At The Bar - October 2022

At The Bar

Nominated persons system and vulnerable youth Deng v Zhengcultural considerations

The drafters of our laws

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YOUR ASSOCIATION

4 From the President – Paul Radich KC

7 Our New President – Maria Dew KC

9 Access to Justice Award - Recognition for access to justice champions

11 Kōrero – Bar News

17 New Members – New members of the Association

35 Name gifting celebration

Annual Conference Report and photos

LEGAL MATTERS

13 Is the nominated persons system working for our vulnerable youth?

15 A good judgment: Lord Peter Jackson's outline

16 Case note – Deng v Zheng and evidence relating to cultural considerations

18 The role of drafters of legislation

26 Equitable gender briefing – A long way to go

PRACTICE AND LIFESTYLE

22 Life at the bar

25 AUT mooting competition

29 Signs and symptoms of burnout at work

31 Upward bullying

33 Petrol Heads’ Corner – Land Rover Defender 110

The views expressed in the articles in this publication may not necessarily be the views of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

EDITORIAL COMMITTEE

David O’Neill - Editor-in-Chief

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 and 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 | NGĀ AHORANGI MOTUHAKE O TE TURE

Tel: +64 9 303 4515

Email: nzbar@nzbar.org.nz

Web: www.nzbar.org.nz PO Box 631, Auckland 1140

From the President

Paul Radich KC*

At the end of Tilley Road in Paekakariki is a small building on reserve land that, until recently, was known as the “Weavers’ Whare”; a place where traditional weaving was taught and practised. It is now a vibrant hub for teaching rangatahi music, sound and video production. But I often think of the weavers, who still operate from there – of their plaiting (a technique known as wahāriki) to build a firm mat, a tūwhara.

In turn, I think of some of the key issues in our profession. Some are many generations old. I think of the ways in which, with one strand of flax at a time, we are weaving stronger groundings to address those issues: a restoration of tikanga within the law, gender equity, the regulation of our profession and the ongoing legal aid crisis. As my time as President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture draws to an end, I share my personal thoughts in these areas.

Decolonisation – or attempts at restoration?

A theme of our 2022 Annual Conference was the integration – or, perhaps, the re-integration – of tikanga into the law of our land.

Some might see this as part of a process of decolonisation, but I agree with the point made by the late Dr Moana Jackson in saying that the notion of decolonisation might better be thought of as one of restoration. It is a willingness to see the events of the past with open eyes and minds, to understand what has happened, to recognise the inequities that have resulted and to work earnestly to restore, to the extent now possible, that which has been lost.

New Zealand was colonised quickly. In just a single generation in the mid 19th century, it changed from a place where Māori and a minority European population coexisted in relative peace and prosperity, to a colonised place; a place where the will - the ideas about how the world should be - of the colonisers were imposed on those who lived here. The overwhelming wave on which colonisers rode resulted in Māori only being able to survive by participating in the colonial society as a disadvantaged minority.

It has been a long and faltering journey back to that time when Māori and Pākehā legal systems each

influenced social norms and structures. Steps along the way have included religious movements such as Pae Mārie and Ringatū which, from the 1860s, drew from Māori beliefs, alongside Christianity.

But it has only been during our time that the change that is needed has really been understood by society as a whole. It is a time for restoration, a process that must be underpinned by a commitment to ensuring equity across social, economic and political sectors. This commitment requires a fundamental shift in the ideas and value sets that underpin the systems that shape our country.

A key example of the shift is the ongoing integration of tikanga in the ways in which we view and interpret our law. Whereas the western legal system largely eradicated the operation of tikanga as its own legal system, now it begins to bring it within the fabric of the western system itself. The turning point came in the mid-to-late 1980s with cases such as Te Weehi on the right to fish,1 Huakina on the discharge of contaminants2 and the Lands case on the preservation of Crown land for Treaty redress.3

The gradual, progressive, plaiting of the whāriki mat continued through (as a small cross-section of developing jurisprudence) the Ngāti Apa4 and Takamore5 cases, through to Ellis, where tikanga was considered in a case that did not involve tikanga Māori issues at the outset.6

The final destination will be, one would think, a unique and authentic New Zealand law. I only wish I could be here in another hundred years to see it in operation.

The journey to achieve gender equity

Equitable briefing at the bar, especially in the appellate courts, has a long way to go. The Bar Association’s work (with Law Foundation funding) revealed concerning statistics for appearance rates in the Court of Appeal and the Supreme Court. It showed that, across the six-year survey (2012 to 2017), the proportion of women appearing as lead counsel for appellants in civil appeals was 16%, and on occasions down to 12%. Women KCs, as a percentage of all KCs appearing, ranged from between 2% to 9%. Updated figures for 2019 showed much the same pattern.

Since the late 1980s, women have graduated in law in greater numbers than men. Accordingly, we should be seeing equal numbers of women lawyers in senior professional roles, including among the ranks of KCs. However, women remain materially underrepresented

at all senior levels in the profession. Accordingly, the precursors to gender equity are not enough. As the Solicitor-General said in her 2019 Ethel Benjamin address, the answer lies in something deeper.

Part of it, I am saddened to say, is the product of, in Dame Silvia Cartwright’s words, “the unacceptable behaviour in the form of sexual violence, harassment, discrimination and bullying, [that] is part of the fabric of the legal profession”.7 The Law Society accepted the Working Group’s recommendations and has included standards relating to violence, harassment, discrimination and bullying in our client care rules. We hope, most sincerely, that the corner has been turned, or at least that new rules (alongside mandatory reporting) will help to uncover and address this type of behaviour.

Part of gender inequity is the product of unconscious bias. We all have a significant role to play in addressing that – by proactively seeking equity for all lawyers. The Bar Association has been working with the Law Society in bringing together three disparate documents on gender equity, to make them one: the Gender Equity Charter, the Guidelines to the Charter and the Gender Equitable Engagement and Instruction Policy. We hope to be able to bring that to you very soon, with more concise policies, initiatives and targets.

We have many strands of flax to weave into this particular mat before it is good and strong. But we are making progress. And there are more weavers in the whare now.

The regulation of lawyers and legal services

On 3 September 1869, Parliament passed the New Zealand Law Society Act 1869. District Law Societies were formed in a piecemeal way over the 16 years that followed. Significant reforms came through the 1982 Act, ahead of the one society model in the 2006 Act. Now for the first time, we ask ourselves: is this tūwhara woven in the right way for us now? Should we add some more flax? Should we undo it and weave it in a different way? Or should we make two or more separate mats?

Having received the views of our members, deliberated within our working group and organised the views that emerged, we have in our response to the Law Society’s Independent Review Panel approached the issues raised by asking in each case: what is the issue that arises and does it need fixing? If something is needed, can that be achieved through improvements to what we have already? Or is something more fundamental required?

Our response paper is available online.8 In it we urge caution when considering any change that may impact the independence of the legal profession from government. Unlike other professions, the practice of

law has a separate and independent role in upholding the rule of law that from time to time brings it into inevitable conflict with the government of the day.

While we see the regulatory and representative roles of the Law Society as, on their face, being compatible, we regard it as being important for there to be reform in the Law Society’s governance structure. And we see it as being imperative that there be a fundamental review of, and reform within, the complaints system. The present system is inefficient and does not meet the needs of complainants or lawyers well. We see a triage system as being important to identify and deal with unmeritorious claims summarily, along with a new stratification of offending conduct.

We point to the need to cater for an increasingly diverse profession. We confirm our support for the integration of Te Tiriti o Waitangi principles into the activities of the Society, and we support the professional regulation of all providers of legal services, including advocates.

We consider that the Law Society needs to better focus its role on independence and leadership, while welcoming the increasing diversity of the profession, as exemplified by the interest groups that have been established under the umbrella of the wider legal profession. This increase in diversity will strengthen the Law Society and will have a role in facilitating discussion.

The Bar Association leans towards the view that the root causes of the problems that have led to the review are matters of execution, not necessarily clarity of purpose. Rather than unravelling the mat, we believe that certain alterations are needed to strengthen the weave.

The legal aid crisis and the well-being of the criminal bar

An issue that has hit its peak over the last few years is the legal aid crisis and, together with the effect Covid-19 has had on criminal trial backlogs, its impact on the criminal defence bar and on access to justice. We all know of the outcomes of the New Zealand Law Society Access to Justice Survey in October 2021. 80% of legal aid lawyers are working excessive hours, 63% will not do it at all now because of the rates and the pressures, and a considerable number of providers are exiting the scheme.

The $150 million legal aid injection (to be provided progressively over 4 years) in the last budget round is a welcome start. But the underfunding, for a generation now, is so profound – with some rates not having change for over 20 years – that it really is no more than a plaster on a wound that needs surgery.

When the diminishing criminal defence bar is confronted with the backlogs for criminal trials that

have been caused by Covid-19, the mental health toll that is being taken on its members is of the gravest concern. Pressure to accept often back-to-back trial dates, a resulting lack of any form of break or holiday, and low income levels are causing criminal bar members to say to us “we are really struggling here” and “this job will get me in the end”. A senior member of our criminal bar referred me to this utterly compelling article by UK barrister Joanna Hardy-Susskind on much the same conditions at the UK bar.9

As Joanna Hardy-Susskind says there, “without an HR department, the job takes and takes… There are no limits as to how much or how often you can wreck your well-being, your family life; your boundaries”. The dire situation in the United Kingdom has led to criminal barristers starting an indefinite strike. They are asking for implementation of the recommendations made in Sir Christopher Bellamy’s Ministry of Justice facilitated independent review of criminal legal aid.

While the UK government has proposed a 15% increase in legal aid rates, the Bellamy report calls for a raft of systemic changes “to place criminal legal aid on as sound a financial footing as possible, capable of attracting and retaining the necessary talent, and respecting the quality of arms”.

It seems that a review of that kind might be needed here too. A review which – to draw from the terms of reference of the Bellamy review – seeks to ensure that the criminal legal aid system provides high-quality legal advice and representation, is provided through a diverse set of practitioners, is appropriately funded, is responsive to user needs now and in the future, contributes to the efficiency and effectiveness of the criminal justice system, is transparent and resilient and is delivered in a way that provides value for money to the taxpayer.

A parting word

These are the most complex of issues. They are deeply unsettling. They are intergenerational. But, as we all go down to the weavers' whare, as we sit together and place our hands on the flax, as the strands of the tūwhara slowly entwine to build a stronger base, we have it within our power to make significant changes for those who sit here after us.

At the bar, we are well-placed to help achieve the change that is needed in our time. The work

undertaken by our Bar Association Committees clearly demonstrates the desire to change for the better. Committee members are keen to make a difference through their mahi (fuller details of which can be found in our recent Annual Report).

The goodwill and the camaraderie of the bar is, I am constantly reminded through my experiences at the Bar Association, nothing short of remarkable. As I mentioned at the end of the President’s report in the Annual Report, it is difficult to describe in just a few words how privileged I have felt, throughout my term, in being the President of the New Zealand Bar Association | Ngā Ahorangi Motuhake o Te Ture. Virtually every day has brought a new challenge, a new interaction and has introduced me to a member of the bar I didn’t otherwise know. I have enjoyed the opportunity to think deeply about issues across the areas in which we practice and to endeavour to make changes wherever possible.

I could not be prouder to have been able to work with the members of the Bar Association Council and its Secretariat. They are a remarkable, motivated and inspirational group of people. We have gone about our work with such a high level of goodwill that even the most challenging tasks have been a pleasure. I thank you all for having me.

Incoming President: Maria Dew KC

On 1 October 2022, passionate straight-talker Maria Dew KC takes over the presidency of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, as we bid fond farewell to dedicated current President Paul Radich KC.

Maria was appointed Queens Counsel in 2018 having joined the independent bar in 2000. Focusing on all areas of employment law throughout her career, she also acts in civil professional misconduct disputes. She has recently finished her term as Deputy Chair of the Health Practitioners Disciplinary Tribunal and remains expert panel member on several legal panels. She has been a member of the NZBA Council from 2017, when she first served under Clive Elliott KC and later Kate Davenport KC during their respective terms as President. Maria returned to Council in 2021, when she became President Elect. She has now had the benefit of serving under three different Presidents, taking valuable experiences from their different terms.

Each President brings their own talents and perspectives to the presidency, and Maria is no exception. With her strong reputation for leading independent investigations and reviews on public matters, she is well placed to understand the context in which the NZBA operates and to assimilate and respond to the changing needs of members and the Association as a whole.

Doing just that as an NZBA Council member, Maria led the launch of our recent member survey to understand the needs of our members.

Access to justice has been an overarching theme for Maria since she first joined the Council in 2017. Maria was involved in the NZBA Access to Justice Report in 2018, which has led on to our initiatives pressing for improvements in legal aid and recognition and funding for community pro bono services through the newly established Te Are Ture.

Maria also has a strong commitment to improving diversity at the bar, ensuring barristers of all backgrounds are able to work in a healthy and inclusive environment, supported by professional organisations such as the NZBA. A component of Maria’s commitment to diversity is a focus on gender equitable engagement of senior women barristers. As a Bar Council member, she been involved in the recent update to the joint NZLS and NZBA Gender Equality Charter.

Maria’s clear thinking and ability to get to the nub of things, along with her drive and passion for these and many other issues, are keenly anticipated by the NZBA.

It’s an exciting time to be on the NZBA Council, and the Bar Council and the Secretariat warmly welcome Maria and look forward to the changes ahead.

Past Presidents of the Bar Association

Jun 1989 – 1990

1990 – 1992

Mar 1992 – Feb 1994

Mar 1994 – Feb 1996

Ted Thomas QC

Jim Farmer QC

Jim Farmer QC

Julian Miles QC

Mar 1996 – Feb 1998 Raynor Asher QC

Mar 1998 – Aug 1998 John Wild QC

Sep 1998 – Feb 2000

Stuart Grieve QC

Mar 2000 – Sep 2002 Stuart Grieve QC

Oct 2002 – Sep 2004 Robert Dobson QC

Oct 2004 – Sep 2008

Jim Farmer QC

Oct 2008 – Sep 2010 Colin Carruthers QC

Oct 2010 – Sep 2012 Miriam Dean QC

Oct 2012 – Sep 2014 Stephen Mills QC

Oct 2014 – Mar 2016 Paul Mabey QC

Apr 2016 – Sep 2018

Clive Elliott QC

Oct 2018 – Sep 2020 Kate Davenport QC

Oct 2020 – Sep 2022 Paul Radich KC

Oct 2020 – Maria Dew KC

Access to a wealth of resources is crucial for the different players in the world of law

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The LexisNexis

New Zealand Bar Association | Ngā Ahorangi Motuhake o te ture Access to Justice Award

After four failed attempts to hold our Annual Conference, our fifth try was magic and on 16 and 17 September 2022 the Conference went ahead. We were particularly looking forward to the Conference formal dinner, when we would be presenting our inaugural LexisNexis/New Zealand Bar Association | Ngā Ahorangi Motuhake o te ture Access to Justice Award. On 17 September 2022, Maria Dew KC presented this award to Frances Joychild KC.

The genesis of this award was a series of NZBA meetings in 2017 and 2018 and the resulting NZBA Access to Justice Working Group and Report 2018, Āhei ki te Ture. Our Report concluded as a recommendation, that if we want to promote access to justice, we have to also honour those exemplars who do the work.

This Award was born therefore to celebrate, acknowledge and support those who do the hard graft, often without recognition, because these people are not people who generally seek to promote themselves.

We mentioned the idea of an Award to our partner, LexisNexis. They immediately said they would like to join us and sponsor this award, as they felt that it ties in with their rule of law global endeavour. In 2019 the LexisNexis Rule of Law Foundation was created - a not-for-profit organisation dedicated to advancing the rule of law around the world. While Aotearoa New Zealand fares well in many aspects of the rule of law, LexisNexis recognised that there are barriers to justice, particularly around access to legal remedy.

“We are very proud to support and encourage, in some small way, the various innovative and practical initiatives driven by members of the NZBA to effect change in this area,” says Chris Murray Head of Content Management at LexisNexis. This type of cooperation is not unusual for his company. In 2015 LexisNexis partnered with the International Bar Association to develop the eyeWitness to Atrocities app to help citizens capture footage of potential war crimes which could be used in later prosecutions. In May 2022, the app recorded a chilling benchmark of 10,000 verifiable videos, photographs, and audio files of alleged war crimes from the war in Ukraine.

The Access to Justice Award will be presented annually as a “thank you” to the lawyers who make it possible for the difficult cases to be heard, for the disadvantaged to access our courts, and for us to say we support the rule of law. For those lawyers who do this work, often at considerable personal and financial cost, the Award says, “we see you and honour you.”

The Award is, therefore, intended to recognise a New Zealand lawyer who has made an outstanding contribution to the promotion of access to justice. This may have been through advocacy, leadership and/ or influence. The Award is open to all New Zealand barristers sole, barristers and solicitors, academics, and/or law students.

Chris Murray Head of Content Management at LexisNexis and Frances Joychild KC

The winner of the Award must have demonstrated:

• A strong commitment to access to justice in the community offering services pro-bono, low bono or legal aid service to individuals and/or community organisations; and

• Outstanding leadership, influence or innovation to enhance the provision, management and delivery of legal services to enable better access to justice outcomes for individuals and/or communities.

The Prize is in two parts. The first is a tailored package from LexisNexis, of one of the following options:

1. A one-year subscription to the NZBA e-library package; or

2. A customised online content package, valued up to $3600 or a credit up to this value; or

3. A donation of the equivalent amount to an organisation relating to the honouree’s work or preference.

In addition, as the second part of the award, the winner will receive a cash prize from the Bar Association of $2000. This money will come from the donation funds given to the Bar Association by the late Dr Gerard McCoy QC. We acknowledge his memory and his own well-known contributions to the law.

Our winner:

Our inaugural recipient, Frances Joychild KC, is someone who more than fulfils the criteria. She is rightly regarded as one of New Zealand’s leading public law and human rights advocates. The range of her work is vast and includes being counsel on significant cases in many areas including Bill of Rights and Human Rights Acts, health and disability, education, immigration and refugee law, domestic violence, and abuse in care settings.

In her 30 plus year career, Frances has built a body of work that is the very definition of what it is to commit to access to justice. Straight out of Victoria University with a Bachelor of Law and a Bachelor of Arts majoring in Political Science and Public Administration, she became investigator, then Legal Adviser and Counsel to the Human Rights Commission. Frances joined the independent bar in 1998. She was a Law Commissioner from 2003 to 2006. She then took silk in 2013.

Frances was senior counsel for the parents of severely disabled adult children in the successful Court of Appeal landmark discrimination case of Atkinson v Ministry of Health, that established the test for discrimination under the Bill of Rights Act. She also acted as senior counsel for the Child Poverty Action Group, in long running litigation against the Attorney General. Though not ultimately succeeding it made some important wins for human rights claimants along the way, including the Court of Appeal sending a message to the government that the Courts will

scrutinise government justifications for discrimination even in areas of economic and social policy. In 2017 she succeeded in a refugee appeal to the Court of Appeal relating to religious rights. In 2019 she won a Supreme Court judicial review on behalf of a refugee denied a first hearing that has set the courts in a new direction in public law.

In 2017, Frances conducted a Report for the Chief of Air Force, New Zealand Defence Force, concerning allegations of historic bullying and sexual assault and review of contemporary procedures and made recommendations for change. Earlier, in 2002, she had undertaken a review of the MSD fraud unit's application of the law which resulted in debt payments being returned to hundreds of beneficiaries. More recently Frances represented the Islamic Women's Council of New Zealand in the Royal Commission of Inquiry into the terrorist attack on Christchurch. In the last two years, she has been counsel for Lake Alice abuse survivors in the Royal Commission of Inquiry into Abuse in State Care.

In Covid times, Frances represented pregnant woman Bergen Graham, who was stuck in El Salvador while pregnant and denied a MIQ spot six times. Frances filed a judicial review claim on behalf of Graham, and shortly after, her allocation was granted.

Frances has now been appointed to lead the inquiry into historic abuse at Dilworth School alongside Dame Silvia Cartwright.

Frances is eminently qualified to receive this award. Access to justice is a simple principle, but it operates in a complex area, with very few easy solutions. It needs champions. We thank Frances for her mahi over the years and for persisting to highlight the issues for us all.

Frances Joychild KC recipient of the inaugural LexisNexis/ New Zealand Bar Association | Ngā Ahorangi Motuhake o te ture Access to Justice Award

Kōrero – bar news

Congratulations to new South Auckland Bar Association President

Iswari (Ish) Jayanandan has recently been appointed as President of the South Auckland Bar Association (SABA).

Many of our members know Ish through her work over the last couple of years on our Bar Council, Diversity and Inclusion Committee, and Criminal Committee. Ish co-chairs both of these committees. She has also a long history of working with ADLS Inc.

Ish has been a force to be reckoned with in Manukau for many years and is known for her considerable support of all barristers at the South Auckland bar. While she herself is a specialist in criminal law, she has worked across the spectrum to ensure that the voice of the profession is heard.

Committees

Our commitees continue to grow and develop. Juliet Philpott has recently joined our Employment Law and Privacy Committee, bringing with her extensive experience as you will see from her bio below.

Juliet is a public and administrative law specialist at Hawkestone Chambers in Wellington. She has particular expertise in privacy and information law. Juliet has been practising for 20 years, including in London and Melbourne, and joined the independent bar in 2020 from Meredith Connell. She is a member of the New Zealand Law Society’s Human Rights and Privacy Committee and a member of the Wellington District Licensing Committee.

Kate Sheppard Chambers

Kate Sheppard Chambers barristers have been busy over the last few months providing expert advice and appearing in Courts and Tribunals across Aotearoa. We have grown to 22 members. In April we welcomed Jamie O’Sullivan and Tiffany McRae followed by Genevieve Haszard in June 2022.

Jamie is an expert litigator with extensive experience representing and advising a range of public sector agencies. Her key practice areas are regulatory, criminal, public and disciplinary. Tiffany specialises in criminal defence work. She has experience in a wide range of criminal matters including judge alone trials, bail hearings, charge negotiations and sentencings.

Genevieve has over 21 years of litigation experience both in New Zealand and Australia working in private practice and as a barrister sole. While having a broad litigation background in both civil and criminal law, Genevieve has particular experience in civil, criminal and family appeals, relationship property disputes and coronial inquiries.

Our members have also been involved in professional education and governance. In May, Kate Sheppard Chambers hosted the third Doing Law Differently event. Charlotte Griffin, Elana Geddis, Dhilum Nightingale, and Sarah Shaw explored the flexibility and opportunities offered by the bar and gave an insight into practice as part of a virtual chambers. The fifth Doing Law Differently event, Intertwining Journeys in Academia and Practising Law, on 31 August featured Dr Rhonda Powell. The panel discussed their experiences of being an academic working in the legal profession, both concurrently and consecutively. They shared their stories about their research, teaching, and legal practices.

Lizzy Wiessing presented a very well received Legalwise seminar in June on water reforms and implications. That month we also celebrated Dr Alison Gordon’s appointment to the New Zealand Women’s Law Journal –Te Aho Kawe Kaupapa Ture a ngā wāhine Trust Board.

Dhilum Nightingale has recently received this year’s Borrin Foundation Community Law Fellowship. Dhilum will undertake important research examining employer accountability in relation to migrant exploitation within Aotearoa New Zealand. We are also very proud to announce Anna Dombroski as the winner of the annual Kate Sheppard Chambers scholarship for research on women and the law. Anna’s honours research will examine the defences of compulsion and duress of circumstances.

Lambton Chambers celebrates its 25th anniversary

Lambton Chambers held its long-awaited 25th anniversary celebration on 4 August 2022. Originally scheduled to be held in September 2021, the celebration had to be postponed when the country went into lockdown two weeks before the event. The event was well-attended by practitioners, clients, family, and past and present members of the judiciary. It was held at Public Trust Hall, a modern and state-of-the-art function venue in the historic Public Trust building on Lambton Quay, Wellington.

Lambton Chambers was founded in 1996 by David Collins (now Justice Collins), John Morrison and Pam Davidson. John and Pam are still members of the Chambers, which now comprise 14 barristers (two having recently retired). All three founding members spoke at the event and the

formalities finished on a musical note with a performance by the Bach Choir of Wellington.

In her welcome remarks, Pam Davidson recounted that the original three were eventually joined by Ken Johnston (now Associate Judge Johnston) and Kim Murray in 1997, Chris Jurgeleit in 1998 and Andrew Beck in 2002. Justice Collins left to become Solicitor-General in 2006 and from 2011, Lambton Chambers expanded to include Paul Michalik, Gaeline Phipps, Terry Sissons, Barbara Hunt, David Milliken, Toby Gee, Debra Angus, Ian Carter (now Judge Carter), Tanya Kennedy, James Mahuta-Coyle, Felix Geiringer, John Goddard and most recently, Ben Nettleton.

Pam noted that over a quarter of a century, the members of Lambton Chambers have developed a bond, a shared sense of belonging and an esprit de corps and they have the best of both worlds practising independently yet feeling they were part of a team.

It is with sadness that we note the passing of Lambton Chambers member Andrew Beck, on 24 September 2022. Andrew was an active member of the Bar Association as a member of the Advocacy Committee and he was a contributor to our work on law reform. Our thoughts are with his whānau, friends and colleagues – Maria Dew KC, President.

Mai Chen joins the independent bar and founds Public Law Toolbox Chambers.

“I am looking forward to working with instructing solicitors and learning from other barristers. I am also looking forward to expanding my colleague base and spending my time solving complex public law problems, which remains my first and greatest love in the law. I have had a lot of help getting to this point and I want to thank the KCs and barristers who have encouraged me and given me their wisdom about how to make the transition.”

Public Law Toolbox Chambers will be a home for barristers who are experienced experts in using the public law toolbox to solve problems for clients. This includes barristers who specialise “upstream” in policy making, law drafting and making submissions to influence law making and the select committee process as well as those who specialise “downstream” in judicial reviews and declaratory judgments when litigation has become necessary as a last resort. The reach of public law also includes issues in Te Ao Māori and Te Tiriti o Waitangi, the NZ Bill of Rights Act, discrimination and Royal Commissions, reviews and inquiries.

“Public law backs into so many other specialist areas of the law but the focus of these chambers will always be at the interface between public law and other specialties, whether it be commercial law, employment law, or criminal prosecution by regulators and white collar crime.

“Public law practice promotes the upstream building of systems and processes to promote access to justice. Public law also promotes providing legal advocacy for individuals whose access to the law or voice before the law has been hindered or denied. Barristers in these chambers will be committed to promoting and upholding the rule of law – the notion that all are equal before the law.” - Mai Chen

Public Law Toolbox Chambers will operate from physical premises in the Auckland CBD but will also be a virtual chambers for barristers outside of Auckland.

Is the nominated persons system working for our vulnerable youth?

Judge John Walker*

We all aim to recognise and account for the vulnerability of children and young people at every stage of the youth justice system – from their initial encounters with police, to their appearances in the Youth Court and beyond.

The inherent vulnerability of children and young people in one of the very first steps in the youth justice process – police questioning – is explicitly recognised in the Oranga Tamariki Act. It is well known by now that young people, by virtue of their age, have an underdeveloped brain. Certain traits such as lower executive functioning and risk assessment skills influence both the behaviour that brings young people to the attention of the police and their behaviour when they interact with the justice system.

In recognition of this developmental immaturity and vulnerability, young people are statutorily entitled to special protections in the course of police questioning. A key protection is the right to consult with, and make any statement in the presence of, a lawyer and/or a nominated person. An enforcement officer must explain this right to a child or young person in age-appropriate language prior to questioning where there are reasonable grounds to suspect them of having committed an offence, or where the questioning is intended to obtain an admission of an offence. A statement by a child or young person must be made in the presence of a lawyer, nominated person, or both to be admissible in court.

In order for this right to be effective as a protection, the young person will need to understand the choices available to them and be in a position to assess whether the right should be exercised or not and in what form. The young person will need to understand what a lawyer does, what their role is and how they can assist, and will need to appreciate the lawyer/client relationship, confidentiality and the duties of lawyers to clients. They will need to understand that the lawyer is free of charge, that they will work in the child’s interests and that they are not part of the police who it will seem are providing the lawyer. They need to understand all of this or else it is likely they will choose to go with a nominated person, who they may readily see as a supporter. The problem is that a nominated person is unlikely to understand the intricacies

of the law or what is in fact required to support a young person and are unlikely to provide advice on whether the right to silence should be exercised.

When an adult is taken to a police station for questioning they will be told that they have a right to consult and instruct a lawyer, and that if they do not have a lawyer then one will be provided from a list of lawyers available to provide such advice free of charge. They are not told that they can instead just have a lay person support them in the process. If that is all the assistance they had, it would be unlikely that what they said would be admissible in court.

The question then becomes – should it be possible for our most vulnerable young people to have less protection than an adult when being questioned by police?

Experience has shown that a child or young person, without a full understanding of the type of advice a lawyer could give them, will often choose only to consult with a nominated person. A nominated person may be a parent or guardian of the child or young person; an adult member of the family, whānau or family group; any other adult chosen by the child or young person; or an adult nominated by the enforcement officer if the child or young person refuses or fails to nominate someone. A young person may fail to nominate someone because they do not have anyone that they think will support them or they are too embarrassed to let anyone know they are being questioned by the police. In that event, the person they will need to rely on for advice and support will be selected by the police, for example, a Justice of the Peace.

More often than not, the nominated person will be a family member, typically a parent or caregiver. While the presence of a family member as a support person during police questioning generally accords with the legislative emphasis on upholding family and whānau involvement at the centre of responses to youth offending, the presence of a lawyer will not displace that involvement.

Under the Oranga Tamariki Act, the duties of nominated

Principal Youth Court Judge John Walker recently wrote this editorial in issue 89 of Court in the Act. We think it is important to share this article with members.

Should it be possible for our most vulnerable young people to have less protection than an adult when being questioned by police?

persons include taking reasonable steps to ensure that children and young people understand their rights during police questioning and supporting them before and during the questioning process and the making of statements. Compared to a lawyer, nominated persons will themselves often lack a full understanding of the young person’s rights. They likely will not know when to correct enforcement officers who give inaccurate advice or when to intervene where inappropriate questions are being asked. They may not understand the serious jeopardy that a young person could be facing, particularly where complex legal matters such as party liability for group offending are relevant. They may be emotionally connected to the situation and unable to provide objective, reasoned advice. They may try to speak on behalf of the young person or pressure the young person to admit to the offending. They may not know that a valid defence exists or that there is a lack of evidence to charge the young person. In some situations, nominated persons, through lack of understanding, may unintentionally act entirely contrary to the young person’s best interests.

Taking these issues into account, I suggest it is time to explore whether the nominated persons system adequately provides the necessary special protections for inherently vulnerable children and young people during police questioning. We know much more about the disabilities which may be affecting a young person than was known in 1989 when the Act was passed. Our exploration of this issue will be informed by the growing awareness of the prevalence of neurodisabilities and other vulnerabilities amongst the young people who interact with the justice system. In addition to having generally underdeveloped brains, the cohort likely to be questioned by police on serious charges are highneeds young people who often experience complex issues such as neurodisabilities, mental health issues, substance abuse problems, impacts of childhood trauma, or a combination of all these factors. Neurodisabilities (ranging from autism, fetal alcohol spectrum disorder, ADHD, dyslexia, and acquired brain injury, to name but a few) in particular are likely to impact on a young person’s ability to understand the legal system and the choices they have within it. Young people with neurodisabilities may struggle to understand the language used during police questioning, such as the legal terminology used to describe the charges they are facing and the implications of those charges. They may be particularly

hypersensitive in stressful situations, which heightens the risk of inaccurate statements or false confessions. They may have difficulties processing information, including explanations of their rights or details of the allegations made against them. Nominated persons themselves may experience similar vulnerabilities or other challenges which affect their ability to effectively advocate for a young person.

In my view, it is time to consider whether the nominated person option remains fit for purpose when we apply our current knowledge. We need to consider whether the availability of this option affords young people less protection than that given to adults, when usually we would be affording them greater protection. It may be time for the Oranga Tamariki Act to require the assistance of a lawyer before any statement by a young person is admissible in court.

A primary consideration in the administration and application of youth justice legislation is the well-being and best interests of the child or young person accused of offending behaviour. All credit is due to the youth justice stakeholders who are relentlessly committed to adapting our processes to promote the well-being of our rangatahi. This applies to the frontline Police Youth Aid officers who divert the majority of young people away from formal court interventions, to the multi-disciplinary Youth Court teams who provide wrap-around support for the young people who do appear in the courtroom.

Once young people enter the Youth Court, they are universally provided with legal representation and, if necessary, communication assistance to support them to be seen, heard, understood and meaningfully participate in the proceedings. There is no reason why children and young persons’ needs and best interests ought not to be similarly protected throughout the entire legal process, right from their first interaction with the justice system.

...it is time to consider whether the nominated person option remains fit for purpose when we apply our current knowledge.

Judge Walker

Principal Youth Court Judge for New Zealand

A good judgment:

Lord Justice Peter Jackson's outline Warren Pyke*

Cases involving the care and protection of children in the United Kingdom require judges to embark upon a balancing exercise by which each option is evaluated (see Re R (A Child) (Adoption: Judicial Approach) [2014] EWCA Civ 1625, [2015] 1 WLR 327). In B (A Child)(Adequacy of Reasons) [2022] EWCA Civ 407), the Court of Appeal found that the judge at first instance had not undertaken a balancing exercise and had failed to consider all of the evidence, which led to an incomplete ‘linear analysis’. The appeal was allowed.

In a concurring judgment, Sir Andrew McFarlane P observed, at 21, that: ‘... justice will not be done if it is not apparent to the parties why one has won and the other has lost.’ Citing English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, Lord Justice Peter Jackson added that that the appeal called for another reminder about what constitutes a ‘good judgment’. Lord Justice Jackson’s guidance is valuable for lawyers too; it was as follows, commencing at 57 (since paraphrasing cannot usefully shorten or improve upon the writing, the following passages are verbatim).

“A judgment is the means by which the court delivers its decision to the parties and to the world beyond. There is no one way of doing that, but every judgment, whether delivered orally or handed down in writing, will have a structure. The structure chosen will depend on the nature of the case, but a reasonable structure is essential for disciplined and transparent decision-making. It helps the judge to make the best possible decision and others to understand why the decision has been made. The court's task is not accomplished by handing down a decision that happens to be correct if it is not also properly explained. Fairness to the losing party demands no less.

“Judgments reflect the thinking of the individual judge and there is no room for dogma, but in my view a good judgment will in its own way, at some point and as concisely as possible:

(1) state the background facts;

(2) identify the issue(s) that must be decided;

(3) articulate the legal test(s) that must be applied;

(4) note the key features of the written and oral evidence, bearing in mind that a judgment is not a summing-up in which every possibly relevant piece of evidence must be mentioned;

(5) record each party's core case on the issues;

(6) make findings of fact about any disputed matters that are significant for the decision;

(7) evaluate the evidence as a whole, making clear why more or less weight is to be given to key features relied on by the parties;

(8) give the court's decision, explaining why one outcome has been selected in preference to other possible outcomes.

“The last two processes – evaluation and explanation – are the critical elements of any judgment. As the culmination of a process of reasoning, they tend to come at the end, but they are the engine that drives the decision, and as such they need the most attention. A judgment that is weighed down with superfluous citation of authority or lengthy recitation of inessential evidence at the expense of this essential reasoning may well be flawed. At the same time, a judgment that does not fairly set out a party's case and give adequate reasons for rejecting it is bound to be vulnerable.”

Little additional commentary is needed. If counsel’s submissions broadly follow this format they are more likely to be adopted, subject to how persuasive the reasoning to the result desired for the client may be. A structured analysis not only serves to persuade, it also creates an ordered understanding by counsel of their case before they get to court, which is essential if counsel are to handle the exchanges that can occur in oral hearings.

Further to the topic mentioned by Sir Andrew McFarlane, one of the complaints one hears from counsel and litigants is that their arguments have either not been stated or have been restated inaccurately by judges. The disappearing argument creates suspicion of forgetfulness or bias; a short statement saying why an unmeritorious argument by a court is wrong, will serve to allay such concerns. Misstating an argument is more pernicious. A reframed version of an argument can be deployed to shoot the substance of a point down, and this can even occur without the reframed version having been put to counsel during an oral hearing; if this occurs in a judgment on appeal, a further challenge may be unavailable.

Adopting the discipline of Lord Justice Jackson will enable judges to see and avoid errors of internal reasoning. Unless arguments are deliberately disappeared or distorted by sophistry (which one hopes never occurs), the method advocated by Lord Justice Jackson will minimise occasions for litigants to feel aggrieved, and avoid much annoyance of counsel. Of course, nothing will serve to satisfy a sore loser.

* Warren Pyke is a leading criminal appeal barrister with over 28 years of experience. Contact Warren at wcpyke@gmail.com.

Case Note: Deng v Zheng and evidence relating to cultural considerations

Barbara Relph and Jacqui Thompson*

At a time of growing diversity in New Zealand’s population, the recent Supreme Court | te Kōti Mana Nui o Aotearoa decision in Deng v Zheng [2022] NZSC 76 gives useful guidance in cases where one or more parties has a different cultural background to that of the judge (excluding tikanga Māori).1

Mr Deng and Mr Zheng had been in a business relationship for 25 years, ending in 2015. The key issue before the court was whether that relationship was in effect a partnership, which would place fiduciary duties on the parties. Mr Zheng claimed that he and Mr Deng were partners and that they had been involved in property development and construction projects conducted in the names of companies. Mr Deng countered that the projects were carried out by companies, and the shareholdings and account balances of those companies reflected the interests of both parties.

Mr Deng was successful in the High Court, but the Court of Appeal overturned that judgment. The Supreme Court gave leave to appeal on the issue of whether the Court of Appeal was correct to make a declaration that there was a partnership between the parties. The Supreme Court also suggested that it might be necessary to consider issues about the “the cultural setting in an arrangement between two Chinese parties” and in particular, the significance of 关系 (guānxi).

The Supreme Court dismissed the appeal, finding that the development project could only be explained on the basis that the parties were partners. However, it commented on introducing evidence of cultural factors.

The Court noted that guanxi is a complex term with multi-faceted meanings, but in this context, it implied a range of personal connections which could be

relied upon to secure resources or advantage when doing business. Guānxi’s bases include kinship or co-working. The relationship between the parties was consistent with these concepts, particularly the apparent significance to them of family relationships and pre-existing friendships in terms of those with whom they did business and the relative lack of formal agreements.2

At trial there had been little evidence about guānxi and it was not referred to by the High Court Judge in his judgment. While not of critical importance in this case (as the relationship emerged clearly from contemporaneous documentation), the Supreme Court said that in other cases the social and cultural framework within which one or more of the parties operated might be of greater significance.

The Court provided guidance as to how relevant information can be brought to the attention of the court. It made the following general observations:

• Cases involving parties with different cultural backgrounds from the judge are common and likely to be even more common in future.

• Each case must be approached with caution, but judges need to develop “… a mental red-flag cultural alert system which gives them a sense of when a cultural dimension may be present so that they may actively consider what, if anything, is to be done about it.”3

• Judges need to understand that that some of the

usual rules of thumb they use for assessing credibility may have no or limited utility.

• Most of the usual ways that judges assess credibility remain available, such as assessing the consistency of a narrative over time and with other evidence (particularly contemporaneous documents) and general plausibility. The Court emphasised that it was not suggesting that parties were required to call social and cultural framework evidence in all cases with a “cultural dimension”.

In cases where information on social or cultural framework is relevant the Court noted that:

• It is open for witnesses to explain their behaviour by referring to their social and cultural background.

• Where there was a relationship between parties (business or personal), the cultural and social framework might be relevant for explaining the way in which the relationship played out.

• These explanations can be supported by testimony, as sections 128 and 129 of the Evidence Act 2006 allows judges to consider sources of information of unquestionable accuracy (section 128) and admit reliable published documents in relation to matters of public history, literature, science and art (section 129).

• Introducing social or cultural information to explain the conduct of another party should be provided by an expert or under sections 128 or 129 of the Act.

REFERENCES

The Court sounded a warning about the risk of stereotyping by assuming, without case-specific evidence, that the parties behaved in ways said to be characteristic of that ethnicity or culture. General evidence about social and cultural framework can be used to help in, rather than replace, a careful assessment of the case specific evidence.

As we work towards inclusivity and cultural sensitivity in other areas of life, Deng v Zheng takes the judicial system a step closer. Forming a habit of approaching cases with a culturally open mind reduces the risk of any unconscious bias or stereotyping (at[81(a)]), leading to improved judicial outcomes for parties of all cultures.

In some circumstances, it might also be helpful to appoint an expert in relation to cultural context. This can be done under r 9.36 of the High Court Rules 2016 and r 9.27 of the District Court Rules 2014.

The final observation is that that it is usually up to parties to put relevant information before the court. Judges can inquire of the parties if they consider that they would be assisted by additional information as to social and cultural context. In many instances, such information will be able to be supplied by submission, relying, if necessary, on s 129.

* Barbara Relph is a writer, editor and proof-readerwww.barbararelph.com.

Jacqui Thompson is the Executive Director of the Bar Association

New Members

Caitlin Allington Auckland Mark Anderson Auckland

Thomas (Tom) Ashley Auckland Max Ashmore Auckland

Andrew (Andy) Beatson Wellington Sebastian (Seb) Bisley Wellington Roger Bowden Whangarei Mai Chen Auckland James Clark Auckland Jiayu (Julie) Ding Auckland Leo Donnelly Auckland Martin Enright Auckland Emma Finlayson-Davis Auckland Toby Fisher Wellington Sam Galler Auckland Alex Greaves Christchurch Julian Hannam New Plymouth

Braden Harris Auckland Kate Henry Auckland John Hickey Auckland Jonathan Holdaway Blenheim Laurene Holley Auckland Marianne Mackintosh Raglan Matthew (Matt) McKillop Wellington Sacha Norrie Auckland James Olsen Auckland Jeremy Prebble Wellington Anna Price Christchurch Benjamin (Ben) Shamy Christchurch Tracy Spencer Auckland Mitchell Staub Auckland Aja Trinder Christchurch Kima Tuialii Auckland

1 The Court excluded tikanga Māori from its comments, recognising that tikanga raises special legal and historical issues. 2 Deng v Zheng [2022] NZSC 76 at [75] – [76].

3Emilios Kyrou “Judging in a Multicultural Society” (2015) 24 JJA 223 at 226.

The role of drafters of legislation

Ross Carter*

Ross Carter, Principal Parliamentary Counsel, Secretary of the Commonwealth Association of Legislative Counsel (CALC) 2015-2022, and author of Burrows and Carter – Statute Law in New Zealand (6th ed, LexisNexis NZ Ltd, 2021), discusses the work of Parliamentary Counsel. The views contained in this article are those of Ross Carter alone, not the Parliamentary Counsel Office or the New Zealand Government.

Most New Zealand legislation is drafted at, and published by, the Parliamentary Counsel Office (PCO), led by Chief Parliamentary Counsel (and Chief Executive) Cassie Nicholson. The Drafting Group drafts Bills, amendments to Acts, and secondary legislation required for the Government's legislative programme. Drafting is done by about 40 Parliamentary Counsel (drafters), all legally-qualified, grouped in five subject-area teams. Their work is both challenging and specialised, and the issues they deal with range across a wide spectrum. The Drafting Group is led by Deputy Chief (Drafting) Richard Wallace, a drafter at PCO since 2003.

Do drafters advocate for or against proposed legislation, or just give effect to policy?

Drafters prepare legislation to implement the Government’s policy. Departments’ policy advisers, and lawyers: (a) develop policy proposals of, or approved by, Ministers (the Cabinet); and (b) instruct PCO to draft legislation to implement the proposals.

In drafting, and advising on, legislation, drafters ask instructors many questions to determine what outcomes the legislation is to achieve. They then help identify whether, and how best, legislation can implement the Government’s policy.

PCO’s objective is technical: to promote high-quality legislation that is easy to find, use, and understand. To that end, PCO exercises stewardship of New Zealand’s legislation as a whole. A department’s chief executive is responsible to the appropriate Minister for supporting that Minister to act as a good steward of the public interest, including by maintaining the currency of any legislation administered by their agency. Policy ideas are, in the end, those of, or approved by, democratically-accountable elected Ministers and other MPs.

As Deputy Chief (Drafting) Richard Wallace has noted, “We work for whichever government of the day, we don't worry about the policy, we don't worry about the government. That's not our concern. Our concern is to make really good legislation.” (https://www.rnz.co.nz/ national/programmes/the-house/audio/2018838304/ painting-the-legal-jigsaw-one-piece-at-a-time).

How do you identify the legislative options that may be open?

Ideas for legislation come from many sources (e.g., Ministers, backbench MPs, Law or Royal Commissions, or other reviews or inquiries). Government departments’ policy advisers, and lawyers, identify the policy problem, and evaluate possible solutions. They,

or their drafters, may also identify existing precedents from New Zealand’s statute book or overseas. (For example, comparable overseas legislation helped inform New Zealand’s Criminal Records (Expungement of Convictions for Historical Homosexual Offences) Act 2018 and Terrorism Suppression (Control Orders) Act 2019.) But many proposals innovate, either to solve new problems, or to fit New Zealand’s unique legislative context. A whole new scheme may be needed. If so, PCO develops it and refines it, usually over many iterative drafts. Different drafters may, within the requirements of current legislative drafting practice, devise different detailed effective solutions to matters not covered by standard provisions. The aim is clear. Simple and effective solutions that best fit New Zealand’s statute book as a whole.

What are drafters looking for when reviewing legislation?

Drafters’ work is heavily scrutinised – by themselves, PCO drafter peer reviewers, PCO’s excellent legislative editors, Ministers and other instructors, other interested departments or agencies, parliamentary authorities, MPs, submitters, the affected public, lawyers, and courts and tribunals. PCO drafters and editors checking legislation look for (and in most cases eliminate) errors that need correction, compliance with current and best legislative drafting practice, and possible demonstrable improvements, including changes to simplify and clarify expression. When revising existing legislation for re-enactment, drafters can do a lot to update, simplify, and otherwise follow best current legislative drafting practice.

Plain language legislation – is it really plain, or does it give rise to its own issues?

Drafters aim to draft legislation that is as clear, simple, and as effective as is practicable.

Plain language makes legislation much easier to find, use, and understand.

Legislation can use general-principles-based, or more detailed, drafting. There is something to be said for each approach. Both can, however, also give rise to issues of interpretation.

Plain language legislation is essential, but cannot alone solve all problems of interpretation:

“[O]ne result of the modern style of drafting may be that there are simpler provisions which are more general and therefore there might be more scope for argument as to what they cover. Statutory interpretation will, therefore, occupy the minds of judges, lawyers and citizens for some time longer. Although hopefully, the interpretation exercise will be less strenuous than it once was.” (Justice

Susan Glazebrook, “Statutory Interpretation in the Supreme Court” PCO, Wellington, 4 September 2015, p 3.)

PCO is committed to plain language drafting. But it requires a focus on improvement. So PCO’s intentions for 2020–24 include showing continuous improvement in the use of plain language in legislation, and commissioning audits to compare legislation, in order to measure progress.

PCO therefore applies a plain language standard. It also uses a checklist that expands on, and helps ensure compliance with, each element of the standard.

Most users think modern legislation is generally much easier to use than considerably older legislation. But there will always be criticism, some justified, of the drafting of legislation. All users of legislation (including its drafters) are inconvenienced by shortcomings in its drafting.

So drafters aim to draft legislation that is as clear, simple, and as effective as is practicable. This includes in large and complex Acts, like those for financial markets conduct or social security.

This is a never-ending journey of improvement and continual focus for drafters. Many critics of legislative drafting have never themselves drafted legislation. My view is that it is hard, but very rewarding, to draft high-quality legislation that is easy to find, use, and understand.

Fit-for-purpose issues – how far can PCO drafters take this consideration?

PCO’s vision is for legislation that is great law for New Zealand. That means legislation that is accessible, fit for purpose, and constitutionally sound. Policy is tested by PCO (gently) to help ensure that, and how, it is workable to achieve the wanted outcomes. This can result in a proposal being dropped. Mostly, the result is that the proposal is just adjusted and refined.

Legislation’s purpose (overall, and at lower levels) is often stated in the legislation itself. This helps to ensure those who frame, enact, and interpret and apply the law are focussed on whether it is fit-forpurpose (technically effective to achieve its purpose). For example, the purpose of the winter energy payment (as stated in the Social Security Act 2018, s 70) is to provide targeted financial assistance to help certain people meet their household heating costs during the winter period. Whether financial assistance of this kind should be provided and how it should be targeted are, of course, policy questions. Drafters help ensure fitness-for-purpose by identifying and resolving technical issues – such as inconsistencies, or whether secondary legislation is within power (authorised by its empowering legislation).

Achievement of legislation’s political purposes raises wider questions – such as whether the winter energy

payment is a way to, and is the best way to, achieve health and welfare.

Legislation is machinery made of words to achieve outcomes. Legislators select and approve the outcomes, and how they are to be achieved. But drafters help legislators frame, assess, and approve good options. Technical post-legislative reviews (as, for example, under the Russia Sanctions Act 2022, s 29), and parliamentary elections, help identify whether, and how well, legislation has worked, and what to do in the future. Some legislative change is highly contentious, but a lot is just good routine maintenance. Legislation is a core part of New Zealand’s infrastructure, so it needs constant maintenance.

The High Court said one order made under the Health Act 1956, s 70, was, in one respect, “not a model of good drafting”, but added “we also bear in mind that the Order was prepared in a situation of great urgency, in the eye of a global pandemic, when the crisis was escalating rapidly”: [2020] NZHC 2090 at [274]. The Court of Appeal analysed the order as (a) involving no (sub)delegation; but (b) involving some probably unauthorised exemptions (not subject to a challenge by Dr Andrew Borrowdale, a former drafter at PCO, who litigated to test the order’s lawfulness): [2021] NZCA 520.

How quickly some draft legislation is needed is outside drafters’ control. Urgently-required legislation (say, for emergencies, or Budgets) raises special challenges (and rewards).

PCO has faced unprecedented challenges in supporting the Government’s legislative response to COVID-19. They have affected a lot of PCO’s day-to-day work. Chief Parliamentary Counsel Cassie Nicholson was deservedly LawFuel’s 2020 New Zealand Lawyer of the year. Deputy Chief (Drafting) Richard Wallace also provided immense leadership in this area.

The normal legislative process has been challenged by the need for speed in decision making, the highly uncertain and rapidly changing state of knowledge of the pandemic, and the breadth of issues to be managed across the economy (and so across Government). PCO has worked with other agencies at speed to deliver — and incrementally adapt and improve — fit-for-purpose processes for each round of legislative changes. At the same time, we have continued to deliver the new Government’s broader legislative programme, including new priorities for this parliamentary term (PCO Annual Report 2020-2021, pp 3 and 13).

As Richard has said, “There's been a huge amount of legislation produced in response to [Covid-19]. And we're really proud of what we've achieved in that space. There's been really great work done right across government, working through what's needed to respond to the particular circumstances … We've done our best in the circumstances, knowing that there will generally be an opportunity to make further amendments in the future, because [the legislative response to] Covid-19 is so fast ... in some ways it's more forgiving. We don't want to ever rely upon that. But there is a reality behind that.” (https:// www.rnz.co.nz/national/programmes/the-house/ audio/2018838304/painting-the-legal-jigsaw-onepiece-at-a-time).

New Zealand’s Regulations Review Committee has also criticised recently New Zealand’s Covid-19 Protection Framework Order for its complexity and for containing provisions that are not activated or applied to any area at any time. This drafting approach was taken to optimize flexibility and speed of drafting. The Regulations Review Committee’s work in this area is ongoing, and others such as our Law Commission are also reviewing these laws. The empowering Act may not contain enough core attributes of the scheme, but emergency legislation must also be flexible and responsive to changing facts.

The pandemic’s challenges have been recognised widely. “The legislative drafters around Australia should be congratulated for what they do on a regular basis and in particular for what they have done and continue to do during this time of national uncertainty” (Graeme Johnson & Sascha Kouvelis Lawyers, Sydney in (2020) 94 Australian Law Journal 315 at 322).

It is rewarding to be part of a high-performing team contributing to the pandemic response. The pandemic has affected legislation across the statute book, not just public health laws. Examples are orders modifying laws about making wills and taking statutory declarations. One order continued social assistance (temporary additional support) without an application process that may have been impossible or impracticable to comply with during an epidemic.

For a video where Christy Harcourt describes work as a Parliamentary Counsel, including managing PCO's Covid-19 drafting work, see: http://www.pco.govt.nz/ life-at-the-pco/.

How do you prepare for New Zealand Bill of Rights Act 1990 and Te Tiriti assessments?

Departments’ policy advisers and lawyers who develop policy look closely at consistency with the New Zealand Bill of Rights Act 1990 and Te Tiriti o Waitangi/The Treaty of Waitangi. But PCO works with them also as part of legislation being vetted for compliance with these key principles (e.g., by Ministry of Justice or, for legislation that Ministry administers, Crown Law Office). This is to help make legislation good law because it is constitutionally sound.

How do you balance speed against accuracy in times of emergencies (e.g., the Covid-19 pandemic)

Judicial reviews of Covid-19 legislation show the duty to legislate consistently with the New Zealand Bill of Rights Act of 1990 is a meaningful duty. An example is the recent case of Yardley v Minister for Workplace Relations and Safety [2022] NZHC 291, where a vaccination order was set aside as limiting rights unjustifiably. The order was not needed for the specified purpose of ensuring the continuity of and trust in public services.

The Legislation Design and Advisory Committee (LDAC) and its Legislation Guidelines (2021 edition), which are a guide to making good legislation, help with finding good solutions to especially tricky or recurring issues. The work of the Regulations Review Committee, collected in the Regulations Review Committee Digest (7th ed, New Zealand Centre for Public Law, 2020), is also helpful on secondary legislation issues (like powers to charge fees by regulation, or transitional regulations to override primary legislation).

In May 2022 the Australian Law Reform Commission, hosted a multi-national webinar, including a contribution from New Zealand PCO, on what should go in primary legislation and what should go in delegated legislation. The on-demand recording, including slides and a transcript, are available online.1

REFERENCES

1

2Legislation

The Commonwealth Association of Legislative Counsel (CALC) was established at the Commonwealth Law Conference held in Hong Kong in 1983. CALC's objective is to promote cooperation in matters of professional interest among people in the Commonwealth engaged in, or engaged in training people in, legislative drafting, editing, or translating. CALC has over 2500 members around and outside the Commonwealth. It holds regular conferences and webinars. CALC also publishes a journal (The Loophole) and CALC Newsletter, both available free-of-charge at CALC’s website: www.calc.ngo.

New Zealand drafters (and editors, and translators) of legislation have had a long-standing, and very worthwhile, involvement in CALC. New Zealand PCO drafters must hold a legal qualification.2 Most are barristers and solicitors. Many are also associate members of, and so also enjoy being part of, the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture.

* Ross Carter has been a drafter at PCO since 1998. He was also a Law Commission Researcher (1993 - 1997) and Private Secretary to Hon Dr Michael Cullen, Attorney-General (March - May 2005).

The English Text of the Treaty of Waitangi

by Ned Fletcher

How was the English text of the Treaty of Waitangi understood by the British in 1840? That is the question addressed by historian and lawyer Ned Fletcher, in this ground-breaking new book.

‘A masterful exegesis . . . the quality of Dr Fletcher’s research and the power of his reasoning demands attention and respect.’

— The Hon. Justice Sir Joe Williams

736pp, RRP $69.99

Available now through bookstores and at www.bwb.co.nz (use code NZBAR on checkout for 10% discount)

What is the role of the Commonwealth Association of Legislative Counsel?

Amendments) Act 2019, 5 11(2)(b), and Legislation (Recognition of Overseas

Life at the bar

Lisa Mills*

In June this year the Bar Assocation gathered together a group of members from different backgrounds, practising in different areas and locations, to ask them about their journeys and experiences in coming to the bar. These are their stories, collated and curated by Lisa Mills, Bar Association.

Paul Radich KC

Paul Radich KC took what some may describe as a traditional journey to the bar He went straight from university to working for national – early days, that meant doing everything in the law –criminal, traffic, family, plus a bit of commercial. Gradually, his practice focused primarily on commercial and public law litigation. When a group of friends and colleagues (including his wife Karen) collectively decided to set up barristers’ chambers in 2012, he decided to join them. After 20 years, it seemed the right time to leave the security of partnership.

Because of this career journey he was very lucky to already have an existing client base to tap into, including cases which stretched into the future. So, although he changed the nature of his practising certificate and his place of work, he was fortunate to have work momentum that didn’t stop. He readily acknowledges that his journey is very different to that of others who come to the bar earlier in their careers. However, when asked what would he do differently if he had his time again, his only comment was that he would have come to the bar sooner.

Currently, Paul speaks to people almost weekly who are thinking of coming to the bar, and everybody has the same apprehension: they have mortgages, family commitments, are often comfortable in a law firm, earning a regular income. They see a move to the bar as risky. They worry about their ability to attract work on their own. “In reality,” says Paul, “it generally only

takes a few weeks to discover that there was nothing to worry about.” Paul admits this is easy for him to say, having come to the bar at a senior level, but in his experience even intermediate practitioners who come earlier to the bar are busy because there is a lot of work, and the bar is very good at distributing work among its members. “We all know each other and are aware of people coming in who could potentially do with some work and we are very good at referring work to each other.”

Paul’s current practice is now primarily public law. He acts for government and for Crown entities when they are challenged in their decision making and equally, on the other side of the equation, acting for people and entities who challenge public decision-making. Increasingly, a subset of public law is working in the Treaty space and, having done work in this area since the early 1990s, he finds this type of work now makes up most of his practice.

Paul enjoys the flexibility of life at the bar. Although he is still very busy, as a barrister he has the option that, if he does not have a client commitment or a fixture, he can just put a line though his diary and take a break. “It’s massively flexible. If you want to sleep in, take a long weekend – of course depending on the demands of your current clients – you can do that. Being at the bar cuts down the need to employ staff. Obviously, you can take on some admin people if you need to but, with technology as it is these days, there is not much need to employ people, and then you find you are really only answerable to your clients.”

Paul has learned that having a good work life balance as a barrister can be great, but you have to remember to

regulate what you take on. “There is only one of you so be careful not to take on too much work. In a firm, you have a supportive team who can help by allowing you to spread the workload but, as a barrister sole, you need to get that balance right and, if you don’t, then your work life balancing act becomes counterproductive.

Paul encourages anyone thinking about taking the move to the bar to contact other barristers, buy them a coffee, chat with them, pick their brains, and to back themselves.

Iswari (Ish) Jayanandan

Iswari (Ish) Jayanandan moved to the bar relatively early in her career having dabbled in general practice first at a small firm in Auckland and later at a medium sized practice in Thames. Although she found the work interesting, Ish felt something was missing. In her search for ‘inspiration’, she realised what she was really looking for was ‘adrenalin’. Ish moved back to Auckland in 2004 for family reasons and jumped at the opportunity to be employed as junior barrister working in criminal law. Such opportunities were rare in those days, and she was surprised to be successful in her application. In her work as a junior criminal defence barrister, she found all the ‘adrenalin’ she was searching for, eventually moving on to practice as a barrister sole taking direct instructions in 2010.

Making the switch to criminal defence work was not a difficult or stressful decision for Ish as she was an employed junior and had the support of her senior. This career step gave her security and the opportunity to grow and develop her skills; by the time she went out on her own she was quite confident she could make it work. There was only a “short window of doubt –about 30 minutes”. When asked what she might do differently if she could do it again, she said perhaps she could have allowed herself a bit more time to set things in place rather than the hectic way in which she threw herself into her barristerial practice. Ish believes, however, that “fortune favours the brave, and that sometimes a leap of faith is essential.”

Ish’s practice is largely criminal defence work; although she occasionally represents complainants, and sometimes victims who feel they need help to get their story heard in court. She has recently started working on inquests which is a new area for her. She thought that Covid-19 may have made things quieter for her, but crime did not slow down, and she just seemed to get busier.

Life at the bar as a criminal defence lawyer is oxymoronic – you can experience solitude in a packed courtroom. "You can feel calm and excitement at the same time. It definitely is a rush of ‘adrenalin’. When you are on your feet making closing arguments to a

jury for example, you are completely on your own – no one else in the room is on your side – sometimes, even your client is not in agreement with you! But you can always walk into the lawyers’ room and find someone to talk to who knows too well what you’ve just gone through. Collegiality is definitely a plus at the bar, with colleagues always available either in person or via phone to discuss a case or just lend an ear.”

The other huge advantage is the autonomy that comes with being a barrister. “The ability to decide for yourself what work you want to do, the ability to pick how many cases you want to take on and decline those you don’t have time for, which of course you cannot do if you are employed by someone else.”

Ish has learned how to achieve a better work life balance practising at the bar, but it was a process she learned from experience and was not a given. She admits it’s not easy and she got burnt before she found the balance that suited her. Pre Covid, Ish managed to balance her work and personal life by giving herself two months off per year, travelling overseas (only available to colleagues via phone or email for emergencies). She hopes to resume a similar pattern from 2024. She stresses the importance of having good self control with your diary noting this is not always possible at the beginning of a barristerial career. Ish warns against the danger of taking on too much and becoming “an adrenalin junkie workaholic”. But when you find your balance, the job satisfaction is inspiring, and if you are anything like Ish you will never look back!

Dhilum Nightingale

Dhilum has been at the bar for one year, following 22 years practising as a lawyer in firms and private and public sector organisations. The change has been hugely positive and successful and has allowed her to tailor her practice so it aligns with her values and vision: a just, inclusive and sustainable society where everyone is able to thrive and achieve their aspirations.

Before the bar, Dhilum provided resource management, employment and public law advice including at Buddle Findlay, Transpower NZ Limited and on contract to the Ministry for the Environment. Dhilum was also staff rōia/solicitor at Community Law Wellington & Hutt Valley where she specialised in humanitarian immigration law and migrant exploitation advocacy.

Dhilum enjoyed the variety from these different roles but the mixed employment/contractor model did not give her the flexibility she needed to design each day as she wanted to. For example, having set days and hours in an employment relationship meant she had to turn away work contracts that clashed with those days. The decision to take the leap to the bar took some courage and was not without self-doubt. Dhilum did not

really see herself as a barrister with a lot of litigation experience in the traditional sense. She reached out to some experienced barristers she knew, and their kindness and encouragement helped to dispel the imposter syndrome demon and gave her the confidence to make the move. One of the barristers Dhilum spoke to suggested she talk to the founders of Kate Sheppard Chambers (KSC), Aotearoa’s first virtual chambers, focused on supporting women to come to the bar. After Dhilum’s first meeting with Isabella Clarke and Charlotte Griffin she knew that KSC would provide her with the flexibility, collegiality and support she had been looking for. Dhilum is full of praise for the KSC model, “It lets me shape my practice in the way that works best for me, allowing me to work on the issues I care about and with ethnic and vulnerable communities – who are frequently let down by our justice system.”

KSC’s 22 current members (with more in the wings) are based all around Aotearoa from Whangārei to Invercargill. There is no hierarchy, and everyone respects each other’s varied and interesting practices. The barristers work independently but also share resources, refer work to each other where there are issues of capacity and conflict, and even tender for work together.

Dhilum is proud of KSC’s fundraising, donation, sponsorship and scholarship initiatives and values the shared ethos of the Chambers. “We support each other in our professional and personal lives and recognise and value that there are many ways of practising law as a barrister.” Not having physical premises has not been a barrier. Some barristers rent office space; others work where it suits them. Dhilum often works from her instructing solicitors’ offices or otherwise enjoys working from home where she has the flexibility to take her dog out for a daytime run or enjoy a mountain bike ride before catching up with her children after school.

Importantly for Dhilum, being a barrister gives her the space to grow, innovate and be able to accept new and interesting opportunities and look at ways of providing more holistic support for clients. Dhilum now has the freedom to wear many hats. She contracts as an Innovation Specialist at Creative HQ where she uses design-thinking tools to solve complex policy problems, particularly for the public sector; and she volunteers at Citizens Advice Bureau including as an employee advocate. Community Law Wellington & Hutt Valley instruct Dhilum on migrant exploitation and family violence immigration cases.

She is also currently working on resource management system reform for the Ministry for the Environment and has a range of other resource management work including from other barristers and community groups. Dhilum has recently been awarded a Borrin Foundation fellowship to look at ways of improving employer accountability in migrant exploitation cases. Alongside this, she is designing and developing an employer verification scheme through a 12-week Govtech

accelerator programme at Creative HQ and hopes this will be a practical tool that will help to combat workplace exploitation.

Dhilum speaks frequently on panels regarding women and the law and the needs of vulnerable and marginalised ethnic communities. “This is why I wanted to become a lawyer,” she says. “To help people who struggle to have access to justice. For years I doubted whether I was in the right career. Turns out, the career was right, but the way I was practising it did not completely align with my values, nor did it allow me to realise the full potential of my practice. I am incredibly privileged to be on this path and feel so motivated and excited about work. KSC has turned my university idealism into a reality, and I love that.”

Dhilum’s strong sense of social and environmental justice, cultural awareness and sensitivity are guided by her Sri Lankan heritage and her place as tangata tiriti (people of the Treaty). Dhilum’s tikanga and mahi are shaped by cross-cultural values of karunawa (kindness), yuktiya (justice), anukampawa (compassion), rangatiratanga (self-empowerment) and manaakitanga (caring for and supporting others). Dhilum enjoys running with her dog Benson, cycling and tramping, and she guides vipassana meditation classes. She is training to be an Iyengar yoga teacher. Dhilum has three tamariki who are 12, 15 and 16 years old.

Augustine Choi

While at university, Augustine Choi expected his first move following graduation would be to Hong Kong, but family developments made that move unworkable. Meanwhile he had missed the opportunities taken up by fellow students to apply for summer clerkships in New Zealand law firms. It was not until his last year at university that he started looking for jobs in New Zealand, and being somewhat behind his peers he was unsuccessful. Shortly after this, Augustine was spotted by a law school contact while working at a local farmers’ market. He was offered a few hours of research work for a senior barrister at Bankside Chambers. This chance encounter morphed into a position as an employed barrister at Bankside Chambers for over six years before he began practising on his own account.

As with any unknown there were some fears, but Augustine’s background working in a supportive chambers environment meant he could continue to junior on cases as he grew his own client base. He believes there were real benefits to starting this way, surrounded by the right people and with time to build up independent work. He still regularly accepts instructions to junior as he believes there is always more to learn, particularly from exploring other areas of practice and seeing how more experienced members of the profession make decisions.

“As a junior you may have provided input and suggested ways to advise the client, but you had a senior to check and ultimately take responsibility for the advice and work. Suddenly you are working independently with your own clients, and you don’t have that check anymore; you are making those decisions. That can be a big change.”

Augustine’s work is primarily in relationship property and general civil disputes. He sees one of the real advantages of being at the bar is the day-to-day flexibility and control: the ability to decide what to do, how much to take on, when work is done, and what is charged. “If you want (or need) a break you can take one, without the confines of the usual four weeks a year most people get. Obviously, there are client

expectations and court deadlines to manage and work around, but planning and good communication usually smooths those wrinkles.”

He feels he was very lucky to have started life at the bar this way, and to be able to continue doing cases similar to those when he was employed. But listening to his colleagues at the webinar, Augustine can see there are many other potential and equally satisfying paths to, and at, the bar, which he could have explored. Still, he is lucky. He is young and has plenty of time to continue to shape his career to suit him and because he is at the bar there is nothing to stop him from that pursuit.

AUT mooting competition

The New Zealand Bar Association Ngā Ahorangi Motuhake o te Ture Court Advocacy Training Programme was a 12-week programme aimed at teaching AUT students the basics of courtroom advocacy.

The programme consisted of eight lectures and workshops, two court visits (the Auckland District and High Court) and a moot to finalise. The students learnt everything from how to write a statement of claim, lead evidence and cross-examine to the process of how to bring a judicial review and how to deal with clients.

The students heard lectures from leading advocates the Hon. Justice Moore, the Hon. Justice Harvey, Simon Jefferson KC, Frances Joychild KC, Ron Mansfield KC, Jan McCartney KC, Bar Association President Paul Radich KC, Brian Dickey, Justin Graham and Steph Roughton.

The winners of the Advocacy Moot Cup are Emily McCullough and Andrew McCauley. The cup is given to the team that has the, overall, best advocacy skills. The very close runners-up were Marcus Mackenzie and Jessica Grobbelaar.

The winners of the Advocacy Shield are Emily McCullough and Jessica Grobbelaar. The shield is awarded to the students that embody the programme and its objectives. Both these student’s came to every lecture, workshop and court visit and made it to the final of the moot.

The programme is set to run in 2023.

* Lisa Mills is the Education and Events Director at New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture

Corallee Collins-Annan *

Winners of the AUT Advocacy Moot Cup Emily McCullough and Andrew McCauley

Winners of the Advocacy Shield Jessica Grobbleaar and Emily McCullough with The Honourable Sir Hugh Williams and Simon Mount QC (left) and Associate Professor Khylee Quince (right)

Equitable gender briefing: a long way to go

Barbara Relph and Jacqui Thompson*

2018 was a big year for gender equity in law in New Zealand. It was the first year that the number of women practising law exceeded men. It was also the year the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture launched its gender engagement policy designed specifically for barristers. This policy became a joint initiative with the New Zealand Law Society.

Later that same year, the Law Society launched its Gender Equality Charter. The Charter is a profession wide initiative that contains a set of commitments aimed at improving the retention and advancement of women lawyers.

And then in the same year, the Court of Appeal issued a practice note encouraging oral argument from junior counsel, enabling them to gain experience and confidence. Many hoped that this would help junior female counsel on their journey to taking on lead counsel roles in the future.

Do we have a gender divide?

At the time, some asked why these measures were needed, given it is generally accepted that women and men are equal and should have the same opportunities? The measures were needed because this view had not translated into practice. Funded by the Law Foundation, in 2018 the Bar Association conducted research on the number of women appearing in the Court of Appeal and the Supreme Court over the previous six years. The figures were dire and clearly showed underrepresentation of women at these levels and particularly in lead roles.1

The Bar Association’s Diversity and Inclusion Committee concluded that urgent intervention was required to increase the number of women briefed. Together with the Law Society, the Committee drafted the Gender Equitable Engagement and Instruction Policy (GEEIP). GEEIP’s aim was to encourage adopters to use reasonable endeavours to improve the statistics on women lawyers taking a lead in court proceedings, arbitral proceedings, and major regulatory investigations.

GEEIP set a target for women to lead 30% of the proceedings, conservatively reflecting the percentage of women in senior roles in the profession, not the 50+% of women in practice, or the 60% of female graduates in any year. Bear in mind this is not a new statistic. Incoming Bar Association President, Maria Dew KC,

points out, the number of female graduates was nearly 50% when she graduated over 30 years ago.

Time is not enough

These days we can see more visible changes that indicate a brighter future. Female law graduates now outnumber male graduates at 53.9%. Ten years ago, 43.9% of lawyers were female.2 Significantly, in the 0-7 post admission category, women make up 63.3% of the group. But in some way the improved figures are a barrier to effect change now; many argue we must wait until these numbers trickle through into the senior ranks before we will see equity – in other words, it is simply a matter of time for the trickle up effect to bring about change.

But the trickle up theory is not working. Given that women have graduated from Law School at near equal rates to men for over 30 years, we should now be seeing these rates playing out in similar percentages in practice at more senior levels. That simply isn’t the case. In 2020, the Bar Association, again with support from the Law Foundation, updated its earlier research to cover 2018 and 2019. While junior and intermediate levels have improved, sadly, the same is not true for senior women.3 Removing cases which have been briefed by Crown Law, the statistics are even grimmer. The research concluded that the low number of appearances by women as lead counsel, particularly for the appellant in civil matters, suggests little if any progress has been made.

At the commercial or civil bar, the disparity is glaringly apparent. A glance through the Supreme Court’s case list on a single day in August revealed that only one of nine lead barristers was female. In the Court of Appeal later that same week five out of five cases were led by men. These quick tally ups are not an aberration.

In 2012 Justice Susan Glazebrook from the Supreme Court of New Zealand | te Kōti Mana Nui o Aotearoa spoke at a New Zealand Bar Association seminar about the myths around gender equality in the legal profession. She addressed the claim that it takes time for numbers to trickle up to the top. Using statistics from the United Nations, the judge graphically outlined the progress towards women taking on leadership roles in general. At the then current rate of change, it would take another 35 years for women to achieve equality in the boardrooms of New Zealand. There might be progress, she concluded, but it was glacial.

In 2016 Justice Glazebrook updated her address, this time in an article4 where her Honour outlined why there were financial disadvantages to being a woman. In the legal profession, a 2015 private practice earnings survey revealed that the median annual earnings of male solicitors were 19.2% higher than females.5

Women are professionally and economically disadvantaged, notwithstanding that they are not a minority. The situation is even worse if you are a woman of colour. The old arguments that there simply are not enough women who are suitably qualified or capable cannot be sustained. As her Honour Justice Glazebrook said:

“Given that over 40% of lawyers entering the profession since 1990 have been women (that is, for over 25 years), one would have expected more movement in the figures than has been seen to date, or, at very least, that the rate of female appointments to senior positions over the last five to ten years would be starting to be evenly balanced.”

Making changes

This outline brings us back to GEEIP and its target. Maria Dew believes that there must be some sort of assessment process to set an expectation that adopting organisations will hold themselves accountable for constantly considering gender in their decision making. “At the end of each year, the organisation can review their behaviour and clearly see whether they have improved or slipped back into old patterns. This constant reminder is a core objective of these gender engagement policies.”

Corporate clients are not the problem. Many corporates are already committed to equitable briefing. They want to demonstrate to stakeholders and the wider public that they are keeping up with societal expectations –“doing the right thing” – and engaging with diversity in every aspect of their business. Polly Pope, chair of Russell McVeagh, says that her firm is fortunate to work with a number of corporate clients which are committed to diversity and inclusion across their organisations and which demonstrate this in their decisions to instruct women litigators.

However, Pope also notes the limited progress in gender diversity in lawyers leading cases in the higher courts:

“New Zealand’s senior bar has significant numbers of former law firm partners in its ranks, and the slow progress in promoting women litigation solicitors is in turn holding back progress at the bar.

All who are leading cases at the senior bar can also shift the dial by ensuring they refer work to women barristers, and by giving specific opportunities to junior and upcoming women barristers. King's

Counsel have considerable sway in the makeup of counsel teams and should use this power thoughtfully. There are some great examples of senior barristers doing this, and these efforts should be redoubled.”

Dione Miller is the Head of Legal at BNZ. Even before BNZ signed up to the Law Society’s Gender Equality Charter, the bank recognised that it had a role to play as both a client and recipient of legal services.

“We knew we controlled what work was instructed out, to whom, and on what terms, and that we had the ability to drive change in the industry in terms of engaging more female lawyers and counsel.

BNZ has a Diversity and Inclusion Council comprised of members of all business units. After signing up to the Charter, we were able to contribute to the Council some of the practical ways in which we could support the promotion and visibility of women in the banking industry and in the legal profession. For example, our terms of engagement of law firms require transparent gender reporting in terms of who is actually doing the work, not just fronting it; this level of reporting translates easily across multiple areas, not just in legal services. When our law firms present to us on topical issues, we make it clear that we want to see equal representation by men and women. If the firm doesn’t have a woman who can speak on a particular topic, we ask them why.”

Miller says that the bank thought creatively about how it could promote gender equitable briefing practices in BNZ’s third party engagement. For example, it changed the dispute resolution clause in its supplier services agreement to require counterparties to consider equitable briefing when selecting mediators – and that extended to its farm debt mediation policies. The bank’s legal team also established a set of practices designed to promote the wellbeing of the team and external providers, which included commitments around being mindful of work-life balance when instructing on matters (for instance, being flexible with deadlines when instructing lawyers with child-care commitments).

Miller notes that the bank is making strong progress in its diversity and inclusion journey. “In 2021, 39% of our senior leaders were women (exceeding our FY21 Target of 38%); 60% of our legal leadership team are women. As lawyers who instruct out,” she says, “we know the responsibilities that come with that privilege and are constantly challenging ourselves to do as much as we can to support the retention and promotion of women in the profession.”

Acknowledging the issues

We know that clients – particularly large corporate clients – are on board with gender balance, and

promote diversity for the benefits it brings, including improved culture and insight and, inevitably, productivity. But the low figures for women appearing before our most senior courts (excluding Crown Law cases) suggest that women are not being briefed. The question is, why not?

There are a range of factors but a significant one is visibility. Women are not deliberately excluded; they just don’t pop to mind as readily as the familiar names, most of whom happen to be men. Why are they familiar? They get instructed. This is a cycle which needs to be broken.

Habit or pattern is another factor. Clients and instructing solicitors tend to stick with barristers they have successfully used before. They are perceived to be safe options and most likely to get the best result. This means that they are unlikely to look beyond their safe pool. And because of history - and unconscious biasthey are likely to be male.

And then there are the many assumptions implicit in the problem of gender engagement. It is assumed that men will be tougher in court. It is assumed that men carry more authority and are taken more seriously. It is assumed that women are more emotional and likely to crumble in tight spots.6

There is also the issue of age discrimination which statistically affects women more than men. Figures from the US suggest that 72% of women experience age discrimination as opposed to 50% of men.7 We have all heard the phrases and damning comments: she’s a woman of a certain age and stage, she is menopausal, we need younger, fresher ideas. Each of these statements ignore the value of experience and knowledge that can only come with having worked in an industry over the years.

REFERENCES

2Barnett,

Progressing gender equality

The Gender Equality Charter continues to be an important mechanism for progressing gender equality across the legal profession. It is designed to improve advancement and retention of women and overall culture, rather than being a tick-box exercise grounded in compliance.

The Law Society is working closely with the New Zealand Bar Association on the future direction of the joint Gender Equitable Engagement and Instruction Policy (GEEIP) and its relationship with the Gender Equality Charter. Discussions have included setting voluntary targets for equitable briefing. Many see targets as important. They motivate action and create a mechanism for change. Succinctly put by Maria Dew, “What doesn’t get measured, doesn’t get done.”

The Law Society is working with Charter signatories to benchmark where they sit on gender equality. The Charter enables these organisations to identify gender imbalance in all areas, whether it be partnerships, boards or panels, or who they instruct to represent them in court.

These revisions are timely. Senior women lawyers cannot afford to wait. Their time is now, but the opportunities are being denied to them. This is why documents such as GEEIP and the Gender Equality Charter matter. They highlight the issues and provide a focus for instructing solicitors and clients to think outside the square. They are a constant reminder to step forwards, not backwards.

Barbara Relph is a writer, editor and proof-reader –www.barbararelph.com.

Jacqui Thompson is the Executive Director of the Bar Association and was involved in the research team that conducted the 2020 Bar Association follow up report on counsel appearing in the courts.

Bazelon

Signs and symptoms of burnout at work

Nick Wignall*

Burnout at work is a growing concern for both individuals and the organizations that employ them. This article has been provided by MAS. It is one section of a three part guide.

In this three part guide, you’ll learn what professional burnout is, what causes it, key statistics, myths about on-the-job burnout, as well as some practical tools and resources for how to deal with it effectively.

What is burnout at work: a definition

The World Health Organization (WHO) defines professional burnout as:

A syndrome conceptualized as resulting from chronic workplace stress that has not been successfully managed. It is characterized by three dimensions:

• feelings of energy depletion or exhaustion

• increased mental distance from one’s job, or feelings of negativism or cynicism related to one’s job and

• reduced professional efficacy

While professional burnout isn’t traditionally classified as a formal medical or mental health diagnosis, it can lead to serious negative consequences for individuals and organizations.

Common signs and symptoms of burnout at work

There are many possible signs and symptoms of burnout at work. And while the specifics of how someone experiences job burnout depends on the interaction of their specific biological and psychological makeup with the particulars of their job and work environment, there are some common factors to be aware of:

• Anxiety and worry. An increase in your tendency to worry and/or feel anxious can be an indicator of burnout at work. In particular, if you have trouble “leaving work at work” and continue to worry and feel anxious during non-working hours, it’s possible that job burnout is partly to blame.

• Irritability, resentment, and cynicism. A hallmark of job burnout is that frustrations pile up and are not able to be addressed adequately. When these frustrations become chronic, the result can be increased irritability with other people, resentment of work in general, and even cynicism or hopelessness about things improving.

• Procrastination. Everybody procrastinates sometimes and to some degree. But if you find

yourself procrastinating more frequently than usual and to a greater degree, it could be a sign of professional burnout.

• Forgetfulness. You only have so much “mental bandwidth.” And when most of it is being taken up with stress and anxiety, a common result is that important things to remember start falling through the cracks. If you’re overwhelmed at work and burnt out, forgetting things you normally remember is a common symptom.

• Fatigue. We all get depleted when we work hard. But working hard without time for rejuvenation and rest can lead to persistent fatigue that never seems to let up and may be a sign of burnout at work.

• Boredom. Not all signs of professional burnout are extreme. For many people, especially in the early stages, job burnout may manifest as boredom and disinterest in work activities and projects.

• Insomnia and sleep difficulties. A very common sign of burnout at work is trouble falling asleep, staying asleep, or waking up not feeling sufficiently rested or restored. In particular, many people experiencing burnout have a hard time “shutting off their mind” before bed or waking up in the middle of the night worrying.

• Self-doubt. It is normal to doubt ourselves and our work from time to time. But one sign of burnout at work is that self-doubt increases to the point where it’s significantly impacting moods and wellbeing, as well as the quality of work.

• Morning dread. Morning dread is a particular form of anxiety that occurs immediately upon waking up in the morning. While there are a number of causes, one of the most common is that you’re burnt out at work and dreading even thinking about work. Even if the content of the anxiety is non- specific, there’s a good chance work stress is the ultimate cause.

• Social isolation. Many people tend to isolate and withdraw from important relationships when they experience chronic burnout at work. This is unfortunate because positive social support and connection is actually one of our biggest buffers against burnout and feeling overwhelmed.

• Displaced frustrations. One subtle sign of burnout at work can be a tendency to take out work frustrations on other people, including friends, family, or other non-work relationships.

• Hyperarousal. Hyperarousal is a state of being overly vigilant and on-edge, constantly scanning and looking for potential problems or concerns. While it’s normal to become extremely vigilant during moments of acute stress, a sign of chronic burnout is often that it’s difficult to come down from this state and relax when appropriate.

• Stress eating. When stress levels become too high for too long — as in the case of burnout — it often overwhelms our normal strategies for managing it and we turn to more unhelpful coping strategies like overeating to alleviate or distract from the stress.

• Compassion fatigue. Compassion fatigue is a state of emotional exhaustion and frustration that comes about when you spend too much of your

time empathizing with and focusing on the needs and concerns of others without addressing your own.

• Difficulty relaxing. Similar to hyperarousal, a common sign of burnout at work is that you have a hard time relaxing. Most often this is experienced in the evenings before bed or on weekends and vacations when you feel like you are still thinking about work despite not wanting or needing to.

Keep in mind that none of these are definitive of burnout at work. And many of them can result from other stressors, conditions, and events in life. However, if you notice a significant and sustained increase in several of these factors, it may well be that the cause is burnout at work.

By the numbers: key statistics about work burnout

There has been an increasing amount of research on burnout at work over the past decade. Here are some of the most important findings and trends when it comes to professional burnout:

• Job burnout is on the rise. Google searches related to burnout have increased by 41% annually between 2017 and 2020, while searches for “occupational burnout” have increased by more than 2,500% since 2015.

• The costs of burnout are high. According to a Harvard Business School report, stress at work is estimated to cost the United States up to US190 billion per year in health care costs, and at least 120,000 deaths in the US each year are attributable to it.

• A majority of employees experience burnout at work. According to a 2019 Gallup survey, 28% of workers reported feeling burned out very often or always, and 48% said they felt burnt out sometimes, meaning over 75% of employees are consistently experiencing burnout at work. What’s more, those employees were almost three times as likely to look for another job.

• Professional burnout has significant consequences. People who report often feeling burned out are 63% more likely to need a sick day and 260% more likely to be actively looking for a new job.

• Millennials are experiencing more burnout than previous generations—and are less tolerant of it. According to a recent Deloitte survey, 84% of millennials said they had experienced burnout in their current job with close to 50% of millennials saying they have quit a job because of burnout specifically, compared to 42% of all survey participants.

*Nick Wignall, Clinical Psychologist. For more information on how to deal with burnout at work, visit his website https://nickwignall.com/burnout-at-work/.

This article has been provided for At The Bar by MAS. It can be found on Aki, the MAS Wellbeing Portal. All Bar Association members have free access to Aki. For more information on how to access Aki, visit our website at www.nzbar.org.nz/resources/mas-wellbeing-portal.

Upward bullying

If you have ever been the subject of bullying, you will know it is often about power. The most common type of bullying is when a senior person exercises power over a more junior person. In the classic schoolyard setting, this might be a younger child, weaker by virtue of their age or size, making them an easy target. There is, however the more insidious type of bullying, where the perpetrator is the subordinate.

Known as upward bullying, it is a way for the bully to retaliate against a more senior person. Upward bullying can start with one disgruntled employee and spread across a workplace over time. It is likely to be unexpected and as such commonly goes unchecked.

The legal profession

The legal profession is not immune to upward bullying. It’s a high stress environment where every team member’s actions count. Deadlines are tight and results really matter, providing fertile ground for the upward bully.

Adding to the problem, lawyers are not generally trained as managers and are often promoted based on billables or client introductions. With no skills to identify and manage bullying behaviour, the target may simply rely on avoidance as their coping mechanism. Like the schoolyard victim, the effect on the person being bullied can be serious, both psychologically and physically, affecting confidence and general wellbeing.

How it manifests

Upward bullying can manifest in many ways, passive or aggressive, and is not confined to junior staff members and their managers. It can extend far beyond that to a more senior lawyer who is unhappy with their role and who takes their frustration out on a more senior team member.

Take, for example, the common arrangement where a barrister employs a junior. The employer’s morning routine is to go to the gym and arrive at the office at 9.00am. The junior organises a client meeting for 8.30am, texting you at 8.00am saying it was the only time that suited the client. On its own, this may be acceptable, but if it happens regularly over time, it could be upward bullying.

The employer schedules much needed leave, relying on the junior to hold the reins, but they call in sick on the last day at work, denying the employer assurance that all will be well in their absence. Is this bullying, or just an unfortunate coincidence? An accusation will likely undermine the relationship with the junior, but if the junior frequently fails to attend on important occasions, the employer may have reason for suspicion.

Maybe the junior will break protocol and bypass the senior barrister to deal directly with the client, resulting in a loss of quality control and the impression that the senior is too busy, directly damaging their reputation.

Barbara Relph*

Spreading rumours, failing to complete tasks, infecting other team members with their dissatisfaction, and even gaslighting to undermine their employer are all ways a disgruntled employee can bully a leader.

Why would a junior do this? The bully is usually confident and assertive with a strong sense of entitlement. They may have missed out on a promotion or reward, or they may simply believe themselves to be better than the leader. If a team exists, the potential for upward bullying exists.

Is it me?

It is largely unproductive to attempt to profile a potential target of upward bullying. It seems there are no boundaries or personality traits which make one leader more likely to be bullied than another. In the same way children are victimised by bullies, it’s always about the bully.

A schoolyard bully doesn’t necessarily grow out of the habit and change their behaviour on reaching adulthood. When they find themselves in a junior position in the workplace, their old behaviour finds a new target, and their self-assurance gives them the confidence to take on someone with greater formal power, such as their employer. That is not, of course, to say that all workplace bullies were schoolyard bullies!

Effect of covid

From a leadership perspective, new working arrangements brought about by Covid-19, such as increased work-from-home, increases isolation, reduces visibility and can break down communication channels. These factors mean the bullying is never witnessed, and any accusation relies entirely on one’s word against the other.

The pandemic brought about vast change in work practices. When a leader attempts to instigate change, the bully may push back, creating roadblocks and stymying a successful transition. This enables the bully to gain informal power within the team, having prevented an inconvenient change.

Addressing the problem

Upward bullying can have severe impacts including:

• Breaking down protocols intended to protect the business activities

• Increasing toxicity in a team and reducing productivity

• Preventing necessary change (possibly because it is a change that is not wanted by the bully)

• Causing career damage to the manager

• Causing severe physiological illness (depression, self-harm), as well as increased risk of cardiovascular and other serious physical health problems for the victim

Those who are the victims of upward bullying may be reluctant to report it as they may feel that it will place them in a negative light as being unfit to lead a team. This plays directly into the bully’s hands, by shifting the blame on to the victim, instead of highlighting the actions of the bully.

Proving claims of upward bullying is difficult. As an understanding of upward bullying in the workplace grows, concern around the effects of it on individual targets and workplace culture and productivity increases. Raising awareness of upward bullying may enable leaders to upskill so they can identify perpetrators and take action more quickly.

As with downward bullying, expedient action to address each instance of upward bullying is essential, and lessons learned from successfully managing individual cases could bring about improvements to policies and practices.

Less experienced leaders may misinterpret upward bullying as relatively harmless, in the way of a rite of passage; more experienced leaders may ignore bullying, in the hope it will wear itself out. Both responses allow the bully to extend their bullying behaviour, often resulting in a toxic workplace. Seeking support from colleagues or upskilling with specific management training are useful ways to get ahead of the bully.

Like the schoolyard, the best success will come when the target consistently and non-confrontationally calls it each time it arises.

Further reading

Doraisamy, J "Upward bullying: A trend to watch out for in law." (Lawyers Weekly, 7 August 2022)

https://www.lawyersweekly.com.au/biglaw/35140upward-bullying-a-trend-to-watch-out-for-in-law

https://theupwardbully.com/articles/what-theresearch-is-telling-us/

*Barbara Relph is a writer, editor and proof-reader –www.barbararelph.com.

Petrol Heads’ Corner

– Land Rover Defender 110

David O’Neill*

The first Land Rover was made in 1948 by the Rover Company based in Coventry UK. Land Rovers were famous for their ability to go anywhere, do anything and being virtually indestructible.

Early Land Rovers had nonrusting aluminium alloy bodies because of a post-war shortage of steel. In 1992, Land Rover claimed that 70% of all the vehicles they had built were still in use.

The old Land Rover Series I and II had skinny tyres, flat windscreen, sliding windows and pop riveted panels. Steering was not power assisted. The amount of play in the steering wheel and the gearstick was phenomenal. They were beasts to drive but hardly ever broke down and could go anywhere. They are now worth a small fortune and their prices eclipse the prices of the modern day Land Rover Defender.

I have been intrigued by the new Land Rover Defender for some time now and was able to lay my hands on one recently, courtesy of the local Land Rover dealer, Duncan & Ebbett. It was the Defender 110 SE.

The price of this car was $140,055 as optioned. It had a variety of extras which bumped the price up from the original retail price of $123,900.

Features

My car had an 8 speed automatic transmission with all-wheel drive and loads of fairly standard bits and pieces including a heated steering wheel, heated windscreen, electric this and electric that, off-road tyres and touchscreen for everything else. It came with air suspension and adaptive dynamics (whatever that is). The spare wheel is bolted on the outside of the rear door which probably adds about 30 cms to the length.

Because of this spare wheel filling a large portion of the rear window, it has a very cool feature. (I don’t know whether it’s an option or not. If it is, get it). You flick a lever on the rear view mirror and the mirror is converted into a screen for a rear facing camera – very clever and useful.

Motor

Most surprisingly it had a 2-litre, 4-cylinder, twin turbo diesel motor. When I was told this, I was more than a little surprised. This vehicle is huge. It had seven seats and room behind those seven seats for not very much but when the back row was lying flat, there was enough room to put in two sets of golf clubs and luggage. I wouldn’t want to take the trundlers as that would probably fill the car up completely.

This thing is 2.3 tonnes. It’s not small, as I have said, and has enormous wheels, but with this little motor, it gets up and goes like a V6. I was pleasantly surprised with how much oomph it had. I understand it puts out 147 kw of power which is a lot of power coming out of a very small engine and 430 nm of torque. When coupled with the 8-speed auto, it’s impressive. You’re never going to drag anyone off at the lights – if you want to do that get the supercharged V8 version which puts out 386 kw and goes like stink. You’ll pay $214,000 base price for this and then some for the extras.

The fuel economy is pretty reasonable but might be hampered by the weight of the vehicle. The car I drove only had 70 kms on the clock and would be much more economical once run in. This is the smallest motor in the Defender series.

We took it on the usual test route which is over onto the Coromandel Peninsula. It pulled well going up the hill but being such a big car, it was roly-poly on the corners. I have to keep reminding myself that this is a big off-road vehicle with enormous wheels and it’s not going to sit on the road like an ordinary road-going vehicle.

It has all the bells and whistles in the cabin. It looks like it has a ton of off-road features and the tyres that were on the car were off-road tyres. I am told that these cars are in their element when they are in the wet and offroad, but I wasn’t game to find out. I suspect 90% of these will never go off-road unless they cut the corner across the garden by mistake. The off-road tyres are noisy, and I felt the road holding capabilities weren’t quite as good as a good road tyre. I appreciate the off-road tyres pay homage to the Land Rover DNA, but I think they would be better using a large road tyre, quieter and possibly better at holding on in the wet.

This vehicle is a far cry from the Land Rover Series I and II as you are able to tackle the great outdoors in supreme comfort with a 10 speaker sound system pumping out 400 watts of surround sound. It also had

more USB ports than it had seats for people. There were USB ports all over the car in odd little nooks and crannies, shelves and cubbyholes.

Land Rover has paid homage to the original Land Rover by putting plastic versions of the treadplate on the bonnet and in the back of the vehicle. There are also rivets in various parts of the car, again a tug of the forelock to the original vehicle.

Whilst old Land Rovers are attracting massive amounts of money, I suspect that this Land Rover won’t go down in history as an icon, but it’s certainly a very pleasant drive. However, that will be determined by the public reaction to this model. I still liked it.

* David O’Neill is a Hamilton barrister and a real car enthusiast. That means he might forget your name but never the car you drive.

Name Gifting Celebration 10 June 2022

The New Zealand Māori Council are called

Members of the Bar Association and invited guests

Guests assemble at the National Library in Wellington

Kura Moeahu - Chairman, Te Rūnanganui o Te Āti Awa

Mihi whakatau - Members of the Bar Council and Kura Moeahu stand as the New Zealand Māori Council approach

View more photos on the New Zealand Bar Association | Ngā Ahorangi Motuhake website.

Tā Edward Taihākurei Durie KNZM, Judith Ablett-Kerr KC ONZM, Lady Donna Hall

Solicitor General Una Jagose KC addresses the audience

Council members join in a waiata

At the front, Tā Taihakurei Durie speaks with Raewyn Bhana

From left to right: George Ngātai, Lady Donna Hall, Dr Anne Phillips, Paul Radich KC, Maria Dew KC, Michelle Baker, and Kura Moeahu

Dr Ken Kennedy gifts the name and explains the consideration and process for the name Ngā Ahorangi Motuhake o te Ture

Annual Conference 2022

Advocacy now: law in extraordinary times

At the time of writing, it has been a week since the New Zealand Bar Association | Ngā Ahorangi Motuhake or te Ture (NZBA) Conference, and I'm still reflecting on what an enjoyable, thought-provoking, and inspiring experience it was. There is nothing quite like the chance to meet face-to-face with colleagues and friends. Equally, it was wonderful to have the opportunity to celebrate Frances Joychild KC - the inaugural recipient of the NZBA Access to Justice award, sponsored by LexisNexis.

All of the sessions were interesting and informative; many of them left an indelible impression. Of note, for me personally, were the Climate Change and the Law session with Jenny Cooper KC, James Every-Palmer KC, Davey Salmon KC and Dhilum Nightingale, and the presentation from Kirsti Luke and Tāmati Kruger of the Tūhoe Tribal Authority. Mention must also be made of his Honour Justice Goddard's entertaining keynote, regaling the audience with his account of the things that keep him awake at night, and her Honour Judge Ida Malosi's witty, engaging and uplifting after-dinner speech.

The conference allowed the opportunity to step back and think about, as Maria Dew KC put it, the “why” of one’s practice; to hold steadfast as advocates upholding and promoting the Rule of Law and doing what one can to improve access to justice for all. Last, but not least, the collegiality among all those who attended the conference was clear - whether at the social activities, formal dinner, cocktail function or merely waiting in line for a morning coffee.

Thank you to all the speakers, chairs, organisers, sponsors and fellow attendees who made this year’s conference a success. A special thank you to the Otamataha Trust for the moving mihi whakatau and karanga to welcome us onto their land and open the conference. Looking ahead, following our tradition of swapping between Te Ika-a-Māui | North Island and Te Waipounamu | South Island, we have earmarked Ōtautahi | Christchurch for the next conference.

Thank you to our sponsors

The Honourable Justice David Goddard

Dhilum Nightingale, Felix Geiringer, Davey Salmon KC, James Every-Palmer KC, Jenny Cooper KC

Annual Conference 2022

Felix Geiringer, Paul Radich KC, Tāmati Kruger, Kirsti Luke

His Honour Judge Paul Mabey KC, Julie-Anne Kincade KC, Phil Hamlin

Alex Hagen, Anne Toohey Mai Chen, Sarah Wroe, Paul Radich KC

Paul Michalik, Colin Carruthers KC, Lisa Hansen, Christopher Griggs

Kathryn Lydiard, Ana Cathcart, Mathew Casey KC, Isabelle Cameron, Merv Giam

Annual Conference 2022

View more photos on the New Zealand Bar Association | Ngā Ahorangi Motuhake website.

Catherine Harold, Rita Nabney, Matthew King

Genevieve Haszard, Julie-Anne Kincade KC, Sami Taghavi, Kellie Arthur, Kathryn Lydiard, Emma Priest

Stuart Grieve KC speaking after receiving his lifetime membership Maggie Winterstein, Quentin Duff, Gowan Duff, David Boldt, Tavake Barron Afeaki, Bronwyn Carruthers

Presidents past and present – Stuart Grieve KC, Colin Carruthers KC, Maria Dew KC, Paul Radich KC, Stephen Mills KC

Michael Webb, Sonja Clapham (lifetime award recipient) and Stuart Grieve KC