Lawyers and Conveyancers Amendment Bill

I move, That the Lawyers and Conveyancers Amendment Bill be now read a second time. I thank the Justice and Electoral Committee for its careful consideration of the Lawyers and Conveyancers Amendment Bill. The committee recommends that the bill be passed with amendments. I consider that the recommendations proposed by the committee clarify the intent of the bill and will improve its implementation. The bill restores the title of Queen’s Counsel to the office currently known as Senior Counsel and, in general, restricts eligibility to that rank to barristers in sole practice. The bill also makes some minor amendments to enhance the functioning of the Lawyers and Conveyancers Act 2006.

The committee received and heard six submissions from professional organisations, interested groups, and individuals. The majority of submissions commented on the Queen’s Counsel provisions. The main issues raised in submissions related to reinstating the title of Queen’s Counsel, the restrictions on eligibility, and the mode of practice once appointed. Restoring and protecting the independence of Queen’s Counsel in New Zealand reflects the public purpose and status of the position. It identifies leading advocates in New Zealand and provides official recognition of excellence. The bill also places practice restrictions on Queen’s Counsel. Once appointed to the rank, Queen’s Counsel will be required to continue to practise independently. The restriction on practice is to ensure that Queen’s Counsel are able to independently advise and represent their clients, without the pressure and conflicts of interest that arise more often when working in a partnership or incorporated firm.

The bill contains savings and transitional provisions in relation to practice arrangements entered into by Senior Counsel and Queen’s Counsel between August 2008 and the commencement of these provisions, which is planned for 3 December 2012. The bill clarifies that any practice arrangements entered into by Senior Counsel and Queen’s Counsel during this period will be unaffected by the new provisions. The right to title and to retain the practice arrangements entered into during this period remains for those appointments. The bill also preserves the Governor-General’s power to appoint other lawyers as Queen’s Counsel in recognition of extraordinary contributions to the field of law.

The committee has recommended some technical amendments to the provisions relating to Queen’s Counsel, to more accurately reflect the policy intentions of the bill. I thank the committee for its excellent work in analysing these provisions and for its recommendations to ensure that the policy intent of the legislation is clear and unambiguous. I support the committee’s recommendations. The bill also allows a qualifying trust to be a non-voting shareholder in an incorporated law firm or incorporated conveyancing firm. This arrangement will avoid the need for a proliferation of relatives having to hold shares in their own right. It will also enable children and grandchildren who are minors to benefit from income through distributions from the trust.

The select committee has recommended one minor amendment to clarify the definition of a qualifying trust, to make it clear that any one, or more, or all trustees could hold their shares in the firm as trustees of a qualifying trust. I support the select committee’s recommendations. I also intend to table a Supplementary Order Paper at the bill’s Committee stage, proposing further minor amendments to the bill. Once again, I thank the members of the Justice and Electoral Committee for their careful and thoughtful consideration of the bill. I commend the Lawyers and Conveyancers Amendment Bill to the House.

The Minister of Justice thanked the Justice and Electoral Committee for its work on this Lawyers and Conveyancers Amendment Bill, and that is good of her, but most of that work was completed over 2 years ago. Most of the members of the committee who served on it, who heard the submissions that she mentioned, are now—well, looking at the list—either not in the House, members of the executive, or members of other committees. So—

💬 Hon Jo Goodhew: It doesn’t make them any less worthy, Mr Chauvel.

We have just had an interjection from Jo Goodhew, saying that none of that matters. Actually, it matters for this reason, Ms Goodhew—it matters for this reason. This Government needs to actually take justice legislation seriously, not progress it through with the leisurely pace that we are seeing. It might be helpful to have people who actually heard the evidence speaking on the bill, rather than what I apprehend will happen tonight. But that is all right because we will just see the Government members reading the notes from their research unit, as we always do, rather than actually debating the merits of this bill on the basis of the evidence they heard. That would actually be something that would be a novel experience for this House, and probably quite a good experience; never mind that we are not going to get it tonight.

The bill is divided into two parts. The Minister touched very briefly in her concluding comments on the second part of the bill, which actually does contain some sensible amendments. She said she was going to move a Supplementary Order Paper to those parts. It will be interesting to have a look at what the contents of that Supplementary Order Paper will be. But the problem with this bill is that it will do what it does in Part 1, and that is to restore the title of Queen’s Counsel to our most senior lawyers. The last Labour Government ended a number of our links to our colonial past. We did away with the Judicial Committee of the Privy Council appeals. We did away with the award of knighthoods and other honours of British origin, and we did away with the annual practice, clouded in obscurity, of appointing certain senior lawyers to the rank of Queen’s Counsel.

In respect of that last reform what we did was we opened up the process. We made it very transparent. We said that it was not just senior barristers practising at the Bar who could apply for this status but any lawyer practising anywhere in the profession, and we said that rather than call them Queen’s Counsel we would follow the practice of Canada, Australia, the rest of the Commonwealth, and particularly those states in Australia with which we are trying to harmonise our legal practice, and we would refer to these most eminent lawyers from now on as Senior Counsel. One round of appointments to Senior Counsel rank occurred under the Labour Government and then there were no more appointments. There have been no appointments to that rank under this Government since it took office.

Why does that matter? Well, the Canterbury earthquake is a big part of that. There has been a lot of opinion work for insurers and reinsurers. There has been a lot of litigation. One of the conditions that international commercial organisations often put on the qualifications of those who ought to lead such opinion work or lead such litigation is that they should hold the rank of Senior Counsel or the equivalent. We have seen New Zealand lawyers over the last 4 or 5 years miss out on work that they ought to be doing, which they are qualified to do, simply because the Attorney-General has not felt moved to exercise his powers under the Lawyers and Conveyancers Act to appoint Senior Counsel, because he is determined, and his ministerial colleagues are determined, that we will revert to this archaic title of Queen’s Counsel. We oppose that, and I just want to run through some of the reasons for that opposition.

There are three reasons why the Government says that we should do this. The first is that it speaks of a historical link that we should preserve. The restoration of the title of Queen’s Counsel is said to recognise that historical link between certain senior lawyers and the Crown. It is true that in ancient times in England the rank of Queen’s Counsel denoted the existence of a barrister who would work solely for the Crown and not necessarily for reward. But for many centuries now, and in all jurisdictions to which the rank has spread, Queen’s Counsel have acted for a wide variety of clients, including private individuals, corporates, and quasi-government organisations. Most QCs who practise in New Zealand today have acted only occasionally, if ever, for the Government itself. If they do, they do it on instruction from the Crown solicitors because they are members of prosecuting panels in the big cities, or on instruction from the Solicitor-General as chief executive of the Crown Law Office. The original notion of a special relationship between the Queen and Queen’s Counsel is simply redundant.

Some submitters who did support reinstatement of the rank argued that while New Zealand continues to recognise the Queen as head of State, and to award royal honours such as knighthoods, it is logical that the rank should be retained, but that is not the practice in Australia. We are trying to harmonise as much as possible on a commercial basis our legal practice and profession with Australia’s. Why would we retain this anomaly when Australia has done away with it many years ago?

The second reason that is advanced for going back to the old archaic title of Queen’s Counsel is that this will somehow enhance the independence of the legal profession. It is never made quite clear, when this argument is advanced, how this will occur or where the threat to the independence of the legal profession comes from. If it comes from the Government, then the assertion would actually contradict the first argument in favour of going back—that there is some sort of special link between the Crown and Queen’s Counsel. Well, either there is a special link or they are independent. You cannot, actually, have it both ways. If the threat to independence comes from commercial interests, then what we should remind ourselves is that we have one of the best regulated and most ethical legal professions in the Commonwealth, probably in the common-law world. Every barrister and solicitor who practises in New Zealand is subject to very, very strict rules of conduct that are enforced both by the High Court, because all lawyers are officers of the court, and by the New Zealand Law Society, to which lawyers generally belong, and which operates professional discipline organisational requirements.

Then there is this odd monopoly that having this title actually gives to certain senior lawyers. What Judith Collins proposes is to take back the title and give it only to lawyers who choose to be barristers and practise at the Bar. So you have to uproot yourself from your law firm, you have to go to the Bar, and you have to hope that under some new but archaic appointments process the nod will somehow be given and you will become a Queen’s Counsel. Well, the third reason for opposing it is that we opened up the selection process. We made it transparent. Everybody could understand how it was possible to become a Senior Counsel, and it was possible to do that whether you were in a firm, at the Bar, in Government service, or practising elsewhere. This move would close the appointments procedures back up. We would go back to the nod and the wink, and all the mystery, and the club of the single-gendered, monochromatic appointments that we have seen in the past.

This is a great leap backwards. It is largely symbolic, but it will have some important commercial side effects that I have tried to outline in my speech. I think that it will be interesting to see how Peter Dunne, a republican, votes in respect of this legislation. It will certainly be interesting to me how the Māori Party, which has negotiated a constitutional review with the current Government—which this move seems to me to cut straight across—will vote in respect of this legislation. I certainly hope that sanity will prevail, and that there will be a careful consideration of whether this is really the direction that we want to take New Zealand’s legal profession in. I, for one, do not want to see it, and I want to put on the record now that this is one of the moves that the next Labour-led Government will make it a priority to reverse.

I am very happy to support this bill, the Lawyers and Conveyancers Amendment Bill, at its second reading. I agree that it is good to see this measure back before the House. It was first considered by the last Parliament and then, as has been noted, it was referred to the Justice and Electoral Committee, which at that time was chaired by the Hon Chester Borrows. It received detailed consideration and the hearing of submissions, and it has been returned to the House after a very thorough process. As I am now the chairman of the Justice and Electoral Committee—and Mr Chauvel has noted that there have been a number of changes, and I was not on the committee in the previous Parliament—I do, therefore, acknowledge the work not only of the Hon Chester Borrows but also of all members of the committee in the previous Parliament. I thank them for the very careful attention to detail that is reflected in the report that was produced for the House.

I think it is disappointing to hear that the Labour Party remains opposed to the bill, given that it sees so much of value in it. Indeed, when I look at its minority opinion in the select committee’s report I see that it indicates that the Labour Party said that the bill “contains some sensible changes.”, and so it does. But still, as we have just heard, the Labour Party will, nevertheless, vote against them. I believe that that decision will be regretted by the many members of the legal profession who submitted in favour of this bill and who raised valid and significant concerns about the changes that the previous Labour Government introduced without a mandate, it has to be said, and without any evident public support at the time it introduced its Lawyers and Conveyancers Act of 2006.

The title of Queen’s Counsel has a very long and proud history. It is widely recognised, not just in New Zealand but internationally, as indicating that the person upon whom the title has been bestowed is a lawyer of considerable experience and ability. That cannot be said of Labour’s replacement title of Senior Counsel, which may suggest experience but says nothing of quality. It is right that the profession should have its traditional badge of honour restored, for it is an honourable profession, steeped in tradition, and administers the Queen’s justice. Mr Chauvel was disparaging about that a few moments ago, but I want to say to Mr Chauvel that we should be proud of that aspect of our culture, rather than always seeking to belittle and overturn anything that reflects the heritage that many of our ancestors brought to these shores from Britain.

Labour MPs and some others seem to think that traditions such as the title of Queen’s Counsel or a royal honour reek of colonialism and are therefore something to be consigned to history.

💬 Hon Parekura Horomia: Those limey colonisers.

My view, and that of many other New Zealanders, is that our justice system, like our political system, is world leading because it originated in Westminster. So let us celebrate that fact, rather than scoff at it.

💬 Phil Twyford: Let’s bring back feudalism.

It is a gift and a guarantee of quality of which all New Zealanders may be proud. Mr Twyford called out “Let’s bring back feudalism.” What a fascinating concept, but what an intriguing insight that is to the mind-set of the Labour Party.

As I have just said, I am very proud of our heritage. Mr Horomia interjected a few moments ago—something about Māori colonisation or something. To my mind, we are a richer society for the fact that we blend our Māori ancestry and our British ancestry, and the many other cultures that come here, in a way that has enriched us all. Let us celebrate all of it and not be disparaging about the aspect that the majority in this country are still descended from.

I want to conclude by saying that the Minister of Justice has indicated that the Government has accepted the recommendations of the previous Justice and Electoral Committee in its report, and the bill now reflects the changes the committee proposed. We will have a chance, obviously, to discuss those proposed amendments during the Committee stage of the bill as it progresses through the House, along with the Supplementary Order Paper that the Minister has foreshadowed she will be introducing at that point.

At this stage I want to say that the Government warmly welcomes the return of this measure to this House, and I look forward to contributing further to the detailed discussion of it during the Committee stage.

We all know that if National had its way it would be abolishing the Supreme Court and taking us back to the Privy Council, but the only problem with that is that, actually, we would need the permission of the British Government to do it and it would not have us. The reason National is doing this is that it does not need anyone’s permission. It is a nonsense that we are going back to this old-fashioned term of Queen’s Counsel rather than Senior Counsel.

💬 Charles Chauvel: Embarrassing.

It is embarrassing, is it not? You know, have we got no more important political agenda in this country than changing the name of senior lawyers back to Queen’s Counsel?

Worse than the name change is the change in principle being made here to restrict those who can be Senior Counsel—now to be called Queen’s Counsel—to those of the separate Bar. You cannot be appointed a Queen’s Counsel under this Lawyers and Conveyancers Amendment Bill unless you are a barrister sole. What does that do in the provinces? It effectively means that very few people in the provinces can ever be Senior Counsel, because those smaller towns generally cannot support people with an adequate living who are at the separate Bar alone. Generally, the best lawyers in provincial centres—and this is a generalisation, but it is true of a lot of smaller centres—are actually the lawyers who are in firms. The barristers sole are more often, in the smaller centres, confined to the criminal legal aid roster. On some occasions they are doing Family Court work, but predominantly they are doing minor criminal work on the legal aid roster. They are not the top lawyers in the regions—not always the top lawyers in the region, I should say, because I do not want to insult some of them; there are some very good barristers in smaller towns. But the general rule is that the top lawyers would be in firms of barristers and solicitors, and they would be both. They will never be able to be, under this legislation, appointed Senior Counsel, despite the fact that they might be the best practising barrister in the whole of the province. What a nonsense that under this legislation those people will never be eligible to be considered to be Senior Counsel!

It is not a problem in just the smaller centres. You know, there is not much doubt that one of the most capable barristers in this country is Jack Hodder at Chapman Tripp, the former editor of The Capital Letter, a leading legal publication that was produced by Jack Hodder for many years. He wrote the editorials as well as putting it together. He is the leading counsel still in many cases in New Zealand’s highest courts. Under this legislation, because he is in a firm of solicitors and operates as both a barrister and a solicitor, he can never be appointed Senior Counsel. That is true of a number of other barristers and solicitors. In my own city of Dunedin the most senior barristers and solicitors were every bit as competent as the people who were appointed Queen’s Counsel. It is a nonsense that the list of people is limited to those from the Bar alone.

What is the idea behind this? National says that those people are the only people who can be truly independent. Well, if that were the case, we would not allow people who were barristers and solicitors in legal firms to be appearing in courts in the first place, because somehow they would be bringing an inferior level of independence or service to the courts. It is just not true.

So this is a retrograde step. In market analysis, of course, if you limit the market of any good or service, you actually drive up the price, or you are going to decrease the quality. So, assuming here that you have got the same number of Queen’s Counsel as there would have been Senior Counsel under the old system, you are actually going to jack up the price for Queen’s Counsel. Queen’s Counsel are very, very expensive to employ in New Zealand, in part because we have too few of them. We drive up the cost of Queen’s Counsel services by not appointing enough of them, and this bill will further entrench that extra revenue that goes to Queen’s Counsel to the detriment of their clients. It will not be improving the quality of justice; it will actually, again, be limiting the pool of Queen’s Counsel, and I do not think that is appropriate.

The other point, which Charles Chauvel has already made well, is that the appointment process is now going to become less transparent. What is wrong with transparency? What is wrong with transparency? Some bad things have happened in this country under this Government in terms of the standards that we have in various institutions, and I am going to list them, because this is part of a long list of things where standards are declining in New Zealand. We had this Government appoint the chairperson of John Key’s electorate committee to the Broadcasting Commission, which is also known as New Zealand On Air. A political appointee to that role is inappropriate. Those people should be apolitical, and he showed his politics when during the election he tried to influence the timing of a programme on child poverty. That was a black mark for this Government along the lines of this lack of transparency around Queen’s Counsel. It was a lot worse than this, in fact.

Then we had the National Party using the police against the media during the election—the teapot tapes. After the election, when the case was going to go to trial, the Prime Minister found it convenient to drop the prosecution. He said that he did not want it to proceed and that Mr Ambrose had been deemed guilty by the police. That was a terrible thing to do. He was never tried by a court and he had defences. The reason that it was dropped was that it would have been embarrassing for Mr Banks and Mr Key to turn up in court and try to allege that it was illegal.

💬 David Bennett: Get out of the gutter, and speak to the bill, bro.

What is that? Speak to the bill? Actually, I am speaking to the number of examples, Mr Bennett, of things that your Government oversees that are inappropriate. Then we have got the lack of—

💬 David Bennett: You’re lost now, are you, Parker?

What is that? Then we have the lack of transparency around other processes like giving contracts for extra pokie machines in Auckland.

💬 David Bennett: Oh, you would know about that.

I would know about that, would I? Actually, I am not a gambler, Mr Bennett, so I would not know about that. What I do know is that it is inappropriate to effectively sell regulatory favours to get a convention centre built, and if you are going to do that, you should put it out to tender so that other people can actually have a crack and say: “Well, give us a regulatory or tax holiday and we’ll build you a convention centre without the pokies.” [Interruption] They are still carrying on with that, Mr Horomia. Now we have this additional lack of transparency.

What else have we seen recently? We have seen the Government in respect of the State-owned enterprise legislation put mixed-ownership model companies beyond the purview of the Official Information Act, which has been criticised by the Ombudsman as being inappropriate—

💬 Darien Fenton: Don’t believe in transparency.

No, it does not believe in transparency. Then we had this Government vote down a member’s bill that would have, in respect of council-owned companies that are port companies, brought those companies into the Official Information Act, as well. Again, the Government does not like transparency and it voted against that, notwithstanding the fact that in any case where there was commercial sensitivity or other things to be kept confidential, there are already defences under the Official Information Act that stop that information being made public.

Again, we have a process here that is going to become less transparent. Why is that? Well, it probably suits the club of existing people who are more likely to be appointed Senior Counsel because they come through a certain route. That is not to demean their capability; our Queen’s Counsel in New Zealand are very capable. But it really should be more transparent so that justice can be seen to be done, rather than there being a club of insiders who can always get the nod. I do not think there is any reason to move away from the transparent process that the prior Labour Government set up.

So in terms of some of the changes to conveyancing, we agree on this side that they are appropriate. We are not speaking against those. But there are fundamental problems with this bill, and, for that reason, the Labour Party is opposing this.

I am pleased to take this opportunity to contribute to the debate on the Lawyers and Conveyancers Amendment Bill, because it is an issue that the Green Party held strong curiosity in as it was heading to the Justice and Electoral Committee. We voted for it to progress to that stage because we wanted to hear some more of the detailed arguments around the reasoning behind the proposed changes. I will not speak much to the second part of this bill, except to say that they are primarily sensible, uncontroversial amendments that we probably would have been able to support had Part 1 lived up to our hopes of reasonable discussion. Unfortunately, we have not been suitably convinced that the amendments contained in Part 1 of the bill had proceeded from a rigorous contest of ideas. Rather, they seem to hail more from a quaint—indeed, anachronistic—state of mind. It is a state of mind that does not recognise the strong independent streak that runs through New Zealand culture. It is from these concerns that our opposition stems.

In 2006 the Labour Government replaced the title of Queen’s Counsel with Senior Counsel, which still allowed for recognition of exceptional performance without harking to the monarchy for validation. Although New Zealand maintains links to the United Kingdom, we also have a distinct national culture and some unique constitutional arrangements. The Statute of Westminster Adoption Act passed in 1947 and, more recently, the Constitution Act 1986 stand as both practical and symbolic measures from which we have set out enhancing our independence. Although we still retain the Queen as our head of State—a position that is not uniformly supported in this House or by the public at large—the momentum of our country has been one of embracing a destiny that is uniquely New Zealand in nature. Such was the reasoning behind our acceptance of the Labour Government’s change in the area of titles, and the title of Queen’s Counsel is a colonial relic that does not reflect the distinct character of New Zealand’s cultural diversity or identity. Although we cannot deny our colonial past—indeed, it would be harmful to do so—we have the potential to walk into the future with the assurance that we are staying true to ourselves in Aotearoa.

One reason that the Government has advanced for the change is a supposed reciprocal relationship between the Queen’s Counsel and the Crown. It is one that is derived from ancient English origins, but this is not a relationship that exists in name only. The relationship continues whether the lawyers concerned are titled Queen’s Counsel or Senior Counsel. All the important qualities of the position remain untouched. The independence, seniority, and credibility are not put in question by a change in the title. Indeed, because most Queen’s Counsel in New Zealand rarely or never act on instruction from the Solicitor-General or Crown solicitors, and, in fact, represent a wide range of private individuals or groups, changing the name to Senior Counsel actually imbues a broad sense of serving the community with skill and independence, better than whatever vestige bestowed by an outdated colonial title such as Queen’s Counsel might do.

Perhaps the more interesting arguments are those concerning eligibility. Labour legislated to allow the full profession to be considered as potentially worthy of having the rank of Senior Counsel bestowed upon them, rather than barristers solely, which had been the tradition until that point.

💬 Darien Fenton: “Coun-sel”?

That is what I say—“coun-sel”. I have been caught plenty of times.

💬 David Bennett: It hasn’t done you much good.

On the right side. It was rather than barristers, which had been the tradition until that point—just pop into the Environment Court, I say to everybody. This widened the pool of eligibility from a narrow selection comprising only a few hundred out to 12,000 wider practitioners, excepting the bush lawyers, I must admit. Once again, the reasoning for the change back is not sufficiently articulated. Vague allusions to a threat to the independence are made but not well substantiated.

Kennedy Graham, during his call in the first reading of this bill, made reference to Simon Power’s statements when the original changes were made that opening up eligibility would capture senior lawyers who undertook substantial commercial work for the Government. This is potentially a reasonable concern, but it is not one that has been ostensibly proven to occur to such a degree that the very integrity of the position has been called into question. The original shift was made in a seemingly egalitarian spirit that removed enjoyment of commercial privilege to only a select few and allowed meritorious practitioners from a variety of backgrounds to be considered eligible. Objections such as Mr Power’s would need to be sufficiently demonstrated before slimming eligibility back down.

Another change that we have come to disagree with is another regressive step, this time in regard to the selection process. This bill removes the selection panel for the Queen’s Counsel and replaces it with the requirement that the Attorney-General consult with the New Zealand Law Society and the New Zealand Bar Association. Ironically, in light of the Government’s concerns around independence, this seems to open up the process to political influence more rather than less. Although this is hardly the stuff that tabloid controversy is made of, conceptually it is certainly inconsistent.

In short, the bill does not seem to engage with the discussion of legitimate arguments around the best way to make the role of Senior Counsel or Queen’s Counsel more effective and independent, but, rather, is an ideological knee-jerk reaction. Of course, this is perhaps partly true in the reverse too, but the key point of difference is that the original changes made were done so with a progressive view to engage with our unique New Zealand perspective, which has increasingly sought to distinguish itself from the leftovers of a colonial heritage. The way to forging a national identity that is true to our multifarious heritage and incorporates a diversity of perspective in this country is not to cling desperately to the relics of the past, but to embrace new traditions and put our own stamp on the ones we wish to keep hold of. Thank you.

It is a pleasure to rise and take a brief call on this Lawyers and Conveyancers Amendment Bill. In April 2000 the Labour Government abolished knighthoods and damehoods. In 2006 the same Labour Government, looking through a similarly selective misanthropic lens at any honours that smacked of vestiges of the British Crown, abolished the rank of Queen’s Counsel. I am proud of those links. The Queen is our head of State and I applaud the maintenance of recognition of our ties.

The submissions made by the New Zealand Law Society and the New Zealand Bar Association on the bill at that time make for interesting reading. The Law Society commented that although the nature of the submissions in 2006 was relatively neutral, the submissions of the New Zealand Bar Association were strongly opposed to the 2006 change and it seemed apparent to the Law Society that these changes were in large part policy based and not in response to any increasing call for change from the public or any professional body. The Law Society makes a comment on appointing a Queen’s Counsel that the objective must be the appointment of only the best people, distinguished by their outstanding all-round qualities of excellence, integrity, judgment, and leadership. This is the intention. The Bar Association’s current submission strongly supports the intent of this bill because it restores the historical status of the rank of Queen’s Counsel in New Zealand.

We listened carefully to the legal profession, and this legislation is also in response to its concerns that the title of Senior Counsel does not adequately reflect the nature and status of that rank. I mean, let us face it, the title of Queen’s Counsel is instantly recognisable throughout the greater part of the English-speaking world as providing certainty of a high standard of legal advice.

This move will also protect the essential independence of the inner bar, as we have heard before. The looser rules of eligibility of Senior Counsel introduced by the previous Government threaten to dilute that independence of our most senior advocates. The bill restores the rank of Queen’s Counsel and restricts the eligibility of that rank to barristers sole, as we have heard. This is an important step.

I want to take up Mr Chauvel’s point briefly. He may be interested to know that my understanding is that in Australia quite recently the Government of Queensland, no less, has indicated it is looking very closely at dispensing with Senior Counsel and bringing back Queen’s Counsel. That is just a small aside and of course it has not influenced us in the least—it is just a point of information for you. I commend the bill to the House.

This Lawyers and Conveyancers Amendment Bill, I think, should be entitled the “Lawyers and Conveyancers (Back to the Past) Bill”. This takes us back to the pre-2006 days when QCs were appointed by some mysterious non-transparent process, which was all too susceptible to inappropriate influences and even to political interference. For those and several other reasons that I will mention, New Zealand First opposes this legislation.

It is not about what is good for the legal profession, and it is not about what is good for the community; what it is about is the National Party’s philosophy and ideology, and some of us do not have too much regard for that. What it should be about is a system that is designed for the future and not for the past. New Zealand will be moving backwards with this legislation when all comparable jurisdictions have moved on. Those, of course, are especially Canada and most of the states of Australia, although not all.

I actually question whether it is really even necessary at all to award either Queen’s Counsel or Senior Counsel positions in this day and age. I think it is something of an anachronism and is no longer necessary during an era in which it is generally accepted that markets should be free of discriminatory and anti-competitive rules imposed by Government. That is actually what this does, and it seems so out of place today.

However, if we are to persist with the ranking of legal practitioners in this way rather than relying on reputation and the market, then it is very important to fairly define those members of the profession who have achieved a level of experience and competence in an area of expertise that should be officially acknowledged. This may assist in the effective operation of the legal system and the way lawyers organise themselves as a profession, and it may assist with public confidence in the profession, but it should not be about status or reward or cronyism in the way that too often it has been in the past, and it should never be seen in the same way as the award of knighthoods and honours generally has been seen in the past—and probably still is.

New Zealand is no longer, since 1947, a British colony with all of its traditions and peculiarities. Our system must fit our needs and be relevant, useful, fair, and transparent. This bill does not appear to be designed to do that, and, as I said before, I question whether the entire thing is necessary at all. It appears to be designed to perpetuate elitism as distinct from meritism, by which I mean the recognition of a status well earned instead of one simply awarded in the manner of some sort of honour or, worse, some sort of favour.

Under Part 1 the term “Queen’s Counsel” is returned to replace “Senior Counsel”. This is unwise, because the public can more readily understand the term “Senior Counsel”, but have usually never understood the term “Queen’s Counsel” very well. Understandability is important for our legal system. People tended in the past to think the term “Queen’s Counsel” still meant a senior barrister who had the function of supporting the Attorney-General—as, indeed, it once did in the UK. But these days that is far from how it works. So “Senior Counsel” would be more descriptive and not have the connotations of some overhang from the old English legal system.

The idea that there is in any real sense some operation of royal prerogative also needs to be put firmly out of the question. New Zealand needs a thoroughly modern legal system and it needs to be seen as such. None of this is assisted by the term “Queen’s Counsel”, and “Senior Counsel”—if we need them at all—is certainly better. Nor is it assisted by the assertion that somehow the reversion to QCs will enhance the independence of the profession. If independence means independence from the Crown—meaning, in effect, the Government in this country—then the bill is more likely to do the opposite by restoring the old system, under which the scope for political and other inappropriate influences is actually worse.

Sitting suspended from 6 p.m. to 7.30 p.m.

In the first part of my speech I questioned whether Queen’s Counsel or Senior Counsel as an institution was really called for in this country in this day and age. But to the extent that it was necessary I said that it should be done in a fair, transparent, and non-discriminatory way.

I would like to move on now and say that concerning eligibility, it is not clear to me why only barristers sole are favoured in this legislation. I do not see any reason why other practitioners should be excluded if they practise in law firms, whether incorporated or not, as, indeed, is allowed in comparable jurisdictions. Nor should candidates be excluded if they are barristers and solicitors. In New Zealand the position in that respect is quite different from what it is in the United Kingdom.

However, the strangest section, I think, is new section 118A(2), in clause 6, which substantially overrides the other sections in the legislation in respect of the royal prerogative. I think that is complete nonsense. It is exactly the kind of provision that we should avoid. The royal prerogative in New Zealand really means the Government prerogative and all of the disadvantages I mentioned earlier: unfairness, discrimination, anti-competitive behaviour, and the scope for cronyism. It is a bad process, which would be entrenched by this subsection. It is thoroughly objectionable, and even if passed now, will need to be repealed at a later time.

The need for transparency has also not been achieved in this bill. This is not what modern best practice requires. These days people rightly insist on a transparent selection process for these kinds of things. This will be a closeted Government process that the public could not have full confidence in.

New Zealand First therefore objects to the entire concept of this retrograde bill. It is misconceived and is a step back to the bad old days of the past. It is a barrier to the development of a modern legal system. It is devoid of proper process. It is unnecessarily restrictive, and it is based on discrimination for no good reason when the proper objects, to the extent they may be useful, are negatived by eligibility rules and rules of practice. The object should be to define senior practitioners in specialist areas so that the public and other members of the profession are assisted in knowing to whom they may best go for specialist services. If that is not the objective, then there is no reason for Queen’s Counsel—or Senior Counsel, for that matter—at all. Any way you look at it, this bill is bad law and should not be passed.

I stand to support the Lawyers and Conveyancers Amendment Bill in its second reading. This bill implements the Government’s policy on Queen’s Counsel. It also makes minor amendments to provisions in the Lawyers and Conveyancers Act 2006. There are several other matters in the bill. Simply, this bill restores the rank of Queen’s Counsel and restricts eligibility for appointment to that rank to barristers sole. It also amends the provision in the Act relating to a conveyancing practitioner holding non-voting shares of an incorporated law firm. Finally, it makes minor and technical amendments to enhance the functioning of the Act. This is an important step in reinstating the status and independence of the top rank of advocates in New Zealand. I commend this bill.

There are two parts to this bill, the Lawyers and Conveyancers Amendment Bill, one of which will be supported by the Opposition, the other thoroughly opposed. Part 1 does three things. First of all, it replaces the title Senior Counsel with Queen’s Counsel. That is an anachronism. It is not accurate, it is not relevant, and it has been dropped by most other countries. Secondly, it reimposes the restriction on where you can appoint Senior Counsel from. Previously, it was predominantly only from the bar—barristers sole. It was broadened out to include those working in law practices and other fields of law. This is a move backwards. Thirdly, it reverses the transparency of the appointment process. For all three of those reasons we are opposed to the bill, and I want to come back to them.

Part 2 of the bill is largely concerned with practical measures, and I think they are reasonably sensible. They include “grandchildren” in the definition of relatives who are able to be shareholders in an incorporated law firm. They ensure that control of an incorporated law firm is maintained by the lawyers and conveyancers who work in it.

💬 Hon David Parker: Grandchildren working a tax rort!

Could well be! It provides a power of attorney becoming effective where a sole practitioner is an undischarged bankrupt, and it clarifies that applications for a review of a decision by the standards committee have to be within 30 days. All of those are quite sensible moves, and that is the sort of legislation that we as a responsible Opposition would support.

But I want to go back to Part 1. Part 1 is unnecessary, it is a retrograde step, and there is no justification for moving in the way that the Government is intending to do. Let us take the first one, and perhaps the least important of the three issues I mentioned before, which is that once upon a time people who aspired to this title would be known as Queen’s Counsel. We changed that—in fact, I changed that as Minister of Justice in drafting the law that was ultimately introduced and passed after I ceased to be the Minister. There were good reasons why we did it, and we did it after consultation with the Law Society. For a start, when the Government says there is a historical link between Queen’s Counsel and the past, that is true. In the 15th, the 16th, and the 17th centuries this was an accurate title. If you were a Queen’s Counsel you were there to do the King or Queen’s bidding, depending on who was on the throne at the time. But that changed in the 18th century. In the 18th century people who took up that role, if I can use the words of the Bills Digest, “ceased in any real sense to be counsel to the Crown and became simply a class of counsel who, by eminence or favour, had been given a rank superior to that of ordinary barristers.” That is from the Bills Digest. That sets it out absolutely accurately.

These days Queen’s Counsel, or Senior Counsel as they became known, no longer operate for the Crown. They are not instructed by the Solicitor-General or by Crown solicitors in most cases. They represent a wide range of clients: private individuals, and private businesses. So the term “Queen’s Counsel” ceased to be an accurate reflection of the sort of work they do. Why would you want to go back to the term “Queen’s Counsel”? In other, mature Westminster-style democracies—in Australia in all but one state, and in Canada—that title has been dropped and they are known as Senior Counsel. They are countries that are proud of their independence, proud of their sovereignty, and they want to have titles and laws that reflect the 21st century not the 16th century. This is a bit of snobbery on the part of the National Government. That is the only reason for it. There was no justification given, and there was no justification given before the Justice and Electoral Committee, apart from a group of people with a self-interest in the bar who say “Well, if it’s restricted to us as barristers sole, then we get the benefit of that title, and we accrue the financial rewards from it.” Of course they would be in favour of that monopoly, but that is to suggest that only people who are barristers sole have the ability and the excellence and the advocacy that would entitle them to carry such a title. So there is no argument for going back to a term, “Queen’s Counsel”, that is about three centuries out of date.

Secondly, the bill moves to restrict appointments to the title of Senior Counsel, or Queen’s Counsel, as it might become, to people who are barristers sole. Well, the argument they make is that if you are a barrister sole you are more likely to be independent. When you examine what it actually means, you find that there is absolutely no justification for the Government’s position on that. Actually, the term “Queen’s Counsel” suggests that you have a relationship with the Crown, which is the opposite of independence. But if you look at the commercial interests, again there are strict rules governing all lawyers in terms of conflict of interest. They are bound by statute, under the Lawyers and Conveyancers Act, section 4(b), to be independent. Restricting the appointment of somebody as a Senior Counsel because they are a barrister sole, because they are more likely to be independent, is a nonsense, when every lawyer is bound by the statute, they are bound by the oath that they take, and they are bound by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 requiring independence in the promotion of their client’s interests, and requiring independence in terms of their professional responsibilities to the court. Jack Hodder made some comments to the select committee about that, which I think are particularly pertinent. He also made the point that in the United Kingdom, where this law originated, in Canada, and in Australia, they all recruit Senior Counsel or Queen’s Counsel from across the board, in terms of people working for law firms or people who are barristers sole. He said that, surely, if there was a problem with independence, it would have emerged in one of those jurisdictions. Has there been any problem in those other, mature democracies? No, there have been no problems at all.

This again is pure pretence by the National Government. This is legislation put forward without an ounce of evidence to back it up, and that is no way to make legislation. Legislation should be evidence based. I searched the submissions, and I searched the report of the select committee. There is no evidence to sustain the restriction of the position of Senior Counsel to people who are barristers sole. In fact, the law even contradicts itself because it makes an exception, that perhaps you can appoint somebody from a law firm if they are an extraordinary individual. Well, if the Governor-General can appoint somebody who is not a barrister sole, and that does not offend against independence, then that undermines the Government’s own rationale in bringing forward this bill that takes us back to the past.

The third section of the bill that I want to touch on is the selection process. I have got to say that before 2006 the process of appointment as Queen’s Counsel, and now Senior Counsel, was shrouded in secrecy. The Attorney-General had the responsibility. He or she could initiate that. They would consult with the Law Society or the Bar Association, but, in essence, it was the Attorney-General making the decision. That led to concern and suspicion about political patronage. And, by God, would not you worry about political patronage today? Even New Zealand On Air is appointing the political chairman of the Prime Minister’s electorate. In foreign affairs they are taking away the professionals. They are appointing more and more people on a political ground—some of them obviously not up to the job, and I will not go into that. But the fact of the matter is that in 2006 we made the law more transparent. We made the process more transparent. There was a panel consisting of the Solicitor-General, two people from the Law Society, and two people from the Bar Association. Everybody could see it, it was above board, and that was the way to go. I have got to say that in every respect this is a backwards movement in our legislation. It is unnecessary. It is unjustified. It is wrong. When Labour is re-elected it will go.

I am very pleased to speak to the second reading of the Lawyers and Conveyancers Amendment Bill. The bill was looked at and reviewed by the Justice and Electoral Committee in the last term of Parliament. It makes an important change to the Act by restoring the title of Queen’s Counsel, which I support, and replaces the office currently known as Senior Counsel.

It is very interesting to know, having read the submissions from the Bar Association, that it strongly supports this change. Even the Law Society, even though it admitted that its submissions were quite neutral, made the comment that the changes that had been made by the previous Government were largely policy based and not in response to any pressing call for change.

The bill will repeal that arrangement by reinstating the title of Queen’s Counsel. Really, the Queen’s Counsel title has its origins in our history and reflects the public purpose and the status of this position. It identifies leading advocates in the legal profession. It is a rank and title to aspire to. It is synonymous with excellence and is instantly recognisable in New Zealand and internationally. I commend this bill to the House.

I understand that this is not a split call. So Louisa Wall, you have the call.

Kia ora. Thank you for the opportunity to speak in the second reading of the Lawyers and Conveyancers Amendment Bill, which was referred to the Justice and Electoral Committee after its first reading and was reported back on 13 April 2011. I will begin by saying that Labour does oppose this bill, and I will talk about why we oppose this bill. The objection, as outlined by my colleague the Hon Phil Goff, is really about Part 1 of the bill and the reinstatement of the title of Queen’s Counsel—Moana and I were just talking, actually, about whether that is Queen’s council or Queen’s Counsel—within the hierarchy of the legal profession. There is no other profession that seeks to reward certain of its members by giving them an elevated position, conferred by a Government process.

On 17 June 2009 the Attorney-General, the Hon Chris Finlayson, announced his intention to reinstate the title of Queen’s Counsel. At the time, he said: “… the government is taking these steps to protect the essential independence of the inner bar. The looser rules for eligibility as Senior Council introduced by the previous government threatened to dilute the independence of our most senior advocates.” That intention was echoed in the majority report of the select committee, but what this bill does is restrict the senior title to barristers sole. Such a move is archaic and not reflective of the modern society most of us now live in.

Queen’s Counsel, as its name indicates, is about royal patronage. The first Queen’s Counsel was appointed by Elizabeth I as her legal adviser. That is the foundation of the process that this Government is seeking to reinstate. In 2006 we made significant changes to reflect our own developing legal system, which was no longer tied to the systems that had developed in England. A number of cases had recognised that development, and the Privy Council, in Invercargill City Council v Hamlin, in 1996 declared that New Zealand law should not be deflected from developing its own course in isolation to England. Why, then, would we take this backward step of trying to re-tie ourselves to England?

It kind of does not make sense, even to someone who has had nothing to do with this bill up until this point in time. There is no logical or reasonable basis to argue that reinstatement and restriction will result in independence. The title Queen’s Counsel clearly conjures up a connection with the Crown and Government. The title Senior Counsel does not do that. It is what we currently have. It denotes the recognition of people who have attained seniority within the legal profession. It speaks of independence, not alignment with one of the Treaty partners. It is a practice followed in a number of Canadian provinces and the Federal Government. Senior Counsel is a title used in Australian states since 1993, albeit we seem to have encouraged, however, Queensland’s Attorney-General to look at reinstatement too. South Africa, Trinidad and Tobago, and Guyana all use the title Senior Counsel, and Nigeria, India, and Bangladesh use the title Senior Advocate.

As to restricting applicants for the senior position to barristers sole, that too is not reflective of the wider processes available in law. We have lawyers who specialise in mediation, in negotiation, and in alternative dispute resolution, as well as those in other areas. There are many aspects to giving advice, but the suggestion that barristers sole are more independent than those in a firm, company, or organisation is ludicrous. Most barristers sole have spent a significant portion of their careers in firms, companies, or organisations before becoming barristers sole. They have the same obligations in terms of giving advice, whether they are in a firm or are barristers sole. The public is entitled to that. The public is entitled to be assured that our senior counsel have a range of skills to meet the demands of the position, and, surely, any suggestion that a nominee is not able to fulfil his or her obligations would discount any nominee from appointment.

So, in conclusion, there seems to me to be no reasonable or logical basis for this backwards step and for undoing the positive steps taken in 2006 to allow Aotearoa New Zealand to develop its own legal structure and to cast off a title that reflects another country’s history and denies our country our own history that we have developed here in our country. Kia ora.

It gives me pleasure to speak on the second reading of the Lawyers and Conveyancing Amendment Bill. I will be brief and to the point. I am a traditionalist, and I totally reject the claim of Mr Goff that this is all about snobbery. This is all about, in fact, in my view, tradition and respect. Frankly, if you look at this House, this House operates on tradition and respect, and that is the strength of it.

Very briefly, Part 2 of this bill offers the opportunity for the shareholding in legal firms to be tidied up and put in a practical manner, and, secondly, it reinstates the appointment of Queen’s Counsel. I think Queen’s Counsel is a very important part of New Zealand’s legal history and a very important part of what is going on at the moment in this country. It certainly gives businesses the opportunity to acquire information and advice that precludes a lot of other expense. Senior Counsel, of course, remind me very much of my grandfather’s day, when you went to visit an old joker with a wig and a quill. I very much support the second reading of this bill. Thank you.