LawNews - Issue 43

NEWS Dec 1, 2023 Issue 43

Inside ■ PROPERTY

Property managers bill destined for the bin P06-07

■ COMMITTEES

Meet committee convenor Fiona Hall P08-11

Where legal landmines might lie for the incoming

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GOVERNMENT

Contents 03-04

Opinion: How the treaty principles came to be a legal and political minefield

JUDICIARY DEMOCRACY SOVEREIGNTY

LawNews is an official publication of The Law Association Inc. Editor: Jenni McManus Publisher: The Law Association Inc.

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Dec 1, 2023 Issue 43

POLITICS/OPINION

Will this new government roll out change or be rolled over?

Sir Geoffrey Palmer

Chris Trotter

Activist judges?

‘Some common law rights presumably lie so deep that even Parliament cannot overturn them’ – Taylor v NZ Poultry Board [1984] 1 NZLR 394,398 (Cooke J) A week ago, criminal barrister Lucy Rogers was arrested and hand-cuffed by police for holding up a hand-lettered sign. The words on the sign read, “selective condemnation of genocide is evil.”

Rogers was not obstructing the footpath or in any other way inconveniencing passers-by. She was arrested on a breach of the peace charge because her sign (which the police officers destroyed) might have offended the angry throng of proPalestinian protesters marching down Auckland’s Queen Street, just a few metres from where Rogers was standing.

Her arrest took place more than a month after New Zealanders voted to change their government. One of the most powerful driving forces behind that change was the widespread apprehension that New Zealanders’ civil rights were under attack – their freedom of expression, in particular. And yet, police constables still felt free to abrogate the rights of an officer of the court for peacefully communicating her political beliefs to her fellow citizens.

They did this because they feared the protest marchers would react violently to the sign she was holding up. Put another way, the police were enforcing the “heckler’s veto”.

This story bears retelling for what it reveals about the enormous challenges the incoming National-Act-NZ First coalition government is likely to face as it attempts to roll-back the changes of the past six years. The first instinct of those police officers was to protect the rights of the citizens making

the most noise – to the point of arresting a woman for, essentially, exercising her Bill of Rights Act-guaranteed freedom of expression.

The constables had learned nothing from the assault on Posey Parker and her followers in Albert Park back in March. They had absorbed nothing from the fierce constitutional debates that have raged across social media in the months since. And they clearly cared nothing for the electorate’s judgment on those politicians and parties who insisted on construing free speech as hate speech. They were still protecting the angry and the strong. Still taking sides. Still ignoring the law.

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This petty failure to defend the rights of a single citizen will pale into insignificance when the new government begins the long-overdue process of dismantling the ramshackle judicial edifice that has grown up around Crown-Māori relations

Andrew Geddis

Put another way, the police were enforcing the ‘heckler’s veto’

This petty failure to defend the rights of a single citizen will pale into insignificance, however, when the new government begins the long-overdue process of dismantling the ramshackle judicial edifice that has grown up around Crown-Māori relations over the 36 years since Lord Cooke of Thorndon, then an activist judge of the Court of Appeal, attempted to do what the New Zealand legislature had been too pusillanimous to do – set forth clearly the principles of the Treaty of Waitangi (New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641).

That the legislature’s pusillanimity may have been intentional should not be discounted. It was, after all, the author of the state-owned enterprises legislation which Justice Cooke was interpreting, the Rt Hon Sir Geoffrey Palmer, who informed a symposium on the Treaty of Waitangi and the constitution, held on 12 June 2013, that “insulation from the ravages of extreme opinion has been achieved”.

The “extreme opinion” alluded to was presumably referencing treaty-sceptical politicians and the citizens who elect them.

Certainly it is difficult to believe that a former law professor could have included a reference to “the principles of the Treaty of Waitangi” in an Act of Parliament entirely unaware that he was handing over the job of interpreting the meaning of those principles to persons the public could not remove from office.

If another law professor, Otago’s Andrew Geddis, is to be believed, then the job begun by Sir Geoffrey is now complete.

Writing for The Spinoff website, Geddis pours cold water on the new government’s pledge to properly define, or remove

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completely, all references to the principles of the treaty in legislation.

“That sounds grand and overarching,” says Geddis, “but how will it sit with Supreme Court dicta stating that the way treaty principle provisions are worded in legislation doesn’t really matter … and that you probably don’t even need them anyway, given how much te Tiriti is a part of our constitutional fabric.”

In the ears of the majority of New Zealanders who voted for the treaty policies of National, Act and NZ First, that “Supreme Court dicta” may well sound like “Supreme Court dictatorship”, upping the pressure on the government to reaffirm the doctrine of parliamentary sovereignty and remind the Supreme Court that (its name notwithstanding) it is the House of Representatives – elected by the New Zealand people – that remains the highest court in the land.

Some legal academics contend that the House should decline to exert its power over the judiciary. Khylee Quince, Associate Professor and Dean of Law at AUT, argues that politicians risk upsetting the “delicate balance” separating the legislature from the judiciary if they insist upon their sovereignty. “Strictly speaking, of course, Parliament can do what it likes, but the delicate balance of separation of powers is protected by judicial independence from unnecessary parliamentary incursion into its decision-making function.”

Everything would appear to turn on that word “unnecessary”. A judiciary that has spent the past 36 years arrogating to itself the power to not only define the meaning of New Zealand’s informal constitution (which, it insists, includes the Treaty of Waitangi) but also to keep it safe from “the ravages of extreme opinion”, is about to discover the actual limits of “judicial independence” as the House mounts what National, Act and NZ First, along with the electors who installed them in the Beehive, believe to be a very necessary – and long overdue – incursion into the territory of judges who have become lawmakers unto themselves.

Arrogated power Figuratively, and some are now predicting literally, this restoration

Khylee Quince

Police constables still felt free to abrogate the rights of an officer of the court for peacefully communicating her political beliefs to her fellow citizens

of the balance between judges and politicians promises to be a bloody affair because the judiciary does not stand alone in its battle to protect the relationship it has so painstakingly crafted between the Crown and Māori.

Not only does it have academia, the upper echelons of the public service and the mainstream news media to defend its arrogated powers, but it can also count on a fifth column of Opposition MPs to carry the fight into the House of Representatives itself.

All of which points to what has always lain at the heart of the so-called “culture wars” – the unwavering belief of the highlyeducated and professionally credentialled that if the democratic process delivers power into the hands of the ignorant and the bigoted, then it has shown itself to be in urgent need of substantive modification.

That “deplorables” could end up in charge is simply unacceptable to a professional-managerial class that has, over the past 40 years, turned itself into the “officer class” of the neoliberal state.

That word “officer” brings us right back to where we started: to the glass and steel canyon of Queen Street reverberating with the angry cries of thousands of protesters. Not, this time, in support of the “decolonisation” of Palestine, but demanding the radical decolonisation of Aotearoa: right here, right now.

This time it’s Rangatahi Māori, supported by Rangatahi Pakeha, unequivocally rejecting the right of a House of Representatives dominated by National, Act and NZ First MPs to define the principles of Te Tiriti.

In this cause they are supported by Green and Te Pāti Māori MPs, “progressive” law professors, senior public servants, mainstream journalists and maybe, just maybe, the justices of the Supreme Court of New Zealand.

Now, ask yourself: on whose side will the police (and, in extremis, the NZ Defence Force) stand? Will they defend the democratically-elected government of New Zealand or will they defend the side making the most noise?

Better still, ask Lucy Rogers. ■ Chris Trotter has been a political commentator for more than 30 years. He is the author of the Bowalley Road blog ■

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Dec 1, 2023 Issue 43

GOVERNANCE/OPINION

Lawyers urged to have their say on proposed NZLS board changes The NZLS governance structure needs radical overhaul. What exists now is antithetical to good governance practices Gary Judd KC The New Zealand Law Society (NZLS) proposes to amend its Constitution.

The October 2023 consultation document claims the changes “would bring in good governance practices in respect of the number of board members, their composition, tenure and the structure of the board, along with the other changes.” The consultation period runs until 5 pm Wednesday 20 December.

The NZLS council is empowered to make changes to the constitution without the approval of the membership. This is the way it has been since the constitution was adopted by the council following the enactment of the Lawyers and Conveyancers Act 2006.

The board has the principal functions of acting as the executive body of the law society to manage the affairs of the society and to implement its functions.

It has all the functions and powers that the council from time-to-time delegates to the board and the functions and powers conferred on it by the constitution (clause 10 of Part B. Part A contained transitional provisions which are now immaterial).

The board has five members: the president and the four vice-presidents.

NZLS intends to increase the size of the board to five to seven members by adding up to four “independent” board members. The independent members are to be appointed by the board.

NZLS has a highly unusual governance structure. Usually, the administrators of membership organisations are elected by the members, the organisation must hold general meetings and the constitution can be changed only with the support of either a majority or a special majority of the members at a meeting convened for the purpose. The society’s constitution requires none of these things.

The intended changes add to the board’s power and to the number of unelected officials exercising power and control over matters affecting the profession.

In my opinion, the governance structure needs radical overhaul. What exists now is antithetical to good governance practices. The intended changes will exacerbate the situation. I have made a submission to that effect.

I have asked that my submission be circulated to the profession so it can be considered with the consultation document. As NZLS is not noted for publishing views contrary to the position it has taken, I expect it will not be circulated. I am grateful to LawNews for agreeing to publish it. It can be found on page 16. ■

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PROPERTY

Labour’s Bill to license residential property managers headed for the dustbin The regime will not apply to landlords, nor Kainga Ora, nor registered community housing providers Jenni McManus & Sally Lindsay Major changes are expected to the Residential Property Managers Bill – if it survives the change of government.

Introduced on 18 August, in the dying days of the previous administration, the Bill establishes a new and comprehensive regulatory regime for the currently unregulated residential property management sector, including compulsory licensing, the ability to develop a code of professional conduct and an independent complaints and disciplinary process. The Bill also gives the Tenancy Tribunal the power to order a landlord to engage a property manager if he or she commits two or more unlawful acts (specified in the draft legislation) within a five-year timeframe.

The Real Estate Agents Authority (REAA) will become the regulator. Members of the REAA board will be required to have experience in the residential property management sector and have “collective knowledge and experience” of the Māori perspective and the Treaty of Waitangi.

The regime will not apply to landlords, nor Kainga Ora, nor registered community housing providers.

After its first reading, the Bill was sent to the Social Services and Community select committee, with submissions closing on 12 October, about a month after the dissolution of Parliament in preparation for the election. Among the submitters was The Law Association’s Property Law committee, which provided a detailed analysis of the Bill, noting that its purpose is to promote public confidence in the delivery of residential property management services and to protect the interests of property owners, tenants and other consumers.

Almost one-third of New Zealand households live in rental accommodation and 42% of that market is covered by residential property managers.

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When the Bill was introduced, National agreed to support it to the select committee stage. But the comments of the party’s then housing spokesman (now Housing Minister) Chris Bishop suggest that radical changes will be needed if the Bill is to progress.

Act opposed the Bill, with deputy leader Brooke van Velden (now Internal Affairs Minister and Minister for Workplace Relations and Safety) saying further regulation of the housing market will not solve the sector’s structural issues. The extra cost of regulating property managers would, like Labour’s ban on allowing mortgage interest deductibility for landlords, simply be passed on to tenants who are already struggling.

Noting that the Bill explicitly exempts Kainga Ora, van Velden said the agency was “the biggest slumlord in the country”, with more than 70,000 houses, and of 257 Kainga Ora homes tested for meth last year, 243 were found to be contaminated.

Act also objected to clause 142 in the Bill, which would impose treaty obligations on members of the REAA. “Once again, we are seeing the treaty and its principles creep into every form of legislation possible,” van Velden said.

Bishop said while National supported the Bill on its first reading, it was sceptical about whether it was needed and whether it would work in the way the Labour Party intended. He noted that the incoming government would need to vote to reinstate the Bill onto the parliamentary order paper and if it survived that process, he would be interested in hearing what was said at select committee and in written submissions.

Bishop said because the Bill would create a complex regulatory regime, cost increases were inevitable. Rents had already risen by $175 a week over the past six years and in his area, Lower Hutt, the figure was $257 a week. The most significant cost

of the new regime would be setting up the licensing regime and ongoing compliance, and tenants would bear the brunt of this.

He was “deeply sceptical” that the benefits would outweigh the costs, Bishop said. A cost-benefit analysis by consultants MartinJenkins indicated a net present value of $10.9 million over 10 years. Core costs were $159.9m and core benefits were $170.8m, giving a cost-benefit ratio of 1.07 – a very thin margin. It meant, Bishop said, “you’re literally vapourising money”.

Another issue was the likelihood that privatesector landlords would move away from using licensed residential property managers and simply manage their properties themselves to avoid extra costs and the other burdens of compliance.

“There is already an extensive self-regulation system in place,” Bishop said.

David Pearse, chairman of the Residential Property Managers Association (RPMA), says while his organisation supports the regulation of property managers, it wants a completely new Bill. Labour’s model is “hugely bureaucratic” and doesn’t improve the quality of service to tenants or property owners.

“Bishop has told us the cost-benefit ratio doesn’t work for Labour’s model and it’s too bureaucratic and expensive,” Pearse said.

The RPMA’s main gripe is that Labour’s Bill is too similar to the Australian regime, which operates under the country’s real estate regulator. Pearse believes real estate companies are delighted the REAA would be New Zealand’s regulator because they could regain control over property managers and make it difficult and unaffordable for independent specialist property management companies to exist.

“We want a new Bill to move away from that and

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Dec 1, 2023 Issue 43

Continued from page 06 our submissions are common sense. Our argument is that we are a service industry and we don’t fit with the real estate regulatory system that is focused on sales.”

The other issue, Pearse says, is that Australian surveys have shown the average property manager lasts only nine months in the industry. “There is a huge issue in regards to property management as a career.” A lot of this, he says, has to do with business development managers in real estate agencies encouraging a sales focus to get more rental properties on their books and then expecting property managers to deal with up to 300 properties each. “This leaves just five hours a year for a property manager to focus on each rental, without chasing up overdue rent, dealing with unruly tenants and other problems.

It’s got nothing to do with providing a better quality service. New Zealand is experiencing similar problems.”

The RPMA wants to break away from the Australian model, saying it doesn’t provide a career path for property managers. “Property managers keep on getting thrown under the bus and it comes down to the responsibilities of their employers.” It is arguing for a standalone association, such as those used by valuers, accountants and lawyers, so it doesn’t matter who the employer is.

Submissions from the RPMA and other specialist residential property managers have called for a standalone qualification or association. Whether a property manager works for a real estate company, an independent specialist company or themselves, it doesn’t matter – they all have to follow the same process.

It has worked effectively for lawyers, accountants and valuers for decades, Pearse says. “They have their own training and qualifications standards, continuing professional development programs and complaints and disciplinary processes.”

We are a service industry and we don’t fit with the real estate regulatory system that is focused on sales The RPMA has also been vocal in recommending that private landlords be included in the Bill. Of the submissions received on the previous government’s proposal, 182 submitters thought private landlords should be included in the legislation.

The exact number of landlords in New Zealand is unknown and is difficult to calculate, Pearse says. “Nobody really knows the state of the market.

Designing a regulatory system specifically for property management companies and employees will make it hard to incorporate mum-and-dad private landlords into it in the future.”

When the Bill was first proposed, the RPMA suggested the government follow the Rent Smart Wales system. All rental landlords in Wales have to register and provide personal details, the addresses of rental properties they own and the details of those responsible for the letting and/or management activities at the rental property. A landlord registration lasts for five years and details are open for scrutiny through a free public register.

The RPMA lobbied the government for a similar system but it fell on deaf ears. “Evidence shows that in countries where all landlords are regulated, there is high compliance with the law,” Pearse says. “It makes for a far more stable environment and lifts the standards of rentals and landlords.”

The Law Association’s Property Law committee submitted on some of the more technical aspects of the Bill, including the lack of precision in s 5, which

defines residential property management services. It is not clear, the committee says, whether this definition also catches administration support staff. “There needs to be a clearer carve-out of tasks which are more tenant-facing in terms of contract formation and those which are more administration-based, which might be carried out by unqualified administration support people supervised by managers with licences.”

The committee also wanted to see a clearer definition of “in trade” – in particular, whether it would exclude friends and family of a property owner from providing management services. And it was concerned that because Kainga Ora is exempt from the licensing regime, it might be able to hire as residential property managers people who have been banned by the regulator from acting in this capacity.

The committee notes the apparent omission from the Bill of a section similar to s 44 of the Real Estate Agents Act 2008, governing the control of partnerships and companies that are residential property managers. And, unlike s 125 of the Real Estate Agents Act, there is no requirement for the trust accounts holding property management funds to be audited.

Nor is there any requirement for residential property managers to comply with the Residential Tenancies Act 1986 (RTA) or to acquire a good understanding of the legislation. “This is an important gap,” the committee says.

Similarly, there is no requirement for residential property managers to offer competitive pricing (compared with the Code of Conduct for Body Corporate Managers which requires compliance with the legislation and regulations and the supply of goods and services at competitive prices).

The committee supports the use of the REAA as the regulator and the move to require landlords to use a licensed residential property manager if they incur two or more breaches of specific sections of the RTA within a five-year period. ■

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COMMITTEES

Meet Fiona Hall, convenor AML/CFT committee This legislation has had, and continues to have, a huge impact on lawyers’ working lives. There is a lot of compliance and there are still areas that are not well understood by a lot of practitioners

Brenda Newth Where do you work, what’s your role?

I’m a barrister and solicitor with my own practice in High Street, Auckland. Probably about 80% of what I do is now AML. I’m a specialist advisor in regulatory law, but primarily AML.

What’s been your career to date?

Fiona Hall

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I’ve worked for law firms and as in-house counsel, initially in Auckland, Wellington and the UK, where despite being employed in the banking team of a huge corporate firm, I ended up managing a number of death-row appeals.

After I had children, I was general counsel for a finance company. I was shoulder-tapped while I was standing in the YMCA, playing with parachutes with children. The person said, “my wife is looking for a lawyer”. And two weeks later, I had a job. My son was about four-and-a-half, so it was good timing.

It coincided with the CCCFA (consumer credit legislation) being introduced which proved to be a challenging time for smaller lending operations, as it was a complete change to how they had charged fees and interest, and they simply were not used to being regulated this way. It’s fair to say there were robust discussions from time to time about what the law required!

After a few years, I was approached by the Commerce Commission and decided it would be a good opportunity to see how a regulator works, so I took up a position as senior counsel, specifically to provide support to the Auckland-based CCCFA team. After that, I was general counsel for Diners Club and Warehouse Group Financial Services. The latter purchased Diners Club as part of its move into the

financial sector and decision to launch its own credit cards and financial products. Of course, it was around this time that New Zealand was introducing its AML/ CFT regime, and so along with being GC I enjoyed the role of the AML compliance officer (and privacy officer, for good measure).

My last in-house role before going out on my own was as New Zealand general counsel for credit reporting bureau Equifax (previously Veda). I had already been considering going out on my own but when I was approached to see if I would be interested, I felt the opportunity to work in a business where privacy law was such a focus was too good to pass up and Veda offered AML verification services which was a point of interest.

After the Equifax purchase, about a year later, I finally went into my own practice. I feel that having worked with a regulator and been part of a management team and walked the walk as an AML compliance officer, I am well placed to provide practical legal advice on compliance. l enjoy my own practice and the autonomy that comes with it.

Where did you study?

Auckland University, where I completed an LLB (Hons).

How long have you been involved with The Law Association committees and which committees have you worked with?

I am the inaugural convenor of the AML/CFT committee. It came about because when the law first came in, Gary Hughes and I did a webinar for ADLS

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Dec 1, 2023 Issue 43

Continued from page 08

members. From there, I became heavily involved in the AML content that ADLS put out, including the toolkit series (of which there were two), each consisting of four in-person/webinar presentations. Series one was very practical, covering risk assessments, programs, CDD, that sort of thing. And then series two was more targeted, including sessions on auditing and meeting the regulator. Since then, I’ve done several workshops for ADLS/The Law Association and another series started in November. These are designed for smaller groups to work through common challenges and review changes in the law for the supervisor’s approach to enforcement.

Being approached to convene this committee came about because of my work, because it’s a bit of a different committee, I think. This is a law that directly impacts a huge proportion of the legal profession as it is a law with which lawyers have to comply. I am the only lawyer on the committee that specifically advises in this space so probably have the most specialist knowledge, but all our committee members represent reporting entities and bring real working knowledge of the challenges practices face when it comes to implementing the legal requirements, which is fantastic.

Why is committee work important?

I think operating committees is a valuable way to bring together the views of passionate and committed lawyers, whether that is to take a position in respect of a major piece of legislative reform that’s happening and addressing how that will affect our clients or an area of legal practice or, as is the case in our committee, working to protect the interests of the profession.

At the outset, I asked my committee how they saw themselves; whether they wanted to comment on AML legislation per se or whether they wanted to look at it through the lens of the profession and represent the profession. And the latter was the choice. We’ve

made quite a number of submissions and we always do it through the lens of the profession, looking at the areas that impact lawyers rather than looking at areas that impact potentially all reporting entities.

How do The Law Association committees make a difference?

Looking at this from the perspective of our committee, as well as having input into the regulatory process and proposed legislative change, and educating the profession, we also are increasing our direct engagement with key stakeholders. For example, we had three representatives from the Department of Internal Affairs (DIA), who are the supervisor of the legal profession for AML/CFT, at our meeting last month. We are planning to meet with representatives of the Ministry of Justice (MoJ) as they are tasked with managing the full statutory review of the legislation.

In terms of the DIA and MoJ, we see the opportunity of being real advocates for the profession.

This legislation has had, and continues to have, a huge impact on lawyers’ working lives. There is a lot of compliance and there are still areas that are not well understood by a lot of practitioners, and I think the cost of compliance can be very challenging, particularly for smaller practices. We made a point of telling DIA that The Law Association has a national presence, it isn’t just Auckland-centric, and so we see real value in us getting their messaging about expectations and application of the law out to our members. We just need to ensure we have a clear understanding of what that message is, as it isn’t always obvious!

How do you see the role of a committee convenor? What specific skills do you think a convenor needs?

My role is to oversee and ultimately bring a mix of ideas to some form of cohesion, where we can present it. Part of my role is to protect the outliers, those with a different position, and ensure all voices are heard. I am very conscious that often when we make

The legislation is still very much skewed to financial institutions, and there are real stresses with getting this legislation to work for lawyers submissions, we can’t put everybody’s ideas forward.

We have to go with the general consensus. But I still think within the context of a committee, hearing all these different views and different experiences is really important.

What is your biggest frustration as a convenor?

We’re a small committee, so whenever there is a submission or something to write, there’s a lot of work to be spread amongst a few of us. And this is against the backdrop of committee members who have very high workloads in their day jobs and who often are members of other committees too. For a small committee, I think we do pretty well. But my gripe would be there aren’t that many of us to carry that workload.

What’s been the most notable achievement or biggest focus of your committee over the past few years?

Why was that important?

We should see some changes to the legislation around the timing for lawyers for reporting SARs (suspicious activity reports). We’ve also had some engagement with the ministry about greater protection for lawyers. Currently all reporting entities which file an SAR are protected if they’ve done so in good faith. The New Zealand Law Society sought an exemption from that for lawyers, with the result that the protection applies but with the proviso it is

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Continued from page 09 lost if there were reasonable grounds to believe the information was privileged.

My experience is that the areas where SARs often arise are not areas of law where issues around privilege commonly arise, and so practitioners can understandably be very nervous about filing SARs. We’ve had 1:1 engagement with the ministry and made quite extensive submissions on both these issues, and in concept it has been agreed that there will be amendment to the legislation.

The extension to five days from three for filing an SAR for lawyers was proposed in the last regulatory change. Unfortunately, it was pulled late in the piece as it was determined regulation was not the correct mechanism and there needs to be an amendment to legislation. However, both those changes are in the pipeline. And if they come through, they’re a direct consequence (in my view) of our committee’s work.

Over the past year, has your committee made submissions on a parliamentary bill or any consultation paper?

We have submitted on the extensive changes that were made to the AML/CFT suite of regulations.

We’ve submitted on the overview of the legislation, and we will continue to submit on those areas.

What would you say to anyone thinking of becoming involved in a Law Association committee?

Being a member of a committee provides the opportunity to give back, but it also provides the opportunity to learn from others. No matter how experienced you are in practice, you can always

learn from someone else’s perspective. Committees also make great sounding boards, and forge great camaraderie and support amongst members.

What is the biggest issue facing the legal profession right now?

What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?

Have you done any media interviews/ provided any statements to the media in the past year as a committee convenor and spokesperson for ADLS/The Law Association?

I think many practitioners still struggle conceptually with the legislation. We come through law school with the clear message that we protect our client, their confidentiality and their presumption of innocence. It is a difficult transition to suddenly be dobbing in your client.

There is the issue of when privilege is lost, or when as lawyers you should report an issue. And on a day-to-day basis, there is the issue of trying to undertake CDD (client due diligence) in accordance with the Act – as that is prior to entering a business relationship and that isn’t a concept that fits easily into legal practice. The legislation is still very much skewed to financial institutions, and there are real stresses with getting this legislation to work for lawyers.

The other big issue commonly raised is enhanced due diligence. Lawyers really struggle with getting information from clients to satisfy the requirements of enhanced due diligence. The problem for lawyers is that the legislation requires you to terminate a relationship if you don’t complete CDD. And of course, under our Lawyers and Conveyancers Act, we have quite specific times that we are allowed to terminate.

So again, that’s a really challenging area for lawyers.

What’s the best kept secret about The Law Association?

Hospitality. Collegiality – don’t underestimate the importance of it.

The NZLS review.

No.

What is your vision for the legal profession in 2050?

I would like us to be better role models.

What do you think The Law Association could do to improve its offering to members?

I think it’s moving in the right direction but does need to be more visible and to check in with members. For example, when I do my workshops, I always say, “ask people, don’t assume what they want”. Just don’t put on that course. If you’ve got people who attended this workshop previously, email them and ask them would they like another? It’s just that personal shouldertapping all the time. I think The Law Association is really working on it, and I think it’s important to get the message across that we are not just Aucklandcentric, we do represent lawyers across the country.

And that’s good news for everyone. ■ To find out more about The Law Association’s committees, please contact Daniel.Conway@thelawassociation.nz or Moira.McFarland@thelawassociation.nz ■ Fiona Hall will be presenting a Law Association CPD webinar on AML/CFT in March next year.

The Annual Property Law Conference 2024

Property Law Practice in Challenging Times

Thursday 29 February | 12.30 – 5.00pm 4 CPD hours | In person Auckland and online

10

CPD

Dec 1, 2023 Issue 43

Offices Available

Position Available: Employment Lawyer Takapuna Auckland Minimum of 3 years PQE

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.

Welcome to our boutique firm, where exceptional legal services meet a down-to-earth, friendly and welcoming atmosphere. Specializing in Employment Law, we're proud of our stable and growing client base, largely generated by referrals. If you're seeking a workplace that values its staff, supports professional growth, and champions work-life balance, we want to hear from you.

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

As a key player in our team, you'll handle diverse employment law matters, from agreements to workplace policies, providing clear advice and representing clients in mediation. With at least 3 years' experience as a New Zealand Employment Lawyer, you'll bring strong knowledge, excellent negotiation skills and communication for both employee and employer clients. We value independence, adaptability, and a positive, proactive attitude in our team members who enjoy a fast-paced and dynamic work environment.

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

In return, we offer the benefit of a competitive salary, flexible working hours with work-from-home options, and a vibrant and beautiful office space in Takapuna, North Shore, Auckland. Professional growth is encouraged in our supportive and collaborative environment.

Please refer to deeds clerk. Please check your records and advise The Law Association Inc. 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)

WILL INQUIRIES

Ready to elevate your career? Please send your CV and cover letter to Stef Anstey at careers@hgilbert.co.nz.

Join us and be part of a firm that truly cares about its team.

reception@thelawassociation.nz

The Law Association Inc.

PO Box 58, Shortland Street, DX CP24001, Auckland 1140 Ph: (09) 303 5270

Over the last 18 months, we’ve successfully facilitated the sale of five law firms.

BROADBENT David Alexander • Late of 227 Victory Road, Laingholm, Auckland • Transport officer • Aged 55 / Died 10’10’23 COLE Janet Christine also known as Janet Christine Turner

WHY CHOOSE US? Expertise • Proven Success • Tailored Approach • Confidentiality If you are looking at selling your Law Practice and are curious about the value of your business call me today for a confidential discussion.

Nick Stevens 021 641 978 nick.stevens@linkbusiness.co.nz

All LINK Offices Are Licenced REA08

Legal Business Sale Specialists

• Late of Te Atatu, Auckland • Retired • Aged 71 / Died 10’07’23 FUKUDA Yuji

• Married • Retired • Aged 65 / Died 02’12’09 LALAKAI Anne-Marie • Late of 3 McLean Avenue, Papatoetoe, Auckland • Music teacher • Aged 36 / Died 27’10’23 WATERHOUSE Anne Mary • Late of 2/37 Victoria Avenue, Remuera, Auckland • National sales manager • Aged 65 / Died 12’11’23

• Late of Auckland 0800 546 528 LINKBUSINESS.CO.NZ

11

TECHNOLOGY/PRIVACY

Privacy and AI: safeguarding rights in the age of artificial intelligence An ethical approach that is already well established in the world of privacy regulations is also becoming central to AI governance discussions.

Amy Kingston-Turner

Amy Kingston-Turner

The fusion of privacy laws and AI governance is a solid foundation on which we can build 12

As the chatter about AI’s role in our society becomes louder, the inherent connection between the ethical, legal and practical aspects of existing privacy laws and forthcoming AI regulation becomes clearer.

This article explores the relationship between privacy laws and AI regulation, highlighting the existing ethical frameworks we can work within, the practical challenges we face and the need for a collective effort to shape the future of technology while safeguarding privacy and ethical values.

In the age of artificial intelligence, our lives have become increasingly intertwined with technology, granting us unprecedented convenience and efficiency. However, this technological leap forward has also created a host of privacy concerns. At the heart of these concerns lies a delicate balancing act, as the power of AI often clashes with the right to privacy, a right which is fundamental to many modern societies and is enshrined in the Universal Declaration of Human Rights.

Existing privacy issues in AI systems – including a lack of transparency, the failure to minimise data collection and retention, the challenge of obtaining meaningful consent and the inability to effectively delete personal information – have been well documented.

Regulations targeting AI have been in the works in multiple jurisdictions since before the advent of ChatGPT, which propelled AI into the imaginations of the masses.

When looking at these developing regulations, it becomes clear that there are intersections with already established privacy regulatory frameworks. Key themes central to the regulation of personal information, such as transparency, fairness, security and accountability, are mirrored in the ongoing discussion about AI governance.

Ethical considerations around algorithmic transparency, accountability, bias and the need for human oversight have emerged as key themes in most existing and emerging AI governance frameworks and regulatory proposals. In essence, an ethical approach that is already well established in the world

of privacy regulations is also becoming central to AI governance discussions.

In fact, many of the existing privacy regulations can and do already apply to the regulation of AI tools to the extent that they are processing personal information. These laws carry provisions that demand algorithmic accountability and fairness – for example, requirements around consent and transparency – although the extent to which AI models can currently comply with these provisions remains unclear and is a topic for another discussion.

Good data governance, including its source, quality and ethical usage is key to complying with existing privacy laws and is emerging as vital to AI governance. It is evident that the regulations safeguarding our personal information can act as building blocks for the ethical and legal considerations surrounding regulation and management of artificial intelligence.

In this ever-evolving landscape of technology and data, organisations find themselves at a juncture where the lessons learned from establishing now-mature privacy programs can be effectively extended to navigate the infantile governance of artificial intelligence.

Having weathered the introduction of global privacy laws, businesses have amassed a wealth of experience and expertise that can be channelled and adapted into the realm of AI governance. In the same way that meticulous scrutiny of data is inherent to compliance with privacy regulations, the necessity for a solid understanding of data and data flows is now also critical to AI considerations. For example, organisations can integrate questions about the use of AI into their existing privacy impact assessments, enabling them to identify and mitigate high-risk AI applications through ethical human intervention. This convergence of privacy and AI governance in practice underscores the pivotal role that established privacy programs can play in developing responsible AI management practices.

One area where regulators may choose to distinguish the developing AI regulations from existing privacy regulations is in the area of remedies available for a data breach.

Large language models, such as ChatGPT, are fed colossal datasets that encompass both depersonalised and personal data. The tech giants of our time, including Apple, Alphabet and Meta, have mastered the art of profiting from data collection by extracting and using data for various purposes. To date, remedies for data breaches have primarily been evaluated in terms of the

Continued on page 13

Dec 1, 2023 Issue 43

Continued from page 12 harm inflicted on individuals rather than considering the substantial profits amassed by the companies responsible for these breaches.

A paradigm shift that focuses on profits made rather than harm caused when evaluating liability may be essential in fostering a more comprehensive and equitable approach to data privacy in the age of AI. While existing ethical principles provide a solid foundation for mitigating the risks associated with AI, the real-world application of these principles is complex and evolving. What is considered ethical behaviour can be subjective and differs across the globe.

Therefore, to address some of the issues AI raises, everyone, including developers, policymakers, businesses and ordinary citizens must familiarise themselves with AI’s inner workings to make informed decisions as to AI’s associated risks and benefits.

For businesses navigating this area, a risk-based approach, tailored to each business and AI tool, becomes imperative. To do this, businesses must intimately understand their own risk appetite, a factor that will influence their choices about AI use. Ongoing risk assessments, akin to those in the privacy domain, will become important to manage unforeseen consequences arising from use of AI, and human oversight remains the primary check and balance.

Additionally, effective lifecycle management must be in place to address the continuous evolution and improvement of AI systems.

The rapid ascent of AI may forever alter the way we live and work, and the fusion of privacy laws and AI governance is a solid foundation on which we can build. While established principles around the governance of personal information provide a solid framework for ethical AI, the practical application of these principles requires collective effort and a deep understanding of AI’s inner workings and potential risks.

In essence, the evolving landscape of AI governance requires us all – developers, policymakers, lawyers and citizens – to maintain a commitment to human oversight and continuous education. It is only through such efforts that we can strike the delicate balance between technological advancement and the preservation of fundamental human rights in an increasingly interconnected and AI-driven world. ■ Amy Kingston-Turner is a director of Source New Zealand, as operated by Hamilton Locke (NZ) Ltd ■

Policy questions ■ Does AI require its own regulation in New Zealand?

■ Do existing ethical frameworks already inherent in global privacy regulation provide a solid foundation on which to build AI regulations?

■ How should data breaches in the age of AI be remedied?

■ How can businesses start to manage their own AI risks now, in the absence of regulations?

CPD February 2024 Book now to save the dates Coming soon - Civil Litigation Series: 5 Webinars February - March 2024

Criminal

The Auckland Council Diversion Policy – One Year On 1 February | 1 - 2pm | 1 CPD hour

Sexual Violence Legislation Updates

27 February | 4 - 6.15pm | 2 CPD hours

Family

Guardianship Under CoCA

14 February | 4 - 5.30pm | 1.5 CPD hours

Will Drafting for Blended Families

15 February | 12.30 - 2pm | 1.5 CPD hours

All Areas of Practice

Excel-erate Your Tasks

14 February | 9 - 11am | 2 CPD hours

Business Development for Lawyers

15 February | 9.30 - 11.45am | 2 CPD hours

KiwiSaver for Legal Professionals

20 February | 1 - 2.15pm | 1.25 CPD hours

Applications Made Easy

20 February | 4 - 6.30pm | 2.25 CPD hours

Mastering the Art of Negotiation

22 February | 9am - 12.15pm | 3 CPD hours

How to Lead a Team

27 February | 9am - 1.15pm | 4 CPD hours

Property

The Annual Property Law Conference 2024 29 February | 12.30 - 5pm | 4 CPD hours

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FEATURED CPD

FINAL NOTICE

WEBINAR ALL LEVELS LITIGATORS

Update on torts Webinar 1.5 CPD hours Tuesday 5 December 4pm – 5.30pm Price from $140 + GST Presenter Professor Stephen Todd, Professor of Law, University of Canterbury

The webinar will cover several of recent and significant developments in New Zealand and the wider common law world which explore the imposition of (or refusal to impose) a liability in tort.

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Business development for lawyers

In Person Workshop 1.5 CPD hours Wednesday 15 February 2024 9.30am – 11.45am Price from $320 + GST Facilitator Ben Paul, CEO, The BD Ladder

This workshop offers a practical, endto-end guide to planning and delivering effective business development.

WORKSHOP ALL LEVELS ALL AREAS

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Evidence law update for civil and criminal lawyers WEBINAR ALL LEVELS CRIMINAL

Webinar 2 CPD hours Tuesday 12 December 4pm – 6.15pm Price from $190 + GST Presenters Scott Optican, Associate Professor, University of Auckland and Jack Oliver-Hood, barrister/lecturer (AUT Law School)

Whether you are a civil or criminal law practitioner, it is important to keep up-to-date on developments in the law of evidence. Presented by evidence law lecturers and two of the co-authors of Mahoney on Evidence: Act & Analysis (Thomson Reuters, 2018), our annual evidence law update returns in December.

FIND OUT MORE 14

Dec 1, 2023 Issue 43

thelawassociation.nz

The Auckland Council diversion policy – One Year On WEBINAR ALL LEVELS CRIMINAL

CPD@thelawassociation.nz

Webinar 1 CPD hour Thursday 1 February 2024 1pm – 2pm Price from $95 + GST Presenters John Kang, principal solicitor and prosecutions team leader, Auckland Council and Steven Boon, prosecutor and diversion officer, Auckland Council

09 303 5278

On 1 December 2022, Auckland Council’s diversion policy was implemented, bringing about crucial changes to the way criminal cases could be handled. This new policy could profoundly impact your clients’ outcomes by providing them with opportunities to avoid convictions. This webinar offers a unique opportunity to gain first-hand knowledge from an authoritative source within Auckland Council’s prosecution team.

Chair Jo Murdoch, Public Defence Service

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Excel-erate your tasks WEBINAR ALL LEVELS ALL AREAS

Webinar 2 CPD hours Wednesday 14 February 2024 9am – 11am Price from $320 + GST Presenter Sally Ratapu, project support/technology learning advisor, Simpson Grierson

Join us for an enlightening workshop led by Sally Ratapu, a seasoned project support/technology learning advisor at Simpson Grierson. Through a curated toolkit of tips, tricks and practical case scenarios tailored for this session, Sally will guide you through the maze of Excel.

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Guardianship under CoCA

Webinar 1.5 CPD hours Wednesday 14 February 2024 4pm – 5:30pm Price from $140 + GST Presenters Judge Belinda Pidwell and Cushla Webster, barrister, O’Connell Chambers Chair Brian Carter, barrister

This seminar, with bench and bar perspectives, aims to provide direction and insights into what evidence is essential, and what is useful, for determining guardianship disputes.

WEBINAR ALL LEVELS FAMILY

FIND OUT MORE 15

GOVERNANCE

Lawyers urged to vote down NZLS plans to restructure board The claims in the consultation document that the proposed changes accord with best practice are specious. They simply exacerbate existing deficiencies

Gary Judd KC

Gary Judd KC

16

This is a submission to council of the New Zealand Law Society about an October 2023 consultation document on constitutional change.

■ I oppose the proposed changes which will only make worse what is already an unsatisfactory governance structure. The proposals further centralise power in a board appointed by a convoluted procedure whose members are not directly accountable or responsible to the membership.

■ I propose that the proposals in the document be abandoned and that, instead, the society’s governance structure be changed to make it more responsive to its members.

■ On the second page after the cover page (the document’s pages are not numbered), the document claims that in making the recommendations, the board and council considered “best practice for boards in New Zealand,” amongst other things.

■ I have had extensive board governance experience, having been first a trustee, then Deputy-Governor of the Auckland Savings Bank (which became the ASB in 1986), and then chairman of the board of the ASB’s successor, ASB Bank Limited, from 1988 until 2011, chairman or member of boards of various companies associated with ASB and of audit and risk committees, chairman of Ports of Auckland Ltd (20062009), and member of the Apec Business Advisory Council (ABAC) from 2009-2012. During my ABAC membership, I participated in a large number of symposiums, conferences and training sessions around the Asia-Pacific region.

I chaired or otherwise led or was a trainer or speaker at

many of these. A number of them, or aspects of them, concerned corporate governance.

■ I do not consider that the New Zealand Law Society has a best-practice governance structure. The proposed changes make a bad governance structure worse.

Best practice governance structure ■ To ascertain what may be best practice for a membership organisation which has a lawful purpose other than for the financial gain of any of its members, it is appropriate to examine general legislation designed for such organisations.

New Zealand now has modern incorporated society legislation, the Incorporated Societies Act 2022, although it is yet to come into force. Section 3 sets out the purposes of the Act which include providing a legislative framework that promotes high-quality governance of societies and recognition of principles which include that societies have members “who have the primary responsibility for holding the society to account” and that societies “should operate in a manner that promotes the trust and confidence of their members”.

Section 84 requires societies to call an annual general meeting of members. The intention is for incorporated societies to have governance structures whereby the governors are responsible and accountable to members.

What the Act requires or envisages in this respect is best practice for societies.

Continued on page 17

Dec 1, 2023

Photo: Rae Allen/Getty Images

Issue 43

I do not consider that the New Zealand Law Society has a best-practice governance structure

Continued from page 16

NZLS’ structure does not accord with best practice ■ As the New Zealand Law Society is a membership organisation carried on for lawful purposes other than the financial gain of any of its members, the 2022 Act would be the vehicle for incorporation of New Zealand’s lawyers if the society did not have its own Act. The 2022 Act’s provisions set out above indicate aspects of best practice for an organisation like NZLS. They indicate that the governance structure should be fit for the purpose of holding the society’s administrators to account because that is the way the society is held to account. It is done in two main ways: election of officers by the membership and an annual meeting of members. The NZLS constitution provides for neither.

■ Accordingly, the society’s governance structures do not conform with best practice. The claims in the consultation document that the proposed changes accord with best practice are specious. They simply exacerbate existing deficiencies.

■ The structure established when the society was created in 1869 would be best practice today and, no doubt, was considered so in 1869. Section 9 provided: And for the better rule and government of the society and for the better direction and management of the concerns thereof there shall be a council of the society

to be elected from among such of the members as shall be barristers or solicitors practising in New Zealand and a President and Vice-President of the society shall be elected from the council and such council including the President and Vice-PresIdent shall consist of not more than fifteen nor less than than nine.

■ In the decades which followed, the structure was changed to provide for district law societies, of which district lawyers were members, who exercised disciplinary and other powers and functions. With the passing of the 2006 Act, the district law societies were scrapped and the NZLS once again became the sole governing body.

The 2006 legislation left it to the council to adopt a constitution, but in preparing it the then council failed to adhere to best practice regarding responsibility and accountability. With the re-establishment of a national organisation, it would have been better for the society to have learnt from the 1869 Act. It displayed what was required for “the better rule and government of the society and for the better direction and management of the concerns thereof”.

■ The mechanism for adopting and changing the constitution is itself an example of thoroughly bad practice. The 2022 Act requires every amendment to be approved at a general meeting of the society passed by a simple or higher majority (s 30).

That’s the way it should be for the law society. Instead, clause 6.3 provides, “The council may amend or replace this constitution in such manner as the council determines, subject only to the provisions of the Act.”

Conclusion ■ The council should not adopt the proposed changes. It should: amend the constitution to require amendments to be approved by a majority of the membership, with provision for the members to vote using electronic means; establish a working group to draft a new constitution which restructures the structure and procedures of the society using the requirements of the 2022 Act as a guide; and put the draft replacement constitution to the members for their approval.

■ I would be prepared to serve on that working group.

■ I request that this submission be circulated by the society to the members to enable members to consider it along with the consultation document and to indicate whether they support my proposals. ■ See also page 5 ■ 17