LawNews- Issue 25

What new sexual harassment law means for the

Contents

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

Editor: Jenni McManus

Publisher: ADLS

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

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Cover: Ana Maria Serrano / Getty Images

Photo: Marko Geber / Getty Images

How the new sexual harassment provisions will play out in the workplace

If the employer is the one who’s bullying you, it’s very difficult to raise that without fear of losing your job

Reweti Kohere

The Employment Relations (Extended Time for Personal Grievance for Sexual Harassment) Amendment Act 2023 has been praised for giving sexual harassment victims more time to raise an employment personal grievance. But employment barrister Catherine Stewart says more could be done to address loopholes in the Employment Relations Act 2000.

While the Act permits personal grievances for racial and sexual harassment, it still lacks specific grievances for bullying or general harassment.

Yet all reflect an imbalance of power that exists between employers and employees, says Stewart, who is also convenor of the ADLS Employment Law committee.

The new legislation, which came into force on 13 June, gives sexual harassment victims more time to consider what might have happened to them before deciding whether to raise a personal grievance with their employer.

This has been achieved by extending the residual 90-day

timeframe for all other kinds of personal grievance to 12 months, but only for sexual harassment.

“If you’re being sexually harassed by the person who pays your wages, for example, and on whose discretion your livelihood depends, then it’s very difficult to bring a claim against that person without fear of losing your job or some other form of retaliation,” Stewart, says.

“That’s why sexual harassment falls into this category of inherent and intrinsic employee vulnerability. If the employer is the one who’s bullying you, it’s very difficult to raise that without fear of losing your job.”

Sensibility and pragmatism

From an access-to-justice perspective, Stewart says it makes sense to extend the timeframe for other types of grievance that involve a similar power imbalance in those situations.

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It is insidious. It is shaming. It occurs because of a power differential. It is traumatising

Photo: kbeis / Getty Images

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Simon Schofield, who teaches employment law at the University of Auckland, says some of the barriers that are unique to employees bringing sexual harassment personal grievances, such as guilt and shame, aren’t as persuasive in the context of bullying, where there are stronger arguments for raising a personal grievance earlier to avoid evidence being destroyed or difficulties associated with failing memories.

The new law, introduced as a private member’s bill submitted by Labour’s Dr Deborah Russell, enjoyed cross-party support as it progressed through Parliament, particularly for its narrow focus on extending the timeframe only for sexual harassment personal grievances.

“Given that bullying is not expressly a ground for a personal grievance under the Employment Relations Act 2000 and is usually pleaded in the broad category of an unjustified disadvantage, there is a degree of sensibility and pragmatism in Dr Russell’s approach,” Schofield says.

Insidious, shaming, traumatising

At the bill’s second reading, Russell said the proposed amendment recognised the special nature of sexual harassment.

“It is insidious. It is shaming. It occurs because of a power differential. It is traumatising…because the person who experiences it is disregarded, is treated as an object and is treated as being of no worth – or, if they have worth, it is only their sexual value that matters. That is why it can be important to have the longer time available.”

Many submitters asked the Education and Workforce select committee to go further, though. More than half of the 43 submissions on the bill wanted other types of serious discrimination, such as bullying and racial harassment, included within the longer 12-month period. Others wanted the timeframe extended beyond 12 months.

Labour MP and committee member Camilla Belich acknowledged the submissions raised important issues.

“There are additional challenges within our employment relations system in relation to other forms of discrimination. But Dr Russell was very clear that this bill addresses one thing and that is sexual harassment and so that is why we have kept this bill limited to claims of sexual harassment,” Belich said at the bill’s second reading.

“I know that might be disappointing to some people, some submitters, but I would encourage them to think about how beneficial this change will be and the fact that we are able to have this cross-party support to get this through the House.”

While supporting the bill, Green MP Teanau Tuiono said the party was “very open[,] still open” to extending it to lengthen the

timeframe and include racial harassment too.

National’s Paul Goldsmith said the party didn’t support broadening the timeframe beyond sexual harassment out of concern for making the operating environment for businesses more uncertain. Act’s Chris Baillie said the bill’s sole focus on sexual harassment was a “good compromise” in recognition of the nature of sexual harassment.

Good faith gesture

The new timeframe starts from the date the incident occurred or came to the employee’s attention, whichever is later, and applies where an employee has been sexually harassed during their employment.

Employment agreements entered on or after 13 June must refer to the two different timeframes in an updated employment relationship problem resolution clause, which outlines how employers and employees will handle any difficulties.

For current employment agreements, the 90-day timeframe continues to apply if the sexual harassment occurred or came to the notice of the employee before 13 June.

A failure to update employment agreement templates could give rise to a penalty of up to $20,000, while giving employees a defence should they fail to raise a sexual harassment personal grievance within 12 months.

Schofield says while employers don’t legally need to update current agreements, there is room for the risk-averse view that all current employment agreements, templates and applicable policies should be brought up to date.

“This is because an employee may be granted leave to raise a personal grievance out of time if the delay in raising the personal grievance was occasioned by the fact that the employee’s employment agreement does not contain an employment relationship problem resolution clause, as required by the Employment Relations Act 2000,” he says.

“If a current employment agreement is not updated, this leaves open the argument that a personal grievance was not raised because the resolution of the employment relationship problem clause was defective.”

Stewart says the fact that the amendment doesn’t apply retrospectively will make implementing the time extension “cleaner”. Employers should also notify staff of the change as a matter of good practice.

“An overarching requirement of the legislation is that employers and employees deal with each other in good faith. As a good faith gesture, it would be prudent for employers to write to current employees and bring [the law change] to their attention,” Stewart says.

“And then, of course, it’s a matter of looking at their policies. They may wish to update and refresh their policies on sexual harassment to ensure the timeframe is reflected in any policy documents.”

Employment agreements entered on or after 13 June must refer to the two different timeframes

Catherine Stewart

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will still exist, including how the sexual harassment personal grievance timeframe might cross over with the residual 90-day timeframe under the Act.

Grey areas

It will take time before the courts start to clarify some of the grey areas the amendment has raised.

A potential downside of the extended timeframe is that alleged offenders or potential witnesses might have left the workplace before a sexual harassment personal grievance investigation begins or concludes.

Stewart explains that, generally speaking, former employees can’t be forced to participate in the investigation, unless they choose to.

On the other hand, “if the offender has left, for example, it may be that the employee feels a little less threatened, which doesn’t obviate the need for an investigation but it may make the working environment more comfortable for the employee,” she says.

“But if witnesses have left, that could be quite problematic if they’re not able or willing to give evidence. But some witnesses would probably be only too happy to give their point of view on something as serious as a sexual harassment investigation, even if they no longer work for the employer.”

Schofield adds that one option employers can use is adding a broad litigation assistance clause into their employment agreement templates. The clause requires an employee to cooperate with any investigation and litigation after their employment ends, including by providing evidence.

“Such a clause can be drafted in a positive way so requiring the employee to notify an employer if they are involved in litigation against the employer,” he says.

Crossover

Until the courts start issuing decisions, some legal uncertainties

Changes made to the bill have made it clear the extended timeframe applies only to a personal grievance of sexual harassment, as opposed to another type of personal grievance that might contain elements of sexual harassment, Stewart says.

“There is necessarily going to be some shaking down of how all of that is going to interplay…All of that is something that we need to really watch with interest and wait and see how that’s going to play out.”

Schofield raises the issue of an employer’s actions, which would otherwise be bullying, being framed as sexual harassment.

“An example may be where an employee is given demeaning tasks or demoted in circumstances where it is unclear whether this action is taken in response to an employer’s express or indirect request for sex or sexual contact,” he says.

“It is certainly not uncommon for background evidence to be allowed in constructive dismissal cases where events, which could be an unjustified disadvantage, have not been raised within time but those events are then used to colour the consideration of the unjustified dismissal personal grievance, which has been raised within time.

“There is also the possibility of raising a personal grievance for ongoing breaches where the issues can be framed as an employer continuing to fail to do something such as investigate a matter,” Schofield says.

Stewart says employees, and especially more vulnerable workers, should bring themselves up to speed on the law change, “because without that knowledge, they might not realise they’ve got this greater length of time to raise their personal grievance”. ■

For info on an upcoming CPD event on the new sexual violence legislation, click here ■

A failure to update employment agreement templates could give rise to a penalty of up to $20,000

Simon Schofield

Can a trust lawfully be used to thwart a claim under the Family Protection Act?

Counsel for the daughter said the court should decide whether it is acceptable in 2023 for people to use trusts to avoid the Family Protection Act

Anthony Grant

The Supreme Court heard the appeal in ABC v D&E on 13 and 14 June and this article is based on the transcript of the hearing.

As most readers will know, the case asks whether a father who sexually abused his daughter and harmed her terribly had a fiduciary obligation to make financial compensation to her.

It can be important to read the transcript of what the judges said during the course of such a hearing. Several years ago, it was held in Australia that senior counsel were liable in negligence for not reading the transcript of a High Court hearing and thereby failing to learn of a new legal development that was underway.

I suspect the Supreme Court may take several months to deliver its decision in ABC v D&E and I won’t speculate on whether the court will find the father had a fiduciary obligation to make financial recompense to his daughter.

Instead, I will confine this article to a separate topic – namely, whether the father could lawfully dispose of all his assets so as to defeat his daughter’s claim under the Family Protection Act. It is a practical question that I suspect arises in many less significant cases on an almost daily basis.

During the hearing, Glazebrook J asked whether there had been a breach of fiduciary duty in the daughter’s childhood “that has not been remedied, and an argument that there is a continued obligation [on the father] to remedy it and by putting the assets out of [his] power he [has] further breached the requirement to remedy” his unlawful conduct [63].

She said there may be “a formulation that you can’t use a trust to effectively have equitable fraud [query: whether this should read “inequitable fraud”]. Inequitable fraud would include putting yourself in a position where there can be no family protection claim. [The] issue there is whether you actually need a statutory provision for that, or whether equity would have done that, absent those statutory provisions that we have in the Insolvency Act and

Anthony Grant

the Relationship Property Act.” [63].

Glazebrook J said she understood the argument for the daughter to be that the father had a duty “not to get in the way of a Family Protection Act claim” so that “there would be an ability to undo what he had done in breach of that duty” [133].

In this context, O’Regan J asked counsel for the daughter “but you’re not questioning the finding of fact that one of the reasons for the trust was to deprive [the children] of access to a Family Protection Act claim?” to which the answer was “no, we’re not contesting it.” [151]

Glazebrook J returned to her theme :

Maybe the more productive line is to say ‘well, you were not allowed in equity to use a trust for what are essential dishonest purposes and if your intention is to defeat a family protection claim, then equity would step in, in the same way that statutorily it would step in with issues in relation to creditors and issues in relation to relationship property’. [171] She said counsel for the father’s executors would say any prohibition on disposing of assets to defeat a claim under the Family Protection Act should be made by Parliament but “normally equity would not allow you to come [with] unclean hands and use it for what would be seen as fraudulent purposes. I am talking about fraud in an equitable sense, not in a common law sense.” [171]

Winkelmann CJ summarised Justice Glazebrook’s position as being “whether defeating a claim under the Family Protection Act might be said to be a sufficiently dishonest purpose” to justify setting a transaction aside. [189]

Counsel for the daughter said the court should decide whether it is acceptable in 2023 for people to use trusts to avoid the Family Protection Act. [195] She said courts “should

People who advise a parent to dispose of their property to defeat a claim under the Family Protection Act should be aware of the possibility that the action may be potentially unlawful

More sinned against than sinning?

Allan struck a great many New Zealanders as an attractive, forthright, impulsive but uncompromising politician who, in spite of being born on the wrong side of the tracks, ended up being admitted to the Bar and elected to the House of Representatives.

Chris Trotter

“There goes Chippy’s quiet start to a new week,” tweeted blogger Cameron Slater with undisguised schadenfreude. Many in Labour would have grimaced in reluctant recognition of Slater’s bleakly truthful quip.

Among the Labour faithful, it must seem that their party just can’t catch an even break. The moment Labour struggles back to the surface, the fickle hand of fate once again plunges it into the depths. Its supporters could be forgiven for thinking the government is living under some sort of curse.

This latest debacle is, however, entirely selfinflicted. Kiri Allan should not have been allowed to return to Cabinet solely on the basis of her own personal assessment of her mental fitness.

In fairness to Allan, and in acknowledgement of the importance of her ministerial responsibilities, the Prime Minister should have required the Justice Minister to present him with a clinician’s endorsement. Bluntly stated, neither Hipkins nor Allan was qualified to judge her work-readiness. That assessment should have been left to a mental health professional.

Giving Allan the green light to return to Cabinet was, therefore, a serious error of judgment on the Prime Minister’s part. He was placing his government’s future in the hands of a woman who was clearly undergoing a serious personal crisis and who appeared to be relying upon little more than her own true grit to get through it.

Firm grasp

Just a few days ago, it seemed to the Press Gallery that Allan was back and firing on all cylinders.

Standing alongside the Prime Minister, the Justice Minister delivered an impressive defence of Labour’s law-and-order policies, displaying a firm grasp of both the principles and the hard data underpinning them. It was the sort of performance that encouraged activists and journalists alike to speculate positively about Allan’s long-term political future.

That long-term future now lies in ruins, shattered by police accusations of careless use of a motor vehicle and of refusing to accompany a police officer to a police station. These accusations, and the circumstances from which they arose, all point to Allan’s emotional fragility on the night she steered her motor vehicle onto Wellington’s Evan’s Bay Parade.

According to the Prime Minister’s own public statements, Allan continued to display acute emotional distress when, the following morning, he removed her from his ministry.

Exactly how much damage Allan’s behaviour, and Hipkins’ response to it, is likely to cause the Labour government is difficult to assess.

Allan struck a great many New Zealanders as an attractive, forthright, impulsive but uncompromising politician who, in spite of being born on the wrong side of the tracks, ended up being admitted to the Bar and elected to the House of Representatives.

Her colourful private life appeared only to endear her to that fraction of the population which is comfortable with sexual diversity. They also enjoyed her refreshing willingness to call a spade a bloody shovel.

These New Zealanders may yet prove inclined to see Allan as someone “more sinned against than sinning”, all too aware of those moments in their own lives when emotional hurt and the shattering of

expectations caused them to behave in ways not too dissimilar from the minister.

Indeed, they may have done, and survived, worse than Allan – moving on with their lives only because they weren’t “important” enough to attract the basilisk glare of the news media.

Duty of care

The Prime Minister may not be so lucky. Many voters could end up condemning him for moving with unwarranted haste to return this darling of the Labour Party rank-and-file to her Cabinet seat. The duty of care Hipkins owed to his minister, they may argue, should have superseded all such political considerations.

By allowing her back too soon, Hipkins may be accused of damaging needlessly, and beyond repair, both Allan’s career and the Labour government’s chances of re-election.

Then again, there may be at least as many voters who take a hard line on a politician, no matter how distraught, who consumes alcohol, climbs into a motor vehicle and drives off into the night. With some justification, they will ask how much sympathy we would have for Allan if, instead of another car, she had struck an innocent human being?

The provision of chauffeur-driven ministerial cars is supposed to prevent these sorts of incidents. Cabinet ministers have no excuse for getting pissed and heading out alone into the dark. And, for sure, Justice Ministers have no excuse for arguing with the cops!

Having replaced Allan with Ginny Andersen, Hipkins must be offering up all manner of prayers to the political gods that whatever his government has done to displease them has now, with this third ministerial sacrifice, been expiated.

With barely 11 weeks between Labour’s present predicament and the people’s electoral verdict, there is still time for fate’s unwanted attentions to descend with force upon National and Act. ■

Chris Trotter is a political commentator with more than 30 years’ experience. He is the author of the Bowalley Rd blog ■

New easement form created to resolve developers’ parking and driveway issues

Apart from a parking easement on a COAL, there are usually five options for creating parking rights

Joanna Pidgeon and Ben Thomson

In recent years, many fee simple “in-fill” developments involving intensification with terrace housing/ townhouses have been built which share a commonly owned access lot (COAL) rather than using unit titles for the development.

Issue have arisen with the method of creating parking on these COALs.

Historically, jointly owned access lots (JOALs) have been used and easements have been granted over them. The Property Law Act 2007 (PLA) was the first statutory recognition of jointly owned access lots. Section 298(2) states:

Each of those proprietors has, in common with the rest of them, the same right to pass and re-pass over and along the access lot that the grantor and grantee of a vehicular right of way have (in common with one another) in respect of that right of way under clause 1 of Schedule 5. This section means that LINZ will reject, as a breach

of this section, parking easements that prevent the right to pass and repass over a COAL or JOAL. Further, if car park easements purport to create rights that go beyond the legal scope of an easement – eg, an instrument that purports to grant exclusive possession – it is, in substance, a lease rather than an easement, with land law going to the substance of what is being created rather than the way it is labelled.

This can also create a deemed subdivision, with deemed leases of 35 years or more being a deemed subdivision under s 218 Resource Management Act 1991 (RMA).

Hinde McMorland and Sim Land Law notes at paragraph 16.006© that “because an easement is essentially a right to do an act on land in the occupation of someone else, the easement itself cannot be such that occupation is shared or passed to the benefited owner”.

On a COAL, different treatments for access areas, service areas and parking would be helpful. There are often rubbish bins, letterboxes, footpaths and

Current options

Owners want exclusive parking, if possible, as this adds value to their property, rather than having a shared parking area which can cause issues between owners. Historically, there was a need to establish certainty of parking to satisfy the council but the goalposts are shifting, with councils now more neutral on the issue or wanting to reduce car usage.

Apart from a parking easement on a COAL, there are usually five options for creating parking rights. Each has its pros and cons, and surveyors applying for subdivision consent often choose a method without consulting a property lawyer. This can lead to rejection issues when lodging documents to issue titles or other problems such as increased surveyor costs because of the choice of option.

■ Covenant providing parking. While this is the easiest from a survey perspective and provides flexibility, it is not as good from a legal perspective as it can be difficult to enforce and there can be issues under s 298 of the PLA, particularly if the

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stormwater detention tanks in these areas.

Health and safety training courses under threat despite sobering stats

Joanne Crawford

New Zealand has an abysmal record of work-related deaths. An estimated 10,000 people – men, women and sometimes children – have died from occupational ill health or workplace fatalities since 2010. A further 420,000 people were injured at work.

Yet the country’s only postgraduate course in work health and safety is under review as part of a wider cost-cutting exercise at universities. Currently, universities are considering a $128 million government bailout, but the future of this educational program remains uncertain.

The Workplace Health and Safety program at Te Herenga Waka Victoria University of Wellington was set up following the 2010 Pike River disaster, in which 29 miners lost their lives in a mine shaft explosion.

An independent taskforce recommended a “comprehensive embedding of workplace health and safety into the education and training system at all levels to support upskilling of the workforce generally”.

The disaster also led to changes in legislation, with the introduction of the Health and Safety at Work Act in 2015. This introduced a risk management framework and established a workplace regulator, WorkSafe New Zealand, and the mandate to improve learning and development.

Economic and social cost

The total cost to the economy of work-related ill health and deaths was $6.725 billion between 2015, when the new Act came into force, and 2022. This does not include personal costs to whānau and societal costs from such harm.

International Labour Organisation (ILO) data from 2022 allow comparison between countries that use a riskmanagement framework. According to this, almost three times as many people die at work in New Zealand than in the UK.

The total cost to the economy of work-related ill health and deaths was $6.725 billion between 2015, when the new Act came into force, and 2022

These data highlight that the UK, which has been working within a risk-management framework since 1992, has an only slightly higher number of health and safety inspectors but far lower rates of injury and fatality at work.

Inspection and investigation have a place in New Zealand’s work health and safety system. But there should be no need for more inspections because the law is clear about the need for businesses to identify and manage risks. If a business is unsure how best to do this, expert help is available and essential, as it is for financial or legal advice.

Designing safer workplaces

In 2022, the ILO updated the fundamental principles under its 1998 Declaration on Fundamental Principles and Rights at Work to include “the right to a safe and healthy working environment”. New Zealand is a signatory to this, as well as four additional fundamental principles, including freedom of association and the right to collective bargaining, the

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The UK has an only slightly higher number of health and safety inspectors but far lower rates of injury and fatality at work

Battling disability discrimination: one professor’s story

Only 27% of the constitutions around the world have provisions prohibiting disability-based discrimination

Reweti Kohere

Back in his native India, Dr Sanjay Jain wanted to buy a car. So he went to a bank to get a loan.

Having recently been appointed a professor, Jain told the bank manager he wanted a car because it would make his life easier. That wouldn’t be possible, the bank manager said, as Jain couldn’t drive because he was totally blind and those who couldn’t drive were not permitted to buy cars. He could, however, buy a taxi that his wife could drive.

Jain said he could pay down the loan so why did he also need to be able to drive? The bank manager said those were the rules. Jain left the bank, disappointed but not discouraged. Another bank welcomed him with open arms.

“See the change in attitude?” Jain asks attendees of his Mindful Legality talk, recently hosted by ADLS. “What matters, I think, is not so much the law. What matters is the attitude, how you interpret the law.”

Pillar to post

It isn’t the first instance of hardship that Jain, a disability rights activist and professor of law at the National Law School of India University, has experienced.

In 2015, as an associate professor of ILS Law College in Pune, Jain requested from Kuwait Airways some additional support to make a flight he had booked to attend a conference in the US.

Jain says that after being told the airline didn’t

have a policy of offering additional support or that the company wouldn’t have sold him a ticket had it known he was blind, he went to the media.

Suddenly, a manager of the airline called. After talking to him, the manager apologised and sought to solve the issue rather than continue to obstruct, Jain says. The manager assured the professor he would travel “like an Amin”, to which Jain replied: “I would like to travel like a human being with dignity.”

If being forced to run from pillar to post can happen to a professor of law, “one can imagine what should be the plight of the people with disabilities who are not in positions of power and authority”, Jain says.

Worldwide, one in six people experience significant disability, according to the World Health Organisation. Some die up to 20 years earlier than those without disabilities; people with disabilities are twice at risk of developing depression, asthma, diabetes, stroke, obesity or poor oral health. And many health inequities afflict persons with disabilities, often arising from stigma, discrimination, exclusion from education and employment, and other unfair conditions.

Regression

So how do constitutions around the world treat an estimated 1.3 billion people? “You’ll be surprised to know that only 27% of the constitutions around the world have provisions prohibiting disability-based discrimination,” Jain says, “which means that 73% do not have anything to say on disability-based discrimination.”

New Zealand’s constitutional arrangements prohibit disability-based discrimination through s 21(1) (h) of the Human Rights Act 1993, which is affirmed by s 19 of the New Zealand Bill of Rights Act 1990.

New Zealand has also signed and ratified the Universal Declaration of Human Rights 1948, which declares all human beings are born free and equal with dignity and rights, and the UN Convention on the Rights of Persons with Disabilities 2008, which protects the dignity of people with disabilities and ensures fair and equal treatment under the law.

In India’s constitution, the law-making subject of disability is “awkwardly sandwiched” between intoxicating liquors and burial grounds, Jain says. Moreover, it talks about giving relief to “the disabled and unemployable”, which suggests a “very paternalistic, very patronising picture” of disability, even if it’s construed as one of the state’s law-making domains.

Elsewhere in the constitution, Jain says people of “unsound mind” and are declared as such by a competent court are ineligible to hold public office or contest election. Moreover, “unsoundness of mind” disqualifies people from voting.

The “handicapped and mentally retarded” fall under the social welfare ambit of India’s Panchayats, one of the oldest systems of local government in the subcontinent. And the country’s municipalities must

Continued on page 11

Dr Sanjay Jain

also “safeguard” the interests of “weaker sections of society, including the handicapped and the mentally retarded”.

The constitution hasn’t been “de-medicalised” in respect of people with mental disability, which still shows that India’s “post-colonial and very transformative constitution can be regressive with regard to people with disabilities”, Jain says.

Models

Drawing on Professor Amita Dhanda’s work in mapping how different jurisdictions engage with people with intellectual disabilities, Jain says there are three basic approaches

The first legally incapacitates people with disabilities simply because of their status as someone with a disability. In 2019, India’s Supreme Court held a blind person cannot be appointed a judge unless their visual or hearing impairment is less than 50%.

“Now, I am reading, I have written right? Because I have written, I can read. So, as a blind person, I can read and I can write,” says Jain, who criticises the court for having made the judgment call on how much sight or hearing a person must possess to adjudicate disputes. The decision was ultimately overruled

The second approach focuses on outcomes. Jain gives the hypothetical of a patient who has initially consented to treatment, only to withdraw it in respect of any further treatment.

“This would be treated as a sign of incapacity, which is dangerous to society. Probably I have taken a decision that is dangerous to me. In other words, by taking a decision, I have undermined my ability,” he says. “What is not appreciated, of course, is the fact that this decision is a decision taken by me by exercising my self-determination.”

The third approach is known as the functional

approach, which recognises that decision-making capacity can fluctuate and is specific to any given issue at any point in time. What matters is the individual’s ability to make the decision at the time and the processes they followed in arriving at the decision.

In keeping with many other countries, New Zealand has rejected the first two approaches and instead uses a “functional” approach to define capacity

Compassion

Jain explains that two models largely define legal capacity: it’s either rested in every human being, provided he or she has access to support or help, or rested only in particular social groups. The “universal” model doesn’t stigmatise the reliance on support because supported decision-making champions the idea of co-dependence.

In the professor’s opinion, New Zealand’s mental healthcare law needs to be infused with compassion and based on human rights and co-dependency too.

“We are all dependent on each other. We all need support and assistance from one another,” says Jain, who views the model as compassionate. “Law without emotions is no law at all because law is not merely a set of rules. The law is supposedly a social institution to empower everybody, to transform the lives of everybody. Why should disabled people be the exception?”

Transformative justice

In an “historical” judgment, India’s Supreme Court might have entered an “era of transformative and empathetic justice”.

In 2010, the Central Reserve Police Force decided to suspend one of its assistant commandants, Ravinder Kumar Dhariwal, after he was allegedly heard saying he was obsessed with either killing or being killed and made a threat that he could shoot.

Counsel submitted the officer had developed mental health issues as a result of being continuously

posted, for seven years, in areas where anti-insurgency operations were being conducted.

Before the incident in 2010, the appellant started experiencing obsessive compulsive disorder, secondary major depression and bipolar affective disorder, which he developed during service. After he was suspended, he received psychiatric treatment on several occasions. He was later assessed as having a permanent disability in the range of 40% to 70%.

Instead of sending the appellant for medical treatment, the police department initiated criminal action against him. Should the official have been suspended or reasonably accommodated? The court allowed the officer’s appeal.

“It is music to the ears – the Supreme Court of India very clearly held that to suspend such a person is to impose on him punishment which he doesn’t deserve,” Jain says. “Just because there are certain symptoms of stress or anxiety, the same should not result in denial or deprivation of the capacity of an individual.”

Perfect example

Back to Jain’s experience with trying to get a bank loan: “I narrated the whole story and [the second bank manager] was laughing. The manager said ‘it’s all about understanding’. Not only did he ensure I was able to get my loan, he gave me some additional benefit. Within the next hour, my loan got processed and three or four days [later], I was able to buy my car.”

When the first bank manager heard about the professor’s new loan, he called Jain “and told me ‘why you did not let me know about your credentials fully? Because I got calls from a few people who say I have humiliated a professor’,” Jain said. “I told him that what should be enough to buy a car is my ability to pay the loans, not my credentials.

“This is the perfect example to bring home the fact that the authorities must have faith in the ability of people, irrespective of their abilities or disabilities.” ■

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Facilitator Andrea Ewing, Crown counsel, Crown Law Office (Criminal Team)

Electronically monitored bail

CRIMINAL ALL LEVELS WEBINAR

Public works Intensive

Webinar 2 CPD hours

Legal writing is the bread and butter of a lawyer’s practice. But writing well is harder than it looks. For years we have been told that we should “write like Katherine Mansfield”. But what does this mean?

ALL LEVELS PROPERTY WEBINAR

Thursday 10 August

4pm – 6.15pm

Price from $140 + GST

Presenters Matthew Casey KC and Sue Simons, partner, Berry Simons

Webinar 1.5 CPD hours

Wednesday 9 August 5pm – 6.30pm

Price from $110 + GST

Presenters Brendan Hurley, operations manager, Bail Support Services and Prashant Rai, EM manager, Department of Corrections

Chair Julie-Anne Kincade KC, Augusta Chambers

With perspectives and practical insights from Bail Support Services and EM Operations from the Department of Corrections, this webinar will, among other things, show you how to streamline applications for EM bail.

Focusing on the Public Works Act 1981, this webinar intensive will cover the processes from pre-acquisition through to compensation and show how they work in practice.

Lawyering for 21st century relationships

Webinar 1.25 hours

Monday 14 August

12pm – 1.15pm

Much ado about AI

WEBINAR ALL LEVELS

This webinar will dig deeper into Sutton v Bell and Mead v Paul: their circumstances, the landmark judgments and what the ramifications might be for the way lawyers give advice.

ALL LEVELS GENERAL PRACTICE WEBINAR

Webinar 1.5 CPD hours

Tuesday 15 August

12.30pm – 2pm

Price from $110 + GST Presenters Steven Moe; Philip McHugh; Hilary Walton; Vaheeni Naidoo; Avneet Biln and ChatGPT

Sexual violence legislation updates

Artificial Intelligence (or AI) is everywhere – in the media, on your devices and in your office, even if you’re not aware of it.

Have you embraced AI – but not considered its downsides – or shunned it, without appreciating its advantages? This webinar covers the benefits and risks AI poses for the legal profession and what it might mean for our future.

Chair Lloyd Gallagher, managing partner, Gallagher & Co

In Person | Online

2 CPD hours

Thursday 16 August 4pm – 6:15pm

Price from $100 + GST Presenters Mary Joy Simpson, partner, Hesketh Henry and Nura Taefi, barrister, Shortland Chambers CRIMINAL ALL LEVELS SEMINAR

Price from $140 + GST Presenters Julie-Anne Kincade KC, Augusta Chambers, Samira Taghavi, barrister and practice manager, Active Legal Solutions and Elizabeth Hall, barrister, Pipitea Chambers

Understand the significant changes to the Evidence Act 2006 after recent amendments to the Sexual Violence Legislation Act 2021 and the reasons behind the changes. This seminar also offers practical guidance and strategies for dealing with these amendments.

Events

Central Auckland After 5

Matthew Casey KC and Geoff Beresford

Katee Yukich and Ben Cleland

Tony Herring, Emma Priest, Julie-Anne Kincade KC and Glen Godfrey

Raj Gurusinghe, Thomas Pilley, Melinda Whyte and Anthony Kuran

Oscar Ward and Pete Lycett

Thank you to those who attended the Central Auckland After 5 at Pilkingtons Restaurant & Bar.

Inger Blackford and Sharon Chandra

Featured events

Connecting New Zealand lawyers

South Auckland Lawyers’ Lunch

Tuesday 8 August 12.30pm – 2pm

Woodside Bar Kitchen Functions, 639 Great South Road, Manukau City Centre, Auckland

Sponsored by MAS

East Auckland Lawyers’ Lunch

Wednesday 23 August 12.30pm – 2pm Goode Brothers, Shop 36/588 Chapel Road, East Tāmaki, Auckland

Christchurch After 5

Thursday 19 October (NEW DATE) 5.30pm – 7.30pm Botanic, 126 Oxford Terrace, Christchurch Central City

Sponsored by MAS

Upcoming

September

Hawke’s Bay Lawyers’ Lunch

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 Ph: (09) 303 5270

GALO

Susana Uelese also known as Susana Galo

• Late of Auckland

• Retired

• Aged 86 / Died 23’03’22

TE HIKO

Daniel Pairama Ngamotu also known as Daniel Pairama Tehiko and Dan Ngamotu Te Hiko

• Late of Tokoroa

• Bushman

• Aged 67 / Died on or about 28’05’16

Barristers Chambers Available Vulcan Lane

● Sunny,22.40 square metres plus shared kitchen.

● Gross rent approximately $866 per calendar month.

● Suit one practitioner plus secretary

● Recently refurbished.

● Building owner ’s office located on site.

● Most of the other office tenancies in the building are barristers. For further details or to arrange an inspection, please phone 09 304-0730 or email inquiries@msa.co.nz

Offices Available

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

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

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

Cost depends on office size and range from $150 – $300 per week plus gst. No long-term commitment required.

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

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

Continued from page 06

not allow [the father] to use a trust for the equitably fraudulent purpose [of] avoid[ing] the Family Protection Act.” [196]

I write about this because people who advise a parent to dispose of their property to defeat a claim under the Family Protection Act should be aware of the possibility that the action may be potentially

Continued from page 08

wording is not carefully considered.

■ Two amalgamated lots – one for access and one for parking – and the parking amalgamated allotment will then have a parking easement. This can create stormwater run-off issues which the council can overlook, however there may be issues with stormwater detention tanks. There are no issues with s 298 PLA.

■ Parking area wrapped around residential allotment, then parking easement created. This may create issues with stormwater run-off, fencing around the boundary, potential fire-rating issues and, from the council perspective, wouldn’t work most of the time as there are often shared footpaths between carparks and residential allotments. There also can be issues with easement wording.

■ One amalgamated allotment which is not an

Continued from page 09

elimination of forced labour, the effective abolition of child labour and the elimination of discrimination at work.

This means we need to be able to design workplaces that are safe and protect the health of the workforce. To do this we need trained professionals who know how best to do that – and the potential loss of a postgraduate program is distressing.

The 2019 Health and Safety Association of New Zealand report highlights the need for a further 2,000 professionals in health and safety by 2030.

The potential removal of this program would limit opportunities for training and growing the country’s

unlawful.

And if it is unlawful, the lawyer who advises the person to engage in that conduct may have a tortious liability for counselling the person to engage in the conduct.

It can, of course, be argued in defence of such a claim that Parliament has not enacted any antiavoidance prohibitions in the Family Protection Act to prevent a parent from removing all their assets to defeat a claim that a child may make under the Act.

But that is probably because it wouldn’t have crossed the mind of the politicians who enacted the legislation that a parent, like the father in ABC v D&E, would have behaved so appallingly to his daughter and then manipulated his assets so as to prevent her from making a claim against his estate after he had died. ■

Anthony Grant is an Auckland barrister and trustee who specialises in trusts and estates ■ For more info on this case, please click here

access lot. Then create a ROW easement over the access area and parking easement over the parking area. This is simple from a surveyor perspective and there are no s 298 PLA issues. But does the easement grant the exclusivity (and value) desired by owners?

■ Create individual lot for the parking space then amalgamate the space with the residential lot. There can be issues with stormwater not allowing run-off onto another lot and possible issues with fire rating, but there are no issues with s 298 PLA. In the past, councils often preferred parking to be shown as a separate lot. But this created additional complications for surveyors who were dealing with stormwater run-off and fire-rating issues, as well as creating additional work if there were services under the parking lot.

However, ADLS’ Property Law committee and Documents and Precedents committee, working with LINZ and surveyors Chong Khaw and Neale Faulkner, have simplified the parking issue by having a parking

easement form approved by LINZ which addresses the issue of s 298 PLA to LINZ’s satisfaction.

There has also been liaison with Auckland Council which says it will now be neutral in the way carparks are dealt with. It will be incumbent on the applicant to decide which legal mechanism suits it best, rather than having the council dictating the method of parking to be used.

The LINZ-approved carparking easement combines the flexibility of services often installed under the COAL with the value of having a parking easement, while keeping surveying costs down when creating these parking lots. With ongoing intensification and the use of COALs, this carparking easement will help practitioners to ensure s 298 PLA does not cause requisition issues when seeking to create parking easements over COALs.

This form may be accessed here ■

own workforce. It would result in people studying overseas, without cultural context, or being recruited from overseas, lacking cultural knowledge.

In a country where Māori and Pasifika workers face a higher risk of injury and death at work, having that context is essential in effecting change.

Education and training in health and safety are available across New Zealand in other institutes, including internships, bachelor’s degrees and graduate diplomas.

But the postgraduate program has been designed around international standards to equip health and safety practitioners with required capability in risk identification and risk management, as well as essential skills in management, communication and negotiation.

New Zealand’s health and safety practitioners often have to negotiate with their senior leaders to make changes to reduce identified risks. The role of the practitioner within organisations is also to embed health and safety within day-to-day operations and to get buy-in from workers for healthier and safer ways of working.

If New Zealand wants to improve its health and safety record, taking away education opportunities is not the way to do this. ■

The above first appeared in The Conversation and is republished with permission

Joanna Pidgeon and Ben Thomson are directors of Pidgeon Judd ■

Joanne Crawford is the WorkSafe chair in health and safety at Victoria University ■