NEWS Aug 5, 2022 Issue 26
Inside ■ OPINION
A ‘predetermined’ review P03-04
■ TRUSTS
The self-dealing rule P05
A profession at the crossroads
adls.org.nz
BUT DO LAWYERS REALLY CARE?
Contents 03-04 CULTURE RULE OF LAW CONSTITUTION
Opinion: An ‘ill-thought-out’ and predetermined review
LawNews is an official publication of Auckland District Law Society Inc. (ADLS).
05 TRUSTEES RULE DUTY
Self-dealing might be easier than you think
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
06-09 OBLIGATIONS TE TIRITI COMPULSION
Opinion: What lawyering might look like if you don’t have your say
All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz
12-13 FEATURED CPD
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.
14
Photo: Rouzes / Getty Images
CPD IN BRIEF
15 EVENTS
FINAL NOTICE This is your last chance to make submissions to the independent panel reviewing the legal profession. Submissions close on Friday 12 August
©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: susaro / Getty Images
02
Aug 5, 2022 Issue 26
OPINION
Former ADLS President slams ‘pre-determined’ review of the legal profession
The language used in parts of the paper, particularly around the constitutional status of the Treaty of Waitangi, suggests the outcome for many of the issues under review has been pre-determined
Jenni McManus
Brian Keene QC
rule of law. When he read the ad, “my blood boiled, then it froze,” he says. “What they’ve actually done is to say the rule of law can be trumped by tribal rights.” Former ADLS President Brian Keene QC has lambasted the Nor is it clear exactly what sort of rights are at issue, or to creators of the discussion document underpinning the current whom they might apply. The question indicates the erosion of review of the legal profession, saying it is “ill-thought-out” and the rule of law, where all people and institutions are bound by the review panel’s terms of reference are based on untested and accountable to the same law, is happening already, he says. assumptions. “If the law says you can’t do X but a tribe says Keene, who was ADLS’ President from 2014 ‘yes you can because it’s part of our culture’, who to 2016, also says the language used in parts of What they’ve wins? It pre-supposes that Māori are entitled the paper, particularly around the constitutional actually to separate treatment and rights which are not status of the Treaty of Waitangi, suggests the available to the world in general.” outcome for many of the issues under review done is to Keene says he expects a backlash from those has been pre-determined. say the rule who don’t share his views and accusations of The consultation document, he says, has of law can be racism. “I’m not a racist,” he says. And to those been masterminded by the government and is who point to the low representation of Māori and part of its plan for the cultural and constitutional trumped by other ethnic minorities in the upper echelons of transformation of New Zealand. tribal rights the law, Keene says the government makes QC Most worrying, however, is what he sees as and judicial appointments, not the profession. the ongoing erosion of the rule of law. Keene According to the discussion document now says he can see links between many of the out for consultation with the legal profession, the review is said assumptions made in the consultation paper and moves by the to have been prompted by concerns about the complaints government to elevate indigenous rights. mechanism for lawyers, the culture and diversity of the As an example, he cites an advertisement on the back of profession, the regulator’s powers to deal with unacceptable the latest issue of LawTalk, the quarterly magazine of the New behaviour and whether a membership body such as NZLS Zealand Law Society (NZLS), which reads: “Can the rights of should also be responsible for admitting, regulating and indigenous peoples be defined and defended by western law? disciplining lawyers or whether an independent regulator What are the alternatives?” should be appointed. It’s an ad for the University of Auckland Law School – The three-person review panel will also consider whether Keene’s alma mater. The ad continues: “Challenge accepted thinking. Become an expert in public law at NZ’s leading law school.” Continued on page 04 Effectively, Keene says, the question is a challenge to the 03
Continued from page 03
The document notes that s 4 of the Act requires, among other things, that lawyers uphold the rule of law and facilitate the administration of justice. The panel also wants to test whether there is a case for creating a new obligation for lawyers – that the ban on corporatisation for law firms should be abolished they uphold the constitutional principles of New Zealand and non-lawyers be permitted to have financial stakes in law “including the treaty, or whether the current rule of law firms and whether firms could be multidisciplinary in a similar obligations is broad enough to encompass this way to accounting firms. principle”. The panel is considering ways of honouring It prethe Treaty of Waitangi “and the bicultural Keene questions the need for this, along with supposes foundation of Aotearoa New Zealand”. the assumptions behind the discussion paper’s As part of its remit, the panel will explore next comment – that adding this obligation that Māori whether the core provisions of the Lawyers and could be “a positive modernising step for a are entitled Conveyancers Act 2006 should be revisited, profession that is increasingly recognising its to separate including the purpose statement and “how the bicultural foundations and places greater weight treaty should be incorporated into the Act and on cultural competency and training”. On this treatment whether legislation should specify the objectives point, the panel says it welcomes lawyers’ views. and rights of the regulator”. Another example of an untested assumption which are not is a section of the discussion document that Keene takes issue with the assumptions behind the word “how”. In his view, the document available to references the Federation of Law Societies in should have asked “whether” the profession Canada which, in 2021, published a list of guiding the world in thought the treaty should be incorporated in the principles for fostering reconciliation. general legislation and, if so, how that might be done. As the discussion document puts it: This assumption runs right through the “This statement indicates that lawyers have document, he says. For example: “We are also responsibilities to expand their knowledge and interested in how the regulation and representation of lawyers understanding of indigenous perspectives and knowledge and in Aotearoa New Zealand can further incorporate tikanga and to take steps to ensure they are not contributing to the harms te reo Māori.” their indigenous clients experience when engaging with the The document also makes it clear that the panel’s terms of justice system.” reference have been drawn up through a Treaty of Waitangi Keene says he’s not confident the review will end well. “The lens. “Te Tiriti o Waitangi is not just a discrete component profession doesn’t have the balls to do anything other than say of this review,” it says. Rather, it is woven through the entire ‘this is going to be difficult, but the will of the government is the discussion paper. will of the government’.” ■
NEW TITLE
ADLS New Zealand Lawyers Directory The May - October 2022 edition of the ADLS New Zealand Lawyers Directory is now published. It is the only directory that uses information from the ADLS database, making it the most comprehensive and up-to-date directory of lawyers in the market. Sections include: barristers, firms by area, firms’ details, practitioners in alphabetical order, practitioners – corporate, nationwide, legal executives. Other useful information includes: LINZ, QVNZ, Inland Revenue, notaries public, government departments, legal aid, statutory
04
bodies, courts and tribunals, Crown Law Office, community corrections offices. Price for ADLS members $75.00 plus GST* Price for non-member lawyers $90.00 plus GST* To purchase this directory please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz * + Postage and Packaging
Aug 5, 2022 Issue 26
TRUST LAW
The trustees’ self-dealing rule is less strict than you might think A self-dealing transaction can be approved by the court in various circumstances – for example, if there is an independent valuation of at trust asset, and the valuation is approved by the court
Anthony Grant One of the fundamental rules in the law of trusts is that a trustee must not self-benefit. The rule has always seemed to me to be too harsh. If a trustee is willing to pay a better price than anyone else for a trust asset, why should the beneficiary not get the better price? In fact, the rule is not as strict as is commonly understood. A self-dealing transaction can be approved by the court in various circumstances – for example, if there is an independent valuation of at trust asset, and the valuation is approved by the court. When approving a sale to a trustee, the Court of Appeal in England has said it is entitled to take into account a wider range of matters than the trustees can, meaning a court may reach a decision that is not available to the trustees on the material available to it. The court then directs the trustees what to do. They cannot be in breach of a duty in selling at the direction of the court. Powell J has recently delivered a decision on this topic in which a trustee was authorised to buy a trust asset (it’s a business) at a particular price. In doing so, Powell J has referred to three English cases. The first was Mills v Mills [2015] EWHC 1522 (Ch) where it was held that a court has a discretion to authorise a self-dealing transaction both prospectively and retrospectively, after evaluating the transaction on its merits. The second was Brown v Brown [2019] EWHC 138 (Ch) where an independent valuation was obtained and the price the trustee was willing to pay was above market value. The third case was Chaston v Chaston [2018] EWHC 1672 (Ch) where the High Court dismissed an appeal by a beneficiary who argued that the property in question should be
Anthony Grant
placed on the open market as opposed to being sold at a price determined by a valuation exercise. In the case Powell J has decided, the only affected person consented to the sale, subject to his approval of the agreement for sale and purchase. At the time of writing this article, Justice Powell’s decision is not available for public distribution. His decision is sensible and is in the best interests of trustees and beneficiaries.
Restraint removed
A court may reach a decision that is not available to the trustees on the material available to it
There has been another significant High Court case involving an application to approve the sale of real estate in a falling market. Section 133 of the Trusts Act say a trustee “may apply for directions about … the performance of any function by the trustee.” Section 133 is a statutory re-enactment of s 66 of the Trustee Act 1956, albeit in a somewhat different form. The restraints the courts had imposed on the use of that section were substantially removed by Justice Kós in NZ Māori Council v Foulkes [2014] NZHC 1777, 29 July 2014 where he held that the simple authorisation in s 66 had “become engrafted with a body of qualifying case law” which was in danger of depriving trustees of the statutory right to seek directions from the court. It is interesting to see how two judges have recently approached a request to allow the sale of a trust real estate asset in a declining property market. The first case is In the Estate of JD Moleta [2022] NZHC 1763, 21 July 2022. A trustee asked the court to sanction the sale of a property “for the best price offered” after the “conclusion of
Continued on page 09 05
OPINION
Independent review panel: here’s what lawyering could look like if practitioners stay silent
Photo: wenjin chen / Getty Images
Nick Kearney
I struggle with seeing how, in my role as a lawyer giving advice and assisting clients with their everyday business in private practice issues, it should be a fundamental obligation of mine when giving such advice to also take into account Te Tiriti and/or its principles 06
With 12 August rapidly approaching, I fear the “once-ina-generation” opportunity to submit on the discussion document that proposes fundamental changes to the profession is being missed or overlooked by those at the coalface. And it is those at the coalface, and those who will be at the coalface for the immediate future, who have the most to lose by staying silent and doing nothing. I applaud the work of the panel that has allowed for many opportunities to be involved. But I worry about the timeframe and whether it is too condensed. Over the past few weeks, as I became interested in the issues, I have discussed the consultation document with a decent number of lawyer colleagues. None had read it, nor knew what it said. I had one say, “oh that thing they want me to submit on”. This is a review commissioned by the board of the New Zealand Law Society (NZLS) and based on these comments I think the board should give serious consideration to allowing more time for members to give feedback. For myself, I have taken part in a survey, attended a Zoom webinar with the independent panel, attended an in-person event with a panel member and am in the process of completing my individual submission. The in-person event concerned me. I could practically count on one hand the number of people there and that’s in Auckland, our biggest city. So I have to question what lawyers are doing and how enlightened they are on the proposals. Moreover, will you be one of those in a few years’ time who will be writing to this
Continued on page 07
Aug 5, 2022 Issue 26
Continued from page 06 publication, complaining about how your role as a lawyer has fundamentally changed and how difficult the job has become, while asking “how the hell did we get here?” There is said to be a quote about liberty, that “the price of liberty is eternal vigilance”. I am not sure how accurate that is, but what I do know is that if the profession does not submit in large numbers by 12 August, the tyranny of the minority may well prevail.
How we got here It’s prudent to revisit history. The Independent Review Panel that issued the discussion paper came about after a report from Dame Margaret Bazley into the disclosures in 2018 of reports of sexual harassment of young lawyers and summer clerks at Russell McVeagh. In March 2020, a steering group decided the terms of reference for the panel to investigate whether the entire profession needed a shake-up. As is often the case, while the Bazley report focused on the culture and behaviour inside one law firm, the seven-member steering group developed terms of reference that were much wider in scope. As panel chair Ron Paterson said at the time, “the panel has been given a wide-ranging brief to examine whether the current model for regulating lawyers is fit for purpose”. So from one report involving incidents at one law firm, there is now a wide-ranging brief to examine whether the current model for the entire profession is fit for purpose. To fix a problem, first you must identify the cause rather than attack the symptoms. But further, one must always ask whether there is something actually broken that needs fixing.
The brief The discussion document has six areas where reform is suggested, or proposed. These are: ■ The current state of legal regulation and representation; ■ The focus and scope of regulation, including how the statutory framework might appropriately reflect the role of Te Tiriti o Waitangi; ■ The role of the regulatory framework in promoting a positive and diverse legal profession; ■ Whether the current model for regulating conduct and handling complaints is fit for purpose; ■ Whether there should be a regulator of the legal profession that is independent of the professional membership organisation; and ■ Suitability of the NZLS governance structure and the optimal institutional arrangements for a modern regulator
and/or representative body. Of these six areas, and after taking part in the some of the consultation, three concern me and it’s clear they are interrelated. ■ How the statutory framework might appropriately reflect the role of Te Tiriti o Waitangi; ■ The role of the regulatory framework in promoting a positive and diverse legal profession; and ■ Whether the regulator should be independent of the professional membership organisation. The discussion document says the panel is applying “a Te Tiriti and tikanga Māori ‘lens’ across all the issues in the terms of reference”. In the feedback sessions I have been involved in, the panel members have been at pains to point out that they want submissions on whether Te Tiriti should be included in ss 3 or 4 of the current Act. Section 3 is the purpose section. The current purposes are to maintain public confidence in the provision of legal services; to protect consumers (our clients); and to recognise the status of the legal profession and provide for the fundamental obligations of lawyers and conveyancing practitioners. Nobody would argue with these. It is plausible that these purposes could be extended to include honouring te Tiriti and/or its principles. Section 4 outlines what the fundamental obligations of lawyers are. The current fundamental obligations reflect exactly what I understood the role of lawyers to be in any jurisdiction and the important role they play in upholding the rule of law. Indeed, the first fundamental obligation is just that: To uphold the rule of law and to facilitate justice. Following that, lawyers’ fundamental obligations focus on independence and to act in accordance with fiduciary obligations and other legal duties but most importantly to uphold their duty to the court. These are powerful and serious duties. Nobody would question them. If one looks back into history, it is lawyers who have consistently challenged the power of the State. It is lawyers who have protected minorities and those subjected to brutality and oppression. And it has been lawyers who have challenged things which, as a gut instinct, “haven’t been quite right”. The current fundamental obligations of lawyers in s 4 essentially support all of these actions taken by lawyers over the course of history, including in Aotearoa New Zealand.
Nick Kearney
One possibility is that it will be compulsory in your job as a lawyer delivering a regulated service to learn te Reo and/or to have yearly compulsory training in Te Tiriti and its principles
Continued on page 08 07
Continued from page 07 Relevance of the treaty? I’m proud of our country and the way consecutive governments have met head-on the incorporation of the principles of Te Tiriti into treaty settlements and in some instances through the interactions we have with Crown agencies.
should but I do not think it should be compulsory. The question is rather: “Should it be compulsory in our role as a lawyer in private practice?” Another answer to this is found in Rule 3.9. It says, “A lawyer must undertake the continuing education and professional development necessary to ensure an adequate level of knowledge and competence in his or her fields of practice (emphasis added). This confirms my general understanding, and that of the laypersons I have spoken to, relating to what a lawyer’s fundamental role is. Lawyers protect clients’ interests. They always have. They need to be able to continue to do this by undertaking training, upskilling and development in the areas of law in which they operate. Surely this is the only thing CPD should be focused on. It makes sense and I would argue, backed up by the laypersons I have spoken with, that it is the only thing lawyers should be required to focus on.
However, Te Tiriti is a document that involves the Crown’s relationship with Māori and at a legal level it is a public law document. Considering that, our public law system needs to involve it. But I have to admit that I struggle with seeing how, in my role as a lawyer giving advice and assisting clients with their everyday business in private practice, advising on private law issues, it should be a fundamental obligation of mine when giving such advice, to also take into account Te Tiriti and/or its principles. Regulatory reform When I review a shareholders agreement for a client or a lease or when I am preparing a simple will for a lovely old lady My final two comments relate to the proposed regulatory who has come to see me because she does not have one, reforms and the focus on diversity. considering the principles of Te Tiriti are not It seems obvious to most people, including what I’m looking for in the legal issues. me, that the representative role should be I think we Simply put, they’re just not relevant. I think separated from the regulatory role. need to be we need to be very careful with saying that It’s also entirely plausible that lawyers could the principles of Te Tiriti is fundamental to all lose their self-regulation and may end up very careful lawyers’ actions across the board and across facing the wrath of an independent regulator. with saying the country. As a side issue to this, one aspect up for Another aspect of the discussion document that the discussion is whether the regulator, whoever that concerns me, and it is related to the that may be, has the power to sanction firms principles of prospective inclusion of Te Tiriti into s 4, is the directly, not just lawyers. One of the panel Te Tiriti are potential to have Te Tiriti and te Reo included members made the point at a meeting I fundamental attended that an apparent frustration arising in our CPD requirements. to all lawyers’ from the Russell McVeagh debacle was that Currently, CPD is required only for lawyers delivering “regulated services”, as that term is actions across the regulator was powerless to do anything defined in the legislation. Regulated services the firm’s role in such behaviour. the board and about are those legal services that only lawyers can It’s not illogical to conclude that if the across the perform. They are the “monopoly” that others s 4 amendments are included, and following complain we have. from that our CPD requirements then include country I have mentioned to laypersons the training in te Reo and te Tiriti, and firms don’t potential expanded scope of CPD to include have adequate policies and programs to te Tiriti and te Reo learnings. The unanimous address these, the regulator can be involved response is that they would rather their lawyer developed his and initiate an inquiry against the firm for such breaches and or her skills on legislative changes, case law and the like. potentially fine the firm for breaches of the Act. The important aspect about this, and there are a few Perhaps the regulator should have the power to sanction important aspects to be fair, is the abbreviation “C” in CPD. For firms directly. I don’t really have a firm view on that yet. But the uninitiated, that is Compulsory. I am firmly against the regulator being able to intervene in a Yes, one of the possibilities is it will be compulsory in your firm and sanction it because the firm, a private business, has job as a lawyer delivering a regulated service to learn te Reo failed to organise te Reo classes for its employees or hasn’t and/or to have yearly compulsory training in Te Tiriti and its sufficiently taught the principles of Te Tiriti. principles. I can hear you asking “but so what? Shouldn’t lawyers Continued on page 09 have an understanding of these things?” Potentially, everyone 08
I am firmly against the regulator being able to intervene in a firm and sanction it because the firm, a private business, has failed to organise te Reo classes for its employees or hasn’t sufficiently taught the principles of Te Tiriti
Aug 5, 2022 Issue 26
Continued from page 08
Continued from page 05
Keep it relevant
an appropriate advertising campaign”. In March this year, the trustee had received a conditional offer to buy the property for $865,000. On the same day, the Auckland Council issued a CV for the property, giving its value at $1.8 million. A week later a respected firm of valuers assessed the market value of the property at between $1.15m and $1.3m. Real estate agents were instructed to seek further offers and the best they could get was $870,000. In the following month, the valuers advised that a “realistic sale price as at May 2022” would be between $1m and $1.15m but that any offer of more than $1m “should be considered carefully”. The valuers said the CV of $1.8m was “completely unrealistic”. Peters J refused to approve the sale, saying “the order proposed is ‘open ended’ in the sense that it would authorise the applicant to sell the … property for any price, no matter how modest, provided that it was the best offered after a marketing campaign (of which no specifics have been advised).” [25] The disappointed trustee may find some assistance from the recent decision of Justice Powell described earlier in this column. That case was concerned with two sales: the sale of a business as a going concern and the sale of some real estate. In the case over which Powell J presided, the trustees described their proposed process for the sale of the real estate as involving the following actions: ■ Three appropriately qualified agents would be approached to give an appraisal and a proposal, including commission, a recommended sale process, marketing and timeframe; ■ The trustees’ consultant would then choose the agent he considered represented the best value and the best prospect for securing the highest attainable price for the land and buildings and he would follow the sale process the agent recommended; and ■ The consultant would commission new valuations for the land and buildings and would be guided by the valuations in setting price expectations for them. Justice Powell said he was “satisfied that the proposed process for the sale of the land and buildings is appropriate”. He nevertheless directed that “in the event [that] the sale process for the sale of the land and buildings materially diverges from the process outlined by [the trustees’ consultant] the executors must seek approval of that alternative process”. Powell J’s approach has the benefit of providing ongoing assistance to a trustee. Kós J described the purpose of s 66 as being the resolution of “any uncertainty as to the exercise of a power” and it is desirable that the court should be able to provide constructive assistance to trustees. As things stand, the trustee in the Moleta case is left with considerable uncertainty about his options. Such uncertainty is undesirable and the trustee in that case may want to propose a more detailed plan of sale of the type Powell J has approved. ■
My view is that any sanctions of a firm should relate only to the legal advice given, the service clients are getting and the way the firm performs the essential functions lawyers are trained for. The way I see it, these changes are not only unnecessary but also have the ability to make our already difficult job much harder and we run the risk as a profession of taking our eye If the of the ball. profession We have recently seen this with the AML laws. does not I don’t think there is much doubt that lawyers, submit in particularly property lawyers, are now essentially a private investigator and evidence-gatherer for large numbers the government in relation to purported criminal by 12 August, enterprises. the tyranny of Property lawyers also collect tax data for Inland Revenue, and in some instances withholding tax, the minority to allow Inland Revenue to do its job. I clearly recall may well the difficulties and work involved in this when tax prevail statements were introduced. In a recent webinar, a tax practitioner labelled the bright-line rules as possibly the most complicated piece of legislation in the country. My concern is that the fundamental and essential core roles we have are slowly being undermined and we face “distractions”. It’s probably prudent to consider an analogy with what has happened to the Reserve Bank recently and the criticism it has faced by taking its focus off its core task of controlling inflation.
Compulsory quotas Finally, encouraging firms to be more diverse in a multi-cultural country that is modern Aotearoa New Zealand is extremely positive and well-meaning. But wellmeaning enterprises can unravel if not based on solid principles. There has been talk of firms being required to publish data on how “diverse” they really are and it isn’t a stretch to conclude that this may well be a requirement the outside regulator can enforce. Some firms already voluntarily do this, which is excellent to see. Again, the question focuses on compulsion. I fear if we allow this to creep in, the logical next step is for firms to have minimum numbers of certain ethnicities and gender – quotas, if you like. It’s possibly a question of “be careful what you wish for”. At the firm where I work, there are 35 staff, with just three being male. If males were included in the quotas, our female staff numbers would potentially have to reduce. Signing off, I just want to say there are more than 16,000 lawyers in Aotearoa New Zealand. It might well be that a majority submit and argue that these changes should be made. My concern is that a significantly large number of practitioners are unaware of these matters as they battle away at the coalface, trying to complete their timesheets, AML, manage their clients’ and staff’s expectations and concerns and give outstanding legal advice in this ever-changing legislative world. I simply ask everyone to pay attention and submit to the Independent Review Panel by 12 August. ■ Nick Kearney is a special counsel at Davenports Law. These views are his own and don’t necessarily reflect the opinions of his firm ■
Anthony Grant is an Auckland barrister specialising in trusts and estates ■ 09
Photo: pkline / Getty Images
HEALTH
New Zealand’s ‘tobacco endgame’ law will be a world first for health In all our previous research, we have never seen a single health intervention with the potential to reduce health inequities this much
Tony Blakely, Andrew Waa & Driss Ait Quakrim With the first reading of a new bill in Parliament last week, Aotearoa New Zealand’s plan to be smokefree by 2025 takes another tangible step forward. The Smokefree Environments and Regulated Products (Smoked Tobacco) Amendment Bill will now go to the Health Select Committee for submissions and review, and (presumably) return to the House in late 2022 to be passed into law. Assuming the final legislation looks similar to what is being proposed, it will mean Aotearoa New Zealand leapfrogs all other countries to be at the vanguard of tobacco control, with policy settings aimed at getting smoking prevalence beneath 5% of the adult population within years rather than decades. The bill provides for three key strategies: ■ drastically reducing nicotine content in tobacco so it is no longer addictive (known as “denicotinisation” or “very lownicotine cigarettes” (VLNC)); ■ a 90% to 95% reduction in the number of shops that can sell tobacco; and ■ making it illegal to sell tobacco to people born in 2009 or later, thus creating a smokefree generation. If implemented effectively, this is anticipated to have a profound impact on smoking.
Reducing Māori health inequity If successful, this would be a monumental achievement for generations of tobacco-control advocates and researchers. The concept of a “tobacco endgame” will move beyond aspiration and into reality. We’ve got to this point after decades of Māori leadership, research and advocacy, with the proposed legislation having 10
its roots in the aim of reducing health inequities between Māori and non-Māori. This kaupapa (principle or policy) has driven the process and is supported by Māori communities. Much more will be written in coming months about this ground-breaking legislation. Here we focus on the modelling we were commissioned to provide by the government in 2021-2022 on the potential health and cost impacts of the Smokefree Aotearoa 2025 Action Plan. Our findings underpinned the regulatory impact statement that sets out the options to regulate tobacco products as part of the action plan, which Cabinet considered in early 2022.
Large reductions in mortality In our work at Otago University’s BODE3 program and the University of Melbourne’s Scalable Health Intervention Evaluation (SHINE) we model many potential public health interventions, from dietary counselling and reducing salt in bread to the evaluation of screening programs and drug treatments. We tally the likely health gains from these interventions and how much they might reduce inequities in health. When we do this for the government’s tobacco endgame strategy, the forecasts are breath-taking. Consider reductions in health inequities between Māori and non-Māori. First, we forecasted what Māori and nonMāori mortality rates will be in 2040 . Second, we estimated how much smoking (and vaping) rates would change into the future for the combined endgame policy (denicotinisation, retail reduction, smokefree
Continued on page 11
Aug 5, 2022 Issue 26
Continued from page 08 generation regulations, augmented by some media promotion of the policy). Third, allowing for time lags, we modelled future disease rates (for example, lung and heart disease) and then the overall impact on mortality rates. We then compared the gap between Māori and nonMāori mortality or death rates in 2040 if there were no major policy changes and under the combined tobacco endgame strategy. For those aged 45 and over, the gap was reduced by a staggering 22.9% for Māori females compared to non-Māori females and a still very large 9.6% for males.
Longer, healthier lives In all our previous research, we have never seen a single health intervention with the potential to reduce health inequities this much. Why is a tobacco endgame so powerful at reducing Māori and non-Māori health inequities? Because smoking is so bad for health, smoking rates are particularly high among Māori and Māori also have higher smoking-related disease rates. Therefore, Māori see more health gains from the dramatic falls in tobacco smoking that will result from the policy. (NonMāori also see large gains – just not as much per capita as Māori.) What about overall health gains? Our modelling suggests over the remaining lifespan of the New Zealand population alive in 2020, the tobacco endgame strategy will result in an extra 600,000 “health-adjusted life years” lived (a measure of the impact of those interventions on life expectancy,
adjusted for quality of life). To put this in perspective, this amount of health gain – accruing just to those people quitting smoking earlier or not taking it up, a minority of the population – is equivalent to the health gains that would result from a policy taxing sugar, fat and salt in all foods and removing the GST on healthy food.
Major health savings Not only is this endgame policy increasing the health of the nation, it is also reducing future health expenditure. We estimated $1.3 billion of health system costs would be avoided in the next 20 years. These savings can be used for other things, such as mental health and dementia care. And while the government will lose tax revenue from drastically reduced tobacco sales, the overall health of the population increases, meaning more people are in work for longer. We estimated an income gain to the New Zealand population of $1.4b in the next 20 years, which means more tax revenue as well. All modelling of the future is uncertain. But even allowing for that uncertainty, the health gains, the health inequity reductions, the savings in health expenditure and the increased income productivity of New Zealanders that will result from this tobacco endgame strategy will be large. ■ Tony Blakely is a Professor of Epidemiology at the University of Melbourne, Andrew Waa is a lecturer in Public Health at the University of Otago and Driss Ait Quakrim is a senior researcher at the University of Melbourne ■ The above was first published in The Conversation and is republished with permission
Our modelling suggests over the remaining lifespan of the New Zealand population alive in 2020, the tobacco endgame strategy will result in an extra 600,000 ‘health-adjusted life years’
NEW TITLE
Burrows, Finn and Todd on the Law of Contract in New Zealand, 7th edition Authors Stephen Todd and Matthew Barber This new seventh edition discusses many significant developments in case law and legislation over the past four years. The topics containing new and substantial material include contract formation, contractual interpretation, terms implied in fact, cancellation, misrepresentation, duress, undue influence and unconscionable bargains. New discussion in the field of damages includes the award of negotiating damages, the test for remoteness, damage within the
scope of a contracting party’s duty and the ambit of the doctrine of penalties. Price for ADLS members $156.52 plus GST* Price $173.91 plus GST* To purchase this book please visit https://adls.org.nz or contact the ADLS bookstore by phone: 09 306 5740, fax: 09 306 5741 or email: thestore@adls.org.nz * + Postage and packaging
11
FEATURED CPD
The law and the wellbeing of tamariki ALL-LEVELS FAMILY SEMINAR
Seminar | Livestream 2 CPD hours Thursday 18 August 4pm – 6.15pm Price from $130 +GST Presenters Judge Sharyn Otene; Alison Cleland, senior lecturer, AUT and Anthony Dickson, principal advisor, Oranga Tamariki Chair Judge Emma Parsons
‘Court’ by forensics workshop
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
Workshop 4 CPD hrs Saturday 20 August 9am – 1.15pm Price from $300 +GST Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd
LIVESTREAM
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.
ALL-LEVELS CRIMINAL WORKSHOP
FIND OUT MORE
Drafting complex wills ADVANCED WILLS WORKSHOP
Workshop 3.5 CPD hrs Tuesday 23 August 9am – 12.45pm Price from $300 +GST 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
FIND OUT MORE 12
Aug 5, 2022 Issue 26
adls.org.nz/cpd
Dealing with media ALL-LEVELS GENERAL WEBINAR
Webinar 1.5 CPD hrs Tuesday 30 August 4pm – 5.30pm Price from $100 +GST Presenters Jenni McManus, journalist and LawNews editor; Brenda Newth, PR consultant and Samira Taghavi, barrister and practice manager, AM Legal
cpd@adls.org.nz
09 303 5278
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
Choosing a business structure FOUNDATION COMMERCIAL LIVESTREAM
Livestream 2 CPD hrs Wednesday 31 August 4pm – 6pm Price from $130 +GST Presenters Bevan Miles, partner, Chapman Tripp (tax); and Greer Fredricson, special counsel, Chapman Tripp (corporate and commercial)
SCA (NZ) unit titles conference
ALL-LEVELS PROPERTY CONFERENCE
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
FIND OUT MORE
In Person | Livestream 4 CPD hrs Thursday 8 September 12.30pm – 5pm Price from $340 +GST Presenters and panellists Vicki Toan; Paula Beaton; Julie McLean; Bryan Easton; Joanna Pidgeon; Christine Cechova; Ben Thomson and Tim Jones
IN PERSON
Join us in person or via livestream for this ADLS/SCA (NZ) half-day conference. Hear from a range of experienced and engaging presenters and panellists on key topics including intensification, case law, wellness, and the Unit Titles (Strengthening Body Corporate Governance and Other Matters) Amendment Act. Chairs and presenters Liza Fry-Irvine, director, Liza Fry-Irvine Law and Thomas Gibbons, principal, Thomas Gibbons Law LIVESTREAM 13
CPD IN BRIEF
Leading your career
Wellington workshop 8 CPD hrs Tuesday 13 September 8.45am – 5pm Price from $775 +GST Facilitators Miriam Dean QC and Liz Riversdale, Catapult
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.
FIND OUT MORE
New Incorporated Societies Act
Effectiveness in the ERA
Livestream | In Person 2 CPD hrs Tuesday 27 September 4pm – 6.15pm Price from $130 +GST 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.
In Person | Livestream 2 CPD hrs Thursday 29 September 4pm – 6.15pm Price from $130 +GST Presenters Vicki Campbell; James Crichton; Anthony Drake and Jenni-Maree Trotman
Practical insights and advice on effectively representing your client in the Employment Relations Authority and tips on the advocacy skills needed to get the best outcome.
FIND OUT MORE
IN PERSON
Making restorative justice work
In Person | Livestream 2 CPD hrs Tuesday 18 October 4pm – 6.15pm Price from $140 +GST Presenters Samira Taghavi; Helen Brown; Trevor Slater; Colin Rose and Jean Staples Chair Judge Phil Recordon
Don’t approach restorative justice as just another box you need to tick to proceed through the criminal justice system. Benefit from practical insights into how you can make the most of the restorative justice process and how it can serve the needs of all parties to the litigation.
IN PERSON
Choosing a Business Structure: Key Legal & Tax Considerations Wednesday 31 August | Livestream | 2 CPD hours Visit adls.org.nz for more information.
14
LIVESTREAM
LIVESTREAM
Aug 5, 2022 Issue 26
Events Featured events
Connecting New Zealand lawyers
Upcoming
Hawke’s Bay lawyers’ lunch
September
Wednesday 17 August 12.30pm – 2pm East Pier Hotel, 50 Nelson Quay, Ahuriri, Napier, Hawke’s Bay
October
Wednesday 28 | Takapuna lawyers’ lunch
Thursday 20 | Arthur Young’s retirement dinner
Learn more
Soon to be added:
Christchurch lawyers’ lunch Wednesday 24 August 12.30pm – 2pm Dux Central, 6 Poplar Street, Christchurch, Canterbury Sponsored by MAS
November | Immigration dinner with the Minister of Immigration November | New Plymouth Sundowner November | East Auckland lawyers’ lunch November | Tauranga Sundowner December | Northland lawyers’ lunch
Learn more
Tauranga express lawyers’ lunch Wednesday 31 August 12.30pm – 2pm Miss Gee’s Bar & Eatery, 3/59 The Strand, Tauranga Sponsored by MAS
Photo: Eugene Mymrin / Getty Images
Learn more
Wellington express lawyers’ lunch Wednesday 19 October 12.30pm – 2pm Flamingo Joe’s Bar & Eatery, 1/10 Waterloo Quay, Pipitea, Wellington Learn more
Book Here
events@adls.org.nz
adls.org.nz
15
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
AUCKLAND PRACTICE FOR SALE OR AMALGAMATION Long-established, very profitable firm with a diverse client range, covering estate planning, elder law, deceased estates, property and commercial law practice areas. • Excellent premises and systems.
• Excellent and competent staff.
Seeking a sale or merger but the opportunity may well suit an experienced younger practitioner looking for a partnership, ideally with a client base. Expressions of interest in strict confidence to: advertiser@adls.org.nz quoting ref: APSM
( 09) 303 5270
ABRAHAM Araroa
• Aged 63 / Died on or about 20’08’21
Cruickshanks Solicitors Privy Council Agents
• Late of Te Atatu South, Auckland • Social worker • Aged 60 / Died 22’06’22
RATTRAY Susanne Katherine
• • • •
AUKETT Allen Claude • Late of 1685 Paeroa-Tahuna Road, Tirohia, Paeroa • Married • Field technician • Aged 63 / Died 05’04’22 LAI Lai Seung
• Late of 3/37 Natzka Road, Ostend, Waiheke • Widow • Retired • Aged 78 / Died 05’07’22 SIMS Lesley May • Late of Elgin Grove, Merrilands, New Plymouth • Divorced • Retired caregiver • Aged 61 / Died 12’07’22
• Late of 9 Craigavon Drive, Dannemora, Auckland • Housewife
Probate and resealing Property (Relationships) Act 1976 agreements Agency litigation Sole representative of overseas office, inter company transfers and work permits generally • Property UK and European investment • China network connections and representation
10 Bentinck Street, London W1U 2EW Tel: (0044) 020-7487 4468 • Fax: (0044) 020-7487 5466 • Email: john@lawco.co.uk www.cruickshanks.co.uk • www.lawco.co.uk
Trevor J Shiels QC, FAMINZ (Arb), T.E.P Barrister and Arbitrator I have practised as a barrister based in Dunedin for nearly three decades, having previously been a partner in a general practice firm. I have now also joined Eldon Chambers in Auckland and I am available for instructions nationwide for advice and representation in civil disputes and proceedings, including in particular: • Real property disputes including sales and purchases, leases, caveat proceedings and Property Law Act matters, • Estates and trusts,
This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week. Get your message in front of them. Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz
• Relationship property, • Contractual disputes. I am an experienced arbitrator and a member of the AMINZ Arbitration Panel and I accept appointment as an arbitrator nationwide. Contact details: Website: trevorshiels.co.nz
Email: office@trevorshiels.co.nz Mobile: +64 21 936119
DUNEDIN Ten George Chambers L2, Burns House,10 George Street Dunedin +64 3 477 4030
AUCKLAND Eldon Chambers Level 3, 9 High Street Auckland CBD +64 9 300 7477 Photo courtesy of ODT
16
Aug 5, 2022 Issue 26
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
E cpd@adls.org.nz
W adls.org.nz/cpd
4 CPD HOURS
Personal Effectiveness Workshop Thursday 17 November | 9am - 1.15pm | Online Workshop
Returning for a further session in 2022, this wellreceived workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant. T 09 303 5278
E cpd@adls.org.nz
W adls.org.nz/cpd
17