At The Bar August 2019
Reviewing Sentencing for Meth Offending International Law and Terrorism Alpine Drive Experience www.nzbar.org.nz
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YOUR ASSOCIATION 4 From the President – Kate Davenport QC 8 Committee Business – what our committees have been working on 21 The Conference Man – an interview with the Chair of the NZBA Conference Committee, Simon Foote 23 The Conference Programme – the sessions and speakers for this year’s conference 26 New Members – members who have joined since the last newsletter 41 Events – Christchurch Silks Dinner and Bench and Bar Dinner LEGAL MATTERS 12 Sentencing for Methamphetamine Offending – the Court of Appeal reconsiders the guidelines in R v Fatu 15 Terrorism as an International Legal Concept – Sir David Baragwanath on international law relating to terrorism 19 Government Legal Network – with some 1200 lawyers, the New Zealand Government has the largest legal team in the country PRACTICE AND LIFESTYLE 24 Key Questions for Investors to Improve the Odds – thinking about your financial wellbeing 27 Five Things Resilient Lawyers Do Differently – adapt to the changing environment 29 Using the Deep Web to Defend Clients and Protect Reputations – what lawyers need to know about the deep web 31 Telling the Stories of the Sea – Canadian science journalist Alanna Mitchell and the challenges for our seas 33 Technology: Are Workplace Tools Making Decision Fatigue Worse? – organising data and decisions 36 Petrol Heads’ Corner – David O’Neill unleashed on ice and in a Roller
p41 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 Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Melissa Perkin Tel: +64 9 303 4515 Email: melissa.perkin@nzbar.org.nz
Jacqui Thompson (Contributions) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz DESIGN AND LAYOUT BY Kirsten McLeod Tel: +64 9 834 2224
NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Fax: +64 9 303 6516 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Auckland 1140
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From the President Kate Davenport QC*
TÄ“nÄ koutou. We are now over halfway through what has been a busy and significant year for the NZBA (and for me as President). We have been grappling with several issues, from QC appointment criteria to diversity (not unrelated, some would say). We have just completed our Council election process and will be welcoming a new Council and President-Elect on 1 October. I will say more about this in the October issue of At the Bar, but for the meantime, I would like to thank the current Council for the considerable work they have put in. I would also like to thank those who have put themselves forward for the new Council. The results of the election will be announced at the Annual General Meeting on 23 August at 5:20 pm in Queenstown. Annual Conference We are looking forward to our Annual Conference in Queenstown on 23 and 24 August. For the first time, we are co-hosting this event with the Australian Bar Association. We have confirmed 35 speakers from New Zealand, Australia and the United Kingdom, with keynote presentations from our Chief Justice, Rt. Hon. Dame Helen Winkelmann and from Australia we will be joined by Dr Anne Aly, whose expertise is in the fields of counter-terrorism and counter-radicalisation. We are delighted to have also confirmed our Attorney-General, Hon. David Parker as a speaker. I hope you will join us at the conference and take the opportunity to meet up with colleagues on both sides of the Tasman as well as enjoy some fabulous Queenstown hospitality and attractions. International Connections United Kingdom Chancery Bar In May, I spoke with representatives of the Chancery Bar to discuss their Chancery Bar Litigant in Person Support Scheme (CLIPS) programme. This month I am going to observe a session. CLIPS was set up by the Chancery Bar Association at the suggestion of Lord Justice Briggs as part of his Chancery Modernisation Review. The idea is for a duty solicitor type scheme to assist litigants in person in the Interim Applications Court in the Chancery Division. Our Access to Justice Committee is investigating possibilities for how this type of scheme could be set up in New Zealand. International Bar Association Bar Leaders Meeting I was a member of a panel speaking on issues around bullying and discrimination and the response of the bar at the IBA Bar Leaders meeting in Budapest on 22 and 23 May. Another panel member was Kieran Pender from the IBA who will be speaking at our 2019 conference on the recently released IBA report on bullying and harassment within the legal profession. Bar Dinners - Australia I attended a Victorian Bar Dinner in Melbourne in mid-May and had the opportunity to briefly attend and speak at the ABA Council meeting the next day. Simon Foote represented the NZBA at the New South Wales Bar Dinner in mid-May, and our Christchurch Vice President Jonathan Eaton QC will be attending the Queensland Bar Dinner on 26 July. These dinners and the contacts made are providing great opportunities to network with our Australian colleagues, and the value of connections made are reflected in the great turnout of Australians at our joint August conference.
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Australasian Institute of Judicial Administration I attended the Council meeting of the Australasian Institute of Judicial Administration in mid-June in Brisbane, along with a dinner with other AIJA Council members. The NZBA and the Australian Bars have a representative on the Council to keep abreast of issues relating to judicial administration. Hong Kong Extradition Proposals On 12 June I received a message from the Chair of the Hong Kong Bar Council, Philip Dykes, about the attempts of the Hong Kong government to force through amendments to extradition laws. The Hong Kong Bar sought assistance from the NZBA with a critique of the proposed changes and was particularly interested in the recently released Court of Appeal extradition decision in Kim. NZBA Vice President Jonathan Eaton QC is heading this work on our behalf and has been in contact with Dr Tony Ellis who was lead counsel in Kim. The decision of the Hong Kong government to suspend the amendment process has removed some of the urgency, but the Hong Kong Bar has indicated it would still like the NZBA’s views. The Hong Kong Bar is seeking a comprehensive review of extradition laws, and considers the safeguards in New Zealand law to be relevant. Queen’s Counsel Silks appointments for 2019 The Attorney-General has announced the 2019 QC round. He has indicated that a smaller number of appointments will be made than in recent years. The 2019 Guidelines for appointment include a new criterion of improving access to justice. The NZBA was consulted on this change and through its Access to Justice Working Group, sought feedback from members. While a few did express concern, there was broad acceptance of the change. More information about the QC round is available on our website at www.nzbar.org.nz. NZBA QC Process Review Committee Jonathan Eaton QC and Stuart Grieve QC are heading the NZBA QC Process Review Committee. Several senior silks have agreed to participate on the committee which will review the NZBA processes for the preparation of a short list of candidates for discussion with NZLS and presentation to the Solicitor-General. The Review will: • • • •
analyse the current NZBA process consider the process in comparative jurisdictions recommend improvements consider providing applicants with clear guidelines.
I spoke with the President of the Victorian Bar, Dr Matthew Collins QC, about its process. He prepared a very helpful bullet point list of their process for consideration of silk candidates, which has been circulated to the Review Committee. Events and Activities Christchurch Silks Dinner We hosted a celebratory dinner for James Rapley QC, Anne Stevens QC and James Wilding QC on 20th June in Christchurch. Nigel Hampton QC addressed the guests. Photos of the dinner are on page 41. Your President excelled herself as the “official” photographer. [Sub-editor – thanks also to James Rapley QC for his photos]
Right: James Wilding QC, Anne Stevens QC and James Rapley QC
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2019 NZBA Bench and Bar Dinner - Auckland We hosted a sold-out bench and bar dinner in Auckland on 26 June, with the Chief Justice as our guest speaker. Photos from the dinner are on page 42. The Chief Justice gave a very interesting speech on her vision for the future of the legal profession and the judiciary in New Zealand. Junior Barristers Functions Richmond Chambers in Auckland kindly hosted an event on 28 March for junior members and those interested in coming to the bar. My thanks to Council member Lara Steel for getting this initiative underway. Stout Street Chambers in Wellington also hosted a junior drinks function on 2 May. My thanks to Wellington Council member Tiho Mijatov for his help with arranging this. We are currently looking at the possibility of Bankside Chambers hosting a drinks event for juniors. I would encourage other chambers to consider doing the same. NZLS Culture Change Symposium Jenny Cooper QC, Maria Dew QC, Melissa Perkin and I attended the NZLS Culture and Systems Change Symposium in Wellington on 14 May. This meeting which was attended by a broad crosssection of the legal profession, was an opportunity to provide feedback to the NZLS Culture Change Taskforce, for which Jenny is the NZBA representative. Meeting with Te Hunga Rōia Māori o Aotearoa and Pacific Lawyers Association Jenny Cooper and I met with Marcia Murray, Co–President of Te Hunga Rōia, the day after the Culture Change Symposium on 15 May. We have also had another successful event hosted by Shortland Chambers with the Pacific Lawyers Association. We will be continuing to work to strengthen and develop our relationship with Te Hunga Rōia and the Pacific Lawyers Association. Inquiries List After consultation with the Solicitor General, I invited members interested in being considered for inquiry work to submit their CV and areas of practice. Over 100 members submitted CVs and these have been supplied to Crown Law, together with a list of areas of practice for each person who put their name and details forward. Melissa Perkin and Michael Webb met with Philip Griffiths, who heads the Government Legal Network (GLN) on 20 May. Part of their meeting addressed how NZBA members can raise their profile to be considered for briefing from government agencies. Melissa Perkin is investigating ways of making details of barristers and their practice areas more readily available for the GLN. Rules Committee My membership of the Rules Committee has been confirmed by the Chief Justice. The most recent meeting was on 17 June. I am still finding my feet and once I have mastered the Rules Committee’s current projects I will report back and seek input. I encourage any member who has a concern about any aspect of the Rules to write to me at president@nzbar.org.nz Our Committees We have included reports from some of our committees to give members an idea of the work that is being carried out. Since restructuring our committees, we have made it clear that we have high expectations that every member of the committee will contribute. I want to thank all of those who have taken on the responsibility and the extra work involved in committee activities. *Kate Davenport QC is the President of the New Zealand Bar Association. If you have any questions or comments about this column, please email Kate at President@nzbar.org.nz or our Executive Director, Melissa Perkin at melissa.perkin@nzbar.org.nz.
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Committee Business The NZBA recently reorganised and reconstituted its committees. The Bar Council has tasked these committees with forming work plans of what they want to achieve over the next year. Each committee reports on progress to each Council meeting.
The participants asked questions of a representative from the Ministry of Justice, who encouraged the group to prepare a list of design changes (not requiring a statutory change) for fast implementation. This work is underway. Recognising Access to Justice Contributions and Mentoring One of the issues for people working in the access to justice field, particularly delivering pro bono or legal aid services, is a lack of recognition of their contribution. Simon Foote is leading a group that is investigating the feasibility of an award to recognise the ongoing efforts of those working at the 'coalface' of legal aid and pro-bono legal services.
A key requirement of anyone who serves on a committee is that they actively participate in the work of the NZBA. This requires a commitment of time as well as experience. A summary of the recent activities of some of our committees follows. Access to Justice Working Group Maria Dew QC chairs the Access to Justice Working Group. Its other members include Clive Elliott QC, Frances Joychild QC, Simon Foote, Deborah Manning, Matthew Smith, Dr Bridgette Toy-Cronin and Michele Wilkinson-Smith. It has held two meetings and a related Stakeholders Group Meeting since its formation in April.
Another issue raised was the need for wellness support and advice for those who are undertaking this work. The Committee will ensure the provision of more information about the NZBA Bar Care scheme and Mentoring Programme, along with details of the Law Society’s new counselling service.
The Group’s work plan will focus on actively pursuing initiatives in the following areas:
Short Causes Procedure Working Group Our immediate past President, Clive Elliott QC, is heading a working group of senior barristers that is drafting a proposal for a Short Causes Procedure to be made available in the High Court.
a) Legal aid b) Pro/Low bono initiatives c) Court procedures d) Fees and Services
Clive contacted Mr Justice Birss of the High Court Chancery Division, who has worked on a Shorter Trials Scheme in the United Kingdom. In July 2018 this scheme was confirmed as a permanent option for High Court litigation in the UK.
The Working Group recognises that there must be concrete results. Consequently, it has set achievable goals within each of these areas that do not overreach the Association's available resources. The aim is to target matters that can be fixed within the existing system while recommending larger scale reforms for the future.
The goals of the UK scheme are to put in place strict timelines, reduced pleadings, the prompt listing of the case management conference, limited evidence and discovery and docketed judges.
Recent activities include: Legal aid Improvements: Maria Dew, Simon Foote and Deborah Manning recently participated in a Legal Aid Stakeholder Meeting with representatives from NZLS, Te Hunga Roia Māori o Aotearoa, Pacific Lawyers Association, Citizens Advice Bureau, and Community Law Centre.
The New Zealand proposal has similar aims. The Working Group met with the Chief High Court Judge on 16 May to discuss the proposal and was invited to provide a draft practice note for the Court to consider. This proposal will be the subject of a session at our 2019 conference. Hon. Justice Venning and Clive Elliott are participating in the panel discussion.
The Group is working to target immediate improvements in respect of 'low hanging fruit' items. These are process issues that don’t require legislative change.
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CONTACT THE WORKING GROUP Please send any comments or suggestions to Group's Secretariat representative: Jacqui Thompson, jacqui.thompson@nzbar.org.nz
Working with Te Hunga Rōia Māori Jenny Cooper QC and Kate Davenport QC met with Marcia Murray, Co-President of Te Hunga Rōia, the day after the Culture Change Symposium on 15 May. The two Associations would like to explore ways that we can work together in future.
Criminal Committee Sam Wimsett is chairing our Criminal Committee. The committee has held two meetings since its formation in April. The members are Sam, Jonathan Eaton QC, Stuart Grieve QC, Robert Lithgow QC, Matthew Goodwin, Nicolette Levy, Annabel Markham, Matthew Phelps, Simon Shamy, Todd Simmonds and Rob Stevens.
Working with Pacific Lawyers Association (PLA) The Training Committee recently invited the PLA to participate in its Cross-Examination Workshop and has reported back to the Diversity Committee that this was a successful initiative with benefits for both the PLA and the NZBA. This event demonstrated how we can create a culture of inclusion across the Association’s activities, providing a wider pool of talent.
Recent activities include: Formation of a work plan The Committee resolved that its work plan will focus on increasing the number of criminal practitioners attending the Annual Conference each year, working with the Training Committee to develop a programme for criminal practitioners, increasing member and bar awareness of what the Committee does, and increasing membership outside the main centres.
CONTACT THE COMMITTEE Please send any comments or suggestions to the Committee's Secretariat representative: Melissa Perkin, melissa.perkin@nzbar.org.nz. Law Reform Committee There have been no formal meetings of this committee. Law Reform matters usually arise in the context of subject-specific issues, and members are asked to contribute according to their expertise.
The Committee also recognised that a key role was to maintain and protect the rule of law, including the protection of fair trial rights. It has identified spokespeople who are working on providing public comment in response to topical issues, such as the proposed changes in respect of sexual violence prosecutions.
In separate Law Reform activities, the NZBA has been working on the following matters Anti-Money Laundering and Countering Financing of Terrorism Act 2009 – Response to Second Consultation Paper on Proposed Class Exemption to a Barrister (sole)
CONTACT THE WORKING GROUP Please send any comments or suggestions to the Committee's Secretariat representative: Jacqui Thompson, jacqui.thompson@nzbar.org.nz
Paul Radich QC and Dr Derek Johnston have provided a substantive response on behalf of the NZBA’s application for a class exemption for barristers sole. As part of the process, Paul and Derek have been liaising with NZLS on the response.
Diversity and Inclusion Committee The Diversity and Inclusion Committee is chaired by Jenny Cooper QC, and its members include James Farmer QC, Maria Dew QC, David Bigio QC, Karen Feint, Simon Foote, Lisa Hansen, Jane Meares, Simativa Perese, Lara Steel, Setareh Stienstra, Nura Taefi, Yvonne Wang, and Garry Williams.
Review of R v Fatu James Rapley QC and Esther Watt appeared on behalf of the NZBA and New Zealand Law Society as intervenors in the Court of Appeal on 16 and 17 April 2019 in R v Zhang. There were six appellants for this tariff judgment review of R v Fatu [2016] 2 NZLR 72. The Criminal Bar Association, Human Rights Commission, Drug Foundation, Te Hunga Roia Māori o Aotearoa (Māori Law Society) and ADLSI also appeared as intervenors. You can read an article on the case on page 12.
Meeting with NZLS Culture Change Symposium Kate Davenport QC, Jenny Cooper QC, Maria Dew QC and Executive Director, Melissa Perkin, attended the NZLS Culture and Systems Change Symposium in Wellington on 14th May. This meeting was attended by a broad cross-section of the legal profession. It was run to provide feedback to the NZLS Culture Change Taskforce on which Jenny is the NZBA representative.
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CONTACT THE COMMITTEE Please send any comments or suggestions to the Committee's Secretariat representative: Melissa Perkin, melissa.perkin@nzbar.org.nz.
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Membership Committee There have been no formal meetings for this committee. Junior Barristers Functions Richmond Chambers in Auckland kindly hosted an event for junior members and those interested in coming to the bar on 28 March. Lara Steel was responsible for organising this event. Stout Street Chambers in Wellington kindly hosted a junior drinks function on 2 May. Tiho Mijatov arranged this. Mentoring Our mentoring programme is ongoing, and we have had several applications in the last few months. We would encourage members to consider the benefits to both mentors and mentees and sign up for the scheme. CONTACT THE COMMITTEE Please send any comments or suggestions to the Committee's Secretariat representative: Melissa Perkin, melissa.perkin@nzbar.org.nz. Practice & Bar Care Committee There have been no formal meetings for this Committee. However, work has been continuing on wellness initiatives, including the recently launched MAS member benefit. See https:// www.nzbar.org.nz/MAS for more information. CONTACT THE COMMITTEE Please send any comments or suggestions to the Committee's Secretariat representative: Melissa Perkin, melissa.perkin@nzbar.org.nz. Promotion of the Bar Committee While there have been no formal meetings for this committee, there have been relevant activities. Resource Management: The Next Generation Networking Event for the Bar, Inhouse Counsel, Instructing Solicitors and Corporate Clients Auckland Resource Management barrister, Bronwyn Carruthers, chaired a session on 4 April that considered the reform of resource management law. The panel comprised Stephen Selwood, Chief Executive of Infrastructure New Zealand, RM barrister Martin Williams and Gary Taylor CNZM QSO of the Environmental Defence Society. This event was held at ANZ’s premises in Auckland and the NZBA provided the drinks and canapes.
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We hope to host another networking event later in the year. Inquiries List After consultation with the Solicitor-General, members interested in being considered for inquiry work were invited to submit their CV and areas of practice. We sent this list to Crown Law. There has been an excellent response with over 100 members submitting their CVs. Technology Sub-Committee The members of the Technology Committee are Dean Tobin (Chair), Clive Elliott QC, Anja Borchardt, Phillip Cornegé and Josh McBride. Work plan The Committee considers that its principal objective is to assist members with navigating the changing world of technological requirements and opportunities. This includes endeavouring to ensure that members have the opportunity to upskill themselves to take advantage of, or at least navigate, an increasingly technologically literate workplace. The Committee will liaise with the courts, particularly the High Court, to ensure that the courts can deliver, and members can use, electronic case books and the like. An important objective is to assist the Training Committee in delivering useful training. Planning is underway on a new event. CONTACT THE COMMITTEE Please send any comments or suggestions to Committee's Secretariat representative: Jacqui Thompson, jacqui.thompson@nzbar.org.nz Training and CPD Sub-Committee The Training Committee comprises Committee Chair, Chris Gudsell QC and Deputy Chair, James Rapley QC, along with committee members Angela Corry, Asishna Prasad, Damian Chesterman, Derek Johnston, Garry Williams, Phillip Cornegé, Lara Steel, Mike Lennard, Phil Shamy, Sarah Wroe, Shane Elliott, Stephanie Grieve and Yelena Yelavich. All members are expected to help organise or otherwise participate in training events. Traditionally this is a busy committee and the first half of this year has been no different, with members working on a range of activities.
Stepping Up Course The Training Committee received several comments on the content of the NZLS Stepping Up Course. Two members of the Committee prepared a report which concluded that a considerable amount of the content of the course was irrelevant to barristers and that other content was out of date.
Appellate Advocacy Workshop Our next workshop will be Mastering Appellate Advocacy and will be held at the Wellington High Court on 19 October 2019. The last time we offered this course was at the World Bar Conference in 2014 and it was a sell out. We are working with Crown Law on this workshop. We will again be providing a faculty of senior members of the profession, as well as sitting and reitired judges. We are fortunate to be joined by Ian Robertson SC, the head of the Australian Bar Association's Advocacy Training Council.
Chris Gudsell QC has since met representatives from CLE to discuss potential changes to the course. Cross-Examination Workshop The Mastering Advocacy programme is a skillsbased approach to training barristers and other litigators. Our approach is to deliver discrete modules on the various aspects of advocacy. The training is both practical and intensive. Our faculty consists of senior counsel and past and present members of the judiciary.
Refer to our website for details. Webinar programme We have offered webinars on a range of subjects in 2019 and they continue to be well received. Our next webinar will be on 13 August and covers expert evidence. The presenters are John Katz QC and Sarah Wroe.
In June 2019 we delivered the Cross-Examination Workshop at the Auckland High Court. We record our thanks to the Chief High Court Judge, Justice Venning, and the Auckland High Court Registrar, John Richardson.
Syllabus It has been two years since our last syllabus review. Accordingly, two members of the Training Committee are re-considering it. We would be interested in hearing from members about what they like to see included.
We are also grateful for the participation of members of the Public Defence Service, the Pacific Lawyers Association (PLA) and the support of PLA President, Tania Sharkey. Their participation made a significant contribution to the success of the workshop.
CONTACT THE COMMITTEE Please send any comments or suggestions to Committee's Secretariat representative: Jacqui Thompson, jacqui.thompson@nzbar.org.nz
The course was highly successful, and the feedback was excellent.
Hemi Arthur, Miranda Gray, James Rapley QC, Justice Davison and Tania Sharkey
Miranda Gray, Akesa Tagi, Tania Sharkey, Judge Andrea Manuel, Justice Davison and Hemi Arthur
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Sentencing for Methamphetamine Offending Zhang & Ors v R Esther Watt*
The NZBA was recently invited to intervene in a case before the Court of Appeal on guidelines for methamphetamine sentencing. NZBA Council member, Esther Watt, appeared with lead counsel, James Rapley QC. At a two day hearing in April, a full court of the Court of Appeal heard submissions on whether the guideline sentencing decision for methamphetamine offending, R v Fatu [2006] 2 NZLR 72, should be revisited. The New Zealand Bar Association (NZBA), the New Zealand Law Society (NZLS) Te Hunga Rōia Māori o Aotearoa, the Human Rights Commission, the Criminal Bar Association, the Public Defence Service and the New Zealand Drug Foundation were all granted leave to intervene. Methamphetamine is classified as a class A controlled drug. The maximum sentence for possession, supply, manufacture, or importation of methamphetamine is life imprisonment. Fatu was decided shortly after methamphetamine was reclassified from a class B to a class A drug. Except for a very limited category of cases,1 it sets four bands for sentencing based solely on the quantity of methamphetamine involved in the offending. Band one applies to low-level offending, involving less than 5g of methamphetamine. It provides for a starting point of two years’ to four years’ imprisonment for sale or supply.2 The highest band, band four, applies to “very large commercial quantities” of 500 g or more. The starting point for band four supply or sale is ten years’ to life imprisonment.3 As a general rule, a manufacturer is treated as being more culpable than an importer, and an importer as more culpable than a supplier. Starting points are adjusted accordingly.4 Where the offender fits within a particular band depends on both the quantity of
methamphetamine concerned and the role played by the offender.5 Strictly read, however, the Fatu decision does not allow a sentencing judge to move outside the band indicated by the quantity of methamphetamine involved. Additionally, in serious cases of methamphetamine offending minimum periods of imprisonment are almost invariably imposed.6 Since Fatu was decided, the Courts have given significant weight to the purpose of deterrence in sentencing for commercial drug dealing. In Jarden v R [2008] NZSC 69, the Supreme Court emphasised that when sentencing for commercial drug dealing,7 the offender’s personal circumstances are subordinate to the importance of deterrence. Fatu was a judicial response to the reclassification of methamphetamine. At the time Fatu was decided, a large proportion of methamphetamine supplied to the New Zealand market was manufactured domestically, and the quantities involved were lower. As the scale and nature of the offending have developed in the intervening years, the application of Fatu has arguably led to inflexibility in sentencing and a lack of fit. The Court of Appeal decided to revisit this guideline judgment. It indicated to the parties that in reconsidering Fatu it wished to address the following issues: 1. the weight that is given to the offender’s role and the quantity when assessing culpability; 2. the relevance of an offender’s personal circumstances, and in particular, addiction issues; 3. The approach to imposing minimum periods of imprisonment for this offending.
The exception being cases involving supply or importation of a small quantity Fatu at [34](a). 3 At [34](b). 4 At [22]. Starting points for importation are to be lifted 10 to 20 per cent above those for sale or supply, and a further 10 to 20 per cent for manufacture. 5 At [31]. 6 R v Wong [2009] NZCA 332 at [21]; R v Anslow CA182/05 18 November 2005 at [27]. 7 Section 8 Sentencing Act 2002. 1 2
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The Court considered six sentence appeals with a range of offending and offenders.
The appellants and the interveners, including the NZBA and the NZLS, submitted that in the light of the expert evidence, the emphasis on deterrence in sentencing for methamphetamine should be abandoned. The Crown appeared to accept in oral submissions that deterrence should have only limited relevance.
A significant amount of evidence was presented by police experts, criminologists, cultural experts, psychiatrists and a professor of neuropsychopharmacology, David Nutt. The evidence showed that methamphetamine offending has changed since the Fatu decision. Importation, rather than manufacture, is now the main means of supply of methamphetamine to the New Zealand market. Methamphetamine is arriving in New Zealand in large quantities, meaning that the number of offenders captured by the top sentencing band has significantly increased. Several expert reports addressed the deterrent effect of imposing long sentences of imprisonment. The expert evidence filed by the Crown stated that while the results of empirical evidence are not “overwhelmingly conclusive”, the current state of knowledge in the field of criminology is that there is very little empirical evidence to support the view that increasing sentence severity has a general (to other potential offenders) or specific (to that particular offender) deterrent effect.
The evidence presented in Zhang raises an interesting question of principle regarding the justifications for imposing lengthy sentences of imprisonment. If deterrence does not work, then such sentences must be justified based on other sentencing purposes under the Act, such as retribution, accountability, community protection, and denunciation. To the extent that deterrence does not work, denunciation and accountability are arguably retributive. If that is right, the basis for imposing lengthy sentences of imprisonment becomes much narrower.
In summary, the key findings of the empirical research are as follows: (a) The evidence for imprisonment as a specific deterrent is clear: it does not work; (b) The existence of the criminal justice system per se has some general deterrent effect. In societies where criminal conduct goes unpunished, crime has been shown to increase. (c) Certainty of sanction appears to be much more important than the perceived severity of sanction in creating this general deterrent effect; (d) Lengthening the sentence of imprisonment applicable to a given crime is not likely to achieve a significant deterrent effect in respect of that crime; (e) There are several factors which make drug offenders even less susceptible to general deterrence than other types of offender; (f) It is unlikely that enterprise drug offenders are likely to be deterred by longer sentences of imprisonment. Although they may be more likely than other offenders to rationally assess the costs and benefits of offending, the likelihood of them being caught is far lower. 8
The Court’s consideration of the lack of empirical support for deterrence as a purpose of sentencing has important implications for sentencing for commercial drug dealing, and potentially sentencing more generally. As Palmer J observed recently in R v Wellington [2018] NZHC 2196 at [18]: “the principle of deterrence on its own does not… justify a longer sentence if there is nothing to suggest that it would deter.”
The NZBA and NZLS, together with other appellants and interveners, submitted that the fundamental premise of Fatu that the quantity of methamphetamine is a proxy for culpability is overly simplistic and should be revisited. The focus on quantity ignores that in some cases, where the offender is a courier or a catcher, he or she may have no control over or knowledge of the quantity of drug involved in the offending. In such cases, quantity is not a reliable indicator of culpability in the sense of moral blameworthiness. In addition, in certain cases, the role of the offender will be a more significant indicator of culpability than quantity; for example, where a gang member supplies a small amount of methamphetamine to a single mother to addict her so that she deals larger quantities for the gang.8 Finally, quantity is not a reliable indicator of harm. In cases of importation or manufacture, the harm is potential, rather than actual. The harm caused by a gram of methamphetamine may, for example, vary significantly depending on whether
An affidavit from the police National Organised Crime Group stated that this is actually happening.
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it is supplied to a pregnant, vulnerable consumer or a high functioning recreational user.
approach proposed by the NZBA and NZLS was endorsed by the Human Rights Commission.
The Sentencing Act provides that consistency in sentencing should be sought, taking into account all of the circumstances of the offence and the offender.9 The NZBA and NZLS submitted that a multi-factorial approach, similar to that taken in other guideline sentencing decisions such as Taueki,10 Mako11 and R v AM,12 is to be preferred. The Court should consider a range of culpability factors relevant to the offence to identify the appropriate starting point, and then adjust the sentence from that starting point if required based on the aggravating and mitigating factors of the offending.
The Criminal Bar Association and Public Defence Service submitted that the Court should adopt a sentencing model similar to the UK Sentencing Guidelines. This involves consideration of both role and quantity when setting a starting point for sentencing. In the NZBA and NZLS’s submission, this approach would be a significant improvement, but the provision of a quadrant retains some risk of the inflexibility that has arisen from the application of Fatu. The Crown accepted that the personal circumstances of an offender should be relevant, and that minimum periods of imprisonment should not automatically be imposed in respect of sentences of nine years’ imprisonment or more. However, the Crown’s position is that the bands set in Fatu remain appropriate.
Relevant culpability factors should include the quantity of methamphetamine concerned, the role of the offender, commerciality of the offending, links to organised crime and exploitation of others. It was argued that personal circumstances such as addiction, vulnerability, and cultural factors should be taken into account in assessing role and culpability.
The Court reserved its decision. The forthcoming judgment appears likely to be significant in the development of New Zealand sentencing law. * Esther Watt is a barrister at Stout Street Chambers, Wellington. She is a member of the NZBA Council. More information about Esther is available at https://www. stoutstreet.co.nz/esther-watt/
The guideline decision should expressly provide flexibility for judges to move between the bands to reflect the particular circumstances of the offending and the offender. The multi-factorial
Section 8(e) of the Sentencing Act 2002; see also Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 R v Taueki [2005] 3 NZLR 372, (2005) 21 CRNZ 769 (CA). 11 R v Mako [2000] 2 NZLR 170, (2000) 17 CRNZ 272 (CA). 12 R v AM [2010] 2 NZLR 750, (2010) 24 CRNZ 540 (CA). 9
10
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Terrorism as an International Legal Concept Sir David Baragwanath KNZM QC*
In 1937 the International Convention for the Prevention and Punishment of Terrorism was proposed under the auspices of the League of Nations. Some 80 years later, we have yet to give effect to the Convention. At the request of the NZBA, Sir David Baragwanath KNZM QC outlines the issues and the need for an overhaul of international law relating to terrorism. The meanings of terrorism 'Terrorism' is a difficult term. Because it has at least 250 different senses, leading experts have said there could be no crime of 'terrorism' under international law. Those experts include the distinguished and universally respected former President of the International Court of Justice, Baroness Rosalyn Higgins QC, who stated in 2003:
The term “terrorism” has been used to describe the ending of 51 innocent lives and the trauma of gunshot injuries to many others in Christchurch on 15 March. That graphic word has real legal value, but unless used with special care can present problems. This comment is confined to what as a matter of law might be elements of an international crime alleging 'terrorist' activity. Since the rule of law both imposes the presumption of innocence and insists that what is said out of court will avoid any threat to the fairness of trial, at this stage I make no comment on the facts. Whatever is the present case, the ease of modern travel and communications leaves few places inaccessible to terrorism: "By creating a global communications network, we have enabled the creation of a global terrorist network.”1 Since we now pay at least lip service to the equal value of every life, the law should afford protection against such threat not only to New Zealanders but internationally. So why after 80 years has no effect been given to the 1937 International Convention for the Prevention and Punishment of Terrorism proposed under the auspices of the League of Nations?
"Terrorism is a term without legal significance … The term is at once a shorthand to allude to a variety of problems with some common elements, and a method of indicating community condemnation for the conduct concerned."2 In 2006 Professor Ben Saul, the author of the leading text on defining terrorism in international law, considered: "Close analysis of customary international law … confirms that there is no generic international crime or distinct legal concept of terrorism."3 In its Interlocutory Decision of 16 February 2011 to which I was party, the Appeals Chamber of the Special Tribunal for Lebanon, in interpreting the definition of the domestic criminal code of Lebanon, applied the presumption that it conformed with Lebanon’s international obligations, and reached a contrary conclusion:4 85 … a customary rule of international law regarding the international crime of terrorism, at least in time of peace, has indeed emerged. This customary rule requires the following three key elements:
I think there are three major reasons. One is uncertainty as to what is meant by 'terrorism'. The second is a trio of 'sticking points' on which international opinion is divided. A third is a simple reluctance to be exposed to an international trial for alleged terrorist conduct.
[1] the perpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act;
Philip Bobbitt Terror and Consent (Allen Lane 2008) p 401 “The general international law of terrorism” in Terrorism and International Law (eds Rosalyn Higgins and Maurice Florey) (Routledge 2003) 28 Defining terrorism in international law (Oxford 2006, paperback 2008) 8. He has since written: …it is no longer unreasonable to speak of a discernible body of ‘counter-terrorism law’, even if such regime may not be as unified, centralized or coherent as some others. [There has been] a solid and irrepressible accretion of international norms and practices on terrorism, parented or serviced by competent institutions, and recognised as a regime by relevant actors in the system (including UN bodies, national institutions, NGOs, practitioners, and scholars. … [It] is distinctively normative (not a purely political project), systemic, and institutionalised. It is … here to stay … - and builds on much older experiences of terrorism in international law. (Research Handbook on International Law and Terrorism (ed Ben Saul) (Edward Elgar 2014) x-xi 4 STL Casebook 2011 29, 87. 1 2
3
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[2] the intent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it; [3] when the act involves a transnational element.
“a situation in which any person is threatening, causing, or attempting to cause— (a) the death of, or serious injury or serious harm to, any person or persons; or (b) the destruction of, or serious damage or serious injury to – …. [a range of protected interests] to coerce, deter, or intimidate— (c) the Government of New Zealand …; or
Our conclusion closely followed that of the 1937 International Convention for the Prevention and Punishment of Terrorism.
(d) the Government of any other country…; or (e) any body or group of persons, whether inside or outside New Zealand,— for the purpose of furthering, outside New Zealand, any political aim.”
A sensible different convention prevents me from either arguing that we were right or acknowledging we were wrong.5 But it does not stifle discussion of the options. One is to ignore 'terrorism' as a crime. But that is to ignore conduct that: (1) can be defined to meet any reasonable test of specificity; (2) once defined, is distinctly different from what is covered by other crimes; (3) in the wake of 9/11, the Security Council has required all UN Member States to criminalise.6 A second option is to tackle head-on the objections that some 250 senses of 'terrorism' invalidate the term as sufficiently specific to constitute a crime. Certainly, the well-settled 'principle of legality', familiar to both common law and civil law, would be infringed if the broad term 'terrorism' were used without definition. But as leading jurists have shown,7 there is no such thing as a legal concept outside the rules that define it. The 'lack of specificity' objection views the issue upside down: it is for the law to stipulate with precision what it means by 'terrorism'. The New Zealand legislature made a fair attempt at such a definition before the attacks of September 11 2001: New Zealand’s International Terrorism (Emergency Powers) Act 1987, still in force, authorises empowerment of the Police to take action to deal with an 'international terrorist emergency'. That is defined as:
Sticking points The 1987 New Zealand definition, however, has limitations. It does not deal specifically with the fact that its breadth potentially embraces each of the three 'sticking points' noted in the International Bar Association Task Force’s Report Terrorism and International Law (2011).8 The 1937 Report took care not to extend its definition to embrace every kind of conduct that could be described as terrorism. In particular, it left others with the task of dealing with those sticking points – categories which raise legitimate issues of policy on which States have to date been unable to agree, including whether: •
the convention should adopt a military (armed conflict) or police (law enforcement) approach to counter-terrorism;
•
a definition of “terrorism” should include State terrorism and conduct by State armed forces;
•
armed resistance to an occupying regime or colonial or alien domination should be included or excluded.9
But it is open to a law-maker – including in domestic law the New Zealand Parliament, or at international law the authors of a multilateral treaty, or the Security Council, or a court as later discussed – either to form and give effect to an opinion on these or to exclude them from the legislation.
The Court of Appeal of England and Wales agreed with the decision of the STL Appeals Chamber: R v Gul [2012] EWCA Crim 280, [2012] 1 WLR 3432. On appeal at [2013] UKSC 64, [2014] AC 1260 a seven judge chamber of the UK Supreme Court adhered to an inconsistent decision of its own, which was expressed cautiously - “there is as yet no internationally agreed definition of terrorism” (emphasis added): Al-Sirri v Secretary of State for the Home Department [[2012] UKSC 54, [2013] 1 AC 745 at [37]. 6 Discussed below. 7 They include Jeremy Bentham, Herbert Hart, the New Zealander Donald Harris, and Lord Hoffmann in a New Zealand appeal. See Hart “Definition and theory in jurisprudence”(11954) 70 LQR 37 citing Bentham; Harris “The Concept of Possession in English Law” in Oxford Essays in Jurisprudence (Oxford 1961) 69-70; and Meridian Global Funds Management Asia Ltd v The Securities Commission [1995] UKPC 5, [1995] 2 AC 500 para 10: “a reference to a company "as such" might suggest that there is something out there called the company of which one can meaningfully say that it can or cannot do something. There is in fact no such thing as the company as such, no ding an sich, only the applicable rules. To say that a company cannot do something means only that there is no one whose doing of that act would, under the applicable rules of attribution, count as an act of the company.” 8 (ed. Richard Goldstone et al, Oxford 2011) 9 At p. 2 of Goldstone. 5
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Exposure to international criminal liability Embraced to a degree by the 1987 legislation, the importance of this topic is seen in the different context of the international Torture Convention - Multilateral Convention against torture and other cruel, inhuman or degrading treatment or punishment - adopted by the General Assembly of the United Nations on 10 December 1984. No State is compelled to become a party to the Convention, but 164 of the 193 Members of the United Nations have done so.
But a New Zealand Solicitor-General has identified significant deficiencies in the New Zealand anti-terror laws. I do not enter that debate. Comment upon it can be left to the current Government Review, the Royal Commission of Inquiry and the Courts in pending proceedings. International law I have touched on New Zealand’s 1987 response. More is required internationally. International law lacks a true legislative equivalent to Montesquieu’s third – legislative – limb of Government. Article 38(1) of the Statute of the International Court of Justice states:
The decision of the International Court of Justice in the case concerning Questions relating to the Obligation to Prosecute or Extradite ICJ Reports 2012 p 422 demonstrates the Torture Convention’s efficacy. The Court held: (1) that Belgium as a party to the Convention had standing to bring proceedings for its enforcement; (2) that Senegal, as the State in which the alleged offender was present, must either prosecute or extradite him for trial. In the event, the accused was tried and convicted of crimes against humanity, war crimes and torture by the Extraordinary African Chambers in the Senegalese court system and sentenced to life in prison.
Article 38 1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:
Creating terrorism law Both domestic and international law require consideration. Domestic law The bulk of New Zealand domestic law on the topic is now in the Terrorism Suppression Act 2002 enacted in response to, particularly, Resolution 1373 (2001) of the Security Council of which the primary context was the attacks in New York, Washington and Pennsylvania on 11 September 2001.
b. international custom, as evidence of a general practice accepted as law;
c. the general principles of law recognised by civilised nations;
d. […] judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.
• • • •
ensure that any person who participates in the financing, planning, preparation or perpetration of terrorist acts or in supporting terrorist acts is brought to justice and that terrorist acts are established as serious criminal offences in domestic laws and regulations and that the punishment duly reflects the seriousness of such terrorist acts.
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a. international conventions, whether general or particular, establishing rules expressly recognised by the contesting states;
There are, therefore, the four stipulated means of creating international law:
The Security Council of the United Nations has the duty under Article 24 and the power under Chapter VII of the UN Charter to take action to maintain or restore international peace and security. It resolved that all States should, inter alia: • take the necessary steps to prevent the commission of terrorist acts; •
convention (or treaty) custom accepted as law recognised general principles of law (“civilised” is obsolete) adjudication and opinions of experts.
President Yusuf of the International Court of Justice has advised:
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"Happily, ... there are some international lawyers who … recognise the ephemeral nature of legal rules. They recognise that the rules exist only because and for the benefit of the society that they serve. They recognise that rules evolve, grow, fall into desuetude because of the changing needs of society.
Most importantly, they recognise that it is their job to identify, propose, and effect these changes in practice. … [T]heory and practice are to a certain extent indissoluble: they are simply two manifestations of our personality."10 Ideally, there would be first a multipartite convention, perhaps adopting the narrow 1937 definition of an international crime of terrorism, either dealing with the three sticking points or, more probably, excluding them to secure the agreement that has been unattainable for eight decades. Alternatively, there could be a Security Council Resolution under Chapter VII of the UN Charter creating such crime. In the event of a veto, there could perhaps be an application by the General Assembly under Article 96 of the Charter to the International Court of Justice for answers to questions of international law, as seen in the Wall Case and the recent Chagos Islands decision. Several Security Council resolutions have endorsed each of the three elements proposed in the 1937 Report. Whether the ICJ would exercise discretion to answer such questions would remain to be seen. There is indeed scope for a domestic court to pronounce on and give effect to public international law. Lord Mance, the recently retired Deputy-President of the UK Supreme Court, has written as to the judicial role in developing and even establishing customary international law:11
in identifying, developing and expressing principles of customary international law."11 In New Zealand however, as in England and Wales, a criminal court could be expected to require domestic legislation before exercising criminal jurisdiction. Modern common law has rejected the view adopted in Shaw v DPP [1962] AC 220 where Lord Reid had dissented from the majority decision of the House of Lords constituting themselves custodes morum and creating a new crime of publishing particulars of London prostitutes. With political experience as former Solicitor-General for Scotland he wrote: "Parliament is the proper place, and I am firmly of opinion the only proper place … to determine how far the law ought to punish immoral acts which are not done in the face of the public." He declined to apply principles formulated by Lord Mansfield two centuries earlier, before the Parliament Acts. English law later adopted his opinion. In R v Margaret Jones [2006] UKHL 13, [2007] 1 AC 136, the House of Lords held that the days had gone by when the courts exercised a judicial power to create new offences without Parliamentary sanction. New Zealand’s preference to meet its international legal obligations by Parliamentary legislation is seen in our 1987 Act and the Crimes of Torture Act 1989 responding to the Torture Convention, Article 3 of which requires it to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”.
"148 …The role of domestic courts in developing (or … even establishing) a rule of customary international law should not be undervalued. This subject was not the object of detailed examination before us, and would merit this in any future case where the point was significant. But the intermeshing of domestic and international law issues and law has been increasingly evident in recent years. Just as States answer for domestic courts in international law, so it is possible to regard at least some domestic court decisions as elements of the practice of States, or as ways through which States may express their opinio juris regarding the rules of international law. The underlying thinking is that domestic courts have a certain competence and role
New Zealand has always understood only too well the consequences to members of all its faiths of failure to maintain peace. In World War I, the NZ military casualty rate was 58%. More familiar to my generation is WWII’s highest combat death rate in the Commonwealth – including the United Kingdom: 6,684 dead per million. New Zealand Law Society libraries have a historical record of the sacrifices of their members. Colleagues from Arab communities have expressed generous appreciation of the respect conveyed to our fellow New Zealanders at this
Address in honour of Antonio Cassese, Florence 2017. It is paralleled in respect of procedure by Jeffery Golden’s “Call for Innovation” in International Financial Disputes: Arbitration and Mediation (ed Jeffrey Golden and Carolyn Lamm) (Oxford 2015) 365 11 in Al-Waheed v Ministry of Defence [2017] UKSC 2, drawing on Lauterpacht’s earlier article “Decisions of Municipal Courts as a Source of International Law”10 British Yearbook of International Law (1929) 65-95 and later writings, especially by Sir Michael Wood. 10
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time. We now need to add to that the wise and determined exercise of this profession’s skills to avoid or minimise recurrence.
domestic and international law, are responsible for getting both of them into proper shape. We owe it to our compatriots and successors to provide an effective response to foreseeable challenges to the peace of those who choose to make their life among us, and beyond. The international law of terrorism is long overdue for such treatment.
The 3rd century Lebanese Ulpian was described by his biographer, the late Tony Honoré, as “Pioneer of Human Rights” during a time of slavery.12 Voltaire wrote of fraternity among all races.13 The French jurist Alain Supiot contends for “circles of solidarity”.14 Whichever label is preferred, in our democratic age those of our profession, especially if over military age, with access to the means of reforming and updating 12 13 14
* Sir David Baragwanath is a former judge of the Court of Appeal and an international jurist who has served as President of the United Nations Special Tribunal for Lebanon between 2011 and 2015. He is currently an appellate judge of the Special Tribunal for Lebanon.
Ulpian : Pioneer of Human Rights (2 ed) (Oxford 2002). Traité sur la Tolérance GF-Flammarion 1989 ch XXI. “Alain Supiot L’Esprit des lois”Le Monde 30 April 2019 p27.
The Government Legal Network Rachel Grant*
With some 1200 lawyers working in 30 government departments and 33 Crown entities, the New Zealand Government has the largest legal team in the country. Rachel Grant explains how the formation of the Government Legal Network is assisting in the delivery of better legal services to the Crown. The Government Legal Network (GLN) is a collaborative initiative of departmental Chief Legal Advisors and the Principal Law Officers (SolicitorGeneral and AttorneyGeneral). Formed some six years ago, the GLN was born out of a desire for improved collaboration between departmental legal teams and better leveraging of resources, while retaining the specialisation and independence of the departmental model of Crown legal services. Legal teams in the public sector range in size and structure, from a single lawyer at Statistics NZ, to numerous teams at MBIE providing specialist advice and representation. These teams advise on a wide range of government legal issues: from prosecutions, contracts and employment, to policy development and statutory reform. The GLN’s purpose is to provide high quality legal advice, services and value to the Crown. It does so through a variety of programmes and initiatives for government lawyers, driven by a small team based in the Crown Law Office.
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One simple example of the value of a networked approach to government legal services has been the creation GLN practice groups. Eighteen practice groups canvas a wide range of legal subject matters – from Treaty of Waitangi, to Property and Construction, to the Border Sector. Practice groups are an opportunity for lawyers from a number of government departments to meet regularly for seminars and round-table discussions on topical issues in a specific field. While GLN events are generally closed to nonmembers, practice group events are sometimes hosted by Government panel law firms, and external lawyers may be also invited to present to a group on an area of expertise. A further benefit of the GLN has been the emergence of a system response to Crown legal risk. Chief Legal Advisors meet regularly to discuss emerging risks and trends, and collectively report to the Attorney-General on significant legal risks. Flexibility in the allocation of legal capability and capacity has also been enhanced. Secondments between departments are now commonplace, with lawyers 'filling gaps' for anything from two weeks to two years. Improved oversight of the network also means that resources can be swiftly deployed in times of high demand or national
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emergency, such as during the Christchurch earthquakes. Professional development and career progression have been improved through a Legal Leaders practice group, and GLN events such as an ‘Introduction to Being a Government Lawyer’ course and the annual Lawyers in Government conference. A mentoring programme and 'New to Government' practice group have recently been created to support government lawyers in their first few years of practice. The creation of the GLN has not removed the need for external expertise and resources. However, while briefing out of legal advice and representation is common across the network, certain matters must still be referred to the Crown Law Office. Crown Law is a government department led by the Solicitor-General, who also acts as the head of the Government's legal profession. Crown Law has more than 70 legal staff and a similar number of support staff. Its legal work is structured around three legal groups (the Attorney-General’s Group, Crown Legal Risk Group and Criminal Group), each led by a Deputy Solicitor-General. The Cabinet Directions for the Conduct of Crown Legal Business 2016 stipulate those legal services that are to be provided by the SolicitorGeneral, Crown Law Office and Crown Solicitors and those that departments may refer to external
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lawyers. The practical effect of the Cabinet Directions is that departments can generally decide the legal work they wish to brief out to external counsel, unless it is a “core Crown legal matter”, which must be referred to Crown Law. The Solicitor-General may decide to brief out a core Crown legal matter. This normally only occurs when there is a lack of expertise or capacity within Crown Law. If briefing out occurs, the Solicitor-General retains oversight and may direct the manner in which the legal services are to be provided. Deputy Solicitors-General have delegated authority to brief Queen’s Counsel, barristers or specific lawyers within legal firms. When briefing out to private lawyers, government departments must ensure that the best advice and representation is obtained in a fair and transparent manner, while achieving value for money. Crown Law has also signed up to the Law Society and NZBA’s Gender Equitable Engagement and Instruction Policy. More information on the Government Legal Network can be found on our website – www.gln.govt.nz. Rachel Grant is a Senior Advisor in the Government Legal Network team at Crown Law. The NZBA recently supplied Crown Law with a list of barristers interested in working on commissions of inquiry. For more information about the Inquiries List, email Melissa Perkin at melissa.perkin@nzbar.org.nz
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The Conference Man An Interview with Simon Foote* Some people become indelibly associated with events: Graham Norton and the Eurovision contest, James Corden and just about any award show, and on a more local basis, the NZBA’s own Simon Foote and our Annual Conference.
While CPD is available for most of the conference, it is not a training activity and there is no cross-over between the Conference and the Training Committees. What the Conference does instead is to allow the delegates to connect at a very fundamental level with the significant issues in their profession. And this does happen. “People tell me they have thought about issues that they don’t normally get the opportunity to consider on a day-to-day basis,” says Foote.
Foote has been running our conferences since 2015, although he first became involved as a conference committee member in 2014. That year the NZBA was hosting the World Bar Conference in Queenstown. He volunteered to help with this because he has a strong international component in his practice. He felt he could contribute to the conference because of this.
A consistent theme in the post-conference feedback is that delegates enjoy the strong sense of collegiality at NZBA conferences. Foote and his team consciously promote this aspect by scheduling a range of social activities at each conference. In the past delegates have chosen from options that included golf 'tournaments', bungee jumping, kayaking, wine tasting or just wandering around gardens.
Foote immensely enjoyed being part of the organising team. “Essentially, you get to think about overarching issues. But you also get to meet fascinating people, and you join with them to produce a great conference. If it is successful, there is a very real sense of satisfaction – a sense of accomplishment.”
Although combining social activities with a conference is not unusual overseas, Foote says he was initially sceptical about the proposal to introduce them. Certainly, from an organisational point of view, they significantly increase the workload. Foote was worried that delegates might think they were a bit forced.
Asked if there is any truth to the rumour that he comes back each year because he is just a sucker for punishment, Foote laughs and says that for him, this activity is not a chore. He says there isn’t a lot that troubles him, although there are always challenges. He genuinely enjoys mixing with people at the conferences. Foote quickly notes that he doesn’t have to worry about the admin side of the conference as Executive Director, Melissa Perkin, and NZBA Administrator, Lisa Mills, are looking after this (with the help this year of Camilla Gray of the Australian Bar Association and conference organiser, Nicky Remkes).
“But I’m very happy to say I was wrong,” he says. “People have really enjoyed them as they are an opportunity to mix at something other than a drinks session. You build better bonds because you chose that activity and that means you’ve got something in common with those people who also chose that activity.”
Asked about the key to a successful conference, Foote replies that you need to provide engaging speakers who interest and inspire the attendees. He emphasises that you also must provide an opportunity for delegates to engage with the topics. Added to this, Foote says you need an atmosphere where people can meet new people and catch up with old friends and colleagues. “They should come away feeling reinvigorated about their profession.”
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At the formal dinner in 2015, Foote himself participated in a highly entertaining comedy debate at the formal dinner. After that Conference, one Judge has taken to referring to Foote as The Debater. Capitals intended. This year, Foote is taking on a new challenge in helping to organise a joint conference with the Australian Bar Association. “Running a transTasman conference has been an objective of the NZBA for some time now, particularly as a means of fostering closer trans-Tasman relations with the ABA,” he explains. “Having a joint conference is part of achieving that objective. For some time now we have sent the President or other Council representatives to bench and bar dinners and joint training exercises with the
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Australians. The conference is a natural extension of this relationship.” Foote didn’t have any difficulties in coming up with an initial draft programme for the organising committee. He points out that New Zealand and Australia share a lot of the same traditions in their legal systems, including a concern for the 'big ticket' issues such as access to justice, indigenous rights and the art of advocacy. There are also common topical themes around the culture of the bar, the relationship between the profession and the media, and importantly, the pressures in both jurisdictions to amend civil procedure rules to create greater efficiencies in court processes. Other topics are a direct response to current trends, such as the proliferation of inquiries on both sides of the Tasman in recent years, these having become a significant part of the practice of many more barristers. The point is, says Foote, that our commonalities and our differences are worth celebrating in and of themselves. There is an opportunity at a joint conference like this to learn what is being done in the two countries about all these issues. “We wanted to learn from each other,” he continues, “and these subjects appeared to be “topical” and ripe for discussion in a way that might achieve some synergy. It wasn’t all that difficult to come up with them. As a result, we have been able to get great speakers from both sides of the Tasman to address them.” Some of the issues, such as access to justice and the culture of the bar, including sexual harassment, have been getting a lot of coverage of late. But Foote emphasises they are topics that both Bar Associations have an obligation to explore. “The reason we come back to them is that they are so important. It is all very well having a session and at a conference about these issues, but you won’t solve anything at one conference. What you can do is make a difference incrementally by continuing to come back to these topics. You have to keep the dialogue going.” Foote describes this process as providing the discipline for people to make actual progress. For example, the NZBA reports to its members each year about the progress on access to justice that it has made the year before. That has been in place since 2015. “In that way, the conference works to some degree as a mechanism for accountability to ensure that we do something and don’t just get together every year and talk about it,” says Foote. As Foote observes, culture and access to justice issues will never be solved entirely – there will
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Simon Foote - 2015 Conference Debate
always be a need for improvements. But these big ticket issues are part of the raison d’être of both Bar Associations, and they need to continue to discuss them and improve in these areas. “It keeps these issues at the forefront for the Associations’ activities and highlights them for members who may not engage with them during the year, ” Foote says. Asked about the indigenous rights session, Foote admits that he is no expert on indigenous rights but that everybody knows the challenges that both countries face. He suggests that the indigenous people of Australia have a very different history to those of New Zealand, but both cultures have faced immense struggles as a result of European colonisation over the last 200 years. Foote believes the sessions seems like a very important and interesting discussion to have at this time. So, what is Foote looking forward to at this year’s Conference? The answer is, of course, everything. But for him, the great thing about conferences is that he is so often surprised by who stands out as a speaker. He looks forward to the surprise every year. He has mentally penned in Rowena Orr QC, who was senior counsel assisting the Financial Services Royal Commission in Australia, Tony McAvoy SC in the indigenous rights session and Matthew Howard SC on the culture of the bar issues as do not miss sessions. And of course, he says he is fascinated to hear from Dr Ann Aly, the first Federal Australian Muslim MP and a professor specialising in counter-terrorism, who has what Foote describes as an extraordinary life story, having worked as a professor, academic and practitioner in counter-terrorism and countering violent extremism. This session, he believes, will be very timely for both Australia and New Zealand. One thing is for sure, given the programme and the passion that all on the conference committee have put into this year’s conference, it is difficult to see how it will be topped next year. And the good news is that the debate will be back at this year's gala dinner, with the Australians fielding one team and the New Zealanders another.
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Friday 9.00am – 9.15am
Welcome Kate Davenport QC and Jennifer Batrouney QC
9.15am – 9.45am
Sponsors’ Introduction Matt Howard SC (ABA) and David O’Neill (NZBA)
9.45am – 10.00am Attorney-General Hon. David Parker 10.00am – 10.30am Keynote Speaker - Chief Justice of New Zealand, Rt. Hon. Dame Helen Winkelmann 11.00am – 12.00pm Appellate advocacy for criminal, commercial and civil advocates Gabrielle Bashir SC (Chair), Hon. Justice Richard Niall, Hon. Justice David Goddard, Fiona Guy Kidd QC 12.00pm – 12.45pm Keynote Speaker - Dr Anne Aly 1.45pm – 2.45pm
Advocacy in inquiries Aaron Martin (Chair), Simon Mount QC, Rowena Orr QC, Mary Scholtens QC
2.45pm – 3.30pm Indigenous rights Karen Feint (Chair), Hon. Justice Christian Whata, Tony McAvoy SC, Simeon Beckett 4.00pm – 5.15pm Harassment and the culture of the bar Jenny Cooper QC (Chair), Kate Davenport QC, Matthew Howard SC, Kathryn Beck, Kieran Pender (IBA) 5.20pm – 5.45pm NZBA AGM 5.45pm – 6.45pm Happy Hour – QT Hotel
Saturday 8.30am – 9.30am The Rights, responsibilities and role of the media in criminal justice Garry Williams (Chair), Jonathan Eaton QC, Cate Brett, Marie Mills 9.30am – 10.15 am Stream A - Initiatives for greater efficiency in civil procedure Andrew Skelton (Chair), Hon. Justice Sue Brown, Hon. Justice Geoffrey Venning, Clive Elliott QC 9.30am – 10.15am Stream B - What criminal lawyers can teach civil litigators Peter Callaghan SC (Chair), Hon. Justice Michael Corboy, Marie Dyhrberg QC, Ken Archer 10.45am – 12.00pm The America’s Cup – action on the water and in the courts Dr James Farmer QC and Dr Hamish Ross Afternoon 6.15pm onwards
Optional activities
Formal Gala dinner and debate 23 www.nzbar.org.nz
Key Questions for Investors to Improve the Odds of Long-Term Investment Success Laetitia Peterson and Patrick Fogarty*
Laetitia Peterson and Patrick Fogarty from The Private Office are regular contributors to At the Bar as well as attending our Annual Conference each year. The Private Office offers members a complimentary and confidential discovery meeting and copy of Laetitia’s book Legal Tender (refer to details at end of the article).
The Private Office Team - Patrick Fogarty, Laetitia Peterson and Nick Crawford
1. What sort of competition do I face as an investor? The market is an effective information-processing machine. Millions of market participants buy and sell securities every day, and the real-time information they bring helps set prices. This means competition is stiff and trying to outguess market prices is difficult for anyone, even professional money managers (see question 2 for more on this). This is good news for investors though. Rather than basing an investment strategy on trying to find securities that are priced “incorrectly,” investors can instead rely on the information in market prices to help build their portfolios (see question 5 for more on this).
The first question we often get asked is: “What return will I get on my investment?”. However, what they are really asking is: “Is my money safe?” “Will I be okay?” “When can I retire?” “How much money do I need to retire?” As financial advisers our real challenge is to discover ‘the question behind the question’. No matter how innocuous a question may seem, there is invariably a more meaningful question behind it, derived from a deeper-rooted concern or fear. We call this the psychology of investing. When it has become clear what the question is behind the question, it is much easier to talk about investing and what you need to invest in order to achieve your financial goals with confidence and improve the prospect of having a positive investment experience.
2. What are my chances of picking an investment fund that survives and outperforms? Flip a coin and your odds of getting heads or tails are 50/50. Historically, the odds of selecting an investment fund that was still around 15 years later are about the same. Regarding outperformance, the odds are worse. The market’s pricing power works against fund managers who try to outperform through stock picking or market timing. As evidence, only 23% of US equity mutual funds and 8% of fixed income funds have survived and outperformed their benchmarks over the past 20 years.
In this article, we answer nine key investment related questions we believe you should be asking when considering an investment to achieve your financial goals. Over the last three years, we have covered these questions in different guises in our previous articles, so we thought we would bring them together to give you a useful overview or checklist.
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3. If I choose a fund because of strong past performance, does that mean it will do well in the future? Some investors select funds based on past returns. However, research shows that most funds in the top quartile (25%) of previous fiveyear returns did not maintain a top quartile ranking in the following five years. In other words, past performance offers little insight into a fund’s future returns.
Accordingly, it’s better to avoid market timing calls and other unnecessary changes that can be costly. Allowing emotions or opinions about short-term market conditions to impact long-term investment decisions can lead to disappointing results.
4. Do I have to outsmart the market to be a successful investor? Financial markets have rewarded long-term investors. People expect a positive return on the capital they invest, and historically, the equity and bond markets have provided growth of wealth that has more than offset inflation. Instead of fighting markets, let them work for you.
8. So, what should I be doing? Work closely with an independent financial advisor who can offer expertise and guidance to help you focus on actions that add value. Focusing on what you can control can lead to a better investment experience.
5. Is there a better way to build a portfolio? Academic research has identified these equity and fixed income dimensions, which point to differences in expected returns among securities. Instead of attempting to outguess market prices, investors can instead pursue higher expected returns by structuring their portfolio around these dimensions.
• Create an investment plan to fit your needs and risk tolerance. • Structure a portfolio along the dimensions of expected returns. • Diversify globally. • Manage expenses, turnover, and taxes. • Stay disciplined through market dips and swings.
6. Will making frequent changes to my portfolio help me achieve investment success? It’s tough, if not impossible, to know which market segments will outperform from period to period.
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7. Should I make changes to my portfolio based on what I’m hearing in the news? Daily market news and commentary can challenge your investment discipline. Some messages stir anxiety about the future, while others tempt you to chase the latest investment fad. If headlines are unsettling, consider the source and try to maintain a long-term perspective.
For three years now The Private Office has been supporting members of the New Zealand Bar Association by helping them to answer the questions behind the questions.
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This process begins with a tailored financial plan that gives you the confidence to achieve what is most important to you through a strategy aimed to grow and protect what you have built and help you move toward the future you envisage. To quote Thomas Sowell: “When you want to help people, you tell them the truth. When you want to help yourself, you tell them what they want to hear”. Our mantra at The Private Office is to tell clients the truth about how they should invest to achieve their goals. This underpins every conversation we have with our clients. *About the authors
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.
Patrick Fogarty recently joined The Private Office as a Client Director. He returned to New Zealand after 10 years with Dimensional Fund Advisers in London where he helped grow the business into one of the largest fund managers in the UK and Europe. He is very familiar with evidence-based investing and has given numerous seminars on the subject. Having serviced hundreds of independent financial advisers, he has a clear view on how ‘real’ advice should be given. Legal Tender Laetitia’s book explores the ideas of family stewardship, typical money behaviours, attitudes towards money, and lawyers’ views on wealth creation. It delves into the psychological effects of money and the impact of stress and financial worries, as well as the importance of personal resilience and creating a legacy worthy of a life well lived. Legal Tender will change the way you look at the value of your work as a lawyer.
New Members of the NZBA Jennifer Batrouney QC Kate Blackmore Robert Buchanan
MELBOURNE AUCKLAND WELLINGTON
Bronwyn McKinlay
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Bridget McLay
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Mary More
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Tanya Kennedy
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Ana Lenard
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Robert (Rob) Towner
Michael Locke
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Tae (Josh) Yoon
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Fiona McGeorge
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Five Things Resilient Lawyers Do Differently1 Paula Davis-Laack*
The legal profession is in the middle of rapid and continuous change.2 Technology has increased the speed at which we can deliver outcomes and clients have come to expect faster, better service at a lower cost. Busy lawyers, already maxed out by the general pressure and stress of the profession, are also trying to keep up with practice areas that are becoming more specialised and complex. Lawyers must not only be capable legal technicians but also have business fluency, process and project management expertise, and an understanding of the role technology plays in legal services delivery. They must be ready to solve clients’ complex problems by collaborating with other professionals innovatively. Being able to adapt to this changing environment is foundational to resilience. Resilience is a person’s capacity for stress-related growth, and lawyer personality research reveals that lawyers as a population tend to be quite low in the trait. Many lawyers score in the 30th percentile or lower, revealing that they have thin-skinned tendencies, take criticism personally, and are overly defensive and resistant to feedback.3 The reason for these low scores, I believe, is that the two main building blocks that build resilience – 1) thinking flexibly about challenges and framing adversity in an accurate way; and 2) developing high-quality connections with others – are frustrated by lawyers’ exceedingly high levels of scepticism (measured in the 90th percentile) and exceedingly low levels of sociability (measured in the 12th percentile).4
The National Task Force on Lawyer Well-Being recently recommended that one of the important things law firms and organisations can do to help build lawyer well-being is offering courses, information, and workshops on developing resilience, using the Army’s resilience training as a model.5 I was fortunate to teach resilience skills to soldiers for more than three years, and I have been encouraged by the application of this skill set within the legal profession. Based on my work, I’ve identified five key ways in which lawyers can develop and maintain resilience. See Resilience as a Core Leadership Skill Law talent-management consultant Terri Mottershead believes that it is critical that resilience should be placed high on the list of must-haves in lawyers’ leadership job descriptions and that there is a need to support development of resilience in emerging leaders.6 Harvard Law School professors Scott Westfahl and David Wilkins identify resilience and cognitive reframing as important leadership and professional skills lawyers should develop.7 Separately, research from the Army program showed that officers with higher levels of resilience were promoted ahead of schedule, were assigned tougher tasks, and achieved the rank of a one-star general faster than their low-resilience counterparts.8 Build the Type of Confidence that Grows Resilience Successfully navigating challenges gives you a template to manage future adversity; in fact, not experiencing any hardship lessens or undermines your resilience.9 The belief in one’s ability to overcome adversity and achieve goals is called self-efficacy, simply a fancy word for the type of confidence that grows resilience. You build self-efficacy by building on small wins, through observational experiences (watching other people's bounce back triggers, “I can do
This article was originally published in Wisconsin Lawyer. It is republished with the permission of the author. https://www.wisbar.org/NewsPublications/ WisconsinLawyer/Pages/Article.aspx?Volume=91&Issue=2&ArticleID=26161 (accessed 3/3/19) 2 Terri Mottershead, Innovating Talent Management In Law Firms, ABA Law Practice Today, Nov. 14, 2016. 3 Larry Richard, Herding Cats: The Lawyer Personality Revealed, 29(11), Rep. to Legal Mgmt. (Aug. 2002). 4 See Richard, supra n3, for percentile references. 5 National Task Force on Lawyer Well-Being (Aug. 2017). You can download a copy of the report here. 6 Mottershead, supra n2. 7 Scott A. Westfahl & David B. Wilkins, The Leadership Imperative: A Collaborative Approach to Professional Development in the Global Age of More for Less, 69 Stan. L. Rev. 1713 (June 2017). 8 Paul B. Harms et al., Evaluation of Relationships Between Reported Resilience and Soldier Outcomes. Report Number 2: Positive Performance Outcomes in Officers (Promotions, Selections and Professions) Defense Technical Information Center (April 2011). 9 Mark D. Seery, E. Alison Holman & Roxane Cohen Silver, Whatever Does Not Kill Us: Cumulative Lifetime Adversity, Vulnerability and Resilience, 99(6) J. of Personality & Soc. Psychol. 1025-41 (2010). 1
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this, too”), and by getting frequent feedback about what’s going right.10 Cross-examine Your Thinking Lawyers spend years learning and then practising how to 'think like a lawyer.' Professionally, lawyers are responsible for doing all due diligence in a matter, analysing what could go wrong in a situation, and steering their clients away from negative effects. That’s important when lawyers are engaged in the practice of law. However, when lawyers look at issues through such a pessimistic, rigid lens 12-14 hours per day, that thinking style becomes harder to turn off when it’s not needed. Ultimately, it can undercut leadership capabilities, interactions with clients, staff, and family, and the way they view life generally. Resilient lawyers cross-examine and reframe their unproductive thinking in the following ways:11
by striving for flawlessness and setting exceedingly high standards of performance accompanied by overly critical evaluations of one’s behaviour,” and it includes a range of dimensions.14 Perfectionistic strivings are aspects of perfectionism that are self-oriented, internally focused, and associated with having high standards.15 Perfectionistic concerns are aspects of perfectionism that are outwardly oriented, 'other' focused, and associated with worries about making mistakes and fear of negative social evaluation that drive the thought, “What will other people think?”16 Perfectionism generally can be associated with several negative outcomes, but perfectionistic concerns are the bigger problem. Perfectionistic concerns drive higher levels of anxiety and burnout, less healthy coping strategies and a rigid, all-or-nothing mindset. We can also link perfectionistic concerns to:
• They seek to quickly understand where they have a measure of control, influence, • defensiveness (note the link between or leverage in the situation instead of defensiveness and low resilience wasting their time and energy on things mentioned above); they can’t control. • finding fault with yourself and others • They look for measurable and specific (lawyers jump at the chance to spot evidence to support the accuracy of their misstatements, misspellings, or flaws and thoughts. see it as vitally important to correct • They look for the middle ground to diffuse people when they make a mistake); black-and-white or all-or-nothing thinking • inflexibility; styles. • excessive need for control; and • They think about what they would tell a • not being able to trust others with your friend in the same situation (we often say work.17 things to ourselves that we wouldn’t say to a friend or family member). Conclusion As the profession continues on the path of Cultivate Relational Energy change and as lawyers continue to try out new Lawyers cultivate high-quality relationships products, services, and ways of doing business, by paying attention to their “relational energy.” Relational energy is how much your interactions failure will happen as a natural by-product of innovation. To be an effective and influential with others motivate, invigorate, and energise, lawyer and leader in this era of continuous rather than drain or exhaust. Not surprisingly, change, you must have resilience in your toolkit. research showed that a person’s relational
energy network predicted both job performance and job engagement better than networks based on influence or information.12 Recently, Microsoft revised how it works with outside law firms, hoping to develop deeper relationships with outside counsel that extend beyond the billable hour. One aspect of Microsoft’s new strategic partner programme is to establish new networks to connect women and ethnically and racially diverse lawyers who represent the company.13 Distinguish Between Perfectionism and Striving for Excellence Psychologists define perfectionism as a “multidimensional personality trait characterised
* Paula Davis-Laack left her legal practice in 2009 and studied at the University of Pennsylvania’s Master of Applied Positive Psychology programme, where she researched the science of resilience and studied under the leading experts in the field. She taught resilience to the U.S. Army and their spouses as part of the Army’s Comprehensive Soldier and Family Fitness program. She is the founder and CEO of the Stress & Resilience Institute, a training and consulting firm that partners with law firms and other organisations to reduce burnout and build resilience at the team, leader and organisational level (www.stressandresilience.com).
Albert Bandura, Self-Efficacy: The Exercise of Control 79 (New York, NY: W.H. Freeman & Co. 1997). Judith S. Beck, Cognitive Behavior Therapy Basics and Beyond, 2d Ed. 171 (New York, NY: The Guilford Press 2011); see also Karen Reivich & Andrew Shatte, Resilience Factor (New York, NY: Broadway Books 2002). 12 10 Bradley Owens et al., Relational Energy at Work: Implications for Job Engagement and Job Performance, 101(1) J. Applied Psychol. 35-49 (2016). 13 David Ruiz, Microsoft Deputy GC: In New Outside Counsel Program, AFA’s Plus Competition Equals Success, Law.com, Aug. 7, 2017. 14 Joachim Stoeber, How Other-Oriented Perfectionism Differs from Self-Oriented and Socially Prescribed Perfectionism: Further Findings, 37(4) J. of Psychopathology & Behav. Assessment 611-23 (2015). 15 Andrew P. Hill & Thomas Curran, Multidimensional Perfectionism and Burnout: A Meta-Analysis, 20(3) Personality & Soc. Psychol. Rev. 269-288 (2016). 16 Id. 17 Id. 10 11
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Using the Deep Web to Defend Clients and Protect Reputations Colin Kennedy*
The deep web has content that is not accessed by search engines. Colin Kennedy explains what lawyers should know about finding information in the deep web. In the old days people involved in criminal or civil litigation left behind a physical trail like footprints, documents, fingerprints and DNA, but today’s ‘trail’ is as much a digital footprint as it is physical – and that presents a whole other subset of challenges for the legal profession.
Imagine tools that can: • • • • •
Having worked with a couple of high profile criminal defence and civil litigation teams in recent times, it’s clear that the digital footprint (the lives of people online) and the tools that track them present the legal profession with a whole new set of problems, opportunities and tools. The areas we worked in were specifically in meeting the needs of criminal defence teams and, in a civil context, reputation protection and management. What emerges is a whole area of little known tools that make online investigations, tracking and profile building a lot easier.
uncover the usernames people use online as a potential means to understand their online behaviour and offer clues as to personality, habits and proclivities track and data map the people who are breaching the name of your client on social media, as well as see what they are saying extract a summary of email addresses from a website that may not be publicly visible, but are publicly available identify potential witnesses chatting on social media build a digital footprint of a person’s online activity e.g. social media accounts, chat forums and websites An emerging information technology discipline called opensource intelligence (OSINT) is used by the IT security industry to identify and mitigate potential threats. This same technology has investigative potential for the legal profession.
Everybody knows about the dark web, which are online sites and tools that are deliberately hidden, but few understand the deep web. The deep web refers to content that won’t turn up on Google, but is nevertheless there, publicly available and more often than not, perfectly legal.
Essentially OSINT is data that is collected from publicly available sources. From a legal perspective, there are huge amounts of risk management involved, but OSINT isn’t hacking. It relies on freely available public information which just happens to be hidden or difficult to aggregate in one place. As mentioned, it also has the ability to build a picture of somebody’s digital footprint.
To put it simply, the deep web likely has information that people in the legal profession would find useful, and there is a whole subset of tools that can help you scour the deep web for that information.
It’s possible to do some of these things by conducting searches on Facebook, for example. But unless you are friends with that person, their activity is likely hidden behind security settings. However, if you use keywords and OSINT tools
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you could identify the people who interact with them – their friends and family – and through those people gain insights into what the person of interest may have posted, commented or 'liked' on Facebook.
upload a photograph, with the geolocation feature activated on their Facebook, you’ll be able to see where that person was.
Another challenge is that the world wide web is a big place. Building a near enough complete picture of somebody, or an activity, is a huge job. Work involves collecting the data, collating the data and making sense of the data (much of it useless) – and none of it is easy or cheap. On the surface, for example, you can perhaps discover if somebody embroiled in a legal issue has been using the online dating app, Tinder, by joining Tinder yourself and trawling through tons of localised search results. Or you could signup to a search tool like Cheaterbuster without having to join Tinder yourself. Another OSINT tool, called Spiderfoot, lets you collate and map content available on social networks, including IP addresses, domain names, email addresses and posts. For example, enter the name of your client – whose name may be suppressed by the court – and Spiderfoot will data map every mention of your client on Twitter, including who is speaking about him or her, and what they are saying – and who shared what they said. Another potential tool, aptly named Creepy, purportedly allows you to gather geolocation data from any individuals who have interacted with a social network like Facebook. If they
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It is easy to imagine how the emerging world of OSINT gives lawyers information, insights and data into people's online lives. The inescapable fact is that the legal profession is not keeping up with intellectual property, intrusion of privacy and ownership of data – there’s no legislation and or legal precedence because technologically enabled social behaviour is moving too fast. Questions still to be raised include: • who owns the rights to data? • how far is too far even when information is publicly available? • how do the terms and conditions of various social media and online platforms apply to whether or not findings are admissible? • how much of this technology is being used by law enforcement agencies or the other parties in a civil dispute? Despite the grey areas, it is clear however, that in the search for truth and advantage, the legal profession can’t afford to ignore the emergence of OSINT and its potential applications. * Colin Kennedy is a director of Attain Media & Marketing, a professional speaker, writer and a specialist in online and social media reputation management. Contact Colin at colin@attainnz.com.
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Telling the Stories of the Sea By Sophie Speer*
This year’s MAS Talks headliner has found a way to explain the challenges facing our oceans as a result of climate change and wants to inspire action to prevent catastrophe. On a rubber inflatable in the Southern Ocean off Antarctica in late March, Canadian science journalist Alanna Mitchell came eye to eye with a 40-tonne humpback whale. “I was less than a metre from him. His fin was probably five metres long and he looks at us. He wants to see who we are and what we’re doing. I’m sitting not a metre away. He swims around a bit then swims away. It’s all very peaceful. They’re not afraid of us, they’re just trying to figure out what’s going on - it’s fascinating.” Alanna, who specialises in writing about the way climate change is impacting our oceans, is headlining this year’s MAS Talks in Auckland, Wellington and Christchurch in September.
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MAS Brand Manager Nicola Airey says Alanna’s work around climate change is a perfect fit with MAS’ focus on sustainability. “Alanna is a compelling, engaging speaker who makes a big, complicated topic like climate change and how it’s impacting the oceans easy for audiences to understand. MAS is committed to the health and wellbeing of our Members, and of the planet, so we’re looking forward to her MAS Talks in September.” Her recent visit to Antarctica was a memorable one: she accompanied a crew of scientists who were observing changes in the humpbacks’ behaviour and patterns. “What’s happening to whales in the Southern Ocean can tell you quite a bit about what is happening to the rest of life in that part of the ocean,” she says. It was also unusual – usually, the summer season ends much earlier. “The fact we were there at the end of March is extraordinary, right? You wouldn’t expect to be
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able to be there in early fall,” Alanna says. They observed a humpback ‘baby boom’ – the result of plentiful krill being available to eat because other creatures who would usually compete for this food source are no longer there. “We were in this tiny bay, and there were dozens of adults in there trying to eat as much as they can so they can migrate to the north to warmer waters and have their babies. At night, they just take tonnes and tonnes of krill, literally, and fatten up on this stuff.” But while a baby boom among these sentient creatures could be considered an unexpected positive effect of climate change, she says it won’t last.
“There’s no question that this is a hinge moment in human civilisation. What we decide to do in the next year or two is going to make all the difference in how our human existence plays out.” And Alanna remains hopeful for the future of our planet and the species that inhabit it.
Ahead of her visit to New Zealand in September for MAS Talks, Alanna is presenting her one-woman show based on Sea Sick at the Edinburgh Festival. She hopes audiences come away feeling upbeat.
Alanna, whose international best-selling book Sea Sick: The Global Ocean in Crisis looks at our changing oceans as the impacts of burning fossil fuels continue to be recorded, says our oceans are becoming “warm, breathless and sour.” “It’s becoming a lot warmer, it’s losing its oxygen, it’s becoming acidic.” “The fact is the chemistry of the ocean is changing globally because of the fossil fuels that we’ve burned, and that in turn is changing the ability of the ocean to support life.”
“Many scientists I spoke to told me the ocean contains something they call the ‘switch of life’. Each of the previous mass extinctions on our planet has been linked to a change in the concentration of carbon dioxide in the atmosphere.
This communication is needed now more than ever.
“It seems to me that this is a unique moment in human history when we can really put our ingenuity into play to make a difference in our world.”
“The krill themselves are going to be under increasing threat as the ocean warms and becomes more acidic.”
Alanna says if the oceans are sick, that means the whole planet is too.
There’s all this incredible information out there that most of us aren’t aware of because we’re not in touch with the scientists. And the scientists really want to tell us about it but they don’t necessarily know how.”
“I hope that it feels like a conversation with the people in the audience when I’m on stage. I’m not coming to try to shame people into doing something, because I don’t believe in that. There is an element of love and joy and generosity that can take us through this. “It’s not anger, it’s not rage, it’s not despair that’s going to get us there. It’s the opposite of all that.” Sophie Speer is the publisher of the MAS quarterly magazine, OnMAS. MAS is an NZBA member benefit partner. Find out more at https://www.nzbar.org.nz/legal-practice-support
An Evening with Alanna Mitchell
“The ocean is the key to the whole running of the gears of the planet. And when we fiddle with the ocean, we’re fiddling with the planet’s ability to support life, and we’re doing that in an extraordinarily fast manner.”
New Zealand Bar Association members are invited to join MAS for an evening with award-winning Canadian science journalist Alanna Mitchell for MAS Talks 2019. Tickets $35 from mas.co.nz using special partner code NZBAR.
Alanna, a former newspaper journalist, has become something of a translator between scientists and the general public. Scientists are historically not known for their strong communication skills but are driven by their passion for observing changes in the planet’s systems.
Tuesday, 10 September - Christchurch, Christchurch Town Hall Thursday, 12 September - Wellington, Opera House Friday, 13 September - Auckland, ASB Theatre Aotea Centre.
“I am interested in democratising information.
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Technology - Are Workplace Tools Making Decision Fatigue Worse? By Ben Taylor*
First Published on Dropbox Blog on June 25, 2019 We use a huge range of apps and software on a daily basis, each with their own alerts and notifications, and each requiring some form of response or decision. On top of this, 19% of our day is taken up in searching for information in our emails, team chat messages and file storage. The challenge is to draw everything into one space but still be able to navigate through it. A doctor begins her day with a series of challenging patients. The first few have a mix of contradictory symptoms. Another hasn’t been responding to treatment. As the day wears on, the doctor begins to default to safer, easier solutions — perhaps without even noticing it. By the afternoon, she’s jumping to diagnoses more quickly, asking fewer follow-up questions, and in some cases, writing unnecessary prescriptions.
We send and receive around 140 emails. And that’s not to mention the hundreds of alerts that come from chat apps and project management software. Some of these alerts are key to our job, but many are trivial — requests to complete low-priority tasks, lists of irrelevant information, and outright distractions.
Such is the power of decision fatigue, according to a report in The Journal of the American Medical Association1. When people have to make a sequence of tricky, demanding decisions, they slowly lose their decision-making willpower. It’s the same reason why judges tend to deny parole more often as the day wears on. Having used much of their decision-making stamina, they lean toward the less risky, default choice. But decision fatigue doesn’t just happen in high-stakes industries like medicine and law. It turns out there’s a sneakier version that’s even more common, just as draining, and increasingly, much harder to avoid. Workplace tools force us to make hundreds of micro-decisions This new kind of decision fatigue comes from all the tools we use (like email, chat apps, smartphones, and enterprise software) and the content we create (like files, folders, and documents). Thanks to the explosion of mobile gadgets and workplace software, we’re getting more alerts and notifications than ever before. According to Bain & Company, executives received about 4,000 communications per year in the ’80s. In the 2010s, that number is well over 30,000. Rank-and-file workers aren’t immune. Today, we receive around 60 phone notifications per day.
If these numbers sound high to you, it’s probably because you barely notice just how many times this happens in a given work day. But every time you get an alert, you make a micro-decision: read or ignore, act or delay, stay focused or shift your attention. “You don’t realise all the decisions you make all day,” says Timo Mertens, a product manager at Dropbox. “Anybody can ping you very informally. It’s harder to make the decisions you have to make. And I think it’s getting worse.” What’s so bad about taking a second to check a notification or email? First, these alerts destroy your flow state in an instant. According to a study from the University of California, Irvine, it takes an average of 23 minutes and 15 seconds to get back to work after a distraction. If your job requires any level of sustained concentration, alerts like these chew up hours of your time. But the problem can become deeper and more insidious. Suppose you hear that email chime or text ping while you’re coding, writing, or designing. You resist the urge to check the message. You’ve maintained your flow state, but at a high cost. When we know we have an unread notification, psychologists say our brain releases a stress hormone called cortisol, which increases our heart rate and tightens our muscles. The hormone lingers until we finally check the alert, meaning we constantly have to choose between staying focused and stressed, or wilfully distracting ourselves to feel calm again.
Jeffrey Linder et. al. “Time of Day and the Decision to Prescribe Antibiotics” Journal of the American Medical Association (December 2014) https://jamanetwork.com/journals/jamainternalmedicine/fullarticle/1910546
1
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This is also why turning on “do not disturb” features can only help so much. Even if we’ve shut out all the distractions for a fixed period, we know we’ve got an avalanche of alerts building up in the background, just waiting for us to flip the notifications back on. In part, this phenomenon comes from human evolution. We’ve been wired to keep social tabs on other people — to stay alert for threats, to keep tabs on changes to the social order around us. Centuries ago, understanding these social cues could mean the difference between safety and harm (is your new neighbour a friend or enemy?). Decades ago, social updates gave us a way to keep track of occasional changes in our jobs or communities. Today? Thanks to the internet and our constant state of connection, a new notification is more likely to be a cat GIF than a tornado warning or family emergency. But the fact that it could be urgent means you feel you must check all 60 pings and 140 emails right away. Disorganised content compounds the issue Then comes the content part. Suppose you do choose to read your latest notification. It’s a simple request for budget information on an upcoming campaign. You know the number’s somewhere: but where exactly? Is it sitting in your email? A shared doc? A team folder? A chat message? An enterprise app? Some note on your phone? The process of finding the info becomes a decision tree unto itself as you decide where to look, for how long, and in what order. You’d think this kind of searching would have gotten easier since 2001, when an IDC report found we spend 2.5 hours per day searching for info like this. But most recent studies suggest it’s only improved a little. McKinsey estimated it was still taking up 19% of our day in 2012. And in 2017, another IDC study found that “80:20 rule” still exists when it comes to finding, organising, and preparing data (i.e. we spend 80% of the time simply getting data in a place where we can do any meaningful analysis).
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The common theme: technology hasn’t helped solve this problem as much as we’ve hoped. And the avalanche of tech that’s supposed to be helping might just be making things worse. Respecting the power of technology The volume, power, and scalability of our tools have increased dramatically, but as humans, we’ve been slower to appreciate their impact fully. We still treat one-off requests like we’re walking up to someone in a hallway. When we need someone’s approval or feedback, we use a whole fleet of tools to get what we need: a chat message, email, comment, text, request form, and more. Worse, we don’t always stop to consider that half of these might affect a dozen additional people — not just the person we’re trying to reach. And then there’s the way we think about content. “The file and folder structure as a whole made a lot of sense when documents and software were becoming a thing,” says Andrea Kimball, a product manager at Dropbox. “That’s how you organise paper documents. File them and stack. That doesn't meet the bar now that we’ve moved past paper.” Trying to corral and sort files might be faster digitally than physically, but it’s also easier to create an even bigger mess, with thousands of documents strewn across our hard drives and among various cloud services. That means some of the tools you rely on every day not only don’t solve decision fatigue — they exacerbate it. “When it all kind of comes at you, and it’s not distilled in any way, everything is isolated in one tool or another, and I have to triage all that,” says Andrea. “It can be very overwhelming. I have to be my own wall of defence.” The tools that were meant to save us have replaced one kind of inefficient search and decision-making for another. Imagining a future workplace with fewer decisions It’s tempting to say we just need to roll back all this tech a bit. If we could all choose one app for each job, one cloud for all our content, and one type of notification
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that’s worth sending to colleagues, maybe we could get most of our time (and sanity) back. But the reality is all these tools and files aren’t going anywhere. We can’t put the tech genie back in the bottle. People use all these tools for a reason, even if they come with a lot of unintended side effects. Instead of having all these tools fight for your attention, they can come and go gracefully, when you need them or when they’re relevant. Instead, what if we found new ways to make our technology help solve the very problem it created? To help us prioritise, to lighten our growing decision fatigue burden? Timo spends a lot of time thinking about this sort of solution. “Maybe not all the notifications I received this morning are important. Maybe only two really matter right now, and maybe some kind of machine intelligence is shielding me more proactively by looking at who the most important people are at this moment, what’s the most important content right now, what are my priorities overall, today. Maybe there’s a layer of prioritisation in between that Dropbox could provide.” In this vision, instead of having all these tools fight for your attention, they can come and go gracefully, when you need them or when they’re relevant. “We can use machine learning in order
to predict what users might need, and surface that at the top,” says Andrea. Several of these solutions are still a way off — at least in the grand vision expressed by Timo and Andrea. But a few steps could come much sooner. Here, context will be huge. This doesn’t mean only using one tool or app, but it likely means bringing those tools together into the same space. “Creating one space where this collaboration happens makes the act of deciding a little easier,” said Andrea. “You don’t have this heavy overhead of ‘What’s going on?’ and ‘Where’s all this information?’ because now everything has context.” Ultimately, to solve these problems, we need to keep a close eye on decision fatigue. If we’re just spinning out yet another app, primed to make us answer another 20 questions per day, we need to take a hard look at whether the benefit is worth the cost. But if the tech can limit our decision-making burden by taking on some of the prioritisation, maybe, for once, the tech can reach its potential, and the rest of us can finally get back to work. * Ben Taylor writes for the Dropbox Blog “Work in Progress”. For more information, see how the new Dropbox takes the first few steps at solving these problems see https://blog.dropbox.com/topics/ product-tips/new-dropbox
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Petrol Heads’ Corner – BMW Alpine Ice Drive Experience and the Rolls Royce Phantom 8 by David O’Neill*
The NZBA has formed a member benefit relationship with BMW New Zealand. Through the goodness of their hearts, they decided to invite David O’Neill to their Ice Drive Experience in Queenstown. All survived. The venue was the Southern Hemisphere Friday 28 June was the Proving Grounds (“SHPG”). This is otherwise date chosen for the NZBA known as “the Snow Farm” and is reached, if Council meeting. I was you are an ordinary citizen, by car or bus up devastated to miss it, but I the Crown Range Road, turning right opposite had already agreed to take Cardrona Ski Field and travelling upwards. one for the team and attend However, BMW decided to go one better the BMW Alpine Ice Drive and our coach turned left out of Millbrook Experience. I was gutted. I can’t remember the last time and headed towards the airport and we were helicoptered into the SHPG. Watching the I haven’t attended the full day meeting complete with working lunch. But a man’s gotta do what a sub-editor tells him. So, instead of making my way from Hamilton to Auckland and experiencing once again the joy of sitting in queues of Auckland traffic on the motorway, I was flown to Queenstown where BMW put me up at Millbrook Estate, five minutes’ drive outside Arrowtown, looking up at Coronet Peak and the Remarkables … better than the view of the carpark driveway from the meeting room at the Northern Club.
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helicopters proceed over Arrowtown, up towards Cardrona and into the SHPG with the sun just coming up over the Harris Mountains was a pretty special way to start the day. The maximum temperature on the Saturday I attended was -3 degrees Celsius. It had been -7 so, it wasn’t a warm place to be. However, BMW provided us with Icebreaker Merino jackets to keep warm. As you can imagine, this was a tough gig… I mean, Millbrook, helicopters, “warm as toast” jacket etc. etc. Programme Friday – arrive in Queenstown.
to get to the parking spot before you. It’s tricky power sliding the car, straightening it up and then being able to stop in the “garage”.
Visit Arrowtown or Queenstown or whatever you fancy. We decided to eat at the renowned restaurant in Queenstown owned by Josh Emmett – Rata – not bad either! Saturday – up at some ungodly hour, breakfast at about 6.30am and leave for the airport at 7.45am. After a 20 minute flight we arrived at SHPG where we were welcomed with coffee and scones. 9.15am-3.45pm - we fang a variety of vehicles on the ice and snow – such as having drag races down a huge snow field in the latest M850i – BMW’s latest super tourer. Depart SHPG by coach back to Millbrook and then out to Gibbston Valley Wines for dinner. The Vehicles There were a number of vehicles to drive. Which vehicle you drove depended on which exercise you did. We had; • • •
On the slalom module, the X4, X3 and the M850i. On the drifting module the M3, M4 and M5. On the ice module, we had the X5 and X7 with an M3 for the hot lap.
The Experience Slalom – first of all, we did a basic power slide with traction control turned off. This meant we ended up going around in circles half the time. Then it was on to a drag race. This was simply an exercise to see who could get to the other end fastest and then thirdly there was a slalom race chasing each other. The last exercise was what they called the barrel race where you start in one box, drift it around a large corner and park it in the next box with the other car trying
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Drifting – this was probably the part where people had the most fun. They started with drifting in a semi-circle, keeping the tail out with the power on, and then went into a figure 8 configuration where you would change direction and lastly the drift was round a large circle with some steering but using the throttle to keep the car in a power slide. People were spinning out all over the place. If we could have silenced the cars all we would have heard would have been shrieks of laughter. One car had a couple of guys from Sydney in it and mid-way through the drifting exercise a snorkel popped up through the roof as the passenger started filming the whole thing using a selfie stick. Ice drive – this was an exercise in trying to control a 4WD on sheet ice. It’s almost impossible. You sit there with the wheels spinning like mad, going exactly nowhere that you want to go, but sliding away in different directions. This part of the module ended with a hot lap in an M3 driven by one of the instructors. He was a very good driver – he had to be. One mistake and we would have had a close-up of the airbag safety feature. Summary To say this was a lot fun is an understatement. Everybody finished with a big grin on their faces. Most were completely laughed out and everybody, bar none, enjoyed themselves. It’s a great way for BMW to showcase their technology and their vehicles, but it’s also a great way to learn what to do with a car on ice and snow. It’s an experience that you wouldn’t get otherwise, other than inadvertently going into a slide, and you actually do learn what to do
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in those sorts of situations. Everybody improved over the course of the day, to the point where they felt quite comfortable getting into a slide and drifting the car round the corner. Overall, it’s an experience well worth trying out. The accommodation is superb, the helicopter flight into the snow farm was a sensational way to start the day with the sun coming up and the facilities up on the SHPG were quite fantastic. And the cars – did I mention the cars? They were great.
It is a 2010 Rolls Royce Phantom 8. To give you some idea of the background, here are the following bits and pieces I have found online. Background The Phantom was the first Rolls Royce developed and introduced after BMW purchased the rights to use the Rolls Royce name. It is credited with successfully reviving the Rolls Royce brand.
All in all, a great experience and one, in my view, you should not miss if you get a chance to do it.
The Phantom is the flagship model. It is a 4-door saloon powered by a 6.75L V12 (petrol) engine. That translates to a motor vehicle that gobbles fuel at a prodigious rate, even when it is just cruising along or even idling at the kerb waiting for her Ladyship to leave the salon.
My Favourite Car The BMW M5 – ton of power and fantastic balance. Participants Of the 22 people who were attending the course, we had almost half from Australia and the other half from New Zealand. This is a course that anyone can do. Apart from having to be over 18 years old and having a current driver’s licence, nothing else was required. In my view, it’s a course that is designed for all genders, all ages and all types of people and all types of driving ability, whether you are a cautious driver or you fancy yourself as the next Hayden Paddon.
All body paint, wood and leather work is completed to the customer’s individual specifications. Much of the work undertaken on the Rolls is by hand rather than robot. Customers can choose from 44,000 different paint colours and specify any leather colour. The back seats are entered by rear hinged doors. These are popularly known as 'suicide' doors. Rolls Royce prefers to call them coach doors.
More information about the BMW Alpine Ice Drive Experience is available at https://www. bmw.co.nz/en/topics/world-of-bmw/all_events/ BMW-Alpine-Experience.html. The NZBA thanks BMW for giving David the opportunity to hoon around in its cars. We sincerely hope the instructors’ nerves survived the experience. We also sincerely hope he stops telling the sub-editor how much fun she would have trying this – there is nothing wrong with driving on safe roads at 48.5 km per hour… Rolls Royce Phantom 8 I was recently approached and asked if I would like to drive a Rolls Royce and review it. Being a thoughtful, slow and careful decision maker, I said yes in a nanosecond. One should never pass up the opportunity to drive what is regarded by many, as one of the finest, if not the finest, motorcar in the world. In fact, it’s probably sacrilege to call it 'just a car'. It is a motorcar. It is made out of the very best materials over a lengthy period of time.
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The rear doors have umbrella compartments built into them and the factory-supplied umbrella is Teflon coated along with the compartment itself, so they dry out faster and slide out of the compartment easily. The traditional Rolls Royce bonnet ornament, the Spirit of Ecstasy (made of solid silver), has an automatic electronic retraction mechanism to prevent theft and also to protect pedestrians in the event of an accident. N.B., I have to say that if the Rolls collides with a pedestrian, I don’t think that retraction of the Spirit of Ecstasy is going to save them. The luckless pedestrian will more than likely disappear under the front wheels and be squished completely flat. The car weighs 2.7 tonnes. The RR logos on each wheel always remain upright when the wheel is rotating. You can even buy an armoured version of the Rolls. It is, believe it or not, one of the options available if you look online. The Phantom is regarded as the ultimate status symbol, the holy grail of handcrafted luxury automobiles and is a decadent design derived from an aluminium structure riding atop air suspension for euphoric comfort (I didn’t write this, someone else did. I just think it sounds quite neat). Progress has been described in the Rolls Royce as being “as stately as driving a Palladian villa in 400 acres of English countryside”. I think that’s a pretty fair summation of what it’s like to drive. Specs • Engine – 6.75L V12 petrol engine, 0-100kph sprint time (RR claim) 5.3 seconds (that’s thirsty) • Torque – 900nm (that’s a lot) • Weight – 2.7 tonnes (that’s heavy) • Length – 5.8m long, 2m wide and 1.6m high (that’s huge) Putting that into something most of us can understand, it is approximately 2 feet longer than a Q7, is the same height as an SUV and about as wide as any car can ever get.
Driving it Once you start the car, you can’t hear it. You are sequestered in a leather compartment with double glazing. If you want the blinds on the back window and the two rear seats to be pulled, only the touch of a button is required. The car has only four seats. The offspring ride in the Range Rover behind with the nanny. The carpet is as thick as it can ever get in a car and there simply isn’t any noise. I took it over to the beach after picking it up from Auckland and I have to say that it’s not a car that is adept at slicing through the New Zealand countryside and around corners. It’s an enormous car and going up the Kopu-Hikuai Road was quite exhausting because you swing from one corner to the other. The suspension is made to cosset you in complete and absolute comfort, not go around corners quickly. Hence my progression up the side of the hill was stately and slow, rather than quick and nimble. However, once you get it onto the open road, such as the motorway, it glides along in absolute silence only disturbed by the occasional noise from the radio and the odd bump as you go over ripplestrips designed to keep the drowsy driver awake. The car we had was glossy black with a bone white leather interior. There isn’t a centimetre of plastic to be seen. Every surface is covered by either wood, glass or leather. Wherever available, the RR sign is prevalent. It’s on the steering wheel, on the doors and the headrests. Despite its stately elegance and enormous size, it can accelerate quite quickly. It’s no rocket ship but then again you wouldn’t expect it to be. This is a car that is designed to transport a person
from point A to point B in undeniable stately elegance, comfort and absolute luxury. The only thing that I didn’t like about the car was the steering wheel. It’s huge and is very thin and quite hard. I understand it is a throwback to the steering wheels of old. I have to say that I found it quite uncomfortable. But then again, as a filthy rich oligarch, do you care? That aside, it is a superb car, particularly for those in the back. I found a chauffer’s cap in the boot so I thought I would put it on. My family refused to ride in it with me after that. I understand, but haven’t verified this, that the latest Phantom 9 is just under $900,000. Consequently, if you want a car like this, go to Auckland, buy a house and then sell it and then buy your car. See? Easy peasy! The other thing about a Rolls is that everybody stares at you. You can’t get away with it. While I was ferrying the car along the motorway a
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motorist pulled up alongside me and everyone in the car put their faces up against the glass and said “F…..k”. At the petrol station the guy on the till asked me if I had sold the farm. It has everything that opens and shuts on a car, even one that is eight years old. The paint was so glossy, with no imperfection in sight, that I could read the registration number on the car in front by looking in the bonnet when I was driving along. It would have to be said that the finish is as good as I have ever seen on a car. I suspect this is partially due to the care taken by its current owner. If you like driving a car that is stately and elegant with money being no object, then a Rolls Royce is the car for you. Anything else simply doesn’t count. However, don’t take it up the Coromandel. The roads are too tight and it’s too big. * David O’Neill is a Hamilton barrister, the NZBA Treasurer and normally an ever faithful Vice-President and Council member. Cars are only too obviously his downfall.
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Christchurch Silks’ Dinner 20 June 2019 Christchurch Club
Matthew Goodwin and Anne Stevens QC
Hon. Justice Rachel Dunningham, Lucia & Siena Rapley
Simon Shamy, Peter Whiteside QC, Associate Judge John Matthews, Hon. Justice Robert Osborne
Kerryn Beaton, Anne Toohey, Tuula Rapley
James Wilding QC, Kate Davenport QC, Anne Stevens QC, James Rapley QC
Josh Lucas, Dr Anna Sandiford, Glynn Rigby, Abbie Hollingsworth, Kathy Basie, Nicola Pointer
Awras and James Wilding QC and the young star of the evening
The Rapley Family - Tuula, Lucia, Siena, James
Kate Davenport QC, Jonathan Eaton QC, Helen Coutts, James Rapley QC
The Queen keeps an eye on Nigel Hampton QC as he welcomes her new Counsel
Rapley and his cohorts?
QC Selfie time
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Bench and Bar Dinner 26 June 2019 Northern Club, Auckland
Anthony Rogers, Hon. Justice Simon Moore, Sir Edmund Thomas KNZM QC, Fletcher Pilditch
Dr James Farmer QC, Stephen Mills QC, Vivienne Crawshaw QC
Dr James Farmer QC, Zara Mathieson
Her Hon. Judge Deborah Marshall, Hon. Justice Christine Gordon
Hon. Justice Ian Gault, Emma Miles, Judge Andrea Manuel
Jonathan Hudson, Lady Heeni Phillips-WIlliams, Shane Tait
Jonathan Hudson, Mark Ryan
Kate Davenport QC, Trevor Shiels QC, Robyn von Keisenberg, Simon Foote
Marie Dyhrberg QC, Lynda Kearns
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Bench and Bar Dinner 26 June 2019 Northern Club, Auckland
Matthew Casey QC, Robyn von Keisenberg, Lynda Kearns
Matthew Crawford, Sam Carey
Neil Campbell QC, Matthew Casey QC, Hon. John Wild QC
Paul Dale QC, Hon. Justice Rebecca Edwards, Phillip Skelton QC, Bal Matheson
Philip Skelton QC, Christine Meechan QC, Warren Sowerby
Richard Thompson, Marie Dyhrberg QC, Shane Elliott
Shane Elliott, Garry Williams, David Marriott
Siobhan Patia, Damian Chesterman, Simon Lance
Todd Simmonds, Quentin Duff
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2018 – 2019 COUNCIL CONTACT DETAILS KATE DAVENPORT QC – President Ph: +64 9 307 8787 kate@katedavenportqc.co.nz JENNY COOPER QC Ph: +64 9 309 1769 jcooper@shortlandchambers.co.nz ANGELA CORRY Ph: +64 3 943 1934 acorry@atticuschambers.com MARIA DEW QC Ph: +64 9 307 5251 maria@mariadew.co.nz JONATHAN EATON QC – Vice President Ph: +64 3 372 3466 j.eaton@bridgesidechambers.co.nz SIMON FOOTE Ph: +64 9 307 8784 swbf@simonfoote.co.nz LISA HANSEN – Vice President Ph: +64 4 914 1052 l.hansen@barristerscomm.com JOSH McBRIDE Ph +64 9 309 8765 josh@richmondchambers.co.nz
TIHO MIJATOV - Junior rep Ph: +64 27 337 9484 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com LARA STEEL - Junior rep Ph +64 9 600 5509 lara@richmondchambers.co.nz ROB STEVENS – Associate Member Representative Ph: +64 9 302 1963 rob.stevens@pds.govt.nz DEAN TOBIN Ph: +64 3 477 8781 dean.tobin@princeschambers.net ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz MICHAEL WEBB Ph: +64 9 377 6543 mw@mrhwebb.com SAM WIMSETT Ph: +64 21 338 962 sam@samwimsett.com IMMEDIATE PAST PRESIDENT CLIVE ELLIOTT QC Ph: +64 9 307 9808 elliott@shortlandchambers.co.nz