LawNews- Issue 43

NEWS Dec 2, 2022 Issue 43

Inside ■ TRUSTS

Expanding fiduciary law P06

■ OPINION

Should lawyers uphold the treaty?

P08-09

Concern mounts over facial recognition adls.org.nz

TECHNOLOGY

Contents 03-05 CREEPAGE PROFILING BIAS

How facial recognition technology might be misused

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Case note: Family dysfunction and a bid for a parenting order

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Dec 2, 2022 Issue 43

PRIVACY/TECHNOLOGY

Why the Privacy Commissioner has done an about-turn on facial recognition technology Given the challenges that FRT has faced with ‘darker skin tones’ globally, it is logical that these systems may produce more errors for Māori and Pasifika faces too Reweti Kohere The Privacy Commissioner says a “strong case” exists for tighter regulation of facial recognition technology amid concerns that the Privacy Act 2020 alone is insufficient to protect the public.

This is a marked shift from an initial position paper dated October 2021, where the commissioner considered the Privacy Act could adequately protect individuals’ privacy rights while biometric data is collected and used. The regulator did reserve the option to consider additional action if necessary.

Facial recognition technology (FRT) is ubiquitous overseas, and used in smartphones, at airports and supermarkets, and

by Police. But privacy concerns are mounting as FRT gains a foothold in Aotearoa/New Zealand.

Accompanying its increased presence are issues about past misuses of established surveillance technologies, creepage and algorithmic bias.

The Office of the Privacy Commissioner (OPC) is working through about 100 submissions from a range of public and private stakeholders on its August 2022 biometric consultation paper, which states a “strong case” exists for further regulatory action to ensure the use of biometric information falls within “appropriate privacy protections”. The regulator, however, says it hasn’t “jump[ed] to conclusions”.

At the same time, the OPC has urged one of the country’s largest supermarket chains to be cautious as it trials the “privacy intrusive” technology in-store, prompting Foodstuffs North Island to carefully consider whether using facial recognition technology is a “necessary, proportionate and effective” response to harmful behaviour.

Regulatory options being considered include additional guidance, standards and principles, directives for government agencies, a specific code of practice and legislative change.

The publicly available submissions include tech association

The Independent Police Conduct Authority and the OPC in September 2022 found Police lacked general awareness of their Privacy Act obligations

umbrella group NZ Tech, which believes more legislative reform and an industry code of practice are not needed; privacy rights advocate Privacy Foundation, which is calling for a privacy code as use of biometric information causes a “high level of risk” to people and society; and artificial intelligence member organisation AI Forum, which has offered to convene a working group to better inform any potential industry code.

The OPC plans to outline its preferred approach by the end of 2022 – a deadline still in play, a spokesperson says. “We will be providing an overview of the responses to our public engagement on biometrics as part of our report back, so we can show how the feedback received has shaped our response.”

Counselling caution The regulator accepts concern is mounting about the use of technologies that recognise individuals based on their face, fingerprints, voice, eyes and other biological or behavioural characteristics. For the purposes of the Act, biometric information is “personal information” because it helps identify and verify individuals.

In the case of FRT, individuals are verified or authenticated by algorithms that analyse their facial features and find probable – rather than certain – matches when compared with digital templates of their faces, or “face prints”. Facial images may be collected at a distance, without people’s knowledge, and in public.

They are considered sensitive biometric information because they go to the heart of people’s sense of identity.

Biometrics are being used in more, diverse ways. iPhone owners are already familiar with using FRT to unlock their smartphones (earlier versions relied on their fingerprints as keys).

Facebook has used FRT to suggest “tags” of people in photos shared on the social media platform. International airports use automated self-service border control eGates, which photograph people’s faces and match them with their passport pictures.

Banks can rely on biometric information in setting up accounts or ensuring compliance with anti-money laundering laws. Scottish school canteens have controversially used FRT to speed up payment for lunches while pig farmers in China have used the technology to help improve porcine welfare. At the same time, the Chinese Community Party is embracing FRT and artificial intelligence to spy on billions of its people.

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Continued from page 03 New Zealand supermarkets are the recent focus of homegrown concern. Just last week, consumer rights advocate Consumer NZ confirmed Foodstuffs North Island, the owner of Pak’nSave, New World and Four Square, was the only major retailer nationwide using FRT in 29 of its stores.

“We are seriously concerned that New Zealanders are having their sensitive biometric information collected and analysed while they go about their shopping,” Consumer NZ chief executive Jon Duffy said. “These shoppers may not know it is happening or understand the potential consequences of their data being collected in this way.”

In a statement, the OPC said it recognised the company must take steps to keep customers and staff safe. “However, it is not clear to our office how facial recognition technology is going to achieve this. As a result, we have been counselling caution given the privacy intrusive nature of facial recognition technology and the inaccuracy and profiling risks involved.”

Need to inform The OPC has asked Foodstuffs to provide details of the 29 stores that use FRT to determine whether their use complies with the Act. “Any store using facial recognition technology must clearly inform customers about its use. Customers who are concerned about what these stores may hold on them should ask for access to this information. Customers who are concerned that their privacy has been breached or that their request for their information has been inappropriately denied should make a complaint to our office,” it said.

It’s not the first time Foodstuffs’ use of FRT has been made public. In August 2020, New World Papakura hit headlines when customers were asked to remove their masks to enable FRT to capture their faces – a policy it later reversed.

Two years earlier, Foodstuffs admitted using the technology in “some” of its North Island stores amid revelations a man was mistakenly identified as a shoplifter at a New World supermarket in Dunedin. While that store didn’t use FRT at the time, it was using the Auror security system, which relies on images from existing CCTV cameras. In all three instances, Foodstuffs justified its use of FRT to help keep staff and customers safe and stem offending.

Misuse Law enforcement’s use of biometric information – to identify suspects, detect and investigate crime, and evidentially bolster prosecutions – has attracted greater scrutiny here and overseas.

There are worries that biometric technologies may further entrench existing biases in the criminal justice system and that some groups may be falsely targeted due to inaccurate algorithms. However, greater convenience, efficiency gains and increased scalability of identification can flow from FRT and other crime prevention technologies if designed well and 04

Amy Kingston-Turner

The Chinese Community Party is embracing FRT and artificial intelligence to spy on billions of its people

used appropriately.

A year ago, as part of a plan to adopt independent experts’ recommendations on its current and potential uses of FRT, the Police chose to continue not using live FRT, which can identify multiple people in large crowds in real-time, until they fully understood the security, privacy, legal and ethical impacts.

“FRT is a subject that draws strong interest and sometimes distrust and controversy along with it,” said Police deputy chief executive Mark Evans. “However, with this technology’s fast-paced development, there are also opportunities for more effective policing. Getting this balance right is imperative, and the review has given us clear guidance on the legal and ethical use of this technology.”

Commissioned by the Police, researchers Dr Nessa Lynch and Dr Andrew Chen concluded current or imminent planned use of FRT is “limited and relatively low risk”; the Police collect facial images in a variety of contexts, under different legislative requirements and for a range of purposes; those images, varying vastly in age and quality, are retained in separate systems and there’s little to no capability to combine those databases for wider comparison.

While privacy is an embedded principle within the organisation, the researchers recommended Police should consider other rights and interests when assessing FRT’s impact, including the potential chilling effect on freedom of expression and peaceful assembly of monitoring protests or the presumption of innocence if facial comparison systems are expanded to collect images of those who haven’t been convicted or charged.

Even with more established technologies like smartphone photography, CCTV and automatic number plate recognition, the Police have misused them.

The Independent Police Conduct Authority and the OPC in September 2022 found Police lacked general awareness of their Privacy Act obligations, which led to their routine and unlawful taking, using and retaining of photographs of Māori youth.

The watchdogs’ joint report upheld three complaints from Māori whanau of Police officers photographing rangatahi without justification, finding the photographs were not necessary for a lawful policing purpose, consent hadn’t been properly sought, explanations were inadequate and in one incident, Police had wrongly threatened arrest if consent wasn’t given.

Also in September, Police admitted to a second case of misusing number plate-reading cameras, flagging a car as stolen to trigger camera tracking in a Counties Manukau homicide investigation in 2022 – even though the car wasn’t stolen.

More notably, the Police falsely reported cars as stolen to gain access to powerful databases that record number plates when hunting for the women whose travel sparked the Northland covid-19 lockdown in October 2021. A month earlier, the Privacy Commissioner had warned Police to do better when it came to complying with their privacy obligations in using automated number plate recognition (ANPR).

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Dec 2, 2022 Issue 43

Our history is no better

Continued from page 04 Creepage The Privacy Act regulates how organisations and businesses can collect, store, use and share individuals’ personal information through 13 privacy principles. Unlike other parts of the world, New Zealand’s law doesn’t depend on consent as the primary authority – compliance largely depends on the holder of the personal information having a legitimate purpose.

Principles 10 and 11 of the Act limit use and disclosure, respectively. State agencies collecting personal information for one purpose shouldn’t use or disclose it for any other purpose unless an exception applies. Agencies must believe on reasonable grounds that one of a set of exceptions exists to justify straying from their stated purpose and using information for another reason.

According to the Police’s policy on ANPR, number plate information comes from Police-owned and operated cameras, those owned by other government agencies and third-party operators (such as businesses, councils and government agencies) of security platforms Auror and SaferCities, the latter of which hosts nearly 5,000 cameras across 246 sites that some 4,000 Police officers can access via smartphones. The Police’s use of other organisations’ collected information is governed by information-sharing agreements, which spell out among other things what purposes underpin use and disclosure.

It’s incumbent on third-party ANPR operators to consider one of the exceptions under principle 11 – typically to avoid prejudicing investigations of offences or to prevent serious threats to the public or individuals – is met to justify disclosure to the Police.

Primary oversight of the ANPR policy rests with the Police’s Organisational Capability Governance Group, which ensures compliance checks, the automatic “purging” of outdated number plate information, proper training, and the policy remains fit-forpurpose.

The current ANPR policy has extended the length of time Police can retain number plate information. Storage deadlines for Police-owned and generated information are set at 60 days, six months or one year, depending on the type of investigation.

The longer that time has elapsed since the offence occurred, and the more serious the offence, the higher the level of authorisation needed for access. In 2014, on announcing the expansion of the then five-year-old Police ANPR technology, the organisation said “all information” was deleted after 48 hours.

The “creep” evident in the longer storage timeframes of surveillance cameras mustn’t happen with FRT, says Source Legal Partners founder Amy Kingston-Turner.

“When you’re talking about number plates, it’s not quite so scary – it’s only number plates. But when you’re talking about people’s faces and when they can then run those faces in some other software that says who you are, you’d have to be really clear about what the data was collected for and use it only for those purposes.”

Lloyd Gallagher

More notably, when hunting for the women whose travel sparked the Northland covid-19 lockdown in October 2021, the Police falsely reported cars as stolen to gain access to powerful databases that record number plates

One criticism levelled at FRT overseas is that it can double down on existing racial and gender biases.

Research over the last two decades has exposed divergent error rates across demographic groups in the US – women of colour are affected the most by some of the technology industry’s leading systems mistaking their identities. A US federal study found facial recognition algorithms worked poorly for people of colour, the elderly, women, and children, while middle-aged white men generally benefited from the highest accuracy rates.

No studies have specifically looked at the accuracy rates of algorithms on New Zealand’s population, according to Lynch and Chen’s independent review. However, they considered Māori are more likely to be most impacted by any expanded use of the technology, and Police should consult further.

“Given the challenges that FRT has faced with ‘darker skin tones’ globally, it is logical that these systems may produce more errors for Māori and Pasifika faces too,” they said.

Gallagher & Co managing partner Lloyd Gallagher, who convenes ADLS’s technology and law committee, says algorithms created overseas must be scrutinised here if they are to have relevance, although they are only as good as they are programmed.

“We have to start training it from 2022, not from 1978 or earlier, because all of that skewed statistical bias is going to come into it.

There’s no way to avoid it so it has to be clean.”

AI must be trained as neutrally as possible, he says. “There’s a real tension and difficulty because every single programmer has a preconception about how the maths needs to be done. If we try to neutralise that by saying ‘OK, we’re not going to programme it, we’re going to let itself learn from our history’, then our history is no better. Our history is just as biased as what we could programme.”

Protect the future Contemporary data, however, might be just as unhelpful.

Gallagher says fear – “especially after covid” – is breeding racial bias in society. “We can see that in America, everyone became panicked. They were worried about gun violence, they were worried about going to school because they might get shot, they can’t go to a movie theatre without being shot…If you’ve got a fear around violence, then that’s going to translate into your fear about who you think is committing that violence.”

While a perfectly neutral AI isn’t possible, a system full of checks and balances might be the next best thing, he says. One algorithm could collect the data and flag issues, for instance, while a second AI could review them to filter errors. Starting from scratch might take time, but “maybe that’s the correct approach”.

The idea of new technologies being used to suppress people is “terrifying”, Kingston-Turner adds, and highlights the necessity of a robust privacy regime. “It is definitely a space that needs careful consideration by our government now in order to protect our population in the future.” ■

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TRUST LAW

How the courts might expand the law around fiduciary relationships If Kós P is right, and New Zealand courts are likely to expand the number of fiduciary relationships, what changes might be made?

Anthony Grant

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Anthony Grant Kós P said last year that relationships “recognised [by the courts] as fiduciary are likely to grow” and in D v A [2022] NZCA 430 the Court of Appeal has done just that. It has held that parents owe enforceable fiduciary duties to their children.

The Court of Appeal relied in part on the Canadian Supreme Court’s decision in M(K) v M(H) [1992] 3 SCR 6 where it was held that parents owed fiduciary duties to their children.

This is one of many cases where the Canadian courts have expanded the role of fiduciary law. The extent to which they have shown their enthusiasm for the fiduciary concept has given rise to criticism from Australia.

The former Chief Justice of the Australian High Court, Sir Anthony Mason, was highly critical of the Canadians. He is said to have told the then Chief Justice of the Canadian Supreme Court, Bryan Dickson, that “he understood that in Canada there were three classes of people: those who are fiduciaries; those who are about to become fiduciaries; and judges who keep creating new fiduciary duties”.

Professor Paul Finn whose writings on the law about fiduciary obligations are highly regarded, has said,” The Canadian invocation of ‘the fiduciary’ can on occasion be quite breath-taking.”

Sir Anthony Mason so disapproved of the law about fiduciaries that he said “the fiduciary relationship is a concept in search of a principle.” To that, Professor Rotman, a distinguished Canadian academic, said the term fiduciary “is not a concept in search of a principle, but a vibrant and existing facet of law whose potential is only beginning to be tapped”.

If Kós P is right, and New Zealand courts are likely to expand the number of fiduciary relationships, what changes might be made?

These are some of the relationships the Canadian courts have considered. I will not clutter this short article with case citations.

In Norberg v Wynrib (1992), a doctor became aware of a female patient’s drug addiction and he prescribed drugs for

The fiduciary relationship is a concept in search of a principle her in exchange for sexual favours. It was held that he was in a fiduciary relationship with her and his exploitation of her was a breach of his duties.

In Szarfer v Chodos (1986), a lawyer learnt from his male client that he was having marital problems which arose from (among other things) his sexual impotence. The lawyer proceeded to initiate a sexual relationship with the client’s wife.

This was held to be a breach of his fiduciary duties and the client was awarded damages.

A mayor of Toronto, Mel Lastman, had an affair with a woman which resulted in the birth of two children.

They argued that the mayor’s “participation in the act of procreation” created a fiduciary relationship from which duties flowed to the children who were born as a result of the affair.

The claim failed.

In a separate proceeding, the mother of the two children claimed the mayor had breached a fiduciary duty to support them financially. This claim also failed. It was said to be an attempt to circumvent the child support legislation.

In Fein v Fein (2001), a mother sued her in-laws for breach of fiduciary duties stemming from their failure to adequately support the family’s formerly lavish lifestyle. When the parents separated, the in-laws withdrew the significant funding they had been giving to the family. They had paid for groceries, petrol, clothing, a house and holidays, and given the mother a substantial weekly allowance. The judge said the claim arose from a “withdrawal of largesse” but allowed the claim to proceed, saying it was not plain and obvious that it had no chance of success.

In Fehrfinger v Sun Media Corp (2002), a woman who had posed as a Sunshine Girl in a newspaper as part of the paper’s

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CASE NOTE

Overseas grandparents lose bid for parenting order The Family Court found there to be ‘very unhealthy family dynamics’ between N’s mother and grandmother

Sacha Jugum Care of Children Act 2004 – appeal by 13-year-old child, his litigation guardian and his mother against a Family Court decision that granted the child’s overseas grandparents contact with the child – applicable principles – procedure – paramountcy of the best interests of the child – child’s wishes, age and maturity – family dynamics and “dysfunction” – nature of any risk to child – mitigation of risk – safety of child – policy factors – legislative policy and purpose – role of grandparents – precedent – appeal allowed – the grandparents’ original application for leave is granted but their application for parenting orders for contact with their grandchild is declined

JK v KL [2022] NZHC 2503 (Jagose J) Please note: ■ the parties’ names are anonymised in this decision; and ■ under the Care of Children Act 2004, parents, guardians and step-parents of a child can apply for parenting orders as of right. However, grandparents, other family members and other interested parties usually need to apply for leave to apply for a parenting order. The situation is different if the child’s parent has died or is not having contact with the child. See s 47 of the Care of Children Act 2004 for specific statutory criteria. In this present case, the child’s grandparents applied for the leave of the court as they were estranged from their daughter (the child’s mother) and they nonetheless wanted a relationship with their grandchild The Family Court had granted grandparents (G) leave to apply for a parenting order and also granted their substantive application for a parenting order in relation to contact with N, their 13-year-old grandson.

G lived in the United States and so was granted a brief annual visit, letters, gifts, electronic contact and other specific forms of contact and communication with N, who lived in New Zealand. The Family Court noted this would allow the cementing of a relationship between N and G until the parenting orders expired when N turned 16 years old.

The Family Court found that any risk to N of psychological abuse and/or negative adult comments, or alleged undermining or manipulative behaviour by G could be managed by conditions around contact and the “up-skilling” of N to recognise G’s behaviour

and develop strategies to deal with it.

The Family Court found there to be “very unhealthy family dynamics” between N’s mother and grandmother. N, represented by a lawyer for the child, did not want contact with G due to concerns he had about G’s previous alleged behaviour towards him (or at least, he did not want negative contact).

N was said to be mature for his age with views that should be given significant weight. N, together with his mother and his litigation guardian (together, the appellants (A)) now appeal the Family Court decision.

N’s father supported G having contact with N. A pointed to the dysfunctional relationship between G and N’s mother and the risk identified in the Family Court hearing.

A argued that N’s safety and best interests were paramount and that allowing contact in this manner with N being “upskilled” to deal with adult behaviour did not put his safety or best interests first and was not an appropriate way to manage the identified risk or ensure N’s safety.

A also referred to the importance of N’s self-determination and his stated views about contact with G. Applicable principles – detailed assessment of procedural matters, and the factors assessed by the Family Court in relation to G being granted leave to apply for a parenting order – whether the Family Court merged the consideration of the granting of leave with G’s substantive application – extensive analysis of legislative provisions around the rights of children and the policy focus of the Care of Children Act 2004 – reference to N’s right to have a relationship with his wider family – G had previously contributed financially to the costs of N’s education – detailed consideration of N’s views as expressed to lawyer for the child [see in particular paragraphs 35-36 of the decision] – the High Court saw N’s views in this appeal as “highly influential” and placed “principal reliance” on the “careful and measured” report of lawyer for the child – recognition of N’s own individual agency – whether a parenting order for G would cause a family split, rather than family coherence – extensive reference to precedent.

Held A’s appeal is upheld – G’s application for leave to apply for a parenting order is granted, but G’s application for a parenting order in relation to contact [G’s substantive application] is denied. ■ Sacha Jugum is a senior solicitor at Brookfields and editor of The Bulletin ■ 07

CONSTITUTIONAL LAW/OPINION

Seeding division by requiring lawyers to ‘honour the treaty’ It is not for lawyers to uphold the treaty or to promote upholding of the principles of the treaty or to promote a particular group’s interests in society. It is the job of lawyers as professionals to represent opposing parties’ interests in treaty and other litigation or in the handling of their legal affairs, not to be activists Warren Pyke

Warren Pyke

In an article in LawNews in issue 40, Gary Judd KC considered a proposal that the Treaty of Waitangi be incorporated into legislation governing lawyers.

Judd considered this proposal to be redundant, when considered against the “superordinate” fundamental obligation to uphold the rule of law in s 4 of the Lawyers and Conveyancers Act. This is not the only redundant proposal contained in the New Zealand Law Society’s ‘own goal’ independent review, but it is the only one I will discuss.

Judd says the framers of any amendments to the Lawyers and Conveyancers Act must act on the principle of equality and reject a “fashionable approach” of suggesting a special place for one racial or ethnic group or another. In saying this, he does not eschew mention of the treaty in the legislation, but he recommends it be designed to underline the principle of equality before the law.

I agree with his summary of the legal effect of the Treaty of Waitangi and won’t repeat it at length. I will moreover assume the reader has read his article.

Judd opines that the treaty did not presage a social revolution. The history that followed the 1840 signing of the treaty is complex and required scholarship to understand (readily accessible nowadays in Waitangi Tribunal reports).

No partnership As to a partnership between two peoples, that was not what the treaty was about. It was about good governance, property rights and, for Māori, self-determination and 08

protection of their taonga.

As one commentator has observed, to move from the relatively simple prescription in the text of the treaty to a legal order based upon ideas of partnership and special relationships is not done by an ineluctable logic, but by invention (David Round Judicial Activism and the Treaty: The Pendulum Returns (2000) 9 Otago LR 653).

Moreover, some ariki refused to sign up, two notable examples being Te Wherewhero of Waikato and Te Heu Heu of Tuwharetoa. Ranginui Walker has observed that the word of these ariki placed the populous centres of the North Island largely outside the treaty (Ranginui Walker, Ka Whawhai Tonu Matou [Struggle Without End], revised ed, Penguin Books, Auckland, 2004, at 97).

Judd observes that the treaty was not between the Crown and a race. He opines that the promise of the treaty was to protect the rights of individuals, including Māori to their tikanga (citing Dame Anne Salmond’s work published by Newsroom in late 2021). This protection, Judd says, was not of identity, as Māori or non-Māori, but of equality before the law.

He identifies the rule of law as speaking to the proposition that everyone under the law is equal. This is an interesting reading, since equality is not explicitly mentioned in s 4 of the Lawyers and Conveyancers Act (it is mentioned in other legislation, for example the Equal Pay Act 1972 and the Human Rights Act 1993). But Judd’s reading of equality as part of the rule of law is undoubtedly correct.

The late Sir Thomas Bingham, in his masterly survey of the rule of law, says: “Most British people today would, I think, rightly regard equality before the law as a cornerstone of our society.” (Tom Bingham, The Rule of Law, Allen Lane, London, 2010, chapter 5.)

This supposition applies equally to modern-day New Zealanders. As Sir Thomas observes, equality before the law is a relatively recent addition to the common law: the first unequivocal marker was the granting of a writ of habeas corpus to a slave by Lord Mansfield in Somerset v Stewart (1772) Lofft I, 20 ST I (statue topplers, please note).

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Dec 2, 2022 Issue 43

Continued from page 08

The treaty was not, and is not, about “iwi versus kiwi”, as Judd observes: such divisive statements posit a false dichotomy. I add that by the Third Article of the Treaty granting to Māori the protection of the Crown and the rights and privileges of British subjects, the treaty affirmed that these things were to be enjoyed by all British subjects in New Zealand. These legal protections, rights and privileges carry over into the modern era and no-one can doubt that they apply equally to all, as part of New Zealand’s legal order.

US interpretations Equality before the law in an open society may be compared to the so-called equal protection clause of the Fourteenth Amendment to the US Constitution, which in part says: “...nor deny to any person...the equal protection of the laws.”

The word “person”, a hotly contested term in the context of abortion rights in the United States, has been argued by some to refer only to people of colour (a duty on lawyers to promote Māori interests may lead to some to argue for a similarly onesided application).

Abundant evidence from the congressional debates shows the framers of the US Constitution intended the protections to apply equally, to all people. For example, Senator Lyman Trumball, during the congressional debates, spoke of the “great object of securing to every human being within the jurisdiction of the Republic equal rights before the law.” (Quoted by Robert E Bork, A Time to Speak, ISI Books, Wilmington, Del, 2009, at page 356.)

Notions of equality were already alive in the common law world at the time of the signing of the treaty. Just over 100 years later, Dr Martin Luther King carried the torch of equality when he said at the march for integrated schools, on 18 April 1959: “Make a career of humanity. Commit yourself to the noble struggle for equal rights. You will make a better person of yourself, a greater nation of your country, and a finer world to live in.”

The right of equality under the law is firmly established. But some of today’s so-called progressives do not appear to share this spirit, rather they offer divisive ideologies based on identity that “…fracture nations and lead only to their destruction.”

(William P Barr, One Damn Thing After Another, Harper Collins, New York, 2022, at page 563.)

Rule of law Looking at Judd’s arguments in this light, I make some observations of my own, drawing in part from my experience on the board of the NZLS and as a serving District President at the time of the 2006 reform.

Section 4 of the Act (which affirms four fundamental obligations) was seen at the time as a valuable statutory recognition of core legal values of a modern open society, adopting Karl Popper’s apt working label for modern democratic states governed by the rule of law. It remains so.

Lawyers should be proud that it is their governing legislation which embraces such an important statement of the modern rule of law which may one day find its way into a written constitution.

Moreover, many of the practice rules and the statutory disciplinary regime are framed by s 4 of the Act: we tinker with this carefully designed legislative scheme at the risk of undermining these values.

Lawyers were not parties to the treaty, so the proposal is a non-sequitur. It is not for lawyers to uphold the treaty, or to promote upholding of the principles of the treaty or to promote a particular group’s interests in society. It is the job of lawyers as professionals to represent opposing parties’ interests in treaty and other litigation or in the handling of their legal affairs, not to be activists.

The fishhooks Casting such a duty as is proposed upon lawyers is not just abhorrent, as Judd describes it, it cuts across the core principle of the independence of lawyers (also one of the fundamental obligations).

It potentially undermines the duty on lawyers to protect clients’ interests equally before the law, particularly if a duty to promote Māori interests makes lawyers pull their punches in litigation for fear of transgressing the Act. These are very real conundrums which cannot be ignored because of an aspirational desire to promote, or be seen to promote, a disadvantaged group.

Acting in litigation involving iwi and other interests (such as farmers on whose land urupa exist), I can say from experience, is challenging: adding an ‘uphold the treaty’ duty to the Act could be construed to contain within its meaning controls on lawyers’ advocacy for iwi and opposing interests, such as the Crown; it may serve more generally to dissuade lawyers from acting in what is often difficult litigation (some may think the headache of compliance with such a duty simply not worth their while).

We should bear in mind, as Ranginui Walker cogently recounts (op cit), that ongoing disputes between the treaty parties, including up to the present day, are for Māori, ka whawhai tonu matou. We ought to understand this perspective and continue to focus on our core functions, fighting for our clients’ best interests, whoever they may be (which is another one of the fundamental obligations).

It potentially undermines the duty on lawyers to protect clients’ interests equally before the law, particularly if a duty to promote Māori interests makes lawyers pull their punches in litigation for fear of transgressing the Act

Continued on page 10 09

Continued from page 09 In my experience, what Māori litigants want from their lawyers is for them to be on their side and fight for the outcome they desire, which is what other litigants want – that is to say, professionalism, results and loyalty. The fundamental obligations already require this of us.

What we need least in our legislation is a new amorphous duty. Enacting the proposed legal obligation on lawyers will achieve nothing of value and is faintly absurd. And where will it stop? Will it amount to professional misconduct for which lawyers may be disciplined if they merely speak ill of the treaty or advance an interpretation that does not accord with a government of the day’s opinion as the ‘one source of truth’?

Lord Sumption has observed that western politicians’ appetite for coercive compliance has increased after observing the results achieved during the pandemic, and there are signs they will seek to apply coercive methods in other policy areas (Jonathan Sumption, Law in a Time of Crisis, Profile Books Ltd, London, 2021, chapter 12). Regulatory bodies tend to dance to coercive tunes; the only effective redress is the High Court.

Lawyers are already being charged with breaching the rule of law, something which is problematic because the boundaries in this context are not well-established. For example, there is

10

a high degree of muddle about whether failing to uphold the rule of law includes, say, being convicted for offences, such as obstruction or drink-driving.

The regulator is showing signs of intrusion into lawyers’ personal lives, something the designers of the Act did not intend. A disciplinary offence of bad-mouthing the treaty or compromising Māori interests could run roughshod over lawyers’ rights to freedom of thought, conscience and expression, stifling lawyers’ thoughts and speech over such issues, on which they are well placed to contribute to public and political discussions.

The treaty does not need lawyers’ endorsement. In aspiring to protect the interests of Māori under the treaty, these reformers fall into the trap of many modern ‘progressive’ thinkers; they conflate aspirational statements and noble intentions with effective policies that may result in the achievement of desirable outcomes.

The proposal is not just redundant, it is ill-thought through and may undermine supremely important rights. Moreover, it will potentially create an irreconcilable clash with other fundamental obligations on lawyers. None of these outcomes will serve to better protect the interests of the very people the reformers apparently seek to help. ■ Warren Pyke is an Auckland barrister ■

Judd’s reading of equality as part of the rule of law is undoubtedly correct

Dec 2, 2022 Issue 43

Briefs Law school rankings Harvard, Yale and Berkeley Law Schools have pulled out of the US News rankings, citing flaws in the way the ratings are determined.

They say the methodology devalues schools’ efforts to recruit poor and working class students, provide financial aid determined on need and encourage students to take low-paid public services jobs after graduation. The US News and World Report ranks the nation’s best law schools. Yale has the number one spot this year and has consistently been the top-ranking school for the past 30 years. This year it is followed

by Stanford and the University of Chicago, with Columbia and Harvard ranking fourth equal. US News says it agrees the test scores don’t tell an applicant’s full story and law schools will make their own decisions, based on the mission of each school. But it says the American Bar Association still requires standardised tests for almost all law schools.

Remit change?

The Reserve Bank has asked the government to remove from its remit the requirement to assess the impact of monetary policy on house prices.

The requirement was added in February 2021 as a response to runaway house price inflation. The bank acknowledges its loose monetary policy contributed to the situation but says it played only “a bit part”. ■

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Copeland Ashcroft is delighted to welcome Christie McGregor to the firm as a new partner.

Christie joined the firm’s Tauranga office on 22 November 2022.

Janet Copeland, Managing Partner, said “Christie brings a wealth of experience and will be a real asset to the Tauranga team and our wider New Zealand business.

Not only will she bring substantial high-level skill and experience”, “she will add tremendous benefit to our clients with her holistic approach to resolution of issues.”

Partner Kate Ashcroft couldn’t agree more: “Christie is the whole package – an expert in her field and just a lovely person. We are very happy to welcome her to our team and look forward to working closely together.”

“I am excited to be joining a female-led partnership that aligns with my values,” says Christie. “Joining Copeland Ashcroft, a specialist employment law firm, just made sense. Here, I can focus on delivering complete solutions that only a specialist firm can offer.”

Copeland Ashcroft is a workplace law specialist firm offering employment, health and safety and immigration advice to employers and employees across New Zealand. With access to offices in 24 locations throughout New Zealand, we are available to meet clients in any of them or virtually, at clients’ convenience.

11

PROFILE

Meet Nick Chisnall KC Improving access to justice is a really critical obligation resting on barristers, both in the civil and criminal fields, and my greatest concern is about attrition – we are getting thin in the ranks

Nick Chisnall KC

12

Reweti Kohere

The interview below has been edited for clarity.

Getting “that” phone call from the Attorney-General was an overwhelming relief for new Silk Nick Chisnall, who admits he wasn’t sure which way it would fall.

The appointment hasn’t sunk in, he says, “just simply because it’s not something you’d ever take for granted or expect. There are all sorts of things in play and very, very worthy people applying. I have a degree of imposter syndrome about it.”

Litigation wasn’t Chisnall’s initial career. Having been admitted to the Bar in December 1999, he started as a commercial and property lawyer at Gibson Sheat in January 2000 before moving into employment law.

But it was in that practice area that he realised he wanted to appear in court full-time. He joined the Police as a prosecutor in 2003, then Tauranga firm Hollister-Jones Lellman and Luke, then Cunningham & Clere in Wellington.

Chisnall then did stints in the Crown Law Office and the Public Defence Service before moving to the independent Bar in 2017.

For almost all the time Chisnall has practised as a barrister sole. Among his clients, Alan Hall’s case has brought him a “great deal of personal anxiety”. Sentenced to prison in 1986 for murdering Auckland father of five Arthur Easton, Hall served 19 years before he was paroled in March 2022. By mid-year, on the eve of a Supreme Court hearing of Hall’s appeal, Crown Law conceded he shouldn’t have been convicted and that a substantial miscarriage of justice had occurred. The Supreme Court ultimately – and unanimously – agreed, quashing the conviction and acquitting Hall. Chisnall says: “I felt the weight on my shoulders far more from that case than any other I’ve ever dealt with.”

LawNews: Had you always aspired to take silk?

Chisnall: No, I didn’t. Again, to dive into the path I took, it just wasn’t ever something I turned my mind to until I went to the Bar. It was obviously a position I held in very high regard, having done trials and appeals on the other side of QCs or KCs. Quite frankly, I just thought it was that kind of aspiration that wasn’t realistic. So it wasn’t something I really had even thought about achieving myself. It was only after I made the move to the Bar from the PDS and got to rub shoulders with people who are Silks that started me thinking about what the role entails and the responsibilities it carries. But it wasn’t ever something I spent a lot of time thinking about.

LawNews: Should we retain the title of King’s Counsel or revert to “Senior Counsel”?

Chisnall: I don’t have a strong opinion about it. I suppose the point is we tried Senior Counsel briefly and I don’t think we were ready for it. King’s Counsel, or Queen’s Counsel as it was, carries a degree of currency. But really I wouldn’t change it for the sake of change. I think it’s part of a larger question around whether, in our modern society, there’s still any room to be part of the Commonwealth or we should be pursuing a republic.

One follows the other, but I wouldn’t make the change myself unless that was part of a wider shift away from the monarchy. Change in title doesn’t bring about change in the system. There’s always going to be a place for

Continued on page 15

Dec 2, 2022 Issue 43

Photo: Mats Silvan / Getty Images

working optimally in New Zealand and these are addressed by the recommendations.

■ The Act does not make enough allowance for a riskbased approach, with some requirements being overly prescriptive. There is insufficient guidance to help businesses take flexible risk-based approaches.

Formal recognition of the benefit of moving towards a proportionate response to actual risk will be welcomed by a wide range of reporting entities.

AML/CFT

Key recommendations

How the revamped AML/CFT regulations might look We have contended for some time that the AML/CFT regime’s ‘one size fits all’ approach is not as effective as it could be, with the rules-based compliance costs often a disproportionate burden for businesses

Pauline Ho, Henry Brandts-Giesen & Gary Spalding In early November 2022, the Ministry of Justice (MoJ) released its much anticipated report on the review of the Anti-Money Laundering and Countering Financing of Terrorism Act 2009. The 256-page document, containing 215 recommendations, was produced to assess how the AML/CFT regime has performed since 2017 and whether any amendments should be made to the Act. The report follows the statutory review of the Act that began in July 2021, followed by a public consultation that concluded in June 2022. The report also considered the findings identified by the Financial Action Task Force’s 2020 Mutual Evaluation on New Zealand published in May 2021.

The report had two main conclusions: ■ The Act generally provides a sound framework to achieve its purpose of, amongst other things, detecting and deterring money laundering and terrorism financing.

However, numerous issues prevent the regime from

Given the length of the report, we won’t cover all the recommendations in detail in this article. But the following points will interest most sectors.

■ Ensuring a risk-based approach: the Act’s purpose is amended to expressly reference a risk-based approach.

There should be no inclusion of the prevention of money laundering and terrorism financing in the Act’s purposes, but it is recommended a reference to combatting proliferation financing is added as a general purpose.

■ Financial sanctions: the Act is used to support financial sanction obligations, such as those in the Russia Sanctions Act 2022.

■ Territorial scope: the Act defines its territorial scope for when overseas businesses provide captured activities to New Zealand. Further analysis is needed on how it should be defined, but supervisor guidance is needed to give clarity in the interim.

■ Registration: developing options for a comprehensive reporting entity registration regime, to be coordinated with MBIE. ■ Penalties: the available penalties under the Act are increased, especially for more serious non-compliance.

A prescribed list of specific aggravating and mitigating factors has been introduced to ensure the penalties are risk-based and proportionate in their application. Civil penalties are also suggested against employees, directors and senior managers in appropriate circumstances.

■ Identity Verification Code of Practice (IVCOP): IVCOP is replaced with the Digital Identity Trust Services Framework (once it is enacted) as the new code of practice.

■ Address verification: removing the requirement for address verification, other than for enhanced CDD. ■ Reliance on other reporting entities: further analysis to consider whether duplication across multiple reporting entities can be reduced, eg, where reliance on CDD done by third parties may be allowed.

■ Funding: further consultation is needed to explore

Continued on page 15 13

Cruickshanks Solicitors Privy Council Agents • • • •

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

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BIBI Nazma

TUIVA Rainga

• Late of 5 Mataoho Lane, Mangere East, Auckland • Domestic duties • Aged 58 / Died 30’07’22

• Late of 10 Garelja Road, Henderson, Auckland • Retired process worker • Aged 71 / Died 31’01’06

Continued from page 06

daily Sunshine Girl feature, alleged the photographer who took the pictures and the publisher of the newspaper owed fiduciary duties to her that were breached when the women were subsequently harassed, intimidated and inappropriately touched or coerced to pose nude or topless “as a result of the publicity that was given in the paper”.

If that cause of action had been successful, a large proportion of the tabloid press in the Western world would be in trouble every day. The optimistic claim was dismissed.

In Proctor v Canada (2002), a woman who at the age of 17 was convicted of a robbery was sentenced to prison in Canada and subjected, with many others, to an appalling form of medical experimentation.

She was subjected to electroshock therapy, sensory deprivation and the forced ingestion of LSD. She ended up with brain damage and a drug addiction.

This form of experimentation, which was partly funded by the CIA, was used in Canada not only on prisoners but also on mental hospital patients.

Unfortunately for the lawyers, the Proctor case was settled without a ruling on whether prison authorities owe fiduciary duties to those in their care.

If a New Zealand court today were asked whether prison authorities and hospital authorities have a fiduciary obligation not to deliberately harm the health of people committed to their care, I think it would likely be held that there is a fiduciary relationship between them which will be breached when the authorities deliberately cause harm.

In Stewart v Canadian Broadcasting Corp, a judge found that a prominent criminal defence lawyer had breached his fiduciary duties to a former client by dramatising the client’s case on a nationally televised program 13 years after the events which led to his conviction for criminal negligence causing death.

The judge limited the financial relief the lawyer had to pay because he “was not alone in not keeping up with the wave of changes in fiduciary principles”.

This brief account is intended as a glimpse into how there appears to be significant potential for the courts to expand the number of relationships that might be made the subject of fiduciary accountability. ■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■

TUIVA Akangaro • Late of 10 Garelja Road, Henderson, Auckland • Retired road worker • Aged 74 / Died 13’05’06

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

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

Telephones, internet connection, printing and secretarial services also available and some furniture available.

Cost depends on office size and range from $150 – $300 per week plus gst.

No long-term commitment required.

Photographs of the Chambers can be viewed at www.hco.co.nz/gallery.

Contact: Shane Hussey for further details, Shane@hco.co.nz 09 300 5481

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Dec 2, 2022 Issue 43

Continued from page 12 senior counsel, whatever the title, and to ensure the independence of the Bar. But doing it in a piecemeal way doesn’t do justice to the larger question.

LawNews: Which significant matter that you’ve been involved over the last three years, stands out the most and why?

Chisnall: I have to say Alan Hall. I don’t think anybody would be surprised if I said something else but obviously it’s a case that’s a miscarriage of justice writ large, where there were serial failings in the system.

For me it’s significant because, not so much the fact we put it right, but how long it took to do it. It was a case that brought a great deal of personal anxiety to me, knowing that Alan is innocent.

But, that being said, I don’t think it’s an outlier. And I don’t think it’s starkly different to other cases I’ve had the good fortune to be involved in. Perhaps what

Continued from page 13

a hybrid public/private funding model to partially support the regime’s operation, as it is currently under-resourced.

The report contains many more recommendations, including permission for on-site inspections of businesses operating from residential homes, reviewing the meaning of “in the ordinary course of business” (and for the supervisors to provide further guidance in the meantime), regulating auditors, reviewing the requirement for mandatory enhanced CDD for trusts and reviewing the Prescribed Transactions Reports (PTR) regulations to ensure the information needed is limited only to information necessary for the Financial Intelligence Unit (FIU) to produce its relevant intelligence products.

Each recommendation has been assigned one or more implementation mechanisms to give it effect.

These are legislative, regulatory, code of practice, ministerial exemption and operational change (eg, supervisor guidance). The method of implementation will guide associated timeframes for the relevant recommendation, with legislative changes expected to take the longest to implement.

Changes On 7 November, Justice Minister Kiri Allan announced changes to improve the AML/CFT regime, saying, “[w]e’ve listened to businesses and agencies and

distinguishes it is the degree of publicity it’s received.

But as an appellate lawyer, you’re often dealing with real miscarriages of justice and it’s probably a paradigm example of that.

LawNews: How can barristers continue to improve access to justice?

Chisnall: By being present. I’ve been asked before whether taking silk will change anything for me and I honestly don’t know because it’s too early to say.

But what I do know is that it won’t change the focus of my practice. I already consider that I can bring about greater access to justice as a criminal lawyer and one who undertakes legal aid work. Improving access to justice is a really critical obligation resting on barristers, both in the civil and criminal fields, and my greatest concern is about attrition – we are getting thin in the ranks. Criminal law is no longer seen as an obvious and desired career path among young practitioners, whereas before it was. That really concerns me. It says a lot about the need to make

heard what wasn’t working for them. We’re now taking immediate action to improve the regime’s effectiveness.”

New exposure draft regulations are expected to be released to address certain recommendations in the report, including: ■ relaxing the requirement on businesses to verify the address of most customers (as referenced above); ■ extending the timeframe for businesses to submit PTRs from 10 to 20 days; and ■ exempting registered charities from AML/CFT obligations when they are providing small loans (less than $6,000), with some conditions.

The minister also said further changes will address areas of known risk or vulnerabilities, improving efficiencies and reducing compliance costs and improving compliance with international money laundering standards.

Our take We have contended for some time that the AML/CFT regime’s “one size fits all” approach is not as effective as it could be, with the rules-based compliance costs often a disproportionate burden for businesses.

IVCOP, in particular, is not fit for purpose. The report, and the signal for regulatory changes, are positive initial steps so the regime can be put on a more flexible and practical risk-based footing, both in application and in terms of actual compliance.

This is an important shift in approach, recognising

sure we keep our profession well, that we support them and that we foster their careers. That requires strong leadership. We’ve seen that already happening and that’s a really positive thing. But I think access to justice is our single greatest issue.

You’ve got to walk the talk, which means – and certainly I say this as somebody in the position of responsibility that I hold – stepping up and demonstrating leadership and ensuring you take the hard cases. If we don’t, then the rank of King’s Counsel doesn’t hold any real weight. That’s a responsibility that falls on the shoulders of everybody who’s given the opportunity to take silk.

But the fact is, the Bar is replete with hardworking, intelligent, committed senior lawyers and many junior and intermediate lawyers who may not necessarily attain the rank but deserve equal recognition. Perhaps, belatedly, we’re recognising that the system of justice is only as good as the participants who are committed to seeing justice done. Certainly, from my perspective, that’s where I think I’m able to lend my weight. ■

This is an important shift in approach, recognising it is both reasonable and sensible for businesses to have some latitude to assess their AML/ CFT risk

it is both reasonable and sensible for businesses to have some latitude to assess their AML/CFT risk in the circumstances of their business, the matter and the client, and then apply countermeasures proportionate to the risks.

We welcome regulatory changes being introduced in a relatively short timeframe and in particular the intention to make it easier for small businesses and consumers to comply with AML/CFT requirements.

It is expected the draft regulations will be released by the end of 2022 for consultation. The MoJ has also indicated a discussion document to cover further changes to the Act is planned for the second quarter of 2023. ■ Pauline Ho, special counsel, Henry Brandts-Giesen, partner and Gary Spalding, AML compliance officer at Dentons Kensington Swan ■

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FEATURED CPD

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Chair Paul David KC

IN PERSON

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