LawNews- Issue 9

NEWS Mar 31, 2023 Issue 9

Inside ■ OPINION

What is meant by the rule of law?

P06-09

■ LEGISLATION

Does the law fail women?

P10-11

Chief Justice wades into climate change

DEBATE

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Contents 06-09 CONSTITUTION GUIDING PRINCIPLES JUDICIARY

The Humpty Dumpty approach to the rule of law

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Mar 31, 2023

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Issue 9

CLIMATE CHANGE

Pressure mounts on government for action on Climate Adaptation Bill The time needs to be taken to do that work.

Otherwise, it will be left to the courts to determine what this legislation means and to Parliament to make running repairs as it was so frequently called to do with the RMA

Reweti Kohere Local Government New Zealand (LGNZ) is urging the government to get moving on introducing new climate adaptation legislation before this year’s election as pressure mounts on the country’s leaders to act.

The call comes as the government’s plans to reform the resource management system face a raft of questions about their durability from Parliament’s own environmental watchdog, and a rare intervention from Chief Justice Dame Helen Winkelmann who warns the reforms risk denting public confidence in the courts by hitting its workload and resources. “[The bill] has implications for access to the courts, the ability of the courts to perform the functions conferred on them, and the maintenance of public confidence in the courts,” she says in a written submission.

The bill deals with issues that are “frequently litigated”.

But the judiciary isn’t aware of any analysis done by officials about whether the Environment Court will need more funding to handle an expected increase in cases, Chief Justice Winkelmann says.

Too fast?

Expected to report back to Parliament in early June, the environment select committee has finished hearing oral submissions on the Natural and Built Environment Bill and the Spatial Planning Bill – two marque pieces of government legislation set to replace the 32-year-old Resource Management Act and improve how the environment and development are managed in the future.

But there is concern that the select committee process is

moving too fast, with committee chair and Green MP Eugenie Sage wanting the bills sent back for additional consultation.

A third proposed statute, the Climate Adaptation Bill, will aim to address the managed retreat or relocation of key assets, activities and sites of cultural significance to Māori and nonMāori, away from vulnerable areas. It is yet to be introduced to the House of Representatives.

Managed retreat has quickly emerged as an issue after flooding on Auckland Anniversary Day and the destruction wrought by Cyclone Gabrielle a week later.

LGNZ supports the government’s intention to develop the Climate Adaptation Bill. But the group, which advocates for the country’s local councils, is concerned the bill is on a “considerably slower track” than the other two pieces of reform.

“Councils and their communities have been grappling with how to build resilience and adapt to the impacts of climate change for many years. These impacts are increasingly more frequent and intense,” LGNZ says. “Councils and communities see a real need for much greater clarity around how to build resilience and adapt.”

LGNZ says it can’t assess whether the overall system will be less complex and more cost-effective and efficient than the current RMA “when a critical component of the reform package remains missing”.

It’s encouraging the government, with the benefit of local government input, to make “considerable progress” on the climate adaptation bill “before the end of this parliamentary term”.

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As quickly as possible LGNZ isn’t the only submitter calling for action.

Lawyers for Climate Action, a non-profit group of more than 500 lawyers advocating for net-zero carbon emissions, says the bill should already have been introduced and passed by Parliament.

However, the group is looking forward to its introduction “as quickly as possible” to address the complex issues associated with managed retreat.

Similarly, the Climate Change Commission “eagerly” awaits the release of the climate adaptation bill.

In its submission, commission chair Dr Rod Carr says the overall system must enable effective adaptive management.

“Providing clarity around how adaptation decisions will be funded and financed is also important to avoid uncertainty and to avoid decisions being made now from locking in maladaptive outcomes for the future.

“An effective resource management system that promotes positive climate outcomes is an important step for a thriving, climate-resilient and low-emissions Aotearoa New Zealand,” Carr says.

Wynn Williams associate Kate Dickson tells LawNews New Zealanders want to see how the government plans on responding to the need for guidance on managed retreat.

There has been a sense of urgency for some time in passing legislation such as the Climate Adaptation Bill, says Dickson, a specialist in local government and environmental law. The scientific community has repeatedly warned extreme weather events will become more frequent and severe as the planet gets warmer.

In addition to reducing carbon emissions, the need to shore up infrastructure has been demonstrated by the weather events this summer, she says. “There will be significant societal pressure on any future government to progress its response sooner rather than later.”

Climate Change Minister James Shaw is aware of the calls for action. He told RNZ in late February he hoped to get the adaptation bill at least introduced to MPs – if not fully passed – by the end of the term.

But the bill can’t be rushed, he said. While New Zealanders would have to cope with extreme weather events on an ad hoc basis until the Climate Adaptation Act is enacted, “we do need that framework to be really well thought through because the long-run consequences of getting it wrong would be catastrophic.”

Sage has echoed her leader’s comments in respect of the two bills being considered by the select committee she chairs.

Politik’s Richard Harman has reported the Green MP wants the proposed statutes sent back for more public consultation after the committee has “beaten it into the best shape”, amid concerns the process is proceeding too quickly.

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Keeping powder dry National is reserving its position on the reforms, “but there is a strong case that the government should seriously consider going back to the drawing board,” says National RMA reform and urban development spokesperson Chris Bishop.

At the party’s Bluegreens forum in late February, Bishop opened a panel discussion by saying National was deeply sceptical the new resource management bills would result in “faster, cheaper, better” outcomes.

He was primarily concerned the reforms would lead to increased bureaucracy, starker democratic deficiencies and there was a lack of clarity or certainty about how trade-offs would be made, according to the Bluegreens’ March 2023 newsletter.

Nelson Mayor and Bluegreens co-founder Nick Smith, a former National environment minister, challenged the party to support the reforms’ overall direction.

As reported by Politik, Smith said it was time the RMA was replaced, “and a lot of work has gone into its replacement. It’s not all bad.”

In a keynote address, National Party leader Christopher Luxon told forum attendees “clearly and unequivocally” climate change was real, addressing it needed cross-party cooperation and New Zealand must play a role internationally on mitigation.

Luxon’s comments underscored his and deputy leader Nicola Willis’ reaction days earlier to comments from their own List MP, Maureen Pugh, who remained unconvinced human activity has contributed to rising temperatures.

The leadership duo disagreed with Pugh, with Luxon saying that denying or minimising climate change was an unacceptable position to hold in his caucus.

Pugh later walked back her comments, saying she regretted them. “I accept the scientific consensus that human-induced climate change is real and there is a need to curb greenhouse gas emissions. We are seeing the impact of climate change in the cyclone that has devastated so much of New Zealand.”

‘Far-reaching reorganisation’ Simon Upton, Parliamentary Commissioner for the Environment, questions whether the government’s first two resource management bills can deliver an enduring framework – even if they are substantively amended.

In his submission, Upton says the proposed statutes amount to a “far-reaching reorganisation” of environmental management.

They have considerable merit in strengthening national regulations, setting environmental limits and establishing coherency on development in and between regions, says Upton, a former National environment minister.

But he doubts whether handing responsibility to unelected regional planning committees and holding decision-makers to account in promoting a wide range of social, economic, and

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LGNZ says it can’t assess whether the overall system will be less complex and more costeffective and efficient than the current RMA when a critical component of the reform package remains missing

Mar 31, 2023 Issue 9

Continued from page 04

environmental outcomes matches up with the other objectives.

“In trying to be all things economic, social, cultural and environmental to all people, the purpose clause is filled with ambiguity. It needs to be crisper and more focused,” he says.

In their current form – “the first time we have been able to appreciate how the whole system will fit together”, Upton says – the bills swap the uncertainty of new law with “novel definitions and complex ambitions” for the relative certainty of amending the existing RMA. “Either way, the task facing the committee is more than just simple drafting changes.”

The bills reveal that “much work remains to be done”, Upton says. “The time needs to be taken to do that work. Otherwise, it will be left to the courts to determine what this legislation means and to Parliament to make running repairs as it was so frequently called to do with the RMA.”

Chief Justice intervenes In a rare move, the chief justice has put MPs on notice the reform plans will hit the judiciary’s workload and resources, potentially denting public confidence in the courts.

By convention, the judiciary makes submissions to select committees only on matters relevant to its independence, the administration of justice, the operation of the courts and the rule of law.

The lengthy and complex Natural and Built Environment Bill has attracted such a response from the head of the judiciary, who told policymakers their scant consultation with judges will have an impact on their judicial functions.

“The judiciary’s experience is that extensive legislative reform is usually followed by a period in which the meaning and effect of the new legislation is litigated through the courts,” Chief Justice Winkelmann says.

‘Strong, if not compelling’ As the reforms enter the final stretch, attention is turning to how the country will handle managed retreat.

Past instances have shown how difficult it is to get right after disaster has struck. But proactive managed retreat will likely be even harder to implement, says the Environmental Defence Society (EDS), a non-profit organisation committed to improving environmental outcomes.

In the first of three working papers, ahead of a final report expected at year’s end, the EDS explores the purpose of managed retreat, potential underlying principles, and what it might cost and who might have to pay.

“It is clear that because of increasing climate risks, some communities will not be sustainable in the longer term and will need to move. The question is how this might be achieved and what support might be given to affected communities and by whom,” says EDS Policy Director Raewyn Peart.

In many cases, managed retreat will be the most costeffective option. And, if done well, it can have social and environmental benefits, Peart says. But it raises many tricky issues.

“Do we leave people to suffer losses and manage as best they can on their own? Or do we collectively provide the resources to assist those who are most affected?”

A separate report, prepared for EDS by Emeritus Professor of Public Policy Jonathan Boston, has concluded a public compensation scheme will be preferable to a policy where the government mandates insurers cover risks associated with sea-level rise and more severe flooding.

“Strong, if not compelling arguments exist that providing some form of public compensation, such as incentivising voluntary cooperation, will minimise the need for state coercion and important legal precedents, especially those related to the compulsory acquisition of private property, will be upheld.”

Arguments against public compensation include the potentially large fiscal costs and equity issues in compensating wealthy owners of beach-front properties.

However, Boston concludes “all the objections to any form of public compensation are unconvincing. Against this, the objections are certainly relevant to the question of how a compensation scheme should be designed”. ■

Do we leave people to suffer losses and manage as best they can on their own? Or do we collectively provide the resources to assist those who are most affected?

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05

LEGAL PROFESSION/OPINION

The Humpty Dumpty approach to the rule of law Gary Judd KC A search of the final report of the independent review Regulating Lawyers in Aotearoa New Zealand reveals that “rule of law” appears 58 times.

Notwithstanding the frequent use of the term and the report’s recommendation that upholding the rule of law continue to be a fundamental obligation of lawyers and a statutory objective of the new independent regulator, the only time the report touches on its meaning is a brief and incomplete, if not inaccurate, description in the minority view of Professor Jacinta Ruru.

Ruru states, “The rule of law is alive to the unique circumstances of Aotearoa New Zealand. It requires that all people are bound to follow the law.”

In footnote 191, to the first sentence, she references a 2021 article by Justice Susan Glazebrook The Rule of Law: Guiding Principle or Catchphrase? as “a discussion about the rule of law in the unique circumstances of Aotearoa New Zealand” (report, p 106).

Many of those discussing the rule of law stamp it with the meaning they wish it to have because, as Justice Glazebrook notes, the concept has rhetorical weight in the public consciousness. But, giving it the meaning the rhetorician wishes it to have is Humpty Dumpty’s approach: ‘When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean – neither more nor less. ‘ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’

Humpty Dumpty’s approach turns the rule of law into a “catchphrase”, putting into the concept whatever the speaker wants. The concept can lose its meaning. Confucius said, “when words lose their meaning, people lose their freedom”. Whilst that may be a bit of a stretch as a generalisation, it does have implications for the rule of law as the rule seeks, amongst other things, to secure freedom from oppression.

Justice Glazebrook concludes her article in this way: So what does all this say about Aotearoa and the rule of 06

Gary Judd KC

Unless Humpty Dumpty’s approach is adopted, there must be distillation of what the rule is, for only then would it be possible to ascertain whether redress for historical disadvantage is within it

Many of those discussing the rule of law stamp it with the meaning they wish it to have because the concept has rhetorical weight in the public consciousness law? I would suggest that, until we complete the process of decolonisation, [fn] 135 the rule of law can only be considered a work in progress. The new place of the Treaty and tikanga in the law is a start. There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper.

And as an overall conclusion on the rule of law generally, I finish where I began with my title. The rule of law is a guiding principle as long as it includes human rights, access to justice, and I would add, redress for historical disadvantage. If that is the case, it is also an appropriate catchcry for a better and more just world.

Unless Humpty Dumpty’s approach is adopted, there must be distillation of what the rule is, for only then would it be possible to ascertain whether redress for historical disadvantage is within it. It cannot be within it just because a proponent of a viewpoint wants it to be.

It is of concern that her Honour says she won’t accept the rule of law as even a guiding principle unless redress for historical disadvantage is part of it.

Part of the problem may be that the title and the article itself are based on a juxtaposition of guiding principle and catchphrase. This is a false dichotomy because the rule of law is far more than just a guiding principle.

It is a fundamental constitutional concept that underpins the legal and political systems of many countries around the world.

It is a fundamental aspect of modern legal and political systems that helps to maintain order, protect individual rights, and ensure that justice is applied fairly and consistently.

New Zealand’s commitment to the rule of law is part of New Zealand’s constitution, as recognised by the Senior Courts Act 2016’s repetition of the Supreme Court Act’s acknowledgement of “New Zealand’s continuing commitment to the rule of law and the sovereignty of Parliament”.

Then Chief Justice Dame Sian Elias, in a 2015 address to the Otago University Faculty of Law Judgery and the Rule of Law stated (page 8),”The rule of law is identified in the Supreme

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Mar 31, 2023 Issue 9

Continued from page 08

Court Act as being, with the sovereignty of Parliament (with which it is in inevitable tension), one of the twin principles of the New Zealand constitution.”

When Dame Sian gave that address, the Judicature Modernisation Bill was before Parliament and she recorded the judges’ concern that s 3 of the Supreme Court Act might not be carried forward into the replacement legislation. But, of course, it was – no doubt in large part because of the judges’ views.

It is very disappointing to see one of today’s senior judges relegating the rule of law to a guiding principle and not even that unless it includes redress for historical disadvantage.

Origins of the rule of law There are bedrock principles upon which the rule of law is based. It grew out of the need to curtail monarchical political power and rests on twin states that “all men are naturally in”, first: A state of perfect freedom to order their actions, and dispose of their possessions and persons, as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other men; and second: A state also of equality, wherein all the power and jurisdiction is reciprocal, no one having more than another; there being nothing more evident, than that creatures of the same species and rank, promiscuously born to all the same advantages of nature, and the use of the same faculties, should also be equal one amongst another without subordination or subjection ….”

The “bounds of the law of nature” is explained: The state of nature has a law of nature to govern it, which obliges every one: and reason, which is that law, teaches all mankind, who will but consult it, that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions….

These words of John Locke, written at the time of the Glorious Revolution (1688-1689) when the Parliament of

It is of concern that Her Honour says she won’t accept the rule of law as even a guiding principle unless redress for historical disadvantage is part of it

England asserted supremacy over the King, denying to him the pretended right to rule over others based on who his ancestors were, have been the philosophical foundation for the principles of equality under the law as subsequently developed, particularly by AV Dicey, who was the first to use “the rule of law” in a systematic way although it had appeared occasionally in writings from about 1500.

Dicey’s three meanings were: absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power, equality before the law and the constitution being “the result of the ordinary law of the land”.

As Philip Joseph has pointed out, equality before the law “obtains in principle if the laws applying to each status [eg, welfare beneficiaries, infants and adults, landlords and tenants, employees and employers, company directors and shareholders and consumers and manufacturers] are capable of applying equally to all, depending on the life choices individuals make.”

Dame Sian, in the Judgery article (p 8), made this important point regarding New Zealand: Although the phrase, “rule of law” does not appear in the Bill of Rights Act, the White Paper which preceded it explains the omission from the statement of rights of a right to equality before the law as being unnecessary because equal treatment is part of the rule of law. The Bill of Rights Act, which explicitly preserves all other freedoms and liberties, was therefore enacted on the premise of the rule of law.

When Dicey said the constitution was the result of the ordinary law of the land, he was describing the nature of the English constitution, whilst recognising that other countries had written constitutions which might afford protection for the rights of individuals as effective as the protection existing in England. In doing so, he makes this very important point: The “rule of law,” lastly, may be used as a formula for expressing the fact that with us the law of the constitution, the rules which in foreign countries naturally form part of a constitutional code, are not the source but the consequence

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of the rights of individuals, as defined and enforced by the courts….

The words I have emphasised take us back to Locke’s identification of the natural states of freedom and equality. Men are naturally free (subject to the “bounds of the law of nature”) and politically equal which is to say that none has natural power or jurisdiction over another.

These principles have been developed without changing them. In Locke’s day, “man” or “men” meant that literally, with qualifications even as to which men could qualify as men.

Women were excluded. Slaves were excluded.

The conception today is that all people are naturally free and equal, and that each and every person has individual rights.

Whilst a concept such as the rule of law can be expanded to bring more individuals within it, as human knowledge and understanding grow, it ought not to be expanded to encompass different concepts and certainly it cannot incorporate contradictory concepts.

This does not mean there are no other worthy and important principles. It simply means that they are not part of the rule of law, and need to be justified in some other way, if they can be.

If a principle contradicts the rule of law, it is likely to be invalid.

In the New Zealand context, it also means it is likely to be unconstitutional.

Redressing disadvantage We can now return to “the process of decolonisation” and to the idea of redressing historical disadvantage being part of the rule of law. Even if redressing historical disadvantage is a worthy and important principle, it is not per se part of the rule of law. It is a wide and imprecise description. Judgments can be made only for specific cases.

For example, the Waitangi Tribunal system established by the Treaty of Waitangi Act 1975 established a lawful system for holding the Crown to account for actions inconsistent with the principles of the treaty. The system is consistent with the rule of law. It is in principle capable of applying to all New Zealanders, but in fact can apply only to those having the legal status of having a requisite connection to the treaty.

However, the means chosen to achieve redress for historical disadvantage may be in breach of the rule of law.

If I correctly understand the passages from the article set out above, decolonisation is the chosen means. We need to consider what decolonisation means and, when we have done that, we need to consider whether it is consistent with the rule of law.

It may have been noticed that I kept the footnote reference 135 after “the process of decolonisation”. Footnote 135 states: See Williams, above n 130, for a discussion of decolonisation.

It has been suggested that at a fundamental level, decolonisation involves the taking back by indigenous people of power and control: Eesvan Krishan “Decolonising the Common Law: Reflections on Meaning and Method” 08

Justice Susan Glazebrook

The rule of law is a fundamental constitutional concept that underpins the legal and political systems of many countries around the world

(2020) 26 Auckland U L Rev 37 at 39 citing Moana Jackson “Where to next? Decolonisation and the stories in the land” in Rebecca Kiddle and others Imagining Decolonisation (Bridget Williams Books, Wellington, 2020) 133 at 135.

Footnote 130 is: The indigenising of legal education and our universities will have a major part to play in decolonisation: see generally Joe Williams “Decolonising the law in Aotearoa: Can we start with the law schools?” (FW Guest Memorial Lecture 2021, University of Otago, Otago, 22 April 2021). A first-ofits-kind degree program which aims to provide law students a lived experience in indigenous law is University of Victoria (Canada)’s Joint Indigenous Law Degree which combines a study of Canadian common law with the laws of Indigenous peoples: University of Victoria (Canada) “Joint Degree Program in Canadian Common law and Indigenous Legal Orders (JD/JID)”. The program combines classroom learning with field studies conducted in collaboration with indigenous communities.

What are we to make of this? her Honour says, “until we complete the process of decolonisation”. Who are the “we” who, apparently, are in the process of completing the process of decolonisation?

Her Honour adds, “The new place of the treaty and tikanga in the law is a start,” and “There are of course other initiatives underway, including within and outside the courts, but these are beyond the scope of this paper.”

Eesvan Krishan, in the article Justice Glazebrook cites, states on p 38, “It is a mark of some progress in our legal system that the possibility of tikanga being prayed in aid of Mr Ellis, a Pākehā, was first raised by a Pākehā judge, Glazebrook J.” It seems Justice Glazebrook may consider the courts to be one part of a collective embarked on a process of decolonization.

In footnote 135, Her Honour says it has been suggested that at a fundamental level, decolonisation involves indigenous people taking back power and control. Are the courts embarking on a process of enabling indigenous people to take power and control?

The “indigenous people” are persons separated out from other members of the community because they are descendants of those who were here when, in the late eighteenth century, others started to come.

Taking back means taking. The “back” part is a justification: it means, it is okay to take power and control because we had it once, it was taken away from us and we are taking it back.

It’s like King Charles III saying he should be able to exercise power and control, because James II had power and control until the English parliamentarians forced him to abdicate and established a constitutional monarchy in 1688-1689.

Equality in the rule of law context means no one has any natural right to exercise power or control over others, as the

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Mar 31, 2023 Issue 9

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There can be no doubt that the taking of power and control by one section of the community is inconsistent with the rule of law

kings of England claimed to be their right before the Glorious Revolution put an end to it. It also means equal treatment under the law. There can be no doubt that the taking of power and control by one section of the community is inconsistent with the rule of law.

Giant step backwards Justice Glazebrook appears to be accepting as a foregone conclusion, and something she supports, that it is only a matter of time before the “indigenous people” “[take] power and control”.

This is in the nature of what England got rid of with Magna Carta and the Petition of Right then, in a great stride forward, the Glorious Revolution. It would be a giant step backward to the days before the Enlightenment.

The twin of the rule of law constitutional principle is the sovereignty of Parliament. This means, of course, that Parliament could legislate to give power and control to a sectional group. Indeed, it already has in selected areas with the Water Services Entities Act 2021 and the Pae Ora (Healthy Futures) Act 2022, for example.

The rule of law decrees that no New Zealander has power or control over any other New Zealander unless it is given by laws which apply equally to each and every New Zealander. We need our judges to be standing up for that fundamental principle.

Indeed it is their duty as the rule of law is one of “the twin principles of the New Zealand constitution”.

Dame Sian also noted (p 9) It is true that the content of the rule of law remains uncertain and is contestable. Its central plank is the principle of legality – that no one or no body is above the law and that fundamental values and rights can be trenched on only by unmistakeable legislative intent.

We need the judges to say so when Parliament trenches on the rule of law, and to minimise the violation to the greatest extent possible within the confines permitted by the clear words of the

legislation.

We also need the New Zealand Law Society to be standing up for it. As lawyers already have the fundamental obligation to uphold the rule of law and it is proposed not only that this should continue but also that the new regulator should be subjected to that obligation, a good start would be for NZLS to identify what it means by the rule of law.

I conclude with a further quote from Dame Sian’s Judgery article (pp 10-11).

The rule of law can be imperceptibly eroded unthinkingly if it is not valued by our society….

The challenges for judging and for the rule of law in New Zealand in the 21st century are to ensure that access to independent courts and the rule of law continue to be valued as constitutional fundamentals by the community.

That requires understanding of our constitutional and legal history. This is a year of anniversaries of importance to law. It is 175 years since the signing of the Treaty of Waitangi, by which constitutional government was established and the enacted and common law of England, arrived on these shores so far as appropriate to the circumstances of New Zealand (an important qualification). With the Treaty, Magna Carta, 800 years old entered New Zealand law. These are points of reference we need to talk more about. It is not fanciful to see in Magna Carta ideas central to the rule of law and which have influenced our constitutional history ever since. The 800th anniversary of Magna Carta may be a good time to take stock. Magna Carta confronted the arbitrary power of the King. Over the following centuries the ideas it launched brought the King under the law, as Bracton and Coke had insisted he was. The King, they said was made by the law.

And, as James I had the wit to see, the implication of being made by the law was that the King was subject to the law.

We must all stand up for the rule of law and guard against its erosion. ■ Gary Judd KC is an Auckland barrister ■

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09

WOMEN AND THE LAW

Is our legal system failing women?

In the first of a two-part series, journalist Diana Clement explores several areas of the law where women still face discrimination or disadvantage

It is widely accepted that employees are not activating these entitlements for fear of their privacy being compromised

Kesia Denhardt

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Diana Clement Many would argue that women have achieved equality in the law.

But the impact of the law on women’s lives is not always plain to see.

Sometimes even new laws fail women, say family lawyer Kesia Denhardt, a partner at Stace Hammond, and Erica Burke, an associate at Haigh Lyon Lawyers and co editor-in-chief of the New Zealand Women’s Law Journal Te Aho Kawe Kaupapa Ture a ngā Wāhine.

Denhardt and Burke have identified several areas of the law where they say the legal system still fails women and in some cases others, including men and transgender people.

Paid leave for family violence victims Prior to 2018, paid leave for family violence victims was entirely at the discretion of an employer. Thanks to the Domestic Violence – Victims’ Protection Act 2018, family violence victims (invariably women) are now entitled to: ■ up to 10 days’ paid leave per year; ■ the ability to request short-term flexible working arrangements; and ■ the right not to be treated adversely because they have suffered family violence.

Employees can also exercise the rights to support a child who has experienced family violence. Family violence that occurred before the employment began is also covered.

While the legislation got it right in many ways, there is room for improvement, Denhardt says.

■ Not long enough. The number of days available for domestic violence leave has been criticised as insufficient. Two months of flexible working is also not long when family violence often affects every aspect of a person’s life. “In some cases, two months may be woefully inadequate, when one considers the time it often takes for family violence impacts to subside, or related issues such as child care,” Denhardt says. “It puts an employee in a position where they need to keep knocking on their employer’s door every two months, seeking to renew their arrangement.”

■ Workplace culture. Employees worry about their employment and wider career opportunities being negatively affected, despite the prohibition against this. “In order to ensure this does not deter employees from accessing these benefits, it is

crucial that workplace culture clearly demonstrates that employee wellbeing is a priority,” Denhardt says.

■ Safeguarding against breaches of privacy and confidentiality. The legislation does not deal with privacy and confidentiality issues, Denhardt says. “It is widely accepted that employees are not activating these entitlements for fear of their privacy being compromised. It is important that organisations update their policies so that they carefully contemplate and provide for how the exercise of these entitlements will be managed to maintain privacy and confidentiality as much as possible.” She suggests that ways to contain this information could include the use of leave being recorded as something other than ‘family violence leave’ and/or for leave records to be accessible to a restricted number of staff.

■ Element of proof. In the case of family violence leave, employers can request proof, which can be problematic for some victims, Denhardt says. “This is because family violence often takes place out of public view and so there is no proof beyond the victim’s word. Proof in the form of statements to police or medical reports may not be available, especially in cases where the abuse is predominantly psychological in nature.” The legislation does not prescribe what constitutes acceptable proof. However, if proof is not provided to the employer’s satisfaction, they can withhold pay, unless there’s a ‘reasonable excuse’. This will discourage some victims from exercising their right to family violence leave.

■ Lack of awareness. “It has been three years since the Act came into force, yet surveys and bodies of work suggest there’s still a real lack of knowledge about this type of leave,” Denhardt says. Ongoing education is needed, and the legislation would benefit from a requirement for this.

■ Casual employees not covered. The other issue, she says, is that whilst casual employees have the same entitlement to family violence leave, they may not qualify due to an ‘hours worked’ test.

Bereavement leave after miscarriage and stillbirth Another new law that benefits women and their partners is bereavement leave for miscarriages.

Continued on page 11

Mar 31, 2023 Issue 9

Continued from page 10

Thanks to the Holidays (Bereavement Leave for Miscarriage) Amendment Act 2021, women, their spouse/partner and people planning a child through surrogacy or adoption are eligible for up to three days’ bereavement leave for miscarriage. Previously, a stillbirth entitled a woman to bereavement leave, but miscarriage did not.

Ironically, some organisations were known to include pets in their bereavement leave policies but until the Act was passed, they had not considered or catered for miscarriage, Denhardt says.

“Often, women feel a sense of responsibility for the loss, or that they are not entitled to grieve an unborn child. This mandatory leave in some way acknowledges and validates their right to do so. The inclusion of a woman’s spouse or partner means they can be there to provide support, but also that they too can take the necessary time to properly grieve.”

Denhardt quotes Labour Minister Ginny Andersen who said in Parliament that women and their partners needed time to come to terms with the loss without having to tap into sick leave because the grief is not a sickness. “It is a loss and loss takes time,” Andersen said.

Now, miscarriage prior to 20 weeks and stillbirth after that time are treated the same. “It captures the whole duration of the pregnancy,” Denhardt says.

However, the critical area where the new amendment falls short is with pregnancies that end by abortion, although abortion was decriminalised in 2020.

“A distinction seems to be drawn between whether or not the pregnancy ends in an unplanned or a planned way,” Denhardt says. “The fundamental problem with the exclusion of abortion is that it has the effect of ‘grading’ the potential loss and grief suffered on the end of a pregnancy, depending on how

this occurred, despite the research clearly showing that the reason may have no bearing.

“This distinction certainly does nothing to promote reproductive autonomy which the abortion legislation aims to create. It cannot be denied, in my view, that this is discriminatory. It also serves to enliven the negative stigma sometimes linked to abortion.”

Andersen, who introduced the bill to Parliament, stated that she supported abortion being included.

“However, she had expressed that she was concerned that it might politicise the bill and was worried that it may not pass. So, it ended up being taken out quite explicitly,” Denhardt says. “‘The law should be amended. The cause of the end of a pregnancy should be irrelevant and should not need to be disclosed.”

The other area where the law falls short is the number of days available for bereavement leave following miscarriage. It’s 60 days in the Philippines, says Denhardt. “It’s woefully inadequate at three days here in the case of any death, not just miscarriage.”

Prostitution law reform Another law, albeit not as recent, that fails to protect some women in the way it should is the Prostitution Reform Act 2003, Denhardt says.

Prior to 2003, prostitutes didn’t have rights or protections, meaning they involved themselves in sex work at their own risk. They couldn’t, for example, require customers or clients to wear condoms, with unprotected sex being the norm and expectation on the part of the client.

That all changed with the 2003 Act, at least for citizens and resident sex workers. An on-going issue, Denhardt says, is the lack of protection for migrant sex workers as a result of s 19 of the Act. “[That] provides that it’s a condition of every temporary visa in New Zealand of any kind that the holder of that visa not provide commercial sexual

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services. In this way, sex work is not decriminalised for all but, rather, only for those who are citizens and residents, as migrant sex workers are prohibited from engaging in sex work without breaching their visa conditions.”

This leaves migrant sex workers open to exploitation. Being at risk of deportation, they are reluctant to report mistreatment. “Brothel owners, clients or customers have an awareness of this gap for migrant sex workers. And they can use this to their advantage because they know that there’s no consequence,” she says. That means forcing workers to have unprotected sex or do other acts they would otherwise not agree to if they weren’t at risk of being reported to authorities.

“The divergence in treatment between both groups means migrant sex workers are more disempowered, disarmed and exposed than they were before the Act was passed, achieving the opposite of its objectives when it comes to this group. Whilst citizens and residents are validated and empowered, migrants are invalidated and disempowered.”

Whilst Denhardt acknowledges that repealing s 19 would have implications for immigration processes, she says “it’s absolutely worthy of the work that will be required to mitigate the harm being caused to migrant sex workers as things stand.”

A petition was put before Parliament in June 2021 to repeal s 19.

Denhardt adds that the purported reason for this provision was to discourage human trafficking. Yet examples of human trafficking that hit the headlines are almost always in horticulture, not sex work.

She argues that this exclusion was created in the Prostitution Reform Act because of societal stigma and not to prevent human trafficking, which is already prohibited and effectively regulated under the Crimes Act. ■ To be continued in the 21 April issue of LawNews

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

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Cradle to Grave Conference 2023 The interface between trust, property and family law

Our annual conference in back and better than ever with new speakers, new venues and invaluable new content.

If you are a general legal practitioner or work in the areas of property law, family law, trusts, taxes, wills or estate planning, our Cradle to Grave conference is for you.

REGISTER ONLINE NOW

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Christchurch

Auckland

Livestream

Monday 22 May

Thursday 25 May

Thursday 25 May

Mar 31, 2023 Issue 9

Events Featured events

Connecting New Zealand lawyers

West Auckland Lawyers’ Lunch Wednesday 5 April 12 – 2pm The Falls Bistro, 22 Alderman Drive, Henderson, Auckland

Solicitor – Commercial Litigation Auckland CBD Minimum of 2 years’ PQE For almost 40 years our firm has developed and maintained a position at the premium end of the legal profession, providing specialist legal advice and counsel in civil litigation and commercial transactions.

Learn more

Hamilton Express Lawyers’ Lunch Wednesday 19 April 12.30 – 2pm The Bank Bar & Brasserie (Garden Bar), 117 Victoria Street, Hamilton Central Learn more

Wellington Express Lawyers’ Lunch Wednesday 10 May 12.30 – 2pm Dirty Little Secret, 54 Taranaki Street, Te Aro, Wellington

Our lawyers are all highly experienced, providing litigation and strategic advice to our commercial clients nationally and internationally. Our client base includes financial institutions, construction firms, manufacturers and distributors, travel companies, Māori commercial entities, body corporate and property management companies, accounting, and business advisory firms. We have a proud record of robust and effective litigation and commercial practice.

We offer candidates an exceptional working environment, autonomy, and an ability to spend time on their feet in court. The work is diverse, highly commercial, complex, challenging, and well suited to individuals who look to make a meaningful contribution to the matters they work on.

If you: • wish to further your skills as an advocate

Learn more

• have an excellent academic record

Upcoming

• genuinely love being a litigation lawyer and enjoy having client contact

May Newly Suited Fark Knows Quiz Night ADLS Annual Employment Law Dinner

• are interested in working on a wide range of commercial litigation

June

• are wishing to develop your own litigation practice

North Auckland Lawyers’ Lunch Tauranga Express Lawyers’ Lunch

events@adls.org.nz

Please email your application, including, cover letter, CV and academic transcript to: mareec@grovedarlow.co.nz adls.org.nz

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FEATURED CPD

FINAL NOTICE

CRIMINAL ALL LEVELS SEMINAR

Engaging with the media In Person | Livestream 2 CPD hours 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, freelance communications consultant

FINAL NOTICE

Selecting the correct ADLS loan and security forms

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

IN PERSON

Webinar 1 CPD hour Thursday 6 April 12pm – 1pm Price from $80 + GST Presenters Nicola Robertson and Lee Kerr, directors, Sanderson Weir Limited

LIVESTREAM

This webinar explains the soon-to-be updated suite of loan and security forms within ADLS WebForms, when and how to use them and how to avoid some of the common traps.

PROPERTY/COMMERCIAL ALL LEVELS WEBINAR

FIND OUT MORE

Sexual violence legislation updates CRIMINAL ALL LEVELS SEMINAR

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Livestream | In Person 2 CPD hours Thursday 20 April 4pm – 6.15pm Price from $140 + GST Presenters Julie-Anne Kincade KC, Blackstone Chambers; Elizabeth Hall, barrister, Pipitea Chambers and Samira Taghavi, barrister and practice manager, Active Legal Solutions

The changes to the Evidence Act 2006 introduced by the recent amendments to the Sexual Violence Legislation Act 2021 were controversial and are significant. Criminal defence lawyers must understand the implications of these changes and how to deal with them.

IN PERSON

LIVESTREAM

Mar 31, 2023 Issue 9

adls.org.nz/cpd

Work IT systems: how private is your personal information?

Webinar 1.25 CPD hours Wednesday 26 April 12pm – 1.15pm Price from $100 + GST Presenters Mihai Pascariu, partner, Hamilton Locke and Jennifer Murdoch, solicitor, Hamilton Locke

PRIVACY ALL LEVELS WEBINAR

cpd@adls.org.nz

09 303 5278

The webinar addresses the question of whether personal information on your work IT system remains private. It covers the practical ramifications of recent privacy decisions in New Zealand and overseas jurisdictions for both employees and companies, how personal information may be misused, the acceptance of the tort of “intrusion upon seclusion” in New Zealand and what a privacy policy should address to ensure adequate protection.

FIND OUT MORE

The Annual Property Law Conference 2023 PROPERTY ALL LEVELS CONFERENCE

In Person | Livestream 4.5 CPD hours Thursday 27 April 12.30pm – 5.30pm Price from $400 + GST Chair Tony Herring, partner, Gibson Sheat Lawyers

One of the leading property law conferences in New Zealand, this offers a unique opportunity for legal professionals to engage, connect and learn from the best minds in their area of practice. The programme is curated to give practical insights and guidance on key aspects of property law.

IN PERSON

Cradle to Grave 2023

In Person Christchurch & Auckland Livestream 7.5 CPD hours Monday 22 May & Thursday 25 May 8.15am – 6.30pm

LIVESTREAM

Cradle to Grave is our flagship conference for general legal practitioners, along with those working in property, family law, trusts, taxes, wills and estate planning.

Cradle to Grave is a unique opportunity for you to engage, connect, and learn from the best legal minds in your area of practice.

Chair Bill Patterson

GENERAL PRACTICE ALL LEVELS CONFERENCE

FIND OUT MORE 15

PROPERTY LAW

How a tenancy can go horribly wrong The tribunal can only make orders which relate to a breach of the tenancy agreement or an order the High Court could make in relation to contracts

16

Sally Lindsay A landlord falsely accused by her tenant of being a regular cannabis user has failed in a Tenancy Tribunal damages claim for $2,000.

The landlord told the tribunal she has been defamed and traumatised by Anne Louisa Mary Haviland and feels she will not be able to rent the premises again.

Haviland claimed the smell of the drug or drugs the landlord used every day and night permeated her apartment. “I have owned my own medical practice so I know what Cannabus [sic] smells like. This is unacceptable behaviour of a landlord and has impacted on my (sic) greatly,” she told the tribunal.

The allegation arose when Haviland emailed her landlord, wanting to terminate the year-long fixed-term tenancy early because she had found another rental.

Her flat and the landlord’s bottom floor unit each had a separate door off the front-door foyer. During her dispute with the landlord, Haviland had the front door lock changed so nobody else could get into the building.

At the time of the drug allegations, the landlord was in the UK and strenuously denied the tenant’s claims. She obtained a drug test which was negative. She also appointed an agent to look after the property and gave Haviland the details.

On 29 April last year, Haviland emailed the agent saying they had not been to the premises. “So you cannot make statements saying that [the landlord/s] is not dependent on drugs (or do you do drugs as well?) You are an unreliable source of information.

Whereas I am the one that has been living here, breathing in her ‘shit’ day and night and her putrid toxic body smell at night when she sleeps. Which is sickening.”

Haviland emailed the agent again on 1 May, saying “it seems you are not able to handle this situation property (sic) and in a straightforward democratic manner. As I have seen in the past, your inability to handle any situation but in (sic) except in an agitated, not wanting to do anything as it should be, and just not by thinking normally, as a drug dependent person does.”

Six days later, Haviland emailed the landlord, saying she would not agree to meet with the agent nor was the agent permitted to come into the premises and that “also there is my health and safety to consider, as the agent has shown to me in writing that she is biased and aggressive towards me.

“If she is as close a fried (sic) to you as what you say, then I can only come to the conclusion that the agent takes drugs as often as yourself. They doe (sic) say that Cannibus [sic] ‘fry’s the brain’. Therefore I will not met (sic) with her at any time and on any basis.”

At the end of May, the agent went to the premises with two police officers, because of concerns about Haviland’s behaviour, to pick up the landlord’s mail but could not get in.

In June, the landlord filed an application with the tribunal claiming among other things $2,000 in general damages on the basis of emotional stress and anxiety due to unsubstantiated claims from the tenant and exemplary damages for the lock change.

Haviland filed a tribunal claim on 1 July, wanting a refund of the bond, a refund of $27,027.64 paid in rent because the flat didn’t have a fire escape and was dangerous, and exemplary damages in relation to drug use by the landlord and because the washing machine was too small.

After complaining about the fire escape to Auckland Council, the tenant was told the premises complied with the Building Act and no further action would be taken.

During the tribunal hearing, Haviland’s only evidence about drug use by the landlord was that she “could smell cannabis”.

Tribunal adjudicator R Woodhouse said in his view that was weak evidence. “The tenant has not given evidence of seeing the landlord use cannabis, she has also not presented qualifications which would lead me to conclude the tenant would have sufficient expertise to be able to reliably confirm an odour was cannabis.”

He found the allegations unsubstantiated and said having observed the landlord at two hearings, he accepted she had been severely impacted by the tenant’s actions.

Despite this, Woodhouse said that did not mean the tribunal could order damages for the landlord.

“The tribunal can only make orders which relate to a breach of the tenancy agreement or an order the High Court could make in relation to contracts. In this case there is no term in the tenancy agreement which required mental satisfaction of the contract, so as to be a basis to make any order.”

Haviland failed in all her claims and was ordered to pay the landlord $3,984 for rent arrears, exemplary damages for changing the lock, carpet cleaning and replacing a light fitting. ■

Mar 31, 2023 Issue 9

WILL INQUIRIES

Commercial and Property Solicitor +- 3 years’ PQE

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

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PULLEN Donald Patrick Whakapae

• Late of Pakuranga, Auckland • Machine operator • Married • Aged 55 / Died 24’01’23

• Late of 104 Buchanans Road, Hei Hei, Christchurch • Married • Factory worker • Aged 64 / Died 29’09’22

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STUURMAN Lodewijk Theodorus • Late of 16 Holt Avenue, Torbay, Auckland • Retired carpenter • Aged 89 / Died 24’12’21 TAYLOR David Ian

• Late of 13 Calcite Avenue, Flat Bush, Manukau, Auckland • Widow • Aged 67 / Died 11’04’21

• Late of Blockhouse Bay, Auckland • Married • Retired • Aged 75 / Died 12’02’23

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WALTER Helen Louise

• Late of 14A Meliora Place, Avondale, Auckland • Married • Retired • Aged 54 / Died 26’01’23

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