NEWS May 13, 2022 Issue 14
Inside ■ CONTRACT LAW
New bill loosens restraints of trade P05-06
■ AUSSIE ELECTION
Is there a leader in the House? P10-11
Passed at last: the new
UNIT TITLES adls.org.nz
Amendment Act
Contents 03-04 GOVERNANCE OWNERSHIP INTENSIFICATION
A users’ guide to the Unit Titles Amendment Act
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
05-06 EMPLOYMENT COMPETITION PROTECTION
Restraint of trade bill goes into the ballot
Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz
08-09 CO-GOVERNANCE CONFLICT POWER
The problems with ‘tweaking’ democracy
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 FEATURED CPD
14
Photo: Eerik / Getty Images
CPD IN BRIEF
Write for LawNews LawNews welcomes commentary and opinion pieces from ADLS members and readers. We ask that contributions are civil in tone, factually correct, well-written and logically argued – and fewer than 800 words. And we won’t publish anonymous commentary. Any questions, please email the editor at: Jenni.McManus@adls.org.nz
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: Henryk Sadura / Getty Images
02
May 13, 2022 Issue 14
PROPERTY LAW
What the new Unit Titles Amendment Act means for apartment owners Unit titles are not just about ownership or a type of tenure but also about how people live and work together Photo: Boy_Anupong / Getty Images
Thomas Gibbons
As New Zealanders move towards greater intensification in the way they live and work, the law must also move to keep up
The changes
The amendment Act does a number of things (references are to sections as amended). The passing of the Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Bill into law, with the ■ It allows for a utility interest to be a single interest or a multiple Royal Assent on 9 May 2022, represents a major step forward in set of interests – s 39(2B). While utility interests are still building a more sophisticated legal framework for apartment living. painfully difficult to change, allowing this flexibility is a positive step. ‘Apartment living’ and ‘unit titles’ are not phrases that do justice to the topic. As the title of the amendment Act indicates, a key ■ It aims to clarify the extent of unit owners’ rights and theme is governance. Unit titles are not just about ownership or a responsibilities, through amendments to ss 79-80. type of tenure but also about how people live and work together, ■ It sets an obligation for a body corporate to keep records in make decisions, regulate each other, resolve issues – and what bills order to allow disclosure information to be provided – s 84. they pay. ■ It locks in the right of an owner or committee member to But the issues are not just financial: they are about individual attend a meeting by audio-visual means – s 88. autonomy, communal interests and how people work through ■ It clarifies that an owner must be paid up to be part of the issues of right, wrong and in between. quorum – s 95. It has taken a long time to get to this point. Even before the ■ It clarifies – fortunately – that a proxy may call a poll – s 99. Unit Titles Act 2010 was passed, technical and policy issues were ■ It clarifies that matters at a body corporate meeting are to identified. be decided by ordinary resolution unless the matter has been Many of the technical issues have been resolved through earlier delegated or requires a special resolution – s 101. This clarifies amending legislation in 2013 and 2017, but the policy issues have the position from case law. only grown in importance as more and more New Zealanders come ■ It allows for a vote to be in person, by proxy or electronically – to live in this type of title. ss 102 and 103A. There have been stops and starts at a political level and while ■ It clarifies that a matter to be decided by special resolution it’s not perfect, most lawyers who interact with the legislation will be breathing a sigh of relief that it has finally got through the Continued on page 04 parliamentary process. 03
Continued from page 03
■ ■ ■
■
■ ■
■
■
■
■
04
cannot be delegated – s 108. It defaults to the body corporate chairperson and committee chairperson being the same person – s 112A. It requires a committee to have an agenda for each meeting and to keep written records of meetings and decisions – s 113. It requires the committee members to comply with a code of conduct. There is an obligation on committee members to disclose conflicts of interest and for an interests register to be kept: ss 114A – 114F. A definition of ‘body corporate manager’ has been added, being a person employed or engaged to undertake record-keeping, financial and/or regulatory compliance services. Each manager must have a written agreement and disclose any conflicts of interest. The manager must also comply with a code of conduct – see ss 114G – 114J. A decision not to have a long-term maintenance fund must be confirmed annually – s 117. The original owner’s obligations in relation to service contracts have been recast and extended to signage agreements. Contracts longer than 24 months are subject to additional compliance requirements – s 139. The disclosure provisions have been extensively written. Fortunately, both pre-contract disclosure and pre-settlement disclosure have been retained. Additional disclosure has also been abandoned through the repeal of s 148. There is an express ability for a purchaser to delay settlement or cancel if pre-contract disclosure is not provided properly, though notice and an opportunity to remedy must be given before these rights are exercised. Further, there are restrictions on the circumstances in which the cancellation remedy can be exercised: the seller may state that the information is incomplete or incorrect as full information could not be found; or the incomplete or inaccurate information may not have substantially reduced the benefit or increased the burden on the buyer; or the seller may provide the missing or incorrect information before cancellation. The emphasis on benefits and burdens may be hard to show in practice but it arguably brings unit titles disclosure within the broader field of contractual remedies and helps avoid issues arising on purely technical grounds: see ss 146, 149, and 149A. Rights to delay settlement or cancel for issues with presettlement disclosure have also been rewritten. Settlement may be delayed or the agreement cancelled following notice and an opportunity for the seller to remedy the failure to properly disclose: ss 151 – 151A. Additional compliance obligations have been placed on large unit title developments: those with 10 or more principal units.
A large development must have a body corporate manager unless there is a special resolution otherwise, and must have a 30-year long-term maintenance plan. ■ The jurisdiction of the Tenancy Tribunal has been increased to $100,000 and (reflecting that costs issues often have their challenges) detailed provisions have been added as to reasonable legal costs: s 176AAA. ■ The tribunal has also been empowered to make pecuniary penalty orders where a body corporate manager has intentionally and unreasonably breached certain duties. A body corporate may also be subject to such an order in some instances: s 176A – D. ■ New provisions as to ‘improvement notices’ have been added to help to remedy or prevent a contravention of the legislation – s 176E – I. The tribunal also exercises oversight of improvement notices. ■ The powers for MBIE to require copies of documents or to inspect a unit title development have been beefed up – s 202A – F. There are also changes to the regulations though there is an argument these could have been done separately as regulation changes do not need parliamentary time in the same way.
Comment These changes are generally to be welcomed: they help New Zealand move towards a more mature unit titles environment. Issues of disclosure, governance and conflicts of interest get close attention from Australian researchers and legislatures: it is disappointing they have often received less attention here. Not everyone will be satisfied with the changes. There are those who wish proxy farming had been more tightly regulated; there are those who consider the disclosure provisions impractical or even unworkable; and there are those who want fines and penalties extended to owners in a greater way. Getting the amendment Act into law is a great step in the right direction. But reform should not stop. As New Zealanders move towards greater intensification in the way they live and work, the law must also move to keep up. Even good law can’t resolve every neighbourly issue but good law can at least provide a framework for constructive resolution of issues. Put simply, the changes are very much to be celebrated but there is more to be done. ■ Thomas Gibbons has a special interest in body corporate law and is the author of Unit Titles Law and Practice ■
There have been stops and starts at a political level and while it’s not perfect, most lawyers who interact with the legislation will be breathing a sigh of relief that it has finally got through the parliamentary process
May 13, 2022 Issue 14
EMPLOYMENT LAW
Restraint of trade private member’s bill ready for the parliamentary ballot If an employee could leave and take the firm’s clients with them, this could have unintended consequences, including a reluctance to support staff to develop those relationships and have access to clients and opportunities
bill onto the agenda. At its heart, restraint of trade (RoT) clauses involve anti-competitive behaviour, she says, which Act and other parties are against. Workplace Relations and Safety Minister Michael Wood and other caucus colleagues are supportive. “I’m just thrilled to see this in the biscuit tin,” she says. “I think, you know, it’s just a really important thing. And when I came to Parliament, this is the one I had my heart set on.” Susan Hornsby-Geluk
Diana Clement As foreshadowed in her maiden speech when she entered Parliament at the 2020 election, employment-lawyer-turnedLabour-list-politician Helen White has drafted her Employment Relations (Restraint of Trade) Amendment Bill. Prepared with the help of Labour minister and former trade union official Andrew Little, the private member’s bill aims to restrict restraint of trade provisions in employment agreements that have the effect of shackling low-paid workers to their current employers. The bill, if it eventually makes it into law, would amend the Employment Relations Act 2000 to: ■ provide that restraints of trade have no effect wherever an employee earns less than three times the minimum wage; ■ limit the use of restraints to those situations where the employer has a proprietary interest to protect; ■ require employers to pay half the employee’s weekly earnings for each week that the restraint of trade remains in effect; and ■ limit the duration of restraints of trade to no more than six months. The bill is not intended to limit or affect the common law duties of confidentiality and fidelity, White says. It will now go into the parliamentary biscuit tin and, if drawn out, could go through the legislative process and become law. White says she is seeking support from the other side of the House – specifically from the Act Party, which would leapfrog the
Helen White
Chilling effect But Susan Hornsby-Geluk, managing partner of employment law firm Dundas Street, says while the intent of the bill is good and restraints of trade are often taken too far, it could have a chilling effect on business. “The intent of the bill in restricting the use of restraints of trade is sound. These types of clauses are commonly included as standard terms in employment agreements and the implications of them are often not discussed,” she says. “The candidate is full of optimism about their new employment and is not focused on what happens when the relationship ends. It is also awkward for prospective employees to question their new employer about these clauses at the beginning of the relationship because this might be seen as demonstrating a lack of commitment to the job.” Hornsby-Geluk says it seems wrong to prevent people from using their skills and experience to seek new employment so restraints which seek to stop a person from working for a competitor should be closely scrutinised. “I also agree with the provision in the bill that restraints should be used only for well-paid employees and in circumstances where there is a legitimate proprietary interest to protect. They should not be allowed to be relied on simply to stop an employee leaving to go to work for a competitor when there is no particular confidential or proprietary information that they have which could be used to damage the business interests of their previous employer.” But the bill goes too far, she says, where it seeks to render unenforceable restraints on employees poaching clients and staff. “This could have a chilling effect on businesses. Take a law firm, for example. Ideally the partners share clients and encourage lawyers to develop strong and direct relationships with clients,
Continued on page 06 05
Continued from page 05 supported by the partners and the business. “If an employee could then leave and take the firm’s clients with them, this could have unintended consequences, including a reluctance to support staff to develop those relationships and have access to clients and opportunities.” She says it does not seem unreasonable for a business to seek to protect its clients and staff from being poached. “This does not stop an employee from resigning to work for a competitor but it ensures a fair balance between the interests of both parties. For this reason, I think the bill needs to be pulled back.”
Fair and reasonable RoT clauses are common in employment agreements. They prevent employees from working in their field, in the vicinity or for a competitor for a certain period of time after their employment has ended. The clauses are often used without much thought being given to whether they are reasonable in the circumstances or to the consequences for the employee, the employee’s family or for the competition, White says. Employers know that 90% of people will abide by the clauses even if they are not enforceable. Low and medium-paid workers don’t challenge them because they can’t afford to take three or six months off before going to another job if their employer enforces a restraint of trade. “The poorer the worker, the less likely they are to be able to take their case to court,” White says. “Most suffer in silence. That really worries me. That is behaviour that just isn’t fair on hardworking New Zealanders.” White says employers, lawyers, unions (which don’t allow RoTs in collective agreements) and the public often don’t see the harm these clauses can do. When workers remain in their jobs for fear of an RoT clause, it depresses wages across the board. It also stifles innovation. Clauses stopping employees from jumping ship to a competitor are more common than most people think, she says. Even MBIE has a restraint of trade clause as an option in its standard employment agreement builder tool. “It is in the public interest that lower-paid employees should be free to take a job with a competitor for more money or better conditions, or to use their skills to start their own business,” White says. RoT clauses hit the headlines during the drafting process when television journalist Tova O’Brien was held to one by former employer Discovery NZ. Media interviews White gave on the subject led to a range of stories being recounted to her. “For example, one advocate wrote to me to say he was really shocked to see employment agreements with penalties if relatives got a job with a competitor. 06
It does not seem unreasonable for a business to seek to protect its clients and staff from being poached
“And I was interested in some of the stories I heard in the media about people feeling that they left that job on a sour note, even though it had actually been a very positive job.” Employers assume that they [own] the goodwill generated by employees, she says. “I think in a modern world what we have to offer our society is often in our heads. It is actually really important [that] we start to think about whether this is the right balance, whether we shouldn’t be sharing those things and whether they all come from an employer.” The provision limiting RoT clauses in the bill to employees earning more than three times the minimum wage is designed to put a damper on the current situation where even baristas can be subject to RoT clauses. “It means that if you really think that somebody is supervaluable to your business because they have all these connections with customers, then pay them well.”
Consideration Similarly, another key provision is the requirement for employers to pay separate consideration when RoTs are enforced. “You have to pay for every second month of employment in the restraint period,” White says. “There’s a maximum of six months. That will really sharpen the minds of people who want restraints as to how valuable they are.” Whether the clauses will be retrospective, if passed, is still up for discussion. “That will definitely be something that the select committee would have to think about and decide upon. But I don’t think you could have it so that restraints that were already in place existed forever. My submission would be [that] you’d have to come up to the standard [that] is in the bill within a timeframe.” White says she managed to include everything she wanted in the bill and, as an added bonus, Little proposed limiting RoTs to six months, which was not in her original plan. The drafting process, she says, was an eye-opener for those involved. “Because we don’t collect the data on individual agreements, they’re all confidential. It was one of those things I don’t think people had noticed as much as you’d expect. “It was news to a lot of people that the restraints were often 12 months or even two years.” Another surprise to some of those involved was tricky clauses which had fallback options should the first restraint failed. White is especially pleased with the three-times-minimumwage restriction because it won’t need revisiting whenever the minimum wage rises. “That was my way of doing this in a private member’s bill without a complete rewrite of [the Act]. Unsurprisingly, White expects debate at select committee, should the bill make it that far, to be around this issue. “There will be arguments about groups that feel it’s too harsh in their particular sector. I think we may get some interesting access-tojustice submissions about the way that it’s been for people who’ve had a restraint and have tried to challenge that restraint.” ■
May 13, 2022 Issue 14
Briefs Landonline e-dealings Toitū Te Whenua Land Information New Zealand says from 30 May 2022 property lawyers can prepare Notices of Change of Ownership (NoC) for Auckland Council within Landonline e-dealings. Benefits of using NoC include improved data accuracy (data is entered only once), time savings (fewer clicks) and improved timeliness of notifications. It also means councils have better data quality. For more information, here is a short video demonstration or check out the Landonline help page. The new ‘Add NoC’ button is on the bottom right of the screen when you prepare relevant instruments.
Former ADLS president dies Former ADLS and NZLS president Ian Haynes ONZM died on 27 April at the age of 85. A property law expert, Haynes practised in this area for more than 60 years, much of this time at Dentons Kensington Swan. He was also a Judicial Conduct Commissioner. ■
Family Law New Plymouth, Taranaki
▪ Unique opportunity for career progression and a lifestyle near the beach. ▪ Leading and highly experienced law firm in New Plymouth. ▪ Ideally 1+ year PQE, but graduates are welcome to apply and may be considered.
Senior Commercial Lawyer – Partnership Opportunity With our longstanding Senior Commercial Lawyer retiring we are looking to replace her as soon as possible. We are seeking a Senior Lawyer able to undertake residential and commercial conveyancing; trust and estates; company law; generally advising and all such associated type of work. A substantial salary is available to the correct person commensurate with ability and experience. No overtime or weekend work required. Definite early partnership opportunity is available. Cash incentive lump sum for successful candidate will be considered. Parking on premises, only 16 minutes from City Centre. Contact Bruce Dell: Bruce Dell Law Phone: (09) 570 5036, Email: bruce@brucedell.co.nz
New Plymouth was named the most liveable city, for a population between 75,000-150,000, by the International Awards for Liveable Communities. Learn more about the Taranaki region here. Connect Legal Taranaki is a progressive and growing full-service law firm based in New Plymouth, Taranaki. Our dynamic and busy family law team deals with varied and challenging work. When you join us you are welcomed into a friendly, approachable and highly experienced supportive team with a great sense of humour. We are seeking someone who can focus under pressure, with practical problem-solving attributes. We offer ongoing professional development, training, mentoring and social activities. We think work-life balance is important so you can get out and enjoy our awesome local lifestyle. We would love to hear from solicitors with a genuine interest in Family Law or graduates, either pre or post admission, who have a desire to build a successful career in Family Law. Applications close: 03 June 2022 Please email your cover letter, CV to Patti Wolsbauer pattiw@connectlegal.co.nz Ph 06 769 8080, 136-138 Powderham Street, New Plymouth www.connectlegal.co.nz
07
CONSTITUTIONAL LAW/OPINION
‘Tweaking’ democracy: political change needs majority support to endure Chris Trotter
Not even its steadily declining level of voter support – as registered in the latest opinion polls – has persuaded Labour that it isn’t only the Rotorua District Council (Representation Arrangements) Bill that requires ‘pausing’, but the whole co-governance project
strength. Most particularly, the idea that progressive people and their progressive projects constitute islands The political drama surrounding of rationality and good-will in a sea of the Rotorua District Council deplorable ignorance and prejudice. (Representation Arrangements) To advance a progressive agenda Bill may soon be going on tour – it is, therefore, necessary to back it up nationwide. with power. In the absence of a gunAt the heart of the play is a tightChris Trotter toting Native American revolutionary, knit group of well-meaning Pakeha, the progressives’ weapon of choice is working hand-in-glove with local Māori a political apparatus under their control. to right the wrongs of the past and deliver on the And this, in real life, as in the movie, is where things promises of te Tiriti by any means necessary. Standing athwart the road to justice are the local politicians and begin to come unstuck. As one movie critic noted townspeople of Rotorua. And, behind them, the entire of Billy Jack: “I’m also somewhat disturbed by the colonisation project. central theme of the movie. Billy Jack seems to be Wait a minute – I’ve seen this movie before. More saying the same thing as [Laughlin’s earlier movie] years ago than I care to calculate, I sat in Wellington’s BornLosers; that a gun is better than a constitution in old Paramount Theatre and watched Billy Jack. the enforcement of justice.” Written and directed by Tom Laughlin (1931-2013) who Now, it is rather difficult to look upon Rotorua’s also took the starring role, the movie had acquired mayor Steve Chadwick as a gun-toting revolutionary, something of a cult status among the politicised youth but no one can dispute her mastery of standing orders. of the early 1970s. From the very beginning, this former It isn’t hard to see why. Billy Jack has it all. Native parliamentarian’s quest to change the ‘representation Americans versus white supremacists; radical arrangements’ of her district council has been intellectuals versus rednecks; peace and love distinguished by a dextrous handling of the processes of democratic deliberation. versus violence and hate. Most of all, however, the Lacking her experience and familiarity with movie has a compelling – almost mystical – hero. the parliamentary processes of central and Billy Jack is a Vietnam vet who has seen through local government, the opponents of this alwayshis government’s lies. He is also a crack shot, a black controversial plan to even-up the voting power of belt, speaks quietly under a steely gaze and kicks the Māori and Pakeha councillors had rings run around asses of the reactionary townsfolk who try to shut them by the mayor and her allies. down the ‘Freedom School’ run by Jean, his paramour. Radio New Zealand’s account of the latest Funded by the National Student Film Corporation, the movie was, unsurprisingly, a bona fide hit on America’s contretemps, sparked by the mayor’s determination revolutionary campuses. to discuss Attorney-General David Parker’s As a movie, Billy Jack hasn’t aged all that well. But damning judgment against the Rotorua District the ideas that informed it have gone from strength to Council (Representation Arrangements) Bill in 08
secret, precipitated the angry resignation of one of Chadwick’s councillors and loud protests from others. It was a masterclass in procedural leadership from the Chair, every bit as ruthless and effective as Billy Jack’s well-placed karate kicks. The problem with these tactics is that from the point of view of persons unschooled in the arcane arts of parliamentary manoeuvre, they all-too-easily come across as a high-handed attempt to stifle free and open debate. But, being in command of the political apparatus and knowing how to use it can advance a radical agenda only so far. Without the majority support of those it touches, political change cannot endure. In the absence of popular consent, top-down reforms remain fragile and temporary. Perhaps the most startling aspect of the Labour government’s roll-out of the co-governance agenda is its lofty disregard for the opposition it is generating. Not even its steadily declining level of voter support – as registered in the latest opinion polls – has persuaded Labour that it isn’t only the Rotorua District Council (Representation Arrangements) Bill that requires ‘pausing’, but the whole co-governance project. In this respect, co-governance has a lot in common with Rogernomics. In the second term of the fourth Labour government it was not uncommon for Labour MPs to tell Labour Party branch members that they would rather be voted out of office than heed their demands for an end to the government’s free-market reforms. So certain were they of their economic policies’ rectitude that the Rogernomes were willing to see
Continued on page 09
May 13, 2022 Issue 14
Continued from page 08
their party torn apart rather than negotiate a durable compromise. The principle of co-governance shows every sign of having enthralled Labour’s caucus as completely as neoliberalism. To call a halt to the roll-out of the Three Waters project or the Māori Health Authority might be politically expedient but it would also be, in the judgment of many Labour MPs, morally repugnant. It’s as though Labour is determined to enact these changes, no matter how unpopular, and then dare National and its allies to repeal them. In the case of Rogernomics, such sacrifice was nowhere near as noble as it appeared. Labour MPs knew that what they had built, National was not of a mind (‘decent societies’ notwithstanding) to dismantle. Indeed, in relation to the trade unions and social-welfare spending, they were confident that Jim Bolger’s government would go much farther than Roger Douglas ever dared. Which moves me to wonder whether Labour knows something the rest of us don’t. Perhaps it is convinced that against the staunch opposition of the nation’s senior public servants – seconded by the nation’s professors and newspaper editors – National will not be willing to follow through on its promises to roll back Labour’s co-governance reforms. When all is said and done, co-governance seeks to unite the elites of the Māori and Pakeha worlds under the aegis of a Crown freed from even vestigial democratic constraints. A conservative party’s dream, one might almost say. Except, such an outcome would entail imposing
and freedom from discrimination are fundamental the will of a minority upon that of the majority which, constitutional principles in Aotearoa New Zealand. as the people of South Africa will attest, is not an easy “No New Zealander should be asked to accept thing to do – or keep doing. that, by virtue of their birth, they The Rotorua District Council are less worthy than any other. And (Representation Arrangements) Bill’s It’s a though the chances that if they are asked, sponsor, Tamati Coffey, may talk Labour is they will agree, are vanishingly small, about ‘tweaking’ democracy; Māori because to do so is to surrender Development Minister Willie Jackson determined their dignity as a person. may happily proclaim the arrival of to enact these “As it states in the Universal a version of universal suffrage that changes, no Declaration of Human Rights, no longer permits ‘the tyranny of matter how the majority’; and even the Deputy ‘Article 1: All human beings are born Prime Minister, Grant Robertson, free and equal in dignity and rights. unpopular, may consider it acceptable to ‘adapt’ They are endowed with reason and then dare core democratic principles to ensure and conscience and should act National and its “better outcomes for Māori” but it is towards one another in a spirit of highly unlikely that the rest of the brotherhood.’ allies to repeal country will concur. “No ifs, no buts, no exceptions.” them The only thing worse than the Like the kids in the ‘Freedom School’, tyranny of the majority is the tyranny Labour’s MPs have allowed of a minority. themselves to be convinced that Such a state of affairs has proved the ‘townspeople’ are their sworn to be a bridge too far for even that most staunch enemies, whose evil intentions can be thwarted only defender of te Tiriti o Waitangi, Dame Anne Salmond. by Billy Jack’s politically correct violence. But even In her eyes, the true fulfilment of the treaty must Tom Laughlin understood that force alone resolves never be construed as a permanent partnership of nothing. His movie ends in negotiation, sacrifice and Māori and Pakeha elites overseen by the Crown. On reconciliation. the contrary, its promises point to universal equality As one tin soldier rides away – in handcuffs – and a continuation of the radical democratic spirit political reality reasserts itself. Separation and conflict that characterised the political life of Māori before can never be the answer. Not for Billy Jack. Not for colonisation. Labour. Not for any of us. ■ Writing for the Newsroom website on 2 May 2022, Dame Anne makes her position crystal clear: Chris Trotter is a political commentator and The Attorney General’s intervention is timely, with writer of more than 30 years’ experience. He is his reminder that the rights to equal representation the author of the Bowalley Road blog ■
NEW TITLE
The Law of Costs in New Zealand Authors David Bullock, Tim Mullins The Law of Costs in New Zealand will help lawyers and judges to reduce errors on costs matters, improve the quality of their arguments and promote agreement by reducing misconceived costs disputes that ought to be resolved without judicial intervention. Using the civil costs regime established by the High Court Rules as a starting point, the book then goes on to examine costs in the appellate and inferior courts, criminal cases, and in arbitrations.
Price for ADLS members $117.39 plus GST* Price for non-member lawyers: $130.43 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz.
09
Where can Australians find strong political leadership? James Walter In troubled times, people look for strong leaders – men and women who offer decisive action to address collective problems and promise the capacity to deliver. They initially present as larger-than-life characters and we’ve had our share of them: Robert Menzies, Gough Whitlam, Bob Hawke, Paul Keating and perhaps Kevin Rudd. The dual problems of the pandemic (with its tail of economic problems) and of the destabilisation of the international order, with the rise of an assertive China and the outbreak of war in Europe, have provoked a crisis mentality in which the demand for such leadership is intensified. But when one ponders the daily newsfeed of the election campaign and the record of the past three years, the results are dispiriting. Each of the major parties is spraying cash at carefully targeted demographic sectors and seats. Neither is showing leadership in addressing the budget problems that portend a horror budget after the election. The one-man band that was Scott Morrison in the 2019 campaign has failed to deliver and he is trying to run the same campaign in different circumstances. The cautious superintendence of a small-palette agenda by Anthony Albanese has led many to castigate its lack of ambition. The major parties are in decline and neither appears capable of delivering the big ideas needed for current challenges. Consider Morrison’s claim to the mantle of strong leadership. If one rates him against John Howard – not a larger-than-life character but certainly a strong leader – Morrison fails to measure up. Howard had a rocky first term but demonstrated the courage of his convictions early with gun law reform, despite opposition from the National Party and many in rural constituencies. He ran a disciplined cabinet, and persisted with the economic reforms introduced by Labor but adapted them to his own purposes, building a coherent policy 10
Scott Morrison
program. He made the brave decision to introduce a goods and services tax (GST) and never introduced a new policy measure without showing how it aligned with specific liberal values, rather than waffling about ‘Australian’ values. He carried his party with him, regularly visiting party branches to talk with and listen to members. He could rightfully claim that whether people agreed or disagreed with him, they knew who he was and what he was about. The result: eventually he ‘owned’ the party. Now Morrison, too, has had a difficult first term, with challenges not of his making. But there has been no courageous decision, and certainly not the will to challenge the way in which he has been held hostage by the National Party and its costly demands. Morrison has been reactive rather than proactive: rarely thinking long-term, but preoccupied with the immediate. He has failed to see crises coming or imagine what his role in addressing them should be. The overwhelming impression is that there is nothing of substance behind the ‘ScoMo’ persona. And it is a canker that has spread throughout the government as the paucity of policies now on offer demonstrates.
What, then, of the Labor Party? Anthony Albanese is not a big personality, like Hawke or Keating, nor an adept media operator like Rudd or Morrison. He is not a dominating figure on the campaign trail, although he managed to outfox Morrison in both leaders’ debates so far. In having been careful not to present a big target, open to the demolition Morrison visited upon Shorten, he has disappointed the Labor faithful. To take one instance, the party has had three years to address a factor thought to be integral to Labor’s loss in 2019: its disregard of the impact of its climate transition policies on the communities most affected. Its failure since to prosecute the case for the transition to renewables as presenting opportunities and growth is inexcusable. It has now done so in a detailed and costed policy proposal, but too late: those front-line communities think neither party has done enough to explain any advantage that will offset the disappearance of jobs so long central to their economies. Maybe the same might be said of the Labor policies now presented: they are modest, and beg questions about how they might be afforded. But they promise to take action on and responsibility for real problems in health, aged care, the energy transition and jobs, gender pay equity, manufacturing and housing affordability. Unlike the Coalition’s policy program, Labor’s relies on substantiating research and represents a start that might in the right circumstances be built upon. Still, Albanese and his team will have their work cut out to convey these messages when few are paying attention. Perhaps we need finally to be looking for different leadership capacities. Julia Gillard, after all, did not present as a strong leader in 2010 relative to Rudd in 2007. Yet, despite having to negotiate in a minority government, being belittled and demeaned by Tony Abbott and his colleagues, incrementally undermined by some within her own ranks, and continually under assault in some media quarters, she was the closer on much that Rudd left unfinished, achieved the only workable emissions-reduction scheme we have had to date, and passed more legislation than any other administration, not all of which the Coalition has
Continued on page 11
Photo: Sam Mooy / Stringer / Getty Images
AUSTRALIAN ELECTION
May 13, 2022 Issue 14
Continued from page 10
subsequently been able to reverse. At Albanese’s campaign launch, journalist Katherine Murphy noted he was modelling a different style of leadership: He’s not a powerful orator […] He didn’t seek to dominate the room: he sought connections in it, looking for faces, connections, cues[…] [without] the hallmarks of toxic masculinity. Rather than a set jaw, there’s an incline of the head, a gesture of listening – a physical glance at humility. This brings to mind John Bew’s marvellous biography of Clement Attlee. In the 1945 British election, the Tories and some in his own Labour Party ranks assumed that Attlee – a diminutive, unassuming man they called “a sheep in sheep’s clothing” – would be overpowered by the venerated war leader Winston Churchill. Yet Attlee prevailed and then presided over a transformation of British society that has led to Bew arguing persuasively that he was Britain’s greatest peacetime prime minister. Might Albanese be Australia’s own Attlee? ■ James Walter is Emeritus Professor of Political Science at Monash University ■ The above was first published by The Conversation and is republished with permission
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
ADLS, PO Box 58, Shortland Street,
DX CP24001, Auckland 1140
Fax: (09) 309 3726
( 09) 303 5270
CLARK Keith
ROSCOE Joshua Liam Fox
• Late of Beachhaven Hospital, Beachhaven, Auckland • Never in a legal relationship • Retired factory worker • Aged 78 / Died 20’02’22
• Late of 12 Greenlane Road, East Remuera, Auckland • Single • Company director • Aged 25 / Died 03’04’22
GRAY Scott Duncan
Registered legal Registered Legal Executiveexecutive are ageneral small general practice located in the centre of Henderson, We are We a small practice located in Henderson, looking for a looking for a full time experienced registered legal executive with at full-time experienced registered legal executive with at least 3 years’ least 3 years’ experience to join our team. experience to join our team.
• Late of 3390D Kaipara Coast Highway, Glorit, RD 4, Warkworth • De facto relationship • IT specialist • Aged 51 / Died 22’02’22
The ideal person will have excellent communication skills, be able to
The ideal person will have excellent communication skills, be able work autonomously, take pride in their work and have a strong to workattention autonomously, to detail.take pride in their work and have a strong attention to detail. This person will have experience in the following areas:
This person will have experience in the and following areas: including due Conveyancing (both residential commercial) diligence, • Conveyancing (both residential and commercial) including Landonline and Webforms, due diligence, Estates, • Landonline andEnduring WebForms, Wills and Power of Attorneys, and • Estates, Trusts. • Wills and enduring powers of attorney, and If you think you could be a good fit for our team, please send your CV • Trusts. and a covering letter in confidence to the Principal
This space could be yours
at pteei@teeilaw.com If you think you could be a good fit for our team, please send your CV andReferences a coveringare letter in confidence the Principal at roles that essential – with twotoreferees from recent must be able to be contacted by telephone and email required. pteei@teeilaw.com
LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.
References aresmall essential – with referees from rolesavoid thatthe Join our friendly teamtwo in Henderson, workrecent locally and must betraffic. able to be contacted by telephone and email are required.
Get your message in front of them.
Join our small friendly team in Henderson, work locally and avoid the traffic.
Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz
11
FEATURED CPD
New reporting requirements for domestic trusts TRUSTEES REPORTING RULES
Webinar 1.5 CPD hrs Wednesday 25 May 4pm – 5.30pm Presenters Stephen Tomlinson, principal, Tomlinson Law and Geordie Hooft, director, Hooft Consulting Ltd
Most domestic trusts required to file income tax returns must also comply with new reporting rules enacted under urgency and with no prior consultation with stakeholders. Gain an understanding of the new rules and an insight into Inland Revenue’s operational approach to them, making it easier to comply and to minimise their impact. Chair Bill Patterson, managing partner, Patterson Hopkins
FIND OUT MORE
Harm and revenge in digital communications
Webinar 1.5 CPD hrs Monday 30 May 1pm – 2.30pm Presenter David Harvey, retired District Court Judge Chair and commentator Arran Hunt, partner, Stace Hammond
Aimed at deterring, preventing and mitigating harm caused to individuals by digital communications and giving victims quick and efficient redress, the Harmful Digital Communications Act (HDCA) has been law for almost seven years. But how well is the legislation working and is it meeting its stated purposes?
OFFENCES CASES ENFORCEMENT
FIND OUT MORE
Lessons from Lyttle DISCLOSURE COSTS INSIGHTS
Webinar 1.5 CPD hrs Tuesday 7 June 4.30pm – 6pm Presenter Christopher Stevenson, barrister, Pipitea Chambers (David Lyttle’s lawyer) Chair and commentator Julie-Anne Kincade QC, Blackstone Chambers
When did you last make a costs application in a criminal case? Based on the recent Court of Appeal judgment in R v Lyttle [2022] NZCA 52, this webinar will look at the prosecutorial failings in that case and the learnings for any party involved in criminal and regulatory prosecutions.
FIND OUT MORE 12
May 13, 2022 Issue 14
adls.org.nz/cpd
The deportation process
In Person | Livestream 2 CPD hrs Wednesday 15 June 4pm – 6.15pm Presenters Richard Small; Deborah Manning; Bernard Maritz and Terri Thompson
cpd@adls.org.nz
09 303 5278
As our borders re-open, deportations will resume. Refresh your knowledge with practical guidance and insights into the process from the perspectives of counsel, INZ Compliance and MBIE Legal. Chair Stewart Dalley, partner, D&S Law
PRACTICAL GUIDANCE PROCESS
IN PERSON
LIVESTREAM
International family law conference – NEW PROPERTY MAINTENANCE PARENTING
In person | Livestream 5.75 CPD hrs Thursday 16 June 9.15am – 4pm Presenters Margaret Casey QC; Ewan Eggleston; Isaac Hikaka; Jennie Hawker; Calina Tataru; Inger Blackford; Zandra Wackenier and Duncan Holmes.
Personal effectiveness online workshop (June)
The conference will explore the key issues of property, maintenance and parenting, with a focus on trans-Tasman proceedings and with insights into some other jurisdictions. Chair Simon Jefferson QC, Trinity Chambers
IN PERSON
Online Workshop 4 CPD hrs Monday 27 June 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams
PERFORMANCE SKILLS DEVELOPMENT
LIVESTREAM
Reflecting on your goals for this year? Are you performing at your peak? Coming to grips with how to be effective working virtually? Due to popular demand, this workshop is being held again in June. Facilitated by a leading high-performance consultant, it will provide personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. Limited spaces available.
FIND OUT MORE 13
CPD IN BRIEF
Conflict of laws – NEW
Developments in consumer law
Overseas investment
Webinar 1.5 CPD hrs Tuesday 14th June 1pm – 2.30pm Presenters Maria Hook, associate professor, Faculty of Law, University of Otago and Jack Wass, barrister, Stout Street Chambers
The authors of The Conflict of Laws in New Zealand will provide a framework for dealing with cross-border problems and discuss issues challenging the law in the field of jurisdiction, statutes and enforcement of foreign judgments. The webinar will interest advisers and litigators in civil, commercial and family law who come across cross-border issues.
Livestream | In Person 2 CPD hrs Thursday 23 June 4pm – 6pm Presenters Brigette Shone, special counsel, Russell McVeagh and Charlotte Fleetwood-Smith, consumer law specialist, Russell McVeagh
Are your clients prepared for significant changes in this area of law? Consumer law has been a moving feast of legislative and case law developments in the past 12 months. Significant changes to the Fair Trading Act come into force on 16 August 2022 with the unfair contract terms regime extending to business-to-business or “small trade” contracts and a new statutory unconscionable conduct regime being introduced.
Webinar 1.5 CPD hrs Thursday 30 June 12pm – 1.30pm Presenters Pedro Morgan; Lael Kim and Andre Baldock, all from the Overseas Investment Office
This webinar covers the overseas investment regime as it applies to the types of residential property purchases legal practitioners are most likely to encounter.
FIND OUT MORE
IN PERSON
LIVESTREAM
FIND OUT MORE
Not just another trusts webinar
Webinar 1 CPD hr Thursday 7 July 12pm – 1pm Presenter Tammy McLeod, director, Davenports Law Limited
Your client may think they need a trust, but in fact what may best meet their needs might well be something else. This webinar will look at when a trust should and should not be used, and what succession planning alternatives might be better suited to the client’s circumstances.
FIND OUT MORE
Class and Funded Litigation: Knowing your Professional Obligations Tuesday 31 May | In Person | Livestream | 2 CPD hours Visit adls.org.nz for more information.
14
May 13, 2022 Issue 14
Hoops, Hooks and Hurdles for Trustees: New Reporting Requirements for Domestic Trusts Wednesday 25 May | 4.00pm - 5.30pm Webinar Gain an understanding of the new reporting rules enacted under urgency and an insight into Inland Revenue’s operational approach to them, making it easier to comply with the rules and to minimise their impact.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
5.75 CPD Hours
NEW - International Family Law Conference Thursday 16 June | 9.15am - 4.00pm In Person | Live Stream The sessions in this conference will explore the key issues of property, maintenance, and parenting, with a focus on trans-Tasman proceedings and with insights into a range of other jurisdictions.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
15