LawNews- Issue 34

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

Editor: Jenni McManus

Publisher: ADLS

Editorial and contributor enquiries to: Jenni McManus 021 971 598

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

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

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

©COPYRIGHT and DISCLAIMER

Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members. Responsibility for such views and for the correctness of the information within their articles lies with the authors.

Committee calls for ban on advocates in Employment Court

A large new industry has inadvertently been established of advocates who work as sole practitioners. This has come about due to a wider, and in our view incorrect, interpretation of the relevant sections of the Employment Relations Act on union and employer association advocates

Jenni McManus

The ADLS Employment Law committee has written to Workplace Relations and Safety Minister Michael Wood, asking for employment law advocates who don’t work for unions to be barred from appearing in the Employment Court.

The committee says it’s concerned about the quality of service some advocates are providing to the public. And while it says they should be allowed to appear in the Employment Relations Authority, they should be subject to the same professional requirements and ethical standards as lawyers.

This would mean completing 10 hours a year of continuing professional development, making an annual declaration that they have not been convicted of any criminal charges, been declared bankrupt or been subjected to disciplinary proceedings, and complying with the Lawyers and Conveyancers Act (Conduct and Client Care Rules) 2008.

developments in this area,” the committee said.

Some employment advocates are legally qualified though others are not. And many do not make it clear to their clients that they are not practising lawyers.

According to Catherine Stewart, an Auckland barrister and convenor of the ADLS Employment Law Committee: “Members of the committee have experienced many examples of where a client has instructed them after having initially being represented by an advocate and the client genuinely thought that their former representative was a lawyer.”

Prior to the Employment Relations Act, employed union advocates and employer association advocates could appear in the Employment Court. The practice was then solidified under the Employment Relations Act.

The committee says these advocates are usually not practising lawyers but were recognised as having sufficient skill and expertise to appear in the Employment Court “given their unique role”.

“However, a large new industry has inadvertently been established of advocates who work as sole practitioners. This has come about due to a wider (and in our view incorrect) interpretation of the relevant sections of the Employment Relations Act on union and employer association advocates.”

Many advocates do not make it clear to their clients that they are not practising lawyers

In addition, the committee says employment law advocates should be directed by MBIE to provide clear information on their websites and in their terms of engagement that they are employment advocates, not employment lawyers with a current practising certificate. Advocates should also have to state whether they are legally qualified and hold an LLB.

And the committee wants MBIE and/or the Employment Relations Authority (ERA) to display clear information on their websites on how the public can provide feedback about employment advocates. It says members of the public often complain to the New Zealand Law Society about the activity of advocates without realising that NZLS doesn’t regulate employment advocates and cannot determine complaints about them.

“In light of the lack of regulation, we are of the view that the public should at least have a clear avenue to provide feedback to MBIE which may in turn inform any further

The mischief the committee sees in the Employment Court is the advocates’ lack of the necessary skills and knowledge to adequately represent their clients. The court, it says, has different and more complex protocols than the Employment Relations Authority.

“Advocates who appear in court without proper knowledge of processes or systems (even just the preparation of pleadings and written evidence), particularly when it comes to matters involving interlocutory applications or complex issues of law, can create significant delays and escalation of costs for both parties (including the party appearing against them), which has flow-on effects for access to justice in the employment jurisdiction. Written briefs of evidence, affidavits and pleadings are often not of good quality when drafted by advocates,” the committee says.

Wood has acknowledged the committee’s letter but made no further comment.

The committee also provided the minister with case studies where the ERA or Employment Court has expressed

Catherine Stewart

Judge Christina Inglis

Continued from page 03

concern about the conduct of advocates.

In Ward v Concrete Structures (NZ) Ltd [2019] NZEmpC 111, Chief Employment Court Judge Christina Inglis made some general observations about the industry.

“Advocates are entitled to appear on behalf of their clients in the Authority and the Court under the Employment Relations Act 2000. No regulatory framework currently exists to address any issues of competence. Nor does a complaints mechanism exist. The New Zealand Law Society, which oversees such matters in respect of lawyers, has no role to play in relation to employment advocates,” Chief Judge Inglis said.

“There is a limit to the extent to which the court can appropriately address professional standards issues which arise in respect of the conduct of some advocates and which impact on often vulnerable litigants, the opposing party and more generally in terms of the efficient and effective administration of justice… all of this is, of course, a matter for Parliament if it so chooses, not the court.”

In Kennedy v First Security Guard Services Ltd [2022] NZERA 26, the Employment Relations Authority found that the advocate had threatened the other party in a bid to get them to settle.

“There are several components to the orders sought. The application is based on the conduct of Allan Halse, Ms Kennedy’s representative. First Security asserts that Mr Halse has made several threats against it if that it does not settle with Ms Kennedy, then he will publish negative comments about the company and/or its management in the media and/or on his social media platforms. These are contained in emails sent by Mr Halse,” the ERA said.

It went on to make interim orders against the employment advocate to restrain him from further highly inappropriate conduct. He was required to cease threatening or making public comment about First Security Guard Services, take down any

current posting to websites or social media and not to contact the company about his client. All communications were to be sent to the company’s lawyers.

In Davidson v Great Barrier Airlines Ltd [2016] NZERA Auckland 403, the employment advocate was found liable by the ERA for a penalty because of his poor conduct.

“Having found the delay and obstruction was without sufficient cause, Mr Bennett was liable to a penalty under s 134A of the Act,” the ERA said. “The failures that caused the delay and obstruction occurred either side of 1 April 2016….

“As already noted the failures to provide Ms Davidson with information about progress on her case, culminating in postponement of the first scheduled investigation meeting, occurred over a number of months. They were not ‘intentional’ but amounted to significant negligence by someone trading as an “employment law specialist”. Harm caused included the further anxiety and delay for Ms Davidson, left in the dark for five months over progress in her application, and the additional cost and worry for GBAL while participating in an Authority investigation that was then longer than expected. While the relationship between Ms Davidson and Mr Bennett was commercial, as client and advocate, she relied on his expertise and advice while she sought to address an employment relationship problem, including when she resigned and raised a personal grievance for constructive dismissal. It was Ms Ryder who sent Ms Davidson’s notice of resignation to GBAL.

“While Mr Bennett accepted “responsibility” for the failures that hindered the Authority’s investigation, it could not be said he demonstrated any real remorse. Rather he thought it “unjust” that his responsibility should result in any real consequence. There were strong public interest factors favouring a penalty that deterred representatives from failing to make sensible, prompt alternative arrangements if they could not properly attend to the needs of clients who relied on them.” ■

A Practical Guide to Taxing Property Transactions,

This comprehensive guide discusses the key income tax and GST issues associated with buying, selling, owning and leasing property.

Substantive legislative changes have occurred since the publication of the seventh edition, the most important being the changes to the bright-line test and the limitation of interest deductions for residential property investors.

The new edition is fully revised and updated for these changes,

together

Price

To

The mischief the committee sees in the Employment Court is the advocates’ lack of the necessary skills and knowledge to adequately represent their clients

Michael Wood

Court rules on complex power-of-appointment issue for trustee

Trustee Act 1956 s 43 – Trusts Act 2019 s 112 – originating application by trustee to address concerns about validity of certain trustee appointments and retirements – applicable principles – terms of the trust deed – power of appointment – “diminishing capacity” – timing of transactions – statutory framework – whether sole trustee allowed – litigation guardian – policy – precedent – certain orders sought by trustee are granted and the specified transactions are confirmed as valid

A family trust (T) was settled for H and his family by H’s father – H held the power of appointment and removal of trustees. H was subsequently diagnosed with dementia and removed himself as trustee.

T’s main asset was a significant farming operation and H had to retire from farming. These events meant various trust-related transactions were necessary/ undertaken and the sale of farmland was anticipated. At that point, T had a sole trustee (HTS) and HTS sought legal advice as to the validity of its position.

HTS then filed an originating application seeking orders confirming the validity of certain previous trustee appointments and retirements, and to therefore ensure it was appropriate for HTS to act as trustee going forward.

Applicable principles – procedure – extensive discussion of the interplay between the now repealed

Trustee Act 1956 the Trusts Act 2019 and the terms of the trust deed, particularly in relation to whether a sole trustee could be appointed, and the mechanisms by which trustees could be appointed, removed or retired – analysis of the scope of the orders sought by HTS – consideration of the reasons why H stopped being a trustee and the relevance of his capacity issues – discussion of policy factors relating to the appointment of a litigation guardian for H – reference to precedent and to academic commentary, including the appropriateness of the appointment of a sole trustee

Held: certain of the orders sought by HTS are granted [others are deemed unnecessary] and HTS is confirmed as the validly appointed sole trustee. ■

Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■

Sacha Jugum

Re Hayward Trustee Services Limited [2022] NZHC 2217 (Dunningham J) (on the papers)

An autopsy, two sermons, tikanga and the deifying and the dethroning of science

Warren Pyke

A not-quite-post-covid New Zealand Bar Association conference occurred recently in Tauranga. It was a huge success, with attendees being treated to a series of interesting and engaging speakers presenting on a variety of topics and offering ample opportunity to socialise with colleagues.

The opening day’s keynote speaker, the ebullient Justice Goddard, embarked upon a dissection of modern lawmaking. His Honour, in an engaging talk, rehearsed his recentlypublished book Making Laws that Work (Hart Publishing, London, 2022).

The themes of his presentation were why legislation fails, how it fails and how lawmakers have failed to learn from past failures. The judge picturesquely described legislative failures as damp squibs and backfires, illustrated by a photo of boarded-up windows to avoid a window tax.

It will be no surprise to experienced lawyers that legislation is often not up to the tasks assigned to it because of impenetrable language, tedious length, endless schedules, frequent amendments and increasing volume. Among other intriguing suggestions, the judge called for adaptive legislation, utilising subordinate legislation as a mechanism for flexible lawmaking under overarching primary statutes, although he did not advocate for “uncritical and widespread use of so-called ‘Henry VIII clauses’ (see p 103 of his Honour’s book).

In a fusillade about lawyers’ moral duties to protect the climate and the public in an emergency, two groups of silks and their co-presenters spoke on emerging challenges to power in the public law field.

On the question of the “climate emergency”, we were told we should expect to see more challenges, dragging in regulatory and government authorities if they sit on their hands in the face

of our imminent extinction.

The High Court has recently affirmed, when striking out a climate change claim, that the scope for such challenges is narrow, observing that given the complex nature of climate change policy, any fiduciary obligations arising from the Crown would be owed to the public in general, making such claims untenable (see Smith v Attorney-General [2022] NZHC 1693, at [233]).

The presenters hoped for more action, such as the enactment of a right to a sustainable environment. However, such a right would represent an ill-fitting cloth within the drapery of the New Zealand Bill of Rights Act 1990, since it would perforce be owed to the public in general.

Even if such a social value could be unambiguously formulated as a right, which is doubtful, it may warp the scope and definition of civil rights in New Zealand. We were counselled to read the summaries to the IPCC reports, although my reading of some of those reports and the summaries for policy makers suggest that, as in most complex fields of study, a summary is an inadequate substitute for a full reading of the text.

“Climate science” was pronounced to be a special field of science about which judicial notice may now safely be taken, like gravity and the second law of thermodynamics.

A review of judgments in recent climate change cases reveals none appear to have involved the appearance of an intervener or contradictor; particularly absent is any scrutiny of the assumptions of popularly described “climate science”.

A suggestion was made that judges should be educated concerning “climate science”. While I doubt that most judges and lawyers could describe the greenhouse effect with scientific

Some fingerwagging was thought to be warranted in the direction of lawyers who were not “careful” about public sentiment when acting in civil rights cases during an emergency

Warren Pyke

Continued from page 06

precision, let alone the second law of thermodynamics, it is not the proper role of judges to be educated about complex scientific questions when they are not sitting on a case in which they arise.

Nor is it the place of activist litigants or government officials to superficially school judges about such topics. This brings to mind recent dicta in the Supreme Court of New South Wales, as follows (replace the word “academic” with “judicial” and you will get my point, see Thiab v Western Sydney University [2022] NSWSC, at 145):

“Historical events also provided context ...Galileo’s persecution by the Inquisition was a famous example. More recently, and more immediately relevantly [sic] for present purposes, were Stalinist and Maoist enforcement of academic conformity with the party line (including in particular forced recantation of “incorrect” beliefs and forced self-criticism for having professed those beliefs in the first place): see Priestland, D, The Red Flag: A History of Communism (Grove Press, 2009).”

The second group of crisis presenters struck a discordant note to the first. They argued that challenges to power during an emergency, which presumably includes a perpetual climate emergency, are to be handled by lawyers “carefully”.

Supported by reference to alarming modelling which was formulated in the early stage of the pandemic (it was obvious by May 2020 that this modelling was well off-the-mark), some finger-wagging was thought to be warranted in the direction of lawyers who were not “careful” about public sentiment when acting in civil rights cases during an emergency.

It was argued that individual rights ought to be subordinate to the greater good until the dust of the crisis has settled, presumably because many people are thought to be too scatter-brained to think for themselves in a crisis.

Of course, if that crisis is a war, such suppression could last for years. Reference to Lord Atkin’s famous dissenting judgment in Liversidge v Anderson [1942] AC 206 is apposite (adopted and applied in A v Secretary of State for the Home Department [2005] 2 AC 68 (HL), the majority’s “careful” approach in Liversidge having fallen out of favour with modern jurists):

“In England, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.”

Lawyers have an obligation to uphold the rule of law, in the

discharge of which lawyers are obliged to be independent of power (see s 4 of the Lawyers and Conveyancers Act 2006, which affirms these as “fundamental obligations”). While a supine approach to lawyering may suit a government which is mismanaging a crisis, legal challenges ought to be untroubling to governments in open societies which are served by an independent and professional judiciary.

Salient of my theme, moving and distressing korero was spoken by Tamati Kruger and Kirsti Luke about the betrayals of trust and honour by the Crown towards Tuhoe. Their korero was followed by Dr Robert Joseph’s lively presentation about tikanga and its place in public life in New Zealand.

Joseph explained that tikanga is derived from the Māori word ‘tika’ which means ‘right’ or ‘correct’, connoting a tradition to act and behave in a way that is culturally proper or appropriate. Mauri is a part of understanding tikanga: it teaches us about the need to respect and care for all things on earth.

He added that mana includes “caring for” and raising or upholding the mana of others. Joseph spoke with conviction about the possible role of tikanga in the delivery of justice; his was a forward-looking vision of our social and justice problems, calling for understanding through awareness of tikanga, followed by adjustment through bringing tikanga to life in our justice system. This was complemented the next day by a presentation on tikanga and state law.

In a session chaired by Judge Paul Mabey QC, two experienced criminal lawyers gave a presentation on novel scientific evidence in criminal cases. A close analysis of the scientific evidence in the Lundy case was rounded out by a survey of other supposedly “settled” scientific evidence, including dodgy fingerprint and DNA evidence, pointing to the need for lawyers to take expert advice when in doubt (an enlightening read on these topics is Alex Kozinski’s paper “Criminal Law 2.0” 44 Geo.L.J. Ann Rev. Crim. Proc. iii (2015); the retired US Federal Judge begins his piece by pronouncing: “Although we pretend otherwise, much of what we do in the law is guesswork”).

This was a valuable session, spiced up by handy tips and recommendations.

Rounding out the conference was a final keynote speech by Alex Hagan on the post-pandemic world.

All in all, it was a successful conference, full of variety: an autopsy (you’ll need to buy the judge’s book to understand this allusion), two sermons, the resurrection of tikanga, the deifying followed by the dethroning of science, and encouragement for the future.

Highlights of the concluding banquet were the conferring of a life membership on Stuart Grieve KC and an inaugural award for service to access to justice given to Francis Joychild KC. This was a well-planned and run conference under the stewardship of Paul Radich KC, who was replaced at the helm of the NZBA by Maria Dew KC.

■

Warren Pyke is an Auckland barrister ■

It was argued that individual rights ought to be subordinate to the greater good until the dust of the crisis has settled

The presenters hoped for more action, such as the enactment of a right to a sustainable environment

Has our anti-money laundering regime gone too far?

No regulatory change, including the extension of AML rules to lawyers or even all regulatory changes combined, had any material, demonstrable, impact on money laundering, crime, or terrorism

such as the Credit Contracts and Consumer Finance Act (CCCFA).

Anti-money laundering and counter financing of terrorism are the bane of many businesses. On one hand, they’re a huge cost to organisations. On the other, they could be seen as a building block creating a civil society.

But has the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML-CFT) and its implementation by regulators gone too far? Updates to the law that came into force on July 15 are bedding in and it’s not yet clear how they’re doing.

Few question that financial services companies, accountants, lawyers and some others are exposed and should fall under the legislation. Yet one member of the ADLS Trust Law committee is questioning whether its net has spread too widely.

Henry Brandts-Giesen, a partner at Dentons Kensington Swan, says the regime shifts the emphasis from a traditional law enforcement approach of investigating offenders directly. Instead, it outsources information-gathering obligations to third parties and intermediaries caught by the legislation such as lawyers, accountants and real estate agents with whom AMLCFT offenders may interact.

“In terms of effectiveness, this ‘outsourcing’ may be equally as brilliant as it is controversial,” says Brandts-Giesen, who is the author of AML/CFT in New Zealand: A Handbook for Lawyers and Accountants

The issues with this approach include:

■ what proportion of the burden of countering AML-CTF should be borne by the private sector compared to traditional law enforcement agencies?

■ what is a proportionate response to actual risk? and

■ how much compliance can be standardised and what part(s) can be customised to the businesses concerned?

Pain in the pocket

The financial burden is high for smaller businesses, many of which face legislation overload from AML-CFT laws and others

They must in most cases:

■ appoint an AML-CFT compliance officer;

■ complete a risk assessment and implement an AML/CFT process;

■ carry out customer due diligence;

■ report suspicious activities;

■ make annual reports to their supervisor; and

■ be independently audited every three years in most cases. That’s not cheap, says InvestNow founder Anthony Edmonds, who recently likened the AML-CFT burden to going through security at airports – a necessary evil.

One of the problems for smaller businesses is that while the law is written to allow organisations latitude in determining the risk scenario, in practice, supervisors impose rules-based standards, says Brandts-Giesen. “This results in a lack of critical thinking about risk and a default to tick-box compliance exercises.”

He adds that although AML-CFT compliance regimes are quite properly designed as risk-based standards, standardisation of the compliance regime makes compliance more difficult for smaller businesses (and developing nations) with fewer resources.

Smaller businesses have some latitude to assess the AMLCFT risk in the circumstances of their business, the matter and the client, and then apply countermeasures proportionate to the risks, Brandts-Giesen says. “Those countermeasures should, in theory, be different depending on the circumstances.”

A classic example of the tension between the risk-based standards giving reporting entities latitude and rules-based standards imposed by supervisors is identity verification when doing customer due diligence.

“Businesses are required under the law to take reasonable

Do you think the Comancheros or Hells Angels care about the AML laws?

Henry Brandts-Giesen

Diana Clement

steps to verify the identity of the customer. This can be done in many ways, but the relevant code is very prescriptive,” BrandsGiesen says.

“Businesses spend many wasted hours trying to comply with the letter of the code and if they make a small technical breach, their auditor will likely make an adverse finding.

“I frequently visit clients in their homes. And yet the code requires me to verify their address by procuring a copy of a utility bill. On any objective view, this does nothing more to help me verify their identity. Anyone can generate a fake utility bill, but it is much more difficult to stage the family home,” he says.

“In any event, at what point should I take my compliance efforts to the stage of becoming a private detective?”

War lost

Asked about the latest iteration of the AML-CFT law, Dr Ronald Pol, former litigator and now director at EffectiveAML.org, doesn’t mince his words on New Zealand’s AML-CFT regime. Pol says: “No ‘fundamental’ review of AML regulations has reviewed anything fundamental.

“Nor has any regulatory change, including the extension of AML rules to lawyers or even all regulatory changes combined, had any material, demonstrable, impact on money laundering, crime, or terrorism.”

In short, the “war” on money laundering isn’t working, he says. “Many lawyers, bank CEOs and even a few regulators agree that the [so-called] war on money laundering may be the world’s least effective anti-crime policy initiative but, as the CEO of a major bank privately declared, they are ‘too scared’ to say it publicly.

“Ironically, the latest research suggests that it is now possible for lawyers to help trigger a catalyst change, enabling major impact while virtually eliminating regulatory risk and compliance costs. But silos in the profession may be a barrier.

“Lawyers seem to fall into three camps. One group gulped the AML Kool Aid. Another set up systems to tick all the right boxes and carry on business. If the third group, strategic board and government advisers, continue to let the first group lead advisory work without testing the narrative, the futile forever war looks set to continue endlessly.”

‘George Orwell would be proud’

Brandts-Giesen theorises that the actual money laundering and financing of terrorism has shifted, or is shifting, from its historic marketplaces, such as real estate and traditional financial centres and systems, to the dark web and metaverse.

But even for those attempting to use the mainstream markets for nefarious purposes, the law may not have much of an impact.

Nick Kearney of Davenports has his own take on this. “Do you think the Comancheros or Hells Angels care about the AML laws? No, they don’t. I realise there have been convictions for AML crimes, but laws targeted at gangs could easily have been introduced instead of the catch-all, scattergun approach we have.

One way to look at just how difficult the regime has become for small businesses, says Kearney, is the number of entrepreneurs who have spotted a money-making opportunity out of it. “You only have to look at the number of AML businesses now popping up to see how much of a business it has become.

“They obviously all see a huge market going forward where mums and dads will pay for the criminality of the Comancheros and Hells Angels. Is it a necessary evil? No, I don’t believe it is. I think it’s all part of a growing plan to capture mass collection of data of everyone on the justification that it’s for the better good. George Orwell would be proud.”

It’s too soon to judge how the new laws are bedding in, says Kearney. However, Garreth Collard, an accountant who runs EpsomTax.com, doesn’t believe the impact will be huge.

He cites the new requirement to do due diligence around the existence and identity of nominee directors and shareholders.

“Are nominee directors and shareholders used often? Only in limited circumstances. It certainly hasn’t been a regular topic of discussion with any of our AML service suppliers, any of the training or any of the industry training events for accountants that we attend, or for that matter when talking with other accountants.”

There may even be benefits. “Pushing out the audit to threeyearly from two-yearly saves cost, time and stress. I mean, we flew through our last audit and I’m confident about the next one. But not having to think about it for another year? Priceless.

“I think it really depends on what the firm is doing as to how much impact there is but compared to the initial introduction of the AML-CFT regime for accountants, these are minor tweaks only.”

Regulators flash their teeth

Just as the most recent law changes may have eased the burden on some businesses, the regulators are escalating enforcement.

The Financial Markets Authority (FMA), for example, announced late last year that it would be escalating its

You only have to look at the number of AML businesses now popping up to see how much of a business it has become

Nick Kearney

from page 09

enforcement approach to non-compliance with AML-CFT rules.

The FMA is one of three supervisors under the AML/CFT Act, along with the Reserve Bank and the Department of Internal Affairs (DIA). Well-known entities such as Sharesies and the BNZ have been issued formal warnings under the Act.

In the three years from July 2018 to June 2021, the FMA conducted 60 monitoring reviews on financial services firms, identifying 363 issues requiring remedial action. It brought its first High Court proceedings under the Act and issued 27 formal, private warnings.

James Greig, FMA director of supervision, said in September last year that the AML-CFT regime had been in place for eight years and businesses had had plenty of time to comply.

Greig said the FMA had less tolerance for companies not meeting their obligation, especially around having robots AMLCFT programs.

InvestNow’s Edmonds says his business has had to evolve as the FMA has taken a greater focus on his industry.

He accepts the AML-CFT regime is part and parcel of

living in a civilised society. “When you first look at this area, the rules and regulations do look a bit like taking a sledgehammer approach to cracking a nut. But you have to move beyond that as a practitioner. [The legislation] is designed to detect and stop money laundering.”

Edmonds says during his career in financial services, he has never seen evidence of money laundering in mainstream financial markets, but one only must look within New Zealand society and the economy to know that it has happened. “So, this is a real thing, and it must happen out in the field.”

The most recent update to AML-CFT law has forced InvestNow, like many businesses, to go back to clients to seek more information. Not all can understand why they need to provide the information, and some have refused. “We’ve seen behaviour such as people being evasive and refusing to comply.

“It’s like going through airport security. It’s annoying, and it’s frustrating. But it’s unavoidable if you want to get on the plane.”

The irony is that AML checks also help to identify fraudulent activities in the financial services sector, which helps to protect those same disgruntled clients. “There’s a close alignment between the money laundering checks you’re doing for suspicious activity and detecting and stopping fraud.” ■

I frequently visit clients in their homes. And yet the code requires me to verify their address by procuring a copy of a utility bill

Briefs

Optus data breach

The Australian reports that the country’s financial watchdogs – the Reserve Bank, the Australian Competition and Consumer Commission, the financial regulator APRA and the tax office – have been called in to help in the race to stop Optus customers’ bank accounts from being compromised.

Last Thursday the telco revealed a massive breach of its database affecting up to 9.8 million customers whose personal data – full names and addresses, passport numbers and drivers’ licence numbers – were access by hackers. On Tuesday the person or group claiming to be responsible for the hack released the data of 10,000 impacted customers and threatened to keep on releasing it in tranches unless Optus met their ransom demands. Australian banks have been asked to ramp up monitoring of customer accounts.

AMP fined

Five companies tied to the AMP group have been fined A$14.5 million after knowingly charging superannuation clients fees for services they could no longer access. The Sydney Morning Herald says the court found AMP breached its financial services licensing obligations by having no internal processes or controls to prevent the misconduct. The companies included AMP Superannuation and AMP Financial Planning. More than 1400 superannuation customers were involved. The judge said the conduct reflected “very poorly” on AMP.

Gardner-Hopkins denied appeal

Former Russell McVeagh partner James Gardner-Hopkins has been denied leave to appeal the three-year suspension of his practising certificate. Gardner-Hopkins was seeking to overturn a recent High Court decision which increased his suspension from two years to three. A disciplinary tribunal had found him guilty of misconduct following complaints by four women working at Russell McVeagh. Gardner-Hopkins argued the High Court was wrong in its finding that a practitioner’s personal circumstances were irrelevant when considering penalty and in its view that negative consequences could not be seen as mitigating circumstances. But in denying him leave to appeal, two High Court judges said after seven years it was time to bring the matter to a close. ■

Litigation and Dispute support – taxation

Are you requiring professional and technical support for client litigation or disputes involving tax matters?

We can help.

Contact Anne Edgar at: anne.edgar@shellockconsulting.co.nz or 021 037 8150

Independent, efficient, experienced and confidential www.shellockconsulting.co.nz

The Crown Solicitor in Tauranga is seeking applications for the following positions:

Experienced Senior/Intermediate Crown Prosecutors; and Junior Crown Prosecutors.

The opportunities available with the Crown Solicitor’s firm, Pollett Legal are vast and unique in providing for those who have a strong desire for advocacy and seek a career in all aspects of criminal litigation.

Tauranga, and surrounding regions, have grown beyond measure over past years and offer all the hallmarks to create a balanced lifestyle in one of the most beautiful parts of Aotearoa.

The Crown Solicitor and her team pride themselves on excellence in the conduct of Crown prosecutions in the Eastern and Western Bay of Plenty.

The firm also provides legal services to the New Zealand Police and other government departments and agencies.

A core value for the firm is its recognition, understanding and support of diversity in our region particularly in recognising Te Tiriti o Waitangi in its practice.

Experienced Senior/Intermediate Crown Prosecutor

We are looking for those who:

• Have litigation experience including the conduct of proceedings in the High and District Courts;

• Wish to continue to develop their advocacy skills;

• Maintain high standards and strive for excellence;

• Work efficiently, have excellent time management and organisation skills;

• Are resilient and able to relate well to all people within our diverse community and supports a transformational criminal justice system.

Junior Crown Prosecutor

We are looking for those who:

• Have some experience in litigation (1-3 years’ PQE), preferably in the criminal law or as a Judge’s clerk;

• Have a desire to develop into an effective and fair advocate;

• Maintain high standards and strive for excellence;

• Work efficiently, have excellent time management and organisation skills;

• Are resilient and able to relate well to all people within our diverse community and supports a transformational criminal justice system.

Attractive annual remuneration will be offered and relocation contributions are also available.

Please forward your covering letter with an up-to-date CV to Rowena Brown via email on rbrown@pll.nz. Alternatively, you may contact the Crown Solicitor, Anna Pollett direct on 021 114 2118 or via email apollett@pll.nz for a confidential discussion.

Making restorative justice work

ALL-LEVELS

CRIMINAL SEMINAR

Livestream | In Person

2 CPD hrs

Tuesday 18 October

4pm – 6.15pm

Price from $140 +GST

Presenters Samira Taghavi, barrister and practice manager, Active Legal Solutions; Helen Bowen, barrister & youth advocate; Trevor Slater, COO, Resolution Institute; Colin Rose restorative justice facilitator, ARJT and Jean Staples, service manager, ARJT

Don’t approach restorative justice as just another box you need to tick to proceed through the criminal justice system. Benefit from practical insights into how you can make the most of the restorative justice process and how it can serve the needs of all parties.

Chair Judge Phil Recordon

FIND OUT MORE

PPPR Act proceedings

ALL-LEVELS

PPPR WORKSHOP

Leading in law series

Workshop (online)

4 CPD hrs

Thursday 20 October

9am – 1.15pm

Price from $400 +GST

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

In Person workshop

3.5 CPD hrs

Wednesday 19 October

9am – 12.45pm

Facilitators Theresa Donnelly, legal services manager, Perpetual Guardian and Alan Gluestein, barrister, Wyndham Chambers

This workshop is designed for experienced and inexperienced lawyers working with the PPPR Act. A practical session, it will focus on proceedings, capacity assessment issues and the philosophy underlying the legislation.

Video guest Dr Jane Casey, consultant psychiatrist and psychogeriatrician

FIND OUT MORE

This distilled leadership development program will give participants 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 and sometimes challenging leadership development experience. Limited spaces available.

FIND OUT MORE

adls.org.nz/cpd cpd@adls.org.nz 09 303 5278

Health and safety case law update

ALL-LEVELS

EMPLOYMENT

SEMINAR

Webinar 1 CPD hr

Tuesday 25 October 12pm – 1pm

Price from $80 +GST

Presenters Joseph Lill, senior associate, Chapman Tripp; Grant Nicholson, partner, Anthony Harper and Angus Everett, senior solicitor, WorkSafe

Get up-to-speed with recent and key workplace health and safety case law. This webinar will summarise recent noteworthy cases and current trends and covers pretrial applications, defended hearings and penalties.

FIND OUT MORE

Avoiding pitfalls with business sales

INTERMEDIATE COMMERCIAL SEMINAR

In Person | Livestream

2 CPD hrs

Tuesday 8 November 4pm – 6.15pm

Price from $140 +GST

Presenters Shane Hussey, director and principal, Hussey & Co and Sian Heppleston, analyst, Hussey & Co

Whether it is the sale of a business, the transfer of a business as part of a relationship property settlement or the execution of an estate, there are pitfalls when advising on transactions which lead to the sale of all, or part of, an interest in a business and which impact on the value of a business. Learn how to avoid these issues.

IN PERSON

LIVESTREAM

International family law conference

ADVANCED FAMILY

In Person | Livestream

5.75 CPD hrs

Thursday 10 November 9.15am – 4pm

Price from $480 +GST

Presenters Margaret Casey KC, Ewan Eggleston, Isaac Hikaka, Jennie Hawker, Calina Tataru, Inger Blackford and Zandra Wackenier

PERSON

Increasingly, family law matters involve one or more international issues. This conference will explore the key areas of property, maintenance and parenting. The focus will be on trans-Tasman proceedings and with insights into other jurisdictions.

Chair Simon Jefferson KC

CPD IN BRIEF

Workplace mental health

Livestream | In Person

1.5 CPD hrs

Monday 14 November 4pm – 5.30pm

Price $110 +GST

Presenters John Rooney; Myriam Mitchell and Dr John Fitzgerald

Partnership law

Webinar 1 CPD hr

Tuesday 15 November

12 pm – 1pm

Price from $80 +GST

With the spotlight on mental wellbeing at work, employers must understand their obligations under the Health and Safety at Work Act 2015 (HSWA). This seminar will offer insights and practical guidance on how best to advise clients.

Chair Tim Clarke, partner, Bell Gully

Personal effectiveness workshop

Presenters Gerard Dale, partner, Dentons Kensington Swan and Sarah Gibbs, senior associate, Dentons Kensington Swan Online workshop 4 CPD hrs

Thursday 17 November 9am – 1.15pm

Facilitator Tony Gardner, managing director, Archetype Leadership + Teams

LIVESTREAMIN PERSON

Is the partnership structure still relevant in the 21st century? What is a partnership and how do you know if you’re in one? How do you establish a partnership and what are the common issues and pain points?

FIND OUT MORE

Back by popular demand, this workshop offers a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

FIND OUT MORE

Advanced parole law

Live Stream | In Person

1.5 CPD hours

Monday 21 November

4.30pm – 6pm

Presenters Emma Priest, barrister, Blackstone Chambers and Hannah Kim, barrister

Parole law is a growth area, as more prisoners are wanting legal representation when seeking parole. Broaden your skills with this practical session on advanced parole law and complex applications.

Chair Sir Ron Young, chairperson NZ Parole Board

LIVESTREAMIN PERSON

Health & Safety Case

Tuesday 25 October | Webinar | 1 CPD hour

Visit adls.org.nz for more information.

Featured events Connecting New Zealand lawyers

Wellington express lawyers’ lunch

Wednesday 19 October

12.30pm – 2pm

Flamingo Joe’s Bar & Eatery, 1/10 Waterloo Quay, Pipitea, Wellington

Learn more

Arthur Young’s Retirement Dinner

Thursday 20 October

6pm – 10pm

The Northern Club, 19 Princes Street, Auckland CBD

Learn more

Immigration dinner with the Minister of Immigration

Wednesday 2 November

6pm – 9.30pm

The Northern Club, 19 Princes Street, Auckland CBD

Learn

Photo: Klaus Vedfelt / Getty Images

We have a vacancy for a talented family lawyer. Ideally you have a passion for family law and the ability to relate well to a wide range of people.

You will build on your experience negotiating and drafting relationship property agreements, running contested relationship property files, COCA and DV matters.

The role is an exciting opportunity for a family lawyer looking for the next step in their career who enjoys working in a small busy team environment and is willing to build relationships with existing clients and other practitioners and contribute to the growth of the practice. The role could suit someone returning to the workforce.

Ideally you will have:

• Excellent verbal and written communication skills

• An ability to manage and develop excellent client relationships

• An ability to work both collaboratively and independently however supervision is available to enhance your experience.

We offer the following:

• Competitive remuneration and free onsite parking

• Family-friendly atmosphere

• Flexible working hours

• Enjoy an easy commute and skip the traffic to the city

• Be part of a well-supported team where there is flexibility in the role

• 4 weeks’ annual leave + ongoing professional development

• Only private clientele, no legal aid clients.

Please forward your CV to chantal@lawassociates.co.nz

ADLS: Careers

CPD Programme Developer

ADLS is looking for an experienced lawyer with 3-4 years’ PQE to initiate, plan, and execute CPD programmes for the legal industry.  Based in Auckland, this is an exciting opportunity for someone who is commercially astute and is interested in advancing how CPD programmes can be delivered in a way that engages and increases participation.

The role will suit someone who can quickly establish credibility with key stakeholders and maintain strong professional relationships. If interested, please send a cover letter and your CV to krystal.marshall@adls.org.nz

ADLS operates flexible working arrangements. Applications close Friday 23 October 2022.

WILL INQUIRIES

Please refer to deeds clerk. Please check your records and advise ADLS if you hold a will or testamentary disposition for any of the following people. If you do not reply within three weeks it will be assumed you do not hold or have never held such a document LawNews: The no-hassle way to source missing wills for $80.50 (GST Included)

reception@adls.org.nz

Box

Shortland Street, DX CP24001, Auckland 1140

309 3726

303 5270

CHERRINGTON

Katei Keita Aheinga

• Late of 14 Snowdon Avenue, Moerewa, Northland

• Widowed

• Retired

• Aged 77 / Died 07’06’22

CLARK

Neville Francis

• Late of 5 Kirkpatrick Street, Kohukohu

• Married

• Retired (formerly carpenter/ fisherman)

• Aged 70 / Died 28’05’22

COLLINS

Pauline Madge

• Late of Whitianga Continuing Care, 6 Halligan Road, Whitianga

• Married

• Homemaker

• Can factory production

• School cleaner

• Aged 96 / Died 15’07’22

LEUO

Cherylmoana

• Late of Auckland

• Aged 36 / Died 22’08’22

LOSE

William Keith (aka William Keith LOS’E)

• Late of Eden Terrace, Auckland

• Broadcaster

• Aged 55 / Died 07’09’22

WATTS

Paul Ralph

• Late of Unit 15, Morningside Lodge, 41B Leslie Avenue, Sandringham, Auckland

• Urgent courier

• Aged 61 / Died 07’09’22

WILLIAMS

Brett Rau

• Late of 288 Clayton Road, Pukehangi, Rotorua

• Never in a legal relationship

• Drainlayer

• Aged 53 / Died 21’08’22

ZUNDEL

David William

• Late of Queens Road, Korotogo, Fiji

• Married

• Retired

• Aged 87 / Died 29’06’22