LawNews- Issue 33

NEWS Sep 22, 2023 Issue 33

Inside ■ ADLS

Welcome to The Law Association Inc P05-07

■ POLITICS

Asking the people P08-09

Do we need a privacy code for

adls.org.nz

BIOMETRICS?

Contents 03-04

Should AI-powered billboards targeting real-time shoppers be banned?

BIOMETRICS DISCLOSURE PRIVACY

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

Editor: Jenni McManus Publisher: ADLS

05-07 VOTE MEMBERS BRANDING

Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz

ADLS President Tony Herring explains our name-change to The Law Association

Reweti Kohere 09 306 3997 Reweti.Kohere@adls.org.nz

08-10 CONSTITUTION DEMOCRACY OBLIGATION

Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

Why Kiwi voters love referenda

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

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16 Photo: George Marks / Getty Images

EVENTS

Write for LawNews LawNews welcomes commentary and opinion pieces from ADLS members and readers. We ask that contributions are civil in tone, factually correct, well-written and logically argued – and fewer than 800 words. And we won’t publish anonymous commentary.

Any questions, please email the editor at: Jenni.McManus@adls.org.nz

LawNews is published weekly (with the exception of a small period over the Christmas holiday break) and is available free of charge to members of ADLS, and available by subscription to non-members for $140 (plus GST) per year.

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Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Cover: Grafissimo / Getty Images

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Sep 22, 2023 Issue 33

PRIVACY/TECHNOLOGY

Privacy Commissioner considers ban on smart billboards and real-time targeted marketing Most shoppers will not have read and understood the mall owner’s privacy policy, meaning their biometric data is likely being gathered without their knowledge

Reweti Kohere If the privacy watchdog doubles down on a proposed biometrics code of practice, Westfield shopping malls will likely be banned from using smart billboards that scan shoppers’ faces in order to target them with personalised advertising.

This type of targeted marketing, based on collecting images of people’s faces, fingerprints, voices, gaits and other biometric information, may be stopped by the Privacy Commissioner because it poses too many risks or uses sensitive personal information inappropriately.

Westfield malls in Auckland and Christchurch made headlines earlier this year when it was revealed they were using “SmartScreens” equipped with cameras that conduct AI-powered facial detection on passers-by. The digital billboards can determine an individual’s age, gender and mood while shopping in order to target advertising.

Such use has been earmarked for prohibition by the Office of the Privacy Commissioner (OPC), which has just finished a round of consultation on its proposed biometrics code with a limited set of stakeholders on whether the proposals could work effectively in safeguarding biometric information.

“Capturing facial images for the purpose of categorising individuals on the basis of their age, gender and mood is a collection of biometric information covered by the code proposals.

However, this collection would not be allowed under the code proposals,” the OPC states in its discussion document.

Risks outweigh benefits Concern has been mounting about the use of biometric technologies that recognise individuals based on their unique physical or behavioural characteristics – personal information of the most sensitive nature. Biometric information is personal

It’s not ok to bury what you’re doing in some farflung corner of the internet and call that disclosure

information for the purposes of the Privacy Act 2020 because it helps identify and verify individuals.

The OPC wants the code to apply to all agencies – domestic and overseas, public and private – that collect and hold biometric information, which is compared and analysed only against algorithms or “automated processes”.

A case exists for ruling out certain purposes for collection altogether because of the sensitivity of biometric information and the potential for its misuse, the OPC says.

The Act has 13 privacy principles governing how businesses and organisations should collect, handle and use personal information. Information privacy principle (IPP) 1 states an agency must collect personal information only if its collection is necessary for a lawful purpose connected with the agency’s functions or activities.

IPP 1 could be modified so that biometric information covered by the code must not be collected for marketing that is targeted to individuals using their biometric information. Moreover, collection would be prohibited on the grounds that it categorises individuals based on age or gender (categories that correspond to prohibited grounds of discrimination under s 21 of the Human Rights Act 1993) or infers an individual’s emotional state.

“We consider that the individual and social benefits of marketing products and services based on biometric

Continued on page 04 03

Continued from page 03 characteristics do not outweigh the significant privacy intrusion of collecting and using such sensitive personal information.

‘Marketing’ would need to be defined, and there might be a case for allowing some types of marketing, such as for public-interest marketing campaigns,” the OPC says.

“OPC’s initial view is that collection for these purposes will rarely be justified, so only limited, compelling, public-benefit exceptions would be appropriate.”

While the OPC has stressed no decision has been made to formally consult or issue a draft code, the regulator has signalled a decision will be made “later in 2023”. A final biometrics code wouldn’t be issued until “sometime in 2024”.

Passive collection AI-powered advertising hit New Zealand malls a few months ago when it was revealed Westfield’s parent company, Australianowned Scentre Group, had recently installed SmartScreen billboards in all five of its retail malls in New Zealand: the Auckland suburbs of Albany, Manukau City, Newmarket and St Lukes, and Christchurch’s Riccarton.

Scentre Group’s website states the SmartScreen network of more than 1,650 screens “redefines what a retail marketing network can be” across 42 of its trans-Tasman Westfield malls.

“The SmartScreen network gives brands and retailers an entirely new way to reach, engage and convert shoppers. Every single screen offers a powerful point of connection to the large and valuable retail audience,” it says, adding the “sophisticated” media solution offers brands “enhanced targeting capabilities”.

LawNews put a series of questions to Scentre Group in relation to its position on the proposed biometrics code, whether it would pause its use of SmartScreens until the regulatory environment became clearer and whether it would cease using the digital billboards if the proposed prohibition on targeted marketing were implemented. Scentre Group has yet to respond.

Scentre Group’s privacy policy states it may collect information from shoppers “passively using in-centre technologies such as SmartScreen advertising units, which utilise image-processing software to aggregate data such as shopper numbers and demographics. These technologies do not identify individual shoppers or record or retain images of individual shoppers.”

‘Ridiculous’ However, it’s likely most shoppers will not have read and understood the mall owner’s privacy policy, meaning their biometric data is likely being gathered without their knowledge.

“The presumption that a shopper will have gone online, read and understood a mall’s privacy policy and consented to it before entering a public space like a mall is ridiculous,” says Consumer NZ chief executive Jon Duffy.

“It’s not ok to bury what you’re doing in some far-flung corner of the internet and call that disclosure. These companies need to do a better job of informing the public about their data 04

The OPC wants the biometrics code to apply to all agencies – domestic and overseas, public and private – that collect and hold biometric information

collection and use.”

Auckland University associate professor Gehan Gunasekara, who co-founded the Privacy Foundation New Zealand, says Scentre Group’s use of SmartScreens is at the lower end of the spectrum of potential harm. “[But] this is the thin edge of the wedge. People might start to accept this kind of thing, but then the next thing is that you might be offered health products on the basis of the way you walk, or physical characteristics that suggest you have some kind of disease.”

Responding to Consumer NZ’s concerns, OPC said that “simply on ethical, trust and confidence grounds”, Scentre Group should inform customers it is targeting advertising based on real-time facial detection analysis of mall-goers. “This would allow customers the opportunity to make an informed choice about whether they wanted to be targeted in this way.”

Cut-through The digital billboards were designed and developed in 2014 for Scentre Group’s BrandSpace division, which offers retailers and brands a range of marketing platforms to connect with a large customer audience, amounting to more than 535 million visits a year. French company Quividi, whose software is said to capture the biometrics of more than 1.5 billion people a month worldwide, helped with design and development.

Quividi says its technology relies not on facial recognition technology, which can recognise and identify individuals, but on facial detection instead, which determines only if an anonymous individual is looking at a given point of interest, the time they stayed engaged and an estimation of their basic demographic features.

The billboards can yield higher engagement and cut-through.

Optus, Australia’s second-largest telecommunications group, tested Quividi’s platform across Westfield’s shopping malls in Australia by presenting shoppers with Samsung’s Galaxy S10 smartphone advertisements.

Messages were tailored to men and women of different ages – women aged 44 and under were shown the slogan “With enough data for your insta-habit” while those over 45 were told they would have enough data to “shop till you drop”.

The targeted messages had nearly two-thirds more watchers per play than the network benchmark, were almost one-third more efficient at reaching the target audience and the average attention time increased by 29% – all with the purpose of converting attention into greater sales.

“We can place brands where they can influence, engage and convert real humans who are ready to spend right now,” said BrandSpace sales group manager Lauren Mullane in a video explainer. Any final code will not simply provide guidance as it will be legally effective against the information, agencies, activities or sectors that it covers. Any breaches of the code have the same effect as a breach of the Privacy Act. Individuals can complain to the commissioner about breaches of the code and the commissioner can use compliance powers under the Act to enforce the code. ■

Sep 22, 2023 Issue 33

Welcome to The Law Association: a message from President Tony Herring Tēnā koutou katoa.

Tony Herring

As a national organisation with 44% of our membership based outside Auckland, we wanted our name to reflect our New Zealand footprint

This is the last time I’ll be speaking to you as President of ADLS. The next time you hear from me, it will be as President of The Law Association. From 1 October 2023, this will be our organisation’s new name.

The decision to change our name wasn’t taken lightly. For the past year we’ve been taking soundings from our members, non-members and staff, and doing research and gathering feedback.

As a national organisation with 44% of our membership based outside Auckland, we wanted our name to reflect our New Zealand footprint. At the same time, we’ve been looking at how we can grow as an organisation and what other services and benefits we might provide for our members and for the legal profession as a whole.

Some people reminded us that we have a legacy developed over 144 years and urged us not to throw out the baby with the bathwater. This group, largely older and more experienced lawyers, like the ADLS or Auckland District Law Society names because that’s what they’re used to.

But at the other end of the spectrum is an equally hardcore and passionate group who much prefer The Law Association. They don’t like the “Auckland” part of the current name, nor the fact that we were calling ourselves a law society.

When we put it to the vote, the majority of our members were in favour of the proposed new name. What I’m hearing around the traps is “we love your forms, we love your events, we love your CPD. You can call yourself whatever you like.”

We too have an issue with continuing to describe ourselves as a law society because we haven’t actually been a law society since 2008 when the new NZLS structure, governed under the Lawyers and Conveyancers Act 2006, was put in place. So, the name is historical and refers to an entity that no longer exists.

Despite the name-change, the ADLS brand won’t completely disappear and you will continue to see it on products such as our WebForms.

Structurally, we will remain an incorporated society, with our own rules and our own governance structure.

But with the name-change will come a change of focus. As a brand, The Law Association is not just a brand for the profession but will be a brand for all legal professionals. I think the best way of explaining it is to say that in the past, we’ve been seen as an advocate for lawyers – and we’ve done that exceptionally well. But we now want to expand on that, engaging more broadly with other professional organisations and key decision-makers in New Zealand. One thing, however, will not change and this is what makes us distinctive: our independence.

Panel review On 24 August, less than two months before the election and just a week before Parliament’s final sitting for this term, NZLS sent the Minister of Justice its response to the recommendations of the independent panel reviewing the legal profession.

But in my opinion, much more work and consideration is needed before a solution is found and the government is asked to legislate for change.

Continued on page 06

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Continued from page 05

It is premature to send a report to the minister before NZLS has reached a clear and consistent position on the review panel’s recommendations

It is premature to send a report to the minister before NZLS has reached a clear and consistent position on the review panel’s recommendations.

So, what do you do in the present circumstances if you’re the government? Do you go back to the Law Society and tell it to give these matters the further consideration they need and come to a view about what you want us to do? In the meantime, we won’t do anything. Or does the minister give the report to her bureaucrats and say, “you design something that will regulate lawyers”?

I would be deeply concerned about the latter option because it takes control out of the hands of the profession.

In my view, NZLS should have told the government and the profession that it wasn’t ready yet to put a recommendation to the minister. It needed to do a lot more work.

It may take two more years, but this is really important because it will put in place the structure that will govern the profession for the next 20 years.

NZLS needs to engage properly with the profession and then state its position and take it to the government, along with a solution. But it hasn’t done that and I’m concerned we will lose this opportunity because the response is so equivocal.

It contains 23 individual recommendations, compiled by 20 NZLS council members. Councillors could accept, reject or agree in principle with each recommendation, or decide that further consideration was necessary. All up, 70% of the responses were in the Much more equivocal “agree in principle” or “further consideration necessary” categories. work and Only 21% accepted the recommendations and 8.3% rejected them outright.

So the NZLS response is saying “well, 70% of us only accept these consideration is recommendations in principle or want further consideration”. One in 11 needed before lawyers is saying No. This shows the governing body is not speaking with one a solution is voice. Like the profession itself, the NZLS council appears divided on these found and the fundamental issues.

A better approach would have been to say to the profession, “this is a big government topic, we’re going to break it down into chunks and take a lot of time and is asked to we’re going to actually engage better with you”. legislate for There are 15,000 lawyers in New Zealand. When NZLS did a survey at the start of the process on the terms of reference for the independent change panel, it got a 4.1% response rate. Then it did a survey on the panel’s recommendations and got 5.8%. And only 1.2% of lawyers in this country made a submission.

NZLS ran two webinars during the consultation period. The response rate was 1% of lawyers for the first webinar and 1.4% for the second. I acknowledge that plenty of opportunity was given for engagement but actual engagement was scant, meaning the process didn’t work.

In my view, the Law Society should have recognised it needed to find a different way to connect with members. It needed to find out what the majority of its members wanted, rather than only 5% or 6%. It could have gone into workplaces and found creative solutions to encourage members to fill in survey forms, or the like.

Getting proper engagement will take time but NZLS needs to talk to people, rather than merely giving them the opportunity to share their views. And only then should it go to the government and say, “we have had genuine consultation and we are unanimous in our view that the profession should do X”.

Then it’s so much easier for the government to act because it knows what the profession wants.

We need to control our own destiny. So we should be doing a lot more work, having a lot more engagement, presenting the answer to the government and then pushing for it to be implemented.

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Sep 22, 2023 Issue 33

Continued from page 06 Collegiality events

This is really important because it will put in place the structure that will govern the profession for the next 20 years

In my first six months as president, I’ve really enjoyed getting around the country and meeting lots of other lawyers. I’ve also attended ADLS collegiality events in central Auckland, Hamilton, south Auckland, east Auckland, Tauranga and Wellington. These were fantastic events. In Hamilton, for example, 92 lawyers attended the function at this great little bar in the central city and everyone had a great time, meeting new people, sharing war stories and talking about life in general. The event was meant to finish at 2pm. I left at about 2.45pm to catch a flight and everyone was still in full swing.

If you haven’t attended one of these events yet, I’d encourage you to go along. It’s a great opportunity for younger lawyers, in particular, to catch up with colleagues, meet new people and put faces to names, rather than just communicating online.

When I was starting my career, my boss would send me up to the Land Transfer Office to search titles or to the Companies Office and while I was there, I would talk to other young lawyers who were doing the same thing.

It worked well, because if I had an issue with a file on a Friday afternoon, I could pick up the phone and ring a colleague who I’d met at the Companies Office or the Land Transfer Office and I could ask them for help.

Back then, you got to meet other lawyers in the course of your work. You’d have a coffee or a beer with them but nowadays, of course, everything’s done online and younger lawyers don’t get to meet one another face-to-face. This is why our collegiality events can be so useful and you get to have a good time as well.

Pre-election blues Some members have mentioned that things are slow on the work front, particularly in the commercial and property area, though property might be starting to pick up as people realise it’s time to get back into the market. But some commercial practices in parts of the country are quiet.

I think people are nervous about recession, pre-election uncertainty and the cost-of-living crisis. Some of those who are thinking about selling their businesses are holding back as they’re worried they won’t get a decent price while others who have been considering quitting their job and buying a business are also holding back.

This regular bread-and-butter work has slowed up for some of our members, which is a concern, and it contrasts hugely with what criminal lawyers, particularly in Auckland, are experiencing. Many are overwhelmed with their case-loads, working nights and weekends and still not keeping on top of it.

Hopefully the election, whichever way it goes, will deliver some certainty and things will get back on track for us all. A win for the All Blacks in Paris on 29 October will also be very welcome. ■

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WATCH 07

POLITICS/OPINION

Asking the people

Photo: E4C / Getty Images

New Zealanders’ strong attachment to straightforward majoritarian democracy, unencumbered by judicial intervention, upper houses or written constitutions, made them enthusiastic supporters of the referenda – an enthusiasm heightened whenever voters believe political parties are legislating rough-shod over their objections

Chris Trotter On 14 October, as New Zealanders are voting in their general election, Australians will be participating in an important referendum.

After more than two centuries of despoilation and neglect, the Aboriginal peoples of Australia are being offered a constitutionally guaranteed “Voice” in its government. The consensus among Australia’s pollsters is that the referendum will fail to secure the support needed to amend the Australian constitution – that the “Voice” will be silenced by what its advocates will doubtlessly condemn as “the tyranny of the majority”.

New Zealand progressives will, naturally, greet the defeat of the Voice referendum with dismay. But if, as everyone now expects, it is lost, then indigenous rights advocates on this side of the Tasman will become even more determined to resist any and every attempt to place fundamental constitutional reforms before 08

the people for ratification by referendum. The fate of the Voice will float before them like an anti-Holy Grail.

Proof that non-indigenous majorities are not to be trusted.

Their fears will not be unfounded if, on the same day as the fate of the Voice is decided in Australia, the ACT Party emerges from the New Zealand general election with sufficient parliamentary seats to force the National Party to accommodate the most important of its policies. At that moment, the determination of vital constitutional issues by way of referendum will become a live issue in New Zealand.

The ACT Party is proposing that defining Te Tiriti o Waitangi’s constitutional significance ceases to be the purview of judicial, academic and bureaucratic elites and, by means of open discussion and negotiation involving the whole nation, becomes irrevocably democratised.

Having translated the broad consensus of those discussions and negotiations into parliamentary

legislation, the resulting codification of Te Tiriti’s meaning, purposes and powers would then be submitted to the New Zealand electorate for ratification in a binding referendum.

ACT’s intentions here are reasonable and, in light of the recommendations of the highly controversial He Puapua report, entirely understandable. If, in the opinion of the expert authors of He Puapua, New Zealand’s obligations under the UN Declaration on the Rights of Indigenous Peoples (UNDRIP) require the profound reconfiguration of its constitutional structures, then ACT is quite correct in insisting that such a transformation not be achieved through incremental legislation, bureaucratic fiat and/or judicial activism, but openly and democratically.

The ACT policy is also entirely congruent with New Zealanders’ historically and legally grounded

Continued on page 09

Sep 22, 2023 Issue 33

Unratified change It is a matter of concern for convinced democrats that, of all the parties represented in Parliament, only the ACT Party has demonstrated anything like a proper understanding of its political obligations when alerted to the contents of a secret, governmentcommissioned report recommending the steady implementation of profound constitutional changes – all unratified by referendum.

As the party responsible for commissioning He Puapua, Labour’s inaction in this regard is, at least, explicable. So, too, given their extreme ideological positioning vis-à-vis Te Tiriti, is that of the Greens and Te Pāti Māori. Less explicable, however, is the National Party’s failure.

Not only did the National Party fail to perceive the need to take a clear and practical stand on the constitutional challenge thrown down by He Puapua, but it still point-blank refuses to endorse and support ACT’s proposed remedy. Whether National’s refusal to back ACT is proof of constitutional ignorance, political cowardice or both is not clear. But, as New Zealand’s pre-eminent liberal-conservative party, National’s failure to be alarmed by the Labour government’s constitutional direction-of-travel is, itself, alarming.

At the heart of these difficulties lies the belief, held by those whose task it is to manage the evolving relationship between New Zealand’s indigenous and colonising peoples, that only a handful of their practices and policies could ever hope to secure majority support.

At the judicial, academic and senior bureaucratic levels, there has long been a deep suspicion of the Pakeha majority’s bona fides. By those required to apply the principles of Te Tiriti on behalf of the Crown, entrenched racist attitudes, operating individually and institutionally, are generally assumed to render constructive political dialogue on the “treaty relationship” impossible.

This fear of the Pakeha majority’s “racism” has contributed to the attitude – now widespread – that the treaty relationship must, perforce, be a relationship

Photo: Hagen Hopkins / Stringer / Getty Images

expectation that any and all significant changes to the way their country is governed, or any significant expansion or curtailment of their rights as citizens, not be the handiwork of a single political party or coalition of parties temporarily in possession of a simple majority in the House of Representatives. In its view, it should be the product of either a parliamentary super-majority of 75% or by the active determination of the whole nation.

involving legal, bureaucratic, academic, political and ethnic elites. Since the relationship – driven by legal, cultural and demographic pressures – must continue to evolve, and since its evolution would likely be brought to a shuddering halt if subjected to a plebiscitary test, then the process must be kept within the boundaries of elite governance or, as a last and imperfect resort, representative democracy.

Christopher Luxon

‘Extreme opinion’ Democratic objections to these elitist practices were met with terse counter-objections that local government referenda were repeatedly exploited by highly motivated Pakeha racists to thwart any and all attempts to empower local Māori minorities by creating Māori wards. This “weaponisation” of plebiscitary democracy was overcome only by the present Labour government passing amending legislation.

Representation based upon ethnicity, hitherto restricted to the House of Representatives’ Māori seats, thus secured another bridgehead.

Elite opinion was far from outraged by the legislative promotion of Māori wards. Erecting protective walls against the intervention of what is generally accepted to be ingrained and irreversible Pakeha racism was seen as an unavoidable strategy for advancing a Crown-Māori relationship that continued to grow in complexity.

It was no less an elite luminary than Sir Geoffrey Palmer (whose State-Owned Enterprises Act first breathed legal life into “the principles of the Treaty of Waitangi”) who, as long ago as 2013, reassured the Māori Law Review symposium on the Treaty of Waitangi and the constitution that: “Insulation from the ravages of extreme opinion has been achieved. The settlements have become mainstream.”

It is difficult to avoid the conclusion that this former prime minister and celebrated law professor understands “extreme opinion” and the “beliefs of the majority” share an uncomfortably close relationship.

Missing from the elites’ analysis are the uncouth realities of democratic politics. Issues which engender strong and uncompromising feelings in large numbers of people – especially issues which strike at the heart of their moral understanding of the world – do not lend themselves to purely partisan resolution.

Resolving these deeply divisive issues or, at the very least, persuading passionate antagonists to accept the judgment of the ballot-box pro tem, is much more easily achieved by a referendum.

Photo: Pool / Getty Images

Continued from page 08

David Seymour

As New Zealand’s pre-eminent liberalconservative party, National’s failure to be alarmed by the Labour government’s constitutional directionof-travel is, itself, alarming

for decades to decide whether New Zealanders would continue with the liquor trade as it was, turn it into a state monopoly or prohibit it altogether.

In the first two decades of the 20th century, the Women’s Christian Temperance Union (WCTU) mounted a powerful nationwide campaign in favour of prohibition – one that came within 10,000 votes of succeeding in April 1919. So passionate was the population about alcohol a century ago that successive governments thought it best to keep running the referendum right up until 1987!

Few New Zealanders realise that the successful campaign for women’s suffrage in New Zealand was driven not by radical feminist principles but by the desire to strengthen the forces in favour of prohibition.

Temperance referenda Perhaps the best example of this calming effect were the referenda conducted alongside general elections

Continued on page 10 09

Continued from page 09 Many progressives backed the WCTU’s campaign, as determined as were the battered wives and children, who bore the brunt of drunken male violence, to rescue the working-class from the scourge of alcoholism by giving its primary victims, women, the opportunity to vote it out of existence.

As the decades passed and the passions surrounding prohibition subsided, the three-yearly ballot lost much of its potency. By giving the whole electorate a say, the referenda not only got the political parties off the hook but also provided the most extreme prohibitionists with an incontrovertible measure of their waning influence.

The world-wide progressive movement of the late 19th and early 20th centuries strongly advocated for the referendum. In the United States, the movement not only championed “propositions” (referenda) but also “recall ballots”, permitting aggrieved citizens to recall representatives who were seen to be failing their electors.

It was only when the American Right started winning proposition ballots in the 1980s that the Left turned cold on the process. With the overthrow of Roe v Wade, however, the American Left has re-discovered the virtues of the referendum. Pro-choice ballots have now been carried in state after state.

New Zealanders’ strong attachment to straightforward majoritarian democracy, unencumbered by judicial intervention, upper houses or written constitutions, made them enthusiastic supporters of the referenda – an enthusiasm heightened whenever voters believe political parties are legislating rough-shod over their objections.

In this regard, the excesses of Roger Douglas and Ruth Richardson in the late-1980s and early1990s made possible the Citizens Initiated Referenda Act of 1993. What soured New Zealanders on the

process was the National Party’s decision to make them non-binding. After a few unsuccessful attempts at kick-starting social and political change, voters concluded that the whole process was an expensive waste of time.

Reassuring voters The approaching election has acquired a sharperthan-usual cutting edge by the widespread conviction that politicians and the news media are attempting to lead New Zealanders by the nose to conclusions they have not arrived at themselves, and with which they are by no means certain they concur. That these exogenous conclusions show every sign of informing dramatic changes to the way New Zealanders govern themselves is giving that electoral blade an even keener edge.

With a consensus rapidly forming among all the leading polling agencies that 14 October will produce a change of government, it behoves the political parties most likely to form it to reassure the voters who have just elected them that the failed promises and unwanted reforms of its predecessor form no part of its collective agenda. Voters want what they say to go where they want it – not where a bunch of condescending elitists and their political handpuppets want it.

It is no accident that the slogan of the most devastating electoral campaign in this country’s political history was: “New Zealand the Way YOU want it.” Kiwi politicians ignore their fellow citizens’ visceral attachment to majoritarianism at their peril. By the same token, the progressive traditions underpinning New Zealand’s political culture should also not be discounted. Given the opportunity, New Zealanders might just surprise the world with what they are prepared to agree to – when asked.

If the National Party is apprehensive about the quality of any Te Tiriti definition ACT might put to a referendum, then why not take over the process itself?

The Start and End of a Franchise

Crucial steps, due diligence, contract renewals, and graceful exits Tuesday 10 October | 4.00pm – 5.30pm | 1.5 CPD Hours

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What the ACT Party is proposing is that defining Te Tiriti o Waitangi’s constitutional significance ceases to be the purview of judicial, academic and bureaucratic elites

Surely the party of Jim Bolger and Doug Graham, John Key and Chris Finlayson is capable of designing a process of constitutional reform in which all New Zealanders – Māori and non-Māori – feel able to make a contribution without being sneered at or abused. A process in which elite “experts” remain on tap – not on top.

A National Party willing to hold the ring for fresh new thinking about how best the majority can protect the rights of the minority and keep the powers of the state in check would be a National Party justifiably anticipating a very long period in office.

As the votes are counted on both sides of the Tasman on the night of 14 October, some will seize upon the results as proof that Australia and New Zealand remain irredeemably racist societies.

Such a charge will be difficult to refute for a nation which has just voted “No” to giving its indigenous people a constitutional voice. It does not, however, need to apply to New Zealand. What happens here on 14 October could be the beginning of a free-wheeling constitutional conversation that astounds the world. ■ Chris Trotter has more than 30 years’ experience as a political commentator. He is the author of the Bowalley Road blog. ■

Sep 22, 2023 Issue 33

ADLS

ADLS revamps Friends Panel service If there’s an issue that you think could land you in difficulty somewhere, it’s really good sometimes being able to talk it through

Reweti Kohere An ADLS service enabling lawyers to seek confidential help and advice from experienced practitioners on matters impacting their work has been refreshed.

Thirty-four lawyers, from a variety of practice areas and reflecting the profession’s diversity, have been appointed to ADLS’ Friends Panel. The 34 “friends” are not guidance counsellors so much as a professional helping hand for lawyers facing practice area-specific issues or more general day-to-day matters. Lawyers can contact panel members via email to set up a time to speak; the service is free.

“People want to chew the fat. A problem shared is a problem halved, and most practitioners are very capable and good problem-solvers,” says panel member Fiona Hall, a lawyer specialising in privacy law, consumer credit law, and regulatory law. “But if there’s an issue that you think could land you in difficulty somewhere, it’s really good sometimes being able to talk it through.”

Getting another perspective can make all the difference. “A lot of the times, people have come up

With strong interest from practitioners in joining with what they think the answer is and they’re looking for confirmation that they’re taking the right approach,” the panel, the group has specifically been selected to provide collegial support in a confidential manner to says Hall, who recalls helping a lawyer with their “curly all members of the profession – not just issue” by casting it in a different light.

Sometimes ADLS members.

Such conversations are treated in The Friends Panel webpage the highest of confidence, “as if, for that the talking is outlines the practice areas and practice moment in time, they are my client and actually not matters that panel members can help this is privileged, it doesn’t go anywhere”. to solve the with, something Hall says is useful in That enables lawyers to be frank and matching skills and expertise. open – especially junior solicitors who problem but “Most lawyers just want to get it may be afraid of the repercussions to understand right, but we’re not all perfect. And of raising concerns about their firm’s what the people get themselves in a pickle every culture or more senior colleagues’ now and then. When you start talking issue is behaviour. to someone about a problem [you often Equally, more senior lawyers can find] they were viewing it through one suddenly find themselves in unfamiliar lens and in fact the thing they sought territory, such as Hall herself, who had advice for wasn’t really what they needed advice on,” a potential conflict of interest and sought help from she says. “Sometimes the talking is actually not to a colleague whom she trusted. “There are lawyers solve the problem but to understand what the issue is. out there who don’t have those connections. We say, And once they have an understanding, they can often ‘ADLS – connecting New Zealand lawyers’. This is one solve it themselves.” ■ of the ways we can provide a connection for people to feel that there’s somewhere to go,” she says.

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Leading Your Career 11

EMPLOYMENT

First Māori Employment Court judge sworn in You are conscious of the opportunities that you have had and the responsibilities that come with positions of power. You have used your practice in the law to help and uplift others

Judge Mere King and Employment Court Chief Judge Christina Inglis

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When Merepaia King (Ngāti Māhanga/Ngāti Te Wehi – Tainui) was sworn in as a judge earlier this month, she notched up two milestones: it was the first time an Employment Court judge had been sworn in on a marae and she was the first Māori judge to be appointed to the court in its 129 years of operation.

It was a beautiful spring day on Saturday September 9 when a strong contingent of friends, whanau and fellow judges turned out at Te Papa o Rotu Marae at Whatawhata for the ceremony, attended also by Tuheitia Potatau Te Wherowhero, the Māori King and the Kingitanga.

“The brilliant sunshine of the day reflected the occasion and intermingled with the sense that all of us present were witnessing something historic and important for our employment law jurisdiction,” said barrister Catherine Stewart, convenor of the ADLS Employment Law committee.

“I felt privileged to attend on behalf of ADLS and to be part of the event. I am sure this occasion will be remembered as a significant milestone in the history of the Employment Court and one that has been a long time in the making.” Judge King, a former Buddle Findlay partner, is only the fifth woman judge to be appointed to the Employment Court. She has been a long-standing member of the ADLS Employment Law committee.

Employment Court Chief Judge Christina Inglis said it wasn’t an easy role for Judge King to take on. “People sit at the heart of employment law and practice and with people comes complexity,” she said. “No two cases are exactly the same. The issues are often under-pinned by competing – sometimes starkly conflicting – rights and interests, and the law flexes and develops as the legislation changes and as society’s norms, expectations and the way in which working relationships are viewed, evolve.”

Chief Judge Inglis said an Employment Court judge needed an unusual mix of acumen, cross-disciplinary skills, technical ability and an understanding of the “reality of

working relationships, of human nature and its frailties and (from my vantage point, at least) it not infrequently requires very high levels of sheer grit, determination and endurance”.

And, she said, judges needed to be humble. “They need that humility to understand that they may get it wrong, to see the human dignity within every person who appears before them and to take the time and care to deal with each person and each situation as they present, without preconceptions or prejudice. I am confident that Judge King will bring these important attributes to her new role.”

Speaking on behalf of the Attorney-General, Crown solicitor Natalie Walker said Judge King had broken barriers and worked hard for everything she had achieved.

“You know the disadvantage that many in our society struggle with, and the unfairness of it. You are conscious of the opportunities that you have had and the responsibilities that come with positions of power. You have used your practice in the law to help and uplift others,” Walker said.

Maria Dew KC, speaking on behalf of NZLS, ADLS, the NZ Bar Association and the Employment Law Institute, said Judge King’s former partners described her as having a strong moral compass for what was right and as someone who had never been interested in the business of law as an end goal but, rather, as a passion for making a difference for those who must engage with the law.

Colleagues had also spoken of the “fierce and steely determination” beneath the judge’s calm exterior, describing her as down-to-earth and with the ability to laugh, Dew said.

Barrister Shelley Kopu, on behalf of Te Hunga Roia Māori, told the gathering Judge King had been raised on a shoestring budget and largely by her mother, who had taught her the value of hard work. After school, she had helped her mother clean the Māori Land Court. “Your appointment is a testament to your strength, humility and resilience,” Kopu said. “It heralds change and reclamation. For all of us.” ■ Jenni McManus ■

Sep 22, 2023 Issue 33

CLIMATE CHANGE

Another day, another roadblock: how should NZ law deal with disruptive climate protests?

With the stakes rising, it’s important that governments and legal systems find ways to adapt, without risking a climate-protest arms race that may only encourage increasingly unreasonable impacts on the general public Alexander Gillespie

Rights and freedoms

The most recent protest by the Restore Passenger Rail climate protest group, in which a Wellington car dealership was defaced with red paint, is not just the latest in a local movement – it’s part of a global trend.

Airline bosses have been hit with cream pies, Just Stop Oil protesters have glued themselves to iconic pieces of art in famous galleries, students are skipping school to march for climate justice and airport runways have been invaded.

Everywhere, including in New Zealand, roads and highways have been blocked.

It’s entirely likely such protests will continue and escalate in their impact as the climate emergency worsens and frustration grows with a perceived lack of meaningful government action.

Groups such as Extinction Rebellion view “nonviolent direct action and civil disobedience” as not only justifiable but crucial in the face of what they see as an urgent existential threat.

But for every climate action, there has been a political and legal reaction. From Europe to Australia there have been crackdowns. New laws have been drafted in Britain to create specific offences such as obstructing major transport works, interfering with key national infrastructure and causing serious disruption by tunnelling.

Earlier this year, a New Zealander living in Britain was given a “draconian” three-year prison sentence for his role in a protest that shut down a busy road in London.

With the stakes rising, it’s important that governments and legal systems find ways to adapt, without risking a climate-protest arms race that may only encourage increasingly unreasonable impacts on the general public.

In New Zealand, a trend towards authorities reaching for harsher penalties is also evident.

The traditional sentence for obstructing a public road without consent is a fine of up to $1,000. Such penalties are now being augmented with potential charges of criminal nuisance and police have warned that protesters could face up to 14 years in jail for endangering transport.

That is longer than many serious crimes, including the maximum 10 years under proposed law changes for ram-raiding. At the same time, protest is a critical part of free and democratic societies and has been used (often in novel ways) to achieve change we now take for granted.

Although there is no specific right to protest in law, protesting is a manifestation of the rights to freedom of movement, association and peaceful assembly in most liberal societies.

Globally, such rights are protected by the United Nations Universal Declaration of Human Rights and the related framework of human rights treaties. In Aotearoa New Zealand, the Bill of Rights Act 1990 guarantees those rights. And yet, the right to protest is not absolute. As with most rights, it can be subject to such reasonable legal limits as can be justified in a free and democratic society.

In practice, this means not all forms of protest may be permissible, such as disorderly acts or ones that risk violence or public safety. Tolerance of protest and some levels of inconvenience should be expected in liberal democracies. But intentional and serious disruption to ordinary life may be illegal if it is done unreasonably.

Determining what is reasonable is the hard part. It involves assessing the scale and impact of the inconvenience and the rights and freedoms of

others affected.

So, peaceful protests that cause temporary inconvenience and limited obstruction might be permissible. But repeatedly blocking people from going about their business for prolonged periods may not be.

Climate protests exist at a moral and legal intersection. Reducing carbon emissions means targeting roads, highways and fossil fuel-powered vehicles by creating blockades and choke-points.

But for centuries, authorities have been charged with keeping those vital routes open for citizens.

Worlds collide The challenge is to find the balance between two world views that are colliding. It’s wrong to try to silence legitimate dissent but how do governments and other authorities make room for, and even facilitate, a protest movement aimed at altering fundamental behaviours?

One response might be to designate new areas where such protests can be held (including on roads) as a way to help those messages be heard and seen.

These must be authorised and conducted in ways that don’t unreasonably hinder the rights of other citizens.

But it is unlikely to be enough for more radical ends of the protest movement, which clearly view direct and increasingly disruptive actions as the only effective method.

There may be no simple answer. But New Zealand’s next government should review the current legal frameworks to ensure they are fit for purpose. People are equal before the law, and breaking the rules means being held to account. But the penalties must not be disproportionate.

Law and policy already acknowledge the climate crisis will demand enormous effort and change. They cannot also become blunt tools for repressing social movements dedicated to holding those same powers to account. ■ Alexander Gillespie is a Professor of Law at the University of Waikato ■ The above was first printed in The Conversation and is republished with permission 13

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Sep 22, 2023 Issue 33

adls.org.nz/cpd

Starting and ending a franchise

Webinar 1.5 CPD hours Tuesday 10 October 4pm – 5.30pm Price from $140 + GST Presenters Deirdre Watson, barrister and Paul Dalkie, barrister

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Estate and family feuds SEMINAR ALL LEVELS FAMILY

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Events Featured events

Connecting New Zealand lawyers

Upcoming

Wellington After 5 with John Allen

Soon to be added:

Wednesday 25 October 5.30pm – 7.30pm Flamingo Joes, 1/10 Waterloo Quay, Pipitea, Wellington

Nov | Central Auckland Lawyers’ Lunch Dec | Northland Lawyers’ Lunch

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Hamilton After 5 Wednesday 8 November 5.30pm – 7.30pm Gothenburg Restaurant, 17 Grantham Street, Hamilton Central Sponsored by MAS

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Christchurch After 5

Photo: Klaus Vedfelt / Getty Images

Thursday 9 November (new date) 5.30pm – 7.30pm Botanic, 126 Oxford Terrace, Christchurch Central City Sponsored by MAS

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Inside the in-house experience Wednesday 15 November (new date) 5.30pm – 7.30pm Duncan Cotterill, Level 1, Australis Nathan Building, 37 Galway Street, Auckland CBD Sponsored by MAS

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events@adls.org.nz

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adls.org.nz

Sep 22, 2023 Issue 33

Legal Business Sale Specialists

WILL INQUIRIES SOLD

SOLD

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All LINK Offices Are Licenced REA08

Are you considering selling your Law Firm?

If you are looking at selling your Law Practice and are curious about the value of your business call me today for a confidential discussion.

0800 546 528 LINKBUSINESS.CO.NZ

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document.

LawNews: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

Ph: (09) 303 5270

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

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

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Workplace Investigator Margaret Robins

DUNCUM Gilbert Hugh

RANGVANU Junior Jacob

• Late of Apartment 2205, 148 Meadowbank Road, Meadowbank, Auckland • Retired • Aged 89 / Died 16’08’23

• Late of Auckland • Aged 31 / Died 02’07’23

LETHBRIDGE Elaine Margaret

• Late of Auckland • Retired • Formerly farmer • Aged 94 / Died 02’09’23

• Late of Auckland • Married • Real estate agent • Aged 79 / Died 03’01’21

STEVENSON John Robert Mackie

SWIFT Peter Edward

LIU Shuangying

• Late of Auckland • Aged 87 / Died 15’08’23

• Association of Workplace Investigators Certificate Holder

• Late of Auckland • Aged 88 / Died 12’07’23

TALAKAI Wesley Toutai

• Member Association of Workplace Investigators (USA)

MAESAKA Chikako

• Late of Pakuranga, Auckland • Truck driver • Aged 38 / Died 19’07’09

• Member Australasian Association of Workplace Investigators

• Late of Wakayama, Japan • Married • Retired • Aged 75 / Died 21’04’22

Visit my website to learn more about my experience and my approach: www.workplaceinvestigator.co.nz Or contact me on (027) 270 1057 or mrobins@workplaceinvestigator.co.nz

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