At the Bar - December 2020

At The Bar December 2020

Men’s Health Focus Law Commission on DNA Choosing your festive wines

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YOUR ASSOCIATION 4 From the President – Paul Radich QC 6 New Members 7 Meet the Co-opted Members – profiles of our new

Council co-optees 7 From the Secretariat – a round up of the Secretariat activities

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LEGAL MATTERS 9 The Law Commission on DNA – using DNA in

criminal investigations 14 Claiming Interest in Construction Contract

Disputes – what is the basis for the claim?

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PRACTICE AND LIFESTYLE 15 This is No Time to Be a Man – forget the old advice

to harden up 17 How Are You? – talking about health 22 Men’s Health – what you should know to look after yourself 27 Petrol Heads’ Corner – finding my balance 30 The Psychology of Money – timeless lessons on

wealth, greed and happiness 33 Not All That Glitters is Gold – some advice on

choosing wine for the festivities 35 Events – a few pictures from end of year functions

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Relax, Unwind, Recharge The NZBA wishes you all the best for the holiday season and 2021. Thank you for being part of our Association. We have enjoyed working with you and look forward to continuing our mahi next year, to ensure a strong and sustainable Bar.

Nga mihi o te Kirihimete me te Tau Hou

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

EDITORIAL COMMITTEE David O’Neill (Chair and Editor-inChief ) Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Jacqui Thompson (Editor) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

Lisa Mills (Compilation & Advertising) Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224

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

From the President Paul Radich QC*

Kia ora koutou, Well, that was quite a year. With a few exceptions, I think we all pushed personal boundaries and opened ourselves to new experiences: working from home, assembling and managing new technology, working with clients, opposing counsel and judges (and remote family members) through videoconferencing, taking afternoon family strolls through deserted streets, expanding (or learning) cooking skills, discovering a range of local places and businesses to support, and then reaching the last sector of the year at a sprint as cases, adjourned during the lockdown, landed hard up among existing fixtures.

I don’t know about you, but I’m close to being out of puff. But it’s been quite an experience and, while the year has had such harsh health and financial consequences for so many, we shouldn’t let go of the good things we have discovered; how we can spend more time with our families without compromising work outcomes; how we can connect with friends and family around the globe through our devices as often as we wish; and how much we have come to appreciate the simple things in life.

Equally, the Ministry of Justice and the Courts shouldn’t let go of the giant leaps that were made with the use of technology. We are all but ready to use the likes of Microsoft Teams and related products, not just for video hearings where appropriate, but for filing and sharing court documents and evidence.

The summer break might be a good time, once we’ve caught our breaths, to think of ways in which we can integrate some of our new skills with some of our old. We are just lucky to have the freedom of movement to do that. As an overseas friend commented recently, “New Zealand is like a fairytale”.

And so, in a comparative way, it is.

But we mustn’t forget how very hard this time of year is for so many people and their families. One in five children in New Zealand live in relative poverty (after deduction of housing costs from household income). A simple donation through one of our charities can bring joy and appreciation that is out of all proportion to anything we might have experienced for quite some time.

The NZBA gave that some thought. Instead of sending out Christmas cards this year, on behalf of our members and all those involved with the Association, we have donated the amount that we would spend on buying, writing and posting cards, to the KidsCan charity. As the charity itself says, education can be a ticket out of poverty and KidsCan tries to break the poverty cycle by levelling the playing field. It gives families that are struggling the same opportunities for learning as others.

End of the Year Collegiality I visited different parts of the country over the last two weeks as I attended drinks functions in Christchurch, Dunedin, Wellington, Tauranga, and Auckland. As you will see from the photo on this page, visiting Tauranga was something of a struggle. It really is a special place. Unfortunately, due to a timetable clash, I couldn’t be at the drinks function in Hamilton, but I’m looking forward to being there early in the New Year – perhaps for a lunch event.

Thank you to those who joined us at these events.

We enjoyed seeing you all, along with members of the judiciary and sponsor representatives from MAS, Marsh and LexisNexis. More than anything,

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it was so good to be able to come together in person and to exchange stories, laughter and hopes for the year to come.

And, more than that, it is important for me to understand issues faced by members and their practices; to really understand them so that we can find ways of doing something about them together.

I want to thank my co-hosts in the regions - in no particular order, Bill Nabney, Rita Nabney and David Weaver who hosted at Tauranga Chambers; Waikato Council members David O'Neill and Phil Cornegé who provided the lovely Riverbank Chambers as the venue for the Waikato drinks; Judith Ablett-Kerr QC and NZBA Council member Taryn Gudmanz for their help co-hosting the Dunedin event at the Dunedin Club; the NZBA Council for being present at the event in Christchurch; and our Auckland and Wellington NZBA Council members for their attendance in those centres. And my special thanks to my wife and chambers mate, Karen Radich, for all her help with the arrangements in Wellington.

While on the topic of our end of year functions, I was very pleased that, at the Dunedin event, we were able to acknowledge the 50th anniversary of the call to the Bar of long time NZBA member, Judith Ablett-Kerr ONZM QC. Judith was called to the Bar, Middle Temple, London, on 24 November 1970.

She has had a remarkable career, having been appointed our first female criminal QC, awarded an ONZM and appearing in many cases of note. Our warmest congratulations, Judith.

These end of year events were our only real chance (apart from the Silks dinner in Wellington) to connect with each other this year. We have run a number of virtual events, which have been well attended, and we thank everyone who signed on for them. But gathering te kanohi ki te kanohi is essential. Collegiality has always been central to the legal profession. We may appear on opposite sides of disputes, but it is critical that we put these disputes to one side and spend time relating to each other as colleagues. The relationships that we build at events such as these are the cornerstone of our profession. We want to make regular regional get-togethers an essential feature of the Bar Association’s ongoing activities.

Conduct and Client Care Rules The topic of good professional relationships brings me to the proposed changes to the Conduct and Client Care Rules (CCCR). In October 2020, the New Zealand Law Society Council was asked to approve changes to the CCCR that resulted from recommendations from the Cartwright Report into bullying and harassment in the legal profession.

The changes are critical to ensure that those who work in the legal profession can be protected against unacceptable behaviour. It is important that the rules pass. However, it is also important that they are clearly worded, to achieve their goal.

The NZBA has a seat at the Law Society Council table and I attended the meetings at which the changes were discussed. During the process to finalise the wording, what struck me was the deep commitment of all involved to ensuring that the rules were fit for purpose. Some revisions have now been sent to the Parliamentary Counsel Office and the MOJ for their consideration.

Bar Council Business On 27 November, the Bar Council met in person in Christchurch. We reviewed our current strategic plan and decided that we needed to refocus parts of it for the post-Covid world. The session was constructive, and I believe will pave the way for outcomes that will serve our members well.

One of the first things we decided was that we should meet more often. Online conferencing technologies allow us to do this with little cost. We have increased our meetings to five formal meetings each year, with informal “brainstorming” meetings in the months in which we do not have formal meetings.

At Christchurch, we considered co-options needed for the Council this year. At our October hui, we had already co-opted Sam Jeffs to help us with our governance rules and junior representation.

However, the workload is increasing, and we needed to look at two areas closely. The courts are undertaking a great deal of work on criminal justice processes and the NZBA is involved closely with that work. We decided that we needed extra help on the Council from the criminal bar, and that the

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South Auckland bar should have better representation. I am therefore pleased to welcome Ishwari (Ish) Jayanandan and Maggie Winterstein to our Council. Ish has been on our criminal committee for some time.

The commercial/advisory bar has been growing over the last few years. Some of you will have read the interview with Michael Webb in the last copy of At the Bar. We are facing increasing commercial complexity in the business we undertake on behalf of the Association. In the next two years we will have to review our Constitution to bring it in line with the anticipated new Incorporated Societies Act, as well as continuing our governance project. Stephen Layburn has agreed to join the Council this term and help us with this work. Profiles of Ish, Stephen and Maggie follow this column.

AML/CFT Exemption Work continues on the AML/CFT exemption. It is with a sense of relief that I can now tell you that there is light at the end of the tunnel. The Ministry of Justice has advised us of the terms of the exemption it will be recommending. On the whole, we feel reasonably happy about the point we have reached.

We believe that the terms are a considerable improvement for members on the original suggestions.

We are now waiting on the Minister’s final decision. We will keep you informed about progress. But I would like to thank barrister, Ollie Neas for his help over the last few months and acknowledge the earlier invaluable work of Dr Derek Johnson.

And so to holidays I encourage everyone to take some time over the holidays to think about the things that matter to them and why. The events of this year, nationally and internationally, might give us cause to reflect on ways in which we measure success and well-being. We might, for example, look at ways in which we can help members of our society and younger members of our profession without an expectation of reward.

Finally, we all know that there is pressure on the court system to deal with backlogs. There are people who have been waiting for justice for considerable lengths of time – particularly those in the criminal justice system. However, if you feel that your health is suffering, may I suggest that this becomes your priority. Please contact us if there is anything we can do to help.

So please take care and be safe over the holiday season. For those who celebrate Christmas, I hope the day is joyful. Moreover, I hope that all the days, before and after, are filled with joy for everybody.

Ngā mihi o te Kirihimete me te Tau Hau

*Paul Radich QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email him via president@nzbar.org.nz

New Members of the NZBA Jennifer Braithwaite AUCKLAND Sarah Bush AUCKLAND James (Jim) Cairney AUCKLAND Megan Dempster WAIKATO Anesha Dhanji AUCKLAND Leo Farmer AUCKLAND Anna Fitzgibbon AUCKLAND Graham Howard WELLINGTON Daniel Kalderimis WELLINGTON Arla Kerr NORTHLAND Rachel Lohrey MANAWATU-WANGANUI Tiffany McRae CANTERBURY

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Melanie O'Neill Nicola Pointer Benjamin (Ben) Prewett Richard Reeve Shaleveena Rohde Romata Smail Timothy (Tim) Smith Annette Sykes William Tumai Christina Twyman David Tyree Nick Williams

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WAIKATO CANTERBURY AUCKLAND OTAGO VIC, AUSTRALIA AUCKLAND WELLINGTON BAY OF PLENTY AUCKLAND CANTERBURY WELLINGTON AUCKLAND

Meet Our New Bar Council Members: Ishwari (Ish) Jayanandan Ish was originally born in Sri Lanka but moved to New Zealand as a child. She graduated from University of Auckland with an LLB and a BCom. She has been a barrister sole since 2010 and she practises in South Auckland. Her trial work is varied in nature and includes single/ multiple defendant homicides, multi-accused Police operations (be it serious drugs, aggravated robberies, or serious violence), sexual offending, assaults of varying degrees, fraud matters and cases that are governed by the Criminal Procedure Mental Impaired Persons Act. Ish is a Legal Aid PAL 4 provider, and is on the Duty Lawyer, PDLA and Amicus Panel for Manukau District Court. She is a member of the NZBA, ADLS, AWLA, South Auckland Bar Association (SABA), IBA and CLA.

Stephen Layburn Stephen is a commercial barrister based in Auckland with experience in a wide range of corporate and commercial matters, particularly in the financial services sector (with a focus on securities law), business transactions and corporate and corporate governance issues. He has worked at Hesketh Henry, Bell Gully, Simpson Grierson and Kensington Swan – as well as secondment to the Securities Commission and the Producer Board Project Team. He is also a member of the Commercial & Business Law Committee of the New Zealand Law Society, an external counsel to the NZX Markets Disciplinary Tribunal and a member of the PWC Audit Advisory Board.

Maggie Winterstein Maggie Winterstein was admitted to the bar in 1998 and worked as a junior barrister to Simativa Perese in the early 2000s in the area of civil and commercial law, before becoming a Police prosecutor in the Counties Manukau area from 2002-2008. After learning the other side of criminal trials, she chose to specialise in criminal law and became a barrister sole in 2009. She currently practices at Liberty Law in Manukau.

Ish sits on the both the NZBA and ADLS criminal committees. She is on the executive committee of the SABA. She has been a member of working groups including the Auckland Custody Project implemented at the Auckland District Court and the Remote Participation National Court to Court Custody Operating Model in September 2018.

From the Secretariat Jacqui Thompson*

that you could see what was happening in your organisation. Paul has taken the lead in this area (as did our former president, Kate Davenport QC during the lockdowns).

It is hard to believe we are in December. Mind you, I have said that for every month this year. It has passed so quickly, without me being aware that the year end is almost on us. In fact, I only just realised three or four days ago that there were no Christmas carols playing in the background while I tried to work. Our former Executive Director, Melissa Perkin, with whom I shared an office, used to torture me with Christmas carols from about mid-October onwards, grinning at my very loud complaints. We do miss Melissa, but not so much the background carols!

But we need to hear from you as well. Any ideas or comments that you have will be gratefully received. And thank you to those who have already sent Paul emails in response to his columns and made suggestions about topics he might address.

Insurance We would like to hear from members about their experiences with the online NZBA/Marsh insurance renewal process. We are sitting down with Marsh in the coming year to talk about a tailored indemnity policy for barristers. This has

Communication Many of you have been reading Paul Radich QC’s monthly columns in our member updates. One of the commitments we made this year was to improve our communications with members so

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However, the end of year did give us another opportunity to get together with our members and to make up in part for the lack of other inperson events. This year we decided to make our end of year events free for members. It has been great to see so many turn up, including representatives from our key partners, MAS, Marsh and LexisNexis. A lot of mahi goes into organising these events and a big thank you goes out to our Events Co-ordinator, who won't let me put her name in this column. She-who-refusesto-be-named does a great job and deserves our thanks.

been on the table for some time, but because of Covid, we have had to hold off until next year.

We are also interested in members' views on cyber-insurance. We have had a few people comment that they don’t understand the questions that have been asked around their IT practices. Having looked at these questions, we think that part of the answer is better education.

We all can benefit from a basic familiarity with how our antivirus software and firewalls work.

Please send us any feedback on your experience with insurance renewals or taking out new policies. We will use this information to discuss improvements with Marsh.

2021 We are looking forward to next year when we will be able to run more in person training and social functions. We are particularly looking forward to our annual conference in September. At the time of writing, we are finalising location and venue options, but at this stage the decision is between Tauranga and Christchurch (now watch us choose somewhere completely different!). Hopefully, the development of vaccines will lead to the opening of trans-Tasman travel and we may even see some of our regular attendees from Australia.

Wellbeing – men’s health This issue of At the Bar loosely focuses on men’s health. We accept this is an unusual choice for this time of year, when everybody is focusing on celebration and holidays. But in some ways, that is what makes this topic so important.

Many people survive the year on adrenaline and determination, coming out at the other end feeling exhausted and wondering what they have done to themselves. Nobody wants to kill the holiday spirit, but the better informed we all are, the safer our loved ones will be.

On 19 February we will have a Council meeting in Auckland. Following the hui, we will have a one hour CPD presentation (details will be announced shortly) followed by drinks. I hope as many of you as possible will attend.

Movember concentrated our thoughts on men’s health issues and the importance of prevention.

One horrifying statistic is that men are three times less likely to go to their doctor than women. For both physical and mental health, early detection and action is the best safeguard.

The Attorney-General has also advised a new Queen’s Counsel round. For us, that means the planning and delivery of Silks dinners. All current indications are that the process will be completed around May/June but Covid has taught us all that there are no guarantees!

We would like to thank our Member Benefit Partner, MAS, for providing content on crucial health issues for men. MAS also provides an EAP scheme for their members. If you would like to find out more about that scheme and others that might help, there is information on page 21.

Happy Holidays We would like to wish you, your family, and friends, a happy and safe holiday, wherever you are spending it. For those of you with family overseas, we hope that if they celebrate the festive period, they can do so safely and be able to enjoy it. All the best!

Events We had limited opportunities to catch up with members face-to-face this year. Although our Silks' dinner went ahead in Wellington, we are still feeling very grumpy about the Covid cancellation of our Auckland Silks dinner and our Annual Conference.

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Ngā mihi nui, Jacqui

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The Use of DNA in Criminal Investigations

By Jacqui Thompson*

This article outlines the Law Commission’s 572 page report into the use of DNA in criminal investigations.

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In 2016, the Law Commission began a comprehensive review of the Criminal Investigations (Bodily Samples) Act 1995 (the Act). In the past 25 years, scientific developments increased the ways in which DNA could be used in criminal investigations. It can reveal more about individuals and their families, and increasingly sensitive analysis techniques can gather information from tiny traces of DNA. These developments have broadened the scope of the DNA regime beyond the original intent of the Act. Close to 200,000 people have a profile in the DNA Profile Databank (DPD).1 Although the Act was significantly amended in 2003 and 2009, it still failed to keep pace with rapidly developing science and technology.

Further, the, amendments lowered the offence threshold, to allow police officers to require DNA samples in respect of any imprisonable offence.

The 2009 amendments also established a new DNA databank, called the Temporary Databank, to store DNA profiles of adults who are arrested or intended to be charged with any imprisonable offence. A serious concern is that since 2009, Māori have provided between 38 and 41 percent of all DNA samples obtained on arrest or intention to charge.

lacks a clear, robust purpose to guide the collection and use of DNA in criminal investigations; fails to recognise and provide for tikanga Māori and the Treaty of Waitangi | te Tiriti o Waitangi (the Treaty); fails to properly accommodate human rights values and is inconsistent with other legislation concerning the relationship between the State and individuals, such as the Search and Surveillance Act 2012 and the Intelligence and Security Act 2017; is not comprehensive because of the increasing use of DNA in criminal investigations and scientific advances in DNA analysis; is confusing and complex as historical amendments have made the practical application of the legislation difficult; and does not provide for independent oversight, which is inconsistent with international best practice.

A Clear Purpose The Act does not contain a purpose provision that explains what Parliament wanted to achieve.

However, the surrounding material suggested that the original policy objectives of the Act were to: (a) improve the identification and prosecution of offenders in sexual and serious violent offending;

The Commission's recently released report3 concludes that new DNA legislation is needed as the current act is no longer fit for purpose, longer fit for purpose, constitutionally sound or accessible to users.4

(b) enable early elimination of suspects and exoneration of innocent people; (c) deter criminal offending; and

Because of the complexity of the change from the current regime to a more regulated regime, the Commission did not include draft legislation in the report. Instead it described what new legislation should contain to enable the principled, transparent, and accountable use of DNA in investigations.

(d) reduce policing costs.

In line with these objectives, DNA contines to be used to identify and prosecute sexual and serious offenders and to eliminate suspects. However, there is an increasing reliance on DNA to solve property crime as a result of improvements in DNA technology. The Commission notes that the public interest in solving property crimes

The report contains six fundamental concerns, namely that the Act:5

The databank is authorised under section 25 of the Criminal Investigations (Bodily Samples) Act 1995 to store the DNA profiles of known persons obtained from DNA samples taken under Parts 2 and 3 of the Act 2 Criminal Investigations (Bodily Samples) Act 1995, s 24O 3 Te Aka Matua o te Ture | Law Commission The Use of DNA in Criminal Investigations (NZLC R144, 2020) at 53 4 NZLC R144 at 8 5 NZLC R144 at 8 1

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may have a different weight to the interest in using DNA to resolve sexual and serious violent offending when it is placed alongside other values and interests in the collection of DNA material.

In terms of the deterrence objective, it is unclear whether the investigative value of DNA deters offending. There are studies that suggest minimal deterrence while others claim a significant effect.

However, they adopt different methodologies, and the Commission did not draw any conclusions from them.

The Commission suggests that deterrence requires offenders to undertake a cost-benefit analysis before choosing to offend. This does not typically happen in the context of spontaneous violent offending. Further, offenders may believe that they can avoid forensic detection by employing countermeasures.

Finally, the Commission was not presented with any evidence suggesting that DNA use reduced policing costs.

The Commission recommended that the new DNA legislation should state that the purpose of the Act is:6 “…to facilitate the collection and use of DNA in the investigation and prosecution of offences and the investigation of missing and unidentified people in a manner that: (a) minimises interference with a person’s privacy and bodily integrity; (b) recognises and provides for tikanga Māori; and (c) is otherwise consistent with human rights values.”

The Commission considered that a principled approach to the collection and use of DNA would achieve consistent protection of human rights values and tikanga Māori, while at the same time promoting effective law enforcement. It would guide the exercise of functions and powers under the Act, including by police officers, the forensic services provider, the courts and other bodies exercising oversight of the regime.

NZLC R144 at 93 NZLC R144 at 94 8 Article 2 of the Treaty 9 NZLC R144 at 53

The Treaty Legislation relating to the collection and use of DNA must be consistent with guarantees under the Treaty. The legislation engages the Treaty principle of active protection of the unqualified exercise of tino rangatiratanga.8 The Commission noted an observation from the Waitangi Tribunal:9 The Crown obligation actively to protect Māori Treaty rights cannot be fulfilled in the absence of a full appreciation of the nature of the taonga including its spiritual and cultural dimensions.

This can only be gained from those having rangatiratanga over the taonga.

The collection and use of DNA samples impacts on Māori rights, interests and taonga, including te ira tangata (as the essence of life), described by the Waitangi Tribunal as the ultimate taonga.10 DNA contains whakapapa (genealogy) information, which is considered to be taonga.

Some believe that human tissue and DNA are themselves taonga.

The Commission considered how a regime would engage core aspects of tikanga Māori:11 Whakapapa - a body is a physical manifestation of an individual’s whakapapa, which is embodied within the DNA. Whanaungatanga – this requires the balancing of individuals’ rights in relation to Māori data, with those of the groups of which they are a part. Depending on the context, collective Māori rights may prevail over individual rights.

Personal tapu and mana – every Māori individual inherits personal tapu, which is their most important spiritual attribute. Personal tapu is linked to their mana. Taking a biological sample may result in taking wairua (spirit) and storing it in a foreign system.12 Māori have individual and collective responsibilities to protect the DNA sampling and profiles because they are taonga imbued with tapu.

10 Te Rōpū Whakamana i te Tiriti o Waitangi | Waitangi Tribunal Tū Mai te Rangi! Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 21 11 At 62. These explanations are unfortunately, but necessarily, brief. The section of the report dealing with tikanga is well worth reading

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The express reference to privacy, bodily integrity and tikanga Māori should be central to the DNA regime. These terms signal that intrusions on privacy and bodily integrity should be no more than is required to meet legitimate law enforcement objectives, and that tikanga Māori is recognised and provided for in the collection and use of DNA.7

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Manaakitanga is the process of showing and receiving care, respect, kindness and hospitality. This duty, to nuture relationships, look after people and be very careful about how others are treated, underpins tikanga.

Collecting, using and interpreting DNA should uphold the dignity of Māori communities, groups and individuals. One of the dangers is forensic DNA phenotyping. This technique predicts a person’s appearance from their DNA and can be used to infer a person’s “biogeographical ancestry.” As its aim is to reveal information about a person’s genetic characteristics13 it raises particular concerns in the context of the over-representation of Māori in the criminal justice system.14 Kaitiakitanga is a form of guardianship. It also implies respectful conduct in relation to the use of biospecimens and all forms of information.

An implication of this might be Māori control over the protocols and policies around Māori data.

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Human rights values The Commission considers that the Act does not properly accommodate human rights values including the rights to privacy, bodily integrity, freedom from discrimination and the rule of law.

There is no statutory recognition of human rights values alongside the law enforcement values.

Police officers have broad powers to request and, in some situations, require a person to provide a DNA sample, but there is no statutory guidance on the exercise of those powers. Instead, internal police policy governs them and this is not easily accessible or subject to robust independent oversight.

The report acknowledges four main values that are engaged:

The Commission acknowledged important differences between tikanga Māori and Pākehā values relating to DNA use and collection. The new regime had to address its impacts on tapu, mana and whakapapa. Māori must be able to exercise tino rangatiratanga in accordance with tikanga, including whanaungatanga, manaakitanga and kaitiakitanga.

The protection of privacy is engaged in terms of informational privacy (control or access to private information and facts about us) and local or spatial privacy (control over access to our persons and to private spaces).

However, it also engages collective privacy interests, because the genetic data can reveal information not just about the individual, but also about their wider family and ancestors.

The protection of bodily integrity is a fundamental human right and is affirmed in the Bill of Rights Act. Cultural beliefs inform the degree to which DNA sampling is considered intrusive. However, the greatest intrusion is when force is used to take a sample from someone who is detained in police custody.

Freedom from discrimination, and the rule of law: the report acknowledges that Māori are over-represented in the collection of DNA samples and the storing of samples. Māori comprise around 16.5 per cent of the general population, but since 2009, they represented between 38 and 41 per cent of all DNA samples obtained from people on arrest or intention to charge.17 The rule of law states that everybody is subject to the law, including the government; the law should be clear and clearly enforceable; and there should be an independent and impartial judiciary. The Commission said that the collection and use of DNA for criminal investigations is a “search and seizure” and

Where legislation engages Māori rights and interests, it is now common to require Māori participation in decision making or in an advisory capacity and to ensure that decision-makers can uphold the Treaty and engage with Māori.15 The Commission considered that the following were key recommendations in respect of the Treaty partnership: 1.

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Providing independent oversight of the DNA regime through the establishment of a DNA Oversight Committee. At least three members of the five to seven member Committee must be Māori to facilitate Māori participating in oversight of the DNA regime.16 There should be more extensive reporting requirements for Police, broken down by ethnicity and other relevant factors. This will help with monitoring the effect of the regime on Māori.

At 63-65 At 331 14 At 333 - 335

At 82 At 129 17 At 79

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The new DNA legislation should prohibit the use of analysis techniques that predict the likely ancestry of a person whose DNA was found at a crime scene.

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that therefore the exercise of powers under the regime should be the same for those in the search and seizure regime.18 The Commission reiterated the view it expressed in 2007 (in relation to search and surveillance powers19) that law enforcement values, and human rights values do not necessarily compete with one another.20 It recommended that:

seizure. The right protects privacy and balances the relationship between the state and the citizen, preventing unlawful and arbitrary intrusion by the state and its agents.27

The collection and use of DNA samples engages the reasonable expectation of privacy, but also raises issues about self-incrimination if strict procedural requirements under the Act relating to the DNA profile databank are not followed. The 1. Samples should only be obtained from databank grants law enforcement an “enduring young people where, as is already the case ability” to identify a person’s presence at a with children, an order is made by a Youth particular place.”28 Court Judge.21 2. Suspect samples should not be obtained The Commission states that for the DNA regime by consent from adults lacking the ability to be constitutionally sound:29 to give informed consent and there should be improved safeguards generally when “…any intrusions on human rights values, 22 samples are being obtained from adults. including in particular privacy and bodily integrity, should be reasonable and 3. Police discretion should be constrained in the collection of pre-conviction samples by proportionate to the law enforcement value establishing statutory considerations, such and public interest in the collection and use of as the nature and seriousness of the DNA in criminal investigations.” suspected offending and any history of prior offending. The Commission also The Commission felt that recognising a property recommended that the comparison of interest in human tissue would be out of step with a contemporary emphasis on human dignity. It pre-conviction DNA profiles to profiles from unsolved cases should only occur if also risked conflicting with tikanga Māori. As the 23 issue was legally uncertain and raised significant a court makes an order.

4. The offence threshold should be lifted for issues, the Commission confined its review to storage of a DNA profile upon conviction consideration through the lenses of privacy and (which means it may be searched in future bodily integrity.30 criminal investigations) to an offence punishable by imprisonment for two years A comprehensive regime The report says that the new legislation should or more.24 5. Certain adult DNA profiles should be provide a framework for regulating all significant removed after a seven-year period without aspects of the DNA regime. The current Act does reoffending and, otherwise, an offender’s not regulate several uses of DNA or the forensic profile should be removed upon their services provider which analyses samples, generates profiles maintains the databank’s death rather than being retained indefinitely. and manages the retention and destruction of 6. A separate regime should be established samples and profiles. for retaining the DNA profiles of youth The Commission proposes a new comprehensive offenders, that is consistent with the DNA databank to replace the current DPD and rehabilitative focus of the youth justice Temporary Databank. The proposed databank would include indices which would distinguish system and takes advantage of the specialist skills of the Youth Court.25 the basis on which a profile is held:31 7. Prohibiting any external research of the databank.26 a) Crime scene index: to include profiles from crime scenes.

Section 21 of the Bill of Rights Act guarantees the b) Offenders index: to include profiles from right to be free from unreasonable search and people convicted of qualifying offences.

At 70 Te Aka Matua o te Ture | Law Commission Search and Surveillance Powers (NZLC R97, 2007) 20 NZLC R144 at 71 21 Recommendation 51 – at 21 22 At 221 23 At 445 24 At 465 - 478

At 487 - 503 At 551 - 552 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [10], per Elias CJ 28 NZLC R144 at 72 29 NZLC R144 at 73 30 at 74 31 At 103

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c)

d)

Pre-conviction index: to include profiles from samples obtained on arrest or intention as well as profiles generated from samples obtained from suspects in the course of a criminal investigation.

Elimination index: to include profiles derived from elimination samples and mass screen samples in the course of criminal casework.

The committee will have a broad range of functions including:33 a) evaluating proposals to make or amend regulations under the new DNA legislation; b) advising Police and the forensic services provider on the development of practice, policy and procedure in numerous areas, including to provide for tikanga Māori; c) monitoring the operation of the DNA regime, including its impact on Māori; d) approving applications for the use of the proposed DNA databank for permitted internal research; e) promoting awareness and understanding of the DNA regime; and f ) advising the Minister of Justice on any issues notified to the Committee or that it self-identifies.

A further three indices are suggested for helping with identification and missing and unidentified persons investigations: (a) Missing and unidentified index: to include profiles of people who are missing and people who are unable to identify themselves due to incapacity. (b) Unidentified deceased index: to include profiles of unidentified deceased people and human remains. (c) Relatives index: to include profiles of relatives of missing people obtained for the purposes of assisting identification.

The Oversight Committee The proposed Oversight Committee would have between five and seven members with expertise in the areas of forensic science, ethics, criminal law and procedure, te ao Māori and tikanga Māori, privacy, human rights, and other areas considered to be relevant.32 One of the members of the committee would also be a member of the Independent Police Conduct Authority. At least three members of the Committee must be Māori, to facilitate Māori participating in oversight of the DNA regime.

32 33

Biometric Data and other forensic science techniques Although this fell outside the review’s terms of reference, the Commission recommended that the Government review oversight arrangements in the fields of biometric information and forensic science. Biometrics includes facial recognition software, remote iris recognition and other behavioural biometrics (for example, voice pattern analysis). The technology is developing at a rapid rate and is already in use by several New Zealand state agencies. Oversight of this information would achieve consistency with the DNA regime. * Jacqui Thompson is the NZBA’s Executive Director and a legal researcher.

At 129 At 132

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Claiming Interest in Construction Contract Disputes Belinda Green *

Disputes arising under construction contracts are often resolved by reference to adjudication under the Construction Contracts Act 2002. A claimant will have various reasons for making a claim. But what a claimant wants out of the adjudication is almost always the same: they want the adjudicator to make a determination that the other party has to pay the claimant a sum of money. Because the money is overdue, most claimants will claim interest on that sum as well. So, what is the basis for claiming interest when a dispute is before an adjudicator?

Interest under the contract The starting point is always the terms of the contract. If the claimant can point to a particular clause in the contract that allows them to claim interest on overdue sums, then the adjudicator can make a determination that interest is payable at the contract rate as a debt due under the terms of the contract.

has the power to award damages for breach of contract. A claim for interest where there is no contractual right to claim interest is an example of a claim for common law damages.

In any claim for damages, the claimant needs to prove that it has suffered a loss.

In the case of an interest claim, the claimant might provide evidence that they themselves had to pay interest, for instance bank statements confirming the overdraft rate(s) applied on the overdue amount. Alternatively, a claimant might be able to show that they suffered some kind of opportunity loss in terms of the use that the money might otherwise have been put to. Once again, evidence of the loss claimed would need to be provided. This would usually be in the form of a letter from the claimant’s banker confirming the rate(s) of interest that the claimant would have received on monies deposited in an interest bearing bank account over the period of the debt.

The respondent can raise the usual range of arguments to defeat a claim for interest. For example, the respondent might argue that the terms of the interest clause have not been met. Or if the interest rate under the contract is particularly high, a respondent might argue that it is a penalty and so unenforceable – although the scope of the law on penalties may be less wide than we previously thought, given the If sufficient evidence is put to the adjudicator Supreme Court’s decision in 127 Hobson Street to establish that the claimant has suffered a Limited v Honey Bees Preschool Limited. 1 loss, the adjudicator has the power to make a determination that the respondent pay interest Where the contract does not have an interest on the sum owed. clause If there is no contractual entitlement, ie where No ability to claim interest under the Interest on there is an applicable clause in the contract that Money Claims Act 2016 damages claim allows the claimant to charge interest on an We sometimes see parties ask an adjudicator amount due, then all is not lost. A claimant may to award interest under the Interest on Money still be able to obtain a determination that the Claims Act 2016 (IMC Act). other party is liable to pay interest on the basis of a common law damages claim.

The IMC Act provides for awards of interest as compensation for delays in payment of debts, Interest as a common law damages claim damages, or other money claims. 3 It applies to If there was any doubt before, the 2020 High civil proceedings, such as contract-based claims.

Court decision in Haskell Construction Limited However, the IMC Act only applies to money v Ashcroft 2 has confirmed that an adjudicator judgments, which are judgments or orders made 1 2

[2020] NZSC 53.

[2020] NZHC 772.

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Section 3 of the Interest on Money Claims Act 2016.

Section 6 of the Interest on Money Claims Act 2016.

by a court. The interpretation section of the IMC Act specifically provides that court does not include a tribunal or an arbitral award.4

interest under the IMC Act will therefore fail.

Instead, the claimant needs to provide evidence of loss to establish a damages claim.

This means that there is no statutory right to interest, and that an adjudicator does not have the power to make an award of interest under the IMC Act. Any claim for an adjudicator to award

* Belinda Green is a solicitor and Team Leader of the Knowledge Management Team at the New Zealand Dispute Resolution Centre. She has over 16 years’ experience, working in both private and government sectors.

This is No Time to “Be a Man”

By Diana Sanchez, and Mary Himmelstein*

Men can expect to die approximately five years sooner than women, and men are more likely to die as a result of unintentional injury and suicide relative to women.

These differences are not well explained by physiological differences between men and women. One possible explanation is that men are more reluctant to go to the doctor – and less likely to be honest once they get there.

We have a cultural script about masculinity that tells men they need to be tough, brave, strong and self-reliant. It’s exemplified in phrases like “be a man” and “man up”. Men learn from an early age if they don’t act in this tough, masculine way they lose their status and respect as men.

There’s a lot of literature linking masculinity to health issues in men.

Our recent study1 found men who buy into the traditional cultural script about masculinity, and believe they must be brave and self-reliant in order to be respected, had more barriers to seeking care compared to those who did not endorse these beliefs.

Men endorsing these beliefs about masculinity and enacting them in their own lives were less likely to seek preventative care. And they were more likely to delay care when they experienced injury or illness. Essentially, we found masculinity was related to delays in health care-seeking.

Himmelstein MS, Sanchez DT. “Masculinity impediments: Internalized masculinity contributes to healthcare avoidance in men and women.” Journal of Health Psychology. 2016;21(7):1283-1292 Himmelstein MS, Sanchez DT. “Masculinity in the doctor's office: Masculinity, gendered doctor preference and doctor–patient communication” in Preventive Medicine. Volume 84, March 2016, Pages 34-40

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What happens when men do seek care?

In a second study2 we found men who believe men should be tough, self-reliant and brave prefer male doctors. In part, this is because they believe male doctors are more competent than female doctors.

We thought male doctor preference may adversely affect men’s health because men might disclose their symptoms differently to male and female doctors. In a third study, we sought to examine how doctor gender might influence doctor-patient communication.

First, we asked men to indicate how often they experienced a number of common, chronic health symptoms. Then we asked men how embarrassing it would be to disclose these symptoms to someone else. From this pilot study, we chose the five most common, chronic and embarrassing symptoms (such as diarrhoea, gas, depressive symptoms), then designed the final study to examine whether men would disclose these symptoms differently based on the gender of their doctor.

We asked men to report their masculinity beliefs and the frequency with which they experienced the five chronic, embarrassing symptoms. We then brought the same men into a clinical setting, a doctor’s surgery. We asked them, again, to disclose their symptoms to a male or female medical student.

Men who endorsed this cultural script about masculinity disclosed more consistently with females compared to males. When they had a male doctor, men endorsing masculinity beliefs reported experiencing health symptoms at a much lower frequency than their initial, private report. When they had a female doctor, men still under-reported the frequency of their symptoms, but to a lesser extent.

Why does this matter?

Men endorsing masculinity beliefs tend to delay preventative care and, when they do go to the doctor, they prefer male doctors even though they may feel more comfortable with females.

Care avoidance and impaired doctor-patient communication could have a very large impact on men’s health. If men aren’t honest with their doctors about their symptoms they might not

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receive adequate treatment. If they don’t seek preventive care (such as regular check-ups) they may miss early indicators of heart disease, cancer or other serious health problems.

These findings highlight the importance of choosing a doctor with whom patients feel comfortable, regardless of gender (doctor or patient). It’s really important to encourage men to be totally honest with their doctor and to remember that doctors are bound by confidentiality. That is, they won’t discuss an individual patient with anyone else.

Men should think about doctor’s clinics as safe, judgment-free places. If a patient is worried a specific doctor might see them as less of a man after the patient discloses a problem, that doctor is probably not the doctor for that patient.

Individuals go to doctors to take care of their bodies – we should think of that as embodying a strength not a weakness. Ignoring symptoms and avoiding the doctor only ends up hurting the individual in the long run. * This article is republished from The Conversation under a Creative Commons license. Its original title was “Men more reluctant to go to the doctor – and it’s putting them at risk.” Author Diana Sanchez, is an Associate Professor, Department of Psychology, Rutgers University. Co-Author Mary Himmelstein is a postdoctoral scholar at Rudd Center, University of Connecticut. Read the original article.

How Are You? Jacqui Thompson

Movember may be over, but the issue of men’s health remains at large. While much of the information in this article will apply to people irrespective their gender, statistically many of the men who read this will be at greater risk than many of their female counterparts.

The NZ Legal Profession – a profile In 2016 the New Zealand Law Society in partnership with Vitality Works4 conducted an online health assessment among lawyers.5 These results showed that one in two were insufficiently active, one in two did not get enough sleep and one in three could improve their mental well-being.

Four hundred lawyers responded and of those:



Let’s face it: we all know our health should not be a topic we address once a year at New Year’s Eve with a resolution that we will break by the end of January. However, those resolutions can be useful in starting a thought process around what we want from our lives.

While much of what follows applies across the board, the statistics on male health and wellbeing are not great.1 In the year to 30 June 2020, men made up 68% of the deaths by suicide in NZ. 2 There was an increase in suicide statistics among Māori and Pacific Islanders.

40% received scores indicating that they have good overall wellbeing;  53% received moderate scores, and are likely to be in reasonable health, but have at least one area of wellbeing that could be significantly improved; and  7% were classified as having poor overall wellbeing and need to improve some key lifestyle behaviours.

Lawyers have good physical wellbeing compared with the average, mostly attributable to higher consumption of fruit and vegetables, and lower consumption of sugary drinks and smoking.

However, the survey suggested that:



Lawyers have twice the rate of poor mental health.  Few lawyers have good social and work well-being.  Lawyers sit for longer periods, eat too much junk food and drink more alcohol than the average.  They work longer hours, are more fatigued and less satisfied with their work life balance.  More lawyers report that they struggle to bounce back after setbacks.

The international stats are also concerning3: 1. Men have a suicide rate three times higher than women.

2. One in three men have been the victims of domestic violence.

3. Men on average die 4-5 years before women.

4. Men are nearly twice as likely to suffer from lung cancer than women.

5. Men are nearly twice as likely to suffer from heart disease than women.

Overseas There have been several international studies, particularly those in the US, that monitor

Most of the statistical information readily available tends to be binary male/female.

Suicide rates rise to highest-ever level (Stuff, 26 August 2019) https://www.stuff.co.nz/national/health/115290090/suicide-rates-up-on-the-previous-year-latestfigures-show accessed 6-12-20 3 https://internationalmensday.com/challenges/ accessed 6/12/20 4 Vitality Works delivers wellbeing programmes to businesses. For more information visit https://vitalityworks.health/ 5 Harmer, S. “How healthy are New Zealand lawyers?” LawTalk 2 June 2017 1 2

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depression rates and substance abuse. The American Bar Association (ABA) partnered with the Betty Ford Foundation to study the rates of substance use and mental health concerns among lawyers.6 A sample of 12,825 attorneys completed the survey. It included 53.4% men and 46.5% women, and the most reported age group was 31 to 40 years old. Most were Caucasian/ white.

The results showed that at least 19 to 28% experienced mild or higher levels of mild depression anxiety and stress. Thirty-one point nine percent of attorneys 30 years or younger engaged in problematic drinking (the nexthighest age group was under 40, with 25.1%).

Junior associates (31.1%) were most at risk of engaging in problematic drinking.

In terms of their mental health, men had significantly higher levels of depression but women had higher levels of anxiety and stress.

It was noted that: 7 “In terms of [not] getting treatment, the participants cited two reasons — not wanting others to find out they needed help, and concerns regarding privacy or confidentiality.”

Australia also reports high levels of mental illness among lawyers, with suggestions that one in three of them contemplate suicide at least once a year, and up to 30% suffer from clinical major depression.8 Spotting the symptoms Steve Colligan is a registered Psychotherapist and an Associate at the College of Law of New Zealand. He holds an MHSC, Psych, a Diploma in Management (Human Resources) and a postgraduate Diploma in Psychosocial Studies. He works with executives and other professionals, including lawyers.

Colligan says that often there are physical signs which suggest that intervention might be necessary. He points to poor sleep, changing eating habits and being aware if you are drinking or smoking more. You may suffer sexual dysfunction and experience discord in your relationships with others. Mental symptoms

include irritability, avoidance, anxiety, intrusive memories and thoughts, and compassion fatigue. These should sound the alarm that you do need support. Failure to deal with these at an early stage can lead to much greater issues such as outbursts of rage or substance abuse.

Monetary success – has it met your expectations?

At a recent meeting of lawyers, a partner from one of the large law firms said something that seemed to resonate with many others in the room (both male and female). He said he is exhausted by the fact that the firm sets a budget, and he must support his team to bring in that amount of money. But then, just as he feels he is getting there, they change the criteria, and he must bring in even more money. He is carrying the weight of the dependency of those around him to bring in ever increasing amounts of money.

Colligan says he suspects that, traditionally, people who are attracted to law have a strong, critical mindset. Often, they are somewhat driven, with a perfectionistic nature, and probably more competitive than the average person. When they move into a structure that measures success based on the amount of money you bring in, and the expansion of work that you have, that can load a lot of internal pressure onto people. The criteria that are used to measure achievement are forever changing or extended, so you never seem to reach it.

This is problematic, Colligan comments. “It is not until we stop and pause, that we can think about some of the big questions – and these can be quite existential. They centre around what happiness is and how as individuals we have constructed that concept. Aligned with that is the issue of how society and culture has constructed our concepts of success. We can easily get caught in the system. It is complex and I think the common theme we see is that in certain professions or cultures, the expectations of those around us will exacerbate that continual need and search for success.”

Reorienting goals Before starting this article, I asked a couple of men about how they felt and the expectations they placed on themselves and society placed

Cho, J “Study Indicates Lawyers Struggling With Substance Use And Other Mental Health Issues” Forbes, 30 July 2016, https://www.forbes.com/sites/ jeenacho/2016/07/30/study-indicates-lawyers-struggling-with-substance-use-and-other-mental-health-issues/#3f41c017b854 (accessed 2 April 2019) 7 Ibid.

8 Murray, B. “Why are lawyers, and other professionals, depressed?” LawyersWeekly 6 September2018 https://www.lawyersweekly.com.au/biglaw/23967-whyare-lawyers-and-other-professionals-depressed (accessed 2 April 2019) 6

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on them. They all said the same thing. It is hard for men to talk honestly and openly about their general well-being, their health, their mental well-being and concepts of success.

Steve Colligan believes that the Covid pandemic has to some extent reorientated our thoughts about success. We have started looking in more depth at ideas around happiness, relationships, whanau, and spirituality. This doesn’t preclude financial advantage, but it may change the order of our drivers for success.

Some of the people that Colligan works with are finishing their careers, often having had material success.

But they may be on their third (or more) marriage and feel as if they have lost touch with their children.

In those cases, the challenge is to help someone measure the depth and severity of mistakes made in choosing options over the years. It is about adjusting and realigning current options and creating a balance. Life contains a series of shifts, and at whatever stage you are at –beginning your career, midcareer or end of career, you need a process or narrative that helps you to make sense of it all.

and it is our critical mindset and striving for perfection that is engulfing us in the sense of failure.

Colligan helps people to look at other aspects of their life that they may never have focused on. This can change their concepts of success.

It can be a mixture of monetary or professional goals, personal relationships, good health, friendships, and hobbies and passions. “Often you will see an overextension in terms of the career area, and when that goes awry, there is a loss of stability overall. So, it’s really important to say to people – especially those starting their careers – that while these career things are important, we need to make sure we are working on other areas of our lives. Our physical health is important, our mental health is important, and our social health is important.”

Tying our sense of value to financial success increases feelings of pressure and a lack of autonomy, according to research from the University at Buffalo, in New York. The researchers say that depression and anxiety are tied to isolation.

Colligan also suggests that there is a culture, and societal construct that we have created around failure and what it means. People who stumble and have failures, but move on through them, have resilience. “Stuff happens, that is life. It’s being able to orientate that in a realistic way where you say of course that was really disappointing, but how do I process those emotions, and how can I be cognisant of my emotional barometer?”

Disappointment, he says, is inevitable whether it is about financial reward or not winning a case that you were sure you had in the bag, or not being appointed a judge or a QC. The key is to have a way to explain to yourself what has happened, and how you should make sense out of it. You can then re-orientate yourself and see that often these events are not earthshattering,

The pursuit of financial success can be at the expense of our social connections, but they are important. “We need them as humans to feel secure, to feel mentally healthy and happy. But much of what’s required to achieve success in the financial domain comes at the expense of spending time with family and friends." 9 Calling time out Colligan believes it takes a lot of courage to challenge the expectations that are historically embedded in the legal profession. “It is certainly not a profession that in the past has encouraged people to show vulnerability or actually state “Hey this is tough.” We cannot just keep expecting more and more from ourselves psychologically, physically, and emotionally, without something giving. So, you package that with goal posts that are constantly moving and at some point, you have to stop and say to yourself, can I actually manage this because there is no more of me?

Gambini B “Study: Money can’t buy love – or friendship - University at Buffalo” (9 April 2020, http://www.buffalo.edu/news/releases/2020/04/014.html, accessed 8/12/20)

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But it can be really hard to stop and go actually this isn’t viable, or I can’t do this.”

to pause and re-examine goals if you feel that the demands on you are unrealistic.

Part of Colligan's work involves helping people to set realistic goals and to recognise that mistakes are part of life. It is about understanding what the balance looks like. That is hard to do for yourself, when you may have been indoctrinated and educated into a system where the measurements for success do not necessarily align with yours to begin with.

Colligan says that to a certain extent we buy into the system and collude with it – enable it.

It is difficult to step back and admit that you are not coping or that something is not quite right.

Talk more “There is no shame, and it is not a weakness to talk about feeling out of kilter, feeling sad, feeling angry feeling disoriented,” says Colligan.

“I think we have created a false construct around what being a male looks like and I don’t think it’s healthy. Recently, quite a well known sports commentator was talking about rugby players and saying they need to ‘man up’. And I thought, seriously, are we still there?”

Another important factor to remember, is that taking time out does not mean that you want to step out forever, and it isn’t about giving up. You may want to take a break and then return to what you were doing feeling more energised and replete. You may want to change your direction and do a different kind of work.

Colligan recommends giving yourself permission

Movember founder, Justin Coghlan, travelled the world to spread awareness about men's health. He found that the reluctance of men to articulate their feelings and fears was global.10 Speaking honestly about such issues was just not something a man did. Not only were men reluctant to visit their doctor, they did not accurately describe their symptoms but instead minimised what they felt. A sharp pain was described as mild to avoid being overly dramatic.

At a recent conference, someone from the financial sector revealed that in the last few years he has put aside time to meet at least once a month (if not more) with a close male friend to talk about the issues in their lives. They do not try to avoid this discussion and they prioritise the time so that they don’t skip meeting. It has been a very welcome development for him. He pointed out that in this kind of environment, men can talk about things that family might not fully understand or would be sensitive about, thinking that he would be suggesting they are the problem. With his friend, he can communicate openly and without judgement.

Pre-emptive health measures Lawyers put a lot of time into upskilling as lawyers.

They do not put nearly as much time into looking after their well-being. They compartmentalise to the point where they put themselves at risk of a crisis. That crisis may be a marriage breakdown, a bad health scare, a financial crash, or the loss of someone close to them. Depending on

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Why don't men talk about their health?” https://www.independent.ie/life/why-dont-men-talk-about-their-health-35147853.html

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their practice, they could well be vulnerable to vicarious or secondary trauma, particularly those practising in family and criminal law.

Or they may have reached a crossroad where they are reassessing their lives and not feeling particularly happy with what they see.

requires a rigorous process, a genuine academic qualification, and ongoing CPD. Psychiatrists are medically qualified and may be a good option for some. Check with your GP. The Law Society offers free and completely confidential counselling through its partnership with Vitae, a workplace wellbeing service that has providing counselling since 1967. Instructions for accessing the service can be found on the Law Society’s website. [https://www.lawsociety.org.nz/ professional-practice/practising-well/legalcommunity-counselling-service/]

Steve Colligan says that by the time they identify that they need help, it takes a lot more effort to come back from that crisis point. There should be an investment in not reaching that stage.

He compares the situation with psychologists, who are required to undertake professional supervision. Supervision provides a professional with a safe space to explore issues and pre-empt major problems down the line.

The Law Society also offers Auckland members and their families access to counselling at a discounted rate from Lifeline.

Most people think about Lifeline in terms of someone being on the end of a telephone.

However, it also offers face-to-face support in Auckland and Skype counselling if you prefer that. Visit the Law Society’s website for more information. https://www.lawsociety.org.n all well z/professional-practice/practising-well/ healthy-practice-6/

“Law is a very demanding profession,” says Colligan. “So, it’s minimal to spend a couple hundred dollars once a month on your psychological and emotional well-being. Often an external person can help you set more realistic goals and help you make more sense of where you’re at in a non-perfectionistic, non-judgemental way. It can be really hard for you to seek balance while you’re in the middle of everything. You are feeling all these emotions such as worry, anxiety, hopelessness, worthlessness, trouble concentrating. Trying to find balance on your own can be near impossible in this situation.”

NZBA members who have joined MAS, our member benefit partner, have access to three free EAP (independent counselling) sessions to help manage stress, burnout or any other mental health issue you may experience. This information can be found on our website.

How and where to find help There is help out there, but it can be hard to find.

These are a few of the options: Psychologist, psychotherapist, or counsellor: many of these have websites that will come up on a Google search. You can get a feel for their approach from these. Colligan recommends that if you find one you think may work, you should give them a call to find out if you think you can connect with them. If you have tried a session and you do not feel that this is the right match for you, it is fine to look for someone else. But the critical factor is to check that they have valid qualifications. Many people set themselves up as (for example) a career coach, without having done any training other than possibly a couple of short courses. Find someone who is registered with a national body that

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Urgent support is available for you or someone you know by calling: o o

o

1737 Need To Talk (1737) The Suicide Crisis Helpline (0508 828 865), or Lifeline (0800 543 354)

If are worried that someone's life is in immediate danger, call 111 - go directly to emergency services. * Steve Colligan is a College of Law Associate and director of Emovare, which provides both Executive Assistance and Executive Development programmes.

For more information visit http://www.emovare.co.nz/.

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Looking After Yourself MAS

The following articles are reproduced by permission from the MAS wellbeing portal. They provide practical suggestions to help men to look after their health and well-being.

Five Things All Men Should Know* Globally, men die on average six years earlier than women, and for largely preventable reasons.

It doesn’t have to be that way: we can all take action to live healthier, happier, and longer lives.

How? Here are the top five things to know and do.

1. Spend time with people who make you feel good.

Find your tribe and stay connected. Your mates are important and spending time with them is good for you. Catch up regularly, check-in, and make time.

2. Talk, more.

You don’t need to be an expert and you don’t have to be the sole solution, but being there for someone, listening, and giving your time can be life-saving.

70% of men say their friends can rely on them for support, but only 48% say that they rely on their friends. In other words: we’re here for our mates but worried about asking for help for ourselves.

Reaching out is crucial.

3. Know the numbers.

At 50, talk to your doctor about prostate cancer and whether it’s right for you to have a PSA test.

If you are of African or Caribbean descent or have a father or brother with prostate cancer, you should be having this conversation at 45.

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Know your numbers, know your risk, talk to your doctor.

It's a great idea to also keep track of the number of casual beers or nights out that are slipping into your week. It's easy to get caught up in being a 'yes' man that sees you drinking more than you should. Even a couple of casual beers over the course of your week can take its toll on your sleep, wallet, and health.

4. Know thy nuts. Simple.

Get to know what’s normal for your testicles.

Give them a check regularly and go to the doctor if something doesn’t feel right (see The Ball is in your court) 5. Move, more.

Add more activity to your day. Do more of what makes you feel good.

• • • • •

Take a walking meeting Park further away from the station Get off the bus a stop or two earlier Instead of the lift, take the stairs Cycle to work instead of driving

*This article was produced by the Movember Foundation. Find out more at www.nz.movember.com

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The Ball is in Your Court with Testicular Cancer

By Testicular Cancer NZ* Testicular cancer is the most common cancer young NZ men aged 15 to 34, and second most common in Australian men aged 18 to 39. While it is rare, the incidence of testicular cancer is increasing. But it is almost always curable when caught early. The health of your testicles is (perhaps literally) in your hands.

Gonads, goolies, family jewels. Call them what you will. Men may often like to talk about them but awkward topics like examining their bits and bobs just isn’t high on the agenda for most, it at all. But no conversation is too tough to tackle when it comes to your health.

On average, more than 150 Kiwi men are diagnosed with testicular cancer every year in New Zealand, more than 800 in Australia. While it is rare, the incidence of testicular cancer is increasing, making it a very real health issue for young men. The good news is that it is almost always curable if found at an early stage, with a survival rate of over 95%.

The key is making a habit of regular self-checks.

You don’t need to go to your doctor, you can check your own. Become familiar with what feels normal for you and see your doctor if anything feels out of the ordinary.

Former All Black Aaron Cruden is a testicular cancer survivor, diagnosed at age 19 when he discovered a bit of an odd shape on one of his testicles. “The thing is that it’s really preventable, although sometimes it’s hard to get the lads out in front of the doc or even talk about them with your mates. But if we can get more guys talking about their nuts we’ll save more lives. It saved mine”, he said.

What is testicular cancer?

Testicular cancer starts as an abnormal growth or tumour that develops in one or both testicles.

There are several types of testicular cancer, but the most common is called Seminoma, which are made up of immature germ cells. They are usually slow-growing and tend to stay localised. The other main type is non-seminoma, which arise from more mature, specialised germ cells and tend to be more aggressive.

Who is at risk?

• Males between the age of 15 - 39 years.

• Males with a family history such as a brother or father diagnosed with testicular cancer.

• Males who have had a previous occurrence of testicular cancer.

• Males who have undescended testes at birth.

About three to five percent of boys are born with their testicles inside their abdomen.

When To Check Yourself Be aware of how your testicles normally feel by making a regular appointment with them. Check them once a month, in a warm environment.

A bath or shower is good. Make sure you find somewhere you can relax and, importantly, won’t be disturbed!

How To Check Yourself 1. Get hands-on and get to know what’s normal for you, i.e. size, shape and weight of each of your testicles.

2. Cradle your scrotum in both hands.

3. Roll one of your testicles between your thumb and fingers to check for any lumps or swelling.

4. Don't play favourites. Repeat with the other testicle.

What's normal?

• Smooth and firm, comfortable to touch • To feel a soft rubbery tube at the top and back of both testicles. This is the epididymis, that carries sperm to the penis. It wobbles and can be tender

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• •

One testicle slightly bigger than the other One testicle hanging lower than the other. It’s nature’s way of allowing you to cross your legs without screaming

What's not?

• A painless lump, no matter how small • Swelling in either testicle • Discomfort, heaviness or pain in a testicle or your scrotum • A dull ache in the groin • Anything that is unusual for you Thankfully, most lumps and bumps on your testicles are not cancer. But don’t ignore them. If something doesn’t feel right, see your doctor and let them decide if you need further tests.

Treatment Options There is a range of treatment options – surgery, radiotherapy and chemotherapy – which may be used alone or together. The most important step is to talk to your doctor about treatment options so you can make an informed decision.

You may want to consider getting a second or third doctor’s opinion, remember the balls in your court. And remember, most men can still have a normal sex life and children following treatment for testicular cancer.

If you would like further information or to speak with someone please visit www.testicular.org.nz or call us on 0800 660 800. * This article was reproduced with the permission of MAS on whose website it appeared at https://mas.synergyhealthltd.com/media/view/2017

References: 1. https://www.cancer.org.au/about-cancer/types-of-cancer/testicular-cancer.html 2. Ministry of Health https://www.health.govt.nz/nz-health-statistics/health-statistics-and-data-sets/cancer-data-and-stats?mega=Health%20 statistics&title=Cancer

It is Time to Stop Prostate Procrastination

By MAS and Prostate Cancer Foundation* More than 3,500 Kiwi men are diagnosed every year, and over 600 will die. In Australia, prostate cancer kills approximately 3,500 men annually. About the same number of men die of prostate cancer as women die of breast cancer. Men can be less proactive about their health and reluctant to talk about prostate cancer and those checks, but early detection saves lives.

Men are great at ignoring the signs of ill health and hoping it will go away. No one wants to admit they are having trouble peeing or they’ve found blood in their urine, and awkward topics like Digital Rectal Examinations aren’t usually high on the agenda for watercooler or after-work drinks conversation. But with prostate cancer being the most commonly diagnosed cancer in men, killing more than 600 Kiwi and 3,500 Australian fathers, sons, brothers, best mates or grandfathers every year, it’s time to stop the procrastination.

You service your car and maintain your home, so being proactive about your health can be lifechanging and lifesaving. The effects of prostate cancer can be devastating on relationships, finances and careers, affecting not just families, but friendships, workplaces and communities.

Ultimately is it up to the men themselves to get checked but a little cajoling from friends or family members could be just the push they need.

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What is the prostate?

Only men have a prostate, a small gland that sits below the bladder near the rectum. It is part of the reproductive system, producing most of the fluid that makes up semen. Often described as being the size of a walnut it is normal for it to grow as men age (known as benign prostatic hyperplasia or BPH), sometimes leading to problems such as difficulty urinating. These are common in older men and are not always symptoms of cancer.

What is prostate cancer?

Prostate cancer occurs when abnormal cells develop in the prostate, which can then continue to multiply out of control, sometimes spreading outside the prostate into nearby or distant parts of the body. It is generally slow-growing, the majority of men with low-grade prostate cancer live for many years without symptoms and without it becoming life-threatening. However, high-grade disease spreads quickly and can be lethal.

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Risk factors Age and family history are the two factors most strongly linked to an increased chance of developing prostate cancer. As an age-dependent disease your chance of developing prostate cancer increases with age. Primarily presenting in men over 65, the risk of developing prostate cancer by the age of 75 is 1 in 7 men.

You should make an individual informed decision about testing based on the latest available evidence on the benefits and potential harms of testing and subsequent treatment for prostate cancer. There are varying opinions on the testing process among doctors so if you are not happy, get a second opinion from another doctor or men’s health clinic if available.

If you have a first-degree male relative with prostate cancer, you are more likely to develop it than a man with no such history. This risk increases if there is more than one male relative with prostate cancer, and yet again if male relatives were diagnosed at a young age.

Symptoms In the early stages of prostate cancer, there may be no symptoms. In the later stages some symptoms might include:

Other factors can include genetics (while prostate cancer can’t be inherited, a man can inherit genes that increases the risk), diet and lifestyle. While there is no evidence that diet and lifestyle changes can prevent prostate cancer they can improve your overall health and possibly reduce the risk.

Who should get checked for prostate cancer?

Men over the age of 50, or 40 with a family history of prostate cancer, should talk with their doctor about testing for prostate cancer as part of their annual health check-up.

As a man, having a prostate check is ultimately your decision. This would involve both a PSA (prostate-specific antigen) blood test and a digital rectal examination (DRE). It won’t tell you if you have prostate cancer, but it will indicate how likely you are to have it and if further investigation by a specialist is warranted.

• •

• • •

Feeling the frequent or sudden need to urinate Difficulty urinating (e.g. trouble starting or poor urine flow) Discomfort when urinating Blood in urine or semen Pain in lower back, hips or upper thighs

These symptoms may not mean you have prostate cancer but if you experience any of them please go and see your doctor. * This article was reproduced with the permission of MAS on whose website it appeared. The Prostate Cancer Foundation NZ is dedicated to reducing the impact of prostate cancer on Kiwi men through raising awareness, funding research, advocating on their behalf, and importantly providing information and support during this difficult time. This includes a national network of support groups (led by volunteers who have been through their own encounter with the disease), an online support forum, welfare support, and a free HELPLINE 0800 477 678. For more information visit www.prostate.org.nz

Reducing your risk of developing prostate cancer:

While there is no evidence that diet and lifestyle changes can prevent prostate cancer, they can improve your overall health and possibly reduce the risk, and positively impact one’s cancer management. While you can’t change your age, ethnicity or family history you can control your diet and lifestyle.

Here are a few tips: •

•

•

•

•

Listen to your body: Be aware of the warning signs listed above such as the frequency, urgency and pressure during urination, or presence of blood in the urine. You know your body, be aware of any changes.

Regulate diet and alcohol intake: Eat healthy, balanced meals rich in natural unprocessed foods, including fruit, vegetables and whole grains. Moderate alcohol intake to within recommended guidelines, including alcohol-free days.

Exercise regularly and move lots: There is increasing evidence that shows that physical activity and regular exercise can be protective factors for cancer. Try to exercise at least 30 minutes a day and keep active during the day by breaking up sitting time.

Smoking: Remaining smoke-free and avoiding second-hand smoke can both improve your overall health and reduce your cancer risk.

Test annually: Undergo an annual prostate-specific antigen (PSA) blood test.

A prostate cancer diagnosis can be a shock, affecting not only the patient but also his family and friends.

Suddenly they are confronted with appointments, information, and decisions that need to be made regarding the pathway ahead, be that through diagnosis or treatment.

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Petrol Heads’ Corner - Finding My Balance David O’Neill*

I have run out of time and the car dealers, believe it or not, have run out of vehicles to enable me to do a car review at this time of the year. However, looking back on the year it is unsurprising that resources are not what they used to be.

the only person on it apart from the person ahead of me and the car behind me) at high speed you can’t afford to have your attention waiver for one second.

2020 has been a year of extremes. Most barristers appear to be flat out with little or no time off. That has brought to the fore the idea of wellness and time out.

I found out to my dismay that when you do focus on something outside the car and your thoughts wander, bad things can happen. It cost me a new car in 2006 when I rolled my, then brand-new rally car, five times and wrecked it.

As editor of the magazine I was instructed/asked to write about finding balance in what I do outside of my practise of law.

I was once told by a friend who was sitting in the silly seat on the left-hand side of the car that “every corner has your name on it”. Never was there a truer word said.

Some of you play golf, some of you go sailing and others might even just read a book. Whatever the case, it is important that you balance your work with pursuits outside of work. We can’t all just sit there and work every day available just because we happen to have the work to do. In this day and age of emails, zoom meetings, texts and other forms of immediate communication it is important to, from time to time, step outside the law and go and do another pursuit completely devoid of anything to do with the law.

It took me some years to appreciate that the world didn’t stop turning just because I decided to take a holiday. I know that Jim Farmer QC is a great supporter of work/life balance. I am as well.

While it may appear to some that I am complete nutty about cars (they are probably right) [subed – we are definitely right] it is still important to have a way to release yourself from your practise.

Racing for me has been a real outlet which has allowed me to step away from the law and put to one side communication with the office, communication with clients and thinking about cases.

When I strap myself into the car, slap on the helmet and hook up the intercom system with my co-driver, it’s something that I have to do which is completely divorce myself from the law.

Driving along a narrow country road (albeit I’m

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I went from competitor to spectator in the space of about 10 seconds. Neither myself nor my codriver were hurt at the time. The ache started later in my pocket when I had to rebuild the car.

There is a saying in racing. There are those competitors that have crashed and those who are going to crash. There is no other type of competitor. Most competitors in Targa have crashed. Some have crashed very badly, and on one occasion a competitor lost his leg, and on another, a competitor became confined to a wheelchair for the rest of his life. One’s heart goes out to those who do suffer injury of a significant nature but, by the same token, we all go into it knowing that there is a risk that something dreadful might happen. In some regard we also believe that it will always happen to “the other guy”.

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rally. I wasn’t the first and I certainly wasn’t the last car to do this. The notes called the corner 50 metres after the previous note and it was over the page so at the end of the day it was lucky we had a slip road.

The thing that I really get out of Targa, quite apart from the thrill of racing, is that it is a complete and absolute break from the law. I don’t think about the law, I don’t communicate with clients and I certainly don’t look at emails through the day. I will have a quick look at them in the evening, but simply put, it is a different type of concentration that is required.

Racing is my thing and you, the reader, might have something else, but in my view it is vitally important that you find ways to get away from the law, get away from the grind of dealing with clients, their problems, their issues, their emotions and also the responsibility of handling what is, to most clients, the most important thing that might happen to them in their lives. If you continue to read this article you’ll probably come to the swift realisation that getting a break from the law by going racing is nuts. You are probably correct.

Of course, there have always been the near misses. I remember on my very first Targa I was (in my mind) whizzing along at breakneck speed and I was being passed on a fairly regular basis.

I asked my co-driver (the fellow I bought the car from who was an experienced race car driver himself ) if I should go a bit faster. He mumbled yes and we proceeded to go a lot quicker than I really wanted to go to the extent that I didn’t really have much idea of what was going on. However, I do remember one stage where we were whizzing along outside Pukekohe somewhere and the road went up and down and up and down and my codriver was calling the various notes and he called one note and said nothing. We came over a brow of a hill and right in front of me was the yellow tape which means “don’t go down here”. We went through it at about 170kmph. Thankfully, there was a slip road which allowed us to continue down, screech to a halt, reverse and re-join the

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Targa produces some weird and wonderful stories, mainly around crashes. Crashes in Targa are a bit like hitting 6’s in cricket except with a bit more damage. They don’t happen very often, but when they do, they’re usually spectacular.

Sometimes they’re caught on film and other times they get told. On one occasion we were racing around Waiouru. It was the weirdest time of the year because it was just after labour weekend and it was snowing. We had been subjected to heat, rain, wind and finally snow. The Australians thought this was a hoot. Most of them had never experienced snow.

Anyway, there was a lengthy complaint posted on the race enquiry board at the end of the day where said car was complaining about not being able to pass another car in front of it. The slower car had careered through a farmer’s fence and then without slowing down managed to go around in the paddock and tear off down the road at breakneck speed. What he didn’t know was that he took about 20 metres of fencing with him and every time he went round a corner the fencing was swinging out from the car, chopping off bits and pieces of bush, decapitating road marker posts at the side of the road and not allowing other cars to pass. Hence this faster car complained about the fact that he was being baulked. Unfortunately, the slower car didn’t know about the fence behind and apparently couldn’t work out why the quicker car wasn’t passing him. It wasn’t until they got to the finish line that the slower car finally realised that he had a fair chunk of a farmer’s fence being towed behind him which was holding up the field.

I’ve been lucky in that I’ve wrecked a car when I rolled it (2006) and then spun in 2018. That was my fault too, because I was trying to eke out the last bit in my tyres and I managed to do so because I got onto a damp piece of road, my back end got around the corner before my front end did, we hit a rock which stopped us going into the river and then skidded off down the road and came to a grinding halt on top of another rock.

Believe it or not we were able to drive out eventually, swap the wheels around, had a quick check underneath and then finished the final stage of the Targa at touring pace but able to get up to about 140 kmh.

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the other guy managed to drive himself straight into a bank at the end of the second day.

Targa is back next year, hopefully with little restrictions on it, depending on what Covid does to us and, fingers crossed, I’ll be running in it and do all the events.

I hope this finds you all well. Have a great break.

We all need it. It’s been a dreadful year in many respects and the work has not stopped coming in. A break is important and you should all take fullest advantage if possible. Ignore/avoid fixtures in January and make the most of the holiday with family. Merry Christmas to all.

The big Targa wasn’t held this year. I was able to compete in the only two smaller Targas in March (pre lockdown) and July (some sort of level 2 or 3). We did ok in both of those, mainly because the fields were quite small and people kept crashing.

I think I reported that I won my class in the slowest time in the history of Targa, only because

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Kind regards David * David O’Neill is a Hamilton barrister, the NZBA treasurer and, a bit of a speed freak... he's the epitome of the fast & furious.

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The Psychology of Money, Timeless Lessons on Wealth, Greed and Happiness

By Laetitia Peterson*

Morgan Housel’s highly anticipated new book, The Psychology of Money, opens with two quotes: “A genius is the man who can do the average thing when everyone else around him is losing his mind.” - Napoleon “ The world is full of obvious things which nobody by any chance ever observes.” – Sherlock Holmes Like Sherlock Holmes, Housel observes seemingly obvious things about human behaviour around money. The Psychology of Money is organised in 20 short chapters outlining the most important and often counterintuitive flaws, biases, and causes of bad behaviour he has seen affect people when dealing with money.

How gullible are you? Who do you trust? Who do you seek information from?” Housel said. “Those are the most important questions in investing and they also apply to a lot of fields.”

Housel believes the psychological side of investing is the most critical to being a good investor.

“You can be the best stock picker in the world, you can be the best economist in the world, you can have the best analytical abilities, the academic credentials of anyone else in the world,” he said.

“But if you lose your cool, if you lose your temper, in March of 2020, or in 2008, or in 1999, none of that matters.”

This loops back to the first quote attributed to Napoleon: “A genius is the man who can do the average thing when everyone else around him is losing his mind.”

The reason Housel opened his book with this quote is because the behavioural side of investing effectively short-circuits whatever analytical skills you may have. If you haven’t mastered the behavioural side of investing, all those analytical skills can become your enemy.

Housel’s fascination with behavioural finance began in 2007 when the global financial markets and banking system were under severe stress.

Lehman Brothers collapsed in 2008 and almost brought the entire global financial system down with it.

“Almost everything I wrote centred around this idea of: ‘Why did the financial crisis of 2008 happen?

What were its causes? Why did people behave the way that they did? Have they learned their lesson? Why do they keep making the same mistakes over and over again? Will they keep making those mistakes in the future?’” Housel said.

He couldn’t find the answers to these questions in traditional finance or economics textbooks, so he decided to turn to other disciplines like psychology and sociology. These disciplines seemingly have little connection to economics or investing but could actually give valuable insights because they ask similar questions. “What is people’s relationship with greed and fear? Are people able to take a true long-term mindset?

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“Investing is not just about money,” Housel said. “Investing is about our relationship with the feelings of greed and fear.

Confounding Compounding - $81.5 billion of Warren Buffett’s $84.5 billion net worth came after his 65th birthday. Our minds are not built to handle such absurdities. (Chapter 4) Housel offered a simple story about the ice ages to explain why compounding is so important and yet so often overlooked.

There have been five distinct ice ages over the very long history of the planet, he noted. Each turned the earth into a giant snowball. For as long as humans studied these phenomena, the tilt of the earth’s axis away from the sun was thought to be the cause. Winters were so brutal and extreme,

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the theory went, that the planet would freeze over the millennia. But that wasn’t the case at all: Moderately cool summers were the problem.

Cool summers meant the winter snow didn’t melt.

When the snow didn’t melt it reflected more heat away from the earth, cooling the planet further, and leading to more snow the next winter. And when there was more winter snow accumulation, there was less summer snowmelt. And around and around it went.

“It’s not intuitive to think that you start with something as benign and tiny as a moderately cool summer that leads eventually to the entire planet being covered in snow, but that was exactly what was happening,” Housel said. “You start with a normal planet, you have a cool summer, and before long — tens of thousands of years — the whole planet is covered in snow.”

Which is how compounding works.

“You start with something that is so meaningless and benign, and a change in circumstances that doesn’t seem to make any difference, that is easy to overlook because it’s not intuitive,” he said.

“But over a period of time, it adds up to something truly extraordinary. And that, of course, is so true in investing as well.”

To emphasise the point, he noted that Warren Buffett started investing at age 11 and continues today at age 90. So how much of his net worth came after his 50th birthday? About 96%. “If he had started at 25 like a normal person and retired at 65,” Housel said, “his net worth would be $11.7 million not $90 billion.”

Housel said most investing mistakes come from asking the question: “What will happen next?”

While most investing fortunes come from asking: “How long can I stay invested for?”

“The reason he [Buffett] is so successful is because he has been investing for three-quarters of a century.”

That is 99.9% of the explanation for how Buffett has gotten to where he is now, Housel said. “That answer is not intuitive and it’s too simple for smart people to take seriously, and so it tends to go overlooked.”

Risk is what you don’t see “The biggest economic risk is what no one is talking about, because if no one’s talking about it, no one’s prepared for it, and if no one’s prepared

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for it, its damage will be amplified when it arrives,” Housel said.

In recent years, for example, the risks people talked about included trade wars, next quarter’s earnings, budget deficit forecasts, and the elections. “It’s not that those things are not risky,” he said. “It’s that we see them coming, we talk about them, and we can prepare for them.” The risk no one was talking about or paying attention to was the global coronavirus pandemic.

So how do you deal with this as an investor?

“Think about risk the way California thinks about earthquakes,” Housel said. “If you live in California, you know there are going to be big earthquakes in your future but you don’t know when or where... but you have an expectation… you are always prepared for it.”

It’s also important to give yourself a wide berth, with room for error, and to realise there’s a distinct difference between getting rich and staying rich, Housel said.

“Getting rich requires swinging for the fences, taking a risk, being optimistic,” he said. “Staying rich requires a form of pessimism, being pessimistic about the short run, and the ability to survive whatever might happen, whatever may come your way.”

What are the risks we are not talking about today?

“Something I think people are discounting and are not thinking about enough, and this is not my baseline forecast, are the odds of the economy doing extremely well next year,” Housel said.

What if a vaccine arrives in early 2021 [or even late 2020] and everyone is soon vaccinated?

Life can return to normal. That will release lots of pent-up demand.

“Then you combine that with three things,” he said: “the amount of Federal Reserve stimulus flooding throughout the economy, the amount of stimulus from Congress just in terms of stimulus payments that have been made this year, and the amount of savings Americans have generated this year.”

Put it all together: pent-up demand, savings, and unprecedented fiscal and monetary stimulus.

“If those two things collide at once,” Housel said, “2021 could be one of the best years from the economy that we have seen in our lives.”

The counterargument, of course, is that if we don’t get good vaccine news and stimulus measures

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are fumbled, 2021 could be one of the worst years for the economy in decades.

All together now – What we’ve learned about the psychology of your own money. (Chapter 19)

“I think both of those extremes seem almost equally likely right now,” he said. “But I think we are discounting particularly the optimistic side, when things are as bad as they have been in 2020, when you have 40 million people lose their jobs, it seems ridiculous to say we could be facing one of the best economies that we have ever seen in a matter of months.”

In his last but one chapter, Housel lists a few short recommendations that can help us make better decisions with our money.

Getting Wealthy vs. Staying Wealthy – Good investing is not necessarily about making good decisions. It’s about consistently not screwing up. (Chapter 5) To preserve wealth requires a “combination of frugality and paranoia,” according to Housel.

Creating wealth and preserving wealth are two different skills, he added.

“When you think about building wealth just through one lens, you are missing that it’s really a two-sided equation,” Housel said. “You need this barbell personality of optimism about the long run of the market’s ability to solve problems and create productivity and produce profits that accrue to shareholders.”

But that’s just one side of the equation.

“You also need pessimism about the short run about being able to survive long enough to benefit from the long run,” he said. “I’ve often said, ‘Save like a pessimist and invest like an optimist.’ You need both and they seem contradictory: Longterm optimism and short-term pessimism, if not paranoia.”

So how does Housel define optimism?

“A real optimist is someone who knows that the short run and the medium run are going to constantly be filled with setbacks and delays and crises and tragedies but that those things do not prevent long-term growth and long-term optimism,” he said.

“If someone says that they think everything is always going to be okay, that’s not an optimist.

That’s a complacent, whereas a real optimist is someone who understands that the short run is always going to be a mess, always going to be a disaster, both for you and other people, constantly running into problems, running into setbacks, but those things do not preclude long-term growth.

And that, to me, is the real optimist.”

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1. Go out of your way to find humility when things are going right and forgiveness/compassion when they go wrong.

2. Less ego, more wealth.

3. Manage your money in a way that helps you sleep at night.

4. If you want to do better as an investor, the single most powerful thing you can do is increase your time horizon.

5. Become OK with a lot of things going wrong.

You can be wrong half the time and still make a fortune.

6. Be nicer and less flashy.

7. Save. Just save. You don’t need a specific reason to save.

8. Define the cost of success and be ready to pay it.

9. Worship room for error.

10. Avoid the extreme ends of financial decisions.

11. You should like risk because it pays off over time.

12. Define the game you’re playing.

13. Respect the mess. There is no single right answer; just the answer that works for you.

In his final 20th Chapter, Housel makes a confession about how he invests his own money.

I will leave it to you to read his book and decide whether what works for him would also work (or not work) for you. If you are thinking of a suitable Christmas gift for a family member (or yourself ), I highly recommend you add The Psychology of Money to the list. You can order it on Amazon here About the author 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.

A disclosure statement is available on request and free of charge.

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Not All That Glitters is Gold Award Stickers: Friends or Trickery?

Martin Cahnbley

who used to be relatively strict and objective.

These days I find it rare to find a wine that has NOT received fewer than 93 or 94 points of a 100.

The reviewer requires the tasting free from the winery and hence is reticent to bite the hand that feeds; ergo: higher and higher scores.

Does this sound familiar? Dinner invitation received, outfit selected, small gift wrapped, ready to go. Jump into car, stop outside wine shop on the way to party. Rush in (after all, an hour is disrespectfully late), flick a quick hello to the manager and stop in your tracks – which wine to choose? Relax, you are not alone.

I recently attended a drinks party on the Shore.

It was one of those ‘bring-a-bottle’ affairs. No one was concerned about whose wine was being enjoyed and ownership was parked at the kitchen table. Later in the evening, the proud host approached with a bottle in each hand: “Gold medal wines” he proclaimed. I looked a little more closely and pointed out that one was a WineState sticker and the other bottle was adorned with 4 bronze medal stickers that looked surprisingly Gold. A discussion ensued about the importance of awards in influencing wine purchasing decisions. Everyone in the group agreed that sticker = quality = sense of security.

From my time in marketing roles with various large wine companies and with my time in retail, I am acutely aware of puzzled customers’ needs of assistance, especially if knowledgeable staff are not present (e.g. supermarket or your local dairy). They seek a wine that will not disappoint or be a waste of money. In NZ we used to have the Cuisine sticker which carried a lot of weight.

Then we have had the advent of wine reviewers

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Faced with this quandary, I suggest that you look to another option. Some initial investment may be required, but the rewards will be worth it.

Build a relationship with a wine store where the owner/manager has an understanding of wine and takes the time to make recommendations based on your preferences. Finding the right wine merchant is like finding your favourite café, where your scrambled eggs arrive exactly the way you want them and the coffee puts a smile on your face. Get to know the wine person by name, make sure he or she knows what your wine preferences are. Give them feedback on wines that you have bought. Only that way will they be able recommend wines suited to your taste.

The great challenge is finding that gifted person.

There are fewer and fewer independent wine stores where the staff have a passion for and understand wine; and a selection of wines that do not look like a supermarket shelf.

Of course, I will recommend my own store: Cahn’s Wines & Spirits in O’Connell Street, but I also suggest that you check out Caro’s 2 stores, Wine Direct, First Glass in Takapuna, Point Wines in Northcote and Accent on Wine in Parnell. The Glengarry stores can also be a good partner, if you can find a well-trained staff member at Glengarry’s. If your local wine shop’s service extends only to smiling as they take your money, you may be forced to rely on those stickers that irk brand designers. But, caveat emptor! What does each of those stickers actually mean; who is behind each and what gives them the right or authority to tell us which is better than others?

There is a vast array of wine decals supplied by magazines and wine shows. Add to that the annual wine guides and regular wine columns and I believe that we are where we started – as confused as ever.

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Martin’s recommendation for summer celebrations

CHARLES ORBAN BLANC DE NOIR CHAMPAGNE - $55 A nose with strong plum and strawberry aromas.

Golden in colour and powerful on the palate with wild berries and hints of brioche - 50% each pinot noir and pinot meunier.

AIX FRENCH ROSÉ - $32 From the home of Provence Rosé, AIX: round, supple, well-balanced and harmonious

ATA RANGI ROSÉ - $28 Think cranberries and fresh raspberries with just a splash of blood orange and strawberry juice.

QUARTZ REEF METHODE TRADITIONELLE $37 A KIWI benchmark: delicate aromas, a stylish robustness with exquisitely long flavours and creamy acidity.

* Martin Cahnbley imports and wines and spirits via Planet Wine and is hoping to marry into a wine dynasty one day. He owns Cahn’s Wines & Spirits in the Auckland CBD and can often be found there reading labels, nodding sagely and offering advice. He can be contacted at martinc@planetwine.co.nz or martinc@cahns.co.nz

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DAUMAS GASSAC GUILHEM ROSÉ - $20 Loaded with red plums, cranberries and raspberries on the palate with a long dry creamy finish.

Events

Wellington, Tauranga, Auckland End of Year Drinks

Simon Foote QC and Matt Casey QC

Gurbrinder Aulakh, James Seaton, Laura Carter, Setareh Stienstra

Peter Lycett, Fiona Gray (both from MAS) and Yoon Lee

Matt Casey QC, Kahu Barron Afeaki SC, Gowan Duff, Luke Ameye, Quentin Duff

Tauranga Mix n Mingle

Paul Radich QC, William McNichol, Bill and Rita Nabney

Paul Radich QC

Tauranga

Jacque Lethbridge, Nick Williams, Belinda Sellars QC, Steve Bonnar QC

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2020 – 2021 COUNCIL CONTACT DETAILS PAUL RADICH QC – President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz PHILLIP CORNEGÉ Ph +64 7 282 0572 Phillip@phillipcornege.com KATE DAVENPORT QC Ph: +64 9 307 8787 kate@katedavenportqc.co.nz QUENTIN DUFF Ph +64 27 242 7734 q@mataichambers.com SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law TARYN GUDMANZ Ph: +64 3 477 8781 taryn@princeschambers.net ISWARI JAYANANDAN Ph: + 64 9 263 0047 iswarij@yahoo.co.nz SAM JEFFS Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz STEPHEN LAYBURN Ph: + 64 9 300 5485 stephen@stephenlayburn.co.nz RICHARD MCGUIRE Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL Ph: +64 7 839 1745 david.oneill@nzbarrister.com JAMES RAPLEY QC Ph: +64 3 964 8000 james.rapley@bridgesidechambers.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz MAGGIE WINTERSTEIN ph: 0800 4542 3789 m.winterstein@libertylaw.co.nz