LawNews - Issue 29

THIS WEEK’S ARTICLES

Issue 29 28 Aug 2020

Covid-19: Family Court streamlines overseas surrogacies p1

A precedent for digital signatures p7

Can Kiwi voters be manipulated?

Pages 8 & 9

LawNews adls.org.nz

FAMILY LAW

Covid-19: Family Court protocol for overseas surrogates

By Jenni McManus

The Family Court has set up a streamlined adoption-application process to help families expecting babies through overseas-based surrogates.

Spearheaded by Principal Family Court Judge Jacquelyn Moran, the move is a bid to help families who, under the current Covid-19 restrictions and delays, might otherwise encounter difficulties in returning to New Zealand with their babies.

Prior to the protocol, in these cases an overseas passport would be issued for the baby in the country in which he or she was born. After a DNA test, the Immigration Minister would issue a visitor visa for the baby when he or she arrived in New Zealand. The parents would then file for adoption in the Family Court and, if this was successful, a New Zealand passport would be issued for the baby.

But global Covid-19 restrictions have made this process increasingly difficult. The main sticking point is getting a passport for the baby in the country in which he/she is born.

The backlogs are long: Judge Moran told LawNews the US has about 1.4 million passport applications waiting to be processed. The parents, meanwhile, will usually be on temporary visas or an esta waiver which could run out before their baby’s passport application is dealt with.

“This has the potential for surrogate babies being unable to travel to New Zealand with their parents,” Judge Moran says. “Although the number of families involved is relatively small, it is important the Family Court is flexible enough to meet the

© Gillian Blundell | Dreamstime.com

Judge Moran says about 15 families are affected but the number could be higher. The Family Court’s new Covid-19 Protocol is a temporary measure, designed to help parents who have babies due to be born overseas in the next few months, mostly in the US and eastern Europe.

Once adoptions are approved, New Zealand passports can be issued for surrogacy babies born overseas

This is an example of the court ensuring that it is acting in the best interests and welfare of children needs of our most vulnerable. Babies don’t wait and to complicate things, the New Zealand parents may be in a foreign country on a time-restricted visa, waiting indefinitely for a birth certificate or passport for their new baby.”

Judge Moran says until March this year, the US had a process for expediting passport applications for babies born through surrogacy. But that was

scrapped once Covid-19 began to bite and parents are now required to use the standard process.

Judge Moran says there are similar problems in other jurisdictions where these babies are born. In some cases, there are problems in getting even a birth certificate. “So, we needed a process that was streamlined and quick.”

So, after consultation with the Ministry of Justice, Immigration staff and other agencies involved in administering international surrogacy and adoption, the Family Court has designed a temporary fix that will see the application for adoption being heard remotely via AVL and determined quickly and safely while the parents and the baby are in the country of the baby’s birth.

Continued on page 2

FAMILY LAW

Covid-19: Family Court protocol for overseas surrogates Continued from page 1 “Where certain criteria are met, this will enable an adoption order to be issued while the parents and baby are overseas, conferring New Zealand citizenship on the babies and a New Zealand passport can be issued,” Judge Moran said.

This means that a process that would normally take up to nine months can now be completed in about six weeks. “It was a cooperative inter-agency approach.”

The Adoption Act 1955 already allows an adoption application to be considered when the applicants and baby are not in New Zealand.

Two dedicated judges, Judge Belinda Pidwell in Waitakere and Judge Mary O’Dwyer in Wellington, will oversee and manage the process.

As an example of how the system can work, Judge Moran says a New Zealand passport is on its way to Hawaii for a baby girl born a couple of weeks ago. Judge Pidwell made the final adoption order on Monday this week and it’s anticipated the family will return to New Zealand with their baby within a fortnight.

“It’s a superb process to ensure that these little buttons can come back to New Zealand where they belong,” Judge Moran says.

“From my perspective, this is an example of the court ensuring that it is acting in the best interests and welfare of children. That was the reason I developed the protocol immediately after learning of the predicament of these families. We couldn’t countenance a situation where babies were completely unable to come home with their parents.”

Judge Belinda Pidwell

Principal Family Court Judge Jacquelyn Moran

The main sticking point is getting a passport for the baby in the country in which he or she is born

The protocol will apply in overseas surrogacy cases only where passports in the country of the baby’s birth can’t be obtained in a timely manner due to Covid-19 restrictions.

It’s not intended to replace or undermine the existing framework where the NZ government manages international surrogacies. Rather, the protocol is a temporary, targeted response to the specific issue of the inability to get a passport in the country of the baby’s birth.

It will operate until 1 March 2021 when it will be reviewed.

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LawNews Issue 29 | 28 Aug 2020

TRUST LAW

Webb v Webb: bundle-of-rights case undoes trusts Although New Zealand severed its links with the Privy Council in 2003, we retain a tenuous link with that court via the Cook Islands, which has kept the Privy Council as its final appellate court.

We now have a decision from the Privy Council on the bundle of rights – Webb v Webb [2020] UKPC 22.

The Cook Islands (CI) adopted the Matrimonial Property Act 1976 (NZ) and the Webb decision involves two trusts the Privy Council has set aside in the context of matrimonial property litigation.

The judges in the High Court and the Court of Appeal of the Cook Islands were all from New Zealand (Potter J in the High Court and Fisher, White & Grice JJA in the Court of Appeal). A decision from four New Zealand judges interpreting a New Zealand statute and the New Zealand approach to trust invalidity is of direct relevance to the law of this country.

Dragons’ Den star Paul Nigel Webb and his wife Rosemary Julia Webb were New Zealand citizens at the time of the hearing and Paul Webb was living in Auckland. In one of the trusts he was the settlor, the sole trustee, the “consultant” and one of two beneficiaries. (The “consultant” had wide powers in relation to the trust.) The other trust was similarly structured in his favour.

His wife said the trusts were shams but this argument was rejected on the grounds that they were intended to operate as trusts.

Lord Kitchin, in delivering the opinion of the majority of the judges, held that the trusts should be set aside on the grounds that Paul Webb “had rights in the trust assets which were indistinguishable from ownership” and that he “had the power at any time to secure the benefit of all of the trust property to himself… regardless of the interests of the other beneficiaries.” [89] It was held that the Cook Islands Court of Appeal was “plainly entitled to find... that the trust deeds failed to record an effective alienation by Mr Webb of any of the trust property. The bundle of rights which he retained is indistinguishable from ownership.” [89] This was a two-pronged approach to trust invalidity. The first prong said Paul Webb’s wide powers enabled him to take all the trust’s assets for himself and he therefore owned the assets. The second prong said the assets had never been alienated to the trustees in the first place.

The core of the court’s finding was that Paul Webb’s powers “were so extensive that [he] can be said never to have disposed of any of the property purportedly settled on or acquired by the trusts” or alternatively that his powers “were so extensive that in equity he can be regarded as having rights which were tantamount to ownership.” [89] The court held that Webb could legitimately nominate himself as the sole beneficiary and become settlor, trustee, consultant and sole beneficiary.

Trusts that are structured so the assets can be withdrawn by the settlor whenever he or she wants them are liable to be set aside.

And in this context, the term “settlor” is to be given a broad meaning. Paul Webb arranged for his tax advisor, David Tauber (also known as Andrew Tauber), to settle one of the trusts with the sum of $10. But the court was not impressed, saying it “made no material difference” as “it was plainly intended

by Mr Webb that [the trust] would operate as a vehicle into which he could... transfer matrimonial property... it is a reasonable inference that [Mr Tauber’s] activities… in connection with his trust were carried out by him under the direction and control of Mr Webb and his nominee.” [88] The Privy Council’s decision is succinct and the lessons from it are important: the retention of excessive powers is liable to lead a court to conclude either that assets were never settled on a trust so no trust was ever created or that the powers were so comprehensive that in aggregate they make the person

Anthony Grant

who has them the beneficial owner of the assets.

A clinical analysis of the Webb case should not obscure a wider picture that the courts were facing. Paul Webb was being pursued by New Zealand’s IRD for tax liabilities of no less than $26 million and one of the questions in the appeal was whether that sum was a matrimonial debt.

Lord Kitchin said in his opinion that Webb lived in the Auckland suburb of Remuera. Which Remuera man with the appellant’s name Paul Nigel Webb had a tax exposure of that magnitude?

I think it likely that the parties to the appeal – Paul and Rosemary Webb – are the people with those names who in 2011 were fined for obstructing the IRD during a tax raid and that the appellant Paul Nigel Webb was the man with that name who was convicted by Peters J in 2018 on charges relating to tax evasion.

The nominal settlor of one of the two trusts, Andrew Tauber, was convicted with Paul Webb of tax offences, and was jailed for three years and three months.

In a submission that spoke cynically of the role of accountants, Tauber’s counsel informed Justice Mary Peters that his client – a former tax partner at EY – had not committed “blatant tax fraud” but had merely been involved in “complex tax planning” and had used the kind of “clever tricks” he said tax accountants use. This unusual submission was as unsuccessful as Webb’s claim that his trusts were genuine.

The use of trusts to shelter assets by people in grave financial difficulty is always a topic of public concern. Fortunately, in this case the settlor’s wish to structure his trusts so strongly in his favour did not bring the law of trusts into disrepute.

Anthony Grant is an Auckland barrister specialising in trusts and estates law 3

HUMAN RIGHTS LAW

Can the government, or my employer, force me to get a Covid-19 vaccine under the law?

By Maria O’Sullivan

Australian Prime Minister Scott Morrison took many people by surprise this week when he said a Covid-19 vaccine would be “as mandatory as you could possibly make it”.

Although he later backtracked on the use of the word “mandatory”, he made clear the government is aiming for a 95% vaccination rate in Australia.

There appears to be strong community support for the vaccine, but it is not yet clear there will be enough people willing to take it voluntarily to reach that target. Therefore, it is likely there will have to be some sort of incentive or compulsion by the government to ensure nationwide compliance.

What, then, are the legal limits to compelling people to be vaccinated? There are myriad questions that could be raised, such as:

Can workplaces require that workers take the vaccination as a condition of employment?

Can airlines require an immunisation certificate to permit people to travel?

The legal dynamics here are different to a government-mandated vaccination if it is required as a condition of employment which is a private law matter.

There is precedent for this: some states and territories have adopted a mandatory vaccination policy for staff working in close contact with patients or infectious materials. In the ACT, for example, all ACT Health staff are subject to an “occupational assessment, screening and vaccination procedure” requiring them to be immunised against diseases including influenza, diphtheria and hepatitis B.

We need a debate about how to balance the rights of the community with those of individuals

Can the government mandate vaccinations?

The right to bodily integrity is a fundamental legal principle in Australia. This means a person cannot be subject to medical treatment without consent.

However, there are exceptions to this under state and territory public health laws. For instance, ss 116 and 117 of the Victorian Public Health Act permit public health orders to compel people to undergo a medical examination, testing and treatment without consent if it is required to address a public health issue.

There may be a legal argument here that a vaccination is not “treatment”. But that could be dealt with via an amendment to the legislation.

Can workplaces and businesses require vaccines?

There is a strong case for requiring particular workers (for example, those in aged care facilities) to be subject to mandatory vaccinations. However, many other workplaces in Australia may also require Covid-19 vaccination certificates under Occupational Health and Safety policies.

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If there are punitive measures for non-compliance, these may be deemed as disproportionate by a court, even if it could be argued compulsory vaccines are necessary and reasonable for public health reasons.

The use of compulsory vaccination programs also has specific implications for children’s rights. The UN Convention on the Rights of the Child provides that every child has the right to “the enjoyment of the highest attainable standard of health”.

However, children also have the right to an education. Therefore, punitive measures to compel parents to vaccinate their children against Covid-19, such as keeping them out of school, could violate the core principles of this convention.

Can people argue for a vaccine exemption?

There is no recognised right to conscientious objection to vaccinations under Australian law.

Therefore, any person who is not willing to be vaccinated cannot merely argue an “objection” to it.

A religious body, however, may be able to argue a federal compulsory vaccination policy interferes with the freedom of religion protections under the Australian constitution, but that is a complex legal question.

Should people be able to claim a non-medical exemption, such as a conscientious objection to vaccines or on religious grounds?

This is an important debate we need to have about how to balance the rights of the community with those of the individual in a public health emergency and how the law should be used to ensure the efficacy of a Covid-19 vaccine.

whether there are punitive measures in place for non-compliance (for example, the use of fines or imprisonment).

Similarly, businesses could require an immunisation card to be presented as a condition of entry. This could include airlines requiring proof of vaccination as evidence of “fitness to fly”.

There are more complex legal questions when it comes to requiring vaccines for students to be admitted to schools or universities.

This was hotly debated in those states that introduced a “no jab, no play” mandatory vaccination regime for access to child care services, as well as the federal “no jab, no pay” policy.

Despite differing rules around the country, all states and territories have fairly consistent rates for childhood vaccinations, with a nationwide coverage rate of 91%. Whether the same rate could be reached for a Covid-19 vaccine remains to be seen.

Would this infringe on people’s human rights?

Challenges could be made to any compulsory Covid-19 vaccination policy under the human rights charters in Victoria, Queensland and the ACT, which aim to protect rights such as freedom of expression, thought, conscience, religion and belief.

Here, much will depend on who is requiring the vaccination (a public body or private business) and

One religious group did successfully claim an exemption to mandatory childhood immunisations — the Christian Scientists. This “conscientious objection” exemption was removed in 2016, but it does provide an example of how such an exemption could be dealt with under the law.

How to create good law during a crisis Governments clearly have an obligation to protect the public’s health and welfare and vaccinations are an important means of ensuring this.

But while punitive legal measures such as fines may be effective in compulsory mask usage, they are not necessarily going to be effective when it comes to something much more invasive like a vaccine.

Serious thought must be given, not only to what the law can do to achieve a high Covid-19 vaccination rate but also to what good law is.

That is, we must pursue measures that will be sufficiently accepted by the community.

Maria O’Sullivan is a senior lecturer, Faculty of Law, and Deputy Director, Castan Centre for Human Rights Law at Monash University This was first published in The Conversation and is reprinted with permission

LawNews Issue 29 | 28 Aug 2020

CONSTITUTIONAL LAW

What Borrowdale means for constitutional law Last week a full bench of the High Court issued a declaration that the first nine days of our Covid-19 lockdown were unlawful.

Nathan Batts, a senior associate at Haigh Lyon, was part of the team behind ADLS’ bid to be joined as an intervener in the action brought

by Dr Andrew Borrowdale against the Director-General of Health and the Attorney-General.

Here, Batts explains the constitutional significance of the court’s finding.

Andrew Borrowdale has succeeded against the government in one out of three of his causes of action.

Numerically, that might appear to be a loss. But such a simplistic analysis belies the significance of this result. It was Borrowdale’s successful first cause of action – that the first nine days of New Zealand’s level 4 lockdown were unlawful – that called the government to account and acted as a check on executive excesses.

The court’s judgment is wide-ranging (and long) and touches on several topics that in themselves could be the subject of lengthy analysis.

This article will be limited to the first cause of action. It was this that alleged that for nine days between 26 March 2020 and 3 April 2020, by public pronouncements without force of law, the government illegally limited fundamental rights of New Zealanders.

As a result of the High Court’s judgment, that is no longer an allegation but an established fact.

The significance of this finding should not be lost amongst the exhalations for the effectiveness and justifiability of the government’s Covid-19 response. What the Attorney-General has optimistically described as ‘the imperfection from 25 March to 3 April’ was, and remains, a concerning development in our constitutional history. The court’s recognition that this was in fact unlawful government action on a grand scale should be welcomed.

During the proceedings, the government emphasised that its primary purpose in the various public announcements made in the first nine days of lockdown were simply to encourage voluntary cooperation with the lockdown restrictions.

We were “asked” to stay home in the same way we were asked to wash our hands. These statements were not commands but guidance and requests, said the Crown.

However, the court swiftly rejected such assertions, finding that the imperative language coupled with who was using it (the Prime Minister, Commissioner of Police etc) and the frequent references to a readiness to resort to enforcement action if and where necessary, made it clear that the statements to stay home were commands, not guidance. People stayed at home in their bubbles

What the AttorneyGeneral has optimistically described as ‘the imperfection from 25 March to 3 April’ was, and remains, a concerning development in our constitutional history because they believed they had to.

So, in case you were confused, you were quite right to assume staying home was a legal obligation when you heard, for example, the Commissioner of Police advising on 23 March via national television and radio that “you’re better to stay on the comfort of your own couch of your own home than be cooling yourself on a very cool bench in a police cell”.

There are, however, aspects of the court’s decision on the first cause of action that give rise for concern. The first is in respect of the court’s conclusion that an isolation or quarantine requirement did not need to be issued as a formal or even written order.

In other words, the court took the view that a legally effective “stay at home order” could have been issued simply by Director-General of Health Ashley Bloomfield uttering it, presumably in some sort of public setting.

Nathan Batts

it is they must or must not do on pain of criminal penalty.

The court’s conclusion that an oral order would have been effective means that under the Health Act the Director-General apparently has the unprecedented power to create criminal offences by utterance. This is quite remarkable.

Although the court stipulated that ‘the requirement must be exercised unequivocally and articulated precisely’, a number of questions immediately arise. Such as, in what sort of setting is such an utterance to be given before it is effective? Is a media briefing sufficient? What about those New Zealanders who did not or could not watch the relevant briefing, or who could not watch or hear the briefing because they had no access to a television, radio or the internet?

Must the oral direction be committed to writing following its delivery? How much detail must be included within such an oral order before it is effective? What does ‘precise articulation’ require?

Interestingly, concerns such as these arise only if it is concluded, as the court did, that a s 70(1)(f) order can be directed to the entire population or large portions of it without regard for actual or suspected infection.

In effect, the court’s conclusion on this point means the illegality that it found existed in the first nine days of the lockdown could all have been cured if Bloomfield had just said during one of his daily press conferences prior to 26 March that everyone must stay home in their bubbles except for essential movement “… and that’s an order.”

If, alternatively, an isolation or quarantine order can be directed only to those either known to have, or suspected of having, contracted Covid-19, then these concerns do not obviously arise. In the latter case, isolation or quarantine orders would be directed to specific individuals or groups and logically officials communicating those orders would ensure they were received and understood by the individuals in question.

Recall, however, that non-compliance with a s 70(1) (f) order is a criminal offence carrying a maximum penalty of six months’ imprisonment and/or a $4,000 fine. Recall also that the rule of law would dictate that individuals liable to be prosecuted ought to be able, without difficulty, to find out what

The second concern relates to the important distinction to be drawn between the justifiability of the government’s substantive restrictions and the reasonableness or justifiability of the government’s Continued on page 6 5

Continued from page 5 unlawful conduct. The reasonableness of the latter does not necessarily follow from the former.

limits could have been straightforwardly imposed by the Director-General at the time.

In answering the question of what government officials making the relevant pronouncements believed themselves to be doing at the time, the court ventured that the most likely explanation was ‘that they were simply mistaken about either the ambit of order 1 or the extent of the available enforcement powers.’

Of course, ultimately the court decided a formal declaration of illegality was necessary. In so deciding, it can to some degree be seen to have recognised the gravity of a government acting without lawful authority in the context that it did.

On this point, Bloomfield’s evidence further explained that from the government’s perspective ‘the absolute priority was to get the lockdown in place’, and that the government ‘had no time to sort out the exact details’ with some things needing ‘to get sorted out later’.

In contending that, the court should not issue a declaration of illegality, the Crown argued – that the errors were technical and had no effect on the substantive outcome.

On the same issue (whether or not to issue a declaration) the court accepted that the illegality had to be seen ‘in the context of the rapidly developing public health emergency the nation was facing’ and in the context where the restrictions were ‘reasonable, necessary and proportionate.’ The court also reiterated that the

However, at a higher level there is something concerning about the characterisation of the government’s nine days of unlawful restrictions as technical or in some way justified (if not legally then practically).

However urgent the need to impose the lockdown restrictions, what the government was contemplating was the most substantial suite of restraints on individual liberty in New Zealand’s history.

From this perspective, one of the first and most immediately obvious questions must have been how to do that lawfully. Based on the court’s decision, a lawful isolation or quarantine order was as easy as Bloomfield giving an oral directive at a press briefing.

One might think that if lawful restrictions were easily achieved, then the government’s failure to

do so in fact serves to heighten the seriousness of the illegality, rather than lessen it. One might also think the rule of law demands that the legality of serious restrictions on individual liberties, even in circumstances of national emergencies, cannot be one of those things a government leaves ‘to get sorted out later.’

Of course, to the extent that there was uncertainty, the possibility of passing urgent bespoke legislation was an available option, coupled perhaps with clear guidance to stay at home and the indication that tailored legislation was being prepared to provide a legal framework.

The court’s unequivocal conclusion that the first nine days of lockdown restrictions were unlawful should be a result to be celebrated.

It is a significant vindication for the rule of law and a constitutional precedent which emphasises the integrity of New Zealand’s justice system and the practical reality of the theory of the separation of powers.

Borrowdale v Director-General will no doubt be one of those cases that will be etched into the memories of future law students long after they’ve forgotten the facts or the principles for which it stood.

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LawNews Issue 29 | 28 Aug 2020

CONTRACT LAW

Aussie court provides precedent for digital signing

By Jonathan Flaws

Evidentiary holes Without going further into the case, it is clear there were major holes in the evidence as to whether the digital signature purported to be attached to the document was in fact attached by her.

Legislation giving legal effect to a digital signature has been in place for more than 18 years. But many lenders have been reluctant to use electronic signatures, basing their refusal on the lack of legal precedent.

the documents were sent by email to only one address;

A recent case in New South Wales, Marketlend Pty Ltd v Blackburn [2020] NSWDC 358 provides that precedent without even addressing the issue of digital signing.

The court decided that a lender could not rely on a DocuSign electronic signature because the person whose signature it purported to be was not the person who attached it to the electronic document.

It was the classic example of one spouse forging the other spouse’s signature on a loan document.

The court approached the issue by applying the same evidentiary rules it would have applied had it been a traditional wet signature on a paper document.

On the balance of probabilities, it found the purported signer’s husband used his estranged wife’s DocuSign account to sign a loan document without her consent and knowledge.

The court didn’t examine the intricacies of the Australian legislation legitimising the use of an electronic signature. But looked for, and did not find, evidence that proved on the balance of probabilities that the wife, and no one else, had used her DocuSign account to insert her digital signature into the document.

The purpose of Part 4 of the Contract and Commercial Law Act 2017 is to facilitate the use of electronic technology by (amongst other things) providing that certain paper-based legal requirements can be met by using electronic technology that is functionally equivalent to those legal requirements.

If, in the paper-based environment, certain activity is fraudulent, then the functional equivalent of that activity in the electronic environment is also fraudulent.

no verification of identity was undertaken or even required to be recorded in the metadata;

the wife’s email account could be accessed by others and was not password protected; and

the judgment is silent on whether two-factor authentication was required prior to signing the document.

Jonathan Flaws

Creating and linking Whether it is a wet or a digital signature, the process of affixing it includes verification of identity to establish that the person who affixed it is who they say they are.

The Authority and Identity Requirements for E-Dealing Standards 2018 provide a high-level method for identifying a person. The linking occurs by way of an authority and instruction to a lawyer to sign and certify the eDealing.

In the Marketlend case, the lender also specified a minimum requirement for verification of identity but this process was not followed and no identity documents were provided. The lender simply relied on the fact that the document contained the digital signature purporting to be hers.

External evidence Each DocuSign digital certificate contains reference to a Certificate of Completion that records the DocuSIgn metadata contained in an envelope history. This metadata is a record of each occasion the document is accessed, or an action is taken and includes the IP address of the device used to sign.

The legislation in both countries defines an electronic signature as a method used to identify a person and to indicate that person’s approval of information in electronic form.

In the Marketlend case this metadata showed the location of the device that inserted the digital certificate. It also recorded when an email was generated by DocuSign and the address to which it was sent.

In the Marketlend case, the court found the electronic signature didn’t comply by using a traditional approach to find evidence that the husband, not the wife, put her electronic mark on the document. Therefore, it was a forgery. While not examining in detail every element of the legislation, the court accepted that if the evidence showed the wife inserted the mark, then she would be bound by it, as would have been the case had she inserted her hand-written signature.

The published judgment suggests the documents were emailed to the husband’s email account and he then sent a further copy to his wife’s company’s account. This did not require a password to open and it was accepted that both husband and wife had access to the wife’s company account. This process seems to have been under the control of the husband and was not as secure as the circumstances that resulted in being bound to repay a A$700,000 loan required.

Comparison with ADLS digital signing The case does not suggest the DocuSign method is ineffective but, rather, that the technology is only part of the method. It is for the person relying on the digital signature to ensure the entire method is effective and followed to the extent required in each case.

ADLS uses another vendor of digital signatures, a local firm Secured Signing, with similar processes to DocuSign. The case is instructive for two reasons. It indicates that the responsibility for compliance with the legislation rests with the person relying on the signature and if the method had been followed, the forgery would not have occurred, or would at least have been much harder to achieve.

ADLS has worked with Secured Signing to ensure all the elements of a digital signing method are met. If called upon to provide evidence in court to substantiate the signature and if the ADLS protocols are followed in full, then in addition to the signing log (equivalent to the DocuSign Certificate of Completion) you will have ticked off all the other elements of the method required by the legislation.

In the case of digital signing of a client A & I, ADLS provides a separate protocol and a separate file note that includes and prompts retention of the LINZ evidence. This must be kept for 10 years regardless of whether the A&I is wet or digitally signed.

In all other cases it is for you, the person relying on the digital signing, to decide how much or how little evidence you need to include in the digital signing log. I have elected to follow this lead and create an electronic document wallet for each transaction (a fancy term for a folder within the transaction folder) that includes a copy of the documents, the signing log and a file note, plus all additional evidence.

Don’t forget that the method required for an electronic signature is scalable and need be only as secure as is required by the circumstances in which a document is signed. This means you may Continued on page 12 7

ELECTORAL LAW

How technology can manipulate elections

By Diana Clement

As the march of technology turns into a stampede, voters heading to the polls for this year’s General Election are at high risk of manipulation, according to lawyers and other professionals who are keeping close tabs on the electoral environment in the runup to 17 October.

Traditionally sceptical and not easy to manipulate, Kiwi voters are being bombarded with misinformation on social media. This could range from micro-targeting social media users with dubious or fake posts to the toxic narratives coming from foreign-run websites.

Is it against the law? Not necessarily, say legal experts. And apart from the obvious difficulties in tracking down the culprits, it’s not clear how the law can do much to stop it.

According to Claire Robinson, professor of communication design at Massey University, much of this material has been designed by people working for the Russian state, with an interest in destabilising the West.

Russian-influenced websites are pushing out stories that are deliberately false, she says. These are being picked up internationally and making their way to New Zealand. And using digital media to manipulate voters isn’t beyond New Zealanders’ abilities, says Robinson. She points to pro-Brexit campaigners Arron Banks and Andy Wigmore who have signed contracts with NZ First leader Winston Peters, who recently told Newshub they promised to provide ‘Winston on steroids’.

Much of this material goes beyond political spin and lying to voters, neither of which is illegal in New Zealand, unless it’s on the final two days of an election campaign and on polling day itself.

At that point s 199A of the Electoral Act 1993 kicks in, making it a corrupt practice to knowingly publish false information, says Andrew Geddis, a law professor at the University of Otago.

Where voter manipulation becomes more concerning is where there are deliberate attempts to change people’s voting by spreading knowingly false claims, Geddis says.

The Oxford Internet Institute, which has researched voter manipulation, found the number of countries targeted by organised social media manipulation campaigns had risen from 28 in 2017 to 70 in 2019 when it released its report.

Some strategies used during elections included politicians amassing fake followers, parties targeting voters with manipulated media, or Cambridge Analytica-style illegal micro-targeting.

The research can be found at: Tinyurl.com/ OxfordReport 8

Andrew Geddis

Claire Robinson

Can New Zealand cope?

The Electoral Commission is aware of the potential for voter manipulation. It reported to government last year on the potential for foreign interference, noting that social media in New Zealand is increasingly a vector for disinformation and that the country needs to be prepared to respond to interference in its electoral system.

scheme similar to those found in the United States and Australia.

The commission has set out protocols for the 2020 General Election. Its manager legal & policy, Kristina Temel, says the two referenda add additional challenges this year. The protocols can be viewed here: Tinyurl.com/ElectionProtocols2020

In June this year, our government responded to the Justice Select Committee report and agreed to consider significant changes to electoral law.

This might include more investigatory powers for the commission, enforcement and sanction powers, prohibiting foreigners from advertising in social media to influence a New Zealand election outcome and placing appropriate constraints and legal obligations on social media platforms so this can be enforced.

Following the commission’s Inquiry into the 2017 General Election and 2016 Local Elections, the Ministry of Justice requested further analysis of submissions on disinformation (and other matters).

The response noted that disinformation can take many forms, such as purporting to be news, advertising or individual comments. “Bot accounts can be used to quickly spread disinformation online,” the response said. “Messages may appear to have grass-roots support but actually be from people with vested interests (eg, paid participants) or bots (this is known as “astroturfing”).” Both are caught by election advertising rules which apply to all mediums, including online.

The authors of that response, Temel and Chris Hubscher, manager electoral and constitutional policy at the Ministry of Justice, say fake social media accounts are relatively easy to create and the person behind the activity can be hard to identify.

The commission considered electoral integrity measures taken overseas in countries such as the United Kingdom and Canada. The UK’s select committee Disinformation and ‘fake news’ report in February 2019, for example, recommended giving more powers to investigate potentially illegal activities and to consider the feasibility of implementing a foreign influence transparency

The document also discussed Canada’s Electoral Modernization Act 2018, prohibiting false statements aimed at influencing elections. The prohibition applies no matter where the false statement is made or published.

Justice Minister Andrew Little says broader work on regulating social media platforms could be considered as part of a review of media content regulation being scoped by the Department of Internal Affairs and the Ministry for Culture and Heritage.

Lies, falsehoods and the Electoral Act As Geddis notes, there is no general law in New Zealand against lying or manipulating or deceiving people on the internet unless you’re doing so for commercial purposes.

All that is required under the Electoral Act is that anything published on behalf of a candidate includes a promoter statement that shows the name and address of the person promoting the advertisement. Publishing an election advertisement has a broad definition and includes posting the material on the internet or Facebook.

Laws such as the Fair Trading Act 1986 might then apply, Geddis says. “The only things that might come into play may be if you are targeting a particular individual [when] the Harmful Digital Continued on page 9

LawNews Issue 29 | 28 Aug 2020

Faking it The concept of deep fake is a product of the internet age.

Photo: Radio New Zealand

Images and videos are faked using artificial intelligence to make it appear that a person is saying or doing something they aren’t.

Spark’s 5G adverts with Lord Rutherford speaking is an example of what the technology can do. Deep fakes have been used in elections overseas.

Graeme Edgeler

Kristina Temel

Continued from page 8

Edgeler isn’t convinced that the Electoral Act is the only vehicle for dealing with potential voter manipulation. Forgery or fraud changes might suffice.

Communications Act might have something to say.

If you are simply spreading rumours and they are not election communications, there is little the law can do.”

Geddis says political communications deemed to be advertisements, including paid posts on Facebook and other social media, come under the Advertising Standards Authority. “But of course [the ASA] has very limited reach, especially if the misinformation is coming from overseas. All the ASA can do is make a ruling then hope the advertiser will comply. It has no enforcement powers and Facebook doesn’t have to pay the blindest bit of notice to anything it is doing.”

Beefing up electoral law isn’t as easy as it sounds, says barrister Graeme Edgeler, from Blackstone Chambers. He doubts s 199A of the Electoral Act will ever be enforced. “Police [here] don’t want to be seen interfering with the election.”

Geddis also questions the feasibility of tightening electoral laws. “You get into very tricky situations.

How much do you want the government to be regulating what is and is not said on the internet?” he says.

Some countries have general offence provisions such as scandalising the public, Geddis says. This might work well for benign governments but not so well for others.

The trend in New Zealand, however, has been to liberalise and deregulate public speech. “For instance, we got rid of the laws of sedition in the mid-2000s on the basis that we shouldn’t have laws of this nature anymore,” he says. “A law to make people always speak the truth on the internet is a huge undertaking which is fraught with all sorts of difficulties.”

Nonetheless, a question can be raised about whether the three days afforded by s 199A is long enough when voting starts 14 days before election day. “You could make it to cover the entire voting period if our concern is that people are being misled and tricked into voting on false information then.”

He questions whether New Zealand needs a government agency such as Australia’s AntiCorruption Agency, which would be to look at electoral offences. Such an agency would need to be adequately resourced. “It would need to be someone whose main job is election law.”

The ‘Billy’ factor The world’s eyes are on this year’s United States election but anyone who thinks New Zealand is immune just needs to look at the tsunami of conspiracy theories that have swamped Kiwis’ social media feeds. Facebook groups such as Exposing Hatred, and Jacinda’s Secret Hot and Spicy Meme Factory and many more from unknown sources have proliferated.

Billy Te Kahika’s New Zealand Public Party emerged from nowhere in July and has tapped into conspiracy theories, some of which may have originated in QAnon (far right conspiracy theory) groups. Russian troll accounts were removed from Twitter after it was found they had pushed out tens of thousands of tweets, many of which sported the hashtag #Qanon.

The theories have spread prolifically in New Zealand across Facebook and via Instagram influencers, taking on a life of their own.

The wildfire spread of what Health Minister Chris Hipkins called “vile slurs” about the source of a South Auckland family’s Covid infections showed information that may not initially be politically motivated can be picked up from its original source and used to manipulate voters.

The aim of such a communication might be to sow distrust against a particular party, says Robinson.

“To make them look incompetent. So, all the other parties could say ‘we wouldn’t have handled this.

We would have had better control at the border.

We wouldn’t have allowed anyone to go in. Anyone to go out’.”

At the time of writing, noone knew who took the

original Reddit post and subsequently embellished and disseminated it. “If that came from a political party campaign team then that would potentially be political corruption,” says Robinson. “Or a gross breach of electoral law. And privacy law. I don’t know whether [political parties] would be that stupid.”

Geddis says it could have been a deliberate political act.

Voters are less likely to be manipulated in New Zealand, Robinson says. That’s because we make our voting decisions on a longer term set of factors such as how the economy is going and what we are feeling in our pockets and if we feel we can trust the government or a political leader.

But at a deeper level, she says, the spread of conspiracy theories and misinformation through Facebook is an issue we need to wrap our heads around.

People are feeling vulnerable. They then get obsessive about looking online for information, sending them down multiple rabbit holes. “It’s because of the way Facebook algorithms work,” says Robinson. “If Facebook sees that you like a particular thing, it is going to keep pushing that towards you.”

Robinson points out that at an individual level most people probably think it’s not a big deal. “If you start to put it all together and you start to see there are political movements that are supporting this, then you think about what is really going on, which is about Russia trying to destabilise the west in order to try to regain ascendancy in the world.

It is all a bit of the stuff of Tom Clancy and Robert Ludlam spy novels. But it is going on and the American intelligence community is talking quite publicly about it.”

We might also be experiencing a breakdown in knowledge systems in the west, says Robinson.

“Everything is contestable at the moment. Into a vacuum comes all these conspiracy theories as people are trying to test out what truth means now.

And whose truth? And who benefits from what truth?”

9

To view all ADLS CPD & register: adls.org.nz/cpd Email us: cpd@adls.org.nz Phone us: 09 303 5278

Featured CPD Climate Change Series (4): Dispute Resolution Trends and Insights This fourth session in the series will provide an overview of trends and insights in domestic and international climate change dispute resolution. The presenters will cover international and domestic climate change-related litigation and arbitration brought to date against governments and corporate entities, including claims in judicial review, tort, corporate and commercial law, and Treaty-based and indigenous rights; regulatory actions and investigations regarding climate change; and climate change-related commercial and investor-state arbitration.

Learning outcomes: Gain an overview of trends and insights in domestic and international climate change dispute resolution, in relation to: • Judicial review, public law and human rights claims filed against governments • Tort-based and other damages claims filed against corporate actors • Corporate and commercial law claims involving climate change (including shareholder and investors’ claims asserting a failure to disclose climate risk, and/or misleading or deceptive conduct) • Regulatory actions and investigations regarding climate change • Climate change-related commercial and investor-state arbitration, including the recommendations of the 2019 ICC Task Force Report on Arbitration of Climate Related Disputes • Treaty-based and indigenous rights claims

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 Presenters Jenny Cooper QC Daniel Kalderimis, Partner, Chapman Tripp Nicola Swan, Senior Associate, Chapman Tripp

Commercial Leases – Protecting Landlords from Defaulting Tenants

 Webinar

This webinar will look at the remedies available to commercial landlords when tenants default on rent payments. It will cover how to protect landlords’ interests when things go wrong, including cancellation of leases for non-payment of rent, re-entry into premises and mitigation of loss, legal proceedings, security enforcement, and insolvency issues. The webinar will also cover the temporary amendments to the Property Law Act 2007, which the Government has made to support tenants in response to the COVID-19 pandemic.

CPD 1 hr

Learning outcomes:

James McMillan, Partner, Dentons Kensington Swan Mark Broad, Senior Associate, Dentons Kensington Swan

• • • •

•

•

Refresh your knowledge of the remedies available to landlords when tenants default on payment of rent.

Get to grips with when it is legitimate for tenants to abate rent.

Gain valuable insights into the practical difficulties which landlords face when attempting to re-enter premises.

Learn about the temporary amendments to the Property Law Act 2007, which provide more time for tenants to pay rent arrears before landlords can take enforcement action.

Benefit from understanding about what a landlord should do when confronted by an insolvent tenant and when an insolvency practitioner will be liable for rent.

Understand how landlords could be affected by a tenant entering into the temporary business debt hibernation scheme.

Faces, Traces & Places – Identification Tech and Evidence Forensics never goes away! It’s everywhere and every contact leaves a trace. In this seminar our expert panel will elaborate on the different types of identification technology and evidence that is available and being used in New Zealand such as: Key DNA case considerations and the review of the CIBS Act, Voice identification evidence – forensic voice comparison and profiling, Fingerprint evidence and Facial recognition technology and CCTV.

 Tue, 8 Sep 1pm – 2pm

 Presenters

Livestream CPD 2 hrs

 Thu, 10 Sep 4pm – 6pm

Learning outcomes:

 Presenters

•

•

• •

Dr Anna Sandiford Sue Petricevic Paige McElhinney James Ruhfus

Learn more about DNA databases and the CIBS Act, as well as a greater understanding of transfer and persistence of cellular material and the hierarchy of propositions and how it applies to DNA evidence.

Discover the intricacies of voice identification evidence and learn about the types of identification and comparison cases where speech science can weigh in - speaker comparison, resolution of disputed utterances, speaker profiling, authenticity of recordings, reliability of earwitnesses, and interpretation of voice line-ups.

Find out more about fingerprint evidence and how you can deal with it.

Gain a greater understanding of facial recognition technology and CCTV.

Family Court Procedure: A Hitchhiker’s Guide In Person | Live Stream Designed to get practitioners thinking about their cases and about how to use the Rules to assist them, this seminar will help with navigating the structural, legislative and procedural galaxy. Raising issues and offering perspectives, the presenters will guide you through fundamental foundations, key rules and types of applications. Using a rolling scenario, attendees will benefit from seeing how cases can play out – and how counsel’s actions perform a vital role in that.

Learning outcomes: •

•

•

• •

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Improve your understanding of the Family Court and its functions; the legislative layers (and priorities); and powers and jurisdiction.

Refresh your appreciation of the fundamentals: what proceedings are, who the parties are, and interlocutories generally plus the jurisdictional basis of your case.

Become more familiar with the procedure for Care of Children Act, Family Violence, Oranga Tamariki, and various property-related applications, including crossover and consolidation considerations.

Become better acquainted with particular rules and sections in order to enhance your use of them.

Raise your awareness of perennial issues such as costs.

 Presenter & Chair Dr Viktoria Papp

Livestream

 Seminar CPD 2 hrs

 Tue, 15 Sep 4.30pm – 6.45pm

 Presenters Her Honour Judge Parsons Pip Cobcroft, Barrister, Unity Chambers Louise Reed, Barrister, Southern Cross Chambers

LawNews Issue 29 | 28 Aug 2020

CPD in Brief Bully or Client – Where is the Line?

Livestream

In Person | Live Stream Lawyers are ethically obliged to accept instructions in their practice area from any client, unless they have “good cause” to refuse them. But at what point does the client’s behaviour justify terminating or rejecting an engagement? There has been considerable recent focus on bullying in the workplace, bullying between professionals, and bullying from the bench. We have heard less about the bullying client, and it’s a fraught topic!

Presenters: Janine Stewart, Partner – Construction, MinterEllisonRuddWatts; Katie Karpik, Solicitor, MinterEllisonRuddWatts Chair: Dennis Jenkin, Barrister

 Wed, 16 Sep

Leading in Law – What is Leading?

 Workshop (1)

A series of three half-day workshops, this distilled leadership development programme provides participants with a range of practical leadership insights, behaviours and tools. Framed in contemporary leadership best-practice, where the primary role of a leader is to empower people to perform and grow, this is an engaging, sometimes challenging, leadership development experience.

Discounted rate available until 3 September for booking all 3 workshops: contact cpd@adls.org.nz for details.

Facilitator: Tony Gardner, Managing Director, Archetype Leadership + Teams

Employment Jurisdictions: What’s In, What’s Out, & Where?

In Person | Live Stream When faced with a dispute that stems from an employment relationship, the question of where to institute a claim is vexed. It is nevertheless a vital question (especially when time limits are about to expire) and one that should be understood given the potential impact a protest to jurisdiction can have on a claim. This seminar considers the various jurisdictional issues that can arise in the Employment Relations Authority, the Employment Court and the High Court, and the tactical considerations for dealing with them.

Presenters: Maria Dew QC, Barrister, Bankside Chambers; Rob Towner, Barrister, Richmond Chambers; Kylie Dunn, Partner, Russell McVeagh Chair: Graeme Colgan, Barrister

Privacy 2020

Although privacy issues regularly come to the fore in unfortunate circumstances, often when time is short and good decisions need to be made promptly, privacy law with its many facets (including collection, storage, security, use and disclosure of information) is ever-present – and requires appropriate focus. With privacy concerns under increasing scrutiny in a changing world and of relevance to all areas of law, this seminar will address the changes to the Privacy Act, engaging with the Commissioner, and topical issues.

Presenters: Kathryn Dalziel, Barrister, Walker Street Chamber; Joanna Hayward, General Counsel, Office of the Privacy Commissioner; Janet Dick, Senior Legal Adviser, Office of the Privacy Commissioner Chair: Arna Neems, Company Secretary, Legal & Secretariat, Suncorp New Zealand

 Seminar CPD 1.5 hrs 4pm – 5.30pm

CPD 4 hrs

 Thu, 17 Sep 9am – 1.15pm

Livestream  Seminar CPD 2 hrs

 Thu, 17 Sep 4pm – 6.15pm

Livestream CPD 2 hrs

 Tue, 22 Sep 4pm – 6.15pm

CPD Pricing Delivery Method

Member

Non-Member



Webinar (1 hour)

$80 + GST

$115 + GST

Webinar (1.25 hour)

$90 + GST

$130 + GST



Seminar (2 hour in person)

$130 + GST

$185 + GST

Seminar (2 hour live stream)

$130 + GST

$185 + GST

On Demand (1 hour recording)

$90 + GST

$130 + GST

On Demand (2 hour recording)

$145 + GST

$205 + GST

 

CPD On Demand Earn CPD hours by completing On Demand activities via your computer or smart device visit: adls.org.nz/cpd

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Leading in Law - Workshop Series A 3-part series providing participants with a range of practical leadership insights, behaviours and tools.

Visit adls.org.nz for more information.

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Continued from page 7 elect not to select the DIA matching of driver’s licence or passport option in digital signing for a simple document to be signed by an existing client.

It’s your call and responsibility.

The Marketlend case is a good example of creating a digital signing method and then not following your own process because it seems too cumbersome and not as user-friendly as you would like. You can cut corners if you are prepared to take the risk.

Like me, you might have used ADLS Digital Signing and found it not as user-friendly as you would like.

ADLS is working on this but look at the Marketlend case and remind yourself that your job as a lawyer is to make sure the signing process does not result in the document becoming unenforceable.

Unfriendly as they might appear, the protocols and procedures are designed to help you ensure you do your job.

This case is a timely reminder that getting it right is important. It is worth taking the time to familiarise yourself with the digital signing protocols and process and working out a scalable process that works for you, depending on the different types of documents that need to be signed.

Jonathan Flaws is a director of Sanderson Weir and a member of the ADLS Documents & Precedents Committee

Clarification In an article in last week’s Law News, Covid-19: paperless affidavits and digital signing, it was stated that both DocuSign and ADLS Digital Signing can be used for LINZ client A & I forms.

This was an assumption rather than a fact and it was wrong. LINZ states in its interim guideline issued on 30 March 2020 that during Covid-19 restrictions, a system that fully complies with the digital signing legislation may be used for land transfer documents. This means digital signing must also be part of a process that meets the LINZ standards.

The LINZ interim guideline notes that: ‘An A & I form may be signed by means of an electronic signature using a system that meets the criteria in s 228(1) of the CCLA - for example, either ADLS’ WebForms digital signing service.’

ADLS approval from the Registrar-General of Land came after a long review of the IT process and the ADLS protocols for signing an A & I. This review measured the complete package against both the LINZ eDealing verification of Identity standards and the Contract and Commercial Law Act 2017.

Given the nature of A & I forms, ADLS Digital Signing, to be safe and compliant, inserts in the digital mark the reason the signatory is signing, whether it is the person to be bound or the witness.

We took the view that the wording of s 226(1) requires this to be included in the mark and not logically associated with the process.

Many overseas jurisdictions rely on the “logical association” test because their law follows the UNCITRAL Model Law which uses these words. Our legislation also follows the same model law but chose to be more specific and require the electronic signature, not other data logically associated with it, to adequately indicate the signatory’s approval.

As shown by the Marketlend case, digital signing is as concerned with process and method as it is with technology. There was no criticism of DocuSign in that case and in fact its technology helped the judge find that the signature resulted from a fraudulent process. In those circumstances, it did what it was supposed to do. But those circumstances did not include a registered land instrument.

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LawNews Issue 29 | 28 Aug 2020

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Email to: reception@adls.org.nz Post to: ADLS PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Fax to: (09) 309 3726 For enquiries phone: (09) 303 5270

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Wills 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.

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13

MEDIATION

Uni gets sponsorship for global mediation competition Shortland Chambers has announced a $10,000 sponsorship for the next two years to help University of Auckland Law School students to compete in the International Chamber of Commerce (ICC) Mediation Competition, held every year in Paris.

The ICC is the world’s largest mediation competition, where more than 60 universities from around the world compete in mock mediation sessions over a week.

Shortland Chambers’ support will pay the travel and accommodation costs of the two mediation coaches who will accompany a team of four students to France for next year’s competition.

The announcement was made by Jane Anderson QC from Shortland Chambers, at a prizegiving ceremony acknowledging the 2020 winning team, comprising University of Auckland students Susie McCluskey, Keeha Oh, Jacob Siermans, and Madeleine Tilley, and their coaches Tunisia Napia and Rima Shenoy.

It is the second time a team from Auckland Law School has won the global competition, setting a record as the only university to win first prize twice in a row.

“There is a legacy building up around this competition where past team members hand on their knowledge and expertise to the new team members,” says the Dean of Law, Professor Pene Mathew.

She said the Auckland Law School had been fortunate to have special guest coaches, including Anna Quinn, Miriam Dean QC, Warren Sowerby and Geoff Sharp over the past four years. She also pointed to the contribution of faculty member Nina Khouri, who brought the competition to the

Keeha Oh, Jacob Siermans, Susie McCluskey, Madeleine Tilley and Jane Anderson QC

school’s attention in 2013 and encouraged ongoing participation.

“The ICC Mediation Competition is quite different from other mooting contests,” says coach Rima Shenoy. “Mediation is about collaboration so there is a different way of thinking when you go into the competition. You focus on interest-based negotiation skills, with understanding different needs, wants and drives of the other party while also acknowledging the commercial realities of the situation. That is something that the University of Auckland has really prided itself on in the last few years.”

Each round of the competition consists of an 85-minute mediation. By the final round the 2020 Auckland Law School team had tackled eight

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different fact problems.

“We were well prepared for the preliminary round which was a land dispute between an indigenous people and the government,” said team member Jacob Siermans. “But by the final round, you have only a few hours and you are preparing as quickly as you can.”

Coach Tunisia Napia, who will continue to work with the 2021 ICC Mediation Competition team, said what set the University of Auckland team apart was the wealth of knowledge that came from everyone involved. “It does not matter if we win but it does matter that we represent everyone that has put work into us, with dignity and respect,” she said.

The next ICC Mediation Competition will take place in February 2021.

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