2 March 2022
We live in remarkable times. Not only as a result of the events unfolding near and far, but as a result of their significance in constitutional and international law terms.
I speak not only of events in the Ukraine (which will be the subject of separate communications) or of issues thrown up through legislative responses to Covid 19, but of the myriad rights-related issues revealed through events overseas and in our own courts.
Take Sudan where, since the October 2021 military coup d’état, violent measures have been taken against dissidents and the media, leading to the co-chair of the International Bar Association Human Rights Institute, Anne Ramberg to call for the rule of law to prevail through independent investigations and prosecutions.
At a global level, Catherine Meighan, the General Counsel at the UN International Fund for Agricultural Development has spoken in compelling terms about the disproportionate effect the pandemic has had on access to justice in many indigenous communities, saying “many indigenous communities are remote and rural and already experience challenges accessing legal resources and services. As administrators of these resources and services turn to the internet to fill the gaps in the system, members of indigenous communities face the barrier of having limited-to-no access to the resources”.
It is at least heartening to see that Ethiopia has lifted its state of emergency, under which security forces detained thousands of people from the Tigrayan community. It may mean that the government is preparing to start talks to end a conflict with rebels from Tigray. A further promising development comes through Naftali Bennett making the first visit by an Israeli Prime Minister to Bahrain, showing something of a thaw in relations between the Jewish state and Arab countries.
And, just as a matter of interest really, Gurbanguly Berdymukhamedov, Turkmenistan’s president, following his 15th anniversary, has made way for his son, Serdar, to take his place - setting the stage for Central Asia’s first hereditary succession, possibly since the era of the Khans.
In case current events are of any concern, you might take solace from the fact that SpaceX’s Starship project is nearing completion. Apparently, the stainless-steel rocket, taller than Saturn V, is being designed for the purpose of buying humanity an insurance policy against existential risks by establishing a colony on Mars.
Coming back down to earth, our own courts have been grappling with a broad range of substantive issues. In the Covid 19 space, in Long v Steine  NZFC 251 the Family Court declined to order vaccination of a child in the face of disagreement between the parents while, in In Yardley v Minister for Workplace Relations and Safety  NZHC 291, Cooke J set aside a vaccine mandate for Police and the Defence Force, concluding that the relevant Order was an unjustified breach of the applicant’s NZBORA rights – but emphasising that the Court’s conclusion must not be taken as questioning the effectiveness and importance of vaccination because the relevant Order was not implemented for the purpose of limiting the spread of the disease.
In other NZBORA cases, in Kennedy Point Boatharbour Ltd v Barton  NZHC 257, Gault J reduced the scope of interim orders granted previously against “persons unknown” over protests against the marina development in Pūtiki Bay, Waiheke Island, on the basis of their NZBORA rights, the Treaty and tikanga Māori. And, in Make It 16 Inc v Attorney-General  NZCA 681, the Court of Appeal found our voting age to be unjustified discrimination against people aged 16 and 17, differing from the High Court, but declining ultimately to grant a declaration of inconsistency out of deference to the democratic process.
Other cases of note include Gill Pizza Limited v A Labour Inspector  NZSC 184 where the Supreme Court simplified the process for applications to recover wages in cases where the status of the person as an employee or contractor is disputed, confirming that the Employment Relations Authority is competent to deal with applications of that sort and that a separate application to the Employment Court to determine employer status is not necessary. And, in a recent case on name suppression, the Court of Appeal in DV v R  NZCA 700 upheld an appeal and granted name suppression, having regard to the conduct of the victim in posting about the offending on social media in an unbalanced manner and to the hardship suffered by the offenders and the need for suppression to prevent or mitigate future harm and to advance rehabilitation.
Here at the Bar Association, it is with a great sense of pride that we begin 2022 with a name change so that we are now as now New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture | Ngā Ahorangi Motuhake o te Ture. The consultation process and unanimous support at our recent Special General Meeting was truly heartening. Once more, we acknowledge how honoured we are by the gift from the New Zealand Maori Council, through the Guidance of Sir Edward Taihakurei Durie KNZM (Rangitāne, Ngāti Kauwhata and Ngāti Raukawa, Pou of the Māori Council) and Dr Ken Kennedy (Te Ārawa, Ngāti Rangiteaorere, and Ngāti Wāhiao; Kaumātua at Waiāriki Institute of Technology) and we are looking forward to honouring the gift and our new name through a ceremony in Wellington mid-year.
The full Council is meeting for the first time this year on Friday. So far this year, our work has been dominated by Covid related matters; in particular on the operation of the courts under the Covid 19 Protection Framework and on access to clients of our members who are in prison. But, at our meeting, we will be focusing broadly upon each the things that we want to deliver, for you our members, this year through each of our committees – the Te Ao Māori, Membership and Well-Being, Diversity and Inclusion, Education, Advocacy, Criminal, Commercial, Employment and Family Committees. In a year where, once more, we are likely to be constrained in the ways in which we can get together in person, we want to be able to continue to deliver tangible benefits, material assistance, ongoing training and true camaraderie.
May I leave you with a song that has brightened the beginning my year. If you haven’t discovered it yet, I hope it might be the same for you: the fabulous Rob Ruha-created group, Ka Hao and their new song ’35,’ which celebrates our State Highway 35. The video here is notable not just for the music but to celebrate the East Cape and its people. If you haven’t taken a road trip on Highway 35 for a while, I can recommend it as something that is very good for the soul. Here is Ka Hao:
Noho ora mai
11 November 2021
It is Armistice Day. At 11 am on this day in 1918, the armistice signed between the Allies of World War I and Germany for the cessation of hostilities on the western front took effect. We can only begin to imagine the mix of emotions experienced by our forebears on that day. And it is worth recalling that the enthusiasm with which New Zealand’s peace celebrations were embraced were tempered by the lethal influenza pandemic (which came to be known as the Spanish flu) that struck the country between October and December 1918. During that time, we lost half as many people to the pandemic as we had during the war as a whole.
So, this is a day on which we might spend a moment to think of the New Zealanders lost to the world through warfare and pandemic at that time.
Having looked back, we might also look forward in the wake of the conclusion of the recent COP26 meeting in Glasgow, to the New Zealand government’s joining of the International Just Transition Declaration, alongside 15 other signatories including the US, the UK, Germany and France. The declaration pledges support for climate change mitigation and decarbonisation effects in poorer countries, where the effects of climate change – and of decarbonising the economy – will fall disproportionately.
Two recent decisions illustrate challenges in bringing issues such as these before the courts. What should be the response of tort law to climate change? The Court of Appeal said that was the key issue raised by Michael Smith’s appeal (Smith v Fonterra Co-operative Group Ltd  NZCA 552) in his case against Fonterra, Gensis and NZ Steel among others.
It was alleged that the release of greenhouse gases by the respondents had contributed to dangerous anthropogenic interference with the climate system and to the adverse effects of climate change, and that that poor and minority communities will be burdened disproportionately.
The claim was formulated as public nuisance, negligence and a proposed new tort “breach of duty”. The Court’s reasoning, in its judgment given late last month, highlights the challenges of formulating claims for environmental harms which have global effects in the terms of a legal system that developed mainly to deal with local disputes.
The Court said that to recognise such a duty would be a radical response contrary to the common law tradition, which is one of incremental development, and that there was no principled basis for singling out the defendants in such an action. The issue of climate change cannot be effectively addressed through tort law, the Court concluded, and the competing social and economic considerations involved are more appropriately addressed by the legislature.
The second case is that of Stephen Donziger, the US environmental lawyer who obtained a $9.5 billion judgment against Chevron over pollution in indigenous lands in the Amazon rainforest.
That judgment and subsequent contempt proceedings by Chevron against Donziger personally have given rise to what is perhaps one of the most compelling legal stories in modern times – a story involving allegations of fabricating evidence, decisions requiring devices to be turned over, resistance on the basis of privilege, refusals on the part of the Attorney’s Office in the District of New York to prosecute for criminal contempt, a judge’s referral for prosecution despite that decision, home detention – found in an opinion from the UN Working Group on Arbitrary Detention to violate international human rights law –, appellate proceedings and, now, a six-month prison sentence for Mr Donzinger.
The saga has drawn criticism from retired federal judges in the United States, the UN and from Amnesty International. https://www.theguardian.com/us-news/2021/oct/01/steven-donziger-lawyer-sentenced-contempt-chevron
Meanwhile, as we look towards rule of law issues across the globe, it is of note that Sudan has suffered its second coup in two years. Abdel-Fattah al-Burhan, the country’s de facto president, has seized control and had the Prime Minister arrested, indicating that he was doing so to prevent a civil war. Thousands of protesters have expressed a different view and soldiers have opened fire as a result.
In nearby Egypt, a four-year state of emergency has been lifted; an encouraging development that will, it is hoped, make it more difficult for protests to be quashed and other freedoms to be limited.
Of real concern, not just from a rule of law, but from a humanitarian, perspective is a report from the UN indicating that more than half of Afghans will go hungry this winter without help and that the proportion who subsist on less than $1.90 day will rise from around half before the Taliban seized power in August to 97% by mid-2020. It is reported that residents of Kabul are selling possessions in the streets to buy food.
With difficult thoughts like these in mind, there is much to reflect upon as our own pandemic affected world heads towards the traffic light system. But at the Bar Association we are at least glad to bring some good tidings. With insurance renewals due on 1 December, we will soon be telling you about improved terms and rates with the Bar Association’s scheme. Socially, we are looking forward, for those for whom it is possible, to our upcoming silks dinners in Wellington and Christchurch and to our Christmas drinks with you in centres in which it is possible.
On the webinar front, we have enjoyed superb sessions on arbitration (with Christine Meechan QC, Dr Simon Foote QC and Mark Colthart) and on cross examination (with Phil Shamy, Nick Davidson QC and David Jones QC) and a fabulous chat with Jim Farmer QC (recordings of which are all available through the NZBA). There are many more to come.
Recently, we have celebrated the appointments of Justice Jonathan Eaton QC to the High Court bench and Judge Brett Crowley to the District Court bench and we are very much looking forward to the swearing in of Justice Layne Harvey in the stunning surrounds of the Rotorua Maori Land Court on 25 November.
My very best wishes to you all over the six weeks of 2021 that remain.
Remain well and take care – noho mai rā i roto i ngā manaakitanga katoa
19 August 2021
August President Column
Kia ora tātou katoa
What a fragile world it is. Prior to 1892, we didn’t know what a virus was. Now we know that there are millions of types of viruses in the environment. We know that, when infected, a host cell is forced to rapidly produce thousands of copies of the original virus. And, now, once again, we are reminded how, through the passage of just a few microscopic particles, a country can be brought to its knees.
Here at the Bar Association, we do hope that you were able to settle back without too much difficulty (and with any luck for just a short time) into a world that merges home and office, family and workmates, as we wait to see whether or not the outbreak has come from links close to the border and if we have been lucky on downstream transmission.
One thing we do know from international experience, and from our own, is that a swift, hard lockdown is more effective than any other measure; particularly when our vaccination rates are not yet where we need them to be.
On this point, along with so many of the wealthier countries, we face a real tension as the WHO makes a plea to divert supplies wherever possible to poorer countries, where in so many cases the vast majority of people have not been inoculated. In Africa, for example, cases are growing by 20% week on week. There are now five million cases on that continent. Only 1% of the population has been fully vaccinated – as against a global average of 68 doses per 100 people. Meanwhile, Indonesia has crossed 100,000 recorded deaths from the virus, while daily infections in Thailand and Malaysia are hitting new highs and cases in the Philippines are once again sharply on the rise.
At the same time, post-vaccination legal measures in parts of the world are starting to cause tensions. New York became the first city in America to require proof of vaccination for customers entering restaurants, gyms and other indoor venues. Enforcement action begins shortly. In Paris, more than 200,000 protesters marched against the government’s edict compelling people to show a Covid pass before boarding trains and planes and entering restaurants and cafés.
We are all on a long and complex journey. We must accept the odd derailment (a little like that which caused chaos in Wellington on Tuesday following a slip on the Kapiti line) but we have a strong carriage and are continuing to move forward. But we must ensure that we do so in the right direction, with an eye to protecting the rule of law.
Meanwhile, we look further beyond our closed borders to a range of international events that cause us particular concern from a rule of law perspective. Of grave concern is the vulnerability of 260 women judges in Afghanistan who, upon the resumption of power by the Taliban this week, are facing great personal risk. This situation gives rise to a strong plea for human rights and the rule of law to be respected. The International Bar Association (IBA) and the International Bar Association’s Human Rights Institute (IBAHRI) have called for swifter and better coordinated action by States in opening up more routes to safe havens and expediting visas for the transfer and resettlement of Afghans, including members of the judiciary, legal professionals, human rights defenders, non-governmental organisation workers, journalists and media workers.
In a similar vein, IBAHRI has commemorated the sixth anniversary of the crackdown on Chinese lawyers and human rights defenders that occurred six years ago when an estimated 300 lawyers and human rights defenders were arrested and detained, often for years without trial, in what has become known as the ‘709 Crackdown’. And the issue continues as lawyers endeavouring to act for the victims of the 709 Crackdown have themselves been arrested and detained.
In Belarus, further shadows are cast over liberties as opposition activists go on trial in a closed court room while Krystina Timanovskaya, a Belarusian sprinter at the Olympics, sought and obtained the help of the Japanese police after her coaches endeavoured to send her home when she criticised them. She has been granted asylum in Poland.
Back on the positive side of the rule of law ledger, at the Bar Association, we are involved at the moment in a broad range of initiatives, focusing in particular on equality under the law, transparency and access to legal remedies. They include submissions on targeted supplements to the Solicitor-General’s Prosecution Guidelines, submissions on the Counter-Terrorism Legislation Bill, involvement in the working group established by the Chief High Court Judge on disclosure by the Crown in criminal proceedings, feedback to the Ministry of Justice on a new Duty Lawyer Operational Policy, feedback to the Chief Justice on proposed changes to the ways in which Supreme Court proceedings are published, detailed submissions to the Rules Committee on reforms to improve access to justice in the Disputes Tribunal, the District and High Courts and through our fulsome engagement in the Criminal Process Improvement Programme, with a current phase looking at the potential jurisdiction for Community Magistrates to deal with EM bail applications.
On the subject of bail being granted otherwise than by judges, it was interesting to see the necessary tensions in our appeal processes at play through the Court of Appeal’s recent decision in DC at Christchurch v McDonald  NZCA 353 where the Court of Appeal granted an appeal from a High Court decision which had set aside directions made by executive judges in the District Court precluding District Court registrars from granting bail for people charged with family violence offences. Importantly, the Court found that procedural measures of that kind were a fundamental aspect of the Court’s inherent powers; powers that are not ousted by statutory powers given to registrars.
And, while thinking of personal liberties, it is good to see the Court taking a strong approach to charges of slavery and human trafficking in R v Matamata  NZ CA 372, and in favour of the privacy rights (as against media interests) of those people whose information was stolen through the cyber-attack at the Waikato District Health Board in Waikato District Health Board v Radio New Zealand  NZHC 2002.
In decidedly non-private matters, the Bar Association has been active, through our Equality and Diversity Committee and through our Te Ao Māori Committee and we are looking forward to bringing you news of our initiatives in these areas very soon.
We have loved being able to enjoy ongoing informal drinks with you in the main centres recently and are clinging tight to the hope that our conference might still be possible, whether in September or without too much of a delay. The conference sessions and the presenters are absolutely compelling, and the associated social activities prevent further opportunities to enhance the remarkable camaraderie that exists at the bar; camaraderie that was all too present at recent ceremonies to swear in Justice Michael Robinson and for our new silks in Auckland, Manukau and Wellington.
Against the backdrop of those weighty thoughts, may I leave you with something that will I hope lift your spirits. Thomas Rawiri is the Relationship Advisor at Auckland Council. He is also the lead singer of the band IHI. Within the last week he has released his debut single, ‘Te Hiringi’. Do have a look and a listen through this YouTube link. It really is quite special
My best wishes to you all. Kia pai te rā.
__________________________________________________________________________________________________________________________________23 June 2021
June President’s column
Kia ora tātou katoa
The level and the nature of interaction between a government and the activities of its people is a constant source of political, social and, sometimes, judicial debate.
At one level, consider the level of involvement, on the part of successive New Zealand governments, in the country’s infrastructure. While it is difficult to see how the extent of regulation from the likes of the Muldoon Government in the 1970s – with price and wage freezes for example – could ever be tolerated today, that was the last time that we had central government investing heavily in infrastructure. It was the last time that the government, through fast-track legislation, invested in electricity, housing and three waters infrastructure in a way that endeavoured to keep pace with demand. So, it is interesting to observe the pendulum swinging back a little bit towards a command economy through centralising the functions of Councils, DHBs and schools, and through the likes of the $ 1 billion competitive fund announced yesterday to build water infrastructure, flood mitigation works and connecting roads for housing projects.
We are perhaps fortunate that the social and political issues we face over intervention are often of the bricks and mortar kind and that the checks and balances in our system have always remained intact. Consider, on the other hand, the continued arbitrary detention of Turkish human rights defender Osman Kavala who, following successive decisions from the Turkish courts, has remained in custody without trial now for nearly four years, despite a decision of the European Court of Human Rights finding the process to which he has been subjected to be unfair and in violation of the European Convention on Human Rights.
And, from an example of harassment by the judiciary to one of harassment of the Judiciary – Austrian Chancellor, Sebastian Kurz, who faces a criminal investigation into whether he lied to a parliamentary inquiry (a crime that carries up to three years in prison) has engaged in regular attacks against judges, prosecutors and investigators, telling journalists that the Office of the Corruption Prosecutor was a tool for the opposition social democrats. Similarly, his finance minister, Gernot Blümel, who is under investigation for alleged bribery, has been refusing to comply with orders of the Constitutional Court to hand over documents; backing down only after the Austrian President threatened to dispatch the military to execute the order.
Worse again are the recent arrests of the editor-in-chief and four directors of Hong Kong’s Apple Daily newspaper under the controversial National Security Law. This development is the latest in a long line of targeted arrests designed to silence critical voices and to bring an arguably unlawful end to the constitutional principle of One Country, Two Systems. As the International Bar Association’s Human Rights Institute’s Co-Chair and Immediate past Secretary General of the Swedish Bar Association, Anne Ranmberg has said ‘These arrests are deeply troubling in their own right, but also as a sign of what may yet be to come. If the authorities manage to shut down the Apple Daily, as is clearly their intention, the future of Hong Kong appears bleak’.
Moreover, Belarus is in the throes of passing new laws that will infringe the independence of the legal profession, stifle freedom of expression, violate human rights and further undermine the rule of law. Hon Michael Kirby AC CMG, on behalf of the International Bar Association’s Human Rights Institute has called on the Belarus in Parliament “to reject the proposed amendments to the law on ‘the Bar and Lawyers’ and to allow lawyers to carry out their functions without intrusion and restriction”.
Against these backdrops, it is refreshing to observe the checks and balances on the exercise of power in our legal system that we tend to take for granted. A recent, and compelling, example is the decision last week of Gwyn J in Royal Forest and Bird Protection Society v Minister of Fisheries & Ors  NZHC 1427 in which the Minister of Fisheries’ decision on total allowable catch for East Coast tarakihi was set aside for the way in which the Minister had – at odds, it was found, with the statutory scheme – relied upon social, cultural and economic considerations, together with industry initiatives, rather than current sustainability considerations. Moreover, the decision reminds us that, while a decision-maker can to some extent rely upon officials and needn’t be across all of the “fine details” of a matter for decision, there are limits to that reliance which can contribute to bringing a decision down.
On the topic of our courts, and their accessibility, the Bar Association’s Advocacy Committee is involved in substantive work in response to the Rules Committee Report Improving Access to Civil Justice. The report involves proposals that would increase the jurisdiction of the Disputes Tribunal and enhance its role in the civil justice system, reform the District Court to improve its structural ability to deal with civil claims and reform procedures in the High Court to streamline its processes, especially prior to trial. The reforms present a once in a generation opportunity to address some fundamental access to justice concerns through civil procedure adjustments and we are giving them a great deal of attention.
Further, the Bar Association is looking carefully at the Counterterrorism Legislation Bill and is preparing submissions on it at the moment. Given the independent statutory review of the Intelligence and Security Act 2017 – following the Report of the Royal Commission of Inquiry into the Attacks on the Christchurch Mosques – and the fact that our counterterrorism regime comprises a number of different statutes which must be considered in their totality, it is important that interim or one-off changes are demonstrably necessary, are not made in haste and do not undermine the overall checks and balances built into the counterterrorism and intelligence community regime.
At a more functional level, we have, following consultation with you, been working on proposals for a redraft of the etiquette guidelines for counsel in court, with a focus on inclusivity. More fundamentally, we have some quite significant work underway with the Ministry of Justice and, soon we hope, with relevant Ministers, to address a number of legal aid issues. More on that in dispatches to come.
As we project towards the future with these initiatives, it has been a delight to look backwards, through our webinar series with some of our most senior members, on remarkable careers in the law; to date those of Sir Ian Barker QC and Hugh Rennie QC. What a wonderful thing, to revel in the stories and to reflect, through their richness, on the privileged roles we all occupy.
In order to make the most of those roles, the Point Made webinar on writing compelling submissions, presented by Hon Justice David Goddard, Clive Elliott QC and James Rapley QC was transformational (access to the recording can be made available if you would like to see it) and our upcoming seminar on harmful digital communications – the prevention of cyber bullying and electronic intimidation – on 10 August looks to be fascinating. Before slipping away from the topic of the Bar Association’s legal education, the sessions at our September conference are looking to be utterly compelling: climate change in the law, new evidential technologies, the impact of tikanga on our judicial system, advocacy in a pandemic, wellness and future building. We’d love to have your company at the stunning Trinity Wharf in Tauranga in September.
In the meantime, do join us for one of the NZBA get-togethers that are coming up soon in Wellington, Auckland and Hamilton; the beginning of an ongoing series of ‘pass the baton’ get-togethers where different chambers will host drinks for our members on an ongoing basis. I’m only sad to have missed the recent get-together in Dunedin, when members were joined by the members of the Court of Appeal – Clifford, Thomas and Muir JJ – who were sitting there at the time. One of the true treasures of the bar is the camaraderie we share, and these gatherings are an opportunity to enhance that.
We can only hope that our plans to enhance opportunities to enjoy each other’s company over the next little while aren’t upset too much by alert level changes that are coming into effect in Wellington, at least. The vaccine cannot come quickly enough. On that note, and against the backdrop of the concerning international events noted earlier in this note, I leave you with a positive development through the decision of President Biden and the US government to support the lifting of intellectual property rights for Covid 19 vaccines. As IBA president Sternford Mayo has said: ‘This pandemic has revealed in stark measure our interconnectedness, which we should now harness to find solutions for the benefit of humankind. States across our shared planet must prioritise the protection of life and health above all else’.
And that is true at a personal level too - do take very good care of yourselves.
Kia tau rā ngā manaakitanga - may you be well.
18 March 2021
Kia ora koutou,
While we might despair when we observe events in the likes of Myanmar and Belarus, the rule of law is alive and well across much of the globe.
In New Zealand, we see it in action this month as the courts settle the lawfulness of decisions on electricity transmission lines in Kaikohe, on Public Works Act offer backs for land underneath the Newmarket viaduct, on enrolments in the oversubscribed Bachelor of Medicine and Bachelor of Surgery and, more fundamentally, as consideration is given to whether or not Crown entities are part of the Crown in the context of the Crown’s fiduciary duties to customary owners of land at the top of the South Island.
We see the principles operating a little more dramatically in some places overseas. Recently, Nepal’s Supreme Court has ruled that its Parliament, which the government dissolved in December, must reconvene. The Prime Minister had ordered its dissolution following divisions within his coalition. Even more dramatically, a German court has sentenced a former Syrian Intelligence Officer to four and a half years in jail for arresting protestors who were then tortured and murdered by the regime of Bashar al-Assad. It is the first of what looks to be a number of trials of Syrian officials under the notion that jurisdiction to deal with serious atrocities can be found anywhere.
Courts and politicians have come together also in France where former President Nicolas Sarkozy, who led the country from 2007 to 2012, was found guilty of offering a sought-after job in Monaco to a Judge in exchange for inside information on an inquiry into his campaign finances. He was sentenced to three years in prison with two years suspended.
Meanwhile, its heartening to see international cooperation re-emerging through the Covax Programme, a global coalition which distributes free doses of vaccines for COVID-19 to poor countries, backed by the World Health Organisation. Ghana has become the first country to receive shots under the programme, provided by India. America is providing $4 billion in support of the programme but is resisting calls to share its stock of vaccine until it finishes its inoculation drive. Similarly, an inoculation drive in the Gaza Strip, following the delivery of doses of the vaccine there by Russia and the United Arab Emirates, has enabled Israel to ease its lockdown restrictions.
As our vaccination programme gets underway, the economic effects of the virus are starting to be felt. New Zealand’s growth in the last three months of 2020 was effectively zero. Overall, 2020 was the first calendar year in which New Zealand’s economy has shrunk since the GFC. Kiwis spent $632 million less last month than they did a year earlier. Meat and poultry farmers saw prices for their products drop by 2.4%.
But our hope of growth comes from the world’s largest economies. In China, President Xi Jinping is forecasting growth well in excess of the World Bank growth forecast of 7.9% for the year ahead and US President Joe Biden has passed his $1.9 trillion stimulus package, encouraging investment banks to forecast growth of around 7% for the year ahead.
Meanwhile, oil prices extended their gains with Brent crude closing at its highest rate ($67 a barrel) in 13 months. The vaccine rollout is giving hope to markets that, as restrictions are phased out, the demand for energy will increase.
Speaking of increases in energy, a central feature of our own market over the last few months – that of advocacy services – has been the workload challenge that has followed alert level lockdowns and restrictions. Trials, criminal and civil, have become backlogged and resulting fixtures concertinaed as the system races, as it must, to catch up. But one of the most positive things to come out of this challenging state of affairs is the regular channels of communication that have opened between the judiciary, the Bar Association and other professional organisations. Judges, lawyers, parties, Court and Ministry staff are all impacted by the case load bulge and the Chief High Court Judge, the Chief District Court Judge and Executive Judges have been proactive in convening meetings in the main centres to address, with us, a range of issues including such things as breaks between jury trials for counsel, the timing of disclosure and pre-trial directions, legal aid timeframes and approval of junior counsel, access to prisons and the use of technology. Meetings on concerns expressed by civil litigators are soon to be held and we will be looking for your feedback and involvement.
Alongside these initiatives, the Heads of Bench have established Tomo Mai, a committee of judges across a number of jurisdictions, chaired by Justice Glazebrook to make recommendations on making the court system more inclusive for all participants. Its aim is to ensure a justice system where participants feel they are welcome, appreciated and respected. Following valuable feedback from our members, we have discussed a range of topics with the members of the committee. The topics have included legal aid barriers in a range of areas; cultural inclusion in oaths and declarations, scheduling, adjournments, interpreting and court room facilities; facilities for families in courthouses and potential hearing time adjustments to accommodate childcare needs; more inclusive courtroom procedures; the encouragement of participation by female counsel; and the revision of the longstanding courtroom etiquette guidelines. The products of the Committee’s work, as the year progresses, have the potential to herald a sea change in the practical operation of our justice system.
The Bar Council will be meeting in Wellington tomorrow. I’ll be back in touch with you all soon after that to outline our revised structure and deliverables for the year.
Noho ora mai
Paul Radich QC
 Minister of Land Information v Droongool  NZCA 44.
 Dilworth Trust Board v Attorney General  NZCA 48.
 Roe v University of Auckland  NZHC 368.
 Stafford v Attorney General & Ors  NZHC 335
11 February 2021
Kia ora koutou katoa. Ko te tūmanako, kua pai te rā.
It is a year of change. In some cases, small steps in the right direction. Such as the government’s announcements at Waitangi of a public holiday to celebrate Matariki as from next year (so much more meaningful than a regional day off), the introduction of Māori history in schools and the protection of Māori local government wards. In others, the changes planned are more significant, such as the government’s intention to repeal and replace the Resource Management Act with three new Acts: a Natural and Built Environments Act, a Strategic Planning Act and a Managed Retreat and Climate Change Adaption Act. Internationally, one of the most significant changes of our time has just taken effect. Britain and the EU have begun the post-Brexit trading arrangements. It seems to have been smooth sailing so far.
Positive changes have come for Cuba with the announcement that it will allow private businesses to operate in most industries. Suddenly, the list of authorised industries has expanded from 127 to more than 2000 with only minor industries now being reserved for the state. And significant changes are taking place in the Persian Gulf. After a long embargo, over its ties to Iran and Islamists, and the content of its Al Jazeera media network, Saudi Arabia, the United Arab Emirates, Bahrain and Egypt have all restored diplomatic relations with Qatar.
Change continues in the United States with the Democrats winning both run-off elections in Georgia for Senate seats, giving the party control of the chamber. One of the victors, Raphael Warnock, is the first black person from the South to hold a Senate seat since the post-Civil War area. But if we thought things were a little messy in the course of the US election process, spare a thought for Venezuela. A new regime is in place there too, dominated by the Socialist party loyal to the past dictatorial regime of Nicolás Majuro. But the election is widely regarded as being fraudulent, leading to its former interim president holding a swearing-in ceremony for a parallel legislature. I’m not too sure what is worse from a rule of law perspective – that, or the position in Myanmar, where a landslide election victory resulted in the new government being toppled through a military coup and, now, nationwide strikes in protest at the military’s actions and its imposition of a year-long state of emergency. Protests over the escalating situation in Myanmar (resulting in the military using rubber bullets on protesters yesterday) took to the streets in Wellington this week also.
Rule of law issues have become heightened again in Hong Kong. More than 50 politicians and pro-democracy activists have been arrested for organising primaries to select candidates for the legislative Council.
Speaking of China and of change, the World Bank thinks that China’s GDP will expand by 7.9% in 2021. The world economy as a whole is expected to grow by 4% this year. But, by 2022, global GDP is expected to be 4.4% below pre-pandemic projections.
But better results are likely as Covid 19 vaccination programmes get underway. The challenge for the global community must be to ensure broad coverage; not just in developed countries but in poorer countries where, often, they are most needed. It is a little troubling though to see that South Africa has put its rollout of the Oxford-AstraZeneca vaccine on hold for the moment after a study showed disappointing results against its new Covid variant. As our own vaccinations – still regarded as being 90% effective against strains known here – for the general public will begin in the second half of the year, we look to the prospect of Covid 19 becoming endemic globally and to the point at which we might then reopen our borders. There would in those circumstances no longer be a risk of our health system being overwhelmed. But that would require a real mind shift. We would need to deal with what it would mean to live in a country where the virus is not eliminated altogether.
Meanwhile, we are fortunate that our justice system is able to fire on all cylinders. Seven new district court judges have been appointed. Our congratulations to them all. Several marathon trials have begun this week: the Red Fox Tavern trial, taking place 30 years after publican Chris Bush encountered intruders at his tavern and lost his life; the Ngāti Whātua Orakei Trust v Attorney-General proceeding which, over the next 3 months, will test the Crown’s obligations under the common law, the Treaty and the United Nations Declaration of the Rights of Indigenous People when it comes to Treaty settlements in the central Auckland area; and the Marine and Coastal Area Act case (another 3 month-er) that got underway in the High Court in Napier this week.
Whether you are part of these endurance events or are immersed in an ongoing series of sprint races, do look after yourselves. And please join us when we meet with the judiciary to discuss the workloads of the bar and judiciary in the main centres early next month. We really do appreciate Her Honour Justice Thomas and His Honour Judge Taumaunu having put these stakeholder meetings in place.
Moreover, if you are in Auckland next Friday evening, please do join us at our function at the ANZ Pavilion when your Council will be presenting on our plans and expectations for the year ahead; the things we want to deliver for you, our members. It really is a year of change. But we are ready for it and look forward to being able to discuss our plans with you in a social setting.
Noho ora mai
Paul Radich QC
13 January 2021
Kia ora koutou,
I hope that you have had a relaxing break and enjoyed time with family and friends – or, for the lucky ones, that you are continuing to do so. For those of you who started earlier, I hope you manage to get some time later in the summer to get away from it all.
I begin by congratulating the Hon Tony Randerson QC and Hon Lyn Stevens QC, who are both recognised in the New Year's Honours List. Tony Randerson has been appointed a Companion of the New Zealand Order of Merit for services to judiciary. Lyn Stevens has been appointed a Companion of the New Zealand Order of Merit for services to the judiciary and the community. The Attorney-General singled out for special mention their work undertaken on separate reviews “that set the groundwork for important and far-reaching change benefitting all New Zealanders”. Tony Randerson chaired the review of the an independent panel conducting the most comprehensive review of New Zealand's resource management system since 1991. Lyn Stevens headed the Government’s 2016/17 inquiry into the Havelock North water contamination. I am sure that members will join me in congratulating them.
No doubt many of you were astonished by the events at the US Capitol. Who would ever have thought that such radical, violent acts of insurrection, without due cause, would even have been contemplated in a country such as the United States? And now, Donald Trump looks to face further impeachment charges which, if successful, might prevent him from standing for office again. But in the short-term, the world waits with growing concern following reports of armed groups planning together in all 50 state capitols and in Washington DC in the run up to the 20 January inauguration. We stand in hope that Joe Biden’s consensus-building record comes to the fore in the days ahead on home soil and in the restoration of trust in the world order.
At the same time that the US grapples with law and order issues, the Central African Republic is dealing with the fallout from its disputed election. The CAR has a population of 4.7 million and the UN reports that more than 30,000 people have already fled due to violence surrounding the December vote. World leaders have also condemned a recent crackdown in Hong Kong, which resulted in the arrests of 55 democracy activists and supporters.
Against these backdrops, the recent words of United Nations Secretary-General, Antonio Guterres, resonated with me. He spoke of the world facing two critical tests – COVID-19 and climate change – compounded by a third: fragility and fragmentation. He spoke about need for networked multilateralism that links global and regional institutions; businesses, cities, universities and movements for gender equality climate action and racial justice; a new social contract to promote cohesion and resilience in the face of economic and environmental shocks.
At the risk of intruding further on that pohutukawa, ocean breeze and barbeque-tinged New Year buzz, I bring all of this up to emphasise the fact that, when we ask ourselves what we can do about any of this, the answer is that we already do. Our work maintains law and order. We provide people with a means of seeking redress. Of late, we have seen the damage that can be done by the inappropriate use of social media. As lawyers, we can provide an informed voice and support the systems that allow us to listen to each other and address problems constructively. Of course, there are other people involved in this process such as leaders in government and genuine activists, but I think it's important to take time to pat ourselves on the back, particularly those who are involved in pro bono or public interest litigation.
I will end by wishing you all an easy transition back into work and, if you have been working, please do think about ways that will enable you to take time out to look after yourself.
Noho ora mai,
Paul Radich QC
26 November 2020
Kia ora koutou,
It has been quite a month for elections. In the Ivory Coast, Alassane Ouattara won a third term in a presidential election with 94% of the vote. The Constitutional Council ratified the re-election despite the constitution limiting presidents to two terms.
Perhaps unfortunately, the US presidential election, not the Ivory Coast’s, has drawn the greatest international attention. Joe Biden so far has won 306 Electoral College votes and will be inaugurated in January 2021; the White House signalling on Tuesday that the transition to the Biden administration was ready to begin.
However, these formalities do not mark a concession by President Trump, nor the end to attempts to curtail voters’ rights and the rule of law. The election has been litigated constantly over the past month, whether over the process and validity of mail-in ballots or the official certification of electoral results.
I don’t know that an election result anywhere, or at any time, has produced such unusual litigation. The proceedings (or ‘lawsuits’) have failed consistently. The US Supreme Court dismissed early attempts to restrict the mail-in ballot count in battleground states of Pennsylvania and North Carolina. A slew of smaller-scale federal lawsuits seeking to invalidate mail-in and provisional votes were dismissed for lack of credible evidence. Last week, a Pennsylvanian court similarly dismissed the “last-ditch” effort to block certification.
Meanwhile, our courts have been addressing issues on the part of a litigant who is quite focused on not being in the USA. On 4 November, the Supreme Court found that Kim Dotcom, and three others, would be eligible for extradition to the United States on all stated charges except for conspiracy to commit money laundering, subject to judicial review proceedings. The Supreme Court's final determination will be made after the judicial review proceedings are resolved; the appellants' submissions were due on Wednesday.
On 10 November, the Court of Appeal decided that the government had interfered with Kim Dotcom's privacy by wrongfully transferring his 52 urgent Privacy Act requests to the Attorney-General. In addition, it found that the Attorney-General’s refusal of the requests as vexatious had been improper. The Court remitted proceedings to the Human Rights Review Tribunal for reconsideration of the issue of damages.
As you read this, but after I have written it, the report from the Royal Commission of Inquiry into the Christchurch terrorist attacks will have been released.
The inquiry, which began in April last year, was directed to examine what State sector agencies knew about the individual’s activities before the terrorist attack, what, if anything, they did with that information, measures agencies could have taken to prevent the terrorist attack, and the measures agencies should take to prevent such terrorist attacks in the future. While the Royal Commission’s conclusions on the individual’s activities will be significant, its recommendations on potential, consequential, changes to the systems or practices of the members of our intelligence community will be of particular note.
Of more immediate importance to us, on Friday this week the Bar Council will be gathering in Christchurch. This is the first time, in this most unusual year, that we have met in person. While we have managed the Association’s business perfectly well through video conferencing, there is nothing quite like getting together in person. We will be focusing on our strategic goals, work plans and committee structures for the year ahead, proposed amendments to the Client Care Rules, our budget for the year ahead – and we will be looking forward to raising a glass to the end of this year with members of the bench and bar in Christchurch on Friday evening.
If I don’t see you at that event, I hope to be able to mark the end of the year with you at one of our events in Auckland, Hamilton, Tauranga, Wellington and Dunedin over the next couple of weeks.
Hei konā mai
Paul Radich QC
 Maggie Astor “A Timeline of the Certification Process That Trump Is Trying to Disrupt” (23 November 2020) New York Times <https://www.nytimes.com/article/us-election-results-trump-biden.html?action=click&module=Spotlight&pgtype=Homepage>.
 Mathias Ortmann v United States of America  NZSC 120.
 Dotcom v Attorney-General  NZCA 551.
 Royal Commission of Inquiry into the Terrorist Attack on Christchurch Mosques on 15 March 2019 Order 2019, cl 5.
30 October 2020
Kia ora koutou
We return to normalcy after a month of election coverage: and no monarch-maker this time. What is certain is that the results from the 17th of October delivered enough seats to Labour for it to govern with a single majority, an unprecedented result under our MMP electoral system.
Today the Electoral Commission released the preliminary referendum results for the End of Life Choice Bill and the Cannabis Legalisation and Control Bill. 65.2 percent voted in favour of the End of Life Choice referendum (33.8 per cent voted no). The voting on the cannabis referendum is pointing to a "no" result, with 53.1% voting against recreational cannabis use. Although there are almost half a million votes still to be counted, Justice Minister Andrew Little says that it is highly unlikely that the results will be overturned by special votes when these are counted on 6 November. Special votes include prisoners who are on remand and prisoners who have been sentenced to less than three years.
On the topic of the End of Life Choice referendum, two weeks ago the Netherlands approved a change to its euthanasia and assisted dying laws to allow euthanasia for terminally ill children between 1 and 12 years of age. The Netherlands and Belgium were the first countries to allow voluntary euthanasia for children over the age of 12. Its laws are a good deal more permissive than what is envisaged by the End of Life Choice Bill. Under cl 4 of the Bill, a person must be at least 18 years old to be eligible for assisted dying. Assisted dying remains illegal in New Zealand until 6 November 2021.
Earlier this month New Caledonia held a second referendum on its independence from France. The “Noumea Accord” of 1998 resulted in New Caledonia’s special status within the French constitution, scheduled a gradual and irreversible transfer of powers to New Caledonian institutions, and devised a set of three independence referendums. In the 2018 referendum, 56.7% voted “no” - that is, against independence. Voters this year rejected independence again, though by a slimmer majority, with 53.26% voting “no”. A third and final referendum is expected in 2022.
Something Covid-related is the development of the “one-way bubble” from New Zealand to New South Wales and the Northern Territories – not quite “Trans-Tasman” yet. The arrangement quickly came under strain by New Zealanders travelling cross-border to other jurisdictions, primarily Victoria and Tasmania. On Wednesday, after 24 hours of no cases, Victoria moved out of its 111-day lockdown.
And to recap on some of the events mentioned in my last column. On Tuesday, Amy Coney Barrett was confirmed to the United States Supreme Court, resulting in a 6:3 conservative majority on the bench. Commentators are expecting to see with Coney Barrett’s appointment a revival of “originalism” in constitutional interpretation, and future modifications to abortion rights, health care law, and gay rights law.
The United States Justice Department, along with 11 other states, has filed an antitrust lawsuit against Google, accusing it of illegally protecting its monopoly over search advertising through exclusive business contracts and agreements. The lawsuit represents the US government’s most significant challenge to a tech company’s market power in a generation
The House of Lords has voted against the Internal Market Bill, which seeks to breach the Brexit withdrawal treaty if the UK does not get a trade deal with the EU. The Lords approved a motion 365-169 to “regret” the bill, on the grounds that it “would undermine the rule of law and damage the reputation of the United Kingdom” (19 October 2020, 806 GBPD HL 1285). Though it was a largely symbolic move, and the Bill will not be affected by the Lords’ vote, it did offer the opportunity for a resounding expression of dissent against the government’s actions. From Lord Fox:
|“We all know this Bill is illegal and we know it flouts important constitutional issues and threatens devolution. More than that, we know it has already eroded trust in our institutions and we know it is damaging the reputation of this country, which promotes the rule of law. Finally, and perhaps most insidiously, we know that any law that seeks to permit the executive to break laws is morally wrong.”|
Interesting times. At a slightly more fundamental (but, for some of us, equally interesting) level, the new Bar Council will be meeting in Christchurch in a few weeks’ time to review our strategic plan. And, from that, we’ll create a work plan for the year ahead. We want to be sure that we are delivering on our objectives as effectively as we can. An immediate deliverable is our series of years end celebrations – in Dunedin, Christchurch, Wellington, Tauranga, Hamilton and Auckland during November and December. Do let us know, at any of the functions, of any thoughts you might have on the Association’s activities over the next year. Members can send me a message at any time.
Noho ora mai
13 August 2020
Kia ora koutou
This morning the judiciary met with the profession to discuss Covid19 preparedness. It is a measure of how far we have come that it was a very matter-of-fact and business-like meeting. Updated protocols are now in place on websites, the Ministry of Justice has swung into action and readied court premises for business under the alert levels, and the focus is very much on how we can keep our justice system working.
The Chief Justice will send out updated information later today. However, her Honour emphasised the importance of the engagement between the profession and the judiciary. This proved to be crucial earlier in the year and she would appreciate this continuing.
I recognise that for many of us there is a level of tiredness, if not exhaustion. But I am going to ask you to continue to feedback ideas, comments and concerns. Please email me at firstname.lastname@example.org. Rest assured, the judiciary does receive this feedback.
Protocols for the various courts are available on the courts’ website. Both the High Court and District Court protocols have been slightly revised. The High Court protocol refers to the wearing of masks, which is encouraged but not mandatory. This is in line with recent MOH guidelines that suggest whenever you are going into contact areas, you should ware a mask.
The previous protocols are not substantially changed. There are some clarifications and some improvements. For example, recent improvements to the level 2 District Court protocols are now included in the level 3 protocol. The District Court protocol also now includes a description of priority proceedings and clarification on voluntary or unscheduled appearances.
The updated protocols can be found here
The MOJ is disseminating Business Continuity Plan packs which contain information on the full range of remote hearing options.
Microsoft Teams is being rolled out at a District Court level but will take some time to fully implement. Registry staff and judges are currently being trained in its use. The MOJ and judiciary are considering how to extend Teams training to the profession.
In the High Court, remote hearings can be accommodated by AVL or VMR modes. There should be good coverage in Auckland, but if there the alert level is raised throughout New Zealand, we will feel the pinch. All participants in the court process are asked to be patient and courteous.
If you are using Teams for videoconferencing and experiencing any interruptions, this is may be an Internet infrastructure issue. Check with your IT team.
High Court Rules and Epidemic Preparedness (COVID-19) Notice 2020 Renewal Notice 2020
The changes that were made to the High Court rules to deal with issues such as unsworn affidavits remain in place. The Epidemic Preparedness (COVID-19) Notice 2020 Renewal Notice 2020 is also in force until 24 September.
If you have any questions around these issues, please let me know and I will try to get answers for you as quickly as possible.
The MOJ is investigating dedicated email addresses for applying for administrative adjournments. We hope to have more information on this shortly.
The advice from the World Health Organisation and the Ministry of Health on the wearing of masks has changed. The Ministry of Justice encourages all practitioners to follow the spirit and intent of that advice. The Prime Minister’s comments are relevant; masks may not prevent you from getting Covid 19, but if you are a carrier, they may prevent other people from becoming unwell.
When people cannot maintain physical distancing of more than two metres, such as on public transport, at workplaces including court houses, or in shops, face masks will be particularly important.
The Courts encourage the use of masks, although this is not mandatory. You may remove the mask when you address the Court. The MOJ is making masks available at the courthouses and you should ask for a mask on entry.
For more information on masks please see Ministry of Health information regarding masks here.
Cleaning and hygiene
The MOJ reports that the intensity of the cleaning regime has been increased, particularly in Auckland. They remind practitioners that they should use the Covid tracing app and the paper registration service at the Court. Security is on-site at all courts to ensure physical distancing and that the numbers entering the court remain at manageable levels.
Again, if you experience any difficulties at all or notice any behaviour or processes that need improvement, please contact me so that I can pass this information on.
Are you okay?
Please don’t underestimate the emotional strain of being bounced back into a heightened sense of anxiety. As I said last time around, if you are not experiencing some stress at this time, you must have nerves of steel or be meditating non-stop. Don’t be afraid of seeking help at an early stage. Kia kaha but reach out for support if you need it!
The New Zealand Law Society is offering a free and confidential professional counselling service through Vitae, one of New Zealand’s most experienced providers of workplace wellbeing services. This is available to anyone in a legal workplace – lawyers and non-lawyers. You can have counselling via phone or video link as well as face to face. For more information on finding help, visit our website.
Ngā mihi nui
12 August 2020
Kia ora koutou
I had hoped you wouldn’t hear from me on the subject of Covid again, but we all knew there was a chance that we would face this damnable virus again. However, there is no doubt that the suddenness with which our world (at least in Auckland) has moved from level 1 to level 3, has shocked most of us.
We have the lessons learned from our last lockdown, and we (and the Courts) are prepared and in a better position to deal with it. If we follow instructions and once again support each other as much as possible, I hope we will get through this in good shape.
We will do our best to get information to you about the Courts and other matters as it comes through. However, the protocols for the Courts operations under Level 2 and Level 3 remain on the Courts of New Zealand Website and should be your first port of call. These are available at:
How fast we get through – be it three days or three weeks – is entirely dependent on us all doing what we have to do. To remind you, these are the things that the Ministry of Health says that every New Zealander must do:
- continue stringent hand hygiene;
- sneeze and cough into your elbow;
- if you or a family member are unwell, stay home and contact Healthline or your GP about getting a test;
- practice physical distancing of two metres wherever possible;
- consider wearing a mask in public spaces or places where it is hard to physically distance;
- if you have any concerns, please seek advice from Healthline or your GP on getting a test;
- if you have not already, download the NZ COVID Tracer app and up date contact details, for contact tracing purposes;
- recording your movements as you go about your day.
I would add a number 9- take care of yourselves and your loved ones. This year is one best forgotten but despite its horror, it has been marked by acts of kindness and compassion to each other. So, if there is anything either the NZBA or I as president can do, just reach out to us and we will do what we can. Please feel free to email me
Stay safe my friends.
For more information about the Alert levels and what they mean for you, please refer to the Covid 19 website
15 May 2020
Kia ora friends
As I write this, we are in the first day of Level 2 and this morning I had a sit-down coffee in a café, and purchased a jumper. It was a special morning!
I am feeling a bit like character no. 4 in the cartoon on this page. I have been calling my hairdresser frequently, first begging to adopt him, and then agreeing to go to the salon at whatever time of the day he could see me.
Monday will bring the challenge of the office. the first challenge will be access. The Government are recommending using the stairs. I’m on level 22. It will take me at least 40 mins to get up them and then I will need a shower and some form of resuscitation.
My other option is one of the 6 lifts that have been marked to take only 4 people. That’s a maximum of 24 people at a time. The building has 28 floors with 8 in car parking, so that is 20 occupied floors with say 70-100 per floor - an average of 85 per floor. That’s 1700 people. So, 70 lift cycles will be needed to move them around. The stairs look like a faster option.
This new normal is everywhere, in shops where you have to sign in; in restaurants where you must be 2 m from your neighbour and in workplaces where social distancing is still very important. Of course, not in bars as they are closed. In fact, following the PM’s announcement about level 2, the media contacted me for comment on the closure of bars. However, before I could impart any great wisdom, the reporter texted me back with the message “Hi Kate just realised you are legal bar and not drinking bars!!! Sorry!”.
It is not comfortable, this new normal, and it makes me feel uncertain and concerned about the future. How long will we be at level 2? And how long will we need to keep our borders closed?
Recently an NZ expert in viral immunology said that while he was buoyed at the pace of global efforts to find a vaccine, he still expected this to take a long time and we have to ensure that the vaccine will be safe for an entire population to use. He did, however, believe that making an effective vaccine for this novel coronavirus is possible. The Mayo Clinic agrees it could take some years. This is in contrast to that other expert on vaccines, British Prime Minister Boris Johnson, who says we may never develop one.
So,the reality is that we are likely to have to develop a whole new mindset and change our social patterns forever. We are even now thinking about how it will change the way we conduct court work. Handing up of documents, once a routine part of any criminal or civil trial, is now strictly forbidden. Under Level 2 protocols will they need to be scanned or emailed to the registrar to give to the judge. I have heard of a civil family court hearing where counsel were ordered to produce a new bundle of documents and exhibits for each witness. There were 6 witnesses, which made the paper mountain enormous.
The NZBA consulted widely with you on the draft Level 2 protocols, which the judicial steering group provided to us in draft. On Tuesday we had a meeting with members of the professional steering group, and Justice Miller and the Chief District Court Judge. The Chief District Court Judge went through the changes which the group had made to the protocols because of the feedback received from the profession. I was heartened by this because it illustrated how the judiciary is recognising the valuable insights the bar can provide into the operation of the courts.
I was very concerned this week by the provisions of the Health Act Order Bill, which included increased powers for the police to enter homes, premises and marae (although Marae were later removed when the bill went to Parliament) without a warrant to enforce the provisions of the public health response – in other words, to ensure that public gatherings of more than 10 were not taking place.
Very few people were consulted in advance about this legislation and in face, we only had 30 minutes to pull together a response. Following consultation with other organisations, we sent in an urgent submission that we opposed the passing of this provision under urgency and with little or no consideration. There was significant scope for potential breaches of human rights and rights in respect of search and assembly/freedom of expression and movement.
The website of Parliament which shows the debate before the third reading records the AG saying that changes had been made to the bill because of the feedback he had received. Our view was that the widening of the police powers, for a period of up to two years was a great concern and an unacceptable extension of police powers. These powers were passed into law, but the powers are only now available for 90 days and must come back before parliament.
The president of the Bar in the UK has reported that the Lord Chief Justice of the United Kingdom has approved the reopening of jury trials in Britain. The first jury trials will be held next week in larger centres. Jury numbers will remain at 12, but there will be social distancing for juries and juries will be sequestered in large unused courtrooms and kept apart as much as possible from each other. The resumption of jury trials is an important step in the return to the full operation of the Courts and has been welcomed by the Bar.
New Zealand will not resume jury trials before 31 July with jury summons being sent out in mid-June at the earliest. I am concerned that the courts will be inundated as we return to a more normal operation of the Courts. I believe that very few (if any) Judge alone trials have proceeded in level 3 – so the Courts, will be very busy as they work to reduce the backlog.
A working group (of which we are part) has been established which aims to look at what can be done to improve the progress of criminal cases through the court system. I hope that they can come up with some solutions which will improve the statistics which show the low number of trials which actually proceed when they are set down.
Now that we have reached the halcyon times of level 2 it is likely that you will not hear from me as often. So, I have been reflecting on those who have ( in my opinion) shown themselves to true leaders during this difficult time. My scale is the chocolate fish scale – 1 fish is not bad; 2 fish - good; 3 fish excellent and 4 fish – knocking it out of the water.
- I would like to acknowledge the incredible work done by the New Zealand Law Society, in particular the President, Tiana Epati and the hardworking Bronwyn Jones. The NZLS and its staff have worked tirelessly to respond to issues arising in during the lockdown and have constantly produced quality product. Bronwyn tragically lost her father during level 4 and yet she continued to work. A shout out and at least three chocolate fish.
- The judiciary that I have been dealing with have been extraordinary. The Chief District Court Judge, Justice Miller, the Chief Justice, the Chief High Court Judge have been working very hard to try and make the courts fit for purpose in the time of the pandemic. I am not sure that any of us have appreciated how much work went into building, almost from scratch, a Virtual Meeting room system and now to work to make Microsoft Teams and SharePoint fit for use by the Courts (and this will give us all a much-improved document management system.) The Chief Justice and Chief District Court Judge have been going into the Courts to see how the courts are actually working. I know that Justice Thomas was in the Wellington courts. There is nothing as heartening for counsel as seeing those who run our courts actually seeing the problems and then working to try and resolve them. Further, almost every issue that we have raised with them has been considered and dealt with. I thank them for their leadership at this difficult time. They get an appreciative clap from all of us and 4 chocolate fish to be split between them.
- The work done by the judiciary is supported by the Justice Department and the MOJ staff have stepped up to do whatever they can to assist with the smooth operation of the courts – from providing the IT support behind the VMR and Microsoft Teams to getting the PPE needed. I would like to thank Carl Crafar, the Chief Operating Office of the Justice Department and the Secretary of Justice, Andrew Kibblewhite, who have bent over backwards to make the Justice Department responsive and the courts safe places for counsel and lawyers and whanau to attend. They have also been in constant touch with the profession to see what they could do. A special and personal chocolate fish to Andrew who rang me ( and I know others) to see what he could do for us. I was tempted to say send wine but resisted the urge. A three chocolate fish effort and the grateful thanks of the NZBA.
- I would like to thank my colleagues on the professional liaison group Tiana Epati and Bronwyn Jones (NZLS); Len Anderson QC (CBA); Marie Dhyberg QC ( ADLS inc); Tania Sharkey ( PLA) , Marcia Murray (Te Hunga Rōia Māori o Aotearoa); and Chris Stevenson and Liz Hall ( the co-presidents of the Defence Lawyers association). I have enjoyed working with and have respected and learned from their different perspectives. As a result of my almost daily dealings with Len, Tiana, Chris, Liz, Marie and Tania I feel my criminal procedure skills have been immensely improved. In fact, I reckon I am almost fit to undertake my first plea in mitigation. It has been hard work and a lot of writing and every one of them deserve 4 fish each. But times are tough so I will allocate them a virtual 4 and an actual 1 fish.
- And finally, a big thanks needs to go to those who have supported you and me through this time. I could not have imagined facing this crisis without the support of Jacqui Thompson, our Executive Director and Lisa Mills, our Administrator and Events Co-ordinator. I don’t know whether Jacqui has had a weekend off in 8 weeks and short of tying her down, I don’t know quite how I am going to get her to slow down. My PA ( another 4-star individual) said I should cut off her internet. Tempting but maybe a touch illegal? Jacqui has been there for every one of us, she has been calm, she has been supportive, she has been creative and she has responded, written, made submissions, talked, endlessly Zoomed, and worked on putting together your comments on protocols tirelessly. I wonder if she does it in her sleep. Lisa has tirelessly helped members with their queries, registered them for virtual events and backed up Jacqui to the point that Jacqui (again, possibly illegally?) has declared she will not be signing off on leave for Lisa - ever. My grateful thanks and admiration. A 4 fish plus effort. Thank you.
- And to all of my council members: Paul Radich QC (who will take over from me in October), Jonathan Eaton QC, David O’Neill and Simon Foote QC, who are the Management Committee who help with day to day decisions, as well as my wider council – you are great people, you understand the hard work it takes to keep this voluntary organisation going, to make us relevant and to be there for the barristers of this great profession. I salute you all - I send aroha, I send thanks, I send best wishes and I send my hope for the future.
Kia Kotahi te hoe o te waka
to paddle as one
8 May 2020
Kia ora friends,
I want to update you on what we have been told so far about the likely operation of the Courts under Level 2. The NZBA and the other professional bodies all submitted to the Judicial Steering Group on what we would like to see as a minimum to protect all court users while allowing work to get back underway.
The protocols as attached reflect what the Government has announced about Level 2 - that it is a safer version of normal. They incorporate feedback from the profession and reflect our discussions with the Judicial Steering Group.
But I also want to share some of the discussions that we have had with the Steering Group.
The Ministry has progressed the use of Microsoft TEAMS. A trial using TEAMS in the court is running in the Hamilton District Court and in the Family Court in New Plymouth. Next week the High Court Civil Registry in Auckland will trial it. Justice Thomas advised that Justice Katz will be managing that for the High Court. We will liaise with her to see what assistance the bar can provide.
The representative group also raised concerns about the operation of the Hamilton District Court (a matter of overcrowding). The Chief District Court Judge confirmed this was being dealt with by the Executive Judge in Hamilton.
The Chief District Court Judge also wished practitioners to be aware that if there are specific issues with the operation of the court they need to be raised first with the Site Manager and then the Executive Liaison Judge in that area. It is only if these issues cannot be resolved should the issues be escalated to Steering Group. It is important to note that several practitioners have confirmed that they had raised these issues at a local level in Hamilton before escalating them.
If you do need to escalate a matter, please send me the details including the problem itself, who you spoke to about it, the response, and how long you have been waiting for a solution.
The Chief District Court Judge advised that in order to minimise/control numbers within courts necessary for social distancing, the court is bringing in a new requirement that support people must apply for permission to attend court. The Judge said that this is working quite informally at the moment through requests to security officers, who pass them onto the registry and then to the Judges. Ideally, this should be done in advance and counsel should liaise with the court to obtain that consent. Consent will depend upon space in the Court
The key message from the High Court is that counsel are expected to work together to try and agree any change to timetable orders and only come to the court if they cannot agree.
With respect to remote witness actions, the Chief High Court Judge suggested that counsel only call witnesses that are critically necessary for the case and to see if they can liaise to have other evidence accepted.
We discussed the management of documents during civil cases and the recommendation is that counsel liaise to confirm the electronic bundle protocols will be used for High Court hearings, to ensure efficient management of documents.
If you have any questions, thoughts or comments please do not hesitate to let us know. We look forward to hearing from you.
Kia Kotahi te hoe o te waka
to paddle as one.
5 May 2020
The beginning of level three last week brought the welcome return of the flat white, which really made my week! Other small pleasures have returned such as being able to get takeaway food and flowers. It does feel like some semblance of normality is returning.
This week I would like to hear from those in the Family Court and civil courts. The Chief District Court judges says that civil cases should be back on track in the District Court. Are there any issues? Are you finding that civil matters are progressing as you hoped? What about the Family Court?
Kia Kotahi te hoe o te waka
to paddle as one.
Kia Kotahi te hoe o te waka
to paddle as one.
26 April 2020
Kia ora koutou,
First, I must apologise for interrupting your ANZAC weekend. This is an important day as it gives us all a chance to acknowledge those who have served their country and to thank them for that service. I give thanks to those of you have served, and those in your families who have served.
However, I do want to give you some more information on what to expect on Tuesday when the courts “re-open”. And, in particular, I want to stress to you that this will NOT be business as usual.
Yesterday (Friday 24 April) we received a lot of feedback from you about your views on the new courts’ operating protocols. The issues were well thought through and the responses were measured. Thank you for the time you took to respond. It was very clear that your concerns were not just for your own welfare but for that of your clients and other court users and staff.
I met with the Presidents of the NZLS, CBA, ADLS, Te Hunga Rōia Māori o Aotearoa (THRM) and Pacific Lawyers Association (PLA). We all discussed what we did and did not know about the proposed arrangements. We shared the concerns you had sent to us. We were then joined by the Secretary for Justice, Andrew Kibblewhite, and the MOJ’s Chief Operating Officer Carl Crafar. I shared with them the summary of concerns from your emails to us.
We next met with the Judicial Steering Group. Like the MOJ, they appreciated your feedback, but they are confident that they have made proper plans for security, cleanliness and social distancing and security. While everyone acknowledged the practical difficulties in holding Judge Alone Trials (JATs), the view was that some cases can be heard safely. Priority will be given to defendants in custody.
We have been assured that there will be careful monitoring. The presidents of the NZBA, CBA, NZLS, THRM and PLA will meet again with the Steering Group on Thursday at 9am. So, we need you to keep sending through your feedback on how it is going as it happens- so we can pass this onto the Group. If something comes up that needs an urgent solution, do not hesitate to raise it at the time with the courts, but please let us know as well.
The Courts want to try and get as such of their business done as possible using the remote access systems that are in place. They also stressed that the situation will be different on a court to court basis depending on the facilities of that Court.
More information about court arrangements
The Courts will have private security staff to ensure social distancing with the courts. Entry will be limited to a “one in, one out” basis and will be controlled through a contact register.
Counsel are asked to arrive early and to go to the head of the queue for priority entrance. You must have your letter from the NZLS (written by Tiana Epati) identifying you as a lawyer attending court. Please remember not to hand the letter to anyone – hold it up so it can be read. Another point to remember is that you must not hand up any items to the court.
All documents are to be filed electronically. There has been some confusion by the announcement of the Courts of NZ twitter account that "Drop-box facilities will be available for people to file in person in the District Court while public counters are closed during COVID-19 Alert Level 3". This is not referring to the cloud storage service. There will be a physical box at the District Court for you to file in person. Please also refer back to the recent courts' webinar where Justice Miller described the filing methods.
On entry, you will still have to use the scanners. The trays are not wiped after each use, so please ask for the disinfectant wipes to wipe your belongings when you collect them (it may be wise for you to have a pack of your own – just in case!). Masks and gloves will be available.
A major concern was how to conduct interviews in a way that observed social distancing and hygiene requirements. In addition to using the existing interview rooms, counsel may be able to request the use of an empty courtroom (if there is one available) for interviews. Lawyers will be given disinfectant wipes to clean surfaces (see more below).
What can you do?
Be prepared. Over the past few weeks, we learnt a few things about safety, and you should think about this before going to Court. I am going to however set out a few suggestions for you.
Washing our hands may be the best solution but equally, we do not know how often the bathrooms will be cleaned in the courts. There should be hand sanitiser and cleaning products available in Courts. But we don’t know exactly how this will work, so consider taking your own hand sanitiser (preferably with a high percentage of alcohol).
Do not touch anyone else’s belongings. Do not let anyone touch your belongings – if someone grabs a pen when you are not looking, let them keep it and have a spare available for yourself. Alternatively, sanitise your belongings.
In all areas of the court, wipe down all benches and surfaces before you sit at them. Remember the arms of the chairs. Take some gloves to do this if you have any – otherwise clean your hands afterwards. It is better to do it yourself because that way you can control your environment. Do not rely on someone having done it for you.
Some of this is about how you feel on a psychological level. For example, if you want to, when you get home or back to your office, change your clothes and wash your hands. If it makes you feel better, do it.
Above all else, remember the COVID 19 Healthline exists to give you help and information. If you have any concerns about your health or wellbeing, call 0800 358 5453.
And as a general reminder that if you are outside of the court’s precinct and you believe that someone is behaving in a way that is contrary to the applicable Alert Level, you can fill in a Covid 19 breach form or call 105 – the police’s non-urgent phone line.
I want to stress how important it is that we communicate quickly and clearly about things that are not working. This is essential for the monitoring process. Even if you have resolved an issue, let us know about it in case it is happening elsewhere. Your solution may work for someone else.
Some of you have commented on the official communications, the information presented and the timing, as well as a perceived lack of advance consultation with the profession. In fairness to those who are making the decisions, this has been a fast-moving situation and has required a lot of up-front leadership, which I believe that the judiciary is providing. They did not always have time to consult with us before plans were made and the consultation often had to be post-event. But they have tried very hard to consult and have done a lot of work recently, thinking about how to protect everyone while still delivering justice.
I hope that this message has provided more information, although I suspect it is not what many of you wanted. However, the key message is to let us know what is happening as it happens. We will be staying in touch with the MOJ and Steering Group and as I say, will be meeting with them as well on Thursday.
Enjoy the rest of your weekend, and stay safe.
Kia Kotahi te hoe o te waka
to paddle as one.
20 April 2020
Kia ora koutou,
Last week I wrote to you that we are all experiencing the pandemic but in multiple and varied ways. For some there is the horror of job loss and financial stress including businesses failing. For others there is the worry about our children locked in our houses with their only contact with friends being online, the worry about elderly parents or grandparents, fears for our adult children who don’t live with us and their physical safety and the safety of their jobs. In the wider sense, we all worry about the impact on our businesses, the NZ economy and our ability to pay our staff and keep afloat.
I have been thinking this weekend about our responses to traumatic events and changes. There were several triggers for this train of thought. One was an excellent article written by one of our members, who described her return to work after an accident had sidelined her with a concussion (we will be publishing it in our issue of At the Bar in May). She was drawing parallels between that event and returning to work post-COVID 19 lockdown. It resonated with me. How would I react? What would my response be?
As lawyers, we are used to seeing how people deal with the issues that bring them into our offices. There is no one way of reacting. On the surface, some are steadfast and outwardly courageous, many are deeply anxious about the litigation and the impact on their lives, and some simply refuse to be part of the solution. For them, the problem is always someone else’s fault – and there are some that just cannot let go of the conflict.
Some clients you find likable, sensible and reasonable and others seem the opposite. Our reaction to clients is as much about our personality and our lives as theirs. Do we understand their reaction? Is it how we would react?
I think that most of us deeply mourn the “life before Covid” and a life where the simple pleasures which make daily life more enjoyable ( the coffee, the chats with friends, that cheese scone) are removed and our work now needs to be done in far from ideal circumstances.
How we deal with this is as individual as we are. Our response is tempered by our life experience and our basic personalities. Living with a doctor and his colleagues whose daily work involves death shows me that for them, humour is a way of making the unpalatable bearable. You only have to see the jokes coming through on Facebook to know that black humour is alive and well during the Covid 19 epidemic.
I have always thought I was a pretty positive person. But this week I received some feedback from an old friend that my post last week was too Pollyannaish and was not reflecting the real pain that people are feeling. I have spent a few days thinking about this, again considering what is an appropriate response to this crisis. Certainly, a failure to recognize the pain is not my intention. The pain is real. I see you and I hear you. I have read your emails and talked to the team at the NZBA about how we can help with real solutions.
For me, the only way to deal with this reality is with action, retaining social contact and mocking myself and my ineptitudes. I also asked others what they thought and was comforted by the rather abrupt response from someone who said to me “Oh FFS” – but she said it in actual words – “what possible use would you be in this situation if you went around beating your chest and crying woe, woe, woe? Do what you do best and get on with trying to solve problems.”
I have found comfort and purpose in being involved on behalf of NZBA members in working with the Courts, with the MOJ and the NZLS. We listen to what you tell us about the problems in getting our Courts going and work out what we can do. I have enjoyed speaking to Tiana Epati and Bronwyn Jones from the NZLS, Len Anderson QC from the CBA, Marie Dyhrberg QC from the ADLS and our own Jacqui Thompson every day for the last three weeks at 2 pm. The shared problems often lead to solutions and the warmth in the group is palpable. The routine is the same at each meeting; understand the problem, search for solutions, and then try your damnedest to fix it.
In the UK they are speaking of the blitz spirit where you pull together to make do, mend and make it work. I have been privileged to witness this spirit in the very hard work that the Chief Justice, the Judicial Steering Group, the rest of the judiciary and the MOJ staff are putting into getting this"justice ship" back on course. Access to our courts is vitally important to them and they have achieved almost impossible things in a very short time. The way the judicial steering group and the MOJ worked together to build a VMR system is 2 weeks is impressive.
The seminar the NZLS hosted last Friday illustrated this work and the dedication to the administration of justice of all involved. They are showing true leadership and I congratulate them. There are undoubtedly frustrations in doing our work and I experience them as much as anyone. But I have the privilege of trying to work to resolve them.
I can’t control Covid 19 or the economy. I can only control my response. And I am very thankful that I have colleagues who have made that a much easier job. They have supported me, encouraged me and been kind to me.
If you don’t feel optimistic, if you feel hopeless, that is fine. We are different with different formative experiences. But please, reach out. There is nothing wrong with borrowing someone else’s positivity for a little while. Pollyanna or not, I do see light in this tunnel and that light is being cast by you my friends. We are truly in this waka together – he waka eke noa.
Nga Mihi my friends- keep talking to us and tell us what we can do to help you.
16 April 2020
Kia ora my friends
I hope that you all had a happy and restful time over Easter. My cake went well (thanks to all who enquired) and Dr Tim had a peaceful-ish time on call. But for the first time, on Easter Monday boredom struck. I walked, yogaed (is there such a word?), cooked and read all the papers I could access, and it was still only 2pm.
I know that the down time is good for me but enforced leisure is a big adjustment. I am sure it is the same for many of us. Eventually I went into my home office and tidied, dusted and organised and made a “To Do” list for this week. Satisfying. Very satisfying. But not a game changer.
One of the things I did do over Easter was to read the amendments made by the Rules Committee to the High Court Rules. I am on the Rules Committee, which is a great privilege, and I want to thank the team from the NZBA who managed to review the draft rules and get them back to the Committee within 24 hours.
Thank you all for your hard work. It was very pleasing too to see the positive comments made by the Chair of the committee about the great work done by the NZBA in responding to the draft. It gives me such a buzz when the work we do (and many many of you contribute to this work) is recognised.
Some members did express concern that the Amendment Rules do not seem to embrace opening the Courts to a wider range of cases. I can reassure you that the amended Rules are just tools to give the courts more flexibility to deal with the issues which might arise in level 4 and level 3 (and maybe even level 2).
The next question is, of course, what will level 3 look like? Today the Prime Minister gave us a glimpse of what it might entail. Her key message was that financial modelling from Treasury shows that we are better to spend longer in level 4 and then 3, rather than move into a level 2 stage too early.
I am pleased that we may have access to more “normal” services albeit online although cafes; restaurants and bars will remain closed, but my mother will be thrilled that she will be able to get takeout! I however deeply saddened that my little darling will not be returning to school. Only those who are year 10 or below will return at alert level 3 and even then, most are encouraged to stay at home.
On 8 April the Chief Justice wrote to the profession and looked ahead to how the courts might operate at a lower alert level. In particular she said that the heads of bench were agreed that the courts should function to the fullest extent they safely could, in performance of their constitutional role. She was anxious to ensure that the backlog of cases that accrues over this period of limited operation did not overwhelm the courts, leading to delay and injustice. In the same letter she noted that the suspension of jury trials would continue until Friday 31 July, given the lead in period required for summonsing jurors.
We can speculate about possibilities. In the civil courts witness actions may not happen until our courts open more fully but it is also possible that some witnesses will appear by videoconferencing. We do know that our judges are committed to getting cases dealt with as fast as possible.
What is clear is that technology is likely to remain key to ensuring that our work goes on and we can service clients. I want to thank our Technology Committee which has engaged with the Judicial Steering Group to discuss the best technological solutions for virtual hearings in the future. We are very lucky to have Dean Tobin (Chair), Clive Elliott QC, Phillip Cornegé, Felix Geiringer, Josh McBride and Tim Rainey on this committee. They are all very familiar with electronic litigation technologies and are enthusiastic about the possibilities for the profession.
The committee is keen to ensure that members can take advantage of these possibilities without feeling undue stress. We know that the courts have decided to move towards using Microsoft Teams and SharePoint. There will be a gradual introduction with, we understand, priority being given to the Family and District Courts. There are still some issues to resolve and we would ask practitioners to be patient.
In the interim, our team is going to run some training initiatives for practitioners. We are going to show you what it looks like to run an online hearing. These recordings will be available free of charge on our website.
On Friday there will be a webinar on COVID-19 The operation of the Courts in Level 4 and beyond at 2pm on Friday. In that seminar you will hear from the Chair of the Judicial Steering Committee Justice Miller, the Chief Justice, the Chief High Court Judge, the Chief High Court Judge Designate; the Chief District Court Judge and the Chief Family Court Judge. Hopefully this will give us more information about what life as a court lawyer will look like under Level 3 and maybe even level 2. For more information go to https://www.lawyerseducation.co.nz/shop/Live+Webinars+2020/20HDJ.html
I have been thinking about and reading about the impact of Covid 19 and the lockdown measures that almost all governments in the world have put in place. There are very interesting and disturbing issues about equality, access to services and access to justice which are now; as some of the initial panic has passed, becoming more concerning. I read an article in the Times about the inequality of the impact of the virus on the British people.
This is equally true in New Zealand. While the virus itself does not discriminate; those who are paid the least, and who have either lost their job or have their salary massively reduced are the most impacted. Working from home is a luxury for the well or better paid. Having space to get outside in a garden or even a balcony is also denied to many. Overcrowding can lead to a greater risk of catching the virus. Lack of access to a computer for home schooling or working penalises those without them and their children, and financial stresses magnify anxiety and fear.
I fear that these problems are unlikely to vanish completely when we resume a more normal life and we should be thinking of our response as a society. I know that as lawyers we will see the fallout in the form of redundancies, increasing divorce and domestic violence, insolvency, and maybe an increased crime rate. These are issues which we will need to debate and work together to try and alleviate.
I was proud of the leadership shown by the Prime Minister, Ministers and the heads of government departments in taking a 20% pay cut. If I was not self employed and already experiencing this inevitable drop in income anyway I would be doing this too! But what I can do is to donate my legal skills to do pro bono work and low bono work in the form of legal aid. I fear our skills will be needed more than ever in the post covid world.
Nga Mihi my friends- keep talking to us and tell us what we can do to help you.
Kia Kotahi te hoe o te waka
to paddle as one.
9 April 2020
I can’t quite believe that it is Easter. It seems like I have been trying to run my practice remotely and juggle my parental responsibilities and do a little for the NZBA forever!
Time has ceased to have real meaning, but I am very much looking forward to my Easter holiday. Packing will be light, and the traffic non-existent – because this year I’m having a "staycation". I’m also going to be celebrating my daughter’s birthday in lockdown. She was planning a big party but now will be having a dinner for 4 at home with her brother and parents. It will be just as good as a party with her friends, I’m sure. I’m also going to make a cake. One of the solicitors I work with gave me a recipe from her successful Hattie’s cake business and I shall hope for the best!
I want to say a few words about some of the progress that has been made by the judiciary in getting to a position where we can have more “non-essential” legal work done by the Courts. As you know, we wrote to the Chief Justice last week to ask about the progression of civil cases. You will have seen the letter to the profession that was sent out by the CJ last night. So this is good news.
This morning the presidents of the NZBA, ADLS, CBA, NZLS met (on VMR) with the Chief Justice, Chief District Court Judge and Justice Miller. I can tell you all that the judiciary have been working very hard to overcome some of the technical issues that they have faced with trying to run the Court’s remotely. They want to get civil work pushed out to judges and Associate Judges who are still working but from home – but there has simply not been the resource in the Registry to allow this to happen.
The judiciary is working very hard to expedite this. We will have more news on this front after Easter. There is also going to be a webinar with the judiciary next Friday so that you can all ask questions about the issues and progress. The NZLS will send this notice out today. Please join the webinar and send in your questions in advance. Keep sending us your comments, thoughts and concerns and we will feed them on to the steering group.
My husband, Tim, will be on call this Easter. I think we all hope that it is not busy and that the number of very sick with Covid-19 remains small. I am so grateful for all those at the frontline - the health workers, the duty lawyers, the police and the supermarket staff. They all work under incredibly difficult conditions and at considerable risk. I am clapping for them all.
And, of course, we cannot forget the Easter Bunny, who not only has to face the risk of Covid 19, but is working extra hard to sanitise and deliver eggs. I read a comment on Facebook by a very stressed mum who said that when she heard Prime Minister Adern announced that the Easter Bunny and the Tooth Fairy were essential workers, she started to cry. I think that many of us know that feeling.
So on behalf of the Council and Secretariat of the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture, I would like to wish all those who celebrate it a very happy and safe Easter. If you don’t celebrate Easter in any form, I wish you all peace and safety.
Ngā mihi o te Aranga.
Kia Kotahi te hoe o te waka
to paddle as one.
6 April 2020
Kia ora koutou,
I went for a walk on Thursday 2 April and thought “oh fantastic I have survived two weeks in lockdown”. Imagine my horror when I got back and realised that in fact, it was only a week! And yet later that day, after I returned home from the supermarket, I felt very relieved to be back in the safety of my home, while obsessively washing down and cleaning everything that I had bought, or touched, including car keys, phone, eftpos card, etc.
What a weird world we live in at the moment; fear and loneliness and an obsession with hand washing mixed in an unhealthy soup. Over the weekend after I went to two “house parties” in a row I felt the same kind of social exhaustion I would have felt from attending two actual parties. Solitude seemed very desirable . I suspect it will be like this for a while and may become the new normal.
The papers are full of death and sadness and articles on “what to wear when working at home”- answer: business on top and fun on the bottom (tracksuits)! I have ordered some more loungewear to wear at home but of course, it cannot be delivered! Life at home with the bubblees is not all plain sailing either - we have exams online at the moment. I am pretty good on organisational structures of business and government control of economies - better than the child I fear). I have a sick husband who we are all avoiding (I think it’s a tummy bug ☹) and a bored daughter who just wants to be back finishing her med degree. Chaos often reigns.
I have also been reading in The Times about the online courts in England and how they are working and then Lord Sumption’s piece on why lockdown is a bad idea - interesting and thought-provoking...
One thing that this virus has thrown up is the significant lack of capital expenditure on IT equipment ( or indeed much) in our Courts. We are a small nation but we should be able to have a proper e-filing system and easy access to technology and computers for our judges and court staff so that our justice system doesn’t have to come to a shuddering halt when we can no longer meet face to face. Yet I can only commend the hard work that the judiciary and the Court staff and the Ministry of Justice have been putting in to try and set up a new system- allowing essential justice to be conducted remotely. I congratulate them all – they have been tireless and innovative.
Being in court, being seen and heard by the judge are vitally important and technology can be no substitute for that experience. But in most circumstances, technology is a better option than no hearing at all. Justice must go on –and it has been but with some teething problems. Post-Covid the NZBA will be advocating strongly, as I am sure will all the other legal organisations, for the government to consider a significant capital investment in our Courts to bring us up to a standard where we can easily enable remote access for judges, counsel, court staff and clients in the future.
But right now we can all do our bit to help. The NZBA has been working with the NZLS to set up a pro bono scheme with Community Law Centres and if you have an hour or two to spare we ask you to sign up to assist those who need urgent legal advice. Then we need to give feedback to the judicial steering group about what problems you are having in court and with filing and what is working. We are the front line and they don’t always know how it is working, so let us have your stories - good and bad - and we will pass them on.
We understand that the judiciary is working on putting some systems in place to enable court work on the papers to resume/continue. The message is that we should keep up with our timetables. If there is a default and agreement cannot be reached, a memorandum can be filed directed to the assigned Judge or Associate Judge. I sent a letter last week to the Chief Justice on this point. If you are interested here is a link.
We held an incredibly successful virtual happy hour meeting on stress management in which 35 people attended and I personally found it really interesting and beneficial, with lots of helpful tips. We will be adding these to our website and will let you know when they are available.
So keep writing to us and telling us how things are going. We love to hear from you and we would like to hear about ideas and volunteers for seminars on some practical topic about our current lockdown lives.
And finally – a joke to make us smile. This has some frightening parallels with my life!
Dear Dr Taylor - my hunkering in place is going well. This is what I have learned so far:
- Half of us are going to come out of this quarantine as amazing cooks. The other half will come out with a drinking problem.
- I used to spin that toilet paper like I was on Wheel of Fortune. Now I turn it like I'm cracking a safe.
- I need to practice social-distancing from the refrigerator.
- Still haven't decided where to go for Easter ----- The Living Room or The Bedroom
- PSA: every few days try your jeans on just to make sure they fit. Pajamas will have you believe all is well in the kingdom.
- Homeschooling is going well. 2 students suspended for fighting and 1 teacher fired for drinking on the job.
- I don't think anyone expected that when we changed the clocks we'd go from Standard Time to the Twilight Zone
- This morning I saw a neighbour talking to her cat. It was obvious she thought her cat understood her. I came into my house, told my dog..... we laughed a lot.
- Quarantine Day 5: Went to this restaurant called THE KITCHEN. You have to gather all the ingredients and make your own meal. I have no clue how this place is still in business.
- My body has absorbed so much soap and disinfectant lately that when I pee it cleans the toilet.
- Day 5 of Homeschooling: One of these little monsters called in a bomb threat.
- I'm so excited --- it's time to take out the garbage. What should I wear?
- I hope the weather is good tomorrow for my trip to Puerto Backyarda. I'm getting tired of Los Livingroom.
- Classified Ad: Single man with toilet paper seeks woman with hand sanitizer for good clean fun.
- Day 6 of Homeschooling: My child just said "I hope I don't have the same teacher next year".... I'm offended.
- Better 6 feet apart than 6 feet under.
Ngā mihi nui
Kia Kotahi te hoe o te waka
to paddle as one.
25 March 2020
Kia ora koutou,
As I began to write this note to you my initial thoughts were all about finding a joke to go with this note. Then I began to worry that I would not be able to find that great but not rude or inappropriate or insensitive joke. Then I was interrupted and when I began again it struck me that I was worrying about something incredibly trivial and normally something that I would never have given a thought to.
I have spent much of my day today and last week in Zoom meetings and I have noticed that same unusual anxiety amongst colleagues, clients and friends. We all seem to be feeling a low level of discomfort; a niggle; an inability to sleep, bad dreams and even irritability. You feel out of sorts; discombobulated and uncertain.
Some of it is getting used to this new life - and the abrupt curtailment of life as we knew it. But some is a genuine and appropriate worry for our health, those of our loved ones, the impact on our businesses and our mental health.
How many of you (as I have been doing) find you have exercised 2 or 3 times as much as you used to do every day? Who is eating much more, baking and then eating that baking very fast? (me, me and me). Whose no alcohol days are now no alcohol hours? (Yep me).
No one has lived through anything like this before. But this anxiety is an issue for all of us. In this week’s Virtual Happy Hour will be hosted by me; with Josh McBride; Damian Chesterman and Setareh Stienstra – we are going to talk about this. We are going to talk about ways of coping with the anxiety – which will be different for all of us- sport, yoga, meditation, podcasts, thought stopping, and even knitting will be discussed. Sadly, not shopping once a guaranteed stress relief for me.
But we would like to hear from you. Send me an email with your thoughts on what else we should cover and your wellbeing tips. It is free so come along, bring a drink and enjoy - and get some ideas which might ease the worries just a little.
I also had never thought (well why would I?) about the flow-on effects on many pieces of legislation when an epidemic notice is in place. The NZBA members did an excellent job of identifying the Acts in which changes might be needed to ease time limits and prevent harm. We sent this list to the NZLS to finalise. Their team worked very hard (and very well) to identify any Act which might be affected by the level 4 status. Following on from a joint meeting to review them, this list will be sent to the Ministry of Justice, which will consider whether amendments are needed.
I hope the Rules Committee’s proposed changes will be out this week and this will guide the profession. I know too the swearing of affidavits has become an exercise requiring much planning. The NZLS has released an opinion on the use of unsworn affidavits and s 24 of the Epidemic Preparedness Act which allows certain judges to amend Court rules as the judge thinks fit for each case.
I think our judges; Judicial Steering Group, the Rules Committee, the Chief Justice, the Heads of Bench and their respective teams have been doing a sterling job of figuring out the problem, getting help to come up with a solution and then implementing that solution. It is unfortunate but inevitable that some of the short-term solutions involve restrictions to the operation of the law that we would not normally countenance.
The Chief Justice was forced to close courts to the public – because of dangers to court staff, judges, counsel, court users and the public. No Chief Justice wants to do that, but this is a time when we have few or no choices. The need to self-isolate and to protect others trumped physical access to the public but ensuring full reporting is available so that justice continues to be seen to be done.
This is a balancing act, much like our lives at present. We balance our natural need for connection with other people against the sure knowledge that this connection could harm them or their families. We balance our freedom of movement against the need for containment of an organism that will kill thousands if left unchecked.
But what strikes me most is how much we have taken for granted living in a country that respects the rule of law and the freedoms that come with it. I would like to think that if we gain one thing from this time it will be a deeper understanding of that in future. Because, even if it is critical to curtail it now, losing it is no joke.
Ngā mihi nui
Kia Kotahi te hoe o te waka
to paddle as one.
25 March 2020
Kia ora koutou
Welcome to this wet Friday. The best thing that has happened today is that Nespresso delivered a box of 200 coffee capsules!
And equally good news is that while on my walk, I ran into the Hon. John Priestly QC and, at a suitable social distance, we chatted. I am pleased to say he and his wife are both well, but he was very sad that he could not get to Melbourne to see his new grandchild as planned.
It reminds us all that the most important thing is whanau and the longing that we feel for those who cannot be in our immediate bubble. Mind you, I admit that I am actually quite pleased that Dr Tim is going out everyday to work on the frontline - it is very good for our marriage.
You will have received an email on Thursday evening from the Law Society advising you of the Chief Justice's most recent letter to the profession. I am sure many of you will have felt considerable relief at the news that the judiciary has taken steps, under s 197 Criminal Procedure Act 2011, to exclude the public from courts.
I issued a media release supporting the judiciary's use of this power last night. I was told late in the day about reports of courthouses with people attending who had no business before the court but were supporters of those who did. I am deeply concerned about the welfare of court staff, lawyers and judicial officers.
It is important to note that the judiciary have not excluded support people entirely. They must seek permission in advance. As lawyers, we can all help to communicate this to those involved in the process.
Over the last few days, we have heard the word "unprecedented" in almost every context we can think of. But while s 197 and its predecessors have been used in several cases, it is difficult to imagine it has ever been applied to all courts at the same time! But please let me know if that is wrong!
Finally, you may be wondering why the NZBA did not email the release to you immediately. I know our members are under intense pressure and that you are receiving multiple emails. I have therefore decided that the best way forward, for the well-being of our members, is for the NZLS to send out urgent notifications. I know that not all NZLS notifications are relevant to barristers/litigators, so we will follow up with a member update and social media notifications in due course.
Rest assured, we will still try our best to keep you up to date. If you would prefer that we continue to email you ourselves, please email me. Our aim is to make your lives easier at this incredibly difficult (and very surreal) time.
We have very much appreciated the kind words you have sent to us about our communications with you (only one person called to suggest it was too much!). Thank you for your support and continue to send us your comments and thoughts.
I will be emailing you again early next week. I will also be hosting our next virtual happy hour on Wednesday at 5pm. Details will follow on Monday. Until then, take care and stay at home!
Ngā mihi nui
Kate Davenport QC
Kia Kotahi te hoe o te waka
to literally paddle as one.
27 March 2020
Kia ora koutou
The Judicial steering group have been discussing issues arising out of the Level 4 Covid 19 situation.
This is what we can tell you and what we would ask you to get back to us on.
The Prime Minister has issued an Epidemic Notice under the Epidemic Preparedness Act 2006- practitioners should be aware of the effect of s.24 of that Act on Court Rules- which gives individual judges the right to make specific changes to the rules for each case. We understand that Parliament has been asked to pass an urgent amendment to the Act so that District Court Judges can exercise this power.
However this section only applies to Court rules - so time limits under other Acts need separate legislation. Can practitioners please urgently feed back to us the specific sections in Acts which need may need amendment. This is only for sections for which there is no extension of time available. I stress that all we can do is to identify them and the decision as to whether to seek an amendment is for the Governor-General on advice of the Minister responsible for the relevant legislation, not the Courts. We will feed these back to the Ministry and the Courts.
Please can you get back to me and with anything else that you are finding difficult and/or on which you think clarification is required.
We are expecting updated protocols on the Courts of NZ website - so you should keep checking there- its the only source of truth. Please note the protocols on that website.
Further communication from the Chief Justice is expected as soon as she can get this out. There will also be an update from her on the Courts website.
Take care my friends.
Ngā mihi nui
Kate Davenport QC
23 March 2020
Kia ora koutou
What a difference a few hours makes. I wrote most of this note over the weekend when we were at level 2 and now, we are poised to shut down our economy for 4 weeks.
I went to my office this morning to do a conference call with the Rules Committee and as I left with everything I will need to work from home, I felt such a profound sense of grief. Life is unlikely to be the same for a long time.
This is a frightening time for us all. Our concerns are about our health, our older loved ones; our businesses and our ability to cope with self isolation. As a group we are gregarious and social isolation is hard.
I have just the same worries – my husband Tim is a respiratory physician at ADHB and will be on the front line of our medical response. But he is calm in the face of this huge threat and that calms me. My son (15) has been sent from school today and many of you will have read my fear of this! He knows that I know nothing about anything and acts accordingly. Murder and alcohol often feel like an appropriate response.
My daughter is a medical student and her future studies seems uncertain. My eldest son is in quarantine in Lyon and my daughter and her husband are working from home in their 50m apartment- but settling on a new house on Friday.
My parents are a healthy 79 and a frail 90. When the Prime Minister announced that the over 70’s ought to stay home on Saturday, my mother was at golf and said she would come home after the last 3 holes and a drink with her friends! She is unhappy about being stuck at home and feels lonely and bored. My best friend has a husband with a serious chronic illness, and she is terrified that he will catch COVID-19.
I think we all have similar issues. We feel fear and uncertainty for ourselves and our loved ones. What can we do? Well I think we can do more of what we are doing; working together as a community and helping and supporting each other.
I reached out on LinkedIn yesterday for assistance on how to work from home. I find I cannot avoid the lure of the fridge, online shopping and the housework (never usually at all appealing). I got a lot great advice which I will endeavour to apply. I’ll keep you posted on how I go.
We have had a great response from our bar care committee who have given us all some assistance on what technology we need to have to work easily at home. My small team and I trialled working from home last week and as a result I had to get a Windows based computer as my Mac wasn’t working too well with our office-based PC.
I can tell you that the Judicial Steering Group is working closely with the Rules Committee to make whatever changes are needed to the High Court Rules to allow remote access to the Courts – filing, fee payment and appearances. We may get a very short window to give feedback - and I have already circulated the draft to our committees.
Today at 2pm the New Zealand Law Society, Criminal Bar Association and the New Zealand Bar Association | Ngā Ahorangi Motuhake o te Ture met and discussed both the consequences of today’s announcement and the clear feedback you have given us. We have sent a joint communication to the Chief Justice seeking clarity and a further response on court protocols. We will update you as soon as we have received a response.
I hope to give you links to the information that we may need about financial support from the Government as I know that many will be worried about the impact on our businesses. We will find out how to apply for the support and give you links to the pages.
We will feel the isolation I know, so try to organise virtual get togethers to keep our social connections going. We can just try things out and talk to each other about our problems. I thought about virtual peer support groups – somewhere where you can share your legal problems; and technical problems and get support- what do you think? I am getting such amazing feedback from you all and this makes me feel part of this great community- keep it up!
I also hope you can help each other- if you have work you cannot do then give it to another barrister and if you don’t know one, we can help. This might be a good time to enrol as a legal aid provider??
All suggestions welcome. Together we will muddle through.
But I can tell you what NOT to do. I rented the movie Contagion for the family to watch on Saturday night. This was a huge mistake. Far far too realistic (but with a much more vicious bug) and Saturday bedtime was spent trying to calm the anxiety I had induced. #badparenting!
Aroha to you all. Hope to hear from you.
20 March 2020
Kia ora koutou,
The New Zealand legal systems’ preparedness for Covid 19 is proceeding apace and I wanted to let you know of the conference call that the NZBA; NZLS and the CBA have just had with the Ministry of Justice (MOJ).
You will be receiving later today or on Monday a communication from the Chief Justice setting out the changes that will be made to the operation of the courts as they grapple with how to keep everyone safe and also to keep our courts open.
However, there are a few things that I can share with you now.
- The Judicial steering group and the Ministry of Justice and the Courts of New Zealand want practitioners to continue to talk to them about the concerns, problems and solutions for the issues we are all facing in the courts. However, they would like them channelled through the NZLS, NZBA and CBA. So please DO NOT contact the MOJ, or the judges directly. Please send all your thoughts directly to us. The NZLS and CBA will be asking the same of their members. The NZLS, ADLS, CBA and the NZBA will speak once a day and collate all your ideas and send them through in one document to the MOJ.
- The Courts and MOJ have committed to a very thorough and deep cleaning regime in all the courts to ensure the safest possible environment. They cannot, however, guarantee that there will be hand sanitiser in all courts but there will be soap, water and paper towels available. If you have your own hand sanitiser, you should take it if concerned.
- We have all heard rumours that the District Court will be closing next week. Do not believe these rumours. There is one source of truth and that is to be found on the websites of the Courts of New Zealand and the Ministry of Justice. We will also let you know if there is any official news. On this note, see the information below on the recent advisory from the Chief District Court Judge.
- The MOJ; Judges and Courts are working hard to look at all the legislation currently in force that will help them plan and manage the changes in how the Courts are run. If any legislative changes are needed the Steering Group will consult with the profession as soon as possible.
I have so appreciated hearing from you over this week – please keep talking to us and asking us questions and giving us your ideas. Stay safe everyone.
Ngā mihi nui
19 March 2020
Kia ora koutou,
I am commandeering a section of the NZBA website so that I can "talk" to members, share my thoughts and seek your views. This is a tough time for us all. Three months ago we were all continuing our lives, buying houses, cursing Christmas shopping and hoping for a good year in 2020. None of us pictured what is happening now and we all feel anxious and a lack of control.
Covid 19 is flooding our email inboxes. The other day the Golf Warehouse sent me a letter about what measures the golf fraternity is taking to contain Covid 19. This was a bit of a surprise as I don’t even play golf! However, one of our biggest assets in dealing with this epidemic is that we can communicate with each other and work together. I will be emailing you regularly to let you know what the NZBA is doing, thinking about and planning.
First the Courts – Yesterday I asked you for your comments on how things are going in the courts. The number of replies and the thought you had given to this topic shows that it is a major source of concern and anxiety. I passed on the major areas of concern to the steering committee, along with some excellent suggestions. Last night we all heard that jury trials are suspended. I am continuing to liaise with the judiciary on the other matters that you raised. Please keep your comments coming by emailing me.
Secondly- working from home. Many of us are going to have to move who working from home. We will experience technical difficulties (my Mac proved to be an issue with our remote Chambers systems – so frustrating).
Our tech gurus (aka Phillip Cornegé, Josh McBride and Felix Geiringer) have put together some information to help you through this process. They will be regularly updating this page and providing other advice. We have member benefit deals that might help you save money on equipment.
Preparation is key – and no don’t go out and buy loads of toilet paper but think about what you will need to work from home. Do you have your IT in place? Do you have a computer system that can enable you to work properly from home. For 9/10 of us, an ipad is not sufficient on its own. What about access to your document storage? Are your key documents accessible from home- as you really don’t want to have to bring all your files home?
The actual experience will be different for everyone. I need to overcome the impulse to tidy the house; watch the news and put the washing on before sitting down to work. Because our Secretariat has been doing this for some time, they tend to be much more disciplined and regular about starting work on time and not being distracted. I will have to up my game!
Third and most importantly your health. Follow the MOH guidelines for staying as well as you can and the sensible advice to eat well, sleep properly and exercise.
Lawyers, in general, are a social group and often derive energy and wellbeing from meeting each other. Coffee is the social lubricant of our society. Many people (like me) are going to struggle. So we have to think of other ways to stay in touch. Our Secretariat team often works a day or two from home, but yesterday they moved to work full-time from home. I am told that the hardest part was walking out the door and leaving behind the other people who work in their chambers. Don't underestimate this moment!
The NZBA team will tweet more and post on LinkedIn. You could follow the example of our Secretariat, which is setting up a virtual coffee group (on Zoom) and committing to meeting regularly! I am told that my PA will be joining this group. I am sure my invitation was held up in the mail...
Let’s not ignore the elephant in the room – financial difficulty. We don’t know how the legal profession will be impacted by this virus but it would be naïve to think we will not suffer a downturn in some way. Can I suggest that you talk to your bank if you think there are going to be problems? The CEO of the ASB was on the radio yesterday asking people to do this – saying they have a toolbox to assist people.
We also want you to talk to us. Let us know what problems you have. The NZLS have indicated that they will be reporting back on practising certificates and deferment of CPD. But the NZBA also wants to hear from you if you are experiencing financial difficulty and need help with CPD or subs. We want Covid 19 to go away and to keep you all as members!
Finally, please share your ideas for surviving this crisis. We are seeing the hashtag #weareallinthistogether. It is absolutely true. We are all in this together and have to survive as a community.
Ngā mihi nui