NEWS Jul 15, 2022 Issue 23
Inside ■ INSURANCE
The brewing row over genetic testing P05
■ OPINION
How legal services might be regulated P06-07
How the US Supreme Court
adls.org.nz
IS NEVER FAR FROM POLITICS
Contents 03-04 CONGRESS JUDICIARY CONSTITUTION
SCOTUS: A long history of courting controversy
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
05 BAN PREDICTIVE GENETICS
Can insurers assess risk without access to genetic tests?
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 LICENSING CONDUCT REGULATION
Controversial and coming soon: a new conduct regime for insurers and banks
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
10-11 EVENTS
12-13 Photo: Doug Menuez / Getty Images
FEATURED CPD
14 CPD IN BRIEF
Write for LawNews LawNews welcomes commentary and opinion pieces on the NZLS discussion document on the regulatory and future structure of the profession. Please contact the editor to discuss your contribution to the debate. Submissions close 12 August.
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: joe daniel price / Getty Images
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Jul 15, 2022 Issue 23
CONSTITUTIONAL LAW
Photo: China News Service / Contributor / Getty Images
How the US Supreme Court has never been far from politics
Although deciding the meaning of the constitution makes up a small proportion of the court’s work, the principles involved are often so crucial and so divisive that these are the cases which most often make the headlines
Mourners lay flowers for Justice Ruth Bader Ginsberg on 19 September 2020
Emma Long
A court dominated by southern slaveholding justices ruled in Dred Scott v Sandford that the constitution never intended to extend citizenship to people of African descent
The US Supreme Court is in the news because a series of decisions which are already having – and will continue to have – a massive impact on the lives of ordinary Americans. The Dobbs v Jackson Women’s Health Organization ruling gathered the most coverage, hardly surprising for a decision which overturned Roe v Wade and ended national protection for accessing abortion services after 49 years. But the day before, on June 23, the court also expanded the right to publicly carry weapons, in the aftermath of two mass shooting events and the passage of the first federal gun control legislation since the 1990s. It has also fundamentally reinterpreted the relationship between church and state, by lowering what has for decades been described as the “wall of separation” between the institutions of government and those of the church. Holding that excluding religion from government consideration discriminates against people of faith, the ruling makes even more religion in public life possible. The court also restricted the power of federal agencies to take actions not explicitly handed to them by Congress.
It held that the Environmental Protection Agency, a national government body, cannot regulate carbon emissions from coal-fired power plants. This could severely restrict US president Joe Biden’s climate change agenda if states are no longer bound by strict carbon emissions limits. In all of these cases the three conservative justices appointed by former president Donald Trump (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) were in the majority, with the court’s three liberals (Stephen Breyer, Sonia Sotomayor and Elena Kagan) in the minority. The court sits at the top of the nation’s legal system. On the lower level are the trial courts, those who initially hear cases, often with a jury. Then there are a level of appeals courts which hear challenges to the result or the procedure followed by the trial court. Each state then has its own Supreme Court, responsible for interpreting state laws and constitutions. If, however, a case involves federal law or the US constitution, the document which created and governs the system of government, the parties may appeal to the Supreme Court. The chances of cases reaching the Supreme Court are small. It is asked to review more than 8,000 cases every year and accepts only around 60-70 of those. Since 1925 the nine justices who make up the court have held the power to decide which cases they hear. Cases must meet certain criteria: they must pose a substantial question of federal (national) law; there must be a genuine dispute; and there must be a legal remedy that falls within the power of the court. Understanding the court often means understanding why it took a particular case at a particular moment in time.
Holding Congress to account Judicial review is the term given to the court’s power to review legislation that potentially conflicts with either federal law or the constitution, including any of the 27 amendments
Continued on page 04 03
Photo: The Washington Post / Contributor / Getty Images
Continued from page 03 made since it was originally written. Among the most significant are the rights to freedom of religion, speech and press (first amendment), the right to bear arms (second amendment), and the right to silence (fifth amendment). Article III of the constitution implies the power of judicial review, since it states the powers of a supreme court shall extend to disputes under the constitution and the laws of the nation. Those who wrote the constitution hoped to ensure the court could act as a check and a balance on the other government branches. They were fearful of creating an overly powerful central government similar to that of Britain, against which they had just fought a revolution Judicial review was firmly established in an 1803 case, Marbury v Madison. There, the then chief justice, John Marshall, declared that not only was the constitution superior to all other ordinary legislation, but when there was doubt about whether laws were in conflict with constitutional provisions it was the court’s role to adjudicate. “It is emphatically the province and duty of the judicial department to say what the law is,” Marshall wrote. The modern power of the court dates from this decision. And, although deciding the meaning of the constitution makes up a small proportion of the court’s work, the principles involved are often so crucial and so divisive that these are the cases which most often make the headlines.
Inside politics The court has never been far from the major political issues of the day. Marshall pushed the court towards support of greater federal power at the expense of the states, one of the fundamental questions shaping the new nation. In the middle of the 19th century, when the nation was riven by the question of slavery, a court dominated by southern slave-holding justices ruled in Dred Scott v Sandford that the constitution never intended to extend citizenship to people of African descent. The ruling deepened the tensions that led to the American Civil War. Half a century later, in another decision widely condemned today, the court ruled that it did not violate the constitution to have “separate but equal” public services based on race, in this instance railroad carriages. This effectively gave legal sanction to the “Jim Crow laws” that would keep the southern states segregated until the court reversed itself in Brown v Board of Education in 1954. And, in the mid-1930s, as Congress and the then president, Franklin Roosevelt, sought to address the economic crisis of the Great Depression with a legislative programme known as the New Deal, a conservative court repeatedly struck down core programs until a shift in 1936 saw the justices reverse this course. Shortly afterwards a series of retirements allowed Roosevelt to appoint new justices who were more 04
Chief Justice John Roberts welcomes one of the court’s new recruits, Justice Amy Coney Barrett
sympathetic to his legislative program. But especially in the period known as the “rights revolution” from the late 1950s through to the early 1970s, the court extended constitutional protections to unpopular and marginalised minorities otherwise ignored or hurt by legislatures. Jehovah’s Witnesses, Seventh-Day Adventists and other religious minorities benefited from the court’s broad readings of the first amendment’s protections for “free exercise” of religion. The court also expanded protections for those in the criminal justice system, including the right to silence and the right to a lawyer, both considered basic in today’s society. It ensured access to contraception for married and then single women, protected many of the gains won by the civil rights movement and ensured fair practices in voting. In more recent years the court has also found a constitutional right to same-sex marriage and held that the 1964 Civil Rights Act protects LGBTQ+ workers from discrimination. The Supreme Court is not inherently liberal or conservative, progressive or dogmatic. As an appeals court it can respond only to the cases brought before it, and those reflect the politics, culture and temperament of the times. The court is the product of its time and the people who constitute it at any given moment. It is shaped by individuals, usually lawyers, appointed by the sitting president when a justice retires, or dies. As such, it is never entirely removed from the political process. It has been both benefit and hindrance to the US. It has protected and trampled the rights of minorities, expanded and limited the power of the federal government, resisted and encouraged social change. The current controversies are not new. The court has been at or near the centre of national debates since its founding. Its role as a branch of government and the power of judicial review ensure it will continue to be part of controversies large and small for decades to come. ■ Emma Long is an associate professor of American History and Politics, University of East Anglia ■ The above was first published in The Conversation and is republished with permission
Half a century later, in another decision widely condemned today, the court ruled that it did not violate the constitution to have “separate but equal” public services based on race, in this instance railroad carriages
Jul 15, 2022 Issue 23
INSURANCE
Should insurers have access to customers’ predictive genetic test results? Assessing risk is critical for an insurer to set the right premium at policy commencement for life and health cover, and if risks cannot be fully assessed, policy exclusions or an overall increase in premiums may be required
Andrew Horne
Andrew Horne & Olivia de Pont Patient advocates in New Zealand are calling for a ban on insurers accessing predictive genetic test results. Those advocates say that allowing insurers to access such genetic information would disincentivise people from having the tests, meaning they may lose the opportunity of taking additional screening tests that would identify issues or preventative treatment. Those in favour of a ban also point out that several countries have introduced partial or total bans on insurers accessing predictive genetic test results and say New Zealand law is out of step with the rest of the world. Is this a good idea? One problem with a ban is the risk of antiselection. In other words, high-risk consumers who know they are genetically predisposed to certain illnesses will be more likely to purchase life and/or health cover. There will then be an information disparity and insurers, without access to the same information available to the consumer, may not be able to price the risk accurately. Assessing risk is critical for an insurer to set the right premium at policy commencement for life and health cover, and if risks cannot be fully assessed, policy exclusions or an overall increase in premiums may be required. An argument could also be made that disclosure of predictive genetic test results could provide an opportunity for health insurers to help their customers reduce their health risks by funding preventative treatment. Insurers’ access to predictive genetic test results is therefore
Olivia de Pont
a complex issue, and one which, surprisingly, does not appear to have received significant attention as part of the current insurance contracts review. As discussed in New duties, higher penalties and fewer revenue streams: Brokers and the ICB, a draft Insurance Contracts Bill was offered for consultation earlier this year. The submissions MBIE received as part of this consultation included one advocating for a ban on insurers using predictive genetic test results in making underwriting decisions. It remains to be seen whether MBIE will pick this up and make any changes to the draft bill. If MBIE does consider it appropriate to introduce a ban in some form, it will likely have regard to the regimes currently in place in the United Kingdom or Australia, and perhaps those in Canada and the United States. Even if MBIE does not pick up on this issue as part of the Insurance Contracts Bill, calls for a ban are likely to increase as the use of predictive genetic tests becomes more widespread. Insurers should keep a close eye on overseas developments in this area, and on the status of calls for change in New Zealand.
Overseas approaches Several countries have imposed limits upon insurers’ ability to access predictive genetic test results. If reform is considered in New Zealand, regard will likely be had to these.
Australia Our closest neighbour, Australia, does not have a legislative ban on insurers using predictive genetic test results, but there has been a moratorium in place since 2019. This applies to life insurance policies with a sum insured of up to A$500,000, and means consumers do not have to disclose an adverse genetic test result or take a test when applying for life insurance. Life insurers can still request information about genetic test results where life insurance is sought with sums insured greater than: ■ A$500,000 of lump sum death cover; ■ A$500,000 of total permanent disability cover; ■ A$200,000 of trauma/critical illness cover; and ■ A$4,000 a month in total of any combination of income protection, salary continuance or business expense cover.
Continued on page 15 05
OPINION
How lawyers might be regulated: a response to the NZLS discussion document William Mohammed In 2021, the New Zealand Law Society (NZLS) commissioned an independent review of whether its current arrangements for regulating and representing lawyers and legal services are fit for purpose. It was prompted, in part, by concerns about the suitability of the complaints model, the culture and diversity of the legal profession, the powers available to NZLS to deal with unacceptable behaviour and whether a membership body such as the NZLS should also be responsible for regulating the legal profession. In June 2022, the Independent Legal Review Panel released a discussion document to the profession. The scope is broad. This piece briefly responds to some of the matters raised within that document.
The dual regulatory and representative role of NZLS Sections 65 and 66 of the Lawyers and Conveyancers Act 2006 prescribe the regulatory and representative functions of the law society. Representation means what it says. Regulation can be divided into two core aspects: ■ Disciplinary: investigating, making findings about and enforcing matters of conduct and discipline; and ■ Compliance and administration: issuing practising certificates, providing a public-facing register of lawyers, setting and auditing CPD and acting as a point of contact for the profession. 06
The regulatory system is not effectively triaging complaints, clogging it up and slowing it down. This leaves all involved in limbo and hangs a Sword of Damocles over practitioners
There is also the question of who The discussion document describes ought to regulate lawyers, if not NZLS. the potential for tension between Whatever the regulatory body is, it will NZLS’ dual representative and require lawyers to appear as counsel advocacy functions: for those before it, provide it with ■ The democratic nature of the law expert evidence where necessary, and society means those in office may (at least in part) fulfil an adjudicative be disincentivised from taking function (an imperfect cure for decisive and strong action to William Mohammed allegations of conflict). Retired judges change the status quo; could play a role, but in this respect ■ There are clear resourcing issues two issues arise: plaguing the regulatory function of NZLS. Those in elected office may be disincentivised from ■ First, retired judges would not bring with them the raising practising fees to meet resourcing specialist expertise of recent experience in requirements; and practice; and ■ This dual function may present an unmanageable ■ Second, there is an important constitutional conflict, weakening both its regulatory and distinction between the regulation of lawyers advocacy functions (a “jack of all trades, master of by judges as officers of the court, and otherwise none”). as professionals by NZLS. This distinction ought to In my view, these dual roles are compatible. The remain. above points rest, at least in part, on a false (and Finally, NZLS’ scope as an advocacy body will always overly cynical) assumption. Lawyers – like the public be diluted by its generality. The law is an incredibly – have an essential interest in a strong, ethical and diverse profession and one well served by myriad credible profession. Colleagues who fall short of the specialist and regional organisations (including under expected standards do all members of the profession the NZLS umbrella). While all lawyers share a baseline a disservice and ought to be dealt with appropriately. level of common interest, beyond that there is a sharp Furthermore, the credibility of NZLS as an advocacy divergence. Criminal legal aid lawyers, for example, share vastly different interests to conveyancing group will be bolstered if it takes decisive action solicitors or corporate in-house counsel. NZLS’ to respond to issues of conduct and diversity, and broad scope and membership base better explains by those campaigning for elected office expressly confronting any cultural, behavioural or resourcing issues. The current structure allows NZLS to show it Continued on page 07 can walk the walk and put its money where its mouth is.
Jul 15, 2022 Issue 23
Continued from page 06
(on a systematic level) a perceived lack of effective advocacy by NZLS than does a conflict of interest arising from its dual function.
Improving the current regime Notwithstanding, improvements could be made to the current regulatory regime. The system is not effectively triaging complaints, clogging it up and slowing it down. This leaves all involved in limbo, and hangs a Sword of Damocles over practitioners. On a macro level, complaints made to NZLS about practitioners may be divided into two categories: ■ those about discipline, behaviour or fundamental obligations; and ■ those about service, fees, representation and quality. Complaints about the latter are distinctly different to the former; they do not relate to fundamentals of integrity or character which directly go to whether one is fit and proper to practise law. Many complaints in the latter category might arise due to a clash of personalities or communication styles between a lawyer and his or her client, cultural misunderstandings, unrealistic expectations or simply due to a disappointing performance by the lawyer. There is scope for NZLS to fulfil a restorative or arbitrative role in such situations in lieu of a formal Standards Committee process. This could include liaising with the client and/or the lawyer and advising the client of their options. This would not require any findings to be made, nor would it be resource-
intensive. It could also incorporate cultural practices to or due to relevant medical issues (as is the case in some other professions). cater for the needs of all consumers, including Māori and Pasifika. Regulatory scope A sensible solution would be to adopt a triage system to assess incoming complaints to determine The Independent Review discussion document whether they merit a full Standards Committee referral also raises the issue of whether other “unregulated or are better dealt with by a restorative or arbitrative providers of legal services” should face greater process. This would represent regulation. This might include a more purposive approach There is scope for NZLS non-lawyer police and in many cases, and one which probation prosecutors, and to fulfil a restorative or employment advocates. makes best use of limited resources. It would not be appropriate arbitrative role in lieu The slow and formal to bring the regulation of nonof a formal Standards Standards Committee lawyers within the purview of Committee process process, which is reactive and NZLS. Its role is to regulate operates akin to conviction lawyers, not everything legal. and sentence, may not always Broadening the regulatory address the complaint or the needs of an aggrieved purview of NZLS will only exacerbate the issues under consumer, nor address issues with practitioners ripe discussion. for remedy. As to the appropriateness of non-lawyer advocates This approach could also be adopted in appearing before the courts, that is a matter for the conjunction with Standards Committees being judiciary. From a consumer perspective, however, Part given the power to impose temporary conditions or 2 of the Lawyers and Conveyancers Act 2006 could supervision on practitioners who are consistently be enhanced to require non-lawyer providers of legal subject to meritorious service-level complaints. services to proactively disclose that they are not The goal of the process should be to proactively lawyers. ensure the competency of practitioners to assist them Conclusion to remain in the profession and to protect consumers of legal services. The Independent Review is a valuable opportunity for Such practitioners may benefit from temporary all lawyers to contribute to this important discussion. supervision or conditions on practice, as would the Submissions close at 5pm on 12 August 2022. ■ public. Conditions and supervision requirements William Mohammed is an Auckland barrister and could also apply to practitioners who return to the a member of the ADLS Criminal Law committee profession after a significant period out of practice, ■
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Price for ADLS members $172.17 plus GST* Price for non-member lawyers $191.30 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.
07
FINANCIAL SERVICES
New culture and conduct regime for banks and insurers Jenni McManus For the first time in New Zealand, legislation has been passed that will bring registered banks, licensed insurers and non-bank deposit takers under a statutory conduct regulation regime. The Financial Markets (Conduct of Institutions) Amendment Act – commonly known as COFI – will bring these entities into a principles-based fair conduct regime, designed to manage and monitor the risk of poor conduct and deliver good outcomes to customers. The genesis of the legislation was in the outcomes of two reviews, done by the Financial Markets Authority (FMA) and Reserve Bank of insurers and registered banks in 2018-19. These, in turn, were promoted by the findings of the Australian Haynes Royal Commission into misconduct in banking, superannuation and others in the financial services market which uncovered headline-grabbing instances of egregious misconduct and greed, including the charging of bank fees to dead customers. Here in New Zealand the findings of the two reviews were nowhere near as colourful. But they did uncover a poor understanding of good conduct within the banking and insurance sector and a culture where insurers did not consider themselves responsible for bad customer outcomes. Nonetheless, many told the regulators they were confident there were no significant conduct and culture issues within their businesses. The COFI legislation was the result. The bill received the royal assent late last month and is expected to come into full effect in early 2025. But it did not enjoy unanimous support as it passed through the House, with both National and Act saying it would simply add to the “avalanche” of legislation and compliance that is confronting the 08
financial services sector. Along with COFI, the sector also must comply with FSLAA (the Financial Services Legislation Amendment Act) which also imposes conduct and client-care obligations on financial services providers and requires them to be licensed by the FMA. Insurers are facing compliance with a new Insurance Contracts Bill which, among other things, introduces far-reaching changes around disclosure and risk. And the Reserve Bank is midway through a review of the Insurers (Prudential Supervision) Act 2010. Alongside these legislative changes, the FMA is seeking compliance with its cybersecurity regime and has a consultation document in the market about a plan to require investment advisers to be able to demonstrate the advice they give on IPOs (initial public offerings) and listed equities is reasonable. The FMA is also targeting “greenwashing” (the making of false or misleading claims about the ethical standards applied to investments) and the wholesale investment market. So, is there an element of overkill? Bell Gully says an estimated 90% of businesses registered on the Financial Services Providers Register (FSPR) will not be expressly subject to the COFI regime. And it says there is a risk that COFI may create an uneven regulatory playing field where “some institutions will be subject to a wide-ranging conduct and licensing regime while others providing the same service will not.” Bell Gully says there is considerable overlap of COFI’s fair conduct principles and duties with existing conduct requirements in the Credit Contracts and Consumer Finance Act (CCCFA), FSLAA and the Financial Markets Conduct Act (FMCA). Nevertheless, other commentators say New Zealand has been an outlier when it comes to
Gone are the days of conferences at five-star hotels in exotic locations, with a holiday tacked on at the end
imposing a conduct regime upon the financial services sector. COFI introduces a conduct licensing regime by the FMA for retail banks and insurers. Financial institutions will be required to set up, maintain and monitor effective fair conduct programs that put customers at the centre of their businesses and treat them fairly. But during consultation on the bill, the financial services sector had one important win. In the first draft, the government charged insurers with the responsibility of training, managing and monitoring the intermediaries, such as brokers, who sell their products. There was significant push-back from the industry which argued that insurers could not be held responsible for the conduct and culture of intermediaries which were third-party, independent businesses. Such a move could have unintended consequences, the government was told, as it would encourage intermediaries to restrict the number of insurers they dealt with to limit the number of conduct regimes with which they had to comply. The requirement was dropped in the final version of the bill but the government will still have the last word. Intermediaries and brokers will be subject to regulation, yet to be drafted by MBIE, requiring them to support an insurer’s compliance with the fair conduct regime. Commerce and Consumer Affairs Minister David Clark says he is also determined to use regulation to tackle the vexed issue of commissions and other incentives, saying the new rules will probably relate to commissions based on value and volume. However, in this area the industry has largely cleaned up its act. Gone are the days of conferences at five-star hotels in exotic locations, with a holiday tacked on at the end. As one adviser puts it, “Insurers now treat everybody the same, regardless of whether they’re super-stars or not.” ■
Jul 15, 2022 Issue 23
Briefs Supreme Court in Auckland The Supreme Court is shifting its hearings to Auckland next month in a move the Chief Justice says reflects the importance of making the country’s highest court more accessible to the public. “Seeing the court in action and hearing the arguments as they are made helps foster a deeper understanding of the work of the court,” Chief Justice Dame Helen Winkelmann says. “Sitting in Auckland provides the opportunity for interested members of the public, the profession and law students to see how we operate.” The court will sit between 15-17 August in the main courtroom of the Auckland Environment Court. The case being heard is Michael John Smith v Fonterra Co-Operative Group Limited and will be livestreamed. The case concerns whether causes of action in public nuisance, negligence or a proposed new tort of breach of duty may be maintained against enterprises whose activities emit substantial volumes of greenhouse gases. The Auckland sitting was originally planned for 2021 but rescheduled because of covid-19.
Criminal Defence Lawyers Are you passionate about criminal law? Ever thought about a career with the Public Defence Service? The Public Defence Service is looking for experienced lawyers to join our committed and professional teams located in our 10 offices across the country. We are seeking expressions of interest at all levels, from junior lawyers who have at least 12 months’ criminal litigation experience, through to senior lawyers with PAL 3 or PAL 4 approval, or the ability to obtain these levels! The Public Defence Service (PDS) provides high-quality legal advice and representation in a full range of criminal cases. Aimed at helping people access justice, the PDS promotes the values of respect, integrity, service and the delivery of excellent service to its clients.
Sexual violence workshop ADLS President and Convenor of the ADLS Criminal Law committee, Marie Dyhrberg QC, and senior criminal barrister Samira Taghavi will join a small group of senior lawyers, judges and police in Wellington on 23 July for a workshop to discuss how the pre-recording of cross-examination of sexual violence complainants might work. Though opposed by many senior criminal barristers, partly on grounds that it is unworkable and will add further delay to already-clogged court schedules, the controversial move was included in the Sexual Violence Act 2021 which became law in December last year. Arranged by the Ministry of Justice and the Judicial Advisory Group, the workshop is intended to ensure pre-trial matters, including disclosures and applications for propensity issues, are all addressed before the pre-recording hearing takes place. Dyhrberg says the move will be “catastrophic” in terms of backlogs in courts that are “already swamped”. ■
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Events Hamilton lawyers’ lunch Hosted at Iguana Bar & Restaurant on Wednesday 6 July. It was great to see everyone at the first Hamilton lunch of the year. Thank you to our sponsor MAS for your continued support.
Tom Jarman and Bailey Robertson
10
Andrew Hong and Jamie Blackburn
Michael Talbot, Marie Dyhrberg QC and Joe Donald
Georgia Watts and Sophie Newman
Hannah Espin and Akeem Iyanda
Jul 15, 2022 Issue 23
Featured events
Connecting New Zealand lawyers
Rotorua lawyers’ lunch Wednesday 27 July 12.30pm – 2pm Ambrosia Restaurant, 1096 Tutanekai Street, Rotorua Sponsored by MAS
Upcoming August
Date to be confirmed | Tauranga lawyers’ lunch
September
Wednesday 28 | Takapuna lawyers’ lunch
Learn more
Soon to be added: Henderson lawyers’ lunch Thursday 11 August 12.30pm – 2pm The Grounds, 8-14 Henderson Valley Road, Henderson, Auckland Sponsored by MAS
October | Wellington lawyers’ lunch November | New Plymouth Sundowner November | East Auckland lawyers’ lunch November | Tauranga Sundowner December | Northland lawyers’ lunch
Learn more
Hawke’s Bay lawyers’ lunch Wednesday 17 August 12.30pm – 2pm East Pier Hotel, 50 Nelson Quay, Ahuriri, Napier, Hawke’s Bay Learn more
Christchurch lawyers’ lunch Wednesday 24 August 12.30pm – 2pm Dux Central, 6 Poplar Street, Christchurch, Canterbury Learn more
Book Here
events@adls.org.nz
adls.org.nz
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FEATURED CPD
Property rights and data ISSUES CASES INSIGHTS
Webinar 1.5 CPD hrs Thursday 28 July 1pm – 2.30pm Presenter David Harvey, retired District Court judge
Possession is said to be nine-tenths of the law, but how does this work with digital data? With reference to key cases from New Zealand and overseas about property rights and data, this webinar will provide insights into this increasingly common and complex area of law.
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The role of lawyer for child INSIGHTS PERSPECTIVES EXAMPLES
Seminar | Livestream 2 CPD hrs Thursday 4 August 4pm – 6.15pm Presenters David Amodeo, barrister; Vao Muller, barrister; Sonya Singh, barrister and Craig Walker, service manager Family Court coordinators, District Courts, Ministry of Justice
IN PERSON
Giving perspectives from those in the role, the judiciary and the ministry, this seminar will provide key insights into what the role is (and is not), the statutory framework and the balancing act required when considering the child’s views and his or her welfare and best interests. Chair Judge Antony Mahon
LIVESTREAM
The law and the wellbeing of tamariki FRAMEWORK JURISDICTION MECHANISMS
Seminar | Livestream 2 CPD hours Thursday 18 August 4pm – 6.15pm Presenters Judge Sharyn Otene; Alison Cleland, senior lecturer, AUT and Anthony Dickson, principal advisor, Oranga Tamariki Chair Judge Emma Parsons
Providing an understanding of the context and nature of legislation around the care and wellbeing of children, this seminar will help lawyers better comprehend – and perform − their role in this crucial area.
IN PERSON 12
LIVESTREAM
Jul 15, 2022 Issue 23
adls.org.nz/cpd
‘Court’ by forensics workshop
Workshop 4 CPD hrs Saturday 20 August 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd
cpd@adls.org.nz
09 303 5278
During this practical hands-on workshop, you will interact with a forensic practitioner and fingerprint expert in a purpose-built crime centre to learn about the workings of major crime scenes and chain-of-evidence procedures. Very limited spaces available.
UNIQUE PRACTICAL USEFUL
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Drafting complex wills SKILLS PRACTICAL EXCELLENCE
Workshop 3.5 CPD hrs Tuesday 23 August 9am – 12.45pm Facilitators Henry Stokes, general counsel, Perpetual Guardian and Theresa Donnelly, legal services manager, Perpetual Guardian
Led by two facilitators immersed in wills and asset planning and known for their practical aproach, this workshop will give you the confidence to deliver real value to your clients. Limited spaces available
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Dealing with media
EMBARGOES INTERVIEWING JOURNALISTS
Webinar 1.5 CPD hrs Tuesday 30 August 4pm – 5.30pm Presenters Jenni McManus, journalist and LawNews editor; Brenda Newth, PR consultant and Samira Taghavi, barrister and practice manager, AM Legal
Have you ever had a microphone shoved in your face when entering or emerging from court? If you were asked for an ‘off the record’ comment, how would you react? What is the effect of an embargo? Chair Marie Dyhrberg QC
FIND OUT MORE 13
CPD IN BRIEF
Choosing a business structure
Leading your career
Livestream 2 CPD hrs Wednesday 31 August 4pm – 6pm Presenters Bevan Miles, partner, Chapman Tripp (tax); and Greer Fredricson, special counsel, Chapman Tripp (corporate and commercial)
Wellington workshop 8 CPD hrs Tuesday 13 September 8.45am – 5pm Facilitators Miriam Dean QC and Liz Riversdale, Catapult
Knowing your clients’ business needs, coupled with a good understanding of the legal and tax features of common business structures, are key to advising clients on the best structure for their business. This seminar looks at a range of common options.
Chair Andrew Lewis, principal, Andrew Lewis Law
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This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career. Places are limited. Register now to avoid missing out.
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New Incorporated Societies Act
Livestream | In Person 2 CPD hrs Tuesday 27 September 4pm – 6.15pm Presenters Mark von Dadelszen, barrister and Joanna Pidgeon, director, Pidgeon Judd
This seminar will provide an update on the new Incorporated Societies Act 2022 and will include practical scenarios from those at the coalface.
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International family law conference
In Person | Livestream 5.75 CPD hrs Thursday 10 November 9.15am – 4pm Presenters Ewan Eggleston; Isaac Hikaka; Jennie Hawker; Calina Tataru; Margaret Casey QC; Inger Blackford; Zandra Wackenier and Duncan Holmes
Increasingly, family law matters involve one or more international aspects. This conference will explore the key issues of property, maintenance and parenting. The focus will be on trans-Tasman proceedings with insights into other jurisdictions. Chair Simon Jefferson QC
IN PERSON
‘Court’ by Forensics Workshop Saturday 20 August | Albany, Auckland | 4 CPD hours Visit adls.org.nz for more information.
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LIVESTREAM
Jul 15, 2022 Issue 23
Continued from page 05 This moratorium is due to expire in 2024 and it is unclear whether or not it will be renewed or replaced with a legislative regime. Australian health insurers do not risk-rate individuals; premiums are instead charged on the basis of community ratings. Accordingly, the results of predictive genetic tests are not relevant for their underwriting decisions and on the status of calls for change in New Zealand.
Canada and the USA The regimes in place in Canada and the United States are less likely to inform any reforms that may be considered in New Zealand due to the different environment in which insurers, particularly health insurers, operate. However, some consideration may be given to: ■ the Canadian legislation, which is the Genetic Non-Discrimination Act 2017. This prohibits insurers from using genetic test results without an individual’s written consent; and ■ the Genetic Information Non-discrimination Act (2008) which prohibits US health insurers from using genetic information to make coverage or rating decisions. It does not apply to life insurance, disability insurance or long-term care insurance although some individual states have legislated to limit genetic discrimination in life insurance. For example, Florida has enacted a genetic privacy law that prohibits life insurance companies from cancelling, limiting or denying coverage and from setting different premium rates based on genetic information.
United Kingdom The approach taken in the United Kingdom is similar to that in Australia, but applies beyond life insurance, presumably because health insurers do not apply community ratings. The approach taken in the United Kingdom may therefore be more relevant for New Zealand if reform is considered. A moratorium was first put in place in 2001, which was replaced with the Code of Genetic Testing and Insurance in 2018. The code is a voluntary agreement between the UK government and the Association of British Insurers and prohibits insurers from requiring or pressuring an insurance applicant to undertake predictive or diagnostic genetic testing to obtain insurance. Insurers may rely on the results of a predictive genetic test only in specific circumstances as follows: Type of insurance
Life insurance
Financial limits above which predictive genetic tests may be relied on
£500,000 per person
Critical illness £300,000 per person insurance
Medical conditions for which insurers may ask for and take into account predictive test results, for policies above the financial limits Huntington’s disease None
Income protection £30,000 (per annum None insurance per person) All other types of Predictive genetic test results will not be asked for or insurance taken into account whatever the level of cover
WILL INQUIRIES Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document. LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140
ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726
( 09) 303 5270
ALDRIDGE Patricia Helen
MIKA Joseph
• Late of formerly 329 Pesters Road, Eyrewell latterly of Karadean Rest Home, 5 Queen Street, Oxford • Single • Retired • Aged 76 / Died 16’06’22
• Late of 4A Scott’s Road, Manurewa, Auckland • Unemployed • Aged 50 / Died 17’02’21
GRINDER Paul David
• Late of 1 Belle Lane, Maunu, Whangarei • Married • Shop manager • Aged 76 / Died 20’04’22
• Late of 12 Victoria Street, Waikino, RD2, Waihi • Assistant director producer • Aged 60 / Died 26’05’22 HUH Shinichi (aka Shinji Matsumoto) • Late of Osaka, Japan • Married • Self-employed • Aged 63 / Died 04’12’21
PLAISTED Derek Richard
SHIH Yu-Huan • Late of 23 Memorial Avenue, Mount Roskill, Auckland • Widow • Aged 87 / Died 19’03’21 SWEETMAN Lavinia Anne
LUCKSTEDT Mary Ann (aka Mary Anne)
• Late of Auckland • Aged 73 / Died 25’06’05
• Late of 17 Gwenand Place, Botany Downs, Auckland • Married • Retired • Aged 82 / 06’06’22
WITHEY Peter Bryce • Late of 84A Peacockes Road, Fitzroy, Hamilton • Never in a legal relationship • Chef restauranteur • Aged 68 / Died 11’06’22
Andrew Horne is a partner and Olivia de Pont a senior associate at MinterEllisonRuddWatts ■ 15
2 CPD HOURS
Being Effective in the Employment Relations Authority Thursday 29 September | 4pm - 6.15pm | In Person, Auckland | Livestream This seminar will provide practical insights and advice on effectively representing your client in the Employment Relations Authority and tips on the advocacy skills necessary to obtain the best outcome for them.
T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
3.5 CPD HOURS
The Art of Will Drafting: Complex Wills Workshop Tuesday 23 August | 9am - 12.45pm | Workshop | Rydges, Auckland Led by two facilitators immersed in wills and asset planning and known for their practical aproach, this workshop will give you the confidence to deliver real value to your clients.
T 09 303 5278
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E cpd@adls.org.nz
W adls.org.nz/cpd