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 contaminants 2 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 Apa 4 and Takamore 5 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.

REFERENCES

Te Weehi v Regional Fisheries Officer r [1986] 1 NZLR 680 (HC)

Huakina Development Trust v Waikato Valley Authority [1987] 2 NZLR 188 (HC)

New Zealand Māori Council v Attorney-General (the Lands Case) [1987] 1 NZLR 641

Attorney-General v Ngāti Apa [2003] 3 NZLR 643 (CA)

Takamore v Clarke [2013] 2 NZLR 733 (SC)

Ellis v R [2020] NZSC 89 (reasons to be delivered along with substantive judgment)

Report of the New Zealand Law Society Working Group: to enable better reporting, prevention, detection and support in respect of sexual harassment, bullying and discrimination and other inappropriate workplace behaviour within the legal profession (December 2018)

Hardy-Susskind, J Attrition https://thesecretbarrister.com/2022/07/21/guest-post-by-joanna-hardysusskind-attrition/