Tātou Our people SUMMER 2023
S P E C I A L F E AT U R E :
2023 Snapshot of the Profession
Changing systems? Don’t lose one of your most valuable assets in the process - your data. Our industry-leading migration tools ensure a 100% transfer of data from most systems in the NZ market.
Scan this QR code with your phone to learn more about our practice management solution Available in the cloud
A new end-of-life planning tool for New Zealanders Go With Grace is a resource to help your clients get their wills and other affairs in order and look after what matters to them most. We’re here to help you and your clients be better prepared. Join our directory to reach people needing help with wills and estates. Create a FREE listing at gowithgrace.nz
SUPREME COURT 20th Anniversary Conference 15-16 February 2024 Pullman Hotel, Auckland Programme and Register HERE https://edenevent.eventsair.com/ scc2024/registration/Site/Register For the full programme please go to www.legalresearch.org.nz
Contents A year in review by Frazer Barton........... 04 Snapshot of the Profession 2023 ............. 06 Transforming our membership offer ....... 16
ABOUT LAWTALK LawTalk is published quarterly by the New Zealand Law Society Te Kāhui Ture o Aotearoa for the legal profession. It has been published since 1974 and is available to every New Zealand-based lawyer who holds a current practising certificate.
DISCLAIMER Unless it is clearly indicated, the views expressed in LawTalk are not to be taken as those of, or endorsed by the New Zealand Law Society Te Kāhui Ture o Aotearoa. No responsibility whatsoever is accepted by the Law Society for any opinion, information, or advertisement contained in LawTalk.
CONTACT DETAILS
A view from the bench of Chief Coroner Judge Anna Tutton ........... 20
publications@lawsociety.org.nz
Maximise your influence beyond your practice ............................... 24
ADVERTISING
PO Box 5041, Wellington 6140, New Zealand DX SP 20202
For advertising placement: advertising@lawsociety.org.nz
Survey shows signs of progress .............. 28 The continuing quest for knowledge ..... 32 "You are seen. You are heard!" NZ Asian Lawyers seminar Auckland November 2023 ....................... 38
PRINTING AND DISTRIBUTION Blue Star, Petone, Wellington ISSN 0114-989X (Print) · ISSN 2382-0330 (Digital)
PEOPLE Frazer Barton, President David Campbell, Vice President Auckland Caroline Silk, Vice President
Update from Chief High Court Judge ..... 44
Central North Island Ataga’i Esera, Vice President Wellington Taryn Gudmanz, Vice President South Island Katie Rusbatch, Chief Executive Officer
STORY SUGGESTIONS Do you have a suggestion for a story idea you think would be interesting for an upcoming issue of LawTalk? Email: publications@lawsociety.org.nz
***** FPO ***** Placeholder for FSC Certificate ***** FPO *****
3
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
A year in review BY FRAZER BARTON
A
s the year draws to a close, this issue of LawTalk focusses on Tātou – our people. I want to express my gratitude to the many lawyers who have helped out in different ways during the year. Whether you provided input to the Independent Review, supplied data by responding to a survey (or three) or – most significantly of all – whether you were one of the more than 1,300 lawyers who volunteer and provide their time and expertise for the benefit of the whole legal profession, I recognise and applaud your contribution. Ngā mihi nui – thank you very much.
reform so it may take some years if it is prioritised by government. In the meantime, we are not standing still.
On the topic of our collective future, 2023 has been a significant year for the Law Society. We released the results of the Independent Review, as well as the Law Society’s response and recommendations to government. With a new government now sworn in, we will soon be briefing the Minister of Justice on our priority issues and will publish that briefing.
You will have heard about our proposed new representative strategy which our Council has been discussing. This is a step on the way to ensure our member services are in a strong sustainable position, both financially and to ensure our future success representing the legal profession throughout the country. You can read more about the proposed strategy and what it means for you, our members, in this issue.
One of our priorities will be to seek the government’s commitment to our recommendations from the Independent Review, including separating our organisation into its two respective parts of representative and regulatory. As you will be aware, such a change requires legislative
Also in this issue are the results of our 2023 Legal Workplace Environment Survey, which have shown a reduction in the prevalence of sexual harassment among lawyers in the five years since our first survey. While lawyers reported that the experience was much less
4
common, there remains a reluctance to report instances to employers and to the Law Society. I find this concerning, and I encourage anyone who is experiencing unacceptable behaviour such as harassment, bullying or discrimination or who needs support to contact the Law Society. Everyone deserves to be able to work in an environment that is safe. It’s a responsibility that is on all of us in the legal profession to make sure that happens. In our latest snapshot of the profession, I was delighted to see that the diversity of our profession is increasing, particularly in those who are in the first seven years post qualification. Over the last year, the percentage of Māori lawyers in this cohort has risen from 9.7% to 12.1%, Pacific lawyers from 4.3% to 6.4%, and Asian lawyers from 16.2% to 22.7%.
I ssue 9 5 6 ∙ S ummer 2 0 2 3
“I thank all our members for your commitment to our profession and the New Zealanders we serve... the challenges have been many and varied but so are the opportunities, and we all continue to serve because we want to help”
Alongside this, the number of lawyers speaking languages other than English has increased. There has been an increase in the number of te reo Māori speaking lawyers, from 156 to 216 lawyers (1.3% of all lawyers). Other languages to see an increase across the profession include everything from Afrikaans to Urdu. This diversity of ethnicity and language helps to break down barriers to access to justice for communities across Aotearoa New Zealand. New lawyers (0-7 years post admission) continue to make up one-third of the profession, the majority of whom, are women (at just over 64%), and the number of in-house and employed lawyers sits at 29% and 34% respectively. Our annual snapshot provides valuable information about our profession and how it has evolved over time.
The information in the snapshot is also useful to inform our representative strategy which we are currently refreshing. We are proud of the services and support we offer you, our members. We represent 98 per cent of the profession with 13 branches and three sections. In the last year, nearly 10,000 members attended our 280 events across branches, sections and NZLS CLE. As New Zealand’s national membership body, we are the trusted voice for lawyers across the country and provide strong national representative services. However, we have been delivering these services at low or no cost to our members and at a significant cost to our organisation. So, we are refreshing our strategy to look at ways to deliver even more value while also being financially sustainable. In developing our new strategy, our team engaged with more than 130 of our members from around the country. We ran 17 focus groups to find out from you what is important in what we offer our members. As well as this, we also met with every branch council, section executive and Council members Te Hunga Rōia Māori o Aotearoa and Pacific Lawyers Association, as well as NZ Asian Lawyers. Our Council has been discussing this throughout the year and will consider the proposed new strategy again in mid-December. Final approval, including the amount of a proposed membership subscription, will be on the agenda for the Council’s Annual General Meeting in April 2024. If approved, a subscription will be introduced to coincide with practising certificate renewals in July 2024. We will continue to keep you informed as this important work progresses. In recent highlights, despite being in Montreal where I was attending my daughter’s wedding, I dialled into
and appeared on a panel with the Chief Justice at a NZ Asian Lawyers / Law Society event in Auckland in November. I really enjoyed this. At the event Chief Justice Dame Helen Winkelmann remarked that she places huge value on the legal profession of the future looking like the community it serves – and I agree wholeheartedly with that sentiment. This is a source of strength for our future, and it was gratifying to see so many judges attend and encourage a next generation of legal leaders. I would like to congratulate our Vice President (Wellington) Ataga’i Esera, and Chief Executive Katie Rusbatch on their inclusion in NZ Lawyer magazine’s Elite Women list for 2023. Both outstanding leaders have been recognised for the work they are doing to reshape our profession. It is a real privilege to be working closely with such talented people. I’d also like to take this opportunity to acknowledge the Law Society staff. The volume and breadth of their work is not always immediately visible from the outside, but the staff continue to deliver high quality work across both the regulatory and representative functions. Lastly, I thank all our members for your commitment to our profession and the New Zealanders we serve. From Cyclone Gabrielle to lawyer wellbeing, the challenges have been many and varied but so are the opportunities, and we all continue to serve because we want to help people and solve problems. I hope that you can use the holiday season to take a well-deserved break and recharge, and that you return re-energised in the new year. Wishing you and your families all the best for the festive season, however you choose to celebrate. And thank you, for your continuing support. ▪ Frazer
5
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Snapshot of the Profession 2023
This snapshot draws on information held by the New Zealand Law Society Te Kāhui Ture o Aotearoa as regulator of the practice of law. As at 30 June 2023, there were 16,735 lawyers with a current practising certificate, 15,640 in New Zealand and 1,095 overseas. This equates to 312 New Zealanders per lawyer, down from last year’s 326. With overseas lawyers removed there are 331 New Zealanders per lawyer in the 2023 reporting year, compared with 334 New Zealanders per lawyer last year.
COMPILED BY MARIANNE BURT AND JACQUI VAN DER KAAY
This year’s notable changes include a much greater increase in the number of Asian, Pacific and Māori lawyers in the 0 - 7 PQE category. While the number
DESIGNED BY SOPHIE MANCER
of Asian lawyers has been reflective of the population of Asian people in New Zealand for some time, it is pleasing the proportion of Pacific and Māori lawyers have increased. The gender balance in this cohort is also stabilising with women making up just over 64% of this group, higher than the 55.4% of women overall. Alongside this has been an increase in the number of languages lawyers speak. There has been a decrease in the number of lawyers in the Wellington region and an increase in the number of overseas lawyers, though these changes are not directly related to each other.
People per lawyer in New Zealand L AW Y E R S B A S E D I N N Z
P O P U L AT I O N
15,640
P O P U L AT I O N P E R L AW Y E R
5,223,100
312:1
P E O P L E P E R L AW Y E R I N N E W Z E A L A N D
= 100 people
1,782 972 1876
6
1920
853 1930
955 1,050 1,094 1,027 1940
1950
1960
1970
791
1980
578 1990
467 2000
390 2010
356 2020
329 2021
326 2022
312
2023
I ssue 9 5 6 ∙ S ummer 2 0 2 3
Auckland branch 7,324 lawyers F 53.67% M 46.22% GD 0.03% NS 0.08%
Practising certificate holders by Law Society branch
Gisborne branch 73 lawyers F 53.42% M 46.58%
Waikato Bay of Plenty branch 1,507 lawyers F 59.85% M 40.15%
Taranaki branch 165 lawyers F 55.15% M 44.24% NS 0.61%
Whanganui branch 74 lawyers
Key
F 40.54% M 59.46%
Female %
Manawatū branch 173 lawyers
Male % Gender Diverse %
F 53.76% M 46.24%
Not Stated %
Nelson branch 222 lawyers F 51.35% M 48.20% NS 0.45%
Hawke’s Bay branch 260 lawyers F 49.23% M 50.77%
Wellington branch 3,299 lawyers F 56.90% M 42.92% GD 0.09% NS 0.09%
Southland branch 150 lawyers
Marlborough branch 66 lawyers
F 56.67% M 42.67% NS 0.67%
F 54.55% M 45.45%
Canterbury Westland branch 1,767 lawyers F 57.39% M 42.33% NS 0.28%
Otago branch 560 lawyers F 60.36% M 39.64%
Overseas 1,095 lawyers F 54.34% M 45.11% NS 0.55%
The number of New Zealandbased practising lawyers has grown to 15,792 compared with 15,593 in 2022. There is now one lawyer for every 331 people in New Zealand. The map organises New Zealand practising certificate holders by Law Society branches. Auckland continues to have the largest number of lawyers in the country with 7,324, an increase of just over one percent compared with last year. Of note this year,
is the 26 percent increase in the number of overseas lawyers to 1,095. The increase can be in part attributed to the reopening of New Zealand’s borders following the COVID-19 pandemic restrictions. Also, of interest this year is a 36 percent drop in the number of lawyers in the central Wellington region (distinct from branch). The change to more flexible working arrangements may have contributed to lawyers moving to other areas of the region including the Hutt, Kapiti and Wairarapa, all of which have seen an increase. The opening of Transmission
Gully has provided another option for those who wish to work in Wellington but live further afield. Lawyers leaving from this region may also have contributed to the increased number of overseas lawyers. The regions with the lowest numbers of lawyers are Coromandel (18 - a drop from 31 in 2022), and West Coast (21 - the same as the previous year).
7
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Ethnicity P R O P O RT I O N O F A L L L AW Y E R S A N D L AW Y E R S 0 -7 Y E A R S P Q E BY E T H N I C I T Y All Lawyers
Lawyers 0-7 years PQE
76.0% 12,719 83.3% 4,667
NZ European 7.4% 1,238 12.1% 679
Māori
6.5% 1,080 10.3% 579
Other European Chinese
4.2% 696 7.6% 428
Not Stated
3.8% 633 3.3% 184
Indian
3.1% 512 6.1% 342
Other Asian
2.6% 430 5.4% 300
Samoan
1.7% 282 2.7% 149
Other Ethnicity
1.6% 263 2.3% 131
Southeast Asian
1.5% 258 3.6% 204
Fijian
0.8% 139 1.6% 87
Middle Eastern
0.6% 97 1.4% 80
African
0.5% 90 1.3% 74
Tongan
0.5% 82 0.9% 52
Cook Island Māori
0.3% 45 0.5% 28
Latin American
0.2% 30 0.4% 23
Other Pacific Peoples
0.2% 38 0.3% 19
Niuean
0.1% 20 0.3% 15
Tokelauan
0.1% 9 0.2% 9
The Law Society holds information provided by 96% of registered lawyers about their ethnicity. It should be noted that lawyers can choose to identify with more than one ethnic group, meaning the percentages shown will not add up to 100%. At 76%, New Zealand European remain the most represented ethnic group among lawyers. Lawyers who identify as Māori are the second most represented group at 7.4%.
This year the collective percentage of Asian lawyers (Chinese, Indian, Southeast Asian, other Asian) rose from 16.2% last year to 22.7%, with Māori increasing from 9.7% last year to 12.1% and the collective percentage of Pacific lawyers (Cook Island Māori, Fijian, Niuean, Samoan, Tokelauan, Tongan, other Pacific Peoples) increasing from 4.3% last year to 6.4%.
E T H N I C I T I E S A S A P R O P O RT I O N O F L AW Y E R S A N D T H E N Z P O P U L AT I O N
Pacific
Māori
16.5% 3.7% Lawyers
8
0 – 7 years PQE cohort
8.1%
7.4%
Population
Lawyers
Population
620.5:1
626.7:1
Pacific Lawyers as a proportion of the Pacific Population
Māori Lawyers as a proportion of the Māori Population
I ssue 9 5 6 ∙ S ummer 2 0 2 3
Gender
P R O P O RT I O N O F A L L L AW Y E R S BY G E N D E R Other Gender
Not stated
0.03% 5
0.1% 23 Lawyers can identify their gender as female, male and gender diverse, or they may choose not to state their gender. There are currently 9,273 female lawyers practising and they make up most of the profession at 55.4%. Male lawyers amount to 44.4% of the profession, with 7,434 lawyers being male. The gender balance has slowed its increase of females this year, females increasing only slightly, after a 1% rise in female lawyers every year for the last five years. The trend of majority female lawyers will likely continue to increase with 64.2% of all lawyers with 0-7 years of post-qualified experience (0-7 PQE) being female. Although as already noted, this trend has slowed this year. We also anticipate gender diverse lawyers will increase with time, currently there are three. There are 55 more barristers this year compared to 2022, with 1.4% more females (45%) than last year (43.6%).
Male
Female
44.4% 7,434
55.4% 9,273
Total
100% 16,735
P R O P O RT I O N O F A L L L AW Y E R S BY G E N D E R C O M PA R E D TO L AW Y E R S 0 -7 Y E A R S P Q E Female
Asian
Male
Not stated
Other Gender
0.03%
0.1%
0.1%
0.3%
44.4%
35.4%
5
3
23
18
7,434
1,983
64.2%
3,600
55.4% 9,273
11.3%
Lawyers
15.1%
Population
373.2:1 Asian Lawyers as a proportion of the Asian Population
All Lawyers
Lawyers 0-7 Years PQE
9
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
256
121
109
Malaysian
Afrikaans
126
Samoan
127
German
139
Spanish
Māori
Hindi
196
TO P T E N L A N G UA G E S S P O K E N BY L AW Y E R S 0 -7 Y E A R S P Q E A L O N G S I D E E N G L I S H
43
40
36
32
32
Malaysian
54
German
Māori
Korean
57
Tagalog
89
Spanish
89
Punjabi
193
French
Mandarin
216
Mandarin
There has been a 38% increase in the number of te reo Māori-speaking lawyers from 156 to 216. Similarly, there has been increase in Mandarin speakers from 315 to 456. Other languages to see a marked increase include French, Hindi, Korean, New Zealand Sign Language, Spanish, German, Afrikaans, Cantonese, Samoan and Urdu. The increasing numbers of languages spoken reflects the increasing diversity of lawyers in New Zealand. However, this may also, in part be attributed to improved data collection, particularly related to new lawyers.
272
French
These graphs present the top ten languages spoken by lawyers alongside English. It is inferred that lawyers can speak English.
Korean
456
Hindi
Language
TO P T E N L A N G UA G E S S P O K E N BY A L L L AW Y E R S A L O N G S I D E E N G L I S H
L AW Y E R S W H O S P E A K T E R E O M Ā O R I C O M PA R E D TO T H E N Z P O P U L AT I O N O F T E R E O M Ā O R I S P E A K E R S L AW Y E R S
P O P U L AT I O N
R AT I O
216
204,904
949:1
L AW Y E R S W H O U S E N Z S I G N L A N G UA G E C O M PA R E D TO T H E P O P U L AT I O N O F N Z W H O C O M M U N I C AT E I N N Z S I G N L A N G UA G E
10
L AW Y E R S
P O P U L AT I O N
R AT I O
10
256,130
25,613:1
I ssue 9 5 6 ∙ S ummer 2 0 2 3
Time in practice L AW Y E R S BY Y E A R S SINCE ADMISSION 3,738
The Law Society records years since admission for every registered lawyer. These figures do not necessarily represent years in practice or account for time when a lawyer has a pause in their practice of the law but are the best gauge of age and experience.
This data trends towards lawyers with fewer years in practice. New Lawyers (0-7 years post-admission) are in the majority with over 5,583 lawyers. By contrast, there are 3,880 lawyers with greater than 26 years post-admission.
2,600 2,198 1,921
1,704 1,223 905
694
<1 year
630
1-5 years
6-10 years
11-15 years
16-20 years
21-25 years
26-30 years
31-35 years
36-40 years
561
41-45 years
367
46-50 years
194 >50 years
Types of practice P R O P O RT I O N O F P O S I T I O N S O F E M P L OY M E N T O F B A R R I S T E R S
Lawyers may practise in three ways: as barristers and solicitors (providing services to the public), as barristers sole and as in-house lawyers (providing services to firms).
Barristers
In-house Lawyer Director
As of 30 June 2023, there were 1,972 lawyers practising as barristers. This figure represents 11.7% of lawyers and is the same proportion as last year. Nearly ten percent of all lawyers, 1,648, are practising as barristers sole. This is slightly lower than last year’s figure of 9.9%. Most barristers - at 83.8% - are sole practitioners. The number of barristers recorded as employees was 228, a slight increase compared to last year. There are 11 barristers holding an in-house position, up from only two last year.
0.6% 11
3.3% 66
Partner
0.2% 3 Shareholder
0.1% 1 Sole Practitioner
Employee
0.1% 1
12.1% 238
Total
100% 1,972
B A R R I S T E R S C O M PA R E D TO N E W Z E A L A N D B A S E D L AW Y E R S
11.8%
Barrister Sole
83.8% 1,652
11
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Types of practice
P R O P O RT I O N O F L AW Y E R S T H AT P R A C T I S E A S I N - H O U S E L AW Y E R S
In-house lawyers The trend of increasing numbers of in-house lawyers has continued this year, rising from 4,702 to 4,851 this year. In-house lawyers now account for 28.9% of the practising profession.
2023
28.9%
2022
28.6%
2021
27.2%
2020
23.8%
2019
23.5%
Areas of practice Company and Commercial
6,081 4,784
Property 4,332
Civil Litigation
4,112
Trusts and Estates 3,391
Family
3,221
Employment Criminal
2,689 2,181
Administrative and Public
1,977
Bank and Finance 1,669
Intellectual Property Resource Management
1,514
Mediation
1,399 1,334
In-house Counsel 964
Insurance Tax
956
Immigration
926
Privacy Law
895 734
Treaty and Māori Lending Activities
558
Arbitration
552
Health
500 437
ACC
312
Media Law
302
Selling Real Estate Coronial Law
12
43
Lawyers are asked to give information on their areas of practice and 79.4% have provided this information to the Law Society. Company and commercial, property, and civil litigation remain the most practised areas. Coronial law, media law, selling real estate and ACC are the least practised. Law related to the Treaty and Māori is currently practised by 734 lawyers who provided this information. Note: More than one area may be selected
I ssue 9 5 6 ∙ S ummer 2 0 2 3
New lawyers
P R O P O RT I O N O F L AW Y E R S 0 -7 Y E A R S P Q E BY Y E A R S S I N C E A D M I S S I O N 890
At the year ending 30 June 2023, the New Lawyers category comprised 5,583 lawyers of which 64.2% were female. The largest subset of the New Lawyers group was in the one-year post-admission category with a total of 890 lawyers. This was closely followed by 870 lawyers in the two-year category.
870
694 660
651
667 605 567
CENTRES WITH COUNT >100 P Q E 0-7 L AW Y E R S Main centre
Number
Auckland
2,289
Wellington
792
Christchurch
574
Overseas
434
Hamilton
243
Dunedin
102
0 yrs
1 yr
2 yrs
3 yrs
4 yrs
5 yrs
6 yrs
7 yrs
G E N D E R O F N E W L AW Y E R S 0-7 Y E A R S P Q E BY Y E A R S S I N C E A D M I S S I O N Male
Female
1.0%
0.9%
0.2%
0.2%
0.2%
32.9%
0.1%
34.6%
0.2%
33.0%
7
8
228
2
1
1
301
65.2%
37.7%
62.4%
63.6%
62.3%
214
220
215
2 yrs
66.8% 435
62.4%
567
573
1 yr
36.4%
251
246
64.4%
459
37.6%
37.3%
308
66.1%
Not Stated
1
1
34.6%
0 yrs
Gender Diverse
412
3 yrs
385
416
4 yrs
5 yrs
6 yrs
353
7 yrs
13
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Positions of employment
Slightly more than 98 per cent of lawyers have positions of employment. Employees make up the largest group of the profession at 5,734 lawyers, a decrease of 390 from the previous year. The two areas to see an increase in numbers year on year are directors and
shareholders, rising from 1,413 to 1,519 and 29 to 35, respectively. The majority of New Lawyers are employees and in-house lawyers. There are 35 New Lawyers employed as partners and 95 New Lawyers employed as barristers.
P O S I T I O N S O F E M P L OY M E N T O F L AW Y E R S A N D L AW Y E R S 0 -7 Y E A R S P Q E
Shareholder Total: 35 0-7 PQE: 1
= 100 Lawyers
= 100 Lawyers 0-7 Years PQE
Sole Practitioner Total: 910 0-7 PQE: 25
Director Total: 1,519 0-7 PQE: 108
Barrister Total: 1,648 0-7 PQE: 95
Partner Total: 1,519 0-7 PQE: 35
In-house Lawyer Total: 4,851 0-7 PQE: 1,457
Employee Total: 5,734 0-7 PQE: 3,279
0
14
1000
2000
3000
4000
5000
6000
Master of Laws in International Law and Politics Prepare for a career that can take you around the world Gain the advanced knowledge and skills you need to work for international organisations, government departments, law firms, and more. Learn more and enrol today – visit canterbury.ac.nz
Master of Criminal Justice Take the future of justice into your hands Develop the skills sought by New Zealand’s justice sector, including professional understanding and theories behind crime and rehabilitation, policy analysis, and bicultural knowledge and competence. Learn more and enrol today – visit canterbury.ac.nz
Transforming our membership offer T
he Law Society is well on its way to delivering even more value to members through a refreshed membership offer that’s financially sustainable, with the Council indicating its support for a new representative strategy at its October meeting. The Council will discuss the strategy again in mid-December and final approval, including the amount of a proposed membership subscription, will be on the agenda for the Council’s Annual General Meeting (AGM) in April 2024. If approved, a subscription will be introduced to coincide with practising certificate renewals in July 2024.
Why is a new Representative strategy needed? The money we receive from practising certificate fees can only
16
be spent on regulatory matters, not on representative services the Law Society provides to members. Section 67(4) of the Lawyers and Conveyancers Act 2006 prohibits any cross-subsidisation, and the Law Society has separate regulatory and representative accounts. Currently, most member services are provided at no cost to members and are being delivered at a significant deficit. The deficit is currently funded by reserves and is not sustainable. It also means the Law Society can’t add greater value to its membership offer.
About the new strategy The new strategy will: · Introduce a modest membership subscription in July 2024 that will help us shift toward a sustainable membership offer. · Any decision on the amount
of a membership subscription will not be confirmed until the Council’s AGM in April 2024. · Retain and build on our existing member services across the motu, including branches, sections, NZLS CLE and education, mentoring, health and wellbeing and more. · Broaden our offer to include exclusive member offers, such as discounted insurances. More than 130 members from around the country took part in 17 focus groups to help inform our strategy and tell us what’s important when it came to a valuable membership offer. In addition, meetings were held with every branch council and section executive and Council members Te Hunga Rōia Māori o Aotearoa and Pacific Lawyers Association, and NZ Asian Lawyers.
I ssue 9 5 6 ∙ S ummer 2 0 2 3
What you told us Profession speaking with one voice
We tested a proposed offer with members who took part in the focus groups that included the following four value pillars.
Education and connection
On issues relating to the Rule of Law, access to justice and for the profession
Help in the moments that matter Practice area, for example through sections, career stage, critical moments, for example, complaints and technical
Quality black letter law. Related learning, networking and collegiality, keeping informed delivered through sections, branches and from the centre
Saving me money Exclusive members offers – personal, professional, business
Overall, members described the offer as ‘GOOD’ and something they would consider paying for.
Members most valued (in order of priority): Stronger, more visible law reform and advocacy – for rule of law, access to justice, and advocacy for the profession
1 2
Education and networking. Member pricing for NZLS CLE Help in the moments that matter – especially health and wellbeing, complaints, AML, career stages
3 4
Member exclusive offers, for example, professional indemnity insurance, banking
Work is now underway on building on our offer based on what we heard from the profession, including tailoring our offer to meet members’ differing needs. This will include customising our offer for those who opt to join or continue to be a member of a section. As the Law Society improves its offer to better reflect all the
different benefits offered to members, we will work with sections to ensure everyone has easy access to section membership. We look forward to sharing all the details with the profession following the Council’s AGM in April.
17
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
“More than 130 members from around the country took part in 17 focus groups to help inform our strategy and tell us what’s important when it came to a valuable membership offer”
What do we currently provide to our members? Members of the Law Society currently have access to a range of services at no cost, including: · · · · · ·
education networking and connection information technical guidance support and advice, and, advocacy for the benefit of the profession.
Law libraries, Vitae counselling, mentoring and law reform are funded from regulatory. Our proposed new strategy will build on these. We have a lot to be proud of. We have a national reach via our branches, and our three sections offer deep support to in-house, family and property lawyers. In the last year, nearly 10,000 members attended our 280 events across branches, sections and NZLS CLE. As a membership body, the Law Society provides strong national representative services and is the trusted voice for lawyers across Aotearoa New Zealand. We provide extensive representation
18
and wide geographical support of the profession. The Law Society currently represents 98 per cent of the profession, with 13 branches across the motu. We provide several representative services which all lawyers in New Zealand may access, including our wellbeing initiatives such as Practising Well.
Advocacy Our advocacy work has influenced change on important issues affecting the profession. Our work ranges from health and safety and facilities in the courts to advocating for the wellbeing of the profession. We summarised the work we undertook during the parliamentary term that recently ended. We made more than 200 formal submissions on bills, discussion documents, Law Commission reports, and other consultations. Read our report at lawsociety.org.nz/news/publications/ lawtalk/lawtalk-issue-955/advocacyin-action-term-in-review and for more information about the work we do in the advocacy space see our Advocacy in Action lawsociety.org.nz/ news/legal-news/advocacy-in-action. ▪
What’s next? The next steps include developing a marketing strategy, investigating commercial partnerships with organisations such as insurance providers and banks. This work has already begun and will continue into 2024. The Law Society will communicate with members as soon as possible after the April meeting.
We’re your Law Society We’re here for more than 16,000 lawyers and legal professionals across the motu, from large law firms in the city centres to sole practitioners throughout regional Aotearoa New Zealand. With a true national reach and a strong voice, we’re here for you, for the profession and for the rule of law.
Find out more at lawsociety.org.nz
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: Chief Coroner Judge Anna Tutton speaks to media at the Loafers Lodge cordon. Stuff Limited
A view from the bench of Chief Coroner Judge Anna Tutton Chief Coroner Judge Anna Tutton sits down with LawTalk to discuss the essential and challenging work of the Coroners Court and looks to raise awareness of the role of the coroner among peers, the profession, and the community.
A
coroner since 2015 and Deputy Chief Coroner since 2020, Judge Tutton was appointed Chief Coroner in November 2022. With a long career that has included work in criminal law and professional legal education, Judge Tutton is no newcomer to highly complex crisis scenarios that can tragically also involve mass fatality events, which have been well documented in New Zealand’s recent history. In her work as a legal adviser and the manager of a legal team at New Zealand Police, Judge Tutton acted in advisory roles in relation to the Pike River Mine disaster and the Christchurch earthquakes. Her experience as a Crown prosecutor and legal adviser to Police exposed her to the work of the Coroners Court. This piqued an interest in coronial work, where Judge Tutton has now reached the top ranks.
The differences that set us apart Judge Tutton says that while there are many similarities between the
20
Coroners Court and other courts, the Coroners Court operates in a unique way and has a unique function. Just like judges, coroners are qualified lawyers, appointed as judicial officers. Police inform a coroner when someone dies unexpectedly, violently or in suspicious circumstances, or when the cause of the death is unknown. The role of the coroner is to establish as far as possible the cause and circumstances of the death, and to make recommendations to reduce the chances of further deaths in similar circumstances. The Christchurch Masjidain Attack Coroners Court inquiry has thrown the jurisdiction into the spotlight. The First Phase Coronial Inquest, which began in October and is due to run until mid-December, is the largest inquiry of its type in New Zealand with more than 140 interested parties, considerable evidence and more than 90 witnesses to be heard. A distinguishing feature of the Coroners Court, as opposed to other
courts, is its inquisitorial, rather than adversarial nature. “The coroner has a dual role, both investigative and judicial. The coroner as investigator works to establish the truth – whether someone has died, who that person is, and why, how, when and where he or she died. The coroner investigates the deaths entering the jurisdiction, as well as making all the judicial decisions in relation to that investigation, and presiding over an inquest if one is held.” Judge Tutton explains that the coronial process is a multi-disciplinary
“With a long career that has included work in criminal law and professional legal education, Judge Tutton is no newcomer to highly complex crisis scenarios that can tragically also involve mass fatality events”
process. Coroners work closely with others involved in that process, for example pathologists and Police, but the coroner, and the Coroners Court process, are independent. “Coroners act as investigators who gather evidence themselves. As truth seekers, ultimately, we want to provide whānau with answers and increase the safety of the community by making recommendations to prevent further deaths.”
As Chief Coroner, Judge Tutton is Head of Bench. Like the Heads of Bench in other jurisdictions, she has administrative responsibilities which include contributing to the operation of the coronial system and overseeing coroners’ investigations. But because each coroner is an independent judicial officer, she has no responsibility or direct authority over the judicial work of other coroners.
This final phase speaks clearly to the ethos of the Coroners Court which is to ‘Speak for the dead to protect the living’.
The Coroners Court bench now sits 22 permanent coroners, eight Relief Coroners and eight newly appointed Associate Coroners taking the total
21
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: C hief Coroner Judge Anna Tutton
to 38. It is a jurisdiction that reaches the country’s length and breadth and includes the Chatham Islands and the Ross Dependency. Unique to the Coroners Court is the role of a National Duty Coroner. That means a coroner is on duty 24-hours a day, seven days a week, with the support of the National Initial Investigations Office (NIIO), which is part of the Ministry of Justice. “Coroners’ work is not predictable. We operate 24/7. The National Duty Coroner makes all the judicial decisions in the first phase of the court’s processes – decisions around whether, or not, to accept jurisdiction of a death that is reported to us, and whether a post-mortem examination is required. The coroner has custody of the bodies in our care. This carries with it an enormous responsibility and consideration of the cultural and other needs of the families involved, as well as the public interest in the investigation.” In May this year, Judge Tutton fronted the media alongside the Police and Fire and Emergency New Zealand outside the Loafers Lodge fire in Wellington. The role a coroner plays alongside other agencies following a mass fatality incident is not well known; assuming custody of the bodies of those who have died, even before they are recovered from the scene. “Coroners have a specific role under the law – which includes making decisions about post-mortems, and with the assistance of the police and other specialists, ensuring that the identity of the victims is established.”
22
Front and centre for the Chief Coroner are the families who entrust coroners to take care of a loved one, and others affected by the deaths entering the court’s jurisdiction. At all times the body is treated with dignity and respect, and wherever possible, cultural needs are met. “We interact with people in their darkest days. I am committed to ensuring the Coroners Court is a people-centred one, that our processes are fair, and that families and others involved in the coronial system can participate in a meaningful way.”
Coroners Amendment Act 2023 The Coroners Amendment Act 2023 addressed some of the critical issues facing the Coroners Court, notably the much-publicised backlog. While a range of factors can affect the length of a coronial inquiry, the
creation of the Assistant Coroner role afforded by the Act has meant an increase in the capacity of the Coroners Court to progress the matters before it. Associate Coroners are expected to relieve some of the pressure on the Coroners Court by assuming Duty Coroner responsibilities and working on aged cases, enabling coroners to spend more time progressing more complex matters. In addition, Judge Tutton explains that coroners have been looking at doing some things differently, to ensure families get answers more promptly, but without reducing the quality of the work of the Court. Clinical Advisors, senior medical clinicians, have been appointed to assist in the early phases of the court’s processes, by discussing with reporting doctors whether deaths are appropriate Coroners Court
I ssue 9 5 6 ∙ S ummer 2 0 2 3
“Judge Tutton is confident that the court will be able to better meet the needs of the community with the additional coroners, Associate Coroners and Clinical Advisors together with other initiatives already in play”
matters, and by providing medical advice to coroners throughout their inquiries. It is expected that the creation of the Clinical Advisor role will help decrease the number of matters entering the jurisdiction unnecessarily and increase coroners’ access to clinical advice. All the newly appointed Relief Coroners (who have all the powers of a coroner but have fixed term warrants) and the Associate Coroners will have been sworn in by mid-January 2024. Judge Tutton is confident that the court will be able to better meet the needs of the community with the additional coroners, Associate Coroners and Clinical Advisors together with other initiatives already in play.
Career pathway and collegiality An alumni of the University of Canterbury Law School, Judge Tutton’s first role was as a High Court Judge’s Clerk for the judges then resident in Christchurch. Judge Tutton speaks with gratitude of the lessons she learned from observing the late Justice Williamson. “Irrespective of their position, role or status, Justice Williamson
treated everyone he encountered with courtesy, respect, and good humour. It was noticeable to me, and I determined I would try to do the same.” Judge Tutton subsequently worked in a range of legal roles, including Crown Prosecutor, Senior Counsel at the Commerce Commission, Deputy National Director of the Institute of Professional Legal Studies, and her roles at New Zealand Police. She says her choice of roles has been dictated by her interest in people and the satisfaction of “working with people to make things better.” Coroners come from a range of backgrounds. Many have criminal or medical law experience. Some have practised in the Coroners Court before their appointment, but many have not. Judge Tutton says those considering seeking appointment to the Coroners Court bench need broad legal experience and ability, analytical skills, sound judgement, tenacity, cultural awareness and sensitivity and humility. “Life experience is important in a court that deals with grieving whānau and others affected by the deaths of those who come before us,” she says. Courtroom experience
is important, as although fewer inquests are being conducted now, those that proceed are complex, and often involve multiple parties. “The ability to manage a courtroom to ensure procedural fairness as well as an empathetic and culturally appropriate process is essential.” The Coroners Court bench aims to reflect and serve the diverse and multi-cultural society that reflects modern Aotearoa New Zealand. The bench has a higher number of women than in some other jurisdictions and coroners come from a range of ethnic backgrounds. The challenging nature of much of the work and the at times anti-social hours, together with a strong sense of purpose, are factors that bind what is regarded as a tight group. There is a strong sense of collegiality amongst the coroners and a dynamic exchange of knowledge and experience. Judge Tutton says that the broad lived and professional experience required of a coroner generally means that, like judges, coroners are appointed after decades in legal practice. Above all, coroners must like and respect people and want to contribute to the greater good. ▪
23
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: Sue Styants, Auckland based sole practitioner
Maximise your influence beyond your practice A
s we bid farewell to another year and prepare for the future, we acknowledge the hundreds of Law Society volunteers nationwide who tirelessly contribute their expertise, experience, time and energy to the daily running, governance and kaupapa of the Law Society. You can easily spot the footprints of our volunteers participating in the crucial functions of the Law Society including: law reform, advocacy, complaint inquiries, practice approval, professional standards, mentoring, section and branch events, just to name a few. LawTalk speaks to three volunteers for an insight into their unwavering commitment to the profession. While the motivation for setting out on a volunteering journey may vary, at the heart of each story is a passion for the profession and a willingness to serve.
Get inside the tent “If you want to influence issues affecting the profession, you need to participate,” Auckland sole practitioner Sue Styants says. Sue became involved with the Auckland District Law Society in the mid-1990s with a determination to get involved and not just be a bystander, but to ‘get stuck in’. As a lawyer in Papakura, Sue also recognised the need to have a voice for suburban practitioners.
24
Sue’s dedication and commitment stood for the next 28 years and saw her serve on the New Zealand Law Society Board and multiple committees. Most recently, she was a member of the National Standards Committee between 2009 and 2017, and was a member of the Auckland Branch Council between 2015 and 2023. Branch Councils represent the interests of local Law Society members, promote collegiality through social, learning, and networking events, and assist with the delivery of a range of wellbeing and support services and activities. An important part of our regulatory function, the Standards Committees are the first formal decision makers for complaints about lawyers. For Anna Fuiava, Associate at Denham Bramwell and a member of the Law Society’s Access to Justice Committee since 2017, it was simply the right opportunity at the right time. “I was at a stage of my career where I was keen to volunteer on committees for both my professional development and personal interest. It must have coincided with the law reform committees’ renewal cycle. I’m a legal aid lawyer so I’ve always been interested in legal advocacy,” Anna says. The Access to Justice committee
(lawsociety.org.nz/branches-sectionsand-groups/law-reform-committees/ access-to-justice-committee/) monitors proposals that affect access to justice; in particular, the operation of the legal aid system, advocating on behalf of lawyers and their clients to ensure access to justice for New Zealanders. It’s one of 17 law reform committees that assist in drafting and reviewing the Law Society’s submissions on bills and discussion papers, and advocating for improvements across the law. Similar to Anna, Hamilton sole practitioner Truman Wee was also a keen seeker of volunteer experiences. He started his journey as a Library Committee Member almost at the same time as Sue before the merger of the District Law Societies. Truman is now the acting convenor of one of the two Practice Approval Committees who assess registry related applications, such as practise on own account, handling of trust money, Certificates of Character for admission, and matters relating to practice issues. Their role is to protect the quality and ethical standards of the legal profession. “I used to work in a firm where we were encouraged to get involved in voluntary positions, so it helped. I always feel that if you are part of a profession, you need to give something back.
I ssue 9 5 6 ∙ S ummer 2 0 2 3
Law Society volunteers in numbers Practice Approval Committees: 12 volunteer lawyers National Law Reform Committee: 18 volunteer lawyers 17 Law Reform Committees: 170 volunteer lawyers Standards Committees: 179 volunteer lawyers and lay people Branch Councils and Committees: 411 volunteer lawyers Family, Property and in-house Sections Committees: 210 volunteer lawyers National New Lawyers Group: 16 volunteer lawyers Mentoring programme: 300 volunteer lawyers Friends Panel and Complaints Advisory Panel: 68 volunteer lawyers
“Yes, it’s a commitment and sometimes it does mean that you’re not able to watch your favourite Netflix series on the weekend. It’s a decent amount of work to carefully go through hundreds of pages of application material, but you must remind yourself that there’s someone behind every application, and our decision is going to affect their future livelihood,” Truman says.
Seeing the bigger picture A strong link that joins the volunteer stories is the opportunity to branch out and see the bigger picture of the profession by being involved with the Law Society. This has been a particularly important aspect for Anna as the Access to Justice Committee is a platform for her to provide an insider’s view on legal aid – an issue that is close to her heart.
“We’re often caught up in our client files and become very focused on the problems in front of us. Joining the committee gives me a direct line to legal aid so I can have a voice on practical and on-the-ground issues. “Furthermore, it allows me to step back to look at the profession as a whole in the wider society, making sure we are serving the people that we’re there to serve the best we can,” Anna says. Sue found her Law Society involvement extremely valuable as it broadened her legal landscape. “I will always be grateful for my time at the Law Society as it expanded my horizons and took me out of my comfort zone. It also gave me the opportunity to view things from a governance perspective. “My daily work at the coalface was extremely helpful during my
nine-year involvement with the National Standards Committee,” she says. In the past fifteen years, Truman has assessed countless applications of practise on own account as well as practising certificate applications and annual renewals from those who have declared a serious issue, such as a criminal conviction, insolvency issue, or disciplinary issue. He couldn’t be more familiar with the standards that the profession collectively upholds. “To be able to make a sound and fair judgment on an application, we need to consider the potential risks to the public and the implications of our decisions on the profession. It has certainly broadened my view as to how I operate my own practice and made me a more careful and vigilant practitioner,” Truman says.
25
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: Anna Fuiava, Associate at Denham Bramwell and a member of the Law Society’s Access to Justice Committee FAR RIGHT: Truman Wee, Hamilton based sole practitioner
Camaraderie and a common purpose When asked what motivates these volunteers to continue their work with the Law Society whilst juggling their own work, family and life, a key factor to keep going was the camaraderie of their volunteer colleagues. “When you’ve been talking to someone on a monthly basis, apart from January each year, and get on well, your working relationship naturally develops into friendships creating a wonderful bond. Camaraderie and collegiality are what our profession is about,” Truman says. He laughs that they would joke with each other, saying “If you leave the committee, I leave, too!” A mother of two children, Anna admits that she is an “over-committer” but being on the Access to Justice committee is well worth the time and effort. “I found the benefits of meeting other practitioners, and together advocating for legal aid and the people using the services from behind the scenes much outweighed any time commitment and worries that I had. “The Law Society’s Law Reform team has been a huge assistance, summarising all the pieces of work we need to comment on, and guiding us through the burden-free collaboration process. The encouragement from our committee convenor Liz Bulger has also led to my continuous involvement,” Anna says.
26
For many practitioners, building connections and networks outside of their own practice can be a challenge. As Sue approaches retirement in March 2024, there is no doubt in her mind about the importance of a supportive network in shaping a successful legal career, and how volunteering can be a great way to facilitate that. While serving as a Council member of the Auckland District Law Society, Sue was closely involved in the reform process which led to the restructure of the New Zealand Law Society. “There was around 10 years of toing and froing, finally leading to the Lawyers and Conveyancers Act 2006 and the establishment of the restructured Law Society. A lot of volunteer time and energy was invested by so many in the profession to achieve this outcome. “Throughout I was privileged to work with the then Law Society’s President, the late Ian Haynes, who was pivotal in this process and from that, a close and valued collegial relationship developed. “Over the years, I was very fortunate to meet and be influenced by so many colleagues like Ian that I would not otherwise have encountered in my suburban legal practice,” Sue says.
Do it for the right reason and give it a go To people who may be interested in contributing their expertise
“There is a place for everyone in the profession to become involved in Law Society affairs and make a contribution. If you are not happy with an issue, why not get inside the tent, see it for yourself and get involved?”
I ssue 9 5 6 ∙ S ummer 2 0 2 3
inspire Asians or those with other ethnic backgrounds to step out and know that they can also work their way up to be here if they wish. “I didn’t set out deliberately to volunteer for this purpose, but if my story would help others to see more possibilities within themselves, I’ll keep going,” he says. Truman adds, “Don’t be too concerned about what people think of you. Who you are and what you can contribute are all that matters.”
on important issues facing the profession, the message from the three Law Society volunteers is loud and clear – give it a go! As Sue reflects on a career spanning more than four decades, her time with the Law Society has been a highlight and invaluable. “There is a place for everyone in the profession to become involved in Law Society affairs and make a contribution. If you are not happy with an issue, why not get inside the tent, see it for yourself and get involved?”
Truman encourages practitioners from diverse ethnic backgrounds to not be afraid to put themselves out there. He says, “If you decide to do it, do it for the right reason.” “The work of the Practice Approval Committee is demanding and time-consuming but satisfying at the same time. If your motivation is to serve, you don’t think much about what you’ll get in return. “I’m hoping that my journey would
Keen to explore volunteer opportunities at the Law Society? If you are keen to join the 1300 plus volunteers engaged with the Law Society to maximise your influence, advocate for the profession and make a meaningful contribution to the people we serve, please contact Glenda Macdonald, General Manager Representative – Member Services at glenda.macdonald@lawsociety.org.nz to discuss opportunities and how to get involved. ▪
Anna says that each law reform committee has now set aside a new seat for lawyers with 3-5 years PQE. “We all have something unique to contribute even if you’re relatively new to the profession. If volunteering is crossing your mind, it might be worth pursuing – don’t shy away from coming forward.” As a first-generation immigrant,
27
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Survey shows signs of progress L
egal Workplace Environment Survey figures show the prevalence of sexual harassment among lawyers has decreased in the five years since the Law Society’s first workplace survey of lawyers. The results of the 2023 survey also show that lawyers who have been sexually harassed in the last five years are much less likely to feel the behaviour was ‘common’ in their workplace at the time of the harassment – from 23 per cent in 2018, to 12 per cent in 2023. Further, over the last five years the proportion of lawyers who have encountered sexual harassment, as a bystander, has dropped 9 percentage points, to 19 per cent. Law Society Chief Executive Katie Rusbatch said the results were a step in the right direction, but that reluctance to report was still an ongoing issue. “These survey results provide important insights into the key issue of workplace safety and culture. It is encouraging to see some signs of progress, although
28
the survey shows there’s still a lot more work to do,” she said.
raising these issues with their employers and the Law Society.”
The prevalence of sexual harassment among all lawyers has decreased, applying both the sexual harassment definition in the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 (the Rules) (10 percent to 7 per cent) and a behavioural definition (27 per cent to 22 per cent).
General workplace wellbeing, bullying and employment discrimination, were other key areas examined by the survey.
Ms Rusbatch said that while the only acceptable number for incidents of sexual harassment is zero, she was optimistic that the drop in incidents of sexual harassment provided further signs that the profession was changing for the better. “It shows that recent high-profile cases, changes to professional standards rules and clear messaging about zero tolerance of sexual harassment are making a difference.” “However, there is still a reluctance to seek support and speak up about unacceptable behaviour for fear of the consequences or a distrust in the process. It’s those barriers we want to break down, and to see lawyers
Workplace wellbeing Three quarters of the legal community have a great deal of job satisfaction. Ms Rusbatch said this was not surprising. “Many lawyers say that they entered the legal profession because they want to help people,” she said. Job stressors have reduced since 2018; however, lawyers are less likely to feel that their stress is appropriately managed in 2023. “We know that some areas of legal work such as criminal law and family law are under immense workload pressure,” said Ms Rusbatch. “It is also concerning to see that work-life balance is lowest among Pacific people working in the legal community.”
I ssue 9 5 6 ∙ S ummer 2 0 2 3
P R O P O RT I O N O F L AW Y E R S W H O H AV E B E E N S E X UA L LY H A R A S S E D F E E L T H E B E H AV I O U R WA S ‘C O M M O N ’ I N T H E I R WO R K P L A C E 2018
2023
23%
12%
P R O P O RT I O N O F L AW Y E R S W H O H AV E E N C O U N T E R E D S E X UA L H A R A S S M E N T, A S A BY S TA N D E R
Bullying Bullying remains a common experience in the legal community. Half of respondents have experienced bullying in a legal setting in their lifetime. However, the number of lawyers experiencing bullying in the last six months using the Rules definition, has decreased from 21 per cent in 2018 to 17 per cent in 2023. “It is good to see some shifts in the level of bullying being experienced in the legal community and that physically intimidating behaviour and some person-related bullying behaviours have declined since 2018. However, the survey shows that bullying needs to be a continued focus for the profession,” said Ms Rusbatch.
2018
2023
19%
P R O P O RT I O N O F L AW Y E R S W H O F E E L S E X UA L H A R A S S M E N T WA S ‘C O M M O N ’ I N T H E I R WO R K P L A C E The Rules definition 2018
10%
2023
7%
Behavioural definition 2018 2023
Employment discrimination Eleven per cent of the legal community has experienced some form of employment discrimination in the last five years. Gender, age and ethnicity dominate this area, with a disproportionately high representation amongst Pacific peoples.
28%
27% 22%
P R O P O RT I O N O F L AW Y E R S T H AT H AV E E X P E R I E N C E D B U L LY I N G IN THE LAST SIX MONTHS 2018
2023
21%
17%
29
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
“The Law Society is committed to ensuring that all lawyers are treated with respect, courtesy and fairness and maintain the standards expected of the profession at all times”
“The questions on employment discrimination were new in the 2023 survey, as this is an area that the Law Society wants to understand,” Ms Rusbatch said. “The most common effects relate to damaged career prospects and harm to mental wellbeing.” “It is important that the profession provides a safe and inclusive environment, and that the diversity of the profession reflects the community it is serving.”
What is the Law Society doing? The Law Society is committed to eliminating the culture of bullying, harassment and discrimination which exists in some parts of the legal profession. “We don’t want any of our lawyers being harassed, bullied or discriminated against,” Ms Rusbatch said. Acknowledging the issues was one of the factors that triggered changes to the Rules in 2021, and the Independent Review. “We recognised that in many areas – particularly complaints – the Law Society has been hampered by our legislative framework. The Law Society commissioned
30
the Review, and we welcomed its findings.” The Law Society has provided its response to the Minister of Justice, so that it can be considered for the Government’s legislative agenda. “We have made progress in the regulatory area. There is a new regulatory strategy in place and the Rules relating to unacceptable behaviour have been comprehensively reformed. Sexual harassment has clearly been found to be misconduct by the Lawyers and Conveyancers Disciplinary Tribunal,” she said. “As the kaitiaki of the legal profession, we recognised that there have been issues, and that as a regulator and representative body we needed to act. The Law Society is committed to ensuring that all lawyers are treated with respect, courtesy and fairness and maintain the standards expected of the profession at all times.” Ms Rusbatch said there was no end to this work and that the responsibilities for the legal profession were ongoing. The Law Society is working hard to provide representative services to its members especially in the area of lawyer wellbeing.
“As a regulator, we’re aware that if left unaddressed, poor wellbeing can flow into disciplinary issues,” Ms Rusbatch said. “We’d prefer to prevent those outcomes, and I encourage lawyers to take advantage of the Law Society’s Practising Well initiatives.” The National Friends Panel is made up of lawyers who can be contacted on a confidential basis with questions or concerns relating to practice issues. Additionally, several lawyers are also available to discuss sensitive matters such as workplace harassment. The Law Society has a dedicated LawCare 0800 phone line (0800 0800 28) which is a confidential point of contact for lawyers and law firm employees who have experienced, witnessed, or been affected by sexual assault, sexual harassment, or other unacceptable behaviour. Unacceptable behaviour can be reported to 0800 261 801, or on the ‘Report a lawyer’ website page. Lawyers can also raise a concern and have a Professional Standards Officer call them back. The Law Society has a specialist team in the Lawyers Complaints Service that handles sensitive matters and can discuss
I ssue 9 5 6 ∙ S ummer 2 0 2 3
these matters with lawyers on a confidential basis. The Law Society has published ‘Guidance on professional standards and reporting obligations.’ This guidance is intended to help lawyers to understand their obligations, and to support and empower people who are affected by unacceptable behaviour. The guidance can be found on the Law Society’s website.
About the survey The 2023 Kantar Public and New Zealand Law Society Legal Workplace Environment Survey was commissioned by the Law Society in a commercial partnership with data insights company, Kantar Public. The 2023 survey follows up on the 2018 Legal Workplace Environment Survey to establish any behavioural changes in the legal workplace environment since then. The 2018 survey followed accusations of sexual harassment at some law firm events and the launch of the #metoo movement. The Law Society commissioned Kantar Public to undertake the survey to ascertain the degree to which
lawyers were experiencing this type of behaviour in workplaces across the country. The action points that came from the 2018 survey resulted in the new designated lawyer obligations, and a clarified set of behaviour expectations that are now included in the Rules.
Definitions and updates on the 2018 survey It should be noted that the survey uses both the Rules definitions and behavioural definitions for sexual harassment and bullying. The survey uses the Employment New Zealand definition for employment discrimination. The 2018 survey used the Human Rights Commission definition for sexual harassment and the Employment New Zealand definition for bullying as this conduct was not specifically defined in the RCCC at the time. These are identified with the relevant numerical results and explained in the summary document. The 2023 questionnaire was largely the same as the 2018 questionnaire to allow for direct comparability of results. The questions about employment discrimination were
new in the 2023 survey and provide a benchmark for comparison of future surveys. Non-lawyers were not surveyed in 2018.
Survey process and response rate Potential respondents comprising 15,573 practising certificate holders and 614 non-lawyers, were each provided a unique link to participate in the survey. The overall response rate to the survey was 15 per cent. The total sample size was 2,355 – this comprised 1,992 lawyers and 363 non-lawyers who completed the survey. The 2023 survey showed a shift in the gender profile of respondents from 49.7 per cent male, 49.9 per cent female and 0.4 per cent gender diverse in 2018 to 45 per cent male, 54 per cent female and 1 per cent other gender. These are proportionally representative of the populations of lawyers at the times of both surveys. Of the non-lawyers surveyed, they represented 88 per cent female and 12 per cent male. ▪ More information, including the full report can be found on our website.
LEAD THE CHARGE. LEAD THE CHANGE. Study postgraduate Law at New Zealand’s leading Law School.
31
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
32
I ssue 9 5 6 ∙ S ummer 2 0 2 3
LEFT: Yasmin Olsen and Jessie Fenton RIGHT: Natalie Walker, Partner at Kayes Fletcher Walker
The continuing quest for knowledge Ko te manu e kai ana i te miro nōna te ngahere. Ko te manu e kai ana i te mātauranga, nōna te ao. The bird that eats the miro berry owns the forest. The bird that feasts on knowledge owns the world.
C
ontinuing the quest toward higher learning has seen six lawyers working in South Auckland reaching beyond the shores of Aotearoa New Zealand and landing at the most prestigious law schools in the world. Having all six candidates from the Office of the Manukau Crown Solicitor | Te Tari o Te Rōia Matua a Te Karauna ki Manukau is little short of extraordinary. Director Natalie Walker explains that the COVID-19 hiatus offered an opportunity for some of her staff to engage in further studies. This started in 2022, when three of the firm’s solicitors undertook year-long full immersion te reo Māori courses in Tāmaki and Ōtaki. This year, six solicitors have travelled to the northern hemisphere to complete postgraduate studies in law. While Kayes Fletcher Walker could arguably be considered an exceptional incubator of legal talent, Natalie is quick to point out that the publicly important nature of the work the firm is responsible for tends to attract lawyers who are intelligent, imaginative,
hard-working and public-minded. Taking time out to study is not unusual and is something the firm encourages. “While we are sad to lose six talented lawyers from our team, especially all in one year thanks to COVID-19, the time was right for them to head north and further their legal education. We are very proud that these young lawyers can go from representing the Crown and our community in the South Auckland courts, to representing their country in some of the best universities in the world. Their international cohorts are lucky to have them, and will no doubt learn much from the insights and experiences that they bring with them from home,” says Natalie. While the world is a big place, it is made a lot smaller when you can tread the hallowed halls of the great universities with your Kiwi colleagues. Freddy Faull, Tom Riley and Sam Becroft each secured places at the University of Cambridge in England; Freddy at Queen’s College
studying for an LLM, Tom at Trinity Hall pursuing a Master of Philosophy and Criminology, and Sam at Gonville & Caius College, also studying for an LLM, with the support of a William Georgetti scholarship. Stateside, James (Jimmy) Toebes, Jessie Fenton and Yasmin Olsen each secured the support of scholarships to advance their legal studies at New York University and Yale University, respectively. A recipient of the NYU Deans Graduate Award and a Fullbright New Zealand Scholar graduate, James is also enrolled in an LLM degree.
Yasmin’s Yale Story Yasmin Olsen (Ngāpuhi (Te Ihutai), Te Rarawa, Ngāti Whātua, Ngāti Tīpā) is the recipient of a Fulbright-Ngā Pae o te Māramatanga Graduate Award. Yasmin also received generous support through a Borrin Foundation-Ngā Pae o te Māramatanga Postgraduate Scholarship, launched in 2021, as well as a William Georgetti Scholarship and support from the
33
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
Yvonne Smith Charitable Trust. At Yale Law School, Yasmin is pursuing a one-year LLM course with a focus on criminal justice reform and the law and indigenous peoples. The reciprocity of knowledge and experience has been a standout feature of the Yale experience for Yasmin, who has been welcomed by the Native American Law Students Association and has had the opportunity to learn about pressing issues facing indigenous peoples in the United States through her coursework. In her criminal law courses, Yasmin is grateful for her experience working in the criminal justice system, which enables her to bring practical insights to class discussion, where many classmates haven’t yet practised as lawyers or have come from academic backgrounds. Yasmin says, “The chance to gain insight into other jurisdictions and cultures, such as the way
34
tribal courts operate in the United States, has been a real eye opener.” Yasmin’s research interests build on calls for transformative criminal justice reform by Ināia Tonu Nei and Te Uepū Hāpai i te Ora – the Safe and Effective Justice Advisory Group, with a particular focus on how the criminal justice system can better serve wāhine Māori, who are overrepresented as both victims and offenders. “I hope to return home with fresh ideas from observing how things work in a different context,” Yasmin says. “The opportunity to be learning again is such a privilege. With a bit of space and distance from the everyday practice of law, I’ve been able to see things from a different perspective. I’ve already started to question some of the assumptions and beliefs I had about what is and isn’t possible. At the same time, I’m constantly reminded of the really
positive and exciting things that are happening at home – like the growing role of tikanga and te reo Māori in the law. And many of my classmates here are really interested in that.” In crediting the generous support of her scholarship foundations for making her postgraduate studies possible, Yasmin is also quick to credit the support of Natalie Walker and the KFW team in South Auckland. “There are just 27 students engaged in the LLM course from all over the world – and two of us worked in the same firm in South Auckland, which is an awesome reflection on KFW and the way it supports and nurtures its lawyers.” Of her five-and-a-half years working at KFW, Yasmin says, “I was really lucky to work in an office with someone like Natalie as a role model. Being surrounded by forward-thinking colleagues and leaders who are
I ssue 9 5 6 ∙ S ummer 2 0 2 3
“With a bit of space and distance from the everyday practice of law, I’ve been able to see things from a different perspective. I’ve already started to question some of the assumptions and beliefs I had about what is and isn’t possible”
open to doing things differently in order to better serve the community was really inspiring.” And for readers of this story who might be wondering if such an experience could ever be a possibility for them, Yasmin has this to say: “Don’t rule yourself out as not being the right kind of person for a particular job or opportunity. There are many different ways to be an advocate in the profession and you can bring yourself and your background to your role. And there’s so much value having a range of voices from diverse backgrounds in legal workplaces and learning institutions.”
LEFT: Postgraduate students on campus at Yale Law School
scholarship supports women undertaking postgraduate research in law. The scholarship honours its founder and New Zealand’s first female barrister and solicitor, Ethel Benjamin, who was admitted to the bar in 1897.
Jessie’s Yale story
Jessie’s studies will focus on the intersection of criminal law, indigenous rights, and constitutional reform, together with upholding the spirit and goals of the scholarship in advancing matters pertinent to women and the law.
Joining Yasmin at Yale Law School is fellow KFW prosecutor and now LLM candidate, Jessie Fenton. Jessie is the recipient of the 2023 New Zealand Law Foundation Ethel Benjamin Scholarship. This
Like Yasmin, Jessie has also found being immersed in a very different political and judicial system interesting and challenging. She has learned a lot not only about America, but also about the things she took
35
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
LEFT: Yasmin Olsen and Jessie Fenton
“While people often think of law as a science, it’s just as much of a creative endeavour. I think a good lawyer needs the same skillset as a good poet"
for granted in New Zealand – like finding herself explaining to her classmates why she is trying to learn te reo despite not being Māori. She considers this new perspective on Aotearoa is just as valuable as her newfound understanding of the American system. Jessie is also hoping to continue her work in the slam poetry world while at Yale. While some may think of poetry and the law as unlikely bedfellows, Jessie has been passionate about poetry since her student days, and it remains a strong part of her Auckland life, where Jessie is
a two-time New Zealand national slam poetry finalist, and a board member of the Auckland regional slam poetry organisation. She has already performed as part of a show at the Yale Schwarzman Centre and is hoping to attend more poetry events in nearby New York City. Asked more about how poetry and the law come together, Jessie observes that “while people often think of law as a science, it’s just as much of a creative endeavour. I think a good lawyer needs the same skillset as a good poet: a strong imagination, and an ability to take complicated ideas and articulate
MM |
them in plain, simple language.” Jessie is looking to return to Aotearoa New Zealand with a kete full of fresh thinking and a newly minted LLM, together with a deep appreciation for the opportunities she experienced at Yale. An important element of creating the path to higher learning was the encouragement Jessie received from Natalie Walker and the KFW whānau, which she describes as a place with “a very special culture, full of intelligent, empathetic, and resilient people, and committed to helping young lawyers reach their potential.” ▪
MCCLEARY M E D I AT I O N
Jake McCleary, B.Ag.Sc, LLB, Accredited Mediator (Resolution Institute) Available to mediate anywhere in NZ: - Relationship Property disputes - Estate and trust disputes
www.mcclearymediation.co.nz | 027 5738853 | jake@mcclearymediation.co.nz 36
Books – Just Published! Did you know we publish over 70 NEW books a year? ... are you benefitting? • Family Law Conference – Te Hononga 2023 • Trusts Conference 2023 – trusts in the spotlight • Legal Executives Conference 2023 • Privacy Landscape – key developments • Interface Between Trusts & The PRA • Health and Safety Update • An Employee in 2023? • Mortgagee Sales • Estate Adminstration – tips and tricks
Full list of titles on our website lawyerseducation.co.nz
Books available as hardcopy or PDF
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: An audience member asks a question to the panel FAR RIGHT: Chief Justice Rt Hon Dame Helen Winkelmann
“You are seen. You are heard!” NZ Asian Lawyers seminar – Auckland, November 2023
“New Zealand Asian Lawyers are a superdiverse group of practitioners and legal professionals who bring a depth of cultural and linguistic and religious diversity to our nation and the people we serve”
38
S
enior members of the judiciary and a swathe of VIP attendees turned out to support a hugely popular recent seminar on ‘Asian Parties in Courts and Working with Asian Clients’. Presented in partnership between NZ Asian Lawyers (NZAL) and the Law Society’s Auckland branch, the seminar was oversubscribed in-person, with many others joining online. President of NZ Asian Lawyers, Mai Chen told the packed room “You are all getting a very clear signal from the people here today that you are important.” Acknowledging the full seminar room of around 125 lawyers with many more attending online, Mai paid special mention to attending dignitaries that included Chief
Justice Rt Hon Dame Helen Winkelmann, Sir Anand Satyanand, his Honour Judge Ajit Singh, his Honour Judge Terry Singh, her Honour Emma Smith together with a strong online audience including Chief Judge Inglis, the Chair of the Judicial Diversity Committee, who joined the seminar from overseas along with panellist Law Society President Frazer Barton who joined from Canada. Judge Patel and Judge Sellers KC registered apologies due to their judicial commitments. Following an opening mihi from Mai that paid tribute to the super diverse nation that we serve as lawyers in Aotearoa New Zealand, Law Society Chief Executive Katie Rusbatch reinforced the importance of Asian
I ssue 9 5 6 ∙ S ummer 2 0 2 3
lawyers to the profession. According to Law Society data, of the 0-7 years PQE group, 22 per cent1 identify as Asian. The number of Asian Lawyers in New Zealand is growing year on year, and this is further reflected in Law School numbers throughout the country. Overall, Asian Lawyers now represent 12 per cent2 of the profession and bring a diverse and valuable range of cultural and linguistic skills and experiences. Findings from a recent NZAL stocktake of members revealed that twenty Asian ethnicities were represented. Mai quipped that this proves, “One size does not fit all. New Zealand Asian Lawyers are a superdiverse group of practitioners and legal professionals who bring
a depth of cultural and linguistic and religious diversity to our nation and the people we serve.” The NZAL stocktake reported that members spoke twenty-five different languages. Respondents also shared where they were born. Of the twenty ethnic groups recorded, the highest number reported being born in New Zealand, 50 per cent higher than the second group being China. Of these respondents the overwhelming majority were first generation New Zealanders with 120 of the 127 respondents reporting having parents who were born outside of New Zealand. Despite the “born in New Zealand” origins of the majority of the
respondents, discrimination, particularly in the form of unconscious bias, was evident in both professional and workplace social settings. The NZAL stocktake report found bias especially toward ethnic women was alive and well and anecdotally reported in the findings as “institutionalised racism amongst colleagues and clients.” Receiving remarks such as, “Oh, your English is very good,” or “Where are you originally from,” is not uncommon for New Zealand born, Asian lawyers. Others reported judges presuming that Asian lawyers are representing the Asian party when that is not necessarily the case. Bias based on gender, age and ethnicity was also reported in the
39
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
“It becomes more important for all of the profession to advance their awareness of the cultural and linguistic issues that can influence proceedings” Mai Chen, President of NZ Asian Lawyers
2023 Law Society Legal Workplace Environment Survey which found that eleven per cent of the legal community (lawyers and non-lawyers) have experienced employment discrimination in the last five years.
Katie Rusbatch, Law Society Chief Executive
Tracey Hu, panellist and barrister
40
Whilst there are challenges, there are also opportunities and these were very much the focus of the seminar. Increasing the Asian capability and cultural competence of lawyers was seen as important to the profession in reflecting New Zealand’s increasingly diverse populace. “The chances now of having an Asian client or appearing in court on a matter that involves an Asian party is ever increasing and so it becomes more important for all of the profession to advance their awareness of the cultural and linguistic issues that can influence proceedings,” says Mai. Panellist and Barrister, Karun Lakshman addressed the seminar from an Indian perspective, the second largest Asian group in New Zealand. As ‘Asian’ represents a diverse group of ethnicities that is broad in geography, culture and language, so too does the cultural collective known as Indian. “Dealing with the Indian diaspora in New Zealand requires an understanding
of divergent languages and cultural practices. For example, Fijian Indian is quite different to Hindi or Punjabi Indian.” On this point, Lakshman referred to the necessity for accurate translation through an appropriate interpretor. “Not having an interpretor who can translate the nuances of a dialect or language can have dire consequences when it comes to rights such as consulting a lawyer because of confusion or misinterpretation over cost of services versus free advice. Such incidents can have a profound effect on the outcome for a client and in the wider sense of delivering equal justice. Likewise customs such as arranged marriages, raising children and ways in which people engage with authorities will vary amongst members of the Indian community,” he said. Barrister Joon Yi talked about representing Korean clients and described how what may just appear as common vernacular in Korean movies and TV shows where a character exclaims, “Do you wanna die?” or threatens to kill another, is a language pattern that exists outside of the cinematic context. This can land the Korean client in a Western society in serious trouble. Yi spoke of Korea’s 70-year post war heritage
I ssue 9 5 6 ∙ S ummer 2 0 2 3
as not offering a long history of Koreans mixing with the international community. With a closely connected culture, given the small Korean community in New Zealand, familial relationships and knowing one another is commonplace, thereby elevating the importance of “saving face.” Panellist Kenneth Sun addressed the seminar on the topic of representing Chinese clients. A feature of this was around managing traditional, cultural approaches to align client expectations with the process of a Western legal system. “This often requires informing Chinese clients that litigation should be seen as a means to a settlement – as opposed to aiming to fight to the bitter end. In this respect, managing the way we work toward optimal outcomes can mean tempering the desire to have an immediate outcome when it could have the opposite effect, for example, summary judgment applications are harder to win. As part of the educational process it is important to inform Chinese clients that we are trying to persuade the Judge, not trying to persuade the lawyer on the other side. This is usually needed as a response to client frustration that we cannot
compel the other party’s lawyer to do what we want simply through correspondence,” says Sun. Heritage Law Partner, David Liu spoke to the importance of educating Chinese and Taiwanese clients in a Western legal setting. Liu shared an instance of a client stating that he was moving lawyers “because the other side has a thug lawyer so I need one too.” The same goes for some Chinese clients believing that they need a Western lawyer because they are facing a Western legal system and judges won’t discriminate against a white lawyer. Liu applied a “big face” analysis to solving disputes. He said that understanding how big the Chinese parties “faces”3 are is critical to settling a dispute. Mainland Chinese have the biggest face, in his experience. Liu points out to clients the importance of having a lawyer who understands not only the language but also the cultural nuances, particularly around contracts and property. “It is not unusual for multi-million dollar property deals to be done via WeChat, so we try to educate clients around the importance of good and early drafting as a means
to mitigating issues of litigation later on, so we suggest that engaging a good lawyer who understands your needs and is attuned to your culture is like a good insurance policy.” Guest speaker Associate Professor Dr Andrew Godwin, Associate Director at the Asian Law Centre at the University of Melbourne Law School, addressed the seminar saying that “Australia was watching and listening to New Zealand.” Leading cases such and Zhang v Zhang [2022] demonstrates the courts’ willingness to consider cultural and linguistic expert evidence when it comes to the meaning of words. In this respect, context is often as important as content. He referred to the 2022 “Issues Paper on Culturally and Linguistically Diverse Parties in Australian Courts – Insights from New Zealand” which he had co-authored with Mai Chen, showing New Zealand leading the way for the Australasian courts and profession. This is important in understanding relationships of parties. It is commonplace in Chinese culture to refer to someone as a “brother,” or “uncle,” often distinguishing between age and status, but this may preclude
41
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: S ir Anand Satyanand MIDDLE RIGHT: David Liu, Heritage Law Partner FAR RIGHT: Pam Davidson, NZ Asian Lawyers Vice President
any blood relationship between the parties. What it can do is to establish the basis for the relationship and the context around elements of contract. Dr Godwin says, “Recognition of the role of the expert witness in matters relating to differing social and cultural contexts is required to avoid treating people with ethnically diverse backgrounds as homogenous.” The role of the expert witness was the topic of Dr Leo Liao’s presentation. A senior law lecturer and specialist in Chinese culture at Waikato University, Dr Liao spoke to the progress being made amongst the New Zealand judiciary in accepting culture-based evidence in proceedings. Dr Liao cited the leading case, Deng v Zheng [2022] where the New Zealand Supreme Court granted leave to appeal and guidance to seek assistance on Chinese culture from New Zealand Asian Lawyers. Dr Liao pointed to matters involving property, partnerships, companies, financial transactions abroad and Chinese law including CPC policies as just being some of the areas of law that are likely to influence matters before the courts. “Obtaining the
42
proper meaning and understanding cultural concepts such as ‘gong xu liang su’ concerning public order and good custom are central to understanding Chinese culture and the context of the matters before you.” Fundamental cultural differences such as collectivism versus individualism, hierachical versus equal status, uncertainty avoidance, long term orientation and masculinity are all culturally diverse considerations. To demonstrate what can be a gulf of understanding between the weighting of these concepts, Dr Liao references his work ‘Decoding the Puzzle: Chinese culture, familial transfers and disputes in Western courts’4 to demonstrate the difference in power distance between China and New Zealand as a ratio of 40 to 11 of respondents. Likewise, the importance of long term orientation is reflected in 59 to 15 China to New Zealand, respectively. Special guest Sir Anand Satyanand spoke to attendees as a “person of Asian origin, that is one with family roots back to India and Fiji,” and who has for a dozen years been an “enthusiastic advocate in the Courts conducting cases for and
against the Crown in all Courts, the then Magistrates Court upwards.” Sir Anand shared that “being an advocate presents professional challenges, opportunities, and achievements of an inestimable kind. The adrenalin rush of being an advocate surpasses those which occur in judicial or ombudsman existences where other matters come to the fore. The challenges, opportunities and achievement are available for Asian lawyers as well as those in the general community.” Sir Anand told the seminar, “Your reputation and ability as a lawyer, is for you to grow and maintain, and no one else. To become known as a lawyer whose presentation of facts and submissions on law are sound is something to aim for – whether in Chambers or in Court and whether in writing or verbally. Furthermore, Sir Anand spoke of the importance for lawyers not to get “pigeon-holed as one kind or another because of background.” Part two of the seminar was a panel session presided over by the Chief Justice in collaboration with Law Society President Frazer Barton. Mai asked the Chief Justice why she
I ssue 9 5 6 ∙ S ummer 2 0 2 3
had identified facilitating access to justice, connecting the courts to the community, and supporting a representative and diverse judiciary as her priorities for her tenure and the relevance of these priorities for Asian lawyers. The Chief Justice spoke to the priorities of diversity. She said that the courts must serve all of society, and for that reason judges need a sufficient understanding of all people and the communities that make up that society. Her Honour spoke of the importance of Asian lawyers to the profession assuring the audience that it was “non negotiable that you succeed in the profession” noting that “demographics suggest the future of the profession will be largely dependent on you.” She encouraged delegates to “keep on challenging us to do better” in supporting diversity in the senior profession and judiciary. In advancing Asian lawyers in the profession, her Honour spoke of educational and reverse mentoring programmes as a way to create bridges into the senior profession and the judiciary for Asian lawyers.
Asked during question time about the issue of unconcious bias, her Honour acknowledged that there is a risk that decision making can be affected by unconcious bias – as it is a phenomenon that affects everybody. But the judicial oath reminds judges to strive to avoid that – which judges consciously do. She said it was important that judges are supported in this. She spoke of the importance of three things in this regard. First, education for judges in relations to unconcious bias – although noting that this can only ever be a small part of the solution. Secondly, having judges from different backgrounds bringing a breadth of perspectives and knowledge to the judiciary. And finally, the work that counsel do, to call the evidence and make the arguments that ensure that any easy preconceptions are challenged. In closing, the Chief Justice encouraged the audience to progress their careers by “maintaining a lifelong interest in the law, reading widely and by seeking out opportunities to hear different perspectives, perhaps by attending the public lectures that are regularly hosted by Law Schools and by the Legal Research Foundation.”
Law Society President Frazer Barton also addressed how Asian lawyers could build pathways and interconnections with the profession so they could be influential and meet their full potential. He commented that, “their numbers do require they meet that potential – in the best interests of the profession and the people we serve.” NZAL Vice President Pam Davidson closed the seminar and urged delegates to “get to the heart of who we are and what we do.” Pam reinforced remarks from the Chief Justice about the importance and purpose of education as “educating us and the wider profession,” and called for attendees to look to what has “drawn us together and the impact of how we contribute to the profession and the country.” ▪
1.
New Zealand Law Society Registry 2023
2.
New Zealand Law Society Snapshot of the Profession Data Survey 2023
3.
Reference to face in Chinese culture refers to honour, reputation and standing.
4.
Source: Z (Leo) Liao, “Decoding the puzzle: Chinese culture, familial transfers and disputes in Western courts”, https://doi.org/10.1093/lawfam/ebac026
43
L AW TA L K ∙ K Ō R E R O M Ō T E T U R E
RIGHT: Chief High Court Judge Justice Susan Thomas
Update from Chief High Court Judge Tēnā koutou
The High Court
The stakeholder meetings I held in Auckland, Wellington, Christchurch and some circuit courts this year provided a valuable opportunity to engage directly with members of the profession and to hear your concerns and experiences of working in the High Court. They also gave me the opportunity to explain the pressures facing the High Court and the steps we are taking in the criminal and civil jurisdictions to improve case management.
The High Court is an extremely busy court. The 40 High Court Judges, plus the four Judges with full time acting warrants1 are based in three home registries, Auckland, Wellington and Christchurch, and sit on circuit in 15 cities across Aotearoa New Zealand. High Court Judges sit in both the civil and criminal jurisdictions. Senior High Court Judges also sit on divisions of the Court of Appeal.
The experience emphasised to me the importance of understanding one another’s perspectives. The purpose of this article is to explain the High Court’s perspective to a wider audience, to outline the measures put in place to help the Court run as smoothly as possible, and to highlight how counsel can assist us in this aim. Ngā mihi
Justice Susan Thomas Chief High Court Judge
Our seven Associate Judges have a specialist civil jurisdiction. In their insolvency jurisdiction, they hear applications relating to bankruptcies and company liquidations as well as other applications under the Insolvency Act 2006 and Companies Act 1993. Associate Judges determine a range of claims including applications for summary judgment, to sustain caveats and to strike out claims or stay proceedings on jurisdictional grounds. They play an important role in civil case management including dealing with applications concerning discovery, requiring more detailed claims or defences, and for security for costs. Despite the challenges of COVID-19, workforce issues across the justice sector agencies, and other external disruptions, in 2022, the High Court: 1. disposed of 126 criminal trials and 1,346 criminal appeals;
44
2. disposed of 1,851 civil proceedings and 217 civil appeals; and 3. delivered 3,583 judgments (1,695 criminal and 1,888 civil).
The criminal jurisdiction The High Court deals with the most serious criminal charges including murder, manslaughter, attempted murder, and serious sexual, drug and violent offending. It conducts all sentencings in which preventive detention is a possible outcome. The implications of COVID-19 were acutely felt in the criminal jurisdiction, most obviously jury trials. Given the seriousness of the charges dealt with in the High Court, most defendants are remanded in custody awaiting trial. Their right to be tried without undue delay as well as the interests of victims, complainants and witnesses required the High Court to give priority to dealing with COVID-19-affected trials. As a result of the considerable effort of all involved including the Crown, defence counsel and the Court, all
but one COVID-19 rescheduled cases have now been completed.2
“Although our trial numbers are now similar to those pre-COVID, trials themselves are lasting longer for reasons such as multi-defendant trials, increased complexity, and increased numbers of charges”
Although our trial numbers are now similar to those pre-COVID, trials themselves are lasting longer for reasons such as multi-defendant trials, increased complexity, and increased numbers of charges. The case type has changed markedly following a sharp increase in Category 43 charges, with the consequence that we are unable to retain protocol cases4 at the same levels as previously.
Criminal case management The High Court closely manages its criminal trials. At the first appearance in the High Court, a trial date is allocated on the first date available for the location and expected duration of the trial. This is regardless of whether resolution is under discussion or whether issues concerning fitness to stand trial are to be investigated. We do this to ensure that the earliest possible trial date is reserved and that the trial does not lose its place
in the queue. Counsel are consulted on trial dates and every effort is made to accommodate their availability, within the interests of justice and the defendant’s right to be tried without undue delay. The seriousness and complexity of the charges tried in the High Court mean the prosecution and defence usually require a minimum of 12 months to be ready for trial. The earliest available dates for criminal trials requiring up to 15 days currently range from 12 to 19 months from the first appearance. Dates are further out in some circuit courts as a result either of limited courtroom availability or where there are several multidefendant trials requiring significant hearing time. The High Court aims to address pre-trial applications in good time prior to trial and we urge counsel to give early consideration to pre-trial issues. Late pre-trial applications are disruptive to the trial and discourteous to jurors if time has to be spent during the trial addressing matters which should have been
45
or less) and we are implementing changes in case management to free up hearing time generally. Cases requiring significant amounts of hearing time are increasing which has a major impact on our ability to schedule work (as well as having implications for judgment writing time). The High Court will, of course, always make time available for urgent matters.
Civil case management dealt with pre-trial. They also risk a trial overrunning. A trial overrun is a significant problem. Obviously, the trial must continue but any overrun will have implications for the criminal and civil work scheduled to follow it. Counsel will understand, therefore, the importance of accuracy in their trial estimates and of identifying pre-trial applications during the callover process.
Disclosure Following the report of the High Court Criminal Disclosure Working Group, which included representatives of the New Zealand Police, Crown prosecutors and the defence bar, I issued the High Court Criminal Disclosure Practice Note in March 2023. Its purpose is to require the Crown and defence to address disclosure issues at an early date to avoid late disclosure. Late disclosure puts enormous pressure on counsel, the alternative being the trial is adjourned or the evidence cannot be called. Early signs are that the Practice Note is making a real impact. Its most important feature is the requirement for Crown and defence counsel to meet. This has
46
resulted not only in disclosure issues being addressed earlier but also in the identification and, in some cases resolution, of other issues.
Specialist reports We are all concerned at delays in obtaining specialist reports, particularly those addressing fitness to stand trial and those required for consideration of a sentence of preventive detention. The Ministry of Justice is working with Te Whatu Ora and the Department of Corrections to agree improvements to the timing and delivery of reports.
High Court civil jurisdiction The High Court civil jurisdiction includes general proceedings, judicial reviews, originating applications, appeals from the District, Environment and Family Courts and other specialist tribunals, and applications for injunctions and freezing orders. The civil jurisdiction was adversely affected by COVID-19, but to a somewhat lesser extent than criminal. Work to address the availability of early hearing dates has seen an improvement in our earliest available dates for short cause work (five days
The Senior Courts (High Court Commercial Panel) Order 2017 sets out a procedure whereby certain types of commercial proceedings are assigned to a Commercial Panel Judge for case management and hearing. Proceedings covered by the Order include high value disputes (over $2 million), complex matters of commercial law, and proceedings brought by public authorities to enforce regulatory standards of commercial behaviour. We have now moved to a system whereby more cases will be assigned to High Court Judges for case management. This includes complex cases (not assigned to the Commercial Panel) – for example, cases involving extensive expert evidence – and others that would benefit from intensive case management including some cases involving litigants in person. This decision will be made at the r 7.3 first case management review. The intention is to ensure cases are better prepared for hearing and to allow those that should resolve prior to trial do so at an earlier stage, thereby removing them from our case list and freeing up time. Standard timetabling directions have changed. Except where otherwise
I ssue 9 5 6 ∙ S ummer 2 0 2 3
warranted, the close of pleadings date is fixed shortly after it is anticipated that interlocutory matters will be completed. The timetable for the exchange of briefs of evidence then works forward from the close of pleadings date rather than backwards from the trial date. This approach compels counsel and parties to focus on the issues earlier in the life of the proceeding and promotes early settlement. It is also a move towards the new procedure recommended by the Rules Committee. As cases resolve earlier, we will be able to bring cases on for hearing sooner than scheduled if they are ready.
How counsel can help We rely on information from counsel when scheduling. Please be realistic and as accurate as possible about hearing time estimates. Part-heard cases cause us real problems. Civil and criminal work is scheduled so far in advance that it is extremely difficult to find time close to the original hearing date for a part-heard case to resume. If it is apparent that a case will require more time than has been scheduled that fixture may need to be vacated. That will not be in the parties’ best interests and I am sure counsel will do their best to avoid this. Counsel are encouraged to agree a timetable of how a hearing will run including time for oral submissions. This should ensure counsel turn their minds to the management of hearing time and that the trial can run according to the timetable.
arising from exclusive use in occupancy of the relevant part of the Takutai Moana since 1840. There are around 200 such claims. Hearings are conducted in accordance with tikanga with the involvement of Pūkenga (experts). The complexity of the overlapping claims requires significant hearing time and substantial time for judgment writing. An informal panel of Judges with relevant experience has been formed. I have also signed a protocol with the Chief Judge of the Māori Land Court to address a procedure for the High Court in appropriate cases to state a case to the Māori Appellate Court seeking the Māori Appellate Court’s opinion on a question of tikanga. This is provided for under the Act.
Criminal Proceeds List Applications under the Criminal Proceeds (Recovery) Act 2009 can be complex and lengthy. The documentation involved is voluminous and the cases take considerable time to reach finality, particularly given they are usually dependent upon conclusion of associated criminal charges in the District or High Court. To assist in better case management, these cases will now be managed in criminal proceeds lists to be held in Auckland and Wellington.
Registries under pressure Like other government departments, the Ministry of Justice has had issues with the recruitment and retention of staff. Although significant progress has been made to fill registry vacancies, the training and development of new staff remains a work in progress. While your first query about any issues or delays should be to the relevant case officer, please contact the relevant Court Manager if a problem persists.
Concluding remarks The Judges and staff of the High Court are dedicated to ensuring our work is managed and undertaken as efficiently and smoothly as possible. The measures outlined above have been put in place with that as their aim in order to improve access to justice. The hard work and cooperation of counsel are fundamental to the effective operation of the Court and I am grateful to you all for your continued commitment. ▪
1.
The acting warrants, and one Judge with a part-time acting warrant, were made possible as a result of COVID-19 funding and expire in December 2024.
2.
The September 2023 trial was aborted.
3.
Category 4 charges include murder, manslaughter and attempted murder, which must be tried in the High Court.
4.
Protocol cases are those category 2 and 3 which must be considered for transfer to the High Court.
Marine and Coastal Area (Takutai Moana) Act 2011 Marine and Coastal Area (Takutai Moana) Act 2011 hearings relate to the recognition of Māori customary rights in the foreshore and seabed
47