LawNews - Issue 38

NEWS Oct 29, 2021 Issue 38

Inside ■ COVID-19

Vaccine passports: a balancing act P03-04

■ POLITICS

Covid-19: time for Mr Stick?

P08-09

How vaccine passports adls.org.nz

ARE DIVIDING THE NATION

Contents 03 FRAUD DARK WEB APPS

Vaccine passports: Why the govt must tread carefully LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

05 FREEDOM MANDATES SEGREGATION

Letter to the editor: in response to Warren Pyke

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

07 FMA ADVERTISEMENTS MISREPRESENTATION

How to comply with the rules on advertising financial products

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

08-09 06 EVENTS

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.

10-11

Photo: Lynn Grieveson – Newsroom / Getty Images

FEATURED CPD

12 CPD IN BRIEF

Vaccine mandates are inflaming an already deeply-divided community

©COPYRIGHT and DISCLAIMER Material from this publication must not be reproduced in whole or part without permission. The views and opinions expressed in this publication are those of the authors and, unless stated, may not reflect the opinions or views of ADLS or its members.

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

Cover: Anton Petrus / Getty Images

02

Oct 29 2021

Photo: Anton Petrus / Getty Images

Issue 38

COVID-19/OPINION

receiving push-back from organisations with concerns that taxpayers and businesses are being forced to carry the burden of outbreaks, lockdowns and the healthcare needs of those who go to events unvaccinated.

And with several high-profile data breaches this year – including the Reserve Bank, Air New Zealand, the Waikato DHB, NZ Post, the IRD, MetService, Kiwibank and ANZ - and other exploits we have seen on large provider platforms, care is needed as to how the data is stored, where it is stored and how the app accesses this data.

Fraud issues must also be carefully considered because QR codes are easy to create. The Dark Web has created several sites selling QR codes that are being recognised as legitimate by some apps. The government needs to confirm with the developers the integrity of the QR code, with an addition within the app for secondary verification as well as transmission security.

We cannot rely on other countries’ execution of these apps; we must learn from them and implement systems that both verify and double-check to prevent vaccination passport fraud. Otherwise, we run the risk of undermining public confidence as well as public safety.

This has already happened in Australia where the Victorian and Queensland state governments say there have been instances where the police, using warrants, have accessed data from their covid-19 QR check-in apps, thus undermining public confidence in the system. The Western Australia state government introduced legislation after revelations that the police had twice accessed data intended Lloyd Gallagher to be used only for contact tracing, to help with criminal investigations.

As Australians this week began accessing their digital Despite several privacy concerns, the vaccine certificates, allowing them to travel just-released Australian vaccine certificates out of the country for the first time since The Dark Web are viewed as a positive step towards the the pandemic began nearly two years ago, has created public and business community regaining New Zealanders have been told certificates several sites social freedoms and norms. They are showing their vaccine status will be available sometime between now and the selling QR codes compatible with the IATA Travel Pass and meets the new global standards specified by end of the year. that are being the International Civil Aviation Organisation These will be mandatory for entry into recognised as and WHO guidelines. certain locations, including restaurants, The QR code is linked to an individual’s legitimate by bars, cafés and gyms and for large events Australian Immunisation Register covid-19 although the government has yet to release some apps status and can be used around the world. It full details. Supermarkets and health also features ‘visible digital seal’ technology providers such as pharmacies will not be to prevent forgery and can be added to a permitted to demand proof of vaccination smartphone’s digital wallet. but other businesses who fail to do so ‘will not be able to operate as normal’, the Prime Minister has warned.

Vaccine waivers Law firm Russell McVeagh and consultancy PwC have already said they will ban unvaccinated staff, contractors Back in this country, event organisers are calling for more and clients from their premises – a trend that is growing in clarity on when and how New Zealand’s vaccine passports countries like the US where an increasing number of law firms will be used. They spend millions on hosting an event and have warned unvaccinated employees and visitors they will the risk of loss due to shutdown gives them a right to be be barred from their offices.

However, implementing these vaccine certificates has Continued on page 04 thrown up a raft of issues. For example, the government is

Vaccine certificates: balancing competing priorities Fraud issues also need to be carefully considered because QR codes are easy to create

03

Continued from page 03

needs to take care when developing any set of rules that encroaches on freedoms protected under the Human Rights Act 2020 and BORA. protected against possible outbreaks.

Protection of privacy under the Privacy Act 2020 is another deep consideration that needs to be taken into account when Waivers have been argued by some in other areas, such considering any app or technology that will allow connection as for midwives, but these arguments fail to consider the cost to a person’s private and confidential information. associated with passing on the virus, the healthcare required The need for some form of surety to return freedoms to and the possibility of causing an outbreak where taxpayers New Zealanders is an absolute must, but we have to do it and businesses will carry the consequences. In my discussion with care. Public safety needs to be a top priority but so does with various people, no-one seems to be prepared to sign a maintaining the rights of New Zealanders to refuse vaccination. waiver to carry the costs of an outbreak.

However, those who refuse need to accept there are Human rights and privacy consequences for that choice and not be upset when they are turned away because organisations and those in charge of There are also human rights issues such as sanctity of public areas need to protect others. the body and the right to refuse medical Our rights and freedoms do not stand treatment.

Public safety alone.

They are for everyone, so any In an article by Radio New Zealand on 27 needs to be a argument that grants extended rights to one September, legal experts argued that vaccine top priority individual over another must be considered passports would breach New Zealand human but so does with great care, not only by those granting rights legislation yet failed to consider that those rights but also by those seeking to human rights law and the Bill of Rights maintaining modify them.

Act 1990 (BORA) are adaptable where an the rights of As a country we need to take a breath and expressed intent is made by Parliament New Zealanders consider what we are arguing for, and what it (Burrows and Carter Statute Law in New might mean for others, not just ourselves. If Zealand (5ed) 2015, page 342). to refuse something protects me but places my child In the case of a vaccination passport, the vaccination in harm’s way, what then? Are we prepared right of refusal is not removed but neither is to accept the consequences of our choices the right of an organiser to refuse you entry because not accepting them might put others at risk, increase because you pose a risk. lockdowns and put someone else’s business into bankruptcy The Rhythm and Vines co-founder argued against vaccine passports, saying other countries had dumped them. However, to protect ourselves as individuals?

Covid-19 vaccination passports are not about the removal there was a lack of understanding as to why. Many counties of rights but the return of norms to scared and financially had dumped the passports simply because they had data strained New Zealanders. If the government properly considers breaches and other issues due to third-party control. Since all these elements, we can have faith that it steps us in the then, these passports have been redeveloped. They are now right direction. ■ working well and having a positive effect on mental health, according to the BBC. Lloyd Gallagher is managing director and founder of Protected freedoms Gallagher & Co and convenor of the ADLS Technology and Law committee ■ But there are still some concerns in New Zealand. Parliament

Order online at academicdresshire.co.nz All proceeds fund education through the Kate Edger Educational Charitable Trust

The government needs to confirm with the developers the integrity of the QR code, with an addition within the app for secondary verification as well as transmission security

Wanted!

If you are considering donating or selling your legal attire, please contact manager@kateedgertrust.org nz

~ Thank you ~

04

Oct 29 2021 Issue 38

NEWS Oct 8, 2021 Issue 35

Letters to

the editor

Inside ■ COVID-19

The tyranny of experts P03-05

■ RENT RELIEF

ADLS challenges Justice Minister Kris Faafoi

A pandemic

OF EXPERTS

P13

adls.org.nz

Vaccine mandates are not a proportionate response changing. We now find Pfizer’s promoted 97% effectiveness wanes to under I write in support of the publication in LawNews issue 35 of Warren Pyke’s 50% by six months. article on the covid-19 response. The article was very obviously Mr Pyke’s The Pfizer vaccine appears to provide the covid-19 patient protection opinion. This article is mine. from need for hospitalisation and likelihood of death (albeit these benefits I am not an expert. But the experts do not agree. Ultimately, the covid decrease over a short time). response policy is a political decision hopefully based on multidisciplinary This is a private benefit. In a free society we desire to uphold the dignity advice (from virologists, medical experts, economists and actuaries to name and agency of our citizens. Those electing not to take the Pfizer vaccine only a few). may have made a justifiable calculation for them about the risk of the As lawyers we cannot ignore that fundamental freedoms have been virus/benefit of the vaccine. I suggest vaccine mandates and continued displaced. The lockdowns, which are of arguable efficacy, infringed lockdowns are not justified to protect the vaccine-resistant. They have significantly upon our freedom of movement. Retired British judge Lord Sumption referred to the UK lockdown as “the most significant interference made a choice, including any death that might follow.

I suggest that in a free society a vaccine mandate with personal freedom in the history of Britain” and remarked with concern about “the ease with which people Lawyers should must be based primarily upon public benefit (stopping the spread). Unlike the smallpox and measles vaccines, the could be terrorised (by government and its handmaidens be at forefront, Pfizer vaccine is not a sterile vaccine. The government’s in the public health caste) into surrendering basic questioning covid advertisement misleadingly proclaims, ‘get the jab, freedoms which are fundamental to our existence”. whether and stop the spread’. We know a fully-vaccinated person can The New Zealand government has now introduced vaccine mandates (‘no jab no job’) for several work forces, when the rights both get and spread the virus (albeit experts disagree whether the vaccinated carry a lower viral load). There is most recently including the health and education sectors. in ss 10 and 11 of evidence from highly vaccinated countries (Israel, the UK Vaccine passports are planned to segregate society and the Bill of Rights and Singapore) that indicates mass vaccination may not exclude the unvaccinated.

Lawyers should be at forefront, questioning whether Act 1990 should be the answer.

Given limited efficacy of the vaccine and that the and when the rights in ss 10 and 11 of the Bill of Rights Act be abandoned benefits are mainly private, shouldn’t lawyers, with human 1990 (BORA) should be abandoned. In s 5 of BORA, these rights lawyers at the forefront, be at least querying the rights should be subject only to such reasonable limits loss of our medical freedoms? prescribed by law as can be demonstrably justified in a If the mandate aim is simply to reduce hospitalisation of the free and democratic society. The level of threat would always be a factor, as unvaccinated, then that should be made clear though a discussion should also the type and efficacy of the vaccine. then follow as to whether there are other responses available.

There might occur a disease threat so severe that a vaccine mandate The original lockdown in March 2020 was in part in recognition of is correct. There are many who do not agree that covid-19 falls within that inadequate hospital capacity. That deficiency does not appear to have category. In USA, approximately 736,000 have died from or with covid-19 been adequately addressed. As a side-line, it would be an interesting new which, in a population of 325 million, is about 0.23%. Is this really the threat healthcare policy if we treated only the worthy. level at which we abandon our medical freedoms? Covid-19 does not have Are human rights lawyers not concerned at the push to vaccinate the the virulence of smallpox, nor even Spanish influenza.

Is the Pfizer vaccine one that should be mandated? This mRNA vaccine is a new type of vaccine with, at this date, no longitudinal studies available Continued on page 13 as to its long-term effects. Understanding of the benefits of the vaccine are

05

Events Featured events

Connecting New Zealand Lawyers

Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Thursday 10 February, 2022 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

New Plymouth sundowner Thursday 24 February, 2022 5.30pm – 7.30pm The Pepper Room, Millennium Hotel New Plymouth Waterfront Catering sponsored by MAS Learn More

Upcoming February

Thursday 10 February | Christchurch breakfast with Chief Justice Dame Helen Winkelmann Thursday 24 February | New Plymouth sundowner

March

Wednesday 2 | Central Auckland express lunch Wednesday 16 | Newly Suited meet the QCs evening, Auckland Monday 28 | ADLS golf tournament

April

Wednesday 6 | Rotorua lawyers’ lunch

Auckland central express lunch Wednesday 2 March, 2022 1pm – 2pm Glass Goose, 78 Federal Street, Auckland Sponsored by CoLegal Learn More

Newly Suited meet the QCs evening Wednesday 16 March, 2022 5.30pm – 7.30pm Stanbeth House, 28 Customs Street East, Auckland CBD Learn More

ADLS golf tournament Monday 28 March, 2022 2pm – 8pm Remuera Golf Club, 120 Abbotts Way, Auckland

Soon to be added:

Feb – April Newly Suited ‘saved by the bell’ careers evening, Auckland Immigration law dinner, Auckland May – July Hamilton lawyers’ lunch Auckland breakfast with Chief Justice Dame Helen Winkelmann Employment law dinner South Auckland lawyers’ lunch Breakfast with the Attorney-General, Auckland Hawke’s Bay lawyers’ lunch Henderson lawyers’ lunch, Auckland Tauranga lawyers’ lunch Northland lawyers’ lunch

Book Here

Learn More

events@adls.org.nz

06

adls.org.nz

Oct 29 2021 Issue 38

FINANCIAL SERVICES

Complying with the law when advertising financial products The real reason for wanting to get so much information about trusts appears to be a wish on behalf of the present government to tax people associated with trusts in ways they have never been taxed before Tim Williams, Penny Sheerin & Brad Kidd The Financial Markets Authority (FMA) has released its guidance on what good conduct in advertising offers of financial products should look like.

The statutory obligations are set out in the fair dealing provisions in the Financial Markets Conduct Act 2013 (FMCA).

These echo the Fair Trading Act and prohibit misleading or deceptive conduct, false or misleading representations and making unsubstantiated claims.

The guidance also references the FMA’s power under Part 8 of the FMCA to use ‘stop orders’ to prevent the use of ‘restricted communications’ – in practice, according to the FMA, likely to include most advertisements of financial products.

Tim Williams

Key principles Overall impression is central The central consideration for determining whether an advertisement breaches the FMCA will be the “overall impression as perceived by the consumer or investor”.

That means that: ■ advertising that is not actually misleading or deceiving can breach the FMCA provided it is likely to mislead or deceive; ■ the intention of the advertisement is irrelevant; ■ advertising (or conduct generally) is more likely to mislead where a financial product is complex or where the investor base being targeted is vulnerable or ill-informed; ■ representations that are true and verifiable in isolation are capable of generating a confusing or misleading impression when viewed holistically; and ■ omissions, whether deliberate or inadvertent, can be misleading if the omission leaves the audience with an overall misleading impression.

The guidance incorporates the following additional considerations, which did not appear in the consultation draft: ■ the form or context of an advertisement is a relevant

Penny Sheerin

Brad Kidd

consideration as to whether that advertisement is misleading; and ■ consumers cannot be expected to study or revisit an advertisement.

Who is a consumer or investor?

A key consideration which did not appear in the consultation draft is that the ‘consumer or investor’ in question is an “ordinary and reasonable (or typical) member of the advertisement’s audience”. It is not a member of the intended audience, but the audience that the advertisement actually reaches.

General expectations The guidance sets out the FMA’s expectations for advertisements. Broadly speaking, they are: ■ Substantiate claims All representations made in advertisements should be substantiated, which means ensuring there is a “reasonable basis” for the representation at the time it was made – particularly where the representation goes to the “nature, suitability and characteristics of a financial product”.

■ Advertising must be truthful and accurate This includes: ■ ensuring all information is current, complete and accurate; ■ information should be presented in a way that is readily understandable by the target audience, giving prominence to key information rather than burying it in fine print; and ■ giving consistent information across different communication channels and languages.

■ Comparing financial products Comparisons should be made only between sufficiently similar products and any differences need to be sufficiently explained.

■ Ensure risk and reward of financial product is clear For example, advertisements should not give the impression that the financial product is free from risk or that returns are guaranteed.

■ Avoid jargon Unless it is explained and will be understood by the audience.

■ Forecast returns only where there are reasonable grounds The basis of any forecast should be made clear and direct the audience to further information where appropriate.

■ Avoid emphasising performance at the expense of other information Advertisements must present performance information in a

Continued on page 14 07

POLITICS/OPINION

No easy answers in covid’s dictatorial rule

As the Auckland lockdown stretches out towards Christmas and beyond, the notion that the anti-vaxxers should be treated as a self-correcting problem is only likely to find more and more supporters

Vaccination looms as an issue around which vitriolic controversy seems certain to swirl in the weeks ahead.

For those who oppose vaccination, the future seems grim.

We have it on the authority of the Prime Minister herself that life without a vaccination certificate will not involve a lot of fun.

Between those able to present a vaccination certificate and those without one, an ever-widening social gulf is about to open. Small wonder that the anti-vaxxers are feeling nervous.

Some of those closely associated with the anti-vaccination protests led by ‘Bishop’ Brian Tamaki are feeling more than nervous – they are feeling persecuted. Pastor Peter Mortlock of the evangelical City Impact Church has gone so far as to inform his congregation that ‘Nazi Germany has arrived in New Zealand’ and warns of the unvaccinated becoming ‘yellow star citizens’, a reference to the yellow Star of David all European Jews were required to wear by their Nazi tormenters.

The charge is not unique to New Zealand. In the United States, the United Kingdom and Australia similar accusations and characterisations have become recurring propaganda memes within the anti-vaccination movement.

Virtually any manifestation of state power in relation to combatting the covid-19 pandemic is equated with the totalitarian regimes of the 1930s and 40s. If it isn’t the Nazis, then it is Soviet Russia under Stalin. Otherwise, pretty much any old dictator will do.

If Pastor Mortlock and his ilk had done their research, however, they would certainly have hesitated to include the Nazis in their propaganda sermons and posts.

As Branko Marcetic explains in a sharply pointed piece for Jacobin magazine, the Nazis were far too sensitive to rightwing public opinion to enforce the compulsory vaccination legislation that had been on Germany’s statute books since the Imperial Vaccination Law of 1874.

When the Nazis came to power in 1933, the 1874 law was actually in abeyance. A tragic medical misadventure, in which 70 children had died three years earlier, had mobilised the 08

Photo: Pool / Pool / Getty Images

Chris Trotter

already large anti-vaccination movement in Germany and the government had responded by simply ceasing to enforce the law. Far from re-instating compulsory inoculation, Hitler and his confederates decided to keep the moratorium in place.

Partly this was in response to the very strong anti-Semitic flavour of the German anti-vaccination movement which, like the anti-vaxxers of today, was prey to all kinds of lurid conspiracy theories. Mostly, however, it was because the Nazis were enthusiastic eugenicists.

For Hitler and his comrades, vaccination was regarded as a Darwinian test of evolutionary fitness. Intelligent and conscientious German citizens would not hesitate to get vaccinated. Those who refused were declaring themselves to be either politically or congenitally unfit to remain a part of the German volk.

When it came to the conquered peoples of Eastern Europe, the eugenic message was unequivocal. Vaccination was only for the master race; among the untermenschen nature must be left to take its course.

Hitler had no need of vaccination certificates; he would have looked upon Pastor Mortlock as a self-correcting problem.

Marcetic’s article serves as a timely reminder that there

Continued on page 09

A simple arithmetical exercise suggests that a date very close to 1 December is top of the Prime Minister’s mind

Oct 29 2021 Issue 38

Continued from page 08

really is nothing new under the sun. Human nature remains a depressingly consistent factor in the way politics unfolds. Equally bracing, however, is the realisation that Hitler’s Darwinian cast of mind is very far from being dead.

The briefest scan of Twitter and/or Facebook will produce numerous examples of eugenicist thinking. Indeed, as the Auckland lockdown stretches out towards Christmas and beyond, the notion that the anti-vaxxers should be treated as a self-correcting problem is only likely to find more and more supporters.

Writing in The New Zealand Herald of 21 October 2021, NewstalkZB’s breakfast host, Mike Hosking, captures this increasingly ruthless tone extremely well. After praising the performance of the UK’s Boris Johnson, Hosking sums up what he sees as the Labour government’s capitulation to the realities threatening to overwhelm it: “Unlike Britain, we weren’t led to freedom,” Hosking opines.

“We had to drag the government kicking and screaming and we are still not there. But with the failure of elimination, the trafficlight system, the acceptance of ideas like Ian Taylor’s self-isolation plan, the importation of rapid tests, all of a sudden you have seen essentially the control freaks in Wellington wave the white flag.”

Brutal though Hosking’s analysis may be, it is difficult to refute. Prime Minister Jacinda Ardern has pivoted away from the successful strategies of 2020 to embrace – however reluctantly and haphazardly – the strategies promoted by the Auckland business community, admirably personified by Sir John Key, the Act Party and, eventually, by the National Party itself.

Ardern’s presentation of Friday 22 October may not have included the Opposition leader Judith Collins’ promise of a 1 December Freedom Day but a simple arithmetical exercise suggests that a date very close to 1 December is top of the Prime Minister’s mind.

Vaccination certificates are an unavoidable component of this new government strategy. In the Prime Minister’s own words: “Vaccinations are our armour. They help keep us safe.

“So my message to the New Zealanders who have not yet had their first dose: if you want summer, if you want to go to bars and restaurants, get vaccinated. If you want to get a haircut, get vaccinated. If you want to go to a concert or a festival, get vaccinated. If you want to go to a gym or a sports events, get vaccinated. If you are not vaccinated, there will be everyday things you will miss out on.”

This is the language of a Prime Minister struggling to remain in ‘kindness’ mode, offering vaccination certificates as a carrot to those still lagging behind.

Mike Hosking has no such brand to protect: “Limousine Left governments want too much control, they want to dictate to the successful and they want to wipe the bum of the victim. There is too much bum-wiping going on for the apathetic stragglers in the vaccine rollout. Name a date, give them one more chance, get a jab, don’t get jabbed, own your

lot, own your life, own your circumstances […..] There is no good reason for the vast majority of us to be held back by a) the thick; b) the lazy; or c) overarching governments who trade in fear.”

The title of Hosking’s column said it all: “Give vaccine stragglers a deadline then let’s move on without them.”

Although she would be loath to admit it, the sheer brutality of Hosking’s prose is likely to prove enormously helpful to Ardern’s government. If NewstalkZB’s most effective broadcaster is writing and saying these things, then the ratings (if nothing else) would suggest that, out there, beyond the studio, there are tens of thousands of Aucklanders slamming down their fists on the kitchen table in angry agreement.

If it’s to remain in government, Labour needs to keep those fists onside. That means accepting that the days of Ms Carrot are rapidly coming to an end. Like it or not, the time has come for the country to be introduced to Mr Stick. Who else could the Prime Minister be introducing to New Zealanders in this wonderfully circumlocutory statement?

“And if you are vaccinated, you can be assured that in the new framework you will get to enjoy the things you love, secure in the knowledge that the people around you, and the environment you are in, is as safe as possible in a covid world. If you have done the right thing to keep yourself and others safe, to look after one another, you should feel safe. You should be protected from those who haven’t made that choice.”

Who else is going to ‘protect’ the vaccinated from the unvaccinated?

Small wonder that medical ethicist and one-time government adviser, Associate-Professor Angela Ballantyne, was looking and sounding so worried when interviewed by Jack Tame on last Sunday’s Q+A program. She knows the dreaded tread of Mr Stick when she hears him stomping up Lambton Quay. And she has a pretty shrewd idea who he’s going to start hitting first. (Spoiler Alert: It won’t be Pakeha).

But what else did she expect when push came to shove?

When Ardern and her colleagues did the maths – not just epidemiologically, but politically – what alternative, short of electoral suicide, did they have except to embrace their ‘inner Mike’?

Perhaps the strangest thing of all about the impasse at which New Zealand finds itself is the peculiar historical congruence of communities in extremis. How jarring that our present political discourse can embrace both the murderous social Darwinism of Adolf Hitler, even as fearful humanitarians present accommodative arguments redolent of the Fuhrer’s deeply cynical vaccination voluntarism.

To be a nation’s Prime Minister in these plague-ridden times is not a job to be envied. The covid-19 virus, to paraphrase The Terminator, is out there. “It can’t be bargained with. It can’t be reasoned with. It doesn’t feel pity, or remorse, or fear. And it absolutely will not stop.”

These are times when, to be kind, you have to be cruel. ■ Chris Trotter is a political writer and commentator of more than 30 years’ experience. He is the editor of the Bowalley Rd blog ■

Chris Trotter

Although she would be loath to admit it, the sheer brutality of Hosking’s prose is likely to prove enormously helpful to Ardern’s government

09

FEATURED CPD

FINAL NOTICE

VALUATION PRINCIPLES METHODOLOGY

Valuation disputes in family property cases Webinar 1 hr Wednesday 3 November 12pm – 1pm Presenter Marnus Beylefeld, director, Sapere Forensic & Valuation Chair Brian Carter, barrister, Bastion Chambers

Presented by an expert in valuation, litigation support and forensic accounting, and with commentary from a family law barrister, this webinar will provide insights into basic valuation theory, principles and methodologies, and its application to family property law.

FIND OUT MORE

Burning Issues Forum 2021 LEGISLATION JURISDICTION COVID-19

Forum 2 hrs Tuesday 9 November 4pm – 6pm Presenters Tim Clarke, partner, Bell Gully; Gillian Service, partner, MinterEllisonRuddWatts; Bronwen Newcombe, director, Davenports Law and Shelley Kopu, principal, Shelley Kopu Law Chair Rachael Judge, senior associate, Simpson Grierson

Cast aside your scarf and hat and warm yourself at the boiling vat that is the Burning Issues Forum 2021. Come see the flickering fangs of orange torch the scorching cauldron’s bottom! Legislation, the expanded jurisdiction of the Authority, and living and working with COVID-19 now and into 2022 are some of the scalding hot topics that will be served, crackling and steaming, at this, our annual inferno.

FIND OUT MORE

Fitness to stand trial: a practical guide PROCESS PRACTICE PERSPECTIVES

Live Stream 2 hrs Thursday 11 November 4pm – 6.15pm Presenters Judge Claire Ryan; Ish Jayanandan; Dr Jeremy Skipworth; Sally Kedge and Dr Kelly Howard Commentator Justice Collins Chair Marie Dyhrberg QC

10

A practical guide to approaching fitness issues: Can you determine when fitness to plead might need to be considered? If you think it might be an issue, do you know what to do and what reports to get? How does the psychiatric report relate to the communication assistant assessment? Do you always need to do both? Which do you do first? What do you do with the reports?

How does the specialist CP(MIP) court work? This seminar will address these and many other questions in this key area.

LIVE STREAM

Oct 29 2021 Issue 38

adls.org.nz/cpd

Towards sustainability: the role of the law firm

In Person | Live Stream 2 hrs Tuesday 16 November 4pm – 6.15pm Presenters Debra Dorrington; Nicole Xanthopol; Mary Heath and Hugo Miller

MEANING RISKS OPPORTUNITIES

IN PERSON

cpd@adls.org.nz

09 303 5278

A thriving, resilient, safe and ultimately sustainable world is an enticing prospect.

It’s also an imperative. What responsibilities do lawyers and law firms have to help bring about that future?

This session is aimed at all legal professionals, particularly partners/ principals, directors and practice/office managers in small to medium sized firms, and barristers.

LIVE STREAM

Class and funded litigation CONDUCT CLIENT RESPONSIBILITY

In Person | Live Steam 2 hrs Wednesday 17 November 4pm – 6.15pm Presenters Paul Collins; Philip Skelton QC; Angela Parlane and Jonathan Woodhams

Competition law update

The rapid growth in class and funded litigation has exposed a range of professional responsibility issues and challenges not encountered in regular litigation. This seminar is intended to help lawyers navigate this difficult and potentially perilous field, identifying and avoiding professional issues before they become a problem.

IN PERSON

LIVE STREAM

In Person | Live Stream 2 CPD hrs Thursday 18 November 4pm – 6.15pm Presenters Alan Lear; Kim Francis; Matthew Sumpter; Sarah Keene; Ben Hamlin Chair Dr Mark Berry, barrister

Focussing on restrictive trade practices, cartels, monopolisation, mergers and acquisitions, dealings with the Commerce Commission, and compliance programmes, our panel will use case studies to update you on law changes together with recent cases and examples.

ISSUES CASE LAW EXAMPLES

IN PERSON

LIVE STREAM 11

CPD IN BRIEF

Evidence law update

Live Stream 2 CPD hrs Wednesday 1 December 4pm – 6.15pm Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister

Presented by two of the co-authors of the 2018 text Mahoney on Evidence: Act & Analysis, this seminar will focus on the current application of key sections of the Evidence Act 2006 in both the civil and criminal law jurisdictions. This seminar will cover recent developments related to rules of evidence that are of interest to civil and criminal law practitioners.

LIVE STREAM

Leading your career Wellington

Workshop 8 hours Thursday 3 February 8.45am – 5pm Facilitator Miriam Dean QC; Liz Riversdale, Catapult

Exclusively for women lawyers with 6+ years’ PQE. Take charge of your career and realise your potential. This practical, interactive one-day workshop, led by one of New Zealand’s top QCs and one of New Zealand’s senior leadership experts, will arm you with resources, self-confidence and focus to apply immediately to your role and to enhance your future career.

FIND OUT MORE

Written advocacy: what judges want

Seminar 1.5 hours Tuesday 15 February 4.30pm – 6pm Presenters Raynor Asher QC, Richmond Chambers and Davey Salmon QC, Mills Lane Chambers

Focussing on trial and appellate submissions, the panellists will provide invaluable insights into how to approach drafting, the structure and language to be used once you put pen to paper and ways to ascertain whether you’ve achieved your purpose.

IN PERSON

‘Court’ by forensics

Workshop 4 hrs Saturday 19 February 9am – 1.15pm Presenters Tom Coyle, managing director, Forensic Insight Ltd and Allie Coyle, director, Forensic Insight Ltd

This truly hands-on, integrated experience − the first of its kind in New Zealand − will take you behind the scenes as a crime scene investigator, so that you will get a greater understanding of what type of evidence is preserved from the scene and used effectively in Court.

Numbers strictly limited

FIND OUT MORE

FPA And TPA Claims: An Update Thursday 24 February 2022 | Seminar | 2 CPD hours Visit adls.org.nz for more information.

12

LIVESTREAM

Oct 29 2021 Issue 38

Continued from page 05

WILL INQUIRIES

young? Covid 19 poses minimal risk for the young. We do not know the long-term effects of Pfizer vaccination and (the no doubt coming) booster shots. The young are particularly social and succumb to vaccination to be allowed social interaction.

There are other views. Nordic countries are now limiting the use of the Moderna vaccine for those under 30. The UK advisory body JCVI did not green-light vaccinating healthy children under 15. Some countries (eg, Hong Kong) recommended only a As the single dose of Pfizer for children and young adults. surveillance Health and safety state becomes obligations are being directed the norm, to vaccine mandates. Shouldn’t the focus be on excluding staff preventing such inroads on (and clients) with covid-19?

There is no doubt the our freedoms vaccine should be available becomes ever free of charge to all who want it. more important Certain demographics should be particularly encouraged to take the vaccine (those aged 65+ or immune compromised or having the relevant comorbidities).

However, this government is taking us into new territory, setting aside the freedoms in ss 10 and 11 and mandating vaccination and vaccine passports. I suggest this is not a proportionate response and sets an ugly precedent for the future.

As the surveillance state becomes the norm, preventing such inroads on our freedoms becomes ever more important.

Mary Anne Shanahan ■

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

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz

ADLS, PO Box 58, Shortland Street,

DX CP24001, Auckland 1140

BAUCKE Edward George • Late of Matamata Country Lodge, 20 Elizabeth Street, Matamata • Widow • Coach driver • Aged 95 / Died 13’09’21 BEASLEY Robert • Late of Totaravale, Auckland, • Married • Retired masterchef • Aged 88 / Died 25’09’21

Fax: (09) 309 3726

(09) 303 5270

BROWN Matthew Alexander Hadfield • Late of 47 Garden Road, Piha, Auckland • Emergency paediatrician • Aged 43 / Died 01’10’21 TIMOTI Mele Teuila • Late of 10 Laxon Avenue, Otara, Auckland • Married • Housewife • Aged 57 / Died 24’07’21

Membership offers a range of benefits, including:

Become an ADLS Member adls.org.nz/join

■ ■ ■ ■ ■ ■

LawNews and the ADLS Monday e-Bulletin Collegiality events available at special member rates A variety of CPD activities all at special member rates Eligibility to apply for ADLS Committees Enhanced Airpoints Dollars™ earn rate on eligible ADLS purchases Member pricing on textbooks and related products at the ADLS Bookstore, and more

membership@adls.org.nz

09 303 5270

13

Continued from page 07

Briefs Hearings cancelled Covid-19 restrictions have forced the Supreme Court to cancel its planned sittings in Auckland on 15-19 November.

Chief Justice Dame Helen Winkelmann says in-person court hearings cannot go ahead at alert level 3. So, to give all parties certainty, the proceedings that were scheduled to be heard in Auckland will now be transferred to Wellington. Counsel who are based in areas under alert levels 3 and 4 will participate remotely.

Time extension The Companies Office advises that incorporated societies which cannot hold their AGMs virtually because their constitutions don’t permit this, or need more time to file financial statements, can request extension of up to two months. For more information, go to Incorporated Societies Register website.

‘Stasi power’ Lawyers in Victoria have slammed the state government’s new pandemic legislation, likening it to ‘Stasi power’.

Christopher Blanden QC, the President of the Victorian Bar, told The Australian “the bill confers powers that can be appropriately described as draconian in authorising virtually unlimited interference in the liberties of Victorian citizens. This represents the biggest challenge to the rule of law that this state has faced in a decade.”

Legislation introduced into the Victorian Parliament this week confers broad powers on ‘authorised officers’ without review, and grants police the power to enter premises without a warrant.

“If you’re going to interfere to this degree with people’s basic rights, then there ought to be some reasoned debate about whether it’s justified or not,” Blanden said.

Commissioner disciplined Lyndall Dean, a deputy commissioner at Australia’s Fair Work Commission, who in a recent minority judgment described mandatory vaccination as ‘medical apartheid’ has been ordered to undergo training, excluded from full bench cases and told she will not be allowed to adjudicate workplace disputes about vaccination.

Australia opens up From Monday November 1, fully vaccinated Australians will be free to travel overseas quarantine-free for the first time since March last year. However, while they can fly to London, Los Angeles, Fiji and Singapore, they cannot yet cross domestic borders into Queensland or Western Australia. The Queensland border will not open until December 17 and Western Australia is likely to remain closed until Easter next year. ■

14

balanced way and avoid cherry-picking data.

■ Warnings and disclaimers should be prominent A misleading or confusing first impression may not be corrected by non prominent warnings or disclaimers.

■ Clearly disclose fees and cost Any description of cost or fees should be consistent with the advertiser’s disclosure documents and give a realistic impression of what an investor is likely to pay. Advertisers should be wary of representing that an investment will attract no fees, especially where, in economic substance, a fee is in effect payable.

■ Claim to be regulated Advertisements should not claim that the issuer is governed, approved, authorised or regulated unless that is in fact the case.

■ Advertising should be identified as such Advertising, including on social media, should not be masked as something other than an advertisement.

■ Be clear about investments available only to wholesale investors.

In particular: ■ advertisements about investments available to ‘eligible investors’ should be clear about what an eligible investor is to avoid the risk of the audience interpreting ‘eligible’ in the everyday use of the word; and ■ care should be taken where advertisements about offers available only to wholesale investors are run in channels likely to be viewed by retail investors.

Regulated offers The guidance highlights the restrictions in the FMCA on advertising regulated offers (ie, offers of financial products). Broadly speaking, those advertisements must include prescribed disclosures.

Importantly, the FMA has softened the guidance for advertisements of regulated offers where it is not possible, due to the limitations of the advertising channel (for example, website banner advertisements) to include the required disclosures in the advertisement.

Rather than requiring those advertisements to comply in any event (as was its view in the consultation draft), the FMA now expects: ■ no part of the advertisement should give a misleading impression; ■ (implicitly) that the advertisement should include a link to a landing page where the required disclosures can be found; ■ messaging should be consistent between the advertisement and the landing page; and ■ all required disclosures should feature prominently on the landing page.

Our comment We welcome the FMA’s clarification on the approach it will take in determining whether advertisements are compliant with the FMCA. It is particularly encouraging that the FMA has taken into account feedback from the consultation phase, including with respect to advertising on platforms where the format of the content is limited.

The guidance highlights the need to take care in preparing advertisements, which can sometimes be overlooked or subject of less scrutiny in compliance programs.

Providers need to verify the impressions that are likely to be gained from advertisements, as well as their strict accuracy. Because advertisements are often all customers may read, the FMA enforcement team monitors them closely. ■ Tim Williams, Penny Sheerin and Bradley Kidd are partners at Chapman Tripp ■

Oct 29 2021 Issue 38

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.

SUBSTANTIAL AUCKLAND SUBURBAN SOLE PRACTICE FOR SALE • Highly profitable practice with exceptional turnover.

• Established for 50 years.

• Substantial Will, Estates and Trust base.

• Excellent residential and commercial conveyancing.

• Strong relationship property and matrimonial practice.

This space could be yours LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

• Principal plus two long-standing senior associates.

• This would be a tremendous opportunity for a savvy practitioner to escape the risks, hassles and burdens of a city corporate firm.

• Possible flexible financial assistance to correct buyer.

Get your message in front of them.

• Principal available to work for appropriate time to assist to maximise transition.

Call our advertising executive, Darrell Denney, on 021 936 858 or email Darrell on Darrell.denney@adls.org.nz

Apply in confidence to stu@rccgroup.nz

Bookstore A convenient, one-stop-shop for all your legal resources ADLS members, including student members, receive a 10% discount

Visit the online bookstore:

adls.org.nz/bookstore Phone:

09 303 5270 Email:

thestore@adls.org.nz

The ADLS Bookstore couriers nationwide.

Or, browse in person at: The ADLS Bookstore Ground Floor Chancery Chambers 2 Chancery Street Auckland CBD

15

Personal Effectiveness Workshop 2022 Thursday 3 March | 9.00am - 1.15pm Returning for 2022, this well-received workshop will provide a range of personal effectiveness insights and tools to help increase your productivity and return-on-effort at work. It is facilitated by a leading high-performance consultant.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Examination-in-Chief and Re-Examination Workshop Saturday 26 March | 9.00am - 1.15pm In this learn-by-doing workshop, you will get to test your examination-in-chief and reexamination skills and receive individualised feedback from experienced practitioners and members of the judiciary.

T 09 303 5278

16

E cpd@adls.org.nz

W adls.org.nz/cpd