian’s steely resolve, bravery and humanity, as exemplified during her representation of He Taua group who had been charged with rioting, among other charges, following their efforts to stop the Engineering students from their “tradition” of performing mock haka in capping day antics at the University of Auckland.2 Ms Jagose remarked: “The clash between what was seen, wrongly, as lighthearted capping antics and Māori values and tradition became violent and – through your defence of the group - became a seminal moment for Aotearoa.”

Ms Davenport noted that Dame Sian appeared in several landmark cases, including as lead counsel for the appellant in the 1993 Privy Council case, NZ Maori Council v AttorneyGeneral (the Maori Broadcasting Rights case).

While this case was unsuccessful at the Privy Council, it did result in significant recognition of Crown duties and obligations and pave the way to the enactment of Te Ture mō Te Reo Māori 2016/Māori Language Act 2016.

Kathryn Beck, the President of the New Zealand Law Society, noted Dame Sian’s role in Nganeko

Minhinnick's Manukau Harbour claim in the Waitangi Tribunal, which she had said was a lifechanging time for her Honour:3 “The Tribunal's report in 1985 described it as the most wide-ranging claim it had considered up until then. The Tribunal’s findings set out a new basis for the Māori role as kaitiaki, guardians, of their ancestral lands and waterways throughout the country.”

Ms Davenport noted that when Dame Sian was sworn in as Chief Justice, there were serious challenges and fundamental change facing the courts. We were still grappling with the concepts of partnership or plurality under the Treaty of Waitangi, bedding down the Bill of Rights Act, and when the establishment of the Supreme Court was mooted, many lawyers remained doubtful about New Zealand abandoning the Privy Council as its most senior court in favour of a local final court.

The naysayers said that we needed a final court that was not subject to the winds of change produced by political policy. It was argued that a final court based in New Zealand would not be able to withstand these pressures in the same way that the Privy Council had done.

However, Ms Davenport said, the Supreme Court has thrived and under Dame Sian’s guidance, won over the New Zealand profession, while providing access to justice for ordinary New Zealanders who cannot afford to litigate in a country 18,390 kms away from the seat of their complaint. It has also achieved a maturity and mana that compares more than favourably with the senior courts in similar jurisdictions.

Both Ms Davenport and Kathryn Beck referred to the 2009 Annual Shirley Smith Address,4 which Dame Sian delivered. This was a balanced and careful response to the question of how innocent children turn into those occupying prison cells.

Davenport, K. “Speech by the New Zealand Bar Association President, Kate Davenport QC, on the Occasion of the Valedictory Sitting of the Rt Hon. Chief Justice Dame Sian Elias GNZM PC QC” 8 March 2019, Supreme Court, Wellington.

2 Jagose, U. “Address by the Solicitor-General at the Valedictory Sitting of Rt. Hon. Chief Justice Dame Sian Elias as Chief Justice of New Zealand and Tokelau.”

8 March 2019, Wellington 3 Beck K. “Chief Justice Sian Elias – Valedictory sitting: Speech Notes” Friday 8 March 2019, Supreme Court, Wellington.

1

www.nzbar.org.nz

27

In the opening paragraphs of that speech Dame Sian commented that she wanted to take Shirley Smith’s question “Why do blameless babes become criminals?” as her working title but were concerned that this would become translated to be “Chief Justice says murderers are blameless babes”.5 This turned out to be not too far from what eventuated, as the speech caused a controversy.

what Lord Kenyon once disparaged as “the fashion[s] of the times”. The need for some scepticism about what is fashionable is however not a reason to resist changes needed to keep the law fit for “living people”."

Dame Sian also noted that: “The rule of law can be imperceptibly eroded unthinkingly if it is not valued by our society. That is not only by changes to the substantive law but also by changes to the administration of justice, including in such matters as listing of cases, court fees and legal aid – matters in our system largely under the control of the executive, not the judges …They also are increasingly under the control of the political branches of government, not the judges … [T]here is no room for complacency here and ... the profession need[s] to be vigilant to ensure that access to justice is not unreasonably impeded by the understandable imperatives of government.”

The address called for a frank discussion by the whole of society about the cause of crime and whether increased penalties had made communities safer. However, this led to a maelstrom of press comment and political anxiety. Her Honour was wrongly accused of wanting to throw open the prison doors – notwithstanding that she clearly stated that there was a place for prisons. Politicians howled that judges should not advise or direct the Executive and that her Honour’s comments were not the position of the government.

Ms Davenport commented that this was not activism or advice to the Government. It was an alert. Judges, especially Chief Justices, are ideally positioned to see what is happening in the criminal justice system and the impact on society. "If our judges cannot comment (neutrally) on social issues, then we are muzzling those who have a very important view," she said.

Dame Sian has often restated the constitutional importance of the separation of powers between the Court and government, while ensuring that the law is properly seen as a work in progress. In an address on 7 October 2015, her Honour said:6 “Members of a thinking profession need to stand apart a little from transient enthusiasms and be a little sceptical of

Ms Davenport noted that it was often the “Squeaky wheel” or populist cause that would claim the greater share of resources and we needed to be mindful to speak up in support of the judiciary. She suggested that if all else fails, and the normal channels for securing these resources don’t work, perhaps future Chief Justices will have to open a Twitter account - @theRealChiefJustice - so the judge could spend any sleepless hours in the early morning tweeting complaints under the hashtag #fakejudgery.

The NZBA extends to Dame Sian its gratitude on behalf of the independent bar for her service to the bench and the country. We wish her well in her retirement.

Elias, S “Blameless Babes: Annual 2009 Shirley Smith Address delivered to the Wellington Branch of the New Zealand Law Society Women-in-Law Committee, 9 July 2009” http://www.courtsofnz.govt.nz/speechpapers/Shirley%20Smith%202009%20lecture-Blameless%20Babes-9%20July%202009.pdf/ (accessed March 2019) 5 At [5] 6 Elias, S. “Judgery and the Rule of Law: an address given to the Faculty of Law, Otago University, Dunedin, Wednesday 7 October 2” https://www.courtsofnz. govt.nz/speechpapers/CJ.pdf/at_download/file (accessed March 2019), p1 (also available at (2015) 14 Otago LR 4).

4

Join your colleagues at the Bar and members of the Bench Auckland at the Annual NZBA Bench and Bar black tie dinner Bench and Bar being held on Wednesday June 26 at the Wintergarden, Northern Club.

Dinner 2019 Tickets only $145 per person.

Book Now! This event is likely to sell out.

For full details and to register visit https://www.nzbar.org.nz/events/auckland-bench-and-bar-dinner-2019

www.nzbar.org.nz

28

Dragon Discover how speech recognition can help you and your firm focus on billable work, while ultimately providing better service to your clients Your time is valuable. Nuance Dragon Speech Recognition solutions help to preserve it by empowering you and your firm to capture, organise and distribute legal documentation more accurately and efficiently for improved client service, productivity and costs.

Put your voice to work and improve practice productivity.

Enjoy legal-specific accuracy.

Built with a specialised NZ legal vocabulary to deliver optimal recognition accuracy when you dictate legal terms.

Speed document turnaround. Quickly dictateand edit case files, contracts and briefs by voice.

Boost efficiency with customisations. Add custom words specific to your practice and shortcut repetitive tasks by voice.

Eliminate or reduce transcription time and costs. Record legal notes using a digital recorder for later transcription by you or your staff.

Use your favourite applications. Dictate, edit and control within your desktop applications by voice.

Be productive anytime, anywhere. Use Dragon on popular form factors such as portable touchscreen PCs.

Special price

now 598 $

normally $704

40

For a limited time NZ Bar Association members receive 15% off the standard price of Dragon Legal NZ Individual.

Prices shown are ex GST.

Simply call Sound Business Systems on 09 300 3030 or 0800 DICTATE (0800 342 828) to speak to one of their team.

Valedictory Sitting of Hon. Justice Asher Kate Davenport QC*

The valedictory sitting of Court of Appeal judge, his Hon. Justice Raynor Asher was held in Wellington on 7 March 2019. It was my pleasure as the President of the New Zealand Bar Association to speak at the sitting.

outlining the first 30 years of the Bar Association.

In the late 1980’s he was part of the steering group for its establishment. This group included Sir Ted Thomas QC, Dr Jim Farmer QC, Dr Noel Ingram QC and Sonia Clapham and the late Peter Williams QC.

This was especially the case as Justice Asher was a former president of the NZBA from March 1996 and until February 1998.

It was clear that in supporting the formation of the Bar Association, he was prepared to show the courage of his convictions and stand up for what he believed was right when (and it is hard to believe this now) there was much opposition to the formation of a separate bar association.

His Honour is known for his dedication to the profession and to service of others. As a judge he was kind to young counsel, encouraging of them when they made errors (and by them, I mean “me”) and he was patient.

As is often the way with young lawyers, I was oblivious to the issues that were concerning the profession in the late 1980’s. A barrister was pretty much an unknown entity. In fact, my views of barristers were, on the whole, formulated by watching Rumpole of the Bailey. However, his Honour was very different from Rumpole and my contemporaries and I agreed he was the spitting image of a young Superman – minus the sparkly tights of course!

His Honour said that he left Kensington Swan where he was a partner to join the independent bar because he relished the idea of working independently, because it enabled one to attract and (in his words, “possibly repel”) work because of what he was and had done, rather than what the firm was.

While his colleagues in chambers were very different sorts of people with different approaches to work, they were all litigators facing similar challenges and similar moments of delight, as well as similar moments of despair. He very much enjoyed the camaraderie of chambers.

The Judge noted that barristers tend to have a real enthusiasm for the law, not just as a tool but as a discipline. He described it as being about making the law work while having a passion for the law as an instrument for doing right and for justice. His Honour certainly had this enthusiasm in spades, and it carried over to his work on the bench.

Last year his Honour was one of the former presidents who we interviewed for an article

www.nzbar.org.nz

Despite his support for the newly formed Bar Association, his Honour took the sensible view that there should be no reason why it should not co-exist with the Law Society, the ADLS and the Criminal Bar Association (which was more specialised in nature than the proposed new organisation). In fact, as well as being President of the NZBA, he was later President of the ADLS and a Vice-President for the New Zealand Law Society just before his appointment to the bench in 1995.

His Honour very much enjoyed his time on all these organisations with which he was involved, believing (correctly) that the administration of the profession is important work and that all legal organisations should work together to achieve what is best for the whole profession.

The Judge noted that in those early days of the NZBA, all those involved held a particularly strong belief in supporting the judiciary. The Bar Association considers that this is still one of its most crucial roles, especially in speaking out about unfair criticism of the judiciary. The judiciary by convention cannot defend itself and it relies on professional bodies and individual senior lawyers to explain the constraints under which judges work and why they are bound to decide things in certain ways.

In many ways, the key driver for the establishment of the NZBA was a belief in the independence of barristers. His Honour was heavily involved in the work done in the early 1990’s on the intervention rule. He told me himself that he felt proud of this work which aimed to ensure that the rule’s purpose was

30

understood and that it remained robust and a part of the New Zealand legal landscape.

This work carried on into the Judge's time on the ADLS council when he was often a lone voice as to the need for the intervention rule, which was felt in those days to be anti-competitive. The issues with the rule were part of the wider issues as to the future structure of the profession and his Honour worked tirelessly, while on the Bar Association but primarily with the ADLS, to stave off the attacks that were made in the 1990’s to the very basis of our profession.

Many remember the heady days of deregulation and the EDEC report which recommended the deregulation of the profession, despite the inherent dangers to the public. The changing social and political climate and the hard work of his Honour and others on these committees meant that these attacks to the structure of the profession had been overcome by the time of the drafting of the Lawyers and Conveyancers Act in the early 2000’s.

Raynor Asher QC’s work on the intervention rule has ensured it remains in place, although somewhat modified over the last few years. It remains an important part of life for those at the bar, especially the civil bar. It has also been instrumental in providing support for the view that most barristers with instructing solicitors have a limited need to comply with the AML/CFT Rules.

Going back to those early days, the members of the steering committee had a strong belief in the bar’s potential for growth. At the time when the Association was formed, there were approximately 200 people practising at the bar and by the date of its 20th anniversary that had increased to approximately 700. By its 30th anniversary, this figure had doubled. His Honour and his colleagues have been proved correct.

When asked if his Honour could identify something that he gained personally from his time with the Association, his response was that he had developed several lifelong friendships as a result of his participation on the steering committee and then working on the Council and the official committees of the Association. He got to know barristers throughout New Zealand who he might not otherwise have had contact with. He said that he found this exhilarating and valued the friendships that were formed.

www.nzbar.org.nz

He also said that being a member of the Bar Association made him think about the role of the barrister and being aware of what a good barrister should be and do. Constant association with the excellent barristers around him helped with his own personal development.

Prior to becoming President of the Association, the Judge decided to talk Julian Miles QC into serving a term as President. Mr Miles says that when he was approached, he asked the then Mr Asher what would be involved in the role.

Allegedly he replied, in what Mr Miles has since described as a “rather disingenuous suggestion”, that there might be one or two meetings a year and that he might have to deal with the odd issue, but really there was nothing to it.

Mr Miles says that he has never let his Honour forget how “utterly misleading” that was, and having served my first five months as President and aged considerably during that time (not of course that anyone can see that on my face), I must agree with Mr Miles.

We were delighted to have his Honour attend our 30th Anniversary Conference in Rotorua last year but did note his Honour’s preference for Queenstown as a conference venue, perhaps because of his well-known passion for skiing.

However, there is some consolation for him as this year (in a joint conference with the Australian Bar Association) we will be returning to Queenstown and we look forward to seeing both him and his skis at that time.

Most readers will be very aware of the contribution that his Honour has made as a judge of the High Court and then the Court of Appeal and can point to judgments that support this. A particularly telling comment from a senior QC was that those judgments tended to be very sound. As this source is known for being measured and calm, we can probably read considerable respect into this statement.

In a Q & A session with the ADLS last year, his Honour commented on how hard some aspects of judicial work have been and in particular, aspects relating to the criminal justice system.

He said the hardest thing about being a judge is having to do things one doesn’t want to do; to be forced by the law to a result, a consequence, or an order, that he doesn’t think is right.

Judges are constrained by the law and are bound to do what Parliament tells them. But

31

in my experience, that does not always fit the justice of the individual case when you are dealing with addicts or other grossly disadvantaged people.

The fact that his Honour found this hard acknowledges his essential and excellent qualities as a judge; the need to apply the law as prescribed by Parliament and yet the human struggle to accept that this is not always right.

It is often far harder to do that which is difficult but must be done. His Honour has had some hard and difficult cases in his 14 years as a judge, but he has steadfastly upheld the qualities found in the best judges: intelligence, hard work, humour and a great writing style. He has combined these qualities with a mastery of the law and an appreciation of the changing nature of the society in which his work has been carried out.

The profession will miss his Honour as a judge but is somewhat consoled by the fact that he will reappear among us as a member of Richmond Chambers (in a room with a peek of the sea) and will once again be with the profession that values him so highly.

On behalf of the independent bar, the NZBA thanks his Honour for his service to the judiciary and the profession. We wish him well in his future endeavours and welcome back the Hon. Raynor Asher QC. * In late February and early March, Kate Davenport QC appeared on behalf of the NZBA at several ceremonial sittings. Kate is hoping the rest of the year will be somewhat quieter, but is however looking forward to the next Silks Dinner in Christchurch.

New Members William Akel Katherine Anderson Alistair Barnett Mark Berry Aidan Cameron Bronwyn Carruthers Augustine Choi Graeme Christie Tudor Clee Jacki Cole Selwyn Coles Matthew Crawford Geoff Davenport Quentin Duff Nikkita Eilenberg Pita Faireka Prudence Free Jamie Grant Earl Gray Elizabeth Hall Sarah Holder Tama Hovell Owen Jaques Sam Jeffs Sarah Jerebine Tanya Kennedy Robert Kirkness John Koning

www.nzbar.org.nz

Lauren Lindsay Sam Lowery Josh Lucas Scott McColgan Kate McHugh Sarah McIlwraith Paul Murray Jovana Nedeljkov Tiaan Nelson Chris Nolan Laura O'Gorman Jared Ormsby John Palmer Jill Pengelly Nicola Pender Michael Reason Tania Reid Paul Rishworth QC Julia Robertson Mark Robertson Michael Robinson Lucie Scott Nic Soper Richard Southall Christopher Stevenson Jessica Storey Lucila van Dam Kate Venning

AUCKLAND AUCKLAND WELLINGTON AUCKLAND AUCKLAND AUCKLAND AUCKLAND AUCKLAND AUCKLAND TAWA AUCKLAND AUCKLAND WELLINGTON AUCKLAND AUCKLAND AUCKLAND AUCKLAND MELBOURNE AUCKLAND WELLINGTON CHRISTCHURCH AUCKLAND WELLINGTON AUCKLAND AUCKLAND WELLINGTON WELLINGTON TE PUKE

32

AUCKLAND AUCKLAND CHRISTCHURCH AUCKLAND INVERCARGILL AUCKLAND AUCKLAND AUCKLAND AUCKLAND CHRISTCHURCH AUCKLAND CHRISTCHURCH WELLINGTON AUCKLAND WELLINGTON TE AROHA CHRISTCHURCH AUCKLAND WELLINGTON WELLINGTON AUCKLAND WELLINGTON QUEENSTOWN HAMILTON WELLINGTON AUCKLAND WELLINGTON AUCKLAND

Putting Wellbeing at the Heart of Things

By Sophie Speer*

Traditionally built on a work-hard-at-all-costs attitude, looking after your mental, physical, and emotional health has not always been seen as a priority for legal professionals.

MAS has a long history of providing services for members of high-pressure professions and recently partnered with the New Zealand Bar Association and to extend its unique approach of caring for its Members health and wellbeing to New Zealand’s barristers.

The law profession was renowned for its late nights, stressful deadlines, and until recently sometimes a “blowout” party culture. When you add trying to juggle all the other pressures of family life into the mix, it can lead to burnout and mental health issues.

Over the past five years, the law sector has experienced a cultural shift in the space of workplace health and wellbeing. Heightened awareness around mental health, pay equity, and the #MeToo movement mean the culture of the profession is slowly changing.

Austen suggests that the former prevalence of old-fashioned workplace attitudes, which often didn’t consider additional pressures placed on female lawyers who elect to have a family, could be a contributor for some to overwhelming stress.

Maria Austen, a barrister specialising in employment law and investigations says the spotlight on these issues has raised wider conversations about the importance of mental wellbeing and health within in the law profession. Maria has worked as a lawyer for over 20 years and remembers when times were different.

“To feel a true work/life balance, you have to know your workplace supports you.”

“We’re realising that especially with women, allowing a work/family balance is important, and has a huge effect on the culture of a law firm, and the performance of the individual.”

www.nzbar.org.nz

Those working in the profession need to focus on relaxation outside the office; creating an environment with minimal stimuli. Practitioners also need to enjoy the time in between big cases and projects to gather their breath and

33

recharge before the next big job commences. A focus on health and well-being and fixed time for reflection is vital to success.

“Burnout isn’t just work-related - it affects all areas of your life. If you’re not properly getting the downtime you need, it’s possible things could start feeling unmanageable. When you’ve got space to breathe, capitalise on that because it might not last long.”

Focus on wellbeing Health and wellbeing of Members have always been at the heart of things for MAS (Medical Assurance Society) which has partnered with the New Zealand Bar Association to provide insurance and financial services for NZBA members.

Changing pressures Andrew King sees the pressures many working in the legal profession face every day. In 2011 he founded LegalInnovate, and as part of that has been advising law firms on how best to use modern and innovative technologies.

MAS General Manager of Marketing and Products, Mike Davy, says what sets MAS apart is being a mutual. Being owned by its Members makes it natural to truly prioritise things that benefit the membership - protecting what matters most to them, including the mental and physical health and wellbeing of Members and their families.

King says traditionally the law sector has been slow to change, although this is definitely changing with firms looking at how they can adapt and thrive in this changing market.

In recent years, MAS has also made efforts to consider the wellbeing of the wider society and natural environment, choosing to be a responsible investor that doesn’t invest in companies that make or sell armaments, make or distribute tobacco, and doesn’t invest in companies in the fossil fuel industries.

“It’s a unique situation. In some firms, there are lawyers who will resist tech changes and still endure the pressures of menial or manual work.

For me, it’s a matter of educating them on how it will benefit their client, their time, and their bottom line - because often they are just unaware.”

Pressure mounts from clients and younger lawyers entering the workforce, who expect a certain level of technology. When this level isn’t met, it can hinder the success of the firm, and drive young employees to more tech-savvy workplaces.

The most recent expression of this mutual culture is a cyber-bullying benefit which allows members to claim up to $5,000 a year to cover the costs of a cyber-bullying event such as counselling, lost salary, relocation or private tutoring.

“We’ve got a long history of looking after our members and their families’ wellness and we’re always looking at ways to improve the lives of our Members so they can focus on getting on with life without worry,” Davy says.

This creates unique stress for older lawyers to learn how to implement new technology, both for the sake of in house processes and for the quality of service they can provide for their clients he says.

NZBA members will also be able to access MAS’ health and wellbeing portal, where they can find information, advice and activities on ways to improve their lifestyle.

“It can have a negative effect on culture and productivity if employees feel their time could be used more efficiently. And as for clients, they want specialised law advice, not to be invoiced for administration tasks.”

The successful lawyers of tomorrow will be the ones that innovate through leveraging technology, to deliver more efficient legal services. King says those that are open to innovation and embracing technology will be the ones that lead the way. The ones that choose not to, could be left behind by an increasingly competitive market.

www.nzbar.org.nz

“The profession should continue to ask themselves ‘how can we do this better – to deliver legal services that are more efficient, profitable, whilst providing greater value and outcomes for their clients’,” he says.

*Sophie Speer is the publisher of the MAS quarterly magazine, OnMAS, which goes to all MAS Members.

To find out more about MAS please visit www.mas.co.nz or emal peter.lycett@mas.co.nz. Peter will be happy to talk or meet with you. All MAS advisers are salaried so there is no commission or fee for advice and they're always happy to meet at time and location that suits you.

34

Investing vs Speculating - Separating the Crystal Clear from the Crystal Ball Laetitia Petersen* and Patrick Fogarty**

Laetitia Petersen

Patrick Fogarty

Every year they appear, almost as if on cue. The prognosticators. The industry “experts” with self-proclaimed powers of prescience. Able to forecast the future of the markets, pick the right stocks and “beat the market”. Yet despite this confidence, year after year they scurry back to their mahogany clad offices, tail between their legs, carrying the broken shards of their once shimmering crystal balls.

So why do we continue to listen to them? Why do we struggle to block out the noise? Because, it would seem, we humans are hardwired this way.

As financial columnist, Barry Ritholtz, pointed out in his Bloomberg Oped from December last year entitled, ‘2019 Forecast: Predictions Will Be Wrong, Random or Worse’,

So why is it then that almost every time we turn a corner we run into speculators? In short, because speculating sells. It is sexy. Take a moment to look at the headlines screaming at you from the covers of the popular money magazines next time you pass by the rack. No doubt the words in prominence will be designed to tickle your prurient interests.

The motivation behind investment publications is to sell advertising space, not to provide legitimate investment advice. Sadly, however, we consistently see investors marching to the beat of drummers with zero concern for their financial wellbeing. So why does the average investor react this way?

One reason could be a cognitive bias called ‘loss aversion’. Research suggests that we Homo Sapiens tend to give more credence to bad news over good — and have a habit of replaying incorrect decisions over and over in our minds.

Gnawing at them like a dog with a bone. Replaying the circumstances, looking for the positive way to play it out. In short, the impact of taking a loss packs around twice the emotional punch of the equivalent gain. Illogical? Yes. Human? Definitely.

“The problem with forecasts goes beyond their mere lack of accuracy. My critique is with the underlying cognitive and philosophical failings that are associated with the entire forecasting industry: a lack of humility, the assumption of a skill set clearly not in evidence, and most damning of all, a failure to recognise the randomness of the world at large.”

But why have we evolved to be like this? One suggestion is starkly Darwinian: fear has kept us alive. Even though most of our fears are fictional or fabricated, they have on the rarest occasion been the vehicle that has prevented us from being taken out of the gene pool.

Barry is not alone in his conclusion: year after year those who study money manager performance tend to arrive at the same conclusion that investment strategies based on speculation will destroy value, not create it. This dynamic is consistently evidenced by SPIVA, S&P’s web-based hub for performance statistics.

SPIVA tracks five year fund performance relative to the S&P 500, and the numbers aren’t pretty.

In the US, 76.49% of funds failed to beat the index over a five year period. “That’s because 1

the US is so efficient”, we often hear. Sadly not. The percentages are as equally grim for Europe and Australia with 74.30% and 79.61% of funds underperforming their respective S&P benchmarks.1

Whatever the explanation, this so-called loss aversion makes us particularly vulnerable to the doom-laden statements from charismatic “experts”. Investment publications, fully aware of this appetite, are more than happy to feed us with forecasts. These articles can be fun to read but destructive if viewed as legitimate investment guidance. Let’s look at some examples.

SPIVA: https://us.spindices.com/spiva/#/reports

www.nzbar.org.nz

35

In January 2017, one media outlet said Wall Street strategists were more bearish on equities than they had been for any year since 2005. The consensus forecast for the S&P 500 was for a gain in 2017 of about 4%. Individual forecasts from the 16 analysts quoted by the publication ranged from as low as 1.3% to as high as 10.1%.2

But the best performers of 2017 were emerging markets equities, which were up about 37% for the year. A pity, then, if you had followed the gloomy forecasts of analysts quoted by one newspaper, which back in early 2017 said the MSCI Emerging Markets Index had formed a feared “death-cross” pattern, signaling a bearish trend ahead.6

So how did that turn out? Well, by mid-December, nearly a year after those forecasts were published, the S&P 500 was up by nearly 19% for the calendar year, the US market’s ninth consecutive year of gains and shaping up as its best year since 2013.

One of my favorite areas for expert predictions in 2018 was Bitcoin. They ran the gamut from the conservative to the criminally negligent to the utterly insane.

What went wrong with the forecasts? Well, you could certainly put together a convincing case for caution in early 2017. One analyst quoted

by The New York Times back in January, said investors had more risk in their portfolios than at any time since 1999.3 Stock market valuations were historically high, the analysts observed, while interest rates were rising, a new administration in Washington posed multiple uncertainties, elections were looming in France, Germany and Japan, and North Korea was sabre-rattling.

In Australia, economists were equally cautious.

In a survey published in December 2016, analysts cited as uncertainties for Australia, the Trump administration’s policies, Chinese demand for commodities and the course of the local property market.4 The consensus was for flat to modest gains in the Australian share market, a slowly depreciating Australian dollar and steady local interest rates. The results here were mixed. The S&P/ASX 300 total return to mid-December 2017 was about 10%, the Australian dollar was in fact higher over the year, while cash rates were unchanged at 1.5%.

According to Bloomberg, Fundstrat’s Tom Lee’s 2018 forecast U$25,000 Bitcoin was reduced to US$15,000 by year-end. (The cryptocurrency recently traded at about U$3,650.) This was modest compared to other predictions. Michael Novogratz forecast that “U$40,000 was possible by the end of 2018”. Kay Van-Petersen of Saxo Bank predicted Bitcoin would rise to US$50,000 to US$100,000 by the end of this year. John McAfee, the tech entrepreneur, has called for US$1 million Bitcoin by 2020.

Analogising crypto to the internet, Tim Draper doubles McAfee, coming in at US$2 million.

Now, as we are into 2019, look out for a new round of market “outlooks”. Already there are sage-sounding warnings about looming geopolitical risks, the prospect of a collapse in commodity prices, rapidly rising interest rates (or falling – take your pick) and a meltdown in global credit markets.

We would like to leave you by laying down three golden rules for dealing with “expert” opinions: 1.

All these opinions and forecasts are already reflected in prices. What tends to change these prices is new information and by definition, new information is not known.

2. Keep in mind that no forecast, however well-reasoned, can ever account for all the unexpected things that might happen.

We can never eliminate uncertainty which is the trade-off we make as investors for potential increased returns.

In the UK, the FTSE 100 index was hitting successive record highs in early 2017 and there was a view in some quarters, as expressed in the UK Telegraph, that it couldn’t last given doubts over the Brexit process and looming European elections.5 Nearly a year later, the index was up more than 8% on a total return basis, having hit record highs in November 2017.

3. A third observation is that while prices change on new information, these changes often derive from events that the market didn’t expect. This is why we often see

“Wall Street’s 2017 Forecast is the Most Bearish Annual Outlook in 12 years”, CNBC, 3 Jan 2017 “A Rising Market Now Confronts Heightened Risks”, NY Times, 13 Jan 2017 4 “What Economists Predict for 2017”, Eureka Report, 21 Dec 2016 5 “FTSE 100 Hits Successive Record Highs, But Can It Last?”, The Telegraph, 6 Jan 2017 6 “Key Indicators Suggest Emerging Markets are Heading Downwards”, The Economic Times, 16 Jan 2017 2 3

www.nzbar.org.nz

36

prices rise on what is ostensibly bad economic news. This seems counterintuitive but in these instances the market is moving due to events not turning out as bad as the market anticipated.

A final reminder is that it is pointless to chop and change your carefully designed portfolio based on the opinions of economists, strategists, journalists and other commentators. Sometimes these people will get it right. Most of the time, they’ll be wrong. And even if by chance they do predict the direction of a market move, they might still be off on the timing. There are just too many moving parts to make speculating a viable strategy.

The future is uncertain. That’s the way it is.

But keep in mind that much of the noise and forecasting in the media over events in the past two years - whether it was Brexit, the US presidential election or the path of the global economy - have turned out to be wrong.

Ultimately, what you need is an investment portfolio that is designed for you and your goals, one which lets you sleep at night and makes you feel comfortable. Once that’s in place and you accept that the world will always be uncertain, you won’t have to waste your time reading the tea leaves.

Now might be a good time to start a media fast.

You will be happier!

www.nzbar.org.nz

* Laetitia Peterson is a personal wealth adviser and is married to competition barrister, Andrew Peterson. She has worked with companies such as Goldman Sachs and boutique funds management firm Liontamer, which she co-founded with Janine Starks. She is now the CEO and founder of The Private Office, helping successful lawyers achieve the financial goals important to them and their families. Laetitia is the author of a book called Legal Tender which examines the attitudes of lawyers to money. ** Patrick Fogarty recently joined The Private Office as a Client Director. He returned to New Zealand after 10 years with Dimensional Fund Advisers in London where he helped grow the business into one of the largest fund managers in the UK and Europe. He is very familiar with evidence-based investing and has given numerous seminars on the subject. Having serviced hundreds of independent financial advisers, he has a clear view on how ‘real’ advice should be given.

37

Buckle Up to Be Safe Online Commarc*

Two factor authentication is rapidly becoming the new norm when it comes to password protection and site security.

We all know that we should take better care of our online security.

Steve Brorens Many of us do a poor job of making sure that we have long, complex and unique passwords for every online service; and security breaches leaking passwords are common.

Brorens says, “and if 2FA is not in place these can be immediately used to do Bad Things.

With a second factor, in most cases, it’s next to impossible for the Bad Guy to actually do anything with the password.”

Most platforms now support 2FA, and while they can take a bit of time to set up, it’s worth the investment. They can use an app on your phone, a text message, a remote token or a list of codes that you carry around with you.

Enter “two-factor authentication”, also known as “2FA”, “multi-factor authentication”, or “two-step verification”.

Two-factor authentication is an additional step you complete when logging into a site. It is based on the premise that your data is safest when you sign in with both something you know (your password) and something you have (your phone or a security key).

CommArc Consulting security analyst, Steve Brorens, says the particular 2FA or MFA (MultiFactor Authentication) system you choose isn’t critical, as long as you choose one for each online service you login to – and for remote logins to your own systems if you’re a business owner.

What’s best?

The premium option for 2FA is a physical USB security key, like Yubikey or Google’s Titan that you keep on your keyring. These use Universal 2nd Factor (U2F), where the login process is completed with the USB device and the press of a button. The biggest disadvantage is the cost of the keys – about $60 each.

“Next best is One Time Password (OTP) systems using apps like Google Authenticator, Authy or Microsoft Authenticator on your phone,” says Brorens. These apps will require you to screenshot a QR code once when setting up 2FA, and then enter the (usually) six-digit code it randomly generates each time you log in.

Brorens says the simplest systems are those that “dial back” to your phone when you log in – either prompting you to press a specific key or texting you a code to complete the login process. While slightly less secure than security

With the increase in flexible working hours and locations and the ability to work from home, Brorens says it’s imperative that businesses invest in some sort of 2FA for accessing business systems.

“There may be cost of time and setup initially, but not having 2FA for your business is like driving without a seatbelt. Sure, you might not get in an accident, but if you do, the odds of surviving it are infinitely better if you’re strapped in. Similarly, the odds of becoming victim to a phishing campaign or your staff being hacked seem very remote, but if it happens, you’re going to wish you’d had something in place to protect you.

“This is because there are many ways in which passwords can be snatched, leaked or guessed,”

www.nzbar.org.nz

38

keys, these are still a massive step up from nothing – and are very simple to setup and use.

Whichever system is chosen, two-factor authentication is the new norm for passwords, says Brorens. “The issue is that if all you have for protection is the secrecy of the password, we can’t protect you if that is compromised.”

“It might seem simple to “not allow someone pretending to be Steve to login from China at 3am” but what if you need to go there? It gets far too tricky to set up such rules.”

While the advent of facial and fingerprint recognition is the next stage in personal online security, until it’s widespread (and the bugs have been ironed out), if you’re going serious about keeping your data safe on the interwebs, you’re going to need some form of two-factor authentication.

www.nzbar.org.nz

Useful links: The New Zealand Government CERT website has a good overview page at: https://www.cert. govt.nz/businesses-and-individuals/guides/ keeping-yourself-safe-secure- online/twofactor-authentication/ They also have a specific page for businesses at: https://www.cert.govt.nz/businessesand- individuals/guides/cyber-security-yourbusiness/two-factor-authentication-as-asecurity- tool-for-business/ *If you have questions about how to properly protect your business systems or want more information about what’s available in 2FA technology for your company, contact one of the Account Management team at CommArc today. www.commarc.co.nz or 0800 338 0414

39

A MORE REWARDING JOURNEY. BMW CORPORATE ADVANTAGE.

BMW Corporate Advantage is an exclusive membership programme designed to make your dream BMW more attainable by offering a range of exclusive benefits and rewards.

CORPORATE ADVANTAGE BENEFITS: • Complimentary 1st year BMW Motor Vehicle Insurance.¹ • Multi-year BMW Motor Vehicle Insurance available, with the benefit of fixed premiums for years 2 and 3.² • Genuine BMW Accessories and lifestyle voucher valued at $1,000 (incl. GST).

• Dedicated corporate salesperson.

STANDARD BMW BENEFITS: • 3-year complimentary subscription to BMW ConnectedDrive.

• 5-year warranty and Roadside Assist included.

• 3-year BMW Service included.

• Access to a BMW Genius for ongoing support and training.

• Tailor-made financial solutions offered, with the option of a minimum guaranteed future value.³ Check your eligibility today.

www.bmw.co.nz/corporateadvantage Terms and conditions apply. For full terms and conditions and a full overview of the benefits please refer to www.bmw.co.nz/corporateadvantage. 1 Provided and underwritten by Provident Insurance. The 1st year premium for your BMW Motor Vehicle Insurance is complimentary, up to a value of $2,500 including GST. The balance of the premium over and above $2,500 including GST, is payable by the Policyholder in advance to Provident Insurance at the time of policy purchase. 2 Provided and underwritten by Provident Insurance. The option to fix your premium for year 2 and 3 is available only on a Multi-year BMW Motor Vehicle Insurance policy. 3 BMW Financial Services terms, conditions and standard lending criteria apply.

Petrol Heads’ Corner

by David O’Neill*

Technical Specifications • Engine – 3L 6-cylinder petrol • Transmission – 8 speed automatic • Power/torque – 250kw/450nm, 0-100 kmh5.5 seconds, • Consumption 9.2L per 100kms

BMW X5 BMW recently offered me the opportunity to spend a week with their latest SUV, the new BMW X5.

I had the X5 xDrive 40i.

There are three models in the X5 range to choose from.

They are the X5 xDrive 30D, the 40i and the X5 M50D. Price ranges from $135,000 up to $178,000. The one I was driving is the only petrol version, the others are diesel.

Mine came with a fair bit of fruit including the M Sport package and some extra goodies, which I’ll talk about later.

The big boy of the lot is the M50 D (D stands for diesel) which reaches 100kmh in 5.2 seconds.

This vehicle weighs in at 2.2 tonnes, so it’s not a small car anymore. They are certainly a great deal bigger than the original X5, which came out many years ago. The boot is huge and the passenger compartment just as capacious. I didn’t do the golf club thing. I didn’t need to. It could have swallowed 2 sets and had room for more.

It has a 6-cylinder motor with a twin scroll turbo.

I looked up what “twin scroll turbo” means. A twin scroll turbo is a single turbo charger with 2 inputs into it and gives you similar power, without the extra size, of a twin turbo engine.

Therefore, for a large 3 litre 6-cylinder car, it gets up and goes pretty quick. Given the size of the vehicle, the fuel consumption was remarkably economical. Normally when I have a vehicle of this size and take it on the usual trip to the beach, I have to fill up. On this occasion it was nowhere near empty.

www.nzbar.org.nz

The one thing that we both noticed, travelling over the Kopu - Hikuwai hills was how quiet it was inside the car.

The driver and passengers are cossetted in fine leather, surrounded by a very good sound

41

you could probably add another $20,000-50,000 to the price tag with all the extra goodies that BMW offer its customers.

In this internet age, you can also get a BMW app which connects to BMW and you can get real time traffic information, Apple car play, intelligent voice assistant (think of a German version of Siri). You can even get a concierge service.

The German Siri in the car is fairly unbelievable.

You say, “Hey BMW” and it answers you. There doesn’t seem to be any lag in trying to interpret what you’re saying. Most impressive. Mind you, being a bit old fashioned, I find it slightly unnerving talking to a car. Just doesn’t seem right. system and can call upon driver aids and gizmos for any conceivable situation.

For example (and these are only a few of the goodies that were in the vehicle) the volume of the radio or entertainment system can be altered by turning your hand. Likewise, if you wanted to turn your phone off, you wave your hand in front of the central console. You can look a bit of a twit waving your hand around the cabin or round and round in the air when you’re in traffic. That’s probably why the tinted glass is there…

The advancement in technology these days is virtually unbelievable. Cars, in this segment of the market, generally, have all the driver aids available. They are as close to a driverless vehicle as you’ll ever get, but we’re not quite there yet.

As I said before, the car is very large. Again, like most large vehicles it doesn’t like whizzing around sharp corners as readily as a sedan would, but of course you get all the benefits of a SUV and with it comes the type of suspension you would expect – big, able to take a heavy load and very comfortable all along a straight road. When it gets into the tight and twisty bits, it’s another story and it tended to lurch around corners, however, not unlike driving any other large SUV.

The navigation system is particularly helpful because it will tell you where traffic is backed up, a long way in advance, where roadworks are, where there is an accident or similar. It’ll also tell you when you are going over the speed limit for any area (mind you, it’s a bit like having your mother in the car – it keeps on nagging you that you are speeding over and over).

This car also had the heads up display which I particularly like.

It is more and more noticeable that car makers these days are getting better petrol consumption and more power out of smaller motors so that even if they are accused of having a horse power race, they are extracting enormous amounts of power from, what are, small motors and at the same time, getting some very impressive figures for fuel consumption.

The X5 enters a very competitive market with various versions in the same size and price bracket with its competitors. At $157,000 the xDrive 4.0i will be an avid competitor and will hold its own, in my view. It’s looks won’t be everyone’s cup of tea, but, then again, beauty is in the eye of the beholder. * David O’Neill is a Hamilton barrister, the NZBA treasurer and a fossil fuel afficionado.

The fuel consumption for a petrol engine was impressive, plus, it can get up and go when it has to and makes all the right sort of rorty noises if you want it to do that.

Its very distinctive styling makes it noticeably a BMW from the front, but the rear has seen a change in styling. The list of standard equipment is impressive, and the list of optional extras is even more impressive. In my opinion

www.nzbar.org.nz

42

Join David on the BMW Alpine Experience The BMW Alpine experience is BMW New Zealand’s snow and ice driving event. It is now in its 10th year and is held on the Southern Hemisphere Proving Grounds (“SHPG”) in the Cardrona Valley.

This year it is being held from the 27th June - 5th July. There are limited spaces available and BMW New Zealand is offering the first 10 members from NZBA, who book, a 10% discount off the cost of the event.

For those of you who wish to register your interest and secure a place in the programme, please contact Jacob Ashby. His email address is Jacob.ashby@bmw.co.nz.

You will learn to drive the full range of BMW vehicles in the snow and on the ice with the assistance of professional drivers. This includes drifting vehicles on the snow, precision driving through a slalom course and driving on sheer ice. Additionally, you also get a hot lap in a BMW M3 on a snow-covered racetrack – guaranteed to scare you rigid!

The prices are: - full package - $3500 per person - shared accommodation at Millbrook - $2950 per person - if not staying at Millbrook - $2900 per person - non-driving “friend” staying at Millbrook - $400.

The dates for this event are filling up quickly.

These are the dates where space is available at the time of writing this column: If you want to secure a particular day, then you must contact Jacob Ashby as soon as possible in order not to be disappointed.

Included in this year’s drive is the all new BMW X5 (see David's article), the BMW X7 (a world first) and the all new, heart-stopping, BMW M850i.

You make your way to Queenstown yourself and after that all your needs are accommodated.

Included in the event pricing is: • • • • •

two night’s accommodation at Millbrook Resort (airport transfers included) return trip to the SHPG by helicopter lunch on site celebratory dinner BMW Alpine Experience Welcome Pack including a high-end winter jacket.

It’s a long day with all participants gathering at 7.40am for a bus trip to Queenstown airport where you are then airlifted by helicopter to the SHPG. The driving experience starts at 9.15am with a lunch break and finishes at 3.45pm.

This is an event not to be missed. David O’Neill will be attending the event himself, courtesy of BMW (taking one for the team). He has previously participated in the Audi ice event at the same venue. To say the event is exhilarating is understating it. If you like driving, then you will love this.

www.nzbar.org.nz

43

Mentoring Event 6 March 2019

Kate Davenport QC, Natalie Walker, Maria Dew QC, Tania Sharkey

Tania Sharkey

Harry Toleafoa, Maria Sopoaga, Fionn Tuapola

Lorraine McDonald, Greg Jones, Sarah Wroe

James Donkin, Jason Goodall, David Bigio QC, Elizabeth Heaney

Bridget McLay, Stephanie Philcox, Akatu John, Jessica Storey

Kate Davenport QC, Gurbrinder Aulakh

Natalie Walker, Maria Sopoaga, Fionn Tuapola

Event hosted by Richmond Chambers

RMA Networking Event 4 April 2019

Kate Davenport QC, Martin Williams, Stephen Selwood, Gary Taylor QSO, Bronwyn Carruthers

Derek Nolan QC, Martin Williams, Stephen Selwood, Gary Taylor QSO, Bronwyn Carruthers

Derek Nolan QC, Stephen Colson

Anita Killeen, Emma Poyner, Joanna Pidgeon, Setareh Stienstra

Catherine Goode, Bronwyn Arthur, Lorraine MacDonald

Rowan Ashton, Richard Gardner

www.nzbar.org.nz

44

Silks Ceremonies - Invercargill and Christchurch

Anne Stevens QC, Fiona Guy Kidd QC, Judith Ablett-Kerr QC, Kate Davenport QC, Susan Hughes QC, Gillian Coumbe QC, Miriam Dean QC

Kate Davenport QC, Fiona Guy Kidd QC

Hon. Justice Gendall, Chief Justice Dame Sian Elias, Hon. Justice Mander

James Rapley QC, James Wilding QC

Jonathon Eaton QC congratulates James Rapley QC

James Rapley QC receiving congratulations from Richard Raymond QC, as Prue Steven QC congratulates James Wilding QC

James Wilding QC, James Rapley QC

Members of Bridgeside Chambers (back row, David Caldwell, Simon Shamy, Jonathon Eaton QC, Phil Shamy and Kerry Cook and in the front row Helen Coutts, James Rapley QC and Fiona Guy Kidd QC).

Absent: Glenn Jones

www.nzbar.org.nz

45

Auckland Silks Dinner

Maria Dew QC, Mark Parris, Andrew Schirnack, Will McKenzie

His Honour Associate Judge Bell, His Honour Judge McHardy Paul Dale QC, Jenny Cooper QC

Lynda Kearns, John Adams, Robyn von Keisenberg

Maria Dew QC, Mark Parris, Hon. John Priestley CNZM QC

Sam Wimsett, Steve Bonnar QC

Rob Gapes, Hon. Justice Edwards

Stephen Mills QC, David Bigio QC

John Carter, Max Fletcher

Paul Dale QC, Hon. Justice Venning, Hon. Justice Gault, Wendy Andrews

Hon. Justice Hinton, Kate Davenport QC

Hon. Robert Fisher QC, Kate Wiseman

Derek Nolan QC, John Carter.

Sam Wimsett

www.nzbar.org.nz

Caitlin Tataru, Henry Holmes

Clive Elliott QC

46

Hon. Paul Heath QC, Belinda Sellars QC

Rydges Lakeland Resort Hotel

Skyline Gala Dinner venue

23 August: Conference day 1 (full day), networking drinks, rest of night at leisure 24 August: Conference day 2 (half day), afternoon choice of activities finishing with a gala dinner The 2019 conference programme has been carefully curated by both the Australian and New Zealand Bar Associations to include topical sessions of value and interest to all practitioners. In addition to an excellent educational programme we will host a networking drinks, a choice of activities around Queenstown after the formal conference sessions and a gala dinner at the top of ‘Bob’s Peak’ with breath-taking panoramic views of Queenstown and the surrounding mountains.

Accommodation bookings can be made at a choice of local hotels at the same time as conference registration.

www.nzbar.org.nz

2018 – 2019 COUNCIL CONTACT DETAILS

COUNCIL CONTACT DETAILS KATE DAVENPORT QC2013-2014 – President Ph: +64 9 307 8787 kate@katedavenportqc.co.nz JENNY COOPER QC Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz ANGELA CORRY Ph: +64 3 943 1934 acorry@atticuschambers.com MARIA DEW QC Ph: +64 9 307 5251 maria@mariadew.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com

LARA MANNIS – Junior Rep Ph +64 9 600 5509 lara@richmondchambers.co.nz JOSH McBRIDE Ph +64 9 309 8765 josh@richmondchambers.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com ROB STEVENS – Associate Member Rep Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz MICHAEL WEBB Ph: +64 9 377 6543 mw@mrhwebb.com SAM WIMSETT Ph: +64 21 338 962 sam@samwimsett.com IMMEDIATE PAST PRESIDENT CLIVE ELLIOTT QC Ph: +64 9 307 9808 elliott@shortlandchambers.co.nz