LawNews - Issue 4

NEWS Feb 24, 2023 Issue 4

Inside ■ CYCLONE

A message from ADLS President Marie Dyhrberg KC P05

■ REGULATION

A crackdown on crypto?

P08-10

In the wake of

adls.org.nz

CYCLONE GABRIELLE

Contents 03-04 CAPITAL INVESTMENT INFRASTRUCTURE

Mind the gap: cyclone adds billions to our massive infrastructure shortfall

LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

Editor: Jenni McManus Publisher: ADLS

07 DIVERSITY MERIT LITERACY

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz

Do we need affirmative action in the appointment of judges?

Reweti Kohere 022 882 2499 Reweti.Kohere@adls.org.nz

11 PRINCIPLES CONCEPTS LEADERSHIP

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

Book review: what it takes to be a leader in the law

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

12-13

Photo: sorbetto / Getty Images

FEATURED CPD

Nominations for ADLS President Three nominations have been received for President of the ADLS Council.

They are: Terence John Darby Anthony Robert Herring Angela Mary Elizabeth Parlane A candidate booklet and voting instructions have been emailed to ADLS members. Voting closes at 4pm on Wednesday 1 March.

The AGM will be held on Thursday 2 March.

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

To subscribe, please email reception@adls.org.nz. ©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Kerry Marshall / Getty Images

02

Feb 24, 2023

Photo: STR / Contributor / Getty Images

Issue 4

investing at the current rate, we will not keep up with renewals and future demand. We will be short by another $106b in 30 years’ time (in today’s prices).”

CYCLONE GABRIELLE

Not enough

The economic consequences of Cyclone Gabrielle Repairing and rebuilding property and infrastructure in high-risk areas to the same specifications as the past will only lead to a repeat of the dreadful consequences we have all seen

Reweti Kohere Cyclone Gabrielle will significantly widen New Zealand’s burgeoning infrastructure gap, with early cost-estimates of $13 billion adding to the current shortfall of hundreds of billions of dollars.

With roads buckled, bridges washed away, power lines broken and some cell towers still out-of-action, repairing cyclone-ravaged infrastructure in as many as seven regions in the North Island will be a priority of any rebuild.

While the Treasury is getting a clearer picture of the economic cost of Gabrielle’s devastation, Finance Minister Grant Robertson has likened it to the $13b expense of the Canterbury earthquakes 12 years ago. “[Gabrielle is] going to be the biggest weather-related event this century and it will have a multi-billion-dollar price tag,” Robertson said in a recent interview with TVNZ’s Q&A. But even before the cyclone hit, a deficit in public infrastructure stretched nationwide across several crucial sectors of the economy.

Meeting the gap over the next 30 years would cost $210b, according to research commissioned by the New Zealand Infrastructure Commission – a figure the Treasury cited in its investment statement last year.

“We need around $104b more public capital to meet the current shortfall,” Sense Partners’ report said. “If we keep

New Zealand’s infrastructure deficit arose from a slump in investment in the 1980s and 1990s, the report said. While investment recovered in the early 2000s, it hasn’t been enough to meet the country’s needs.

The total bill, factoring in the necessity of renewing and upgrading investments now and in the future, could exceed $1 trillion if New Zealand simply spent more to close the gap.

However, “we cannot build our way out of the infrastructure challenge,” the report stated, adding the cost of reversing the historical and future deficits would require almost doubling current spending of 5.5% of GDP – an amount equal to $31b a year.

The fiscal burden created would be unpalatable to both levels of government and would require a bigger workforce to plan, deliver and maintain the additional infrastructure, the report said. The government is looking at adjusting visa settings to increase labour supply for the rebuild, an acknowledgement of the challenge of a persistently tight labour market.

Besides increasing spend, New Zealand needed to make better use of infrastructure, better project selection, broaden funding options and streamline delivery.

Some of the total cost of the cyclone would be absorbed by insurance and the existing budgets of government agencies, Robertson told Q&A. Ensuring shelter, food, water, power and communications were the government’s immediate priorities in allocating disaster relief funds, while transport networks would take longer to repair.

Budget talk The government has announced $300m of initial cyclone relief funds, most of which will fund Waka Kotahi’s efforts to repair damaged roads, with the remainder supporting hard-hit businesses.

Prime Minister Chris Hipkins said the package was an

Continued on page 04 03

Photo: Pool / Getty Images

Continued from page 03

Photo: Pool / Getty Images

Grant Robertson

interim measure and signalled a “rolling maul” of support would follow “as we get a better picture of the scale, cost and needs in the wake of this disaster”. The government also extended the national state of emergency for another seven days.

The government has $4.5b in new operating spend and $12b in multi-year capital expenditure to play with in this year’s Budget, plus $40b it can spend before reaching its new debt ceiling of 30% of GDP, a fiscal rule Robertson introduced in the 2022 Budget.

Asked if he would tighten spending to rein in inflation, the minister said a balance must be struck. “We’ll be careful – we’re not going to blow things apart here fiscally. But we’ve got to respond to the needs in front of us.”

Economic growth would take a hit though. “If you include Auckland, 58% of New Zealand’s GDP has been affected by a weather event in the last month,” Robertson said, adding the recovery phase of the response would stimulate productivity.

‘Now is the moment to reset’

Chris Hipkins

The economic cost of Gabrielle will hit insurers’ books too. Last week, the Insurance Council of New Zealand (ICNZ) estimated insurers were dealing with more than 40,000 claims arising from extreme weather events in the past month.

Already, insured losses so far this year surpass all those incurred from natural disasters in 2022.

During the Environment Select Committee’s recent hearing

Members Special Fund The ADLS Members Special Fund exists to assist elegible members of the profession and their dependants in times of hardship From an application, the Members Special Fund Committee, in the strictest confidence, will request information setting out in some detail the nature of the financial difficulty.

Assistance can be in the form of a grant or at times an interest-free loan.

For assistance contact:

Paul Collins, Committee Convenor pcollins@shortlandchambers.co.nz

04

Sue Keppel, ADLS Chief Executive Officer sue.keppel@adls.org.nz

on the Natural and Built Environment Bill, ICNZ advised that insured losses from extreme weather events in the last month would exceed the comparable losses for all of 2022 – a record year at $336 million.

In response to the influx of claims, the government expanded a service used after the Christchurch earthquakes to help people navigate the claims process.

The NZ Claims Resolution Service will provide expert support to homeowners to avoid disputes, resolve issues and ensure their claims are settled as quickly as possible.

ICNZ welcomed the nationwide expansion, with chief executive Tim Grafton describing the service as “invaluable” in offering “truly independent, free advice” and helping people through the process.

But the country mustn’t lose the opportunity to build back better.

“Repairing and rebuilding property and infrastructure in high-risk areas to the same specifications as the past will only lead to a repeat of the dreadful consequences we have all seen,” Grafton said. “Now is the moment to reset and ask questions about whether to rebuild in some locations and if we do, how to rebuild better to better protect ourselves.”

Robertson said difficult conversations loomed as to how the country adapted to a hotter world. “Two words New Zealanders are going to get used to hearing over the next few years [are] ‘managed retreat’.” ■

Feb 24, 2023 Issue 4

CYCLONE GABRIELLE

Message from ADLS President

Marie Dyhrberg KC

Ten days later we are still getting to grips with the level of damage wreaked by this storm and just how widespread the destruction has been

Marie Dyhrberg KC

The catastrophe that Cyclone Gabrielle has left in its wake has thrown us into a state of shock.

What we are seeing on the news, in photos and in stories we are hearing shows us how catastrophic the situation has been for so many people, not just professionally as practitioners but personally as well. Ten days later we are still getting to grips with the level of damage wreaked by this storm and just how widespread the destruction has been.

At the same time, we are also hearing stories of the most incredible heroic and selfless actions by so many people towards strangers. It reminds us that there’s a lot of humanity out there. New Zealanders have always reached out to help people in need and we at ADLS are here to help in any way we can.

Lawyers are not only dealing with the loss of their businesses. No doubt many of you are also dealing with family issues, traumatised children, supply chain problems with basics such as food, water and electricity, and feelings New Zealanders of utter helplessness. It’s catastrophic on a scale that many who did have always not live through Cyclone Bola in 1988 have never experienced before.

Those of us who were physically untouched by this storm may reached out to feel we should all be doing more to help, and people will respond in help people in whatever way they can. There is a long road ahead but there’s not a need and we at moment that goes by that we’re not feeling on a very personal level ADLS are here to for the devastation and the suffering of affected practitioners, their help in any way whanau, their friends and their communities.

In the initial days after the Christchurch earthquakes – 12 years we can ago this week – all we could really do was donate to the wellestablished organisations which were co-ordinating the rescue efforts. That’s where we are right now – in very early rescue mode and donations to the Red Cross and other relief organisations are very welcome.

Once we reach the recovery phase, there’s a lot more we can do to help fellow practitioners in a more practical way – for example, by offering them a spare room or some of our case load once they’re in a position to work again.

In the meantime, we’re receptive to ideas. Contact us and if we can do something pragmatic, we will.

But right now we need to recover and take things day-by-day or even hour-by-hour.

It’s important that people know that they’re not forgotten. We understand the feelings of distress and the personal toll this is taking on practitioners. And as with Christchurch, over the long-term we will be there to help as best we can in a practical and meaningful way. You will not be forgotten. ■

05

CYCLONE GABRIELLE

Massive outages caused by Cyclone Gabrielle strengthen the case for burying power lines Timothy Welch Another extreme weather event has highlighted the weak points in New Zealand’s critical infrastructure.

As Cyclone Gabrielle ripped across the North Island, nearly 225,000 people lost power.

The cause is relatively obvious: many houses and buildings are connected to the power grid by overground power lines. Overhead wires, a common sight around many suburbs, are highly vulnerable to extreme weather events. When the winds pick up, limbs and trees fall and power lines are dragged down.

But one solution is equally obvious: bury the power lines. With the threat of more frequent storms of increasing intensity, the risk to households, businesses and personal safety demands this option be seriously considered.

Power outages mean more than just the inconvenience of a dark house or a dead mobile phone battery. Many things we rely on, like fibre internet, home wifi or even our ability to make emergency calls, depend on an electrical connection.

Loss of power puts refrigerators and freezers full of valuable food at risk. And many people rely on electricity for lifesaving medical devices in their homes.

Battery backup offers only a short-term solution. When the power goes out, lives and livelihoods are put in danger.

Costs and benefits Perhaps the main argument against burying power lines is the cost. And it’s true, putting thousands of kilometres of cable underground isn’t cheap. The fact is, reliable infrastructure is expensive.

However, while overhead power lines are cheaper to install in the short term, they carry a higher 06

maintenance cost and are less reliable – especially in storms. If the cost to households and businesses from a loss of power is also considered, the economics of burying power lines become much more palatable.

Another argument against burying power lines is that in areas prone to earthquakes, underground lines are more vulnerable or more difficult to repair. This was certainly the case in the Canterbury earthquakes a decade ago.

However, studies have shown that better routing and reinforcement of underground lines can mitigate that risk. Major earthquakes are also far less common than weather events that damage overhead wires.

Earthquake-prone Japan recently announced a plan to bury 4,000km of powerlines by 2025. In shaky California, one utility company plans to spend US$10 billion burying power lines to prevent fires.

Denmark, Switzerland, Germany and the Netherlands have all buried most of their power lines.

Unsurprisingly, they also have the lowest “system average interruption duration index” (SAIDI) values – a measure of the average duration of power outages per customer.

All four countries have a SAIDI value of less than 25, meaning the average customer experienced a power outage of fewer than 25 minutes. By comparison, Auckland’s electric distribution business Vector has a SAIDI of 161.9; Christchurch’s Orion scored 57.4 while the country overall averaged over 204 minutes per customer for an outage.

Spend now, save later There are other good safety reasons for burying power lines, too. Even without trees nearby, power lines can arc in high winds, causing showers of sparks to rain down and potentially ignite fires. This

The long-term benefits of burying power lines in cities and towns far outweigh the upfront costs

happened in 2020 with the Lake Ōhau Alpine Village fire that burned 5,000 hectares and 65 structures and caused $35 million in insurance losses.

Broken power lines carry massive voltages, which can maim or kill people. Falling power poles crush people and cars. Single-vehicle crashes into power poles also frequently result in critical and fatal injuries and large power outages.

Utility poles can obstruct or narrow footpaths, making paths less accessible, particularly for people in wheelchairs. Overhead wires are often cited as an eyesore, and trimming trees around power lines is both ugly and damaging to the trees.

Right now, however, the most pressing reason for burying power lines is visible all around. At this point, it’s not clear how extensively cyclone Gabrielle damaged the power lines, but it will likely take days or weeks, not hours, to restore power to everyone.

In the coming weeks, workers will fan out across the North Island into precarious locations, lifted high above the ground in cherry pickers to mend lines and restore power. The work puts their own health and safety at risk and we could eliminate this danger too with underground power lines.

Clearly it isn’t a good option for everywhere. Highpowered transmission lines that bridge large spans in undeveloped areas are likely not viable economic candidates for under-grounding. But the long-term benefits of burying lines in cities and towns far outweigh the upfront costs. It should be given serious consideration before the next “storm of the century” hits. ■ Timothy Welch is a senior lecturer in urban planning at the University of Auckland ■ The above first appeared in The Conversation and is republished with permission

Feb 24, 2023 Issue 4

JUDICIARY/OPINION

Fine-tuning the judiciary: the real meaning of diversity In the final of a three-part series entitled Do we need judges?, a senior British KC considers the alternatives Professor Leslie Thomas KC Do we truly need judges? I’m going to lay my cards on the table here and say that the answer is yes.

It would be virtually impossible to maintain the rule of law and legal certainty without an independent judiciary. And at its best, the judiciary genuinely does serve as an important check on the power of the executive and the legislature, and a safeguard for minority rights.

But that doesn’t mean the role of the judiciary should remain the same as it is now. First, we need a much more diverse judiciary. I don’t just mean we need more women and minoritised ethnic groups in the judiciary, although we do.

We also need a judiciary which is drawn from a wider range of backgrounds. We need fewer judges from wealthy backgrounds, fewer judges who attended fee-paying schools and more judges from non-traditional backgrounds.

We need judges who grew up on council estates, judges who are refugees and migrants, judges who are transgender and judges who belong to under-represented racial groups.

And we need judges with a more diverse range of professional experience. We need fewer commercial lawyers and treasury counsel on the bench and more legal aid lawyers. We need to abandon the lazy assumption that the ideal High Court judge is a barrister from a prestigious London set who got a First from Oxbridge.

Secondly, I’m not in favour of expanding ministerial influence in the judicial appointment process. However, I would be in favour of reforming the statutory framework for judicial appointments. One of the recommendations of Keir Monteith’s report was to overhaul the process of judicial appointments. The authors agree with Law Society President Stephanie Boyce that the “statutory consultation” process, in which existing judges are asked for their views on appointments, should be abolished.

I agree and I think we need to go further. I think diversity should be explicitly enshrined in statute as a goal of judicial appointments, alongside merit, and should be regarded as equally important.

In short, we need affirmative action in the judicial appointment process. This shouldn’t just take account of race

Diversity should be explicitly enshrined in statute as a goal of judicial appointments, alongside merit, and should be regarded as equally important

and gender, but should also include characteristics such as socio-economic background, refugee or migrant background, sexual orientation and transgender status.

Some people will take strong exception to this suggestion.

They will argue that judicial appointments should be purely based on merit and should not take account of whether a person belongs to a marginalised group or not. However, that approach ignores the reality of institutional bias in our society.

When it comes to judicial appointments, “merit” is a subjective concept. All too often, in the law as in other professions, selection panels will see the most “merit” in candidates who fit the existing typical profile, rather than candidates who are different. We need to take radical action to change the default image of what a judge looks like. As Keir Monteith’s report says, we need to create “a critical mass of diverse judges reflective of society, rather than occasional and isolated appointments”.

Thirdly, we need to diversify legal and judicial training. The Monteith report argues for “compulsory and ongoing highquality racial bias and anti-racist training for all judges and key workers in the justice system”. I agree with that.

I also think we need to incorporate other kinds of training.

For example, an understanding of mental health, trauma and the limitations of human memory should be part of legal and judicial training.

Mental health literacy should be a core part of every lawyer’s and judge’s skillset. We should stop teaching young barristers that inconsistencies in a witness’s account are evidence of fabrication. Legal and advocacy training need to change to reflect the current state of scientific knowledge about how witness testimony actually functions. And it would be good if lawyers and judges got some basic education in statistics, scientific literacy and how to read and understand scientific papers.

Throughout their careers, lawyers and judges will need to deal with a wide range of complex issues which are outside their experience or knowledge. Yet legal education focuses only on a narrow range of skills and doesn’t prepare lawyers for the challenges they will encounter, both as lawyers and as judges.

Fourthly, we need to reconsider some of the things we expect judges to do. In particular, we need to reform criminal sentencing and decentre punishment in the criminal justice system.

That will require not only changes in the law, but also changes in judicial culture and the perceived purpose of sentencing. ■ Professor Leslie Thomas KC is a lecturer at Gresham College in central London ■ 07

CRYPTOCURRENCY/REGULATION

Will New Zealand join

the worldwide crackdown on crypto?

Like other countries, New Zealand’s lawmakers and regulators are scrambling to find appropriate responses to regulating the crypto industry.

There is no silver bullet

Regulating crypto can be like nailing jello to the ceiling. But while regulation of the emerging cryptocurrency technologies is necessary to protect consumers, it needs to be sufficiently flexible to allow companies to raise capital effectively and financial services business to bring new products to market smoothly, says Jeremy Muir, a partner at MinterEllisonRuddWatts.

It’s a difficult balancing act because those two goals can work against each other. “Things you wish to do to protect consumers might make it harder to bring products to market, which might otherwise be useful,” Muir says.

Many jurisdictions, including New Zealand, have begun developing regulation but most are looking to see what happens in the United States, says Lane Neave partner James Cochrane In September 2022, the White House published a whole-of-government approach with a framework on what crypto regulation should look like.

In particular, US regulators the Securities and Exchange Commission (SEC) and the Commodity Futures Trading Commission have been asked to address six points: consumer and investor protection; promoting financial stability; countering illicit finance; US leadership in the global financial system and economic competitiveness; financial inclusion; and responsible innovation.

Nothing has yet been mandated and the reality on the ground in the US is regulation by enforcement, not guidance, says Cochrane. The SEC has been publicly 08

Photo: Westend61 / Getty Images

Diana Clement

targeting high-profile scalps to send messages to the industry.

Those scalps include influencer Kim Kardashian, for allegedly breaching securities law with misleading statements and inadequate disclosures. She settled with the SEC. And there were charges against crypto lender Genesis and crypto exchange Gemini for allegedly offering and selling unregistered securities in relation to Gemini’s Earn product – something similar to a bank term deposit where the depositors receive a return for “staking” their crypto.

The SEC has also gone after high-profile crypto players such as Bitcoin and crypto exchange Kraken, which agreed to a US$30 million settlement in relation to its service to retail customers.

According to The New York Times, regulators have for years failed to get to grips with the crypto industry but have faced intense public pressure since the overnight collapse of the FTX crypto exchange in November last year. Once valued at US$32 billion, the

Continued on page 09

Feb 24, 2023 Issue 4

Continued from page 08

company has lost an estimated US$8b of investors’ funds and its founder, Sam Bankman-Fried, has been charged with orchestrating a years-long fraud.

The enforcement measures are often based on the Howey Test, which helps determine whether a transaction qualifies as an investment contract.

“All of these, at least as far as crypto markets are concerned, appear calculated to achieve maximum impact,” Cochrane says. Yet other players offering similar services have not been targeted directly.

“All guns blazing” isn’t the only way to regulate crypto. The European Union and United Kingdom are taking a more co-operative approach, Cochrane says – one that he would like New Zealand to follow.

The European Parliament has taken an innovationfriendly direction that still includes measures for consumer protection and safeguards against market manipulation and financial crime.

Key provisions in the regulation cover transparency, disclosure, authorisation and supervision of transactions for businesses issuing and trading crypto assets. That will ensure consumers are better informed about risks, costs and charges. The framework also regulates public offers of crypto assets and is designed to support market integrity and financial stability. The EU-wide regulation includes measures against money laundering, terrorist financing and other crimes.

Like other countries, the UK wants to rein in reckless business practices, consistent with its approach to traditional finance.

Its approach is more technology than the US, says Muir. “The [UK] Law Commission has published papers on how to treat crypto or digital assets as property. Their regulators are trying to come up with a unified approach, encouraging business. That ties in

with the wider European approach.”

Aussie roadmap Closer to home, Australia is a few steps ahead of New Zealand in that it published a roadmap about 18 months ago, Muir says. “That seems to have survived the election.”

In early February, the Australian Treasury released a consultation paper on token mapping, which is the process of identifying the key activities and functions of products in the crypto ecosystem and mapping them against existing regulatory frameworks.

“It’s quite a technical exercise, seeing what the gaps are in the regulatory system and how they fit,” Muir says.

Like other countries, New Zealand’s lawmakers and regulators are scrambling to find appropriate responses to regulating the crypto industry. There is no silver bullet.

The government acknowledges that it needs to do more. The inquiry into crypto currencies

by Parliament’s Finance and Expenditure Select Committee has been considering a range of questions since 2021 and is due to present its findings shortly.

Crypto is not by any means unregulated here. As with other countries, New Zealand already has laws designed for traditional finance, consumer protection and taxes which crypto businesses need to comply with.

“While crypto might not be legal tender, or physical currency, there is comprehensive regulation,” Cochrane says. For example, the Financial Markets Conduct Act, the Anti-Money Laundering and

Jeremy Muir

James Cochrane

While crypto might not be legal tender, or physical currency, there is comprehensive regulation

Continued on page 10

09

Continued from page 09

Countering Financing of Terrorism Act 2009 and the Financial Service Providers (Registration and Dispute Resolution) Act 2008 all apply to initial coin offerings (ICOs).

Anyone offering financial advice to consumers must comply with FSLAA (the Financial Services Legislation Amendment Act) and CoFI (the Financial Markets (Conduct of Institutions) Act). From March 15, they will also need to be fully licensed by the Financial Markets Authority. Those who profit from crypto businesses or investing fall under the Income Tax Act 2007; and the Goods and Services Tax Act 1985.

Consumers have protection under the Fair Trading Act 1986 and the Credit Contracts and Consumer Finance Act 2003 (the CCCFA). Other relevant laws include the Crimes Act 1961, Companies Act 1993, Overseas Investment Act 2005 and Trusts Act 2019.

Muir, along with Alexandra Sims of the University of Auckland, is a special advisor to the parliamentary inquiry and filed a report towards the end of last year for the committee to consider.

They would like to see New Zealand become a fast-follower in regulation, rather than trying to lead the world with a complicated and bespoke regime for a diverse series of technologies at a very early stage of their development.

“We think New Zealand should be agile and flexible [in its regulation of crypto],” Muir says.

“Both of us are quite deeply involved in the community, know a lot of the New Zealand players and understand some of the benefits of the industry to New Zealand as well as some of the risks.”

The report itself is still confidential, Muir says.

“Broadly speaking, we take the approach that New Zealand should take a technologically neutral

10

approach to regulation, which both encourages, and greater clarity would hopefully encourage investment does not put unnecessary barriers in the way of, in tech innovation businesses. people doing interesting things with the technology.

Likewise, if there are known adverse consequences Equally, [it] gives the regulators the tools to look after for misleading market participants, this protects consumers.” consumers and reduces market fragility.

Muir and Sims would like to see relevant parties “If regulation is too harsh or unclear, it drives working together to understand developments in entrepreneurship offshore to more welcoming crypto as they emerge. “We have also made a few jurisdictions and all the jobs and tax revenue that specific recommendations around brings, and investment, from New Zealand legal tweaks.” It’s up to Parliament to institutional and retail customers decide how the recommendations alike. Either because they are less should take a are enacted. regulated and compliance cost is technologically less or the law is certain so risks can neutral approach Legislation? be better managed and priced. If to regulation, regulation is too light, it welcomes Legislative change is a question bad actors and increases risk for that Cochrane has been weighing which both investors. up. He says the more he considers encourages, and Cochrane would like to see regulation in New Zealand, the does not put regulators engaging more with more he likes the idea of one market participants to give them omnibus, specific crypto Act that unnecessary guidance, rather than threaten them market participants, businesses barriers in the with a big stick. and individuals alike can refer way of people “The penalties that the Financial to, supported by comprehensive guidance from regulators. doing interesting Markets Conduct Act can levy on you [for non-compliance] are “Even if the crypto Act specified things with the massive. That’s some of the big where and how other Acts apply technology challenges that clients face.

– eg, Fair Trading Act, Financial “Many of them aren’t institutional.

Markets Conduct Act – that would Not everyone is a Kiwibank and be good.” can afford to go through all the hurdles that might Replacing a hotchpotch of various rules with a be involved in [launching], for example, a managed one-stop-shop would make it simpler for all market investment scheme.” participants because they have to look in only one place, he says.

“I think this would really benefit the SME market Continued on page 15 which New Zealand commerce is based on. The

Feb 24, 2023 Issue 4

BOOK REVIEW

What future legal leadership might look like The concepts and principles set out in this book begin to inform a new generation of lawyers about what they can do with their careers

Steven Moe Billed as “leadership principles for legal professionals”, a new book The Heart of Practice has been released by New Zealand author Simon Tupman, a consultant to lawyers and law firms.

The book, packed with insights from Tupman’s work and interviews with lawyers from around the globe, has been endorsed by thought leaders such as Richard Susskind, the English author of Tomorrow’s Lawyers, who described it as “a highly readable and much-needed primer on legal leadership”.

A key theme is how the law can be used as a catalyst for positive impact. Back at law school, some part of us probably wanted careers like that but along the way, the business of law can take over. So this book might cause us to rethink the reasons many of us got into this profession in the first place.

It is divided into two parts. The first half focuses on leadership in principle and discusses what a new era in the law might involve, including Tupman’s thoughts about leadership

Junior Barrister position I am looking to employ a junior barrister with 1 to 2 years’ PQE, starting in late March or April 2023.

I have a specialist practice at Britomart Chambers, Quay Street, Auckland with a focus on employment law, professional misconduct and human rights. My practice spans advocacy in the Courts and before various Commissions and Tribunals, mediation and acting as independent counsel in public and private sector reviews and investigations.

The role will include assisting in client liaison, interviews, reports, submissions, and opportunities for advocacy and research. The ideal candidate will have excellent legal writing skills and be a good communicator. I look forward to hearing from you.

Please send your CV, cover letter, academic transcript, and any supporting documentation to josh@mariadew.co.nz.

Applications close on Monday 6 March 2023.

as it applies to yourself, your people, your business and your community. The second part covers 10 interviews with lawyers from Canada, Australia, England and New Zealand. Four of those interviews are with Kiwi lawyers so there is real local context here (disclaimer: I am one of them!).

In my view, Tupman has done a great job of distilling some important concepts for busy lawyers. There will be challenges to the status quo but the book provides a roadmap for what the future might be.

If you want to continue to think deeply about your career, your role as a lawyer and what a future firm might look like, it’s a good read. It would also benefit law students. As the foreword by Simon J Slater says, “This is the stuff they do not teach at law school.”

I agree and hope the concepts and principles set out in this book begin to inform a new generation of lawyers about what they can do with their careers.

The Heart of Practice is out now and can be ordered here.

Steven Moe is a partner at Parry Field Lawyers ■

ADLS Annual General Meeting 2023 The Annual General Meeting (AGM) of members of ADLS will be held on Thursday, 2 March 2023, at 5.30pm, at the offices of Link Market Services, Level 30, PwC Tower, 15 Customs Street West, Auckland.

ITEMS OF BUSINESS A. Annual Report on ADLS Inc (available on the ADLS website under myADLS) B. Confirmation of President and Council Members for 2023 C. Approval of 2022 AGM minutes D. Appointment of auditors E. Notices of motion (no notices of motion have been received) F. General business

ONLINE PARTICIPATION Members and proxy holders entitled to attend and vote at the AGM will be able to attend the AGM in person or participate in the AGM virtually via an online platform provided by Link Market Services.

Members will be emailed details on how to access the online meeting prior to the AGM. Those participating virtually will be able to vote and ask questions during the AGM. For further information you may call (09) 303 5270 or email reception@adls.org.nz 11

FEATURED CPD

FINAL NOTICE

INTERMEDIATE COMMERCIAL WEBINAR

Insights into ESOPs Webinar 1.5 CPD hrs Monday 27 February 12pm – 1.30pm Price from $110 +GST Presenters Alex Franks, partner, Chapman Tripp and Bevan Miles, partner, Chapman Tripp (Tax)

To advise on ESOPs, you need to understand the different types of ESOP, tax and securities law considerations and the practical steps needed to establish and administer a scheme. This webinar will provide key information to enable you to effectively navigate this area.

FIND OUT MORE

FINAL NOTICE

Working with lawyer for child

Livestream | In Person 2 CPD hrs Tuesday 28 February 4pm – 6.15pm Price from $140 + GST Presenters David Amodeo; Val Muller; Sonya Singh and Craig Walker

Chair Judge Alexander Laurenson

FAMILY INTERMEDIATE SEMINAR

IN PERSON

FINAL NOTICE

ALL AREAS ALL LEVELS WEBINAR

LIVESTREAM

Privacy for legal professionals Webinar 1.5 CPD hours Thursday 2 March 12pm – 1.30pm Price from $110 +GST Presenters Amy Kingston-Turner; Edwin Lim and Luke Han Chair Lloyd Gallagher, managing partner, Gallagher & Co

Join our panel to harness key information and insights into the interface between privacy and technology in legal practice.

FIND OUT MORE 12

Providing perspectives from those in the role, the judiciary and the ministry, this seminar provides key insights into what the role is (and is not); the statutory framework; the balancing act required in considering the child’s views and his or her welfare and best interests; the role in different contexts; managing challenges and the use of reports.

Feb 24, 2023 Issue 4

adls.org.nz/cpd

Assessing capacity workshop

Workshop 3 CPD hours Tuesday 7 March 9am – 12.15pm Price from $350 +GST Presenters Alison Douglass; Dr Greg Young and Dr John Kennelly

VARIOUS AREAS ALL LEVELS WORKSHOP

FIND OUT MORE

cpd@adls.org.nz

09 303 5278

Assessing capacity has many applications – for health care, finances, making a will, personal relationships and even liberty and placement in care. In this workshop, two developers of the popular Toolkit for Assessing Capacity, together with a general practitioner working at the coalface, will provide insights into the legal and medical tests, the method of assessing capacity, referrals, the lawyer’s role in supportive decision-making and cultural considerations.

Limited spaces available

How to lead a team (Auckland Workshop) ALL AREAS INTERMEDIATE WORKSHOP

Workshop 4 CPD hours Thursday 16 March 9am – 1.15pm Price from $400 +GST Presenter Tony Gardner, managing director, Archetype Leadership + Teams

This four-hour Auckland workshop distils proven and emerging team leadership best-practice into a practical ‘how-to’ guide.

FIND OUT MORE

Dealing with the media ALL AREAS ALL LEVELS SEMINAR

In Person | Livestream Tuesday 4 April 4pm – 6.15pm Price from $140 + GST Presenters Justice Simon Moore; Julie-Anne Kincade KC, Blackstone Chambers; Edward Gay, reporter, Stuff and Hannah Norton, journalist, NZ Lawyer and HRD Singapore

IN PERSON

What role do the media play in legal cases? How should lawyers engage with journalists? How do the courts balance and manage competing interests?

This seminar will offer some clarity around such questions with perspectives from media, counsel and the bench.

Chair Marie Dyhrberg KC

LIVESTREAM 13

Senior Lawyer We are a friendly full-service law firm in Central Auckland focusing on the legal needs of people in business and their families. Our firm has been established for a long time and the work is varied and interesting. We represent mid-size companies and long-established private clients. One of our senior lawyers is retiring soon and we are looking for someone to replace him. We are ideally looking for someone with 8+ years’ PQE experience in property and commercial law in New Zealand.

We are happy to discuss flexible working arrangements.

Please email Victor Mechkov at victor@staintonchellew.co.nz or phone 09 300 5859

WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

GIBSON Jacqueline Helene • Late of Auckland • Retired assembly worker • Aged 54 / Died 16’07’22 HENRY Michael Lawrence • Late of 41 Marne Road, Papakura, Auckland • Never married • Drag racer • Aged 58 / 05’11’22

Offices Available Following some barristers retiring, we have three offices of varying sizes available for rent.

The Chambers share a refurbished floor (with separate areas) with Hussey & Co., a boutique forensic and general accounting firm. There are shared meeting rooms (a formal boardroom with video conferencing facilities and a less formal meeting room), and communal entrance and client waiting area.

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst.

No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

14

KALOLO Alefosio • Late of 16 Scarlet Drive, Ranui, Waitakere, Auckland • Married • Retired Storeman • Aged 73 / Died 30’09’21 MAGELE Pua’auli Ropati • Late of 13 Malahide Drive, Ormiston, Manukau, Auckland • Never in a legal relationship • Machine Operator • Aged 59 / Died 06’12’22 NANSEN William • Late of 4/11 Anderson Avenue, Point England, Auckland • Bus Operator • Aged 62 / 06’05’22

( 09) 303 5270

SAPOLU Savave Junior (aka Alaillgi Sapolu) • 40 Esmeralda Avenue, Avondale, Auckland • Single • Compliance Auditor • Aged 57 / Died 20’01’23 STOTHERS Barbara • Late of Atiamuri, formerly of Tokoroa • Retired • Aged 74 / Died 28’12’22 TAUPAU Vitoria (aka Vitoria Taupa’u aka Victoria Taupau) • Late of 1 Luke Road, Otara, Auckland • Single • Senior Engagement Advisor • Aged 56 / Died 12’08’22 WARRINGTON John William • Late of 140 Lakeside Drive, Orewa, Auckland • De-Facto • Retired • Aged 74 / Died 04’11’22

Feb 24, 2023 Issue 4

Continued from page 10 “They’re SME-sized companies. It’s just cost prohibitive for them to spend enormous amounts on accountants and lawyers to navigate the financial markets laws.” They need help managing the complexity of securities laws, he says. “Regulators and politicians that embrace education, understanding and a willingness to work collaboratively with market participants are essential.”

New Zealand has a steadily growing number of crypto start-ups and even a web-focused venture capital fund. One of the better-known names is Easy Crypto, a New Zealand-based exchange founded in 2018 by siblings Janine and Alan Grainger.

Janine Grainger travels the world attending conferences and has kept abreast of regulatory developments. She worries, however, that the FTX debacle and other scams and failures will push governments to take a draconian approach to regulation and stymy innovation.

“FTX was straight-out fraud. Very similar to Bernie Madoff’s fraud,” she says. “It wasn’t a failure of the existing regulation being applied. [FTX] was licensed

in multiple jurisdictions. They were probably one of the regulation is possibly too light internationally, Grainger most licensed crypto companies out there at that time. says. “The failure of FTX could have been prevented potentially with better checks.”

It ticked all the regulatory boxes.”

But Grainger is concerned that the FSB’s approach There is work to be done, however, to rein in some of “same activity, same risk, same regulation” is not elements of the industry. She cites the work the appropriate for crypto assets.

Financial Stability Board [FSB], an We have also made “We need a little bit more international body that monitors nuanced than that. ‘Same risk, and makes recommendations a few specific about the global financial system, recommendations same regulation’ risks shutting down innovation and stopping is doing. It released a framework around legal these new financial systems from for the international regulation of tweaks evolving and becoming better than crypto-asset activities in October the old ones, where you force them 2022. to look exactly like the old ones.”

The FSB noted that the turmoil One of Grainger’s issues with heavy regulation in crypto markets last year highlighted several structural vulnerabilities in those markets and exposed is that good players will comply with regulation, inappropriate business models, significant liquidity and opening opportunities for bad actors to go about their business. “That’s where, at an international level, maturity mismatches, the extensive use of leverage and other vulnerabilities that were amplified by a lack there’s a lot of opportunity for a joined-up approach,” she says. of transparency and disclosures, flawed governance, Getting the balance right will be very beneficial. inadequate consumer and investor protections, and “That whole pace of the digitisation of financial weaknesses in risk management. products and services is speeding up. It definitely The FSB is also considering prudential regulation opens up new opportunities and lets us do things such as better checks on directors and ensuring differently.” ■ companies are audited. That’s the area where

Privacy for Legal Professionals Policies and Procedures in Practice Thursday 2 March | 12pm – 1:30pm | 1.5 CPD Hours

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz

15