Lawyers and Conveyancers Amendment Bill

I foreshadowed in my earlier contributions that I thought this bill, the Lawyers and Conveyancers Amendment Bill, probably would merit some different titling than the one that it has managed to end up with. First of all, this bill is clearly part of the Minister of Justice’s charm offensive with certain parts of the legal profession, part of her attempt to soften her image as the crusher of cars and the enactor of “three strikes” legislation. I would like to propose that we consider another title for this legislation. Perhaps it is the “Softening of Crusher’s Image with the Senior Bar Bill”, because, clearly, that is going to be one of the potential effects of the legislation.

As Dr Blue said, the Bar Association really wants this legislation to be passed. Well, of course it does, because it means that it will remedy the drought that has occurred for 5 years because Chris Finlayson has refused to appoint any Senior Counsel under the existing legislation. So what has happened to our profession? It has had no senior appointments made, while all the Australian states and territories have had Senior Counsel appointments made in them every year. We should remember, as we think about perhaps another alternative title for this bill, the “Luck of the Australians Bill”, that all those Senior Counsel appointed in Australian states and territories are entitled to practise in New Zealand. What the Attorney-General has done, by failing to make the appointments that he is entitled to make under the legislation for the last 4 or 5 years in New Zealand, is he has put those Australian Senior Counsel at a massive competitive advantage against the leaders of our profession, who have had to sit around waiting for action to be taken around what status or rank would be accorded to senior New Zealand lawyers.

While they have waited without any sort of title or rank being conferred upon them, guess what has happened to those Australian lawyers? Well, as a result of the Canterbury earthquake, they have been the ones whom the big insurance companies have commissioned to write the major opinions on liability over the earthquake, they are the ones who have been looked to to give opinions on whether or not litigation should occur, and they have been the ones who have sat there thinking “Mmm, I wonder whether it’s worth going and litigating this case or that case in the New Zealand Court of Appeal or the Supreme Court?”, as they are entitled to do. So that could well be another alternative title.

Of course, yet another title could be the “Chris Finlayson (I’m Going to See Myself Appointed a QC Come Hook or By Crook) Bill”, because it seems to me that that is a motivation that we cannot ignore here. We know that the Attorney-General was very sad when Michael Cullen took advice, and then acted on it, that he could not really in good faith give him the appointment of QC at the time, because he really did not qualify. So here we see a tradition in the National Party being fulfilled. I mentioned earlier that Paul East had himself appointed as a QC in the 1990s when he was the Attorney-General. At least in that case Paul East was heading the Government legal team. He had John McGrath, the Solicitor-General at the time, as his junior in the litigation team in the International Court of Justice, which was designed to seek to prevent France from resuming underground nuclear testing at Mururoa, and it was thought that it was appropriate that the New Zealand legal team should be headed by the most senior rank of lawyer available.

Clearly, when the Solicitor-General, himself a Queen’s Counsel, was going to be the junior in the case, the Attorney-General, who outranks the Solicitor-General in the order of precedence, could hardly appear without some sort of rank clothing him. So it is understandable how Mr East came to have himself appointed as a QC in those circumstances. It remains to be seen whether Mr Finlayson’s lust for status will be clothed in similarly respectable garb, or whether it will simply end up being a more naked grab for such status. But these are all titles that would be equally apt for this legislation, because they do describe the reality of the situation.

Given what I said earlier about what the effect of this bill will be, another fair title for it would be the “Let’s Keep Diversity Out of the Senior Ranks of our Legal Profession Bill”, because that, undoubtedly, will be the effect of this legislation. I said earlier that for a long time now women graduates from our law schools have been, I think, over 50 percent of the out-take every year. Yet survey after survey of the profession shows that very, very few women manage to get to the absolute top of the Bar. We do have a few, and they are outstanding. It is wonderful to be able to acknowledge that and to work with those people, as my colleague Andrew Little pointed out. I say that without any hint, I hope, of sounding patronising. They are amongst the best lawyers in the country.

But there are fewer of them, and there is a reason for that, and it is the reason that I explained earlier. It is much harder to have to work as an independent contractor than it is to be able to pool one’s risk, if one wants to have a family and work. And requiring appointments to be made from the Bar only does exactly that. It says to those who want to found a family or who want to do something else with their life, other than just work every hour God gave, that if they want to do that then they can, but they have got to find a way to pay for it themselves. So saying that you cannot be a QC if you want to be in a firm or you want to find some other way to support yourself, even though you might be the most brilliant legal practitioner this country has ever produced, is what this bill will do. It will inevitably have an effect on lessening the diversity at the most senior levels of our Bar. That, to me, is one of the most lamentable things about this retrograde step that this Parliament is taking today.

But perhaps the best way that we could describe this legislation, given the voting down of my amendment earlier—and I thank the other parties who supported it, including New Zealand First and the Mana Party; I have already acknowledged the Greens and, of course, my Labour colleagues—and the saddest thing about getting rid of the transparency that currently exists in the appointment process for, now, Senior Counsel, soon to be Queen’s Counsel, is this: nobody really knows how QCs become QCs. It is a murky process. It is a process where whom you know matters much more than who you are. I want to relate one story about this, but before I do I am going to propose that a better title for this legislation would be the “It’s Not What You Know But Who You Know Bill”, because that is what we are doing here.

I have a friend who is a very, very able lawyer. He practises at the Bar in Auckland, or he did until a couple of years ago when he retired. There is no doubt in my mind that he would have made a very fine Senior Counsel or QC, and a friend of mine who sits in the High Court agrees. That judge took up this man’s cause at the time of the last appointments round for Queen’s Counsel, and was told that because this candidate was not well known to the judges who sit around in the common room in the High Court in Auckland, really, he needed to get a bit better known, put his name about, maybe get a bit more active in the Auckland District Law Society, perhaps join the golf club and play a bit more golf with the lawyers concerned. Well, this is the reality of what we are condemning a lot of our practitioners to. We are saying “Look, the National Party thinks the old boys’ network works best.” It wants to see more of its own appointed to the most senior ranks of our lawyers, and it has gone about this by ensuring that we are voting down the retention of an appropriately transparent process.

In every other area of our society we are being transparent, and yet in the one area that causes the most grief and the most mystery to ordinary New Zealanders—how do you get a lawyer that you are concerned about disciplined or held to account; how do you get a judge in that situation held to account—we are going backwards. We are saying in order to become the most respected and senior type of lawyer in this country, well, it is going back to hocus pocus, and that is the saddest thing about this legislation.

Again I express my disappointment that at a time when the country, we like to think, is rapidly modernising, when in every sphere of the labour market we are looking to diversity, and we are looking to inclusive means to grow and nurture and develop the relevant workforce, this bill, the Lawyers and Conveyancers Amendment Bill, takes us backwards. It takes us back to an age of privilege, to exclusivity, to focusing not on those who may be the best legal minds but on those who have the right connections and can persuade the right people at the right time in order to achieve the right appointment.

This bill might be better titled the “Lawyers and Conveyancers Return to Exclusive Privilege Bill” or the “Lawyers and Conveyancers Return to Inexplicable and Undeserved Exclusivity Bill”, because that is what is happening with this bill. The legal profession is very important, and those who practise at its most senior levels, those who are most experienced, are those whom we need to retain, because—let us face it—many lawyers, many senior practitioners, suffer the same temptations and are often offered the same blandishments as those in other walks of life. The prospect of early retirement, of spending one’s twilight years on the golden sandy shores of various beaches of the nation—those sorts of things—is very tempting, and yet they are people who have much to offer in the practice of law and in the prosecution of the very important role that they play in the courts of this land.

Yet, this bill says that we are now going to go back to a time when a small number of people, a small coterie—the Attorney-General and those who are close to the figures of the establishment and the Government of the day—will select those who have chosen to go to what is, I think, now incorrectly named the Independent Bar because the independence, at least in some cases, is open to question. Those who are in the Independent Bar will qualify whereas those who are senior practitioners and excellent advocates in other parts of the profession will not qualify, and that is such a bad step.

At a time when the legal profession is reorganising itself into a more coherent organisation, offering up better oversight and greater discipline amongst the profession and setting ever higher standards, this legislation will take us back to an age and an era that did not promote and encourage that. It promoted the rubbing of the right shoulders—that is to say shoulder to shoulder, not the massaging approach that might otherwise have been suggested by that turn of phrase.

Those in the gentlemen’s clubs of the nation, who knew each other well and could speak highly of each other—often with the correct accent, nurtured by King’s College or even Christ’s College and those elite schools of the nation—could well find themselves as candidates to be a QC if they had those contacts and those connections. Because of the exclusivity of the nature of the appointment, it gave them a market advantage. That is what it was often seen as—as a marketing advantage—and they could charge a higher fee. Well, that is not what we want to see in the senior ranks of any profession much less the legal profession.

That is why we need to know, if we are going to see true development and the application and the prosecution of the rule of law in our courts, that in our courts of justice and our tribunals the people who are operating at the most senior ranks represent the diversity that we are seeing in so many other spheres in New Zealand. That is why it is important, if we are going to have this bill—and it looks like there is an inevitability about it—that it properly reflects what is happening. But this bill represents a retrograde step, a backward step. It is not embracing modernity and the modern approach we would expect in a modern profession in a modern country that is seeking to fight its way and find its way through the world.

For that reason we will oppose this bill, disappointingly and grudgingly as that may be, because it will not improve the profession or those who operate within it or, most important, those who aspire to its senior ranks and to be the senior practitioners of tomorrow.

I wish to participate in this part of the debate on the title and commencement clauses of the Lawyers and Conveyancers Amendment Bill that we have in front of us. I participated in the debate on Part 1 of the bill, and I made a couple of points that I would like to reiterate in the sense that where this legislation has its commencement date does in fact relate to the specific proposals in respect of the title of Queen’s Counsel.

I think that the disappointment that we have expressed on this side of the Chamber actually relates to the fact that the date that the legislation itself is due to come into force is, presumably by way of Supplementary Order Paper 136, updated from 1 July 2010, which was the date that it was intended to take effect when this bill was actually originally referred to the Justice and Electoral Committee. It has obviously been at the select committee for some time, as Supplementary Order Paper 136 now has the bill coming into effect on 3 December 2012.

I thought this was quite interesting, because when the legislation was originally—in actual fact, I think it is the clause by clause analysis of the bill that is incorrect. Oh, no, no—Part 1 was always due to come into force on 1 July 2010, but clause 2 in Supplementary Order Paper 136 requires that we replace 1 July 2011 with 3 December 2012. I am just wondering whereabouts one can replace the words “1 July 2011” if they do not appear in the legislation. I wonder whether that is correct or incorrect.

💬 Charles Chauvel: The Minister in the chair will know.

The Minister in the chair, the Minister for the Community and Voluntary Sector, perhaps could get some advice from her officials and perhaps respond to us, because the way that it reads at the moment in the commencement clause is that it says in clause 2 that “Part 1 comes into force on 1 July 2010.” That has not been amended at the select committee. The Minister of Justice’s Supplementary Order Paper 136 says in clause 2: “In clause 2(1), replace “1 July 2011” (line 5 on page 2)…”. Well, line 5 on page 2 says “Part 1 comes into force on 1 July 2010.” on the copy I have got, so maybe I have lost something. Maybe I have got the original copy—oh, yes, I have got the original copy. It has been updated since it was referred back from the select committee, so it has obviously been at the select committee for a long time. Obviously my colleague—my very honourable colleague Charles Chauvel—has handed me an old copy of the bill and not the reported-back version from the select committee, because I see that it is in the name of—

💬 Charles Chauvel: Nathan Guy.

—Nathan Guy, who is presumably not the Minister who is taking this through now, is he? Is it back in the name of the Minister or—

💬 Louise Upston: Are you on the right bill?

Hmm? Do we know whose name the bill is in?

💬 Charles Chauvel: Collins is moving the Supplementary Order Paper.

It is back with the Minister of Justice, so it has been diverted back to her.

But, anyway, the question that obviously the select committee had to deal with at such a—oh, yes, here we go. Now we have got the copy of the bill that was reported back from the select committee. It says “Part 1 comes into force on …”, and “1 July 2010” has been struck out and replaced with “1 July 2011”, and now this is being replaced by Supplementary Order Paper 136 in the name of the Hon Judith Collins with “3 December 2012”. That, of course, is not very far away, and no doubt that is why we are seeing this bill passed into law through Parliament at this stage.

The bill is, though, I guess, a particular shame and disappointment to this side of the Chamber. We think that in modernising the way our legal system operates, we could create a distance from our traditional past in the UK. Seeing the previous position of Senior Counsel being replaced with the reinstated position of Queen’s Counsel is, I think, a retrograde step. I think it is very disappointing that Parliament is having to deal with this in this way.