Lawyers and Conveyancers Amendment Bill

on behalf of the Minister of Justice: I move that the Lawyers—

I raise a point of order, Mr Speaker. How is it in order for the Minister responsible for the bill to walk out of the House before you give the call, and then to have a substitute Minister be responsible for the carriage of the third reading?

It is not a bad point the member raises. That is a sloppy performance. There is nothing wrong with another Minister taking charge of a bill. However, the Minister responsible for the bill should not be in the House at the time. If the Minister responsible—[Interruption] We need to sort out what is going on here. If the Minister responsible for the bill is going to take the call, I will call the Hon Judith Collins.

I move, That the Lawyers and Conveyancers Amendment Bill be now read a third time. The Lawyers and Conveyancers Amendment Bill amends the Lawyers and Conveyancers Act 2006. It is wonderful to be so wanted by the Opposition to constantly be here, and I have to say the Lawyers and Conveyancers Amendment Bill is an excellent bill to remind the Opposition that this Government has brought to Parliament a bill that has been asked for by the profession.

Part 1 of 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 first New Zealand appointments of Queen’s Counsel were made in 1907. From 1915 to 2008 each Queen’s Counsel was required to practise as a barrister sole. In the Government’s view, the restoration of the Queen’s Counsel title reflects the public purpose and the status of this position, while the return to the key eligibility criteria of practice as a barrister sole protects the independence and objectivity of Queen’s Counsel. Those people who were appointed Senior Counsel in 2008 may retain that title or convert to the title of Queen’s Counsel. In addition, Senior Counsel and Queen’s Counsel may continue their practice arrangements, including practising as a partner in a law firm established between 2008 and the commencement of this legislation. They will not be required to change to practise as a barrister sole. The bill also preserves the power to appoint other lawyers, including litigators in law firms, as Queen’s Counsel in recognition of extraordinary contribution to the field of law.

Part 2 of the bill contains a number of comparatively minor technical amendments to the Lawyers and Conveyancers Act. These amendments cover incorporated law firms and conveyancing practices, they address the circumstances for the exercise of a power of attorney that could arise when a sole practitioner is an undischarged bankrupt, and they clarify the time requirements for lodging an application seeking a review of the decision of a standards committee by the Legal Complaints Review Officer.

During the Committee of the whole House five further amendments were added to Part 2 of the bill. Most of these amendments address improvements proposed by the chairperson of the Lawyers and Conveyancers Disciplinary Tribunal, and I thank the tribunal for these proposals. The additional amendments to the provisions for the disciplinary tribunal clarify that lawyers who surrender their practising certificate during a complaints procedure continue to be subject to the disciplinary regime of the Act. The amendments streamline the notice requirements for decisions on complaints while ensuring that relevant parties are given notice of these decisions, and they reduce the quorum from five to three members when considering interim name suppression applications. A separate amendment enables the dean of the law school at the Auckland University of Technology to join the deans of the other law schools as a member of the Council of Legal Education. This is a welcome addition to the council.

The Justice and Electoral Committee received and heard six submissions from professional organisations, interested groups, and individuals. I thank the submitters and also thank the Justice and Electoral Committee for its examination of this bill.

This bill has received quite a lot of condemnation from members opposite based, really, on the return to the name Queen’s Counsel. This is actually a move that has been made because the profession asked for it. I have to say that when the name change, to Senior Counsel, was first made by the previous Labour Government it was done despite the concerns of the profession at the time. In fact, it was a petty and childish change, which the previous Labour Government thought was part of its republican movement. Frankly, nobody else cared about it except the people who had the office, the Queen’s Counsel, who took their position and their obligations very seriously. They did not ask for it to be changed. This Government has listened to them, along with other parties in the House who are supporting this bill, and what we have said is that actually there is something much greater and more important here.

One of the parts that is so important is that the Queen’s Counsel must be independent. They must be independent from firms wherever possible. Of course, there is a grandfather or grandmother clause in this particular situation, and that is because every small law firm, every small litigant, and everyone who is not a big corporate client should be able to access the very best legal representation they can. Quite often, that is going to be found with the Queen’s Counsel. It should not be the preserve of only large law firms to be able to get in the best legal counsel. Every small litigant should be able to access it no matter how or where they come across it. They should not all have to go to big law firms to get the legal advice they need.

I understand that some members might think that it is all right to have only big law firms who can access the top legal providers. Well, I do not think it is, and nor does this Government. It is part of access to justice to have the Queen’s Counsel independent from firms so that in fact every litigant should be able to get the very best professional advice they can rather than to have to go through a big law firm.

💬 Charles Chauvel: As long as they can pay $900 an hour.

Mr Chauvel says that lawyers are charging $900 an hour as Queen’s Counsel. Actually, that is true. There are also lawyers who are doing work pro bono as Queen’s Counsel, and they do. [Interruption] I am sorry that Mr Chauvel does not think they do. But actually big law firms also do that. Many big law firms will charge at that rate for particular work.

💬 Charles Chauvel: How would you know?

Mr Chauvel asks how I would know. Well, I understand that that is how Mr Chauvel liked to charge when he was in a big law firm. So he should know well about that.

💬 Charles Chauvel: Nobody ever complained about me, Judith.

He says nobody complained about that. Well, I am not so sure, and I am sure there is the odd department around that might be able to find the odd complaint. I see a former Minister of Corrections sitting over there and laughing about it, and so he should. Mr Chauvel has rights to raise these points, but actually this is not the way in which to bring about republicanism. We must make sure when we make changes to institutions that we are doing so for a good reason. I would say to Mr Chauvel that it was a childish thing to do, to come down to the House and say they have to change the name because it is going to become more of a republic. What a silly thing to do! What about the tradition of law? Why is it that only some traditions are sacred? How about other traditions? Next thing, Labour will be trying to get rid of the prayer in Parliament because people want to change the tradition. How about traditions in other cultures? Do we do that? No, we should respect them wherever we can.

💬 Hon Phil Goff: It would be better if you lived up to the words of the prayer.

But, having said that, I think that Mr Goff is right. People should live up to the words in the prayer as much as they can, and I am sure that he wants to be able to do that now. But anyway, I commend this bill to the House. I thank the parties that are voting for this bill. I thank the select committee. I think this is a good bill. The profession will be very pleased with it. They have said to me that they have been looking forward to this. They want to make sure that the independence of the Independent Bar is maintained. They were very concerned that it was going to be put at risk by the fact that only big law firms would be able to access the best and the brightest and be able to get that assistance for their corporate clients. I think it is important. It is an access to justice issue.

I commend the bill to the House. I believe it is an extremely important proposition that all clients, all litigants, should be able to get the best. They should not have to go through big law firms and put up with the outrageous fees that I have seen coming from them.

Just before I call the next member I would like to advise members that electronic devices not used in debate should be placed on the drop-down work surface so that they do not interfere with the Speaker’s view of the House—the member on my right.

One of the many problems with the previous contribution is that the Minister of Justice, who herself was not a terribly successful lawyer in practice, now seeks to educate the House about access to justice. She who is dismantling the legal aid system and making it harder for families to get access to the Family Court has the temerity to come into this House and talk about trying to make access to justice easier for New Zealanders. Well, I say to you, Mrs Collins, that your true colours are on display today well and truly, metaphorically as well as figuratively.

The reality of what the Minister said can be deconstructed very easily in this way. To somehow pretend that restoring the title of Queen’s Counsel to practitioners in New Zealand will make lawyers cheaper to access because they will not just have to go to big firms is patently ridiculous. The ability to charge for legal services at the Bar when one has the title Queen’s Counsel is absolutely superlative. It will not make one cent of saving to any consumer of legal services in New Zealand to see the title Queen’s Counsel restored, and we should be very clear about that, right up front.

While I am on this point, I think it is interesting that we have the legislative history of this bill, the Lawyers and Conveyancers Amendment Bill, before us. For the last 4 years the Government could have, at any stage, made appointments to senior rank in New Zealand for our legal profession. Under the existing legislation, the Lawyers and Conveyancers Act, there were very clear guidelines in place that lawyers could follow to apply to be appointed Senior Counsel, and, in order to do that, the Attorney-General would have to agree to hold an appointments round. Well, for the last 4 years the Attorney-General in that National Government has refused to do exactly that.

Guess who has suffered as a result of that. Not the Government, but, actually, the New Zealand legal profession. Every year that Chris Finlayson has spitefully refused to hold an appointments round, just because he does not like the name that the previous Labour Government attached to our most senior lawyers—Senior Counsel, rather than Queen’s Counsel—our legal profession has missed out. Its members are the ones who have suffered, because every Australian state and territory for the last 4 years has held a Senior Counsel appointment round, and those Australian lawyers are eligible to be admitted in New Zealand and to practise in our courts. We have seen the Canterbury earthquakes occur over that time. Well, it is those Senior Counsel from Australia whom the big insurance companies have been instructing to give the big opinion work, not our lawyers. They have been missing out, because this Government has just spitefully and stubbornly refused to hold an appointments round under the existing legislation.

That is how much the Government cares about the legal profession and about top-class access to justice in New Zealand, and I hope no listener is fooled by the honeyed words that we heard from the previous speaker. There are a couple of major issues with what the Parliament is doing today—[Interruption] I cannot quite hear the Minister for Social Development, but the—

💬 Hon Paula Bennett: I said, talk about showing true colours.

Well, if that member were honest, she would not have that hair colour, but we will not even go into that. The issue here is threefold. The issue is threefold. Apart from the matters—

💬 Hon Paula Bennett: Get personal.

Well, I am only following your lead, Ms Bennett. I am only following your lead, and that of the previous speaker.

But the reality is that the problem of this legislation is threefold. First of all, it is an archaic title. Every other common law jurisdiction, apart from England, has abolished reference to Queen’s Counsel. They have cut the apron strings, they have gone ahead, and they have said: “No, we want to call our senior lawyers by an appropriate title that reflects the way in which our modern society functions.” It is true, as was mentioned in one of the debates, that the Queensland Government is thinking about going back to the title of Queen’s Counsel. Well, what a great slogan it would be for this Government to say: “Where Queensland goes, we go.” I mean, I am not quite sure whether anybody is going to be inspired by that example. I am not quite sure why we would take the same leap backwards into the past that the conservative Queensland Government has taken, and I hope that we do not see members opposite following it in other areas of retrograde social policy, where it has actually been treading the boards.

Apart from the title of Queen’s Counsel, to which we object, there are two other major reasons why this is a bad idea, and they are these. First of all, the move to restrict the appointment of Queen’s Counsel just to practitioners in independent barristerial practices is bad, because it will shrink the diversity of our senior profession. It is a self-evident fact—and any lawyer will tell you this—that if you want to have a career and a life, particularly if you are a woman practitioner, it is much easier to try to do that in a law firm, a Government department, local government, or a university than it is to go to the Bar, and here is why. At the Bar you have to support yourself at all times. You cannot pool your risk, you cannot join a partnership, and you cannot be employed by anybody. So if you want to take parental leave, or any other sort of leave, you really need to either save to do that until you can afford to go off for, say, parental leave purposes, or you just do not. That is the reason why, despite the fact that we have had so many great female lawyers come out of our law schools over the last 25 years, we have a senior profession that is basically still male-dominated.

What this move will do is simply consolidate that, because by saying that in order to be recognised as one of our most senior lawyers—i.e., as a Queen’s Counsel—you have to be only a barrister practising independently, well, essentially what you are saying is that the economics are going to be against women in practice. I just want the women on the Government benches to know that, if they have not worked it out already, because that is what women lawyers all over the profession are saying. The Minister may think she is doing a terribly clever thing here to curry favour with the senior ranks of the Bar, but I can tell members opposite that it will be pretty drastic in terms of its consequences for diversity in our legal profession.

The other reason why it is wrong is this. The appointments process that was set out in regulations made under the Lawyers and Conveyancers Act—which are still in force—for Senior Counsel was a very open one, and it was well understood. It was set out in a set of regulations, and then in guidelines that were published under regulation 5 of those regulations that were issued by the Solicitor-General. People knew what they had to do in order to be appointed. There was not an old boys’ network running. There was not some secret, mysterious process, as has occurred in the past. The great fear must be that with the ending of the title Senior Counsel, the reversion to Queen’s Counsel, and the repeal of the relevant legislation, we will go back to that process shrouded in mystery where, essentially, it is people well known to the Attorney-General, and only those people, who can really hope to be appointed to that most senior role of Queen’s Counsel in our legal profession. That is the other great shame of this bill.

I put forward an amendment at the Committee stage that would have fixed that up. It would have kept the open appointments procedure. But that was voted down by National and its allies. It is a great shame because that, along with the requirement that lawyers practise not in firms but only at the Bar, will, again, contribute to a great shrinking in diversity at the senior levels of our legal profession. If anybody thinks that is a good thing, then I challenge them to get up and explain why.

Part 2 of the legislation does do some worthwhile things. As we said at the Committee stage and at the Justice and Electoral Committee, we are supportive of the changes that are made in Part 2 in terms of the way in which rules relate to incorporations of firms both of lawyers and of licensed conveyancers, in terms of the disciplinary procedure, and in terms of having the dean of the Auckland University of Technology law school represented on the Council of Legal Education. But because the provisions of Part 1 are so bad, so retrograde, such a backwards step, and such a reversion to an old, closed regime—the way that New Zealand used to do things in the 1950s; the great leap backwards taken by National today—this Labour Opposition will not be supporting this bill.

What a disappointing contribution that was from Mr Chauvel—and I will explain why—for a number of reasons. I will begin with one of the points that he was speaking about right at the end, and that was the fact that he regretted that his amendment had been voted down. The reason his amendment was voted down was that the officials advised us that it was an amendment that would have caused contradictions with regulation-making powers, and for that reason it would hardly be an appropriate thing to write it into the law.

Disappointingly, Mr Chauvel began with a really outrageous attack on the Minister of Justice. He then launched a snide broadside at the Attorney-General before making a pretty silly and totally inappropriate and sexist remark about the member for North Shore. I think he also said something about the Minister for Social Development but I did not pick it up, and I know that she is sufficiently bouncy to let that go.

The really important thing is that he studiously avoided engaging with the purposes of this bill, the Lawyers and Conveyancers Amendment Bill. He made the point that he feels that this bill is a setback for women. Well, I want to make the point that in recent times we have seen many very talented women in New Zealand appointed to senior positions on the bench, and that is a trend that will clearly continue. I am renowned for having taken a very long time to complete my law degree. I must admit that when I began it I was in classes that were typically dominated by men. By the time I returned to Waikato University and completed it, there were far more women in the classes than there were men. So I am absolutely convinced that over time we will see not only many more women in all positions in firms and on the bench but also a vast number of women appointed to the role of Queen’s Counsel.

Labour dismisses as archaic anything reflecting our Westminster heritage. Labour equates proven benchmarks of quality with snobbery. Labour members refuse altogether to acknowledge the widespread support for this bill within the legal profession, because, of course, that would mean they would have to acknowledge that they got things wrong when Labour was last in office.

The “we know best” attitude, which is so typical of the Labour Party, was constantly reiterated by the member for Christchurch East when she spoke on Part 1 during the Committee stage of this bill on Tuesday afternoon. I listened to her carefully. She lamented that National was reversing some of the changes made by the last Labour Government, and argued that we should not do so, because that would force a future Labour-led Government to reinstate the changes. Her speech that afternoon could be summarised as “Be reasonable. Do it our way.”

Well, we are not doing it Labour’s way; we are doing it the way that the profession and legal commentators recommend. That is very inconvenient for Labour and those supporting it on this bill, because it runs contrary to its ideological addiction to social engineering and scrapping all vestiges of the Westminster traditions that have served this nation so well, whether in our legal system, our democracy, or so much of our culture. There is nothing snobbish or anachronistic about the title Queen’s Counsel. Not only does it overcome the ambiguity and lack of meaning of Labour’s preferred title, Senior Counsel, but it serves a very useful purpose in being immediately recognisable and widely understood. And that is the major reason why the profession has argued for its reinstatement.

A lot has been said about the bill. To summarise, I want to make just a few final points. I repeat very clearly that the bill has been requested by the profession. It is not a National Party whim. The bill strikes a balance in the way appointments as Queen’s Counsel will be made. The bill contains a number of amendments recommended by the Lawyers and Conveyancers Disciplinary Tribunal. That input is welcomed by the Government as constructive and appropriate. Certainly, it is not anachronistic or unnecessary.

Finally, the bill reflects a Government that listens, a Government that is looking to the future needs of our legal system while valuing and celebrating our heritage, and a Government that is in tune with the electorate. But the bill is opposed by an Opposition that is obsessed with social engineering and its continuing astonishment that it was thrown out of office in 2008 by an electorate that must have been mistaken—because Labour surely could not have been!

That speech from Tim Macindoe perhaps reflects the weakness of the changes proposed by this Government to the role of Senior Counsel, in that it lacked any rationality, it lacked any hard facts or evidence, and it relied solely—relied solely—on emotionalism. He is absolutely wrong, of course, that the Labour Party rejects Westminster traditions. We are proud of our Westminster traditions, but we believe that the laws of this country should reflect the 21st century and not the 16th century.

You know, there are three things that Labour is opposed to in this bill, the Lawyers and Conveyancers Amendment Bill. I want to go through each of them and invite the next National speaker to perhaps bring some facts to the argument, instead of the nonsense that we have heard.

This bill is about privilege and snobbery. It is not about Westminster traditions. It is about exclusivity. This National Government, which is always attacking trade unions, does not attack some of the strongest trade unions in this country, which include the Bar Association and the Law Society. Because there are so many lawyers on that side, and they are looking after their mates, they bend over backwards to protect the trade-restrictive practices of that profession. That is what the member is doing. It is OK if you are Federated Farmers or the Law Society. Those are good trade unions and those members will protect the privileges of those who are the best off. It is only the unions that protect the poor in this country that they attack.

We are against the change in title, because the title the Government wants to go back to is anachronistic. We are against having an exclusive pool of people who can become Senior Counsel, because that is a trade-restrictive practice. And we are against its aversion to a system of selection for Senior Counsel that is not shrouded in secrecy and is not prone to the old boy network looking after itself. I want to elaborate on each of those three points.

The changes that we made in relation to the title back in 2006 were in line with the trend of every other Commonwealth country that has a common law system. The Australians do not talk about Queen’s Counsel; they talk about Senior Counsel. They are proud of their Westminster tradition, but they want a title that reflects what we are actually talking about. The term Queen’s Counsel was quite appropriate in the 16th and 17th centuries. That is perhaps where Tim Macindoe would have felt more comfortable with life, when people respected their betters and the aristocracy. In those days Queen’s Counsel were counsels to the monarch of the day, and it was quite appropriate to call them that. Today, most Queen’s Counsel most of the time are not representing the Crown. They are representing business, they are representing the private interest sector, and occasionally they might be acting on the instruction of the Solicitor-General or a Crown solicitor. But that is the exception rather than the practice.

If we want to have a title that is accurate about the role, we will call them Senior Counsel and not Queen’s Counsel. What is so wrong about what the Canadians or the Australians are doing that that is condemned by the National Party and it wants to go back to the term Queen’s Counsel? It is purely about status. It is purely about snobbery. There is no other rational justification, and from the Minister and the first speaker of the National Party we have not even had an attempt to give a rational explanation as to why they are making that change.

You know, when the Justice and Electoral Committee was doing the hearings on the bill, it was attracted to the comments by a person who is very respected in the legal profession, Jack Hodder, who himself is a Senior Counsel. Actually, Jack Hodder said we should really wonder whether there should be such a rank as Queen’s Counsel. What other profession, he challenged the select committee, across the country, apart from lawyers—you know, people like accountants or engineers—have a title or ranking that they give to a select group within it that enables them to charge a lot more for their services?

I do not go as far as Jack Hodder. I think it is appropriate that you should recognise excellence within the profession. But I want to say this. If you are going to recognise, through the use of a title, excellence in the profession, then it should be done on merit across the profession. It should not be restricted to a tiny minority group of barristers sole, but done across the whole profession.

One of the contradictions of this legislation is that the Government semi-acknowledges that. It first of all places the restriction that it should be only barristers sole, and then makes a provision that excellence can be reflected occasionally from across the majority of the profession.

If the National Government really believes that the argument for restricting it to barristers sole is that only barristers sole can be independent, then that would have been a total rule laid down. But it has acknowledged the weakness of its own argument by saying that the Governor-General can appoint from other areas of the profession.

The fact is that in every other regime, including in the home country of the Westminster system itself, England, they allow appointments from across the profession. England did it in 1995. I want to say to Tim Macindoe, or to any other person in the National Party who addresses this bill, to bring up some evidence that extending the appointments to across the profession has caused a breach of independence or a lowering of standards. Not one instance has been given to this House. Not one instance was given to the select committee. They have done it in Australia, they have done it in Canada, and in the home of the Westminster system in England they have been doing it for 18 years, and they have been doing it without any problem at all.

I believe this restriction is because the value of the title is that you can double your fees—

💬 Charles Chauvel: At least.

—at least double your fees. We heard from the Minister of Justice that $900 an hour is not unreasonable. Well, it might not be unreasonable if you are receiving it, but by God it is unreasonable if you are paying it. I believe the only reason they have done this is to narrow the group of people who can carry that rank and to increase the payments that a small and select group can take. That is a bad ground for any legislation of that nature.

There is every reason to maintain the ability to draw on excellence within the profession from across the profession. There is no valid reason that I have heard from any Government member as to why the restriction imposed in 1915 should be put back in place, when there is no evidence that that restriction is needed. Every lawyer takes an oath and is obliged under the Lawyers and Conveyancers Act to be independent in representing the interests of their clients, and to be independent in terms of the duties that they owe to the court. The argument of independence for restricting it to barristers sole simply does not exist.

I want to come to the third change, which is a very negative change being proposed by the Government, and that is to go back to an old system of appointment to the rank of Queen’s Counsel that is based on who you know and the old boy network looking after itself. In 2006 we made the change to replace opaqueness with a transparent system. We had a panel. The Solicitor-General and representatives of the Bar Association and the Law Society were on the panel, and everything was clean and above board. Why was it necessary to change that?

I have heard not one word from the Minister, not one word from the National Government, that justifies going back to a system that enables the Government to look after its own in conjunction with a few select people within the judicial system. It is in the interests of transparency and democracy in this country that appointment to a rank like Senior Counsel be done in an open, clear, and transparent way.

Mr Speaker, to wind up, as you are suggesting I should, there are three reasons that we are opposed to this: the title the National Government is going back to is anachronistic, the system of appointing from a very narrow group does not recognise excellence across the system, and a system of appointment that is not clear, open, and transparent is open to abuse. This is a bad bill. Labour will oppose it, and will reverse it when it gets the chance.

Tēnā koe. I rise to speak on the third reading of the Lawyers and Conveyancers Amendment Bill, which the Green Party will not be supporting, for many of the same reasons that have been articulated already by the Hon Phil Goff and Mr Charles Chauvel, who I thought made an excellent contribution to this debate, contrary to what Tim Macindoe suggested. I am not going to speak much to the second part the bill, which we thought included primarily sensible, uncontroversial amendments that we would have been able to support if it were not for Part 1 of the bill being such an anathema.

Back when Labour originally legislated to switch the title of Queen’s Counsel to Senior Counsel, on the basis that it was an inappropriate colonial relic, we supported that change. We thought it was a progressive change, one that really supported the independence of New Zealand. I realise that as an American by birth, some of the members in this House might be inclined to assume that I have an innate dislike of the monarchy, but that is not really what this is about. Although New Zealand maintains its links to the United Kingdom, we 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 of 1986 stand out as practical and symbolic measures from which we have set out to enhance our independence. Though 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, like many other Commonwealth countries, as has been mentioned, one of embracing a destiny that is uniquely New Zealand in nature. Such was the reasoning behind our acceptance of the Labour Government’s changes in the area of titles. The title of Queen’s Counsel is a colonial relic. It does not reflect the distinct character of our cultural identity.

One reason that the Government has advanced for a change is that there is supposedly a reciprocal relationship between the Queen’s Counsel and the Crown, one that is derived from ancient English origins. But this is not a relationship that exists in name only. This relationship continues whether the lawyers concerned are titled Queen’s Counsel or Senior Counsel. All the important qualities of the position remain untouched. Their 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 Solicitors-General or Crown solicitors, I think they represent a wide range of private individuals and groups. Changing the name to Senior Counsel actually imbued a broader sense of serving the community at large with skill and independence much better than whatever vestige borrowed by an outdated colonial title might do.

Perhaps the more interesting arguments that we considered in the Justice and Electoral Committee and in the debates around this bill were those considering eligibility. Labour originally legislated to allow the full profession to be considered as potentially worthy of having the rank of Senior Counsel bestowed upon them, rather than uniquely barristers sole, which had been a tradition up until that point. This widened the pool of eligibility from a narrow selection comprising only a few hundred to 12,000 or so wider practitioners.

I have to say that the reasoning for the change back has not been sufficiently articulated by the Government. I actually thought the Minister of Justice’s comments that somehow this was a move towards increasing access to justice were completely confusing. I cannot see how the move of restricting this to a small group of barristers sole is going to increase people’s access to justice. That argument simply was not made by the Minister. It was an interesting diversion, I think, on her part to try to imply that the Opposition is opposed to access to justice, which is really laughable when you look at what this Government is currently doing to access to justice through increasing the fixed fees to access the Family Court through the Legal Assistance (Sustainability) Amendment Bill, which I have grave concerns about.

During Kennedy Graham’s call on the first reading of this bill, which we did support to select committee because we were interested in the provisions in Part 2 of the bill and we were hoping we could ameliorate the proposals in Part 1, he 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 could at least advance the argument on the part of the Government that this would limit independence. But I do not believe that that argument has been proven to occur to such a degree that the integrity of the position had been called into question.

Another change that we have come to disagree with in this bill, as a regressive step, is in regard to the selection process. This bill removes the selection panel for QCs and replaces it with a requirement that the Attorney-General consult with the New Zealand Law Society and the New Zealand Bar Association. This seems very ironic, in light of the Government’s purported concerns around independence, because the selection process that is being implemented now seems to open up the process to political influence more, rather than less. It is just another example of complete and total inconsistency on the part of the Government.

In short, this bill does not seem to engage with a 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 it is an ideological knee-jerk reaction. I think the Hon Phil Goff very clearly made a compelling argument that, in fact, what this is really about is privileging a small group of very well-off lawyers. It is another example of the Government doing the exact opposite of what it says. It says that it is for competition and for the market, but, actually, what is happening is that the Government is reducing competition, and by doing so it is privileging a small group of people by creating this small monopoly on who can be Senior Counsel.

I think that it is really unfortunate that the Government is taking this step. The Green Party will not be supporting this regressive move, and we hope that in the future New Zealanders will be able to embrace new traditions and put our own stamp on the ones that we do wish to keep hold of. Thank you.

I am pleased to speak to the third reading of the Lawyers and Conveyancers Amendment Bill. The bill has been welcomed by the profession, and surely they are in the best position to judge it. People may ask, well, what is in a name? There is plenty in a name. I can recall in the last term of Parliament when enrolled nurses lost that title, to something like health care assistants. When that happened there was a huge outcry from that profession. They felt demoralised and unworthy. There was confusion, and many people opted out of the training scheme. That name got restored, as it should have done. Tony Ryall has widened the scope, and that has been welcomed. So there is plenty in a name.

The primary purpose of this bill is to restore the rank of Queen’s Counsel and restrict eligibility for appointment to that rank to barristers sole, to retain independence. The New Zealand Law Society commented in its submission that the change to Senior Counsel was driven by ideology and was not in response to any pressing change. I ask you: if it was not broken, why fix it? The Bar Association supported the return to this historical status of the rank of QC. The title of QC has a proud history. It is recognised internationally, and it really signifies and identifies that that particular practitioner is at the top of their profession. I commend the bill to the House. Thank you.

The Lawyers and Conveyancers Amendment Bill Part 1 is about elitism, anti-competitive advantage, and historical claptrap. It should in fact be entitled the “Lawyers and Conveyancers Elitist Purposes Bill”, I think. It takes us back to the days when QCs were appointed by a mysterious, non-transparent process. It re-establishes suspicion of inappropriate influences and political interference, which is all too often, in fact, justified. New Zealand First therefore opposes the legislation, at least as far as Part 1 is concerned—therefore, the whole bill. We do not think it is good for the legal profession in practice, and especially not for its reputation. It is not good for the community’s understanding of the profession. It is about the National Party’s philosophy and ideology, and it is a giant leap back to the past. New Zealand would be moving backwards with this legislation, when all comparable jurisdictions have moved on with modern and relevant approaches to the issue of acknowledging senior practitioners. You have only to look at Canada and most of the states of Australia to see that.

It is questionable whether it is really even necessary at all to award either Queen’s Counsel or Senior Counsel. We do not see it done for the medical profession, and we do not see it done for the teaching profession. We do not see it done for other professions. These days, markets must be free of discriminatory and anti-competitive impositions, and that includes the legal profession. For some reason, lawyers think they should stand outside that principle. I do not see any reason for doing so. Strangely, National usually supports that sort of approach, so this is a bit of an aberration for it, I think. National has simply got it wrong, and it has got it wrong for the wrong reasons. It is wedded to the past, and it is not future oriented. However, if we are to persist with the ranking of legal practitioners in this way, rather than to rely on reputation and the market, as it should, then it is an important matter to 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 on a fair and transparent basis.

The current legislation actually goes a long way to achieve this and should not be undone by this retrograde bill. The acknowledgment of highly regarded and experienced practitioners with special expertise must not be about status or reward or cronyism, in the way that it has all too often been in the past, and it should not be seen in the same way as the awarding of knighthoods and honours. New Zealand is no longer a British colony with all of its traditions and peculiarities. We should not create commercial advantage by one practitioner over another in the way that this bill will do. The New Zealand system must fulfil our needs and be relevant, useful, fair in the selection process, and transparent. This bill does not appear to be designed to do any of that; in fact, it will have exactly the opposite effect. It appears to be designed to perpetuate elitism, as distinct from meritism, and by that I mean the recognition of status well earned instead of one simply awarded in the manner of some sort of honour or, worse still, as some sort of favour.

Under Part 1, the term Queen’s Counsel would return to replace Senior Counsel, and that is unwise. The public can more readily understand the term Senior Counsel, but I do not think it has ever understood the term Queen’s Counsel, and understandability is important for the reputation of the profession. People used to think that the term Queen’s Counsel meant a senior barrister who had some sort of function supporting the Attorney-General. Of course, that has not been the case for a very, very long time. The term Senior Counsel is more descriptive and does not have the connotations of an overhang from the old English system and our colonial past. 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 is much better. Nor does the assertion that somehow the reversion to Queen’s Counsel for barristers sole will enhance the independence of the Bar have any merit at all. If independence means independence from the Crown, it really in New Zealand means independence from the Government. This 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.

Concerning eligibility, it is not clear at all why only barristers sole are favoured to be eligible for appointment as QCs. It is not a good basis in principle or practice for this to happen. Other senior expert practitioners should not be excluded, whether they practise in law firms or not, and we should not exclude barristers and solicitors. When you consider the huge differences between how barristers, and barristers and solicitors, operate in New Zealand as compared with the UK, it seems anachronistic that we should have this overhang from the UK in the New Zealand system. But the worst aspect, I think, of the bill is new section 119A(2), inserted by clause 6, which overrides the other clauses in the bill, where the royal prerogative is to be reinstated.

💬 Charles Chauvel: The crony clause.

This is comprehensive nonsense—and, yes, it is the cronyism clause. There is no substantive reason given for this huge leap backwards. It is exactly the kind of provision we should avoid. The royal prerogative really means the Government prerogative, and all of the disadvantages mentioned earlier of unfairness, discrimination, and anti-competitive behaviour. The scope for cronyism and bad process will be entrenched by that particular provision. It is thoroughly objectionable.

The need for transparency has also not been achieved in this bill. It is not what modern best practice requires. These days people rightly insist on a transparent selection process. This will still be a closeted Government process in which the public can have no confidence, at all. New Zealand First, therefore, objects to the entire concept of this retrograde bill as set out in Part 1. It is misconceived, it is a step back to the bad old ways, 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 absolutely no good reason whatsoever. 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 at all for either QCs or Senior Counsel to be appointed. For all these reasons, New Zealand First will definitely vote against this very bad bill because of the provisions that are set out in Part 1, for all the reasons that I have mentioned.

It is my pleasure to take a call on the Lawyers and Conveyancers Amendment Bill this afternoon. This legislation reinstates the title Queen’s Counsel after Labour removed it in 2008 and replaced it with the title Senior Counsel. You have got to ask yourself why this move happened in 2008, when the Law Society did not ask for it, the Bar Association did not ask for it, and lawyers themselves did not ask for this change. I was reading the minority report of the Labour Party view, and this pretty much hits it on the head. It says: “The last Labour-led Government ended a number of links to our colonial past. These include a final right of appeal to the Judicial Committee of the Privy Council, comprising mostly British judges and sitting in London; the award of knighthoods and other honours of English origin; and the annual practice of appointing a small number of barristers to the rank of Queen’s Counsel.” If that was the direction that that Government was going in then, that is not a reason to change Queen’s Counsel at all. If it is not broken, why change it?

When you think about what this legislation does, it just reinstates how it was before 2008. It ensures that there is an independence of the Inner Bar by placing practice restrictions on Queen’s Counsel, so that in most cases they will have to be barristers sole rather than lawyers in a partnership. So what we are trying to do is reinstate independence and the perception of independence, which is really important for the public to have confidence.

The big argument that we have had in this House, especially during the Committee stage, was around transparency of appointments. It is important that it is addressed. Cabinet has made decisions to repeal the provision of the regulations that provide for a selection panel, and replace it with an explicit requirement for consultation with the New Zealand Law Society and the New Zealand Bar Association, which is going to give it a lot more transparency than it has had in the past.

I also want to talk about the comments about women not being able to become Queen’s Counsel because it is too hard. Well, actually, we do have women Queen’s Counsel. I think Tim Macindoe made a really good point that we have got more women coming through law schools and more women who are making their way through firms and going out on their own now, because there are more women in the pool. That is going to grow and grow and grow.

💬 Charles Chauvel: And now you’re going to stop it.

Charles Chauvel is saying that we are going to stop it. One of his points was that they will not want to be Queen’s Counsel because they will not be able to get maternity leave. Well, actually, that is not true. They can get maternity leave.

💬 Charles Chauvel: You don’t even understand the point.

I do understand the point. Going out on your own is hard. It is very hard. If you are self-employed, you can get maternity leave, actually, so it does work. At the end of the day, it is about women going out there, backing themselves, and believing in themselves. I think it is absolutely wrong, and you put down women if you do not think they can go out, back themselves, achieve, and become a Queen’s Counsel, because they absolutely can.

I believe that the title Queen’s Counsel provides official recognition of excellence, recognition that reflects the highest standards of legal advice. I commend this bill to the House.

It is a pleasure to stand again to talk on the Lawyers and Conveyancers Amendment Bill. Like my colleagues on this side of the House, the thing that I find overwhelming about this bill is just how disappointing it is that in a world where all around, in many other countries, conservative and progressive Governments are looking to changes that actually progress the human race—when they are looking to do things that might be rooted in the values of the old, but they are changing the practices of the past—here we have a piece of legislation that does the opposite. It reinstates the practices of the past with no real values attached to them at all.

This bill does a number of disappointing things. It reinstates the Queen’s Counsel name. Make no mistake, as a member of the legal profession, I think it is good that at least in the profession of law and the practice of the law we do develop a profession—a body of people with a set of values and principles, with an approach, and who play a very important role—but also understand that part of developing a profession is that you recognise those who are top performers in it, those who are stellar performers. You do accord some status to it, so that those coming into the profession know what good performance at the Bar looks like, have something to aspire to, and know who the good performers are. Likewise, those on the bench who are dealing with counsel all day every day can rely upon those who have achieved a certain degree of skill and, indeed, notoriety in some cases when they appear before them. So the profession understands that.

Conferring some sort of name or title or rank on the senior practitioners in this very important field—a field that, as I submitted the other day, is one of the bulwarks against a rampant breakdown of the rule of law and an undermining of democracy—is appropriate. It is appropriate that we confer some sort of style upon those who are the top performers in it. But when we hanker to the colonial relics of the past and reinstate the Queen’s Counsel title, that is what is so unnecessary.

If the Government is serious about going back to the past, here is another relic from the past that we might consider. You see, counsel, when they are appearing at the Bar, and certainly at the senior Bar now, wear their gowns, and carry on the back of their gowns a little pouch. The background to the pouch was that it was beneath senior members of the profession to ask for money for being a good advocate, a top advocate. Were that to be the case today, life may be a little different. But they did not ask for a fee or to be paid. The pouch was there so that the happy client, irrespective of the outcome of their proceeding, knew that they had a duty to reward their counsel, who had put themselves, in some cases, on the line, and risked a beheading by the queen or monarch of the day. So as the counsel was cleaning out their desk after a hard day’s advocacy at the Chancery or the Admiralty Bar or the assizes, or whatever court it was that they were in, a few golden ducats or guineas or coins would be placed in the pouch, and the client would wander away. It would be seen by counsel as an anonymous contribution and a fee for their work.

Well, that is not the way it operates today. Of course, one engages a QC, as I know at least one member of the House has recently—and I enjoyed his company yesterday. QCs do not do that any more. They do not wait until somebody fills up the pouch in the back of their gown. They send an invoice. When you carry the rank of QC, of course, that invoice frequently has several zeros on it—and that is before the decimal point and the two other zeros that follow after it. That is what it has become.

In this day and age the legal profession, like many others—but apparently not the accountancy profession—has changed significantly. Top performers are not always barristers sole. Many of the top performers in our legal profession are in the firms, or they set up their own firms and they do not want to have to partake of the intervention rule, so they retain their style as a barrister and solicitor so that they can take clients directly, which is a quite honest transaction. There are some barristers sole for whom the intervention rule is really a formality that they honour in its breach.

But the legal profession has changed, and our top performers come from all parts of the profession. Some of them are employed solicitors. They are employed by corporations. They are the general counsel of large companies and large corporations. Indeed, I might say that even in one or two trade unions there are top performing lawyers. There is no reason why the top performing members of the profession, irrespective of where in the profession they practise, should not be recognised if they are regarded by their colleagues across the profession and the members of the bench. There is no reason why they should not have recognition of their excellence and of the performance that they can achieve for the clients on whose behalf they act. That is why it is so unfortunate that now the conditions upon which one might acquire that style or that label that will indicate and mark them out as a senior and excellent practitioner are going to be so restricted and confined. It does limit it. It limits it not just for men but also for the women in the profession, and, let us face it, we are desperately short of women who have been recognised by the profession as being top in their rank. That is so disappointing, and it is so unnecessary for us to hanker back to the past and maintain those colonial relics.

Then, of course, there is the provision that allows the royal prerogative to be exercised, which, as we know, under the Constitution Act and other provisions is done upon the advice of the Government of the day, the Cabinet of the day. So it is not a genuine royal prerogative. It is the prerogative of the Government of the day, and that allows the Government to recognise anybody, not just those in the profession. The legislation marks out that those who could have the style conferred upon them do not have to be at the Bar, but the royal prerogative provision in this bill allows the Government to confer it on anybody. For a bill that claims to be acknowledging and recognising the excellence of the profession, that is really beyond the pale, because it takes it outside the profession. It takes the judgment of who is recognised by the profession as excellent and as warranting that sort of recognition out of their hands, and it really undermines the very purpose for which the bill says it is there.

So that is what makes it so disappointing—that not only does it restrict now the number of people and the positions from which they practise their profession and prosecute cases on behalf of those who need their help, and who are genuinely deserving of the recognition, but also it actually allows the Government of the day to ignore all of that, and for its special friends to confer this title. That is simply uncalled-for.

In the modern age we want the best performers to be recognised. We should not have to impose unnecessary and irrelevant conditions such as that they practise as barristers sole—practise at the Independent Bar. This is the other thing about the Independent Bar—the point I made the other day. There are members of the Independent Bar for whom the independence is nominal. They are embedded in corporations, they are embedded in organisations on whose behalf almost exclusively they act. I could name examples, but I do not care to. So there is a real question about that. They apparently would qualify for this recognition, but those who happen to be in a law firm—top partners in a top law firm, who do excellent work for their clients, who are excellent counsel, and who are recognised by the benches—are disqualified from being recognised in this appropriate sort of way. In the modern age, that is unnecessary and uncalled-for.

For that reason we are opposed to the bill. It will be a great, giant leap backwards as the profession starts to take charge of improving its standing and its internal professional regulation and management, and we are voting against the bill for that reason.

I stand in support of the Lawyers and Conveyancers Amendment Bill. I also do want to acknowledge, from the last term of this Government, both the Minister of Justice and the Justice and Electoral Committee for their fine work and their deliberations. I was not a part of those deliberations, but I do trust their wisdom and their experience, which has brought us to this point where we are now here in the third reading of this bill.

This bill is about reinstating the status and independence for the top rank of advocates in New Zealand. Trust in the justice sector is so important, as is acknowledgment of those who have worked tirelessly and hard to ensure that they advocate in the best possible way. It is important that we acknowledge and recognise them for this as well.

In their deliberations the Minister and the select committee have listened carefully to the legal profession, and this bill is in response to the profession’s concerns that the title of Senior Counsel, created in 2008 under the previous Government, does not adequately reflect the nature and the status of the rank. So we are taking steps to protect the essential independence of the Inner Bar. The looser rules for eligibility as Senior Counsel introduced by the previous Government threatened to dilute the independence of our most senior advocates. Restoring in particular the independence of Queen’s Counsel in New Zealand reflects the public purpose and status of this position, as well. The bill contains savings and transitional provisions in relation to practice arrangements entered into by Senior Counsel and Queen’s Counsel, as well.

This is a bill that ensures that and addresses these concerns. I commend this bill to the House.

Kia ora. Thank you very much for the opportunity to contribute in this debate, the third reading of the Lawyers and Conveyancers Amendment Bill. From the outset I want to say that Labour opposes this bill. I also oppose the bill, for a very specific reason. I want to focus specifically on Part 1 of the bill in this, the third reading debate. It is about the restoration of Queen’s Counsel.

I want to particularly make reference to a colleague of mine in the Māori Affairs Committee, Te Ururoa Flavell, and his bill, which was the Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill. That bill was not supported by this House. In particular, it was not supported by the National Government. The rationale for the non-support of that bill was quite clear. The National Government said that the Māori Party had put the cart before the horse. The appropriate place for a conversation around national identity is with each and every New Zealander, and that is a conversation we are having within the constitutional review. That is where this bill belongs, within the context of the constitutional review.

I would like to take this opportunity to outline why I believe it should be discussed and debated within the context of the constitutional review. New Zealand has a constitution that consists of a collection of statutes, which are Acts of Parliamentit consists of treaties, it consists of Orders in Council, it consists of letters patent, it consists of decisions of the courts, and it consists of unwritten constitutional conventions. So as with the UK, there is no one supreme document in Aotearoa New Zealand.

In August 2011 the Government undertook a constitutional review. We have 12 New Zealanders who are trying to gauge public opinion on New Zealand’s constitutional arrangements and they have free rein to test views on whether, for example, we should move towards becoming a republic. This is really relevant because—

The ASSISTANT SPEAKER (Lindsay Tisch): Order! On a third reading speech you must confine your comments to—[Interruption] So you need to come back and mention what is actually in the bill with a third reading speech.

Thank you, Mr Assistant Speaker. I am sorry if I am taking a while to get to my point.

So who are Queen’s Counsel? Who are King’s Counsel? Well, Queen’s Counsel are lawyers appointed by letters patent, which was actually my point. It is actually part of the constitutional convention of New Zealand society that Queen’s Counsel are appointed by letters patent. So that is the relevance of the constitutional review, and that is why in my opening remarks I was really clear that I wanted to talk about Part 1 of the bill, which is about the restoration of the title Queen’s Counsel.

I just wanted to actually note that in 2008, when New Zealand made the decision to change Queen’s Counsel to Senior Counsel, it was really about changing a name to one without connotations of monarchy. We made this decision, I think, within the context of the thinking around the constitutional review. It was really about our national identity—issues to do with the place of the Treaty, for example, but also issues to do with titles like this, which historically have been bestowed on us because we are a colony. We were colonised by the British, so we inherited a lot of titles, such as Queen’s Counsel. So for me this is actually all about us becoming an independent sovereign nation within the context of being a modern democratic society.

I want to highlight that this issue about maturing as nations within the Commonwealth is really relevant, because a number of other Commonwealth countries, actually, have disestablished the title of Queen’s Counsel. I just want to list them, because they are places like Hong Kong, the Republic of Ireland, South Africa, Kenya, Malawi, Singapore, and Guyana. My colleagues Charles Chauvel and the Hon Phil Goff have both talked about the changes within both Canada and Australia, countries with which we would see we have some synergies. They have also disestablished the Queen’s Counsel title in Nigeria, India, and Bangladesh. So, in fact, when New Zealand in 2008 decided to disestablish that title it was linked to, I believe, a greater conversation about who we are in today’s world, and, possibly, where we were going in the future. So I think it is incredibly relevant to link the discussions that we are having today in the House with the constitutional review. Thank you, Mr Assistant Speaker, for allowing me to get to where I eventually got to—there was some logic to it.

So I just put on the table that the National Government was very quick to not support Te Ururoa Flavell’s bill based on a principle, and the National Government has been very quick to not use that same principle within the context of the discussions we are having about this particular piece of legislation. That is really what I wanted to contribute to the debate. So I thank you very much, and I thank the leadership, within the discussions we have had, of Charles Chauvel. Thank you very much. Kia ora.

I would like to take the final call on this bill, the Lawyers and Conveyancers Amendment Bill. I have been a bit bothered by some of the contributions that we have heard in this debate, but like my colleague Katrina Shanks I think the one that disturbed me the most was the suggestion that women are not able to get ahead in their careers and to take on the role of Queen’s Counsel. For a party that supports—or purports to be the party for—gender advancement I was somewhat shocked that the Opposition would even suggest that women are not capable, are not able, or would not be in a position, because of having babies, to adequately be a Queen’s Counsel—

💬 Charles Chauvel: You know that’s not what I said.

It was very close to that line, Mr Chauvel, as well as a whole range of personal insults that were hurled across at the female members of the National Government.

The Lawyers and Conveyancers Amendment Bill is a restoration of something that the Labour Government changed without really any reference to the lawyers themselves. This is something that the National Government is putting in place, based on the suggestions of the lawyers themselves. The Minister of Justice spoke very eloquently in the third reading of this bill, and I am proud to say that I support it.