At the Bar - October 2020 by New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture

At The Bar October 2020

An International Court for the Environment Meet Your New Council www.nzbar.org.nz

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YOUR ASSOCIATION 4 From the President – Kate Davenport QC 6 NZBA Rule Changes – Paul Radich QC 6 New Members – welcome to new members 7 NZBA Council 2020-2021 – meet your new Council 10 Member Interview – a "Non-Court" Barrister LEGAL MATTERS 12 Update on Anti-Money Laundering – an exemption 15 Time for an International Court for the Environment – speeding up the process 21 Mitigating the Impacts of Legal Practice – the effects of vicarious trauma 26 LexisNexis Interview – LEX and LORE Podcasts 31 Auckland High Court Sentencing Competition – another successful competition PRACTICE AND LIFESTYLE 19 Practicing Well – the College of Law Initiatives 23 Boost Your Mental Health – MAS portal 27 The Rollercoaster Ride of Sudden Money – dealing with coming into money suddenly 32 The Only Solution is to Drink Good Wine – South African wine 34 Petrol Heads’ Corner – The Audi Q8

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p34 The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association. EDITORIAL COMMITTEE David O’Neill (Chair and Editor-inChief ) Tel: +64 7 839 1745 Email: david.oneill@nzbarrister.com Jacqui Thompson (Editor) Tel: +64 9 303 4515 Email: jacqui.thompson@nzbar.org.nz

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

NEW ZEALAND BAR ASSOCIATION Tel: +64 9 303 4515 Email: nzbar@nzbar.org.nz Web: www.nzbar.org.nz PO Box 631, Shortland Street, Auckland 1140 ISSN 2744-3353

From the (Past) President Kate Davenport QC*

Kia ora Members of the Bar Association This is my final column as the President of the New Zealand Bar Association. On 1 October Paul Radich QC became your new President, and I know he is looking forward to getting to know you all better. It has been my great privilege to be the President of the Bar Association for the last two years. It has been a lot of work, fascinating and frustrating, in equal measure. But mainly it has been the people I have met and worked with who have made it such a privilege. Thank you to all of you. I will miss you. I had a look at the first Presidentâ&#x20AC;&#x2122;s column that I wrote in October 2018. There I talked about the things that I hoped to achieve in my two years as President. The things that I wanted to focus on were: 1. Education, our working life at the Bar in the future and how we could embrace technology 2. Taking better care of ourselves. 3. Improving gender equity and diversity. 4. Access to justice. It does seem a lifetime ago that I wrote those remarks, because in the last year we have grappled with enormous challenges as a society and a profession. We have made progress, but before I come to that, there were two unprecedented events that shaped much of my presidency, and they must both be acknowledged before I move on. In November 2018 the new Silks were announced, but they were not called to the inner bar immediately. As a result of the timing of the announcement and ceremonies, we decided to hold the Silks dinners early in 2020. Our Christchurch and Dunedin silks, James Rapley QC, Anne Stevens QC and Anthony Wilding QC were looking forward to their dinner on 15 March 2019. That, as it turned out, was the date of the Mosques shootings. I recall very clearly being at a lunch to celebrate the admission to the Bar of one of my daughter's best friends when news began to filter through that there had been a shooting in Christchurch. First 9, then 12, then 15 people were reported as having been shot. It wasn't until later that day that the full enormity of the horror of the Christchurch Mosques shootings became apparent. We stayed in touch with Christchurch members and judiciary throughout that dark afternoon, monitoring their wellbeing and safety, although we knew that all we could do was offer our thoughts and care. It was a dark day indeed for New Zealand. There was absolutely no way that we could have held a dinner on such a day. I acknowledge the strength and courage of those in Christchurch, even when they felt they were at their weakest. Watching them come together as a community was inspiring for the rest of Aotearoa. 2020 hasn't really helped the NZBA achieve our objectives. Our Executive Director, Melissa Perkin, left at the end of January 2020, leave a gap for us all. At the time, Deb Hart (formerly of AMINZ and now a consultant) was undertaking a review of the the Association. Deb prepared an interim report for us, but the events that were to follow led us to put that work on hold, although the interim report has provided valuable insights for our Governance Workgroup and Council, to continue this work. Our Training Director, Jacqui Thompson was offered the acting ED role in March 2020. Jacqui had a week to enjoy this role before the second of the unprecendented events that marked my presidency struck. The country moved into Level 4 lockdown. We were plunged into a great deal of activity and engagement with the Courts, the Judiciary and other members of the profession over the next month. Communication and consultation were key in trying to find a new normal during this time. A professional bodies Covid 19 working group was established to consult on the measures needed to continue the

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courts essential work. Led by the Law Society, it included representatives from the Bar Association, the Criminal Bar Association, the Defence Lawyers Association, te Hunga Rōia Māori o Aotearoa, the Pacific Lawyers Association and the Auckland District Law Society. During our first lockdown, I knew we had to ensure the wellbeing of our members as best we could. We responded to numerous emails asking us to intervene or make representations on behalf of our members. We had a series of virtual happy hour gatherings on wellbeing, how to use technology to make an online working life simpler, as well as other sessions designed to educate but also to be collegial. I felt that these were very successful. However, I have to say that staring at my face on Zoom, Teams or AVL, day in and day out, and for hours at a time, has led me to think longingly of a touch of plastic surgery! Once again, our Silks dinners took a hit. We managed to hold our Wellington Dinner in July to honour Nicolette Levy QC and Karen Feint QC. Unfortunately, our Auckland event struck disaster. On Wednesday 12 August, we were to gather at the Hilton to celebrate with Simon Foote QC, Stephen Hunter QC, Julie-Anne Kincade QC, and Janet McLean QC. We also were conferring Life Membership on Stuart Grieve QC. However, Auckland began a Level 3 Lockdown at 12pm on that day. So, 2020 has been a difficult year for everybody and my theme of taking better care of ourselves is crucial to all barristers. This has been echoed by members of the Australian Bar. One of the pleasures of this job has been to become the Bar Association's representative on the Council of the Australian Institute of Judicial Administration, which made an excellent suggestion that when Covid is over, we should consider a retrospective seminar addressing the issue of the wellbeing of the Bar. Prior to Covid, I was involved in the work led by the Chief Justice and Andrew Kibblewhite (the Secretary of Justice) which looked at improving access to justice. One of the issues identified was the need for a pro bono clearing house. I am very pleased that the Community Law Centres received additional funding recently to enable them to begin to run such a pro bono clearing house to match those who need pro bono work with those who are prepared to do it. However, expecting the legal profession to meet the access to justice gap by the provision of free legal services is not the answer to the issues. A more comprehensive overhaul of the system is needed, especially in the District Court - the people's court - where the justice gap is most keenly felt. I will continue to work in this area with the Bar Association and the Ministry to see what changes can be made to improve access to the District Courts for people with civil litigation problems. An area in which I do not think that I have succeeded in making the gains I wanted, is gender equity. In December 2017, the NZBA and the New Zealand Law Society launched the Gender Equitable Engagement and Briefing Policy. The Law Society took on the unenviable task of monitoring and measuring the implementation of the policy. We ran into some difficulties doing this, but I am pleased to say that these challenges are now being addressed and we will be reporting back to you in the near future. We have made some progress in the area of diversity. I believe that we have formed closer relationships with the Pacific Lawyers Association and Te Hunga Rōia Māori o Aotearoa. We will contine to learn and work in this space. Diversity is a huge issue for the legal profession. In order to represent our society, we need to be more representative of that society, and take steps to ensure that we are fostering and encouraging people of all backgrounds to become lawyers. I would like to thank the Secretariat for their incredibly hard work, their dedication to the cause and the very long hours that they have put in for the NZBA. I encourage them to take a holiday when suggested! The Councils I have worked with have all been great and many have become friends. My thanks to you all for your hard work. The only fly in the ointment has been the Treasurer, who has kept a very tight hold on the purse strings. Absolutely needed, but oh the places I could have gone if he had been less vigilant! I know that the Bar Assocation is very well served in the capable hands of Paul. I wish the Council well for the work they will do for you, the members of the Bar Association, in the future. Ngā mihi nui Kate

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NZBA Rule Changes by Paul Radich QC

The pandemic, and New Zealand’s response to it, has seen a significant focus from the Council on financial management. As it became apparent that we wouldn’t have the benefit this year of income from our conference and advocacy training workshops, we focused on our cashflow forecasts and adjustments to our budget. That, in turn, led to a substantive review of our governance structures and policies and, through a newly created Governance Working Group, to the creation of new governance, financial management and risk management policies. The policies will put the Association on a firm footing in the years ahead and will enable us to manage the Association more appropriately in the complex world in which we are operating.

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two-year terms for Council members to achieve continuity;

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better co-option powers to help the Council achieve gender balance and diversity and to ensure that, where possible, a member of the Council is of Māori descent;

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an ability for the Council to conduct business and make decisions electronically;

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improved powers of delegation to the Council’s Management Committee, Executive Director and members;

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an ability for the Council, rather than the Association as a whole, to set levies at a time that aligns with the Council’s budget process and financial year – and an ability to receive levy payments by instalment.

The new Council, which begins its term next week, will now be able to exercise its co-option powers more effectively so that it better reflects the diversity of the Association’s members. It will be able to settle the functions of the Management Committee and to put in place a set of delegations that will enable us to manage the Association effectively.

Several changes to the Association’s rules were needed to give effect to the policies. The rule review process provided an opportunity, not only to give effect to our new policies but to tidy up rules which were either outdated or which could be improved. Key changes, as approved at the Association’s AGM on 10 September, include:

The governance review has been a thoroughly worthwhile process and will make a real difference in the delivery of benefits and services to you, our members.

Welcome to Our New Members Dr Petra Butler

WELLINGTON

Nicholas (Nic) Lawrence

AUCKLAND

Laura Carter

AUCKLAND

Alanya Limmer

CHRISTCHURCH

Siobhan Cervin

AUCKLAND

Donald Matthews

CHRISTCHURCH

Michael McKay

CHRISTCHURCH

Monique Fyfe Joanne Hambleton

WELLINGTON

DUNEDIN

Juliet Philpott

WELLINGTON WELLINGTON

Gretchen Hamlen-Williams

WELLINGTON

Bruce Scott

Prof. Mark Hickford

WELLINGTON

Andrew Steele

Roshni Kaur

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AUCKLAND

Grant Tyrrell

AUCKLAND CHRISTCHURCH

NZBA Council 2020 - 2021 PAUL RADICH QC President (Wellington) Paul served as a Council member from 2015 to 2018 and rejoined the Council last year as President Elect. He practises at Clifton Chambers in Wellington. Paul joined the bar in 2012, having been a litigation partner with Izard Weston, Bell Gully and Minter Ellison Rudd Watts. He has a general commercial litigation practice with a focus on public law and Treaty issues. Paul took Silk in 2014.

QUENTIN DUFF (Auckland) A criminal litigation specialist, Quentin is head of chambers at Mātai Chambers in Auckland. He graduated LLM from Victoria University of Wellington in 1997 and joined Kensington Swan the same year. He has practised at the private Bar since 2000 (although he had a further stint as a barrister & solicitor) before eventually founding Mātai Chambers. He has appeared as trial counsel and appellate counsel in the various courts of New Zealand, including the SC. He has been instructed in trans-Tasman disputes, and worked internationally, most notably in Hong Kong on cases from murder and whitecollar crime to company directors/shareholders disputes. Quentin's whakapapa is Ngāi Te Rangi, Te Arawa & Ngāti Raukawa. Quentin is a member of the Management Committee.

PHILLIP CORNEGÉ (Waikato/Bay of Plenty) Phillip Cornegé is in his second term on Council. He has been a member of the NZBA Training Committee for some time, as well as serving on its Technology Committee. He presents regularly on running paperless hearings, and helped with the redrafting of the Senior Courts revised 2019 Electronic Document Protocol. Phillip is an experienced trial and appellate lawyer, and has appeared several times in the Court of Appeal.

SIMON FOOTE QC Vice President (Auckland) Simon is a barrister at Bankside Chambers in Auckland with a commercial litigation and arbitration practice. He went to the Bar in 2002, prior to which he worked at major firms in Wellington, Auckland and London, and as a Crown Prosecutor in Palmerston North. He was Deputy Chair of the 2014 World Bar Conference at Queenstown and the NZBA Conference in 2015, then Chair of the 2016, 2017, 2018 NZBA Conferences and the New Zealand Chair of the joint NZ-Australia Bar Conference in 2019. Simon also serves on the Association’s Access to Justice Committee, chairs the Membership Committee and participates as an advocacy trainer in the NZBA Mastering Advocacy Faculty. Simon took silk in 2019.

KATE DAVENPORT QC Immediate Past President (Auckland) Kate has now finished her twoyear term as President of the NZBA. She has agreed to stay on the Council as Past President. This role is provided for in our rules. Kate has made significant contributions to access to justice, including contributing to the workshop earlier this year run by the Chief Justice and the Ministry of Justice. She has been a strong advocate for equitable briefing and has spoken internationally about bullying and harassment. Her work during Covid 19 to support members, especially liaising with the courts, is widely appreciated.

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FELIX GEIRINGER (Wellington) Wellington barrister, Felix Geiringer, practises in a broad range of legal fields. He has acted in a number of high-profile matters including representing Sir Tim Shadbolt in a successful defence of a defamation claim,

RICHARD McGUIRE Associate Member Rep (Canterbury) Richard has been with the Public Defence Service since 2011. Prior to his time with the PDS, he was a director in a firm in Christchurch where he had a general practice including a focus on criminal defence law, and family law. He held appointments as lawyer for the child and as a youth advocate. Richard is a member of the Criminal, Membership, and Access to Justice Committees.

representing Toni Waho in his successful trust law claim against Te Kōhanga Reo National Trust, representing Nicky Hager in his judicial review and public law damages claims against the New Zealand Police, and representing the New Zealand Maori Council in its water claim. Felix’s cases also include matters involving commercial and company law, arbitration, administrative law, land law, professional discipline, inquiries, tort law, te Tiriti o Waitangi, sports law, and criminal appeals. He frequently appears in the appellate courts, including multiple appearances in the New Zealand Supreme Court and the Privy Council. Felix has joined the NZBA Access to Justice, Law Reform, Technology, and Annual Conference Committees.

TIHO MIJATOV (Wellington) Tiho is a barrister at Stout Street Chambers, Wellington. His particular expertise and interest is in providing public law advice and advocacy. Before joining chambers, Tiho was a judge’s clerk at the Court of Appeal, where he gained wide experience in civil and criminal law. Tiho has worked on several initiatives, including submissions for the NZBA as intervener in the Court of Appeal, access to justice and media initiatives, and law reform submissions. He is on the NZBA’s Law Reform, Membership and Practice and Bar Care Committees.

TARYN GUDMANZ (Southland) Taryn is a Dunedin-based civil litigator, who joined the independent bar in 2016. She is an immigrant, initially landing in Christchurch and obtaining her degrees there. Taryn started practising with Bell Gully (Wellington) in 2002. She was admitted in England & Wales, working with what is now Clyde & Co. After moving to Dunedin, she practised with Gallaway Cook Allan and then Anderson Lloyd. In addition to general commercial litigation, Taryn undertakes inquisitorial work (counsel to assist the Coroner, legal assistance panel for the Royal Commission of Inquiry into Abuse in Care) and is an accredited mediator. She is also the Vice President of the NZLS Otago Branch, Deputy Chair of the King’s High School Board of Trustees, and a former convenor of OWLS.

DAVID O’NEILL Treasurer, Vice President (Waikato/Bay of Plenty) David practices out of Riverbank Chambers in Hamilton and is one of two Waikato/Bay of Plenty representatives on Council. His practice involves civil and commercial litigation. He has been on Council since 2012 and became treasurer, secretary and vice-president of the Bar Council in 2015. During that time, he has served five presidents on Council and has sat on several Council Committees. One of his main areas of focus is the financial well-being of the organisation and improving member benefit offerings. These benefits now number well over 50 and include the very successful LexisNexis e-Library partnership. David is editor of “At the Bar” and he writes the regular motoring column “Petrolhead's Corner”. Outside of the law, he is involved in motor racing and playing golf (badly), skis occasionally (also badly) and other hedonistic pursuits.

SAM JEFFS Junior Rep (Auckland) Sam is a barrister at Bankside Chambers specialising in commercial and civil disputes. Sam graduated from Oxford with a BCL (Distinction) and the University of Auckland with BA/LLB (Hons) degrees, where he was a Senior Scholar for both Law and Arts. Initially employed by Sir David Williams QC, Philip Skelton QC and Kelly Quinn at Bankside Chambers, Sam is now a member of Bankside himself, having had his career entirely at the bar. Sam is serving his second term on the NZBA Council.

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JAMES RAPLEY QC (Canterbury) James Rapley has practised at the independent bar since 2004. He specialises in criminal defence litigation and has appeared in numerous high-profile trials, and regularly appears in the Court of Appeal. He is the Deputy Chair of our Training Committee and the criminal stream Course Director for the NZBAâ&#x20AC;&#x2122;s Mastering Advocacy Programme. Since 2003, he has taught Trial Advocacy at the University of Canterbury. James has also taught Trial Advocacy overseas at the University of South Pacific, Vanuatu, for PILON in Samoa and for the ABA in Sydney and Melbourne.

ANNE TOOHEY Vice President (Canterbury) Anne is a barrister at Canterbury Chambers in Christchurch and has a general practice in civil, employment and criminal litigation. Prior to joining the independent bar, she worked as a civil and criminal litigator in Wellington and Christchurch. She was a Crown prosecutor and Crown counsel. Anne has been an advocacy trainer for the NZ Police and for PILON (Pacific Island Law Officer Network) for over 10 years, and has co-written a text book on advocacy. She was a member of the Council last year and is keen to continue to work hard to promote the interests of NZBA members. Anne is a member of our Annual Conference, Criminal, Membership Management and Training Committees.

SETAREH STIENSTRA (Auckland) Setareh is a barrister and founder of Public Law Chambers with expertise in public and administrative law, property, and resource management. She was a senior practitioner at both Kensington Swan and Simpson Grierson, prior to being called to the Independent Bar in 2014. Setareh was elected to the Council of the NZBA last year and was appointed the Chair of the Diversity and Inclusion Committee, having served on it since 2017. She served on the Law Reform Committee focussing on access to justice. She is also on the Executive of the NZLS Property Law Section and the ADLS Environment and Local Government Committee. In her spare time, she is an adventure racer and kid wrangler.

ESTHER WATT Vice President (Wellington) Esther is a barrister at Stout Street Chambers. While her practice is focussed on commercial litigation and public law, Esther has broad experience, which includes regulatory, criminal, and relationship property proceedings. Esther joined the bar in 2017 after working at major firms in Wellington and London, at the Crown Law Office, and as a Judgesâ&#x20AC;&#x2122; Clerk in the Court of Appeal. Now in her third term on the NZBA Council, Esther co-chairs the Annual Conference Committee and serves on the NZBA Law Reform Committee. She appeared with James Rapley QC on behalf of the NZBA and NZLS as interveners in Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 (Court of Appeal).

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Member Interview a “Non-Court” Barrister by Jacqui Thompson

Michael Webb is a commercial barrister in Princes Chambers in Auckland. He talks about his wideranging practice in corporate, banking, financial markets, governmental, and regulatory law, and what “non-court barristers”1 bring to clients. The word “barrister” for many outside the legal profession conjures up uncertainty both as to what they do, and what is the difference between a barrister and a solicitor. To some, barristers may convey images of 19thcentury cartoon drawings of well-padded older men, with florid complexions and bulbous noses, dressed in robes, wigs and gold watches tucked into their bar jacket pockets. The younger among us may think about the TV series Silks, full of sleek (but emotionally challenged) lawyers, battling it out in a courtroom for their wrongly charged clients in a way that would have most judges instructing their clerks to research the law of contempt. For barrister Michael Webb, nothing could be further from his practice. He was one of the first to practise in New Zealand at the independent bar as a non-litigator barrister. He was a senior commercial partner at a national law firm before joining the Bar in Wellington in 1995. At that time, it was an unusual move for a non-litigation commercial partner to go to the bar, although in the UK, it is a much more common practice, as many Chancery barristers do not appear in court. Michael points out that sometimes you get disputes of the most highly confidential or sensitive nature and the instruction from the client is to avoid court. They are looking for someone who can deal with complicated subject matters and skillfully navigate and negotiate the clients way through often highly sensitive issues. Many of these issues include a combination of legal, commercial or political considerations that the adviser must factor in. The best outcome may be that the parties resolve issues without anyone else ever knowing that a problem arose. There are also matters where a firm or client is looking for specialist advice in a particular subject area, or assistance in addressing issues with government or regulatory agencies, or changes in the law.

While Michael was one of the first to go to the bar and not undertake court work “there have always been barristers with significant practices who do little or no court work”, Michael points out. “Some barristers have changed the direction of their practice by moving away from court litigation. They focus instead on reviews and inquiries, mediation and arbitration.” Another misconception at times is that barristers who are not involved in court work do advisory work only.” An important part of Michael’s work is negotiation and advocacy involving select committees, Ministers, officials and regulatory agencies. Michael accepts that many people would share the traditional court-centric view of the bar. However, since he first joined, there is now a significant number of barristers who do not appear in court, but who provide specialist advice and representation, both locally and internationally. He cites as examples members of the NZBA commercial barristers committee, who are all leaders in their fields. Debra Angus is a former Deputy Clerk of the House who specialises in parliamentary law. Jane Meares is an expert in inquiries and commercial public law. Rhonda Powell is a leader in trust law, and Stephen Layburn specialises in commercial law. The key feature of the bar, in his opinion, is not just access to court litigators, but that everyone, can access highly specialised, expert and independent advice, and representation which independent barristers can provide. That includes in-house counsel, sole practitioners, lawyers in a law firm (small or large city firm), and even other barristers. “The reality is that many firms elect not to specialise in every area. This is where the bar comes into its own. A firm can instruct a barrister, keep the file and the client and at the same time access some of the best advice and representation in that field in the country,” Michael remarks. There are also many matters where major firms do instruct independent barristers, both as specialist court advocates, and also in obtaining second opinions.

The terms non-court or non-litigator barrister are used for convenience for the purposes of this article. They are not intended to convey any official name or status. Correspondence will not be entered into because the writer would end up losing any battle of wits on this (and other) subjects.

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Who -Do -Ever y thing-But-Don’ t-Appear-inCourt,” he suggests. “However, it’s important not to get wound up in the name. In the end, you have to ask yourself how much time you want to devote to the name issue. People generally know what individuals are about.”

An independent review by a barrister can take the heat out of the client reaction. Barristers also frequently refer to law firms any work that is not within their capacity. The relationship between the two is not mutually exclusive. Michael emphasises that court hearings require specialised training and experience. The best court barristers are experts in this area. Senior court advocacy will always be a major role of the independent bar, but it can also provide advice and representation in other ways.

Asked why there is a growing number of noncourt lawyers practising at the Bar, Michael says that there are several factors. At a particular stage of a lawyer’s career, they may opt for the greater flexibility which the bar offers. It is possible to have a career at the bar without appearing in court, and that will attract some.

Subject matter expertise has become more in focus in recent years. “Law, as practised in big firms, is getting more and more siloed by subject matter,” Michael comments. “However, one of the benefits of the bar is that you don’t necessarily need to be siloed in that way. At the bar, you are bringing your skills of analysis and being able to see different options and ask particular questions so that you can frame strategies and tactics for dealing with the matter. The subject matter of the dispute is agnostic in some ways.”

Some partners leave major firms and either set up as barristers and solicitors on their own or set up a boutique law firm. Michael believes that they are equally good career choices, probably reflecting they very much want to maintain and manage client relationships and transactions. But if you decide that you want to go to the bar as a barrister sole, it is probably because you want to get away from that type of activity. You may want to focus more on one-off matters or particular aspects of them and the legal issues involved.

Ironically, after some time at the bar, Michael found that he knew more law than he did as a senior partner. “You are reading the cases, instead of just reading a memorandum written by an associate. And because you are reconnecting with the law and not siloed, in some ways you can act and advise on a greater range of matters than you can in a law firm, where you just get locked into particular departments or specialisms. ”

It can also be easier at the independent bar to take on other roles, for example, conducting inquiries or sitting on boards, than it is as a partner in a firm. The key with those roles is to remember you are changing from being an adviser and advocate to being a decisionmaker. This role involves a different approach and skillset. The skills and experience you gain in one role, however, can assist in the other.

There is, of course, the question of the name. What do you call a group of barristers who are not court litigators? The term “commercial bar” has proved problematic, as many civil litigators call themselves commercial barristers. “It is absolutely right that they do,” says Michael. “They practice in court on commercial matters. The term “commercial barrister” also doesn’t address those non-court barristers who practice in other areas, such as public law.”

Michael is optimistic about the future of the bar. “It is the commodity side of the law that is under pressure both from the perspective of cost and junior staffing. Obviously, developments in artificial intelligence will become critical, and it will be expensive”. But he expects much of it will be available to barristers where needed, for example on a cloud or fee-paying subscription basis in a similar way that we now access information – for a fee. But the independent bar offers judgement, analysis, and experience. Clients don’t come to the bar for massive due diligence projects or to run transactions.”

The name ‘advisory barrister’ has been suggested but again, it is as misleading. Barristers such as Michael and his brethren may not go to court, but they are by no means purely advisory barristers. They have a role in advocating for their clients in other forums, including appearing before Parliamentary select committees, advocacy before Ministerial bodies, appearing at inquiries and investigations, and representing clients in arbitrations and inquiries. “This still involves the need for persuasion, but it is entirely different from what you need to do when you appear before a judge.”

However, with that optimism, there is also a caution for the future. “The Bar and the Bar Association have an important role in protecting and advancing the rule of law, which more and more is coming under pressure internationally. It is an essential role for all practising barristers, with each of us being able to make different contributions. We also need to use and reclaim the collegiality of the bar to help achieve this. And this is as important post-Covid as it was before.”

So, Michael concludes, the name difficulty remains. “We could have a name like Barristers-

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Update on Anti-Money Laundering Rules For Barristers Paul Radich QC and Ollie Nees

Paul Radich QC and Ollie Nees have provided an update on the NZBA’s efforts to seek a class exemption for barristers. Recent changes to the Anti-Money Laundering and Countering Financing of Terrorism (AML/ CFT) regime impose significant obligations on a limited number of barristers. This article provides an update on the NZBA’s efforts to seek a class exemption for barristers to better align the regime with the day-to-day realities of legal practice. The AML/CFT Amendment Act 2017 extended the AML/CFT regime to cover a range of new entities - including many lawyers. The aim of the regime is important, seeking to improve New Zealand’s ability to tackle money laundering and the financing of terrorism. But the changes impose stringent obligations for those affected, requiring significant changes to the day-to-day practice of some barristers. To address this issue, the NZBA applied in May 2018 for a class exemption for barristers. In January this year, the Ministry of Justice released a class exemption notice for barristers in draft form. Since then, the NZBA has continued to consult with the Ministry to ensure the exemption meets the objectives of the regime

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without disproportionately impacting the work of barristers in New Zealand. Limited number of barristers affected In practice, the number of barristers caught by the AML/CFT regime is small: the regime applies only to any involvement that a barrister has, in the ordinary course of their business, in advising on, documenting or effecting a transaction involving real property. Most barristers will rarely be involved in the transactional aspects of conveyancing or receiving or holding money on another’s behalf, as discussed in a previous issue of At the Bar (March 2018). But for those who are caught, the regime imposes a range of obligations - from customer due diligence to suspicious activity reporting and record keeping requirements. Given the limited administrative resources of most barristers, these obligations are onerous. The NZBA also considers many of these obligations to be unnecessary where a barrister is instructed by a solicitor or the Crown, as these parties will themselves be subject to the regime.

The proposed draft exemption The Ministry has accepted the NZBA’s exemption application and has proposed the terms of a draft exemption for the limited number of barristers who are caught by the regime, which would operate in circumstances in which they receive instructions from a solicitor or directly from the Crown. In these circumstances, the barrister would be exempted from the following requirements: • certain customer due diligence obligations, such as client identity verification and account monitoring; • to have an AML/CFT programme and compliance officer; • to review and audit their risk management and AML/CFT programme; and • to produce an annual AML/CFT report. However, under the Ministry’s current draft, barristers would still be subject to a number of obligations, even when instructed by a solicitor or the Crown, including:

For example, under the draft exemption both a barrister and their instructing solicitor would, unnecessarily, have obligations to conduct enhanced customer due diligence in some cases, take steps in relation to politically exposed persons, take steps over activity involving new or developing technologies, and undertake risk assessments before conducting customer due diligence where required to do so. Similarly, suspicious activity reporting requirements would unnecessarily be duplicated. Accordingly, the NZBA has proposed a number of amendments to the draft exemption to reduce the duplication between the obligations imposed on barristers and their instructing solicitors. The NZBA is of the view that a more expansive exemption along these lines is consistent with the objectives of the AML/CFT regime, as the risk of money laundering going undetected and unreported is minimal owing to the nature of the tripartite relationship between the barrister, solicitor and client. Final form of exemption still to be determined The NZBA provided its feedback on the proposed draft exemption in March this year. The Ministry is expected to report back on the final form of the exemption within the next few months. At that stage the NZBA will advise barristers on how this will affect practice at the bar.

• simplified customer due diligence obligations in relation to Crown clients; • enhanced customer due diligence obligations, which apply in certain sensitive circumstances; • obligations to undertake a risk assessment prior to conducting customer due diligence; • obligation to take steps in respect of politically exposed persons; • suspicious activity reporting obligations, including record keeping; • obligations in relation to transactions involving new or developing products that might favour anonymity; and • obligations in respect of the cross-border transportation of cash.

In addition, the NZBA is consulting on regulations that exempt from the regime certain disbursements paid by a client into a solicitor’s trust account. The final wording is still to be confirmed but the regulations will maintain the position that funds held by a solicitor to pay the fees of a barrister, an expert or a mediator/ arbitrator will not be covered by the regime.

Barristers caught by the regime who take instructions from a non-Crown client directly would also remain subject to the whole regime. NZBA’s proposed changes to draft exemption The NZBA supports aspects of the Ministry’s draft but is concerned that it doesn’t go far enough. The proposed exemption for barristers instructed by solicitors or the Crown from most customer due diligence requirements and the need for AML/ CFT programmes and reports is a good step in the right direction. But the NZBA remains concerned that there is still unnecessary duplication, where a barrister is instructed by a solicitor, with the solicitor’s obligations under the regime.

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Who is affected? A barrister will be caught by the AML/CFT Act if they are a â&#x20AC;&#x153;designated nonfinancial business or professionâ&#x20AC;? for the purposes of the Act. That term captures barristers who, in the ordinary course of their business, carry out one or more of the following activities (per s 5 of the Act): (i)

acting as a formation agent of legal persons or legal arrangements;

(ii) acting as, or arranging for a person to act as, a nominee director or nominee shareholder or trustee in relation to legal persons or legal arrangements; (iii) providing a registered office or a business address, a correspondence address, or an administrative address for a company, or a partnership, or for any other legal person or arrangement, unless the office or address is provided solely as an ancillary service to the provision of other services (being services that do not constitute an activity listed in this subparagraph or subparagraphs (i), (ii), and (iv) to (vi)); (iv) managing client funds (other than sums paid as fees for professional services), accounts, securities, or other assets; (v) providing real estate agency work (within the meaning of section 4(1) of the Real Estate Agents Act 2008) to effect a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008); (vi) engaging in or giving instructions on behalf of a customer to another person forâ&#x20AC;&#x201D; (A) any conveyancing (within the meaning of section 6 of the Lawyers and Conveyancers Act 2006) to effect a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008), namely:

the sale, purchase, or any other disposal or acquisition of a freehold estate or interest in land;

the grant, sale, or purchase or any other disposal or acquisition of a leasehold estate or interest in land (other than a tenancy to which the Residential Tenancies Act 1986 applies);

the grant, sale, or purchase or any other disposal or acquisition of a licence that is registrable under the Land Transfer Act 1952;

the grant, sale, or purchase or any other disposal or acquisition of an occupation right agreement within the meaning of section 5 of the Retirement Villages Act 2003;

(B) a transaction (within the meaning of section 4(1) of the Real Estate Agents Act 2008); or (C) the transfer of a beneficial interest in land or other real property; or (D) a transaction on behalf of any person in relation to the buying, transferring, or selling of a business or legal person (for example, a company) and any other legal arrangement; or (E) a transaction on behalf of a customer in relation to creating, operating, and managing a legal person (for example, a company) and any other legal arrangement.

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Time for an International Court for the Environment By Anne McMillan*

This article was first published in Global Insight, Vol 73 No 6, December 2019, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association. As the climate crisis deepens, there remains a troubling lack of international consensus on practical and legal responses. Global Insight highlights the pressing need for international law to stand up for the planet. Statements by scientists drawing attention to the urgent nature of the climate crisis are becoming ever more frequent, and alarming. Reports by the United Nations and other international bodies contain dire warnings about the acceleration of species extinction. They emphasise the need for drastic changes to the use of land and energy globally if we’re to decrease damaging greenhouse gas (GHG) emissions. Some go so far as to say that damage to the environment is already irreversible in several areas. So, how should we deal with the climate crisis, practically and legally? Some governments encourage plans to enhance the international legal regime protecting the planet, but others obstruct proposals that suggest greater liability. Part of the problem, as the IBA pointed out in its 2014 report Achieving Justice and Human Rights in an Era of Climate Disruption, is that ‘existing international law is not designed as it stands to limit greenhouse gas emissions or achieve climate change justice’. As a remedy, the IBA report supported the idea of working towards the creation of an International

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Court for the Environment, or ICE, while cautioning that this is likely to be a ‘longer-term goal’. ‘The 2015 Paris Agreement has, to some extent, distracted focus from creating an ICE,’ says Conor Linehan, a member of the IBA Climate Change Justice and Human Rights Task Force. ‘Though a welcome step in the international climate response, the Paris Agreement’s dispute resolution language is generally weak and, like the UN Framework Convention on Climate Change, it lacks a strong compliance mechanism’. Catastrophic crisis, crippling impasse In the five years since the IBA’s report the scientific predictions of the impact of climate change have become more alarming and the public more aware. Yet, the idea of an ICE still does not seem to have garnered much support from states. In September 2019, world leaders were invited to bring their most ambitious ideas to reduce global warming to a UN Climate Change Summit. The results were disappointing. Two of the top three GHG-emitting countries, China and India, failed to make significant commitments to further limit their carbon emission reduction targets under the Paris Agreement. The third, the United States, made no statement at all. As UN SecretaryGeneral António Guterres said, ‘we don’t make judgments about countries... we are not a court’. Perhaps that’s what’s needed to cut through the potentially catastrophic impasse.

Certainly other UN efforts, in the absence of a dedicated environmental court, have thus far yielded little. In 2013 the UN’s flagship international law body, the International Law Commission (ILC), appointed a Special Rapporteur on the protection of the atmosphere. Immediately Member States tied his hands with a restrictive mandate, requiring that he not ‘interfere with relevant political negotiations, including on climate change, ozone depletion and long-range transboundary air pollution’. The mandate also specifically excluded the Rapporteur from dealing with issues, including the crucial ‘liability of States and their nationals, the polluter-pays-principle, the precautionary principle’. Such restrictions prompted the Argentinian ILC member to call the mandate a ‘disgrace’, while the Tanzanian member queried whether it was ‘purposely designed to bog down the work on the topic’. If the UN cannot even agree on what aspects of the climate crisis should be reported on, what chance is there that existing international environmental law can help save the planet, especially given its short history? If nothing else, these examples highlight the global tension surrounding climate change when trying to strengthen accountability under international law. Still, the news has not been all bad. The 1992 Rio Conference, heralding the UN Framework Convention, did set environmental law on a new path. Over the subsequent decades it led to a proliferation of mainly issue-specific multilateral environmental agreements to protect the global habitat. But, if these agreements demonstrate that law is becoming more prolific, why is the state of the environment getting worse? Ironically, the number of such agreements is part of the problem. An often confusing and sometimes overlapping web of hundreds of treaties has been created, for which the term ‘treaty congestion’ was coined. In addition, many of the treaties are soft law, creating no legally enforceable obligations or rights, leaving negotiation between states as the main path to solving problems. If that approach appears to be failing, perhaps we need tougher legal options, such as an ICE. Time for the ICE International law is many things, but nimble is not one of them. Typically it’s taken many years of negotiations for states to set up international courts, which, even then, are often based on unsatisfactory compromises. As environmental lawyer Stephen

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Hockman QC has observed, ‘historically at least, the creation of international institutions and the development of international law have occurred, generally, at somewhat glacial speed’. In the meantime, pending the creation of a dedicated international court or tribunal for the environment, could the current system deal more effectively with the problem given its urgency? The most obvious existing legal venues for dealing with such global problems remain the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) or the Permanent Court of Arbitration (PCA). From 1996 to 2014 the ICJ has made a limited number of significant pronouncements on environmental issues, ranging from the legality of nuclear weapons to whaling in Japan. In particular, it declared that a ‘general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment’. But are such pronouncements enough? As the IBA report notes, ‘this approach to applying international environmental law suggests the ICJ is unlikely to break new ground on climate change litigation. The ICJ has in the past elected to take a narrow approach to questions presented’. A further dispiriting fact is that states do not use existing mechanisms. A specialist Chamber for Environmental Matters created by the ICJ in 1993 did not have one environmental dispute referred to it before it was disbanded in 2006. As Linehan notes, ‘“state responsibility” and the “no harm” principles have been important ideas in general international law for decades, yet the ICJ has had a very limited opportunity to consider them in the context of states’ climate change obligations’. Another challenge is that both the ICJ and ITLOS deal only with disputes between states, thus individuals or non-state actors cannot be plaintiffs, nor can companies be defendants. The PCA is at least open to use by private parties but only by consent. These limitations are hobbling considering that GHG emissions from the ‘Carbon Majors’ – the largest fossil fuel-producing companies in the world – rival those of nation states. Yet it’s hard to see how reluctant companies

could be made to face international law within the existing international legal framework. As the IBA report points out, ‘Pollution and environmental degradation principally result from transboundary, corporate, non-state activities... difficult to regulate directly by international law through treaties’. Linehan underscores this issue: ‘There is no such thing as an environmental issue divorced from big problems like development, trade, investment, assets and manufacturing,’ he says. ‘This will make states slow to sign up to an ICE because they will regard any such judicial power as undermining their national economic and policy freedoms’. Then there’s the added complication that GHG emissions affect areas of the planet, known as the global commons, over which no one has sole sovereignty: the High Seas, Antarctica, the atmosphere and outer space. As Philippe Sands QC, Professor of Law at University College London, noted in his public lecture at the UK Supreme Court in 2015, ‘climate change... transcends the classical structure of an international legal order that divides our planet into territorially defined areas over which States are said to have sovereignty’. There’s general agreement that legal standing needs to be expanded beyond states, which an ICE could potentially provide. But, given the time required to establish such a court, several experts agree with the IBA position that a bridging mechanism will be needed. Suggestions for an interim solution range from an expert group giving advisory opinions to a more formal ‘ad hoc arbitral tribunal’. There is hope that this approach could lead to the creation of a voluntary tribunal, with or without an international treaty, which could perhaps rule in the absence of unwilling defendants. However, Professor Michael Gerrard, Director of the Sabin Center for Climate Change Law, fears that although a ‘voluntary tribunal would be much more achievable than one with enforcement power... it would have very limited impact’. Nevertheless, these attempts to envisage how an ICE, or its precursor, might be constituted, funded and its decisions enforced, particularly how it could deal with recalcitrant polluting states, are speculative and concrete answers remain elusive. The earliest impacts of climate change are being felt by the least developed countries, which are also typically far lower emitters of GHGs, but there appears to be limited support among developed countries for the creation of an ICE. ‘The small island states and others that are the major victims of climate change might well support a treaty-based ICE,’ says Gerrard. ‘But it’s difficult to imagine the major emitting states agreeing to one. The Paris Climate Agreement is a good indication

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of how far states are willing to go in signing climate treaties, and it’s mostly aspirational.’ National law hefting for international In the absence of urgent and effective international legal action, national law may provide impetus towards establishing an ICE. There have been dramatic failures and some notable successes in national environmental courts, but the body of case law is building. Win or lose, such litigation is potentially influential in raising the public profile of environmental issues, sending warning signals to corporations (and their insurers and investors) and ultimately putting pressure on politicians. A recent example is a 2018 decision in Australia known as the Rocky Hill case. In the New South Wales Land and Environment Court, Justice Brian Preston rejected the siting of an open cut coal mine, saying it ‘would be in the wrong place at the wrong time’. He did not shrink from making a judgement about the potential damage of the mining project: ‘The Project will be a major source of GHG emissions and contribute to climate change... [it] would cause substantial environmental and social harm.’ But such a decision does not necessarily indicate that a consistent view can be found within one country, let alone between them. For instance, in the US a nuisance claim by the cities of Oakland and San Francisco against five major oil companies, based on the contribution of their emissions to sea level rise, was rejected by the US District Court of Northern California. The court argued that climate change issues should not be dealt with by judges because ‘many foreign governments actively support the very activities targeted by the plaintiffs’ claims... this relief would effectively allow plaintiffs to govern conduct and control energy policy on foreign soil’. In a similar case brought by New York City against British Petroleum and others, the defendant argued that the city’s use of oil, in police cars for example, meant it did not have the ‘clean hands’ necessary to sue. This blurring of responsibility between states and big companies (including the fact that many ‘Carbon Majors’ are state-owned) highlights the constraints of existing international law when trying to deal with damage caused by climate change. Elsewhere, a German court threw off the shackles of international law and allowed an individual claim by a foreign national, a Peruvian farmer, against German fossil fuel giant RWE. The basis of the claim, which could have far-reaching ramifications, is that RWE’s GHG emissions 11,000km distant from the farmer’s property are contributing to glacier melting, which may flood his city in the Andes (see box: A claim with farreaching ramifications).

That national decisions on environmental issues, which frequently have an international dimension, differ so wildly reinforces the need for an international legal body to deal with the climate change effects. Such a body would look at the interconnected environmental rights and obligations of states, companies, groups and individuals in an innovative way. Hockman thinks the creation of an ICE has to be the ultimate aim: ‘the very existence of an ICE would lead to the handing down of seminal judgments on a range of relevant issues, which I think would quickly start to command acceptance’. As the repercussions of climate change are increasingly felt, affecting economies and lifestyles, both in the developed and developing world, public, and hence political, attitudes are evolving. International law needs both to drive and reflect this evolution. The question is: how? ‘The increase in climate litigation strengthens the argument for the creation of an ICE,’ says Gerrard. ‘Public opinion and awareness are shifting. However, this does not change the underlying power dynamic. No international tribunal can be created and given teeth without the consent of the governments that would be subject to its jurisdiction, and governments are loathe to have courts, especially internal courts, telling them what they can and cannot do’. Hockman, however, is more optimistic, despite the fact that ‘internationally, the nation state is in legal terms still far and away the most significant entity, and that nation states will not readily act against what they perceive to be their own interests. But, I think there is an increasing awareness of the importance of law and regulation as a necessary precondition for the survival of mankind, and therefore as being ultimately in the interests of nation states themselves’. Many hope that legal innovation can be achieved, even as time is running out. Nevertheless, the appetite and the need for effective global enforcement mechanisms are likely to be far greater in future. ‘Changes that will give real effect to international environmental dispute settlement structures are unlikely to come before the next ten or 15 years, when the carrying capacity of the atmosphere for additional GHGs will reach absolutely critical levels and extreme weather events will become more common,’ says Linehan. ‘Then, like-minded progressive states will exert serious economic pressure, including strong environment-based trading sanctions, on errant economies.’ But this may not be soon enough, and, if legal responses to climate change continue to lag so far behind events, future generations will find the law guilty of acting far too late. Anne McMillan is a freelance writer. She can be contacted at mcmillan.ae@gmail.com

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A claim with far-reaching ramifications In the Peruvian Andes glaciers are melting due to climate change. According to a 2009 scientific study, this will cause the volume of water in Lake Palcacocha to increase by around 3,400 per cent in a couple of decades. In 2016, a court over 11,000km away in Germany accepted a nuisance claim by a Peruvian farmer, Luciano Lliuya, against German energy company RWE (the largest single historical emitter of carbon dioxide in Europe) for potential flood damage to his city, Huaraz, situated below Lake Palcacocha. RWE’s spokesperson, Guido Steffen, says ‘RWE has been using coal not arbitrarily but based on a statutory mandate for power supply and by governmental permission. All aspects of our operations have... undisputedly complied and still comply with all legal requirements.’ Mr Lliuya’s lawyer, Roda Verheyen, says her client sees it differently: ‘Mr Lliuya is of the opinion that the impact of CO2 emissions should be the responsibility of those emitting; that is, in particular large corporate emitters.’ But RWE takes issue with the acceptance by the court that a private citizen of a distant country can bring a claim against an energy company in Germany, especially for historic emissions extending over a century, saying ‘it is obvious that the development of our whole global society over the last 100 years and the livelihood of each individual person was dependent on greenhouse gas emissions (and unfortunately still is)’. Although Mr Lliuya is only claiming around $20,000 in damages, his claim is precisely calculated: half of one per cent of all emissions that have caused global warming. This is based on Richard Heede’s 2013 study of the ‘Carbon Majors’, which quantified cumulative emissions from the 90 largest carbon producers from 1854 to 2010. It attributed a percentage figure for individual contributions which, along with other scientific developments, could potentially undermine causation defences by large-scale emitters. RWE is refusing to settle the case, arguing that paying such a small sum towards the immense costs of building a dam ‘would not even help Mr Lliuya’. But Verheyen says of her client: ‘In case his case against RWE is won, he will take his application to other large emitters. If indeed floodgates are opened, this is a matter for the legislature, not for Mr Lluiya, who tries to deal with a very real problem which he himself has not caused.’ Should a German court be wrestling with such a complex global issue? RWE thinks not, ‘seeing that climate change is a matter that is being dealt with on an international level. We consider this the appropriate way to achieve relevant improvements in climate protection as greenhouse gases ignore boundaries.’ But no international venue exists that can help Mr Lliuya. As Verheyen, says: ‘in this case, international law is even mostly irrelevant... In a time of limited success for international agreements and diplomacy the national courts must possibly accept a more prominent role.’

Practising Well the College of Law Initiatives At the Bar talked with Marcus Martin, the Chief Executive Officer of the College of Law New Zealand about the work that the college is doing around wellness and resilience. It has recently launched a series of interviews, hosted by the College’s resident clinical psychotherapist, Steven Colligan, aimed at giving viewers different perspectives of how existing and future members of the profession see the law changing and evolving. Where did the idea for the series come from? It came out of my background in Employee Assistance Programmes and stress management. I wanted people to understand the importance of wellness in the workplace and the implications of not managing wellness. I was involved in introducing EAPs to large UK workplaces, including Ford Motors. In those days everyone considered wellness in the workplace to be about encouraging people to walk upstairs and not take the lift. The reality is that there was a significant mental aspect that was never really discussed. Mental issues were perceived as weakness. At the College of Law, we started thinking about different angles for introducing young lawyers and those seeking admission to the concept of mental health and well-being. The problem was getting them to understand that it isn’t just about having the skills to do the job - it is also about having the capability to deliver. What was the first step, and how was it received? Our very first session was called Understanding Resilience, which Minter Ellison piloted for us. It naturally grew from that. It would be fair to say that at that stage, we were at the leading edge of this work. Some firms looked at what we were doing and were not convinced. Thankfully, they are now on board and working alongside us with all of our initiatives.

to create some data related to the New Zealand legal profession. As you know, the Law Society publishes an annual Snapshot of the Profession. This document gives incredible oversight on the structure of the profession. But the one thing that we thought was missing was information on how well the profession was. What is their mental well-being status within that environment? Who they are, what they do and where they do it, is one aspect. But the other aspect is how they do it. The Annual Wellness Study addresses this issue and complements the Snapshot. We are now in Year Four of data collection. We can now show positive and negative changes on a year by year basis. The data was recently used by a Law Society task force as a foundational document for shaping their thinking on what initiatives they could put in place for mental health and welfare. For the College of Law, it gives us a body of work that helps us with solutions (including commercial activities). From this year, we will hand the data over to the legal profession. This allows firms and membership organisations to decide what they want to do to address the issues.

The whole concept of the Understanding Resilience session is based on Martin Seligman’s research.1 There is a view that resilience and well-being are soft skills, but it is about solid neuroscience. When you wrap the programme around a significant body of research, it takes on a whole new life within the professional services legal space.

Why did you decide to get involved in this area? For us it really comes down to value for money. Whenever we look at changing the Profs programme, it is always about added value, and not added cost. But it was also about having multiple applications. We knew that the programme would have a place within firms’ professional development programmes and their broader requirement for in-house training. We wanted to build our platform from just being a Profs provider to a legal training provider in New Zealand, as we are in Australia.

How does this fit alongside the College of Law’s Annual Wellness Study? While it was fine, to use Seligman’s research as it is such a significant body of work, we also wanted

Our wellness and resilience programme consists of eight products, delivered across the whole of New Zealand legal profession. We have expanded into education and are working with a number of

Martin Seligman is an American psychologist, researcher and author of self-help books. He is known for his theories of positive psychology and of well-being. His theory of learned helplessness is popular among scientific and clinical psychologists. (https://en.wikipedia.org/wiki/Martin_Seligman accessed 9/10/20)

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large schools in Auckland, training their staff on resilience. We have also just acquired a leadership and management company to further add value to that proposition. We have a team of clinical psychologists at the College. The sessions must be delivered by someone who is suitably qualified, such as a clinical psychotherapist or a registered psychologist. Our wellness sessions will never be delivered by a lawyer. Another protection is that if an organisation doesn’t have a proven framework in place, such as a well-structured HR department or an EAP provider, we won’t deliver the session. This is because when we leave the building, they need support services in place in case anyone has been triggered by the session in any way. Everything we deliver, from pre-admission training to Masters programmes, has a wellness component. Our students, delegates and alumni know that there are mechanisms available to them in these challenging times. It is about giving people opportunities. Depending on who they are, how they feel, and who they want to talk to, there are always options available to them. The other aspect is that the College of Law group is responsible for a significant proportion of all admissions across Australasia. These young lawyers are the future partners, senior associates, QCs and the future judges. If we can get them to understand the behavioural habits that will ensure their future in the legal profession, we must do so. It doesn’t take away from the other important skills such as advocacy, communication, interviewing, and negotiation. They go alongside the human skills. How do the 6 x 6 interviews fit into your overall wellness programme? In the first Covid lockdown, we did a series of interviews with members of the profession. They were an opportunity for people to see and hear from practitioners about how they are coping, what they are doing differently, and how they thought it would impact their practice and ability to do their jobs. Season two of those interviews stretched a little further with more of a focus on wellness and the concept of how they were doing. In season three of the Six by Six interviews, we are interviewing the university law student Presidents and asking about their perceptions of the future of law and their expectations of the current profession. We then ask six senior members of the profession what they think the future of law looks like, what they think future lawyers should be capable of, and what skill set they need to safeguard the future. It is about the two perspectives – those who are looking forward to doing it, and those

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who have done it. We are interested in a wider dialogue about this because we want to launch a mentoring scheme and practice area panels, with members of the profession making themselves available to grads and young lawyers (those with up to 7 years Post admission experience). So, what is the future of the profession? I think it’s positive. There is a short term challenge with difficulties in respect of the employability of grads over the next few years due to COVID. The key message is that technology will be vital, because it will allow lawyers to be lawyers and remove some of the administrative burdens. And as well is being lawyers, they will be business people also. So we’re introducing concepts of commercial acumen and entrepreneurship. You have the opportunity to grow, acquire and retain business. Ultimately as a lawyer, you are trained to think critically. And perhaps you could say that we train lawyers to be pessimists. It goes back to Seligman’s research, which would link this approach to negativity, depression and other mental issues. But critical thinking is also a highly transferable skill. And what we are starting to see, particularly inhouse, is that a law degree does not mean that you have to be a pure lawyer. It is a gateway to other opportunities where you can utilise your learnings, but not necessarily enter private practice. One of the topics that come up in the interviews is te ao Māori and te reo as part of the future. It is very much a given. We have been working with representatives of the Māori community to introduce aspects into the Profs course. For the last couple of years, we have done a significant amount of cultural training. The thing is we need to integrate this into the normality of every day. We should not have only one week where we work on te reo. It should be part of our daily lives. This is an important aspect of our work, but we want to do it correctly and sensitively. We are taking the time to do it right and are consulting with relevant groups. What about the future of the bar? The biggest challenge is people going from the safety of being employed to being self-employed. For many, that is a significant step. You need to have a client base that is loyal to you to make that transition with confidence. This is a critical pipeline, and it makes the decision easier. But it is the independence of the bar that is so important to the legal profession. I just don’t know about its attraction to young lawyers. We may see the structure of the legal profession change with less focus on the large firms and more focus on the small and mid-tier firms and in-house. This may also encourage growth in the bar. *If you want to know more about the College of Law’s courses, Marcus Martin can be contacted at mmartin@collaw.ac.nz

Mitigating the Impacts of Legal Practice: Vicarious Trauma and Mental Health and Wellbeing By Georgina Woods-Child

At its best, practicing law is a highly rewarding career. At its worst, it has the potential to have significant negative impacts on our mental health and wellbeing. The extent to which lawyers are negatively impacted is evidenced by a number of international studies that have shown that lawyers suffer from depression, anxiety and substance abuse at a higher level than other professions and the general population. In recent years the New Zealand legal profession has started taking steps to address some of the issues impacting on wellbeing: culture, bullying, sexual harassment, discrimination and bias. However, one of the areas that has not yet been adequately addressed is the impact of working with traumatic material or traumatised clients, commonly referred to as ‘vicarious trauma’, ‘secondary traumatic stress’, ‘compassion fatigue’ or ‘indirect trauma’.

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What is vicarious trauma and how is it relevant to the law? Broadly speaking, vicarious trauma in the legal context refers to the cumulative effects of exposure to clients’ trauma or traumatic material relating to legal proceedings and representation. While criminal and family law are the first areas that come to mind, vicarious trauma is not limited to those practice areas. Many of us in our day to day work are exposed to vicarious trauma in the form of traumatic material or by working with traumatised clients. How we respond to the impact of that work depends on numerous factors including workload, support systems (both personal and professional) and whether an individual has any personal history of trauma. The negative mental health impacts that can result from unmitigated vicarious trauma include depression, anxiety, substance abuse, social

withdrawal, emotional dysregulation, aggression, sleep difficulties, intrusive imagery, cynicism, disruptions in core beliefs which can result in difficulty in personal and professional relationships and in difficulty managing boundaries with clients.1 It is important to note that while vicarious trauma differs from stress and burnout, they are interrelated issues. Addressing vicarious trauma in New Zealand The Law Foundation has provided substantial funding to undertake an initial research project that will survey legal professionals (lawyers and judges) about their experience of vicarious trauma. The survey is scheduled to be sent out in early 2021. The research is led by Georgina Woods-Child. Georgina has practiced as a Crown Prosecutor and family lawyer and wrote about the issue of vicarious trauma for her LLM(Hons). The project is supported by a cross-faculty team at AUT (including Law, Psychology and Health Sciences academics).

system: our diverse cultural backgrounds, the demographics of our clients (and their unique trauma histories, including the intergenerational trauma colonisation has caused for MaĚ&#x201E;ori), the constraints of our legal aid system and the role the Law Society and governing legislation plays in regulating and supporting lawyers (among other factors). Developing trauma informed practices will add significant value not only to legal professionals but also to the participants in our legal system. Participation Obtaining a large response from the profession is crucial to the outcomes of this research. We need to have a clear picture of the varied groups of lawyers and their specific needs to appropriately target intervention and risk mitigation strategies to different groups. What may be an appropriate intervention for family lawyers may not translate well to judges or to immigration lawyers.

One of the key aspects of this research is to understand what strategies lawyers are already employing to mitigate the impacts of vicarious The key aims of this research are to: trauma and how and why they are effective. As members of the independent bar your experience 1. Understand the prevalence of vicarious as leaders in our profession will be hugely trauma experienced by New Zealand legal important to shaping the way we respond to this professionals. challenge. 2. Understand what risk-mitigation strategies legal professionals are currently engaging in Future research and funding (and how effective they consider them to be). The Law Foundation has provided substantial 3. Assess the viability and receptiveness of funding for this initial research to occur over the profession for alternative risk-mitigation the next year including partial funding for a strategies. dissemination conference. This grant was 4. Assess the viability of risk-mitigation obtained in the final round of funding from the strategies in a New Zealand context Law Foundation before they enter into a recess. (including cost and implementation and enforcement/monitoring). As such, the research team are looking for cofunding opportunities to increase the scope of Some suggestions have been proposed in the conference and to enable this research to be other jurisdictions and other human services developed and would be grateful to hear of any professions (e.g. social work and psychology) for opportunities they may not have been aware of. ways to mitigate the effects of vicarious trauma, including professional supervision, group de- Contact details briefing and reduced caseloads. For further information or if you would like to discuss this project, please contact Ultimately, to be effective, the strategies Georgina Woods-Child via email at the New Zealand legal profession adopts gwoodschild@gmail.com need to take into account our unique legal

Laurie Ann Pearlman â&#x20AC;&#x153;Vicarious Traumaâ&#x20AC;? in Charles R Figley (ed) Encyclopaedia of Trauma: an interdisciplinary guide (Sage Publications, California, 2012) at 783.

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Boost Your Mental Health In these times of uncertainty and change in season, many of us may feel an increase in our stress levels or anxiety. Stress of all varieties increases inflammation in the body and suppresses our immune response making us more susceptible to illness. It can also negatively impact our sleep, eating or movement habits, or ability to connect with others that help to reduce our stress levels and boost our mental health. It's important to understand what works for you to reduce your stress or anxiety levels and take a proactive approach to maintain these healthy habits through the coming months to boost your mental health. We recommend the following: Be aware of your stress indicators. Notice your own stress indicators and take a mental health break. For example, a racing heart rate, headache, irritability, fatigue or memory loss, racing mind, profuse sweating, sleep disturbance, sugar or caffeine cravings could all be signs you are suffering from an unreasonable level of stress. Take a mental health break. Implement an activity that helps to relieve stress and boost your mental health. E.g. get active or take a walk outside, practice mindfulness, meditation or a deep breathing activity, or catch up with a colleague or friend.

Manage stress. Life stressors such as finances, work demands, conflict, bereavements, etc, can be emotionally and physically exhausting. Talk to your manager or the HR team to utilise your workplace support services to help address the stress in your life. Keep connected. Work, shift work or requirements to selfisolate can sometimes isolate you from friends and family. Take steps to communicate and connect with colleagues and people that matter most to help you feel energised and engaged in life.

The actions of others Predicting what will happen

Keep learning. Be curious and seek out new experiences or skills to learn at work or in life to stimulate the brain, boost confidence and your mental health. Focus on what you can control. Read the image below to help you let go of everything that is out of your control in this situation and focus on what you CAN control.

I CAN CONTROL

I CAN'T CONTROL

So, I will focus on these things)

(So, I can let go of these things) If others follow the rules of social distancing

Give. It is in giving that we receive. Perform a random act of kindness such as paying someone a compliment or giving freely of your time or expertise to help a colleague, and you'll notice a boost to your own mental health.

Other peoples motives

My positive attitude Turning off the news Finding fun things to do at home How I follow Covid-19 regulations My own social/physical distancing

How others react How long this will last The amount of toilet paper at the store

How I look after my friends and family My kindness & grace How I look after my health & wellbeing Limiting my social media

The MAS Wellbeing Portal provides personalised wellbeing advice and resources to help improve your physical and mental health. Through our partnership with MAS, access is free for all NZBA members. MAS is an insurance and investments company for all New Zealand professionals. Founded in 1921 by a group of doctors, the mutual continues to protect what matters most to its Members almost a century later. Looking after the financial wellbeing of its Members is one important aspect of MAS’s work, but health and mental wellbeing is just as important. That’s why MAS created the MAS Health and Wellbeing Portal. This free online resource centre provides tools and simple, pragmatic advice about how to improve your physical health, along with your nutritional, mental, and financial wellbeing. After completing a short questionnaire, the portal delivers resources tailored to each user’s specific needs and goals, helping busy people make healthy life choices and improve their overall wellbeing and quality of life. The content is regularly updated and is designed to respond to users’ needs. The portal also provides users access to special offers with discounts available on health-related products, which include shakti mats, Fitbits, Hello Fresh meal kits and Les Mills on Demand memberships. Check out this video to find out more: https://vimeo.com/427607659/3a1c489c8b The MAS Wellbeing Portal is now available for all members of the NZBA, free of charge. To register, visit www.mas.co.nz/ hwportal. Once you have completed the registration form, MAS will email you with a unique number to sign up for the Portal. If you have already signed up for the MAS Wellbeing Portal you can access it via this link: https://mas.synergyhealthltd.com/login

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LexisNexis Interview on LEX & LORE Podcasts LexisNexis NZ Marketing Executive, Michele Fairbank interviews General Editor of the New Zealand Law Reports and Professor of Law at Vic Uni – Wellington, Geoff McLay about LEX & LORE podcasts.

Episode Title 1

The PushMe-Pull-You of ACC Coverage | The Safety Valve of ThreeStrikes Sentencing

How do courts distinguish between injury and illness? Geoff McLay and Dr Eddie Clark discuss the critical cases that provide an insight into these divisions in our healthcare system. As the courts deal with a judicial backlog in the midst of a pandemic, Eddie shares his thoughts on the review of COVID-19 lockdown breach prosecutions. At the heart of this episode is Dr Nessa Lynch’s discussion on how presumptive sentencing has been applied under the three-strikes law and the potential for injustice to arise as a result.

The Big Hot Ball of Wax: Legalities of the Lockdown

How should the legally-minded think about the flexible but necessarily murky approach taken by the executive in light of its failure to fit with traditional rule of law standards; standards of certainty, and clarity? In this episode, Geoff discusses the public law implications of the upcoming High Court decision in Borrowdale v Director-General of Health with Dr Dean Knight.

The Lockdown: Resurgence |A Constitutional Brouhaha

How do constitutional conventions play into the Government’s announcement that the 2020 election is delayed due to the resurgence of COVID-19 in New Zealand? Geoff, Dean, Nessa and Eddie gather in an urgent fashion to discuss the drums beats of a constitutional crisis… or lack thereof. Also in this episode, the panel dives deeper into how the Government is approaching lockdown post-Borrowdale, as it grapples with how to best encourage continued compliance with public health measures.

Drive-By Surveillance | Desperately Seeking a Platform for Repugnant Opinions | Borrowdale & the First 9 Days of Lockdown

Is facial recognition technology moving into a "search" by the state, even though the expectation of privacy in a public space is low? How would this play out in New Zealand? A pair of international speakers with racially offensive views have their speaking event at a public venue cancelled... were they discriminated against on the basis of "political opinion"? How are we to understand the lawfulness of the government's directions in the first 9 days of lockdown when they use language that sits somewhere between the truly voluntary and the directly coercive?

Q: Why is it called LEX & LORE? Geoff: We chose Lex because of Justice Williams' seminal article on Lex Aotearoa, and we hope that the podcast will also come to reflect in time some of the really exciting developments that are making NZ law more like the Aotearoa we live in. Our guests and panellists will be people who have interesting things to say about our law and where it’s heading, be they from academia, the profession or the community. Q: Please summarise why you wanted to do this podcast and what is your ultimate goal for the podcast is. Geoff: Lawyers are curious people but they are also really busy people. My job at Vic and editing the law reports, gives me the luxury of being able to follow all kinds of legal developments, that others just don’t have time to. I also get to regularly hear the opinions of some the smartest people in NZ law. I want the podcast to reflect all the exciting, interesting, and sometimes worrying things that are happening. I want to give lawyers a sense of being part of important conversations, and give them something to think about, and may be talk over at coffee or over dinner. This podcast follows Vic Law School’s Legal Lowdown on the Lockdown. My colleagues Dean Knight, Nessa Lynch and Eddie Clark joined me each week to look over what had happened in the past week. Q: What’s in store for future podcasts? We are starting slow, and mostly based around Wellington, I have had some chats with colleagues about recent books on international law and constitutional theory planned (and hope to make it relevant and interesting to a general audience as it is to us). We will look at different recent cases, and once Parliament starts passing laws again, we will look both at individual bills and about how NZ goes about making law. But if we start in Wellington we want to include others as soon as we can. We have an Auckland lawyer lined up to talk about the Cryptopia case about whether Bitcoins are property. And, of course we will do social episodes on the really stunning cases or news that comes along, like the Borrowdale ruling on the legality of the lockdown.

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Short Description

The Roller-Coaster Ride of Sudden Money Nick Crawford, personal wealth adviser and author of Sudden Money, And How to Handle It

Sudden money can come from many sources – a Lotto win, the sale of a business or property, an inheritance, a divorce settlement, a life insurance payout amongst other things. Whatever the source, a big windfall generates powerful and often conflicting emotions. Day-to-day life may never be the same again – and not always in a positive way. Looking in from the outside, people expect you, the recipient of sudden wealth, to be instantaneously happy, energised, and excited about the future. Some are, at least initially, but down the track, emotions often become clouded by regret about how life and relationships have changed, by doubts about people’s motivations, by anxiety about how you will adapt to your new circumstances, and by questions about whether you are managing your new wealth as well as you should. There are plenty of books about investing wisely and managing money well. Sudden Money is not one of them. Rather, it is about guiding people through the personal and emotional aspects of coming into sudden money. It is highly likely, and totally understandable, that people need some help to ride the emotional rollercoaster coming their way.

My first motivation for writing the book was to let people in this position know these feelings are completely natural. Life-changing events are almost always accompanied by some trepidation about the future. It is normal to worry about how your life might change, your new place in the world and how relationships might be affected. I wrote the book to help anyone who has come into wealth in a sudden or unexpected way. I believe that anyone who comes into sudden wealth can learn to handle it successfully, if they follow some logical steps, practice good communication and are willing to listen to advice. What is the first thing you recommend to people who have come into sudden money?

Nick Crawford, personal wealth adviser at The Private Office and author of Sudden Money, And How to Handle it, talks about his book project. Why did you write the book, who it is for and why is it called “Sudden Money, And how to Handle It”? Nick Crawford: It is easy to think that coming into a large sum of money will put an end to all your problems. No more debt, no more work, holidays whenever you want. Happy, carefree times ahead. However, over the 20 years I have been advising recipients of sudden wealth, I have come to understand the reality is often quite different. Once the initial euphoria wears off, other emotions regularly surface; anxiety, loneliness, confusion, and even guilt about having these feelings.

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Nick Crawford: “Take your time.” People often think they need to get the money working quickly, otherwise they will be mismanaging their newfound wealth. Money should be put in an interest-bearing bank account. But other than that, a sudden increase in wealth does not require any immediate alteration to day-to-day life. I believe it is essential to take at least six months before making any life-changing decisions because people’s thoughts and feelings

about what they’d like to do with the money can change significantly in the first six to 12 months. That means waiting before you decide to quit your job, give money to family members, move to a new house, make long-term investments, invest in a new business opportunity, get married or move in with a new partner. I also recommend people spend time enjoying themselves, relaxing and going on holiday for a few weeks. A change of scene helps give some perspective on the new situation. Then I recommend people start to write a list of everything they are interested in, from travel to charity work, cookery courses to getting their golf handicap down. They should then start learning about different types of investments and meet with an independent financial adviser, so they start to have some sense of where they might put their money when they are ready to act. After six to 12 months of reflection and research, the decisions people make about their personal situation will be made with a deeper understanding of what they hope to achieve in the future. What is the most common concern of someone coming into sudden money? Nick Crawford: One of the things people who come into sudden money struggle with most is who to trust. Whether they are professional advisers, family members or friends. Again, this is normal, and most people feel this way when they have had such a huge change in their financial circumstances and are feeling uncertain about how they now fit in. I also recognise that, as a financial adviser, I am asking people to trust me every day – people I have only just met. They do not know me personally, yet I am asking them to trust me to advise them on how to invest their wealth. To trust someone else with your money, particularly if you are inexperienced in such matters, is to expose your vulnerabilities and

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weaknesses – no small thing if you do not know the person well. So how do I recommend people take this leap of faith and trust someone’s advice? Firstly, I tell them not to do it blindly and ask around among other people who engaged professional advisers. What did they find? Who did they trust? How did they decide? Before you engage one, ask to talk to previous clients or request a testimonial. Ask about confidentiality. Ask about their experience and qualifications. All these things will help to build up a picture of the type of people and firm they would be entrusting their wealth to. Secondly, I tell clients to follow their intuition. This might sound like a gamble, but it isn’t really. Often, we know straight away whether we are going to click with someone. I do not want to suggest people should act on impulse though. It is still very important to review the risks and benefits before making any decisions. What is the most crucial step anyone coming into sudden money should take? Nick Crawford: Having a carefully considered, well thought out, financial plan is fundamental to successfully managing wealth. This means being crystal clear about personal and financial goals and how you want to achieve them. Embarking on a financial plan can be compared to a big sailing trip. A long voyage will never go exactly to plan, but the sailor who is prepared, flexible, patient and well advised will greatly increase the odds of reaching home safely. An investment journey likewise requires a goal, but it must also be realistic and achievable. Retiring to the south of France, for example, might require you to sacrifice a lot today to satisfy that distant desire. Are you up for that? Having settled on a realistic destination, the next step is to have the right portfolio of investments that can withstand some “bad weather” along the way. A successful voyage requires a good navigator. A trusted advisor is like that, regularly taking coordinates and making adjustments, if necessary. What do people say is the biggest downside to coming into sudden money? Nick Crawford: The most frequently mentioned drawback of sudden money that I hear relates to how it changes relationships with family and

bookish and become absorbed in crunching the numbers. One may want to choose a financial adviser based on gut instinct, another based on facts and figures. Couples who together have a range of skills can more often come to a unified decision and have a better experience of their sudden wealth.

friends. Family relationships can be tough at the best of times. Clients commonly report feeling isolated from family members or treated differently by them after their windfall. This can have a serious emotional impact. Money does not buy you happiness. If your life situation changes substantively, you can easily lose your place socially, and this can potentially cause anxiety and unhappiness. The fact is money changes people – both you and those around you. We might like to think we will remain the same person we have always been, regardless of whether we are down to our last $50 or now have $5 million in the bank. It is a noble but not particularly realistic view. Over time, the experience of having more money changes nearly all of us. So, it is unfair to imagine family members and friends won’t change either. If the person who came into sudden money is beginning to feel like a cash cow, approached only when somebody needs something, then they must act – their health may depend on it. It is important their wealth does not become their defining characteristic, and the lens through which their moods, character and actions are judged. Can sudden money affect people’s relationship with their significant other? Nick Crawford: It is one thing when siblings and family members argue, but quite another when couples are at loggerheads. This is particularly so when the disagreements are over how to manage a windfall. Spend it? Save it? Invest it? Give it away? Give it away to whom? Such arguments create stress and make the money seem like more of a burden than a blessing. Over the years I have learned that couples with different approaches to money work together best. This may seem odd, but it is true. One may be very organised with money, the other more laid-back. One may be creative and capable of seeing the big picture, while the other may be

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However, if a couple with conflicting money personalities (a saver and a spender, for example) are not prepared to address the potential friction, major problems are all but inevitable. Resentment builds, and it manifests in festering feelings of discontentment or blazing arguments. The way to avoid this is through frank and direct communication. Recognise and accept that you are different and set out some ground rules you both agree on. An independent adviser can be extremely useful in such situations. He or she will work to create a financial plan that balances the desire of one to spend right now and enjoy life with the desire of the other to save for the future. Of course, it does require a degree of compromise by both sides. With such a plan, both can feel they have an equal say in how their windfall is used. The adviser’s experienced and impartial voice will help articulate each person’s perspective and help find a middle ground that accommodates both personality types. In other words, the adviser will be skilled at facilitating the art of the compromise. What are the main areas to focus on to be successful after coming into sudden money? Nick Crawford: Whether people have won Lotto, sold their business or property, negotiated a divorce settlement, or received an inheritance, a clearly formulated financial plan is the key to their future. A plan should not be set in stone. It is a living document. It must have the flexibility to adapt to changes in life. Anyone who has come into sudden money needs to have a team of specialists to assist them, including an independent financial adviser, a personal lawyer, and a tax accountant. We recommend people avoid having family members in their team of advisers. Family members often want to help, but it is best to keep such relationships separate from your financial, tax and legal affairs. Emotions and money should be kept at a distance. When it comes to the nitty-gritty of different investment options, these are the primary factors to consider: risk and return, allocation

of assets, diversification, and fees. Having done the preparation and implemented the plan, the challenge then is to let go and get on with living your life. It is often easier said than done when people have come into sudden wealth. We recommend people with new-found wealth not to get into the habit of doing too much of something, even if it is something they love. Our advice is to keep life varied and busy. A lack of purpose in life can lead to boredom, and this can cause bad habits to creep in. If they strike the right balance, their newfound wealth can enable them – and the people around them – to lead to a rewarding and fulfilling life. Coming into sudden wealth does not need to be a roller-coaster ride. Nick has a limited number of complimentary Paperback books available. Please send him an email at info@theprivateoffice.co.nz with your physical address to order your copy. Sudden Money, And How to Handle It, demystifies the psychological and emotional impact of coming into a large sum of money and offers advice on how to handle such new-found wealth. The book explains why many people who come into sudden wealth end up feeling unhappier than before they came into the money and how to avoid falling into the same trap. Nick also offers practical advice about how to make good decisions with money, what to consider in the early days of new-found

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wealth, and guidance on formulating goals for the next stage of your life. About the author Nick is the Senior Client Director at The Private Office. His career as an independent financial adviser began in 2000 at the award-winning independent advice firm, Chase de Vere, in Bath, UK. In 2005, he moved to the specialist Personal Injury and Clinical Negligence financial advice firm, Frenkel Topping, in Manchester, UK. It was there that his passion for advising clients with “Sudden Money” began. In 2010, he moved to the national independent advice firm, Towry, where he continued to advise recipients of large compensation awards and winners of the UK National Lottery. In 2013, he moved to New Zealand to live on Waiheke Island where his wife, Amy, is originally from. Before joining The Private Office in 2017, he was a Senior Wealth Manager at ASB Bank. A disclosure statement is available on request and free of charge.

Auckland High Court Sentencing Competition By Chris Smol

Wednesday 23 September marked the final round of this year’s Sentencing Advocacy Competition, held by the Ministry of Justice at the Auckland High Court and sponsored by the New Zealand Bar Association for students from Auckland University of Technology, the University of Auckland and the University of Waikato.

persuasive on their key issues, while working to mitigate the impact of less-favourable facts. Particularly amusing was a principled skirmish around s 9(1)(h) of the Sentencing Act 2002, on whether violence towards supporters of Liverpool Football Club could be considered a type of hate crime. His Honour observed the standard made for an unusually close match, though Diana Qiu ultimately edged it out over Josie Butcher. His Honour also gave some real-world insight into which submissions were convincing, and how sentencing of the unique scenario might turn out in the real world. Despite the various pandemic-related hiccups, students’ feedback was consistently positive. In particular, the students reported really valuing the opportunity to receive direct, granular feedback on their advocacy from judges.

The competition provides students an opportunity to gain advocacy experience in one of the more routine areas of the law – sentencing – by submitting on behalf of a fictional defendant or the Crown in front of an actual Judge. This year’s competition had a distinctly 2020 flavour. Competitors researched and wrote submissions, before defending them in Court, but were also treated to last-minute adjournments (courtesy of Auckland’s second lockdown) and the thrill of courtroom audio-link issues over Zoom. While the later rounds were able to be held in person, COVID’s presence was still felt – in restricted spectators and the cancellation of the usual postfinals function.

The organisers gratefully recognise the support of the New Zealand Bar Association, and thank all those who were involved in the competition. The NZBA congratulates all of those who took part, as well as the organisers, on another successful competition. We look forward to a less technologically challenging competition in 2021.

Nevertheless, the finals were an excellent demonstration of both written and oral advocacy. Josie Butcher and Diana Qiu argued the case of Robert Fyfe, a member of the “Tartan Nasties”, charged with manslaughter after stabbing a haemophiliac at a paintball match. Justice Gault presided over the final. His feedback was largely positive, reflecting the advocacy on display, with counsel for both sides each proving

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The Only Solution is to Drink Good Wine! By Martin Cahnbley, Cahn & Finlay Wines and Spirits aka Planet Wine*

Member benefit partner Cahn & Finlay / Planet Wine founder and CEO, Martin Cahnbley, travels the world in search of the wines that make an impact on us and are different from the usual fare. In this article Martin shares a story of his visit to South Africa. In Europe, the vignerons are busy with vintage while our local Southern Hemisphere winemakers have completed their pruning and are minding the wines in the winery. The whole world is reeling from ongoing COVID outbreaks, and my annual visits to wine regions afar have been scuppered. What to do? Open a wine shop in O’Connell Street in Central Auckland! Perfect timing… However, for some armchair travel, in this article I focus on the Swartland, about an hour north of Cape Town in South Africa, a region making its mark in wine circles around the world. I had been importing wine from South Africa since 2003 and, through annual visits to the Cape Winelands and the great interweb, had become aware of Eben Sadie and his wines. I went so far as to visit the winery in Priorat in Spain which he had started and then handed over to his erstwhile business partner, Dominik Huber. Those wines, under the brand Terroir al Limit (the name tells a story in itself ), while made from carignan and grenache grapes, tasted like top-end Burgundy. I was suitably impressed!

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I reached out to The Sadie Family winery in late 2014, wishing to arrange a meeting, a winery visit and a tasting (I can be quite demanding). Delana, Eben’s sister, who holds the fort and is the gatekeeper at The Sadie Family, was quite forthright in advising me that the winery would be closed until 4 January 2015 and a visit before then would not be possible. This is the only break they get in a year for Eben’s surfing quests. Reluctant beginnings On Eben’s first day back at work, I arrived with two wine-enthusiast South African friends in tow. They were relatively nervous as Eben Sadie and his wines are revered as royalty in South Africa. We arrived to be greeted by Delana and, finally, Eben arrived, demonstrably reluctant to engage with some visitors. We sat in the large open-plan office above the winery, surrounded by hundrds of empty toptier wine bottles from around the world. Delana, understanding her brother’s reluctance to engage with strangers, gently paved the way for Eben

to start relaxing. He seemed reluctant at first to open any bottles to the Antipodean, but finally he did (corks of course). In South Africa, many wineries use the Zalto glassware, which is highly elegant, attractive and fragile. Breaking the ice Eben poured us a taste of his ‘other’ brand, Sequillo, which was soon to be deleted. This ‘entrylevel’ wine was already making an impression, and we had not even arrived at the main act. Still not comfortable spending his first day back with these visitors, Eben swirled his Zalto glass rather forcefully and broke its stem. That was not all that was broken – the ice melted and we settled into a relaxed atmosphere, with Eben regaling us with his wide knowledge and interests, far exceeding the world of wine. After a couple of hours with Eben and Delana, including a cellar tour, we left with a deep understanding that this had been an exceptional visit to an exceptional place. Later in 2015, I started importing the Sadie Family wines into New Zealand, and I am immensely proud to be afforded the opportunity to represent these wines. While Eben would never be out to gain glory through awards or point scores for his wines, he was chosen as the Institute of Master of Wine winemaker of the year a few years ago, and continually and consistently, his wines gain scores in the high 90s from all of the world’s top wine critics.

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A unique perspective I have been to visit Swartland and Eben and Delana a few times now. On the last occasion, I sat with Eben for four hours in his newly-built home. I spoke (interjected) for perhaps 10 minutes of those hours and never felt that I needed to be heard. Here is a quote from Eben that explains the man’s perspective a little more: “We’ve got to farm incredibly conservatively this year. It’s like when you run a marathon, the idea is that you’ve had all the training, but you must also be in the state of mind, and must also have the physique, and you must have the reserves. But, for the vines this year, it’s gonna be like running the marathon on a serious hangover with a baby on the back.” Strangely, it seems like those words could be used to describe the challenges we currently face. The thing is, it is up to us whether we continue or give up. I, for one, will be walking that marathon with glass in hand and array of great bottles of wine in my quiver. Cheers! Martin Cahn & Finlay Wines and Spirits aka Planet Wine is a NZBA member benefit partner with a newly opened store, located in O’Connell Street, Auckland. It also imports wines and spirits under the Planet Wine banner. Signing up to the shop’s loyalty programme allows you to collect points towards future purchases. The advent of lockdowns has certainly ramped up on-line sales and contactless deliveries, which Martin sees as a key component of the new ‘normal’.

Petrol Heads’ Corner – the Audi Q8 by David O’Neill

Recently I had the opportunity to review the new Audi Q8 (well not so new, but this car was brand new).

It had one of those digital dashboards. When it’s not running, it’s just a black screen but once you hit the ignition button (you don’t use keys anymore) it lights up and gives all sorts of information.

The Q8 is, in my view, Audi’s answer to all these other cars that are coming out which are neither one thing nor the other. They aren’t a station wagon and they aren’t an SUV. They’re halfway between. Without being unfair to the Q8, it looks like they’ve taken the bottom half of a Q7 and put the top half of an A6 on top.

The version I drove was $153,900 without any extras.

However that doesn’t take anything away from the pleasure of driving a car that does give you the same views and space of an SUV, but with the driveability and ride of a station wagon (Avant in Audi speak). I had the lower spec’d version which put out 210kw with 600nm of torque (that’s quite a lot) coupled to an 8 speed tiptronic. Audi say it gobbles fuel at 6.8l per 100km, which is pretty good, but can tow 3.5 tonnes (that’s a big boat).

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There’s nothing fancy about the speed or acceleration of the car. It’s got plenty of grunt, but it’s not going to set the world on fire. It has plenty of room for passengers and the driver. I would, if I was buying one, opt for the better seats. I found the standard seats a little bit lacking in support. However that’s probably a personal thing. We took it to the beach (my usual test route) and it goes very nicely. It travels along the straights at a pretty good speed (you don’t go over 100kms unless you own a very good radar detector these days) and went up and over the Kopu - Hikuai Road very easily. Not lurchy like you would expect it to be and sits on the road. The version I had was black on black which looks smart.

downwards as it goes to the back, there is still plenty of the room in the rear for all passengers. The weekend wasn’t enough to gauge the full usefulness of this vehicle. My drive to and from the beach was such that if I wanted to get a big car without having to deal with the size of an SUV such as the Q7, then this could be a car that I would entertain. Mercedes are currently putting out these crossover type vehicles. BMW has done a sort of fashionable thing with their SUV’s with a sloping back (I can’t remember the name) and of course there are the usual Japanese and Korean versions floating around as well.

This has its usual failings (the colour I mean) which is that as soon as you look at it, you need to wash it because it’s dirty. You will see from the rear of the car (you note I call it a car and not an SUV) that it has undergone the same back light treatment that Porsche has adopted, which is to have LED’s right across the width of the boot. I can’t say I warmed to this look. The side view of the vehicle is probably the best view of the lot. It looks sleek, has the new angular lines that all the new cars seem to have these days and despite the fact that the roofline slopes

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The list of extra options available is fairly lean, primarily because you buy them in packages now. Most of them are included but I did see one package which gave the better seats, different decor and trim and that was $8,000. However, if you want the upgraded stereo (Bang & Olufsen), then be prepared to shell out an extra $17,000. Mind you, it seems to have enough sound to drive a full concert. The spec sheet says that the speakers put out 1920 watts, which is probably more than what most people would ever entertain. You could probably entertain the whole neighbourhood with this lot. So, if you’re looking for the car with a foot in both camps, being a car and a SUV, then this could be the one for you.

2020 – 2021 COUNCIL CONTACT DETAILS PAUL RADICH QC – President Ph: +64 4 974 5951 Paul.radich@cliftonchambers.co.nz KATE DAVENPORT QC – Immediate Past President Ph: +64 9 307 8787 kate@katedavenportqc.co.nz PHILLIP CORNEGÉ Ph +64 7 282 0572 Phillip@phillipcornege.com QUENTIN DUFF Ph +64 27 242 7734 q@mataichambers.com SIMON FOOTE QC Ph: +64 9 307 8784 swbf@simonfoote.co.nz FELIX GEIRINGER Ph: +64 4 909 7297 felix@geiringer.law TARYN GUDMANZ Ph: +64 3 477 8781 taryn@princeschambers.net SAM JEFFS – Junior Barrister Representative Ph: + 64 9 973 0272 sam.jeffs@bankside.co.nz RICHARD MCGUIRE – Associate Member Representative Ph: +64 3 962 4241 richard.mcguire@pds.govt.nz TIHO MIJATOV Ph: +64 4 472 9027 tiho.mijatov@stoutstreet.co.nz DAVID O’NEILL – Treasurer / Vice President Ph: +64 7 839 1745 david.oneill@nzbarrister.com JAMES RAPLEY QC Ph: +64 3 964 8000 james.rapley@bridgesidechambers.co.nz SETAREH STIENSTRA Ph: +64 9 309 7889 Setareh@publiclawchambers.com ANNE TOOHEY Ph: +64 3 260 3101 anne@annetoohey.com ESTHER WATT Ph: +64 4 260 5041 esther.watt@stoutstreet.co.nz

At the Bar - October 2020

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Time for an International Court for the Environment

Auckland High Court Sentencing Competition

NZBA Council 2020-2021 – meet your new Council

From the President – Kate Davenport QC