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NEWS Oct 15, 2021 Issue 36

Inside ■ CRIMINAL LAW

Key ruling on three-strikes case P03

■ CRIMINAL LAW

Be part of the AML/CFT review P07

The first tick for

SHANE RETI’S CANCER BILL adls.org.nz

Contents 03 SENTENCING PAROLE PROPORTION

Supreme Court rules on key three-strikes case

04-06 EMPLOYMENT LEGAL AID DELAYS

Nine issues for Workplace Relations Minister Michael Wood

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

07 CRIME REPUTATION REVIEW

How our AML/CFT regime might be tweaked

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

Readers respond to Warren Pyke 03

All mail to: ADLS, Level 4, Chancery Chambers, 2 Chancery Street, Auckland 1010 PO Box 58, Shortland Street DX CP24001, Auckland 1140, adls.org.nz

12-13

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FEATURED CPD

14 CPD IN BRIEF

When might judges bypass the three-strikes rule?

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.

Oct 15 2021 Issue 36

conclusion that s 4 prevails, the majority deemed s 9 inalienable and therefore not subject to reasonable limitation under s 5. This reasoning was bolstered by reference to international commitments under the ICCPR. Given the sanctity of the right in question, Winkelmann CJ and Glazebrook J concluded Parliament could not have intended for the three-strikes regime to breach s 9. The wording of s86D, ‘despite any other provision’, was accordingly read down in a rights-consistent manner per s 6. O’Regan and Arnold JJ employed the Fitzgerald underlines a pressing need for the government to principle of legality and held that without expressly abrogating s 9, s 86D could not prevail. All but the follow through on its clearly signalled intention to revisit the Chief Justice concluded that in circumstances where operation of the three-strikes law a three-strikes regime sentence would breach s 9, the offender should be sentenced via the standard process. Regarding the availability of a discharge without without conviction was rejected. As it was his third Jonathon Jones conviction on a third-strike offence, a similar strike, the court was required to impose the maximum approach was adopted. Section 6 requires a rightssentence of seven years’ imprisonment. On 7 October 2021, the Supreme Court delivered consistent reading of s 106 of the Sentencing Act, On appeal it was argued that a discharge without its judgment in Fitzgerald v R [2021] NZSC 131. making a discharge without conviction available, conviction was not precluded by s 86D when read This ruling will have a significant impact upon the notwithstanding the wording of s 86D. in conjunction with s 9 of BORA: the right to be free operation of the three-strikes sentencing regime. Glazebrook, O’Regan, and Arnold from torture and disproportionately Under s 86D of the Sentencing Act 2002, an JJ deemed this to apply only severe punishment. offender convicted of a third qualifying offence must All agreed the when s 9 is breached. Conversely, Alternatively, a proviso could receive the maximum available sentence without disproportionate Winkelmann CJ considered be read into s 86D preventing possibility of parole. There is some discretion for discharges were available to all the maximum sentence being a judge to make parole available if the resulting nature of third-strike offenders; she also imposed when it breached the sentence is deemed manifestly unjust. the sentence included the qualification that such aforementioned right. Although in Nevertheless, prior to Fitzgerald, manifest injustice breached s 9 an outcome would generally be agreement that the sentence was still resulted in the automatic imposition of the inappropriate. maximum available sentence for the offence in question. manifestly unjust and breached William Young J saw rights 9, the Court of Appeal majority But following Fitzgerald, where imposing the consistent interpretations as being available only ruled neither interpretation was available. Collins J maximum sentence without parole would be so for generally worded provisions; because s 86D is dissented, arguing s 106 could be read independently disproportionately severe that it violates s 9 of specific, the purported interpretation is impossible. of s 86D. the New Zealand Bill of Rights Act 1990 (BORA), Consequently, s 106 does not provide an avenue to it appears open for a judge to apply the standard Supreme Court sidestep s 86D via a discharge without conviction. sentencing process, disregarding the three-strikes regime. Winkelmann CJ, Glazebrook, O’Regan and Arnold Implications Nevertheless, disproportionately severe remains a JJ allowed the sentence appeal; William Young J high threshold and the majority highlighted that these dissented. The Chief Justice wrote a separate opinion Fitzgerald underlines a pressing need for the cases will be rare. Whether there are implications as she differed from the rest of the majority in seeing government to follow through on its clearly signalled for second-strike sentences, which must be served the recidivism inherent to a third strike as warranting intention to revisit the operation of the three-strikes without parole, should become clear as appeals are a stern sentencing response. law. If and when this law is repealed, Parliament heard. Nevertheless, after a substantial review of will also be obliged to consider prisoners who are many major statutory interpretation and NZBORA currently serving sentences under the regime. The facts authorities, she was largely consistent with the overall In addition to the impact upon sentencing, the reasoning of O’Regan and Arnold JJ. Glazebrook J The appellant, Daniel Clinton Fitzgerald, was approaches adopted by the majority will undoubtedly also adopted a similar approach to the Chief Justice, convicted of indecent assault after kissing a be of interest in the field of public law. Fitzgerald has but disagreed with her on the applicable sentencing woman without consent. This offence was deemed the potential to join its namesake as a mainstay of the approach. to be at the bottom of the culpability scale and university syllabus in years to come. ■ All agreed the disproportionate nature of the further mitigated by the appellant’s severe mental Jonathon Jones is the Equal Justice Project sentence breached s 9. Nevertheless, rather than impairment. representative on the ADLS Criminal Law engaging in a Hansen analysis with its inevitable Fitzgerald’s application for a s 106 discharge Committee ■ CRIMINAL LAW

Key criminal case underlines need to reform ‘three-strikes’ law

HEALTH/DISABILITY/HUMAN RIGHTS

Shane Reti’s cancer bill passes the descrimination test

There’s a sentence in the legislation that says if the cancer drug you’re having is not funded by Pharmac you can’t have it administered by a DHB. That doesn’t make sense

Cancer patients in New Zealand are suffering because of a little-known section in the New Zealand Public Health and Disability Act 2000. Even after mortgaging their homes or crowdsourcing tens of thousands of dollars in order to access non-Phamac-funded drugs, the government charges them big money to have that medicine administered in public hospitals. Under the current legislative framework, privately funded cancer medicines cannot be administered in a public chemotherapy suite. Adults who have paid for medicines not funded by Pharmac must then stump up about $1,000 a week to have their privately purchased chemotherapy drugs administered. This can cost as much as the drugs themselves and is often the last straw for patients, says National Party Deputy Leader Dr Shane Reti. Reti’s Private Member’s Bill, the New Zealand Public Health and Disability (Restriction on Crown Funding Agreements and Unfunded Cancer Medicines) Amendment Bill, was pulled from the parliamentary biscuit tin earlier this year. It proposes a law change that would allow district health boards (DHBs) to administer unfunded medicines that have been prescribed by a doctor whose practice includes the treatment of cancer. Many of the cancer patients it would help have mortgaged their homes, spent their retirement savings or gone cap in hand to Givealittle to buy the medicine. Adults then have to pay to have it administered, while children can have their private medicine administered for free in a DHB. “I’m just asking for a chair,” says Reti. By that he means the cost of using a chair in a DHB cancer suite, supervised by a nurse. Reti’s bill addresses a single sentence in the New Zealand 04

Photo: Vasuta Thitayarak / EyeEm / Getty Images

Diana Clement

Public Health and Disability Act 2000. He proposes adding a new clause to amend s 10 of the New Zealand Public Health and Disability Act 2000 “to restrict a Crown funding agreement containing any term or condition that has the effect of prohibiting a DHB from providing health services relating to the administration of a pharmaceutical to a person who has purchased that pharmaceutical privately in particular circumstances”. The policy objective of the bill “is to improve the access to public medical care for cancer patients who purchase unfunded cancer medicines that also require medical administration”.

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I want to relieve the burden for those who have already made a substantial contribution to an issue that is not of the choosing

Oct 15 2021 Issue 36

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Because the bill covers only cancer, not other conditions, the bill highlights potential discrimination under the New Zealand Bill of Rights Act 1990 (BORA). This resulted in Attorney-General David Parker referring the issue to Crown Law (see sidebar story). Reti proposed the bill after being approached by the parents of 36-year-old Andrew Speir, who has stage 4 bowel cancer. His issue wasn’t so much that he had to pay for his own Avastin chemotherapy medicine, which is not funded by Pharmac. The problem was the $1,775 charge by a private provider to have the drug pumped into his veins, a procedure that must happen in a chemotherapy suite. “His parents wrote to me first saying: ‘Shane, we’re elderly, and we’ve consumed our resources. We will now need to put the house under mortgage to fund this’. “The bill isn’t a discussion of what medicines Pharmac will or won’t fund,” Reti says. “It turns out is there’s a sentence in the legislation that says if the cancer drug you’re having is not funded by Pharmac you can’t have it administered by a DHB. That doesn’t make sense.”

Relieve the burden When the bill was introduced in April, Health Minster Andrew Little told Stuff it would mean people who are wealthy enough to fund their own unfunded cancer treatments would then take up space in the public health system needed by other cancer patients. Reti doesn’t agree. He says many patients who are not wealthy fund their medicine through crowdsourcing, spending their savings, mortgaging their homes or relying on family. “I want to relieve the burden for those who have already made a substantial contribution to an issue that is not of their choosing. If the purpose of the health restructuring is to reduce inequities, then this is a great way to do it. Amongst a number of things, Māori have the highest incidence of any cancer you want to name.” A recurrent theme of people who contact Reti, he says, is of people who have chosen second- or third-tier drugs because they couldn’t afford the ongoing cost of administering first-tier medicines even if they could pay the $60,000 for the drug itself. Reti disagrees with the government’s argument that wealthy people could unfairly utilise public resources. “First of all, when you’re in a chemo suite dying of cancer, you don’t care about the value of the person beside you. “Secondly, what we know is every health resource has a waiting time. Even if this is enabled, there is still a two- to three-week waiting time to get access to a chemotherapy suite. The wealthy will still pay their way around it because they can.” During his investigations, Reti found that children could have their non-Pharmac-funded chemotherapy administered

in public hospitals at no charge. What that example shows, he says, is that moral or philosophical arguments don’t stand up. Those children’s parents could be wealthy or poor. “There has never been one complaint about wealthy children sitting beside non-wealthy children. That argument fails.” Concerns that moving private chemotherapy patients into the public hospitals will consume too much resource and/or there isn’t sufficient capacity don’t stand up either, he says. “The resource is not an operating theatre with three operating nurses, anaesthetists, surgeons. It’s an armchair for four hours. That’s all it is. We think there’s maybe 2000 people a year that this might apply to. “The tagline I’m using for them is #CancerBeFairGiveThemAChair. I am sure I could get the Rotary Clubs to contribute a chair. There’s many ways to skin this cat.” He adds: “What I know from OIAing (Official Information Act requests to) all of the DHBs, a third of them don’t operate chemo suites five days a week and only one is at 100% utilisation. All the rest average about 70% so there is capacity right now.” Reti estimates the cost to the public purse at $4 million a year. “Which is exactly the same amount as 20 Ernst & Young (EY) consultants advising on the health restructuring at the moment. If you want to talk opportunity costs to New Zealand, I know what they’d rather hear. “My ask of the House is this: send this bill to select committee. Let people who are on this journey tell their story to the select committee. I’m not asking for the resource. I just want the story to be told.”

Robust discussion Lucy Elwood, chief executive officer of the Cancer Society of New Zealand, says her organisation’s hope is that the bill will result in robust political discussion of funding of cancer treatment and drugs in general. “Any channels that shine a light on cancer treatment issues are really important,” Elwood says. Discussions about issues such as chair space are very important. “Obviously you wouldn’t want to increase waiting lists for other services.” The analysis couldn’t take place until Reti’s bill had been pulled from the ballot box, she says. “There will be more analysis to this really important topic as a result of this member’s bill being discussed in the House.” The bill was due in Parliament in mid-September but was delayed because the key sponsor, Speir, is in Auckland and couldn’t cross the border due to travel to Wellington because of covid restrictions. “He desperately wanted to be in the House when this was read in. I got special permission from the Business Committee for my bill to be delayed.”

Lucy Elwood

People have chosen second- or third-tier drugs because they couldn’t afford the ongoing cost of administering first tier medicines even if they could pay the $60,000 for the drug itself

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Is differential medical treatment discriminatory? Because the New Zealand Public Health and Disability (Restriction on Crown Funding Agreements and Unfunded Cancer Medicines) Amendment Bill relates only to cancer, not other conditions and disabilities, the issue of potential discrimination has been flagged to Attorney-General David Parker. Crown Law last week released its legal advice that the bill was consistent with the right to freedom from discrimination in the Bill of Rights. One of the questions related indirectly to inconsistencies in the way DHBs treat children with cancer compared to other children, and also adults. The issue of differential treatment arose after campaigners for children with spinal muscular atrophy, a deadly genetic condition, complained that child cancer patients could have their unfunded medicine administered in DHB facilities, but children with SMA needing a drug called Spinraza couldn’t. It led to speculation that child cancer patients might lose their exemption. Crown Law noted that s 23(7) of Public Health and Disability Act provides that a DHB must not act inconsistently with the pharmaceutical schedule in performing any of its functions in relation to the supply of medicines. In theory, allowing cancer patients to have their unfunded medicines would breach s 19(1) of BORA which affirms the right to freedom from discrimination. In theory discrimination would arise under BORA if, among other things, there is differential treatment between people in comparable situations, and that treatment had a discriminatory effect. Crown Law’s advice noted that Reti’s bill might materially disadvantage people who needed to have unfunded medicine for other conditions, administered in hospital. It then considered if the limitation was justified under s 5 of BORA, meaning it could be considered a reasonable limitation that is demonstrably justified in a free and democratic society. The advice considered whether the objective was

sufficiently important, if there was a rational connection between the limit and the objective and if “the impairment of the right is no greater than reasonably necessary and in due proportion to the importance of the objective”. The authors noted that Parliament is entitled to appropriate latitude to achieve its objectives and that determining how to prioritise or allocate health resources is an area where they considered Parliament may be afforded such latitude. They also said that in respect to the high mortality rate for cancer there may be a strong needs-based justification for differential treatment. The bill didn’t impair more than is reasonably necessary the rights of others with disabilities who require unfunded medicine to be administered in a hospital. Pharmac already had a discretion to provide funding in exceptional circumstances and DHBs could make decisions about the clinical benefits of doing so. “There is no case law in New Zealand on whether unlawful discrimination extends to differential treatment between individuals within the same ground (intra-ground discrimination). However, we consider that intra-ground discrimination may be a ground of discrimination.” The advice added that it was difficult to treat all people equally in the health and disability context thanks to limited resources. That meant difficult choices must be made regularly to prioritise funding of certain medicines over others. “That necessarily means that some people may not, for example, have access to a sufficiently wide range of funded medicines.” Elwood, formerly a practising lawyer, says it was an interesting piece of legal advice. “Effectively, what they’ve said is that they recognise that in the health and disability policy context it’s difficult to treat all people equally. Limited resources mean difficult choices must regularly be made to prioritise funding of certain medicines over others. Given that content, this isn’t discriminatory. But it’s an interesting piece of legal analysis.” ■

The resource is not an operating theatre with three operating nurses, anaesthetists, surgeons. It’s an armchair for four hours. That’s all it is

Oct 15 2021 Issue 36

AML/CFT

Ministry seeks submission on AML/CFT statutory review The framing in many parts leans towards an expansion of the regime Lloyd Kavanagh The Ministry of Justice has released the consultation document for its statutory review of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009 (AML/CFT Act). It represents potentially the most significant change to the Act since it was passed. This consultation is a keystone component of the review, which commenced on 1 July this year as required under s 156A(1) of the Act. It had previously been held up by delays to the Financial Action Task Force (FATF’s) Mutual Evaluation Report of New Zealand’s AML/CFT system, which was released at the end of April and which we have previously discussed in detail. The consultation document, as well as a summary document, the review’s terms of reference, and additional information, is on the ministry’s website. Submissions, or feedback through an online questionnaire, are due by 5pm on 3 December 2021. We anticipate many entities will need to form into common interest groups, to consolidate their efforts in making submissions and lend them greater weight. However, the short window for submissions limits the time available for coordination and negotiating a shared position

Affected parties The summary document, at least, should be read by: ■ all existing reporting entities because this is the opportunity to influence how the regime may be made more efficient and effective; ■ all entities which have determined they fall outside the coverage of the AML/CFT Act because the consultation includes proposals for boundary changes; and ■ others with an interest in financial inclusion and/or innovation in the financial sector because the AML/CFT regime has a significant impact on those concerns. However, we recommend reading the consultation document as well as that is where most of the detail sits. Not all the issues make it into the summary.

Lloyd Kavanagh

The need for balance in practice is clearly in the minds of the ministry, but a strong showing in the submissions would reinforce the importance of considering the burden of compliance for legitimate activities

The review’s terms of reference state that the purpose and intended outcome of the review is to have “New Zealand becom[e] the hardest place in the world for money laundering, terrorism financing and financing the proliferation of weapons of mass destruction”. The statutory review is targeted at: ■ how the AML/CFT Act has operated and performed since its commencement; ■ whether any changes to the AML/CFT Act are necessary or desirable; and ■ recommendations made by the FATF in its latest mutual evaluation. This will involve looking at the AML/CFT Act itself as well as the range of instruments made under it. Supervisor guidance and individual exemptions are expressly not within its scope, although the role those play in the context of the wider regime is.

Consultation document The consultation document is long and detailed. As a broad overview, it is divided between: ■ institutional arrangements and stewardship, looking at the foundations and purposes of the regime; ■ the scope of the AML/CFT Act, looking at the coverage of the regime, both in terms of captured entities and imposed obligations; ■ supervision, regulation and enforcement, looking at the appropriateness of the supervisory framework, the sufficiency of regulation and the proportionality and effectiveness of available sanctions; ■ preventive measures, looking at whether the obligations are both sufficient to prevent money laundering and terrorism financing and able to be implemented efficiently and without disproportionate compliance burdens; ■ other issues or topics, looking at a range of specific matters that fall outside the above topics; and ■ minor changes for clarity. The ministry states that it may recommend changes that: ■ address emerging areas of risk and support other government priorities; ■ improve compliance with FATF standards following our latest mutual evaluation; ■ ensure compliance costs are proportionate to risks for our

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EMPLOYMENT LAW

ADLS Employment Law Committee meets the minister Research done by the New Zealand Bar Association has revealed an effective hourly rate of somewhere between $58 and $96 for employment lawyers doing legal aid work

Jenni McManus Nine key issues were on the agenda when the ADLS Employment Law Committee met with Workplace Relations and Safety Minister Michael Wood last week for what committee convenor Catherine Stewart described as a ‘very constructive and helpful’ discussion. Top of the list were the significant delays being experienced in the Employment Relations Authority (ERA), with some clients waiting months for case management conferences and up to a year for decisions; the need to regulate employment advocates and whether it was appropriate for them to appear in the Employment Court; and whether the Employment Court should be the first-instance decision-maker for fair pay agreements. It was the first formal face-to-face meeting the committee has had with the minister. “He was certainly receptive to our thoughts and ideas,” Stewart says, “and there was a recognition that we are the ones on the frontline, dealing with these issues every day.” The discussion covered the following points:

ERA delays Stewart says significant delays were being experienced in the ERA before the pandemic and covid-19 has exacerbated an already difficult situation. Wood said it was ‘far less than ideal’ and Auckland is trying to fill the gaps as quickly as possible, he says.

Stewart acknowledges there are a range of views within the committee “but it’s an ongoing issue and it has been boiling over for a long time”. Wood said there was no ‘policy resource’ to deal with it now but he would be interested in seeing case studies that demonstrate the committee’s specific concerns and they could be reviewed as part of broader piece of work on dispute resolution. It was imperative that we have a low-cost system, but it needed to be balanced against having appropriate standards in place, he said.

Fair pay agreements The issue here is what role the Employment Court might play in fixing terms and conditions if these cannot be agreed. Under the present proposal, the ERA can make recommendations if the bargaining parties reach a stalemate, and it will set terms and conditions by determination with only limited rights of appeal. Stewart says the committee’s concern is that the system bypasses the expertise in the Employment Court. (Historically, under the predecessor legislation, the Arbitration Court set the terms and conditions). The question is whether the ERA is properly equipped and resourced for the job, she says, and whether the court would be a better option for determining fair pay and conditions. “It’s just about fleshing out what’s the best practice. We don’t pretend to have all the answers… The committee’s concern is to ensure that the Employment Court had a role and that its expertise is utilised.” The committee thought the right to appeal needed to be reviewed, along with the ability of the court to have more input into in fixing terms and conditions by way of a challenge. Wood said he was ‘not entirely closed-minded’ on the matter. But he is keen to set up an institution similar to Australia’s Fair Work Commission “where all the intuitional expertise is held in one place”. He also noted the potential for conflict if the Employment Court was determining terms and conditions in fair pay agreements and also hearing disputes on these matters.

Regulating advocates Stewart says this needs to happen and the committee also wants the minister to consider whether advocates should appear in the Employment Court. “There is a place for them and some do a good job but there are concerns around others’ service to consumers,” she said. “Sometimes [clients] are under the illusion that they were dealing with a lawyer and it is left to us to pick up the pieces on a file that has gone horribly wrong. There are concerns about their appearances in the Employment Court because often there is a lack of knowledge of due process and procedures.” 08

Definitions of bullying and harassment While the Employment Relations Act defines racial and sexual harassment for the purpose of raising a personal grievance, there is no definition of bullying or harassment. Stewart says bullying is being raised as a disadvantage a grievance and there is considerable judicial comment about what it means. The committee wants to see clarity and firm guidance

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Oct 15 2021 Issue 36

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conversation as it pertains to employment law”. The trick was to manage costs and ‘prevent rorting’.

about how bullying should be defined in the employment law context. Wood says greater clarity is needed and he is ‘relatively open’ to looking at the issue.

The early resolution service (ERS)

Extended timeframes

Michael Wood

Catherine Stewart

The committee is backing a private member’s bill promoted by Labour backbencher Deborah Russell which seeks to extend from 90 days to one year the time limit for an employee to raise a personal grievance alleging sexual harassment. It is also keen to see this timeframe applied to bullying claims. The current time limit is a blunt instrument, Stewart says. It fails to consider that bullying and sexual harassment often take place over a long period of time and involve a power imbalance between the complainant and the employer. Some committee members, however, are concerned about how a two-tier system might work in terms of timeframes for raising a grievance. Another option might be to extend the exceptional circumstances provisions of s 115 of the Act although the threshold is high. Wood says he is ‘sympathetic to the issue’ and has “given the nod to the private member’s bill to proceed on that basis”. Extending the exceptional circumstances provisions might be an elegant way to resolve the matter and the way forward is through the private member’s bill, providing it is pulled from the ballot. “There is a problem here to be solved,” he says.

Legal aid concerns

We are not here to attack the legal aid system but to work constructively and to advocate for the fixed fee to be removed from that arena and an hourly rate to be used for the employment jurisdiction

Legal aid is not working for employment claims, Stewart says. The problem is the fee cap on cases brought before the ERA which does not exist in other areas of civil legal aid. “There is no one-size-fits-all in employment cases,” she says. Some can be resolved relatively quickly but others stretch over several days and involve multiple witnesses. “We are not here to attack the legal aid system but to work constructively and to advocate for the fixed fee to be removed from that arena and an hourly rate to be used for the employment jurisdiction,” she says. “It is an obvious way to improve access to justice.” Research done by the New Zealand Bar Association has revealed an effective hourly rate of somewhere between $58 and $96 for employment lawyers doing legal aid work “and that is probably generous”. As a result, few employment lawyers take on these cases. “It comes back to access to justice because it’s a tool for people to be able to access legal help and representation and if it’s not working well, that’s another barrier for consumers,” says Stewart. The Ministry of Justice is reviewing the legal aid system. Wood says the matter should be taken up with Justice Minister Kris Faafoi but he is “happy to pick up on the

The ERS was set up specifically to achieve quick resolution of disputes about the covid-19 wage subsidy. Some MBIE staff have suggested that these quick telephone resolutions could be extended to bullying and harassment complaints – a move the committee opposes. The committee is also concerned that the ERS has not been characterised as a mediation service, meaning users and ERS staff lack the normal protections and safeguards available under mediation. MBIE recently wrote to the committee, in response to concerns the committee had raised, by confirming that the service was considered to be mediation. The scope of the ERS remains unresolved.

Removal to Employment Court The committee asked the minister to consider widening the circumstances under which an employment case can be removed from the ERA’s jurisdiction and taken direct to the Employment Court. Stewart says experienced practitioners know instinctively where challenge to the court is inevitable. Bypassing the ERA means clients don’t face two hearings on the same facts and issues and an extra set of costs. Section 178 of the Employment Relations Act sets out the four grounds on which the ERA can order the removal of a matter to the Employment Court, but Stewart says the threshold is high and removal needs to be easier. The difficulty is putting into practice the ‘object’ section of the Act (s 143) which states that one of its objectives is to recognise that difficult issues of law will need to be determined by a higher court. The committee hasn’t discussed the detail of legislative change, but it has raised the matter as a preliminary concern. Wood queried if there was reluctance on the part of the ERA to relinquish matters and Stewart noted that might be the case. Wood says the problem has been raised by other groups and urged the committee to collect information on the type of cases which should be referred straight to the court in the first instance.

Torts and employment jurisdiction The Supreme Court recently clarified the exclusive jurisdiction of the Employment Court over employment matters, saying secondary claims for torts such as defamation could not be filed concurrently with employment claims. If a claim can be framed as a conventional employment relationship problem, then it must be brought before the ERA, the court said. Stewart says doubt remains about matters that cannot be framed in this way, such as breach of contract and restraint of trade and confidentiality claims and it would be good to have legislative clarity. ■ 09

Letters to

the editor

NEWS Oct 8, 2021 Issue 35

Inside ■ COVID-19

The tyranny of experts P03-05

■ RENT RELIEF

ADLS challenges Justice Minister Kris Faafoi

A pandemic

OF EXPERTS

P13

Inflammatory clickbait? I am very surprised at your leading article An Pandemic of Experts. It is clickbait and quite inflammatory. Although it has some legal grounding in terms of the discussion around personal freedoms versus restrictive pandemic legislation, it presents a one-sided view of the pandemic. I am surprised you published something so biased and (fairly) unsubstantiated as the lead article featuring on your cover page. Then in small print at the end, “Warren Pyke is an Auckland barrister. These opinions are his own and do not necessarily reflect those of ADLS.” The whole piece is very contradictory. Warren Pyke slams scientists, epidemiologists and modellers and then cherry-picks his own studies to back up his controversial position. For a reputable publication with a wide reach in the legal community, this article could have been better balanced with other views or at least not been the headlining piece as it feels like it is very much the opinion of ADLS. Marta Wojcikowski

No comparison to flu I was disappointed to see ADLS had published the above article, from Warren Pyke. A disclaimer at the end stating that the article represents the author’s own view is not, in my view, acceptable. I would have hoped that ADLS would have its own journalistic integrity to peer review and only publish those articles that it considered to be fair and balanced, and not misleading. I ask that ADLS consider removing and retracting this article. Warren has sought to downplay to seriousness of covid, stating that: “I have detected this assumption of infallibility in certain local experts who criticise the government for not making lockdowns longer or restrictions tighter, usually adding predictions of worse to come if their way is not taken. Almost as troubling is that certain of these covid experts have shown little humility or readiness to admit error. Some have stoked unfounded fear by making predictions of numberless deaths and hospitalisations, without reference to the fact that the virus causes disease mainly in the elderly and in those with comorbidities;

adls.org.nz

that it generally poses little more danger than a seasonal cold does to the young or healthy people aged under 50.” Warren appears to seek to downplay the severity of covid, seemingly to support his agenda to discredit government actions designed to protect us. Medical experts do not appear to agree with Warren. Johns Hopkins medicine have stated that: “The covid-19 situation continues to change, sometimes rapidly. Doctors and scientists are working to estimate the mortality rate of covidD-19. At present, it is thought to be substantially higher (possibly 10 times or more) than that of most strains of the flu.” The Mayo Clinic in USA has stated that “covid-19 appears to be more contagious and to spread more quickly than the flu.” It has gone on to say: So far, more than 38 million people have had covid-19 in the U.S. as reported by the Centres for Disease Control and Prevention (CDC). More than 630,000 people have died of covid-19 in the US in 2020 and 2021. By comparison, during the 2019-2020 flu season in the US, about 38 million people had the flu and about 22,000 people died of the flu. That statement from the Mayo Clinic was made in early September 2021, so covid deaths/infections are underreported when compared to flu. Since that publication, covid deaths in USA alone have increased by a further 70,000, now passing 708,000 deaths. For those keeping count, so far there have been 28x more covid-related deaths reported in the US, when compared to flu deaths. And that’s only considering deaths, not the associated (and serious) long-term heart/lung/brain damage that can be caused by covid. From my review, it appears that while flu and covid could appear similar in how they proportionally affect different age groups, it is disingenuous for Warren to otherwise compare to flu or attempt to understate the severity of covid. Sam Douglas

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Oct 15 2021 Issue 36

Continued from page 10

Uncomfortable and disappointed There have been a few articles in LawNews lately which have made me feel uncomfortable, but the platforming of a vaccine sceptical worldview which uses phrases like “covid expert-driven, mandated measures run roughshod over individual autonomy” in the article titled A Pandemic of Experts by Warren Pyke is, frankly, irresponsible. I am extremely disappointed in the editorial team for choosing to publish that article. No amount of “these opinions are [the author’s] own and do not necessarily reflect those of ADLS” will save you from being associated with this attack on a science-led approach to tackling this global health crisis. Please resist the temptation to set up a debate between both sides of this issue. Yours in hopeful anticipation of a return to a bland but useful LawNews which informs and does not cause harm. Campbell McGill

The editor responds Unlike news stories, which must be fair, objective and balanced, there is no such requirement for opinion pieces and the law (specifically, the Defamation Act) distinguishes very clearly between the two. Nevertheless, we still require high standards from our opinion writers: the commentary must be well-written, well-argued, well-researched and well-structured, and based on fact. Within these guidelines, our editorial policy is to present a wide range of opinion on topics that are of interest to the legal community. Opinion pieces are just that – opinion – meaning there would be something very wrong if they were not biased. And unlike a news article, they do not need to tell all sides of the story. Warren Pyke’s piece was clearly labelled ‘opinion’ and the rider at the conclusion – that the opinions were his own and not necessarily those of ADLS - is a valid, proper and widely accepted convention for presenting commentary in a way that ensures readers are not confused or misled. ■

In praise of experts

Lawyers aren’t experts

I was shocked to read Warren Pyke’s article criticising public health modelling and the advice that necessarily flows from it. When it comes to our public health response, I would sooner trust the public health experts, even after acknowledging the limitations of modelling a novel virus, than a barrister. Mr Pyke doubts the utility of these experts and their modelling, despite the fact that following these experts’ advice for the last 18 months is what has resulted in our public health response being one of the most successful globally. His comment that, for most, the virus ‘poses little more danger than a seasonal cold’ is a tired argument that ignores the fact that the elderly and our minority communities (who experience worse health outcomes) would suffer the most if we follow the approach he is suggesting. Nick Stewart

For most of my career I have dutifully read or sometimes not read the ADLS LawNews. Until now I have never responded once to anything I read in that publication. I am a litigation lawyer. By definition, litigation clients are not an ordinary cross-section of society. Today I learned how many of them have peculiar views on the subject of vaccination. I know this because they forwarded the 8 October issue of LawNews to me as a vindication of their views about the danger of vaccines in general and the innate tyranny of any government promoting vaccination. Mr Pyke does not question the efficacy of vaccines per se but questions the validity of relying on experts and policies developed in reliance on their assessment of the underlying science. Having read the article I am genuinely bewildered. Litigators and judges, and by extension all lawyers, only tolerate opinion from qualified experts in the relevant field. Non-experts who seize on differences of opinion amongst experts don’t get house room for the simple reason they’re not qualified to have an opinion on the subject at all, let alone a difference of opinion between those who are. Putting the law aside, we’re in the middle of a pandemic and high

Editor’s note: what Warren Pyke actually said was this Some have stoked unfounded fear by making predictions of numberless deaths and hospitalisations, without reference to the fact that the virus causes disease mainly in the elderly and in those with comorbidities; that it generally poses little more danger than a seasonal cold does to the young or healthy people aged under 50. ■

Continued on page 16

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Oct 15 2021 Issue 36

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Oct 15 2021 Issue 36

Continued from page 07 economy; ■ modernise the AML/CFT Act and our approach to reflect the digital economy; and/or ■ avoid or mitigate unintended consequences.

Our view A robust, effective, and modern AML/CFT regime is crucial for New Zealand, both in terms of domestic law enforcement and to align with the march of international obligations. At the same time, the compliance obligations that entail introduce frictions into the operation of the New Zealand economy. Ultimately, a balance must be struck between these pressures. We are encouraged by references throughout the consultation document to: ■ [not] compromising the ease of doing business or unduly impacting the lives of New Zealanders; ■ avoiding unintended consequences and serious negative effects; and ■ careful[ly] balancing…the need to address the harms of money laundering and terrorism financing while ensuring that businesses can operate efficiently and innovatively. But the framing in many parts leans towards an expansion of the regime. The need for balance in practice is clearly in the minds of the ministry, but a strong showing in the submissions would reinforce the importance of considering the burden of compliance for legitimate activities, both for reporting entities and their would-be customers.

Questions raised These include: ■ whether the purpose of the AML/CFT Act should shift from detecting and deterring money laundering and the financing of terrorism to actively preventing them. This would place greater responsibilities on reporting entities and significantly reframe their position to include some elements of enforcement; ■ what more could be done to mitigate the unintended consequences that the AML/CFT regime has on financial inclusion. This is a crucial concern as those already vulnerable to financial exclusion can be hit hardest by more restrictive regulation and excluded people may be pushed towards black market financial services and counterproductively increase risk; ■ whether the Financial Intelligence Unit should have expanded powers to request information or to freeze assets and transactions; ■ whether there should be a registration and/or licensing regime (with associated fees) for reporting entities. This could add further complexity (and cost) to operating as a reporting entity; ■ whether criminal defence lawyers should be subject to

A robust, effective, and modern AML/ CFT regime is crucial but the compliance obligations introduce frictions into the economy

some AML/CFT obligations. This, as the consultation document recognises, gives rise to a range of difficult questions around proportionality of obligations and the balancing of broader financial intelligence against the sensitivities and necessary protections surrounding use of criminal defence lawyers; ■ whether all types of virtual asset service providers should have AML/CFT obligations. This would clear up some current ambiguity in the regime; ■ whether tax-exempt non-profits and non-resident tax charities should be included as a type of reporting entity. This, as the consultation document acknowledges, would impose significant compliance costs, and would need to be balanced against the risk of obstructing their ability to provide charitable services; ■ whether there should be any protection or allowance for reporting entities that rely on an audit. This would allow entities greater comfort in relying on the results of their audits as currently a supervisor may take a different view and still pursue an entity despite a clean audit record; ■ whether the role played by AML/CFT consultants should be recognised in the AML/CFT Act; ■ whether the range of potential penalties should be changed, primarily in terms of allowing for higher penalties in more serious cases; ■ whether enforcement actions and penalties should be able to be applied to directors, senior managers and/or AML/CFT compliance officers. This will naturally be of serious concern to these persons, especially given the possibility of fairly technical breaches of the AML/CFT Act; and ■ whether there should be a change to the current address verification requirement of customer due diligence – this could clear up some existing difficulties in the application of the requirements.

What next? The ministry is required by s 156A(2) of the AML/CFT Act to provide its report to the Minister of Justice within a year of commencing the review (so, by 30 June 2022). The minister must then, under s 156A(3), table that report in the House of Representatives as soon as is practicable. The ministry says the review is the start of a reform process and that the indicative timeframe is: ■ 3 December 2021 – public consultation closes; ■ February 2022 to April 2022 – further targeted consultation with the private sector and communities to form recommendations; ■ March 2022 – advice provided to the minister about what change can be made at an earlier stage using regulations or secondary legislation; and ■ 30 June 2022 – the review concludes, and the report is provided to the minister. If entities need more time to provide feedback, we recommend they contact the ministry as soon as possible. ■ Lloyd Kavanagh is a partner at MinterEllisonRuddWatts ■ 15

Warren Pyke responds

Continued from page 11

rates of vaccination have been pinpointed by the government and its legion of patently well-intentioned medical experts as a critical objective. The same appears to be true of virtually every country. There is no such thing as indisputable expert evidence but lawyers, more than anyone, should know that is not a reason to question the validity of science and expertise per se. We also know we have no expertise outside of the law unless we have separate qualifications and experience. Some of us do. Most of us don’t. There is no suggestion in the article that Mr Pyke has any kind of scientific or medical training or expertise. There is no suggestion he has knowledge or expertise in the exotic world of government policy, least of all pandemic management. I appreciate you make it clear at the end of the article that Mr Pyke’s views are his own and do not necessarily reflect the views of the ADLS. Experience suggests that part of the article will get the least attention. Michael Keall

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I have experience in litigation about approval and sale of medicines in two long proceedings circa 2007. I am familiar with the policy issues in this context. And of course I read the government’s scientific papers in the recent approval challenge which succeeded in part. But that doesn’t seem particularly relevant when I rely on the government’s own policy document from 2017. I have briefed scientists and challenged scientific evidence in many cases up to the Supreme Court. I consider I am scientifically literate. Again however that is not really the point. The point is this: can non-scientists question policies which affect the whole population? I think so, in a democracy. Apparently I ought not question since I may somehow affect the efficacy of government measures. But cheerleading journalists can spout forth repeatedly, then when the measures don’t deliver as promised we can feel pleased that we did not question the government. ■

Lets talk! Have Covid-19 lockdowns made you rethink your plans to retire or move away from the practice of law? Do you have a loyal client base that you want to place in good hands? If so, we should talk. We are a small Auckland CBD practice. We do litigation, commercial, property and trust work. We would like to expand our client base. We are open to different arrangements to achieve this, at whatever pace suits you. If this sounds like you, please email us on letstalktoday5@gmail.com. All replies will be treated with absolute confidentiality.

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Oct 15 2021 Issue 36

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■

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