LawNews - Issue 44

NEWS Dec 10, 2021 Issue 44

Inside ■ XMAS MESSAGE

Update from ADLS President Marie Dyhrberg QC P07

■ POLITICS

National’s new leader has one main job P10-11

Govt to overhaul creaky and outdated adls.org.nz

ADOPTION ACT

Contents 03-05 SECRECY IDENTITY HUMAN RIGHTS

Why our adoption law is no longer fit for purpose LawNews is an official publication of Auckland District Law Society Inc. (ADLS).

08 POLYAMOROUS DIVERSITY RELATIONSHIPS

‘Triangular’ relationship property dispute sent back to Family Court

Editor: Jenni McManus Publisher: ADLS Editorial and contributor enquiries to: Jenni McManus 021 971 598 Jenni.Mcmanus@adls.org.nz Advertising enquiries to: Darrell Denney 021 936 858 Darrell.Denney@adls.org.nz

09 TRUST PROPERTY LAW REFORM

14-15

Why the Supreme Court’s Preston decision might be short-lived

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

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17 EVENTS

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Dec 10 2021 Issue 44

FAMILY LAW

Overhaul coming for ‘creaky’ and ‘anachronistic’ Adoption Act Campaigners have argued for years that the Adoption Act puts the government in breach of its domestic and international human rights obligations and that it ignores Te Tiriti o Waitangi

in this country. These Acts and their incompatibility with other aspects of human rights and family law raise legal, ethical, medical, tikanga, whakapapa and whanaungatanga (kinship) issues around adoption.

Modernisation overdue

Kesia Denhardt

Diana Clement New Zealand’s 66-year-old Adoption Act has long passed its use-by date. But after decades of promises by various governments of all complexions, Justice Minister Kris Faafoi announced earlier this year that the government would review New Zealand’s laws in its current term.

The Ministry of Justice released a discussion document Adoption in Aotearoa New Zealand in June which attracted 250 submissions. Proposals will be released in early 2022 and a second round of consultation will take place in the middle of next year.

Whatever the outcome, the law is expected for the first time since 1955 to put the rights of tamariki at its heart. Adopted children will have the right to their identity and access to information.

The 1955 Act was born in an era of shame. Young, single, pregnant women were hidden away. Their babies were often forcibly removed from them and placed with strangers. Adoptions were usually closed, with a clean break being an underlying principle of the law. The Act was monocultural with Māori babies placed with mostly childless married Pākehā couples.

Around 90,000 babies were taken from birth mothers from the 1950s to 1980s in a system where many gave birth in motherand-baby homes. Most of these adoptees are still alive.

Adoptions peaked in the 1970s with nearly 4,000 children adopted each year on average. But in 2020 just 125 adoptions were granted by the Family Court.

As well as the main Act, the Adult Adoption Information Act 1985 and the Adoption (Intercountry) Act 1997 govern practices

Barbara Sumner

Anyone who works for a handful of government departments can go and look at my file, but I can’t

Campaigners have argued for years that the Adoption Act puts the government in breach of its domestic and international human rights obligations and that it ignores Te Tiriti o Waitangi.

Kesia Denhardt, a senior associate and family lawyer at Stace Hammond, says the provisions reflect the social conditions and community attitudes in the 1950s, which have not kept pace with the modern circumstances and realities of life.

Modernisation of the law is decades overdue. It’s often described as creaky and anachronistic, Denhardt says.

“There can be no doubt that a complete overhaul is desperately needed to bring our adoption laws in line with the 21st century. The current closed and absolutist approach to adoption has led to the [Act] being described as a ‘statutory guillotine’ in the way that it breaks all ties with the biological family and other blood relatives.”

The list of what’s wrong with the current Act is long. The law doesn’t even define adoption, Denhardt says. It simply outlines the process for obtaining an adoption order and the effect of such an order. The law is not child-centred and there is no provision for a lawyer to be appointed for the child.

“This is the case even where the adoptee may be old enough to marry or to live independently of their parents or be a parent themselves.” Unlike other statutes, particularly those affecting children, the Act does not provide any principles governing its interpretation or administration. All this has taken a huge human toll, affecting the mental and physical health of generations of New Zealanders.

Notably, Article Two of Te Tiriti o Waitangi gives Māori the right to make decisions about resources and taonga. In te ao Māori, tamariki are viewed as a taonga who belong to the wider whānau, hapū and iwi. As taonga, tamariki should be nurtured and treasured.

The Human Rights Review Tribunal made findings in 2016 that provisions of the Act, along with the Adult Adoption Information

Continued on page 04 03

Continued from page 03

Act 1985, discriminate on the grounds of sex, marital status, sexual orientation, disability and age, says Denhardt.

New Zealand’s law also breaches multiple articles of the United Nations Convention on the Rights of the Child. Article 21, for example, deals specifically with adoption. Ratifying parties that permit adoption are required to “ensure that the best interests of the child shall be the paramount consideration”, Denhardt says.

Other international agreements that should form part of the adoption laws are: ■ the Hague Convention, which sets out rules for inter-country adoption; ■ the United Nations Declaration on the Rights of Indigenous Peoples, which recognises the right of indigenous families and communities to retain shared responsibility for the upbringing of their children; and ■ the United Nations Convention on the Rights of Persons with Disabilities.

Along with being incompatible with te tiriti, and human rights conventions, the Act does not sit comfortably with modern family law, says Denhardt.

Annabel Ahuriri-Driscoll

Stewart Dalley

Few rights Campaigners have long fought for the secrecy to be removed from adoption law.

Thanks to a hangover from past moral and social attitudes encoded in law, adoptees have no right to details such as their name, their nationality, their natural family, medical history or genealogy. Many get around this by using commercial DNA kits, with which the law has not kept pace.

Adoption law reform advocate Barbara Sumner, a PhD researcher at Victoria University of Wellington, describes her own adoption as ‘trafficking’, because the doctor was negotiating with a family before her birth, which was against the law even then.

Sumner, whose highly-acclaimed autobiography Tree of Strangers was published last year, argues that adoption is the only contract in New Zealand law that can’t be rescinded.

And, she says, the government’s discussion document does not go anywhere near far enough, nor does it attempt to solve the issue of adoptees being treated as second-class citizens.

“One of my issues with that document is that it’s clearly written by somebody with no experience. One very small example [is] adopted people are called children. I’m 61. I’m an adopted adult.

The best interest for me as a 61-year-old woman is not to have my files hidden away from me.”

The Department of Internal Affairs, Ministry of Justice and 04

It’s not childcentred and there is no provision for a lawyer to be appointed for the child

Oranga Tamariki hold copious files on each adoptee, Sumner says.

“Anyone who works for a handful of government departments can go and look at my file, but I can’t.”

Those documents are not available to adoptees unless they go to court and prove ‘special reasons’. ‘Special reasons’ is a term that is specific only to the [Act] and it’s not defined in law, Sumner says. “It’s defined by a judge on the day.”

Precedents set as far back as the 1970s still stand. Terminal illnesses, mental wellness and culture have all come before the courts and precedents set as to why they are not ‘special reasons’ to crack open adoption records.

Adopted people have their rights withheld under other legislation, Sumner says. She cites the Births, Deaths, Marriages and Relationships Registration Bill, currently before Parliament.

Under the new law, a trans person will have the right to their own identity and to deny other people’s access to their file. “Adopted people don’t have that.”

Likewise, the Privacy Commissioner’s annual Right To Know Day is dedicated to raising awareness of the legal right of New Zealanders to see the information that organisations hold about them. But adopted people are excluded, says Sumner.

“Why the continued secrecy? There’s no hint in the law reform that secrecy [will end]. Where does that fit with science? With DNA? We are able to find a family. But we’re not able to find out how and why.”

She adds: “What I like to say is, if you have a right to something, I should also have that right.”

Sumner says adopted people want the right to have their adoption discharged. “Adoption is a binding contract that you are not a signatory to,” she says. “You are preverbal and nonconsenting. It doesn’t just cover your life. That contract covers you and your children and your grandchildren forever. It’s the only contract in New Zealand that does that.”

Denhardt does note that a balance needs to be struck between the importance of a child’s knowledge of its heritage for the development of their identity and a birth parent’s entitlement to privacy if they do not wish to be named for any reason.

Monocultural The Adoption Act was about as monocultural as a piece of legislation could get, says Annabel Ahuriri-Driscoll, a Māori health and well-being lecturer at the University of Canterbury. She says Māori children were taken from their first family and often placed with Pākehā parents, stripping their whakapapa and whenua in most cases.

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Dec 10 2021 Issue 44

Continued from page 04

“Knowledge of whakapapa is important,” Ahuriri-Driscoll says.

Tamariki placed outside their culture can lose a lot. “Especially with a Pākehā adoptive family, you grow up without that understanding of what it means to be Māori. At least if you have those relationships intact in some way, then that child gets that experience [of te ao Māori].”

Whāngai, a customary Māori practice where a child is brought up by someone other than its birth parents, usually another relative, is a particular issue, says Ahuriri-Driscoll. She sees a big gap in the discussion document, which barely touched upon whāngai. It’s important, she says, and it’s important that any discussion of whāngai is led by Māori.

The document also fails to spell out who should be able to adopt Māori children. “While I absolutely understand that we don’t want to be in a position where we say necessarily only Māori parents should be adopting Māori children, I think the discussion document could say a bit more about who the kinds of people are that would be best suited to meeting the needs of Māori children.

“In the United States there has been quite a lot of work done around this concept of cultural socialisation and requiring parents to be race-conscious. It’s not just about supporting a child’s cultural identity but also their racial and ethnic identity.”

Adoptees have no right to their name, their nationality, their natural family, medical history or genealogy

Surrogacy The discussion document does note that the world has changed when it comes to adoption. And without a ready supply of babies from ‘fallen’ women, practices such as surrogacy and intercountry adoptions are being shoehorned into legislation not designed for them.

Surrogacy arrangements are currently under review. At the same time, backbench MP Tamati Coffey is seeking parliamentary support for a private member’s bill, Improving Arrangements for Surrogacy Bill.

Stewart Dalley, a lawyer at D&S Law, convenor of the ADLS Immigration and Refugee Law committee and the parent of three children born by surrogacy, questions whether surrogacy arrangements should come under the Act at all, where the intended parents are biologically connected with the child.

Currently the intended parents need to go through a court process where the template is designed around the 1955 Act. The involvement of Oranga Tamariki, in particular, can be like putting a square peg in a round hole, say some intended parents. For example, Oranga Tamariki carries out an assessment of whether the intended parents, one of whom may be the biological parent, are appropriate parents.

“We don’t live in an Orwellian society where everybody has to apply to the government to be a parent,” says Dalley. He has come across situations where Oranga Tamariki social workers have encouraged surrogates to consider options to keep the child they have just given birth to, even when they have no biological connection with that child.

If surrogacy does come under adoption legislation, Dalley would like to see a separate section deal specifically with it.

He notes that there are several ‘camps’ in relation to adoption.

One view is that it should never occur. This, he says, would effectively lock gay [male] couples out of parenthood because New Zealand’s intercountry adoption agreements exclude them.

Sumner is in one of those other camps. She says adults who were once surrogate children are struggling with the commodification of the adoption process they went through in which they were transferred to new parents. ■

Merry Christmas from LawNews Photo: LazingBee / Getty Images

This is our final issue of LawNews for 2021 – a year many will be keen to put behind them.

ADLS and LawNews would like to thank all our members, readers, contributors and advertisers for their support during a long and challenging year and wish everyone a happy and relaxing festive season.

The first issue of LawNews for 2022 will be published on Friday 4 February.

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PROPERTY LAW

■ WebForms is not able to convert information

ADLS/REINZ Agreement for Sale & Purchase of Real Estate: Eleventh Edition 2022 ADLS is pleased to announce the release of the ADLS/REINZ Agreement for Sale and Purchase of Real Estate – Eleventh Edition 2022 on 8 February 2022.

This revised version contains significant amendments following a comprehensive review, taking into account changes in law and practice. This version has also undergone substantial formatting changes.

A highlighted sample version will be made available in WebForms, as a notification on the dashboard, on the release date.

Key changes to this version include: ■ bank cheques: provisions to allow for the discontinuance of bank cheques; ■ tax Purchase Price Allocation (PPA) rules: new provisions linking to a newly devised addendum addressing legislative changes to tax purchase price allocation rules; ■ conveyancing practitioners: amendments made to accommodate conveyancing practitioners;

■ claims for compensation: clarifications have been added to clauses 10 and 11 for situations where a claimant makes a claim; ■ limitation of liability: this clause has been amended in view of the Trusts Act 2019; ■ covid-19/pandemic provisions clause: a new covid-19 and pandemic provisions clause has been included; ■ warnings and disclaimers: these warnings and disclaimers have been scaled back and moved from the back page to the signing page.; ■ signatory provisions: the acknowledgement and warnings on the signing page have been updated; ■ reformatting: the document layout has been reformatted in several areas, including the signatory page and back page; and ■ all references to subclause have been changed to clause.

From a practical perspective, WebForms users should note that:

stored in Tenth Edition 2019 (2) drafts to the Eleventh Edition 2022. After the release, therefore, we suggest all drafts of the Tenth Edition are completed before the release date; ■ when the Eleventh Edition 2022 form is released in WebForms, users’ current stock quantity of the Tenth Edition 2019 (2) will automatically set against the new form. This means that any existing stock will not be lost; ■ users may finalise a Tenth Edition 2019 (2) draft after the 8 February 2022 release date (stock will be deducted from the new Eleventh Edition 2022).

However, for best practice, ADLS advises that users should always use the most up-to-date version of the form; and ■ after the release of the Eleventh Edition 2022, the Tenth Edition 2019 (2) will automatically be archived as an ‘obsolete’ form and will be available in only limited circumstances.

ADLS wishes to extend its gratitude and appreciation to the legal experts, in particular, Tim Jones, barrister, and also to our lead drafter, Thomas Gibbons, and to those from the real estate industry who have provided their highly valuable input into this review. A webinar explaining the changes and highlighting the implications for lawyers and their clients will be held on Thursday 3 February 2022. For registration details, please see page 14.

The Sale and Purchase by Auction and Sale and Purchase by Tender forms are under revision. Details of these release dates will be announced shortly. ■

NEW TITLE

AML/CFT in New Zealand – A Handbook for Lawyers and Accountants This book sets out the law and practice relating to AML/CFT issues, including the international context of the legislation, key risk issues to be considered, a framework for compliance, topical issues, due diligence and audit strategies, and legal issues arising from the AML regime.

The guide includes: ■ Undertaking a risk assessment for your organisation ■ Establishing an effective and appropriate compliance program ■ Customer due diligence issues ■ Specific risk issues, including PEPs, PTRs, SARs, record keeping and audits

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■ Cost-saving strategies, including systems integration and training tools.

Price $115.20 plus GST* Price for non-members $128.00 plus GST* (* + Postage and packaging) To purchase this book, please visit adls.org.nz; alternatively, contact the ADLS bookstore by phone: (09) 306 5740, fax: (09) 306 5741 or email: thestore@adls.org.nz. ■

Dec 10 2021 Issue 44

Xmas message from ADLS President

Marie Dyhrberg QC A year of two halves

Marie Dyhrberg QC

With summer upon us and the end of the year in sight, most of us are hanging out for the holidays. Those in Auckland are emerging from more than 100 days of living and working in lockdown and never has a Christmas break looked so good.

Nearly two years down the track, the pandemic still rages in many parts of the world as new variants of covid-19 emerge that may or may not have the ability to evade vaccines.

What does this mean for us – as professionals, as citizens and as human beings? If we thought last year was challenging and chaotic, how might we characterise 2021?

For many of us, 2021 has been a year of two halves. For the first seven months, life was almost back to normal. Our council and committees met in person (but with an option to Zoom), our CPD programs were ramping up and we even managed to get some great collegiality events off the ground until covid struck again in August and life as we knew it again came to an abrupt halt.

Among those events was a dinner we hosted in February to celebrate the remarkable career of former ADLS President and Distinguished Member Bob Eades, who was retiring after 69 years’ service to the law. A month later we hosted the inaugural ADLS annual breakfast with Chief Justice Dame Helen Winkelmann and in July members (and a good number of judges) gathered once again at Auckland’s Northern Club to celebrate the retirement of Professor Bill Hodge after a 50-year career teaching employment and constitutional law at the University of Auckland.

But the second half of 2021 has been all about learning to deal with isolation and uncertainty, coupled with workloads that, for some people, have bordered on the horrific as specialist committees of lawyers, heads of bench and Ministry of Justice staff battled to devise protocols to ensure the courts – an essential service – continued to function under some of the toughest lockdown restrictions on the planet.

It’s still not known when normal court business, including jury trials, will resume. In the meantime, urgent matters will continue to be dealt with via VMR. On the plus side, the highlight of 2021 was the vote last month by ADLS members to sell their biggest asset – the iconic Chancery Chambers building in downtown Auckland.

Getting this over the line was a mammoth job but, with a strong mandate to sell, we will put the building on the market early next year. We are grateful to all members who took the time to vote, no matter how they voted. Council explored every option before deciding to recommend the sale but the cost of refurbishment and making Chancery Chambers compliant with new earthquake codes was beyond our skill set and financial capacity, and no longer compatible with our core business of supporting and advocating for our members. A new owner is needed to restore the building to its former glory.

In the meantime, I’m hearing from members that exhaustion levels are high as they grapple with the demands and competing priorities of prolonged remote working. My advice is to hang in there – the finishing line is in sight – then take a good long break.

Last, but not least, a huge thank you to our hard-working committees and to all those who have supported us this year. On behalf of the ADLS Council, management and staff, I wish you all a happy and relaxing Christmas and a productive new year. ■

07

CASE NOTE

Family Court to determine property rights in ‘triangular’ relationship

Sacha Jugum

The decision includes consideration of the PRA as social legislation which must account for the diversity in relationships between people

A polyamorous relationship then formed of some 15 years’ duration, with the three people having a commitment ceremony, sharing one home and, at times, forming other relationships outside of this primary relationship Sacha Jugum Property (Relationships) Act 1976 – polyamorous relationships – jurisdiction to determine claims among three people – statute versus common law and equity – applicable principles – procedure – statutory interpretation – ‘workability’ – primary versus secondary relationship(s) – duration of relationship(s) – ‘contemporaneous’ relationships – ‘triangular’ relationships – public policy – precedent – Family Court has jurisdiction to determine claims as to property between persons in a polyamorous relationship.

Paul v Mead [2021] NZCA 649 (French, Collins and Goddard JJ) Note: this judgment discusses the differing terminology for a relationship between three people and reflects on the diversity of relationships between people. These parties’ particular situation is often referred to by the court as ‘polyamorous’ or ‘contemporaneous’, with recognition that other terms may also apply or be preferred in this or other situations.

Brett Paul and Lilach Paul were married and subsequently met Fiona Mead. A polyamorous relationship then formed of some 15 years’ duration, with the three people having a commitment ceremony, sharing one home and, at times, forming other

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relationships outside of this primary relationship. These other relationships were noted in themselves to potentially be qualifying relationships.

This Court of Appeal judgment determines the question of whether the Family Court has jurisdiction to determine property rights where the parties are in a polyamorous relationship.

Applicable principles – reference to procedure and discussion of the different applications made and defended by each party – Lilach Paul had, for example, earlier applied for a one-third share in the family home, which had originally been purchased by Fiona Mead – Mead had earlier filed a protest as to jurisdiction – detailed statutory analysis, including what comprises a qualifying relationship under the Property (Relationships) Act 1976 (PRA) and whether it is appropriate to divide such a relationship into separate parts, comprising separate relationships with and between each of the three people – discussion of the parties’ arrangements to demonstrate a qualifying relationship – consideration of the PRA as social legislation which must account for the diversity in relationships between people – assessment of parliamentary intention and the inclusion of contemporaneous relationships as being within Parliament’s contemplation – contrast between parliamentary amendment and judge-led law – reference to precedent – discussion of the ‘workability’ of these types of claims.

Held: appeal allowed – “[t]he Family Court has jurisdiction under the Property (Relationships) Act 1976 to determine claims to property as between two persons who were married, in a civil union or in a de facto relationship, and also in a polyamorous relationship – that jurisdiction extends to determining claims among three people in a polyamorous relationship, where each partner in that polyamorous relationship is either married to, in a civil union with, or in a de facto relationship with each of the other partners in that polyamorous relationship.” Read this decision here. ■ Sacha Jugum is a senior solicitor at Brookfields Lawyers and is the editor of The Bulletin ■

Dec 10 2021 Issue 44

TRUST/PROPERTY LAW

The impact of Preston may be short-lived Anthony Grant

Section 182, as interpreted by the Supreme Court, is in inherent conflict with Parliament’s resolve that a person should be able to retain as his or her separate property assets acquired prior to the inception of a relationship

The commission said in its 2019 report that “s 182… is based on a very old provision designed to deal with My last LawNews article concerned marriage settlements in the mid-19th the Supreme Court’s decision in century. It is out-of-step with the PRA’s Preston. principles and procedures”. It described In that case, the Supreme Court s 182 – accurately – as a ‘relic from the allowed the wife of a man’s second past’ and recommended it should be marriage to access wealth that the abolished and replaced by an expanded husband had acquired prior to the Anthony Grant s 44C of the PRA, a section which, if beginning of his relationship with his enacted, will not go anywhere near as second wife. far as s 182 in its power to modify trusts.

I wrote that this was contrary to one of the Law reform agencies around the world suffer fundamental principles of the Property Relationships Act (PRA), namely that a person is entitled to retain as from a reluctance by legislators to implement their proposals for reform but New Zealand is different. his or her separate property assets acquired before a In response to one of my articles a couple of relationship began. years ago, Sir Douglas White, who at the time was I concluded the article with the following statement: “The Law Commission is to review the PRA and it will hopefully recommend the abolition of s 182 and its replacement by a far more principled The Law Commission has regime.” said it has no intention of When I wrote that sentence, I was aware that resiling from what it has in 2019 the Law Commission had published its recommendations for reforming the PRA. Its recommended thorough report is 495 pages long. It recommended abolishing s 182 but I was not confident that this recommendation would survive a unanimous the President of the Law Commission, wrote to me decision of five judges in the Supreme Court, giving with details of the commission’s record of success express approval to a section they said authorised in getting Parliament to implement its proposals for the courts to distribute to a spouse assets that reform.

Parliament had said elsewhere should not be He referred to an article that a former President of distributed to that person.

In response to my article, I am pleased to report the the Commission, Sir Grant Hammond, had written on Law Commission has said it has no intention of resiling this subject for the Waikato Law Review in 2016.

Sir Grant reported that since the commission’s from what it has recommended. If the government creation in 1985, it had produced 139 reports and that asks it to review its recommendation it will do so, but “most, have been adopted wholly or in part…” He said not otherwise.

Law reform agencies around the world suffer from a reluctance by legislators to implement their proposals for reform but New Zealand is different

there had been a 79% adoption rate by Parliament of the 29 measures the commission had recommended between 2004 and the date of his article.

The figures he gave were not quite as good as that. For example, one of the proposals had been only ‘partially accepted,’ and another was ‘awaiting a legislative vehicle,’ while nine had been ‘substantially’ but not fully accepted. Even so, the success rate was impressive. Sir Grant said an adoption rate of 79% was the highest of 12 similar commissions in the Commonwealth.

Section 182, as interpreted by the Supreme Court, is in inherent conflict with Parliament’s resolve that a person should be able to retain as his or her separate property assets acquired prior to the inception of a relationship.

I am pleased to write that the Law Commission’s statement that it does not propose to review its recommendation for s 182 in the light of the Preston case signifies there appears to be a reasonable prospect that s 182 will be abolished and the Preston decision will have only a short-term impact on our law.

■ Anthony Grant is an Auckland barrister specialising in trusts and estates ■ 09

Photo: Hagen Hopkins / Stringer / Getty Images

Roy Morgan) confirm its waning glamour.

By the same token, the stubborn failure of National’s numbers to improve reflects the public’s view that the Opposition needs to do a lot more to warrant being taken seriously.

Judith Collins’ stewardship of the party had about it the febrile quality of a histrionic Italian opera. Though few would deny the diva a round of applause for her final scenes (which for sheer grandiloquent drama rivalled those of the National leader she most resembled, Rob Muldoon), they did little to dispel the public’s growing unease that, when it comes to governing New Zealand, there is an alarming absence of adults in the room.

As the French general is said to have remarked as the Light Brigade charged to their deaths at the Battle of Balaclava: “It’s magnificent – but it isn’t war.”

Christopher Luxon

A real choice

POLITICS/OPINION

Liberal democracies work better when there is a genuine choice between two alternative futures with two credible leaders

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Well, now it is war. The elevation of Christopher Luxon has produced a sigh of collective relief across the nation, even among those who lean more to the left than to the right. Here, at last, is a National Party leader who most voters can easily visualise becoming their future prime minister. This is a good thing: liberal democracies work better when there is a genuine choice between two alternative futures with two credible leaders.

Which is not to say that from here on in it will all be plain sailing for Luxon. Far from it. He comes to the Leader of Chris Trotter the Opposition job with less parliamentary experience than any politician in New Zealand When poetic language is elicited from no less history. This leaves him in the unenviable (not to a political brawler than Ross Meurant, then you say dangerous) position of having to make his know ‘something’s goin’ on’. According to the inevitable mistakes while everybody’s watching. former 2IC of the police Red Squad, of Springbok Most party leaders come to the job after tour fame, the ‘long dark night’ of the National several years on the Opposition benches. Making Party’s humiliation has been brought to a joyous a fool of yourself from this position, when there’s end by Christopher Luxon and Nicola Willis. little possibility of any real harm being done, is all It is, says Meurant, himself a former National part of the learning experience.

Party MP, ‘the dawning of a new day’ for the Chris Trotter Remember John Key describing Michael many “thousands of National voters who had Cullen’s Working For Families scheme as abandoned the political party which had served ‘communism by stealth’? Risible, but hardly fatal. Only by firing as their natural refuge for decades”. out the odd rhetorical ranging-shot can a politician get a feel for Meurant’s not wrong. It has been a long dark night for where the boundaries lie: what he can get away with saying, and National’s long-suffering supporters as they watched the party what he can’t. Luxon will have to discover these boundaries on of Holyoake, Muldoon, Bolger and Key stumble, punch-drunk, the job. from one disastrous leader to the next.

Luxon’s links to John Key have prompted some to wonder For these bewildered centre-rightists, the elevation of the highly successful former CEO of Unilever (Canada) and Air New whether he will follow his mentor’s example by organising a flurry of politically symbolic ‘positioning’ events.

Zealand has, indeed, been greeted as the first glimmer of a new Key certainly hit the ground running following his elevation dawn for National. to the leadership in November 2006. He set in stone his ‘from Nor is that palpable sense of relief peculiar to National’s state house to Merrill Lynch’ origin story in a speech delivered diehard supporters. The conduct of Jacinda Ardern’s Labour in the Christchurch suburb of Burnside, where he grew up. Key government, with its unassailable parliamentary majority then visited McGeehan Close, a poor neighbourhood in the (a result considered impossible under MMP’s proportional representation rules) has not been equal to the challenge of preserving the extraordinary public confidence that created it.

Continued on page 11 Labour’s declining poll numbers (36%, according to the latest

The gift of a brand new day

Dec 10 2021 Issue 44

Continued from page 10

heart of Helen Clark’s electorate, where he promised to take Aroha, the young daughter of one of its state house tenants, with him to the Waitangi Day celebrations in February 2007. Clearly, New Zealand now had a National Party leader quite unlike the ideologically flinty Don Brash.

Luxon’s challenge is a different one. Where Key needed to dispel the lingering public anxieties arising out of the divisive ‘Iwi/Kiwi’ campaign of 2005, National’s new leader has only one crucial task to perform. He has to be as unlike Simon Bridges, Todd Muller and Judith Collins as possible.

That means behaving like a person who knows what he wants to do, and who possesses the leadership skills to persuade his colleagues to help him do it. That may sound ridiculously simple and prosaic but in a caucus as bitterly factionalised as National’s it would be more than enough to win the public’s respect and trust. Luxon’s immediate predecessors have set the competency bar pretty low.

Uninspired line-up Certainly, National’s new leader is a long way from being overburdened with stellar political talent. The top 10 picks for his Shadow Cabinet are hardly inspiring. Bridges has not hitherto demonstrated much in the way of economic fluency. Still, he has more than enough brains to master Treasuryspeak, and more than enough mongrel to make Grant Robertson’s life miserable. Chris Bishop has been highly ranked, but his talents are being poorly utilised.

The battles that loom, and the novel allegiances that may need to be cemented by 2023, show scant evidence of being anticipated in Luxon’s picks. Appointing the dry-as-dust neoliberal, Paul Goldsmith, as National’s Justice spokesperson seems a strange decision in light of the controversies that lie ahead over constitutional issues and fundamental civil rights. Likewise the decision to give him Workplace Relations. Is Goldsmith really the man to detach working-class votes from Labour as its self-ignited culture wars intensify?

Surely, the most valuable qualities in the conflicts to come are warmth and reasonableness. Unbending ideological rectitude is the political illness National will be expected to cure. That is most unlikely to be achieved by giving the job to individuals suffering from the same disease. Not to worry, there are still two more years to play pick-n-mix with National’s caucus.

Luxon’s immediate priority is to pat the fur of angry kitties and be liberal with the creamy treats. Nothing is more likely to impress New Zealanders after so many tumultuous months than the spectacle of a united and energetic National Opposition.

Swinging voters Tens of thousands of centre-right votes, currently parked (rather uncomfortably, one suspects) in Act, are there for the taking if National shows signs of straightening up and flying right.

Hundreds of thousands more, the deserters of 2020, may yet be persuaded to return to the Tory fold if only Luxon can demonstrate (as Key did so shrewdly) that, on the issues that really matter, he can fly a little bit left as well. ■

Chris Trotter is a political commentator and writer of more than 30 years’ experience. He is the editor of the Bowalley Road blog ■

Expressions of Interest Chairperson – Human Rights Review Tribunal Expressions of Interest are sought from suitably experienced candidates for appointment as Chairperson of the Human Rights Review Tribunal.

The Tribunal hears and determines proceedings lodged pursuant to the Human Rights Act 1993, the Privacy Act 1993 and the Health and Disability Commissioner Act 1994 after complaints have first been dealt with by the Human Rights Commission, the Privacy Commissioner and the Health and Disability Commissioner pursuant to their respective Acts. The principal matters considered by the Tribunal concern discrimination, sexual and racial harassment, misuse of personal information and breaches of professional health standards.

This is a full-time role and the Chairperson must be a barrister and solicitor of the High Court of not less than 5 years’ practice with career experience at a senior level.

Appointments to this role are made by the GovernorGeneral on the recommendation of the Minister of Justice for a term not exceeding 5 years and may be reappointed.

Expressions of interest must be received by 5 pm Friday 17 December.

Deputy Judicial Conduct Commissioner Expressions of Interest are sought from suitably experienced candidates for appointment as Deputy Judicial Conduct Commissioner pursuant to s.8A of the Judicial Conduct Commissioner and Judicial Conduct Panel Act 2004.

The role of the Deputy Commissioner is to receive and examine complaints about the conduct of Judges for the purpose of enhancing public confidence in, and to protect the impartiality and integrity of, the judicial system.

Appointments to this position are made by the GovernorGeneral on the recommendation of the House of Representatives and the term of appointment is not less than two years and not more than five years (reappointments may be made).

An Expression of Interest form, Statutory Declaration and a position description can be found here.

Expressions of interest must be received by 5 pm Friday 10 December.

11

COVID-19/MARITIME LAW

Stranded Kiwi seafarers

call for specific MIQ allocation Rod Vaughan A leading academic lawyer who specialises in the law of the sea has slammed the government’s treatment of New Zealand seafarers stranded overseas because of the MIQ booking system.

Dr Sofia Galani, Assistant Professor of Public International Law at Panteion University in Greece, says the government’s refusal to allocate a small number of MIQ rooms for seafarers trying to return home raises concerns under international human rights law as it severely restricts their rights to enter their own country.

Hundreds of New Zealand seafarers – a key part of the heavily disrupted global supply chain – are being left high and dry in countries all over the world, many for more than six months at a time, causing them and their families considerable stress.

They come from diverse marine backgrounds: some work on passenger and cargo ships, others on offshore oil and gas support vessels, dive support craft, oil rigs, seismic survey vessels, subsea cable lay-and-repair ships, fishing vessels, hospital ships and superyachts.

Most do not work overseas by choice as in most cases there are no equivalent jobs in this country.

Marine engineer Alan Pearman, who works on construction vessels in the Australian and south east Asian oil and gas fields, is one such example.

For nearly 40 years the Bay of Plenty resident has enjoyed unrestricted 12

Despite designating seafarers as essential workers in accordance with International Maritime Organisation (IMO) resolutions, the New Zealand government has steadfastly refused to grant MIQ priority access to returning seafarers

Most do not work overseas by choice as in most cases there are no equivalent jobs in this country

repatriation back to New Zealand upon completion of his duties.

“The system worked well until last year when I found myself locked out of my home country and not even recognised as an essential worker,” he says. “As a result of the New Zealand government ignoring its UN obligations, I have had less than four weeks at home in the past 16 months.”

Pearman, who has been stranded in Australia for almost six months, says the seemingly never-ending absences from home have caused him and his family considerable mental anguish and fatigue. During one such stranding, his wife was seriously injured in a car crash but he was not given an exemption to return to New Zealand on compassionate grounds.

“Shipping companies are very accommodating when a person needs repatriation on compassionate grounds but they struggle to understand the stance of the New Zealand government towards their seafarers,” Pearman says.

“I am saddened by the apparent lack of empathy in some of the decisions made by faceless bureaucrats. The MIQ lobby draw is ineffective and demeaning. Let’s hope it will soon be a thing of the past. I prefer the Australian method where the MIQ allocations

are given to the airlines. You purchase an airline ticket and you also get a guaranteed MIQ booking. So simple.”

Master Mariner Kevin Judkins is another New Zealander who has spent months marooned overseas.

He told LawNews that despite designating seafarers as essential workers in accordance with International Maritime Organisation (IMO) resolutions, the New Zealand government has steadfastly refused to grant MIQ priority access to returning seafarers.

“The injustice of the current situation is that a foreign seafarer is able to enter New Zealand to join or disembark a vessel using the ‘maritime allocation’ corridor reserved for seafarers with MIQ but a New Zealand seafarer is denied similar access when signing off their vessel in a foreign port.

“Earlier this year MIQ created bunk space for 500 Russian and Ukrainian fishermen to enter the country en masse, thus proving that logistics are not an issue and in turn indicating that there are no practical reasons to not feed bunk space to returning New Zealand seafarers.”

Judkins says it is incomprehensible that the New Zealand government chooses to remain ‘a pariah maritime

state’ when it could easily extricate itself from the predicament it has created for itself.

“Simply granting incoming New Zealand seafarers 20 bunk spaces per fortnight within the 60-bunk-space maritime allocation would restore New Zealand’s image in the international maritime fraternity.

“It is morally indefensible that the New Zealand government claims to abide by the Maritime Labour Convention when catering to foreign seafarers while dogmatically denying the same legal right of repatriation to New Zealand seafarers when a simple

Continued on page 13

Alan Pearman

Kevin Judkins

Dec 10 2021 Issue 44

Continued from page 12 solution is so easily within reach.”

None of which is lost on Sofia Galani who believes the treatment being meted out to New Zealand seafarers is seriously flawed and leaves them without any legal protection.

“By requiring New Zealand seafarers to enter a lottery for a place in the MIQ queue like other travellers who wish to enter the country, New Zealand has essentially failed to properly implement IMO Resolution MSC.473(ES.2).

“Furthermore, the vagaries of the shipping industry further disadvantage New Zealand seafarers compared to shore-based New Zealand nationals who wish to enter the country.

“For example, poor quality internet on board vessels causes the MIQ site to time out; seafarers often do not know which port or which date they are due to pay off; crew managers do not issue flight tickets until the day before a seafarer is due off the vessel or rig, meaning that it is impossible to confirm a booked MIQ spot within the required 48-hour window.

“This has meant for hundreds of them that they are either stranded abroad unable to return home or are stuck home unable to take up employment opportunities out of fear that they will not be able to be repatriated once their employment contract ends.”

Galani also questions whether New Zealand’s Covid-19 Public Health Response (Maritime Border) Order (No2) 2020 is compatible with international law.

“The New Zealand government has defended Order 2020 as legal and compatible with international labour standards. Their argument is based on the non-mandatory nature of Guideline B2.5.2 of the Maritime Labour

The injustice of the situation is that a foreign seafarer can enter New Zealand to join or disembark a vessel using the ‘maritime allocation’ corridor reserved for seafarers with MIQ but a New Zealand seafarer is denied similar access when signing off their vessel in a foreign port

Convention, 2006 (MLC, 2006) which concerns the repatriation of seafarers.

“According to this provision, states are encouraged to take every possible step to assist seafarers stranded in a foreign port and only flag states are obliged to ensure the repatriation of seafarers on board vessels flying their flags (Standard A2.5).”

Galani says acting on written advice from Maritime New Zealand, Covid-19 Response Minister Chris Hipkins signed a briefing paper agreeing that New Zealand’s actions may be inconsistent with the spirit of the MLC, rather than in breach of New Zealand’s convention obligations.

“This has given confidence to the New Zealand government that there is no legal requirement for New Zealand to facilitate crew changes on non-New Zealand flagged vessels outside of its territory and that Order 2020 cannot be legally challenged, leaving New Zealand seafarers effectively without any legal protection.

“This argument, however, is both legally and morally indefensible.”

Galani says the government’s designation of seafarers as ‘key workers’ is also meaningless and undermines the aim of the IMO resolution.

“This practice also raises concerns under international human rights law as it severely restricts the right of New

Zealand seafarers to enter their own country.

“The freedom of movement is widely recognised in international human rights law (Article 13 UDHR; Article 12 ICCPR; Article 3 of Protocol No. 4 of the ECHR; Article 22 (5) ACHR; Article 12 ACHPR) and is also safeguarded under Section 18 of the New Zealand Bill of Rights Act 1990.

“Among others, the right to freedom of movement gives an individual the right to enter his/her country. The right is not absolute and can be restricted on various grounds, including for the protection of public health (Article 12 (3) ICCPR).

“This restriction, however, cannot be arbitrary and often requires meeting a proportionality and necessity test (Article 12 (4) ICCPR, CCPR General Comment No. 27).

“Restrictions which make it practically impossible for a national to enter his/her own country, as happens with Order 2020 and the MIQ requirements, should be considered disproportionate.”

Galani says the New Zealand government is fully aware of the impact of Order 2020 on New Zealand seafarers and has been repeatedly urged to amend it in order to enshrine the rights of New Zealand seafarers who work on foreign flag vessels.

“Unfortunately, it has not been positive towards any immediate changes and continues to knowingly discriminate against and disadvantage its own nationals.

“Once again, the New Zealand government is urged to reconsider its approach and review its legislation and practices in order to rectify this unintended but very problematic legal error which has left hundreds of New Zealand seafarers stranded at sea.”

Not surprisingly many New Zealand seafarers have been left with little choice but to throw in the towel, Kevin Judkins being one of them.

“I have been unemployed since being released from my last MIQ in January this year,” he says.

“At 61years old, in spite of being one of the most experienced seafarers currently licensed by Maritime New Zealand, I have reluctantly accepted the probability that covid-19 has likely forced me into an early and unexpected retirement.

“Like most in my situation, I am eating into my savings, being ineligible to apply for any covid-related benefits as I was not employed by a New Zealand company.”

Others like Alan Pearman are still determined to keep going back to sea.

“You may well ask why I bother to go back to work,” he says.

“Well, I believe all seafarers are part of the global supply chain and being an island nation Kiwis must realise that the vast majority of all the goods and products we import must come by sea.

“So I don’t get bitter and play the name-and-blame game. It is my belief that there are people in New Zealand making decisions way beyond their capabilities.

“Perhaps in hindsight the best way for Alan Pearman to secure an MIQ booking would have been to assume the character of the Grey Wiggle.” ■ 13

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The ADLS/REINZ ASPRE 11th edition UPDATE PROPERTY AGREEMENT

Webinar 1.5 CPD hrs Thursday 3 February 1pm – 2.30pm Presenters Tim Jones, barrister and Thomas Gibbons, principal, Thomas Gibbons Law

On 8 February 2022, ADLS/REINZ will release the 11th edition of the Agreement for Sale and Purchase of Real Estate. In this webinar, Tim Jones and Thomas Gibbons will outline and provide the rationale for the changes, highlighting the implications for both lawyers and their clients.

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Dec 10 2021 Issue 44

adls.org.nz/cpd

Immigration policy changes RESIDENCE VISAS DEVELOPMENTS

Live Stream 2 CPD hrs Wednesday 16 February 4pm – 6pm Presenters Pooja Sundar, partner, D&S Law and Lauren Qiu, principal, Stay Legal Chair Stewart Dalley, partner, D&S Law

cpd@adls.org.nz

09 303 5278

The immigration landscape is constantly evolving. Add covid-19, lockdowns and border restrictions into the mix and what you get is a recipe for unprecedented change to immigration policy. Perhaps most notable is the introduction of the 2021 ‘one-off’ resident visa which will be tested for the first time in December 2021.

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Webinar 1 CPD hr Thursday 17 February 12pm – 1pm Presenter Carlene O’Meagher, senior customer success manager, LawVu

Discover how to use Microsoft Outlook to best effect. This session will cover Outlook functions and shortcuts to overcome email deluge, stay focused, and gain productivity. You will learn about email phishing and security, and see Outlook’s role in conjunction with other communication platforms including Microsoft Teams and Slack.

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

Forensics never goes away. Every contact leaves a trace. This workshop will take you behind the scenes as a crime scene investigator, giving you a greater understanding of what type of evidence is preserved from the scene and used effectively in court, the importance of the chain of evidence and an insight into how to deal with expert forensic witnesses.

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HANDS-ON INSIGHTS CLARITY

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CPD IN BRIEF

Drafting contracts with tech issues in mind

In Person | Live Stream 1.5 CPD hrs Tuesday 1 March 4pm – 5.30pm Presenters Arran Hunt, partner, Stace Hammond and Edwin Lim, partner, Hudson Gavin Martin

Drafting contracts that take into account technology matters might not be front-of-mind but getting it wrong can have serious implications.

With application to various areas of practice, this seminar will cover key terminology, boilerplate clauses, privacy and more.

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Personal effectiveness workshop 2022

Workshop (Auckland) 4 CPD hrs Thursday 3 March 9am – 1.15pm Presenter Tony Gardner, managing director, Archetype Leadership + Teams

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Living with the Residential Tenancies Act

Webinar 1.5 CPD hrs Thursday 3 March 12pm - 1.30pm Presenters Des Wood, barrister and Nathan Tetzlaff, associate, Smith & Partners

The Residential Tenancies Act has had numerous amendments in recent years. The most recent amendment features some significant changes.

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FPA and TPA claims: an update

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The ADLS/REINZ Agreement for Sale and Purchase of Real Estate: 11th Edition 2022 − Information and Insights Thursday 3 February 2022 | Webinar | 1.5 CPD hours Visit adls.org.nz for more information.

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LIVESTREAM

Dec 10 2021 Issue 44

Events Featured events

Connecting New Zealand Lawyers

Christchurch breakfast with the Chief Justice Dame Helen Winkelmann Friday 11 February, 2022 7.15am – 8.30am The George, 50 Park Terrace, Christchurch Learn More

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

Upcoming February

Friday 11 | Christchurch breakfast with Chief Justice Dame Helen Winkelmann Thursday 24 | New Plymouth sundowner

March

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

April

Wednesday 6 | Rotorua lawyers’ lunch

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

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

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

Soon to be added:

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

Book Here

Learn More

events@adls.org.nz

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17

WILL INQUIRIES

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

LawNEWS: The no-hassle way to source missing wills for $80.50 (GST Included) reception@adls.org.nz DX CP24001, Auckland 1140

ADLS, PO Box 58, Shortland Street, Fax: (09) 309 3726

(09) 303 5270

BOUTSADY Niveth

SAVIDAN Graham Neil

• Late of 10 Midgley Road, West Harbour, Auckland • Engineer • Aged 70 / Died 16’10’21

• Late of 22 Kupe Drive, Whitianga • Married • Company director • Aged 74 / Died 08’11’21

JELLICK Joan Margaret • Late of 2 Rerewai Place, Tikipunga, Whangarei • Retired • Aged 92 / Died 18’11’21 JONES Sarah Te Huingawaea • Late of Tokoroa, New Zealand • Widow • Aged 100 / Died 16’11’21 MATAUPU Christopher • Late of 16 Grampian Street, Springfield Lakes, Queensland, Australia, Previously resided pre 2012 in Auckland, New Zealand • Aged 29 / Died between 06’09’15 and 07’09’15

STEADMAN Lani Laura • Late of 387 Onehunga Mall, Onehunga, Auckland • Architectural draughtsperson • Aged 56 / Died 30’09’19 WANG Mei-Lan (nee YEH), (a.k.a WANG, Mei-Lan Yeh) • Late of New Taipei City, Taiwan • Married • Aged 72 / Died 03’10’15

FOR SALE Law practice + Freehold property Rarely does an opportunity such as this come along. A wellestablished, successful law practice plus a freehold title is offered for sale in South Auckland.

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Currently operating as a sole practice, with support, this centrally located business offers a home and income proposition and an excellent property investment.

The accompanying freehold property contains two separate dwellings, one a dedicated office the other residential.

The current principal is willing to remain with the new owner(s) for an agreed period to ensure a seamless transition.

All enquiries in strictest confidence to: advertisier@adls.org.nz Quoting reference: SA1221

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WANG Ting-Cheng

This space could be yours

• Late of Kaohsiung City, Taiwan, previously resided in New Taipei City, Taiwan • Widower • Aged 91 / Died 24’09’21

LawNews reaches a discerning audience of nearly 6000 lawyers, judges, politicians and academics every week.

Get your message in front of them.

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

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Dec 10 2021 Issue 44

The Deportation Process – A Practical Guide for Lawyers Wednesday 16 March | 4.00pm - 6.15pm If your client is facing deportation, an urgent and thorough response is required. Having a clear understanding of each step in the process, who to contact and when, your role (and that of your client, INZ, MBIE Legal, and the courts), and any issues to be aware of, is therefore vitally important.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

Rural Law Series: Demisting the Environmental Fog Thursday 17 March | 12.00pm - 1.00pm Covering a range of rural diligence environmental issues, this webinar will benefit practitioners to demystify and digest the wave so you can navigate and advise safely and with best practice.

T 09 303 5278

E cpd@adls.org.nz

W adls.org.nz/cpd

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