Council Brief - November 2013
Transcription
Council Brief - November 2013
COUNCIL BRIEF The monthly newspaper of the Wellington Branch NZ Law Society NOVEMBER 2013 ISSUE 430 ❑ President’s Column Eventful month as CPD under way By Mark Wilton, President, Wellington Branch, NZLS THIS month the Branch hosted a delegation from the CPC Shanghai Municipality Discip-linary Committee and the Municipal Super-vision Bureau, the body responsible for monitor-ing official corruption in Shanghai, China. Shanghai has been mandated by the Chinese central government to pilot a range of reforms to improve transparency and accountability, whilst reducing corruption. The pilot project involves the introduction of new corruption-prevention and corruption-prosecution regimes, legal and institutional, at all levels. The Shanghai Disciplinary Commission is critical to implementing such reform. The meeting facilitated by the Wellington Branch allowed the participants to share their respective positions setting out the legal and institutional machinery required (or in place) to prevent corruption in government. The meeting included representatives from the New Zealand Law Society, the New Zealand Law Commission and Independent Police Conduct Authority and provided the visiting delegation with the opportunity discuss the roles and functions of these New Zealand bodies with reference and comparison to their pilot reforms. (See pictures page 5) CPD under way This month also saw the start of the NZLS Continuing Professional Development Scheme. Such is the importance of the scheme, the national office of the NZLS arranged a number of seminars around the country to explain and discuss the implementation of the scheme with the profession. I had the privilege of attending a number of these including a visit to Palmerston North to meet with and enjoy the hospitality of the Manawatu Branch President Chris Robertson and his members at a very well attended seminar. It was also pleasing to see so many Wellington Branch members (over 300 registrations) at the seminar at Te Papa. It is time for us all as members of the profession to step up and embrace the CPD scheme that will benefit not only our practices but individually allow us to develop professionally. The Wellington Branch continues to champion the scheme and wishes to assist any member requiring help complying with the scheme. Our branch committees are committed to organising CPD events that will qualify as ‘runs on the board’ for your compulsory 10 CPD hours per year. Our branch can also provide guidance for groups proposing to hold a CPD event to ensure it will comply with the requirements for eligible activities. Intervention Rule This month I again attended the NZLS Council meeting as your representative. Much of the meeting focused on discussing the intervention rule, specifically around redrafting the rule with wider exemptions particularly with the inclusion of Family Court (including property related) matters. The NZLS Council confirmed support for the wider exemption. Further work and discussion with the NZ Bar Association will follow relating to the ambit and drafting of the rule. Greg King It was with sadness that we read the publicity around the Coroner’s report on the circumstances of Greg King’s death. The practice of law can be a stressful and demanding, the pressures of meeting court and commercial deadlines everpresent. We are aware that a significant number of lawyers have suffered from stress and depression. Over the past few years the Society has endeavoured to build a platform of resources and support mechanisms to provide a starting point for members of our profession who come under pressure. I would encourage you all to visit the ‘practising well’ pages on the NZLS website and encourage members to seek help when they need it. The circumstances around Greg’s tragic death confirm the need to continue to develop ways of identifying and assisting lawyers who would benefit from help and support. From left to right: Hugh McCaffrey, Edward Greig, Justice Glazebrook, Justice William Young, Justice Arnold, Sean Conway, Matt Dodd and Elizabeth Chan. NZ Bar Association/Young Lawyers’ Committee mooting competition By Elizabeth Chan* IN what circumstances is it reasonable to expect naked photographs of yourself uploaded onto Facebook to remain private? This was the question grappled with by the finalists of the inaugural New Zealand Bar Association (NZBA)/Young Lawyers’ Committee (YLC) Mooting Competition 2013. The moot final took place on Thursday 24 October at the Old High Court before a panel of three Supreme Court Judges: William Young, Glazebrook and Arnold JJ. The finalists were Sean Conway and Matt Dodd, judges’ clerks at the High Court, as counsel for the appellant; and Edward Greig and Hugh McCaffrey, solicitors at Bell Gully, as counsel for the respondent. It was a close and exciting match, with the respondents being declared the champions of the mooting competition at a prizegiving ceremony hosted at Thorndon Chambers. When announcing the result, William Young J praised the high standard of the advocacy, emphasising that he was “heartened” for the future of the legal profession. The moot final and prizegiving ceremony was the culmination of a two-month, three-round competition that began in early September, after the participants received the moot problem and attended a training session run by Karen Clark QC and Matthew Smith of Thorndon Chambers. Twenty four participants took part, as did 21 judges who adjudicated the moots, six barrister/lawyer mentors who coached the semi-finalist and finalist teams, five registrars and many others who provided advice on the design of the competition. At the prizegiving YLC convenor Jamie Grant, said the YLC had decided to organise a mooting competition to give young lawyers the opportunity to practise the craft of advocacy and to appear before real judges. He thanked the many organisations and individuals who had supported the competition, including: the NZBA as the sponsor of the competition, Thorndon Chambers for hosting the prizegiving ceremony, the Wellington High Court and the Supreme Court for providing court rooms for the moots, the Wellington High Court library for lending the participants robes, Bell Gully for assisting with developing competition resources, the Institute of Professional Legal Studies for offering its premises for use by the participants, and Chris Ryan from Council Brief as the official photographer for the moot final and prizegiving ceremony. At the prizegiving, Tim Castle spoke on behalf of the NZBA, and David Goddard QC spoke on behalf of Thorndon Chambers. As the co-ordinator of the mooting competition, I am thrilled with its success. It has brought together many different people in the legal profession, including young lawyers, barristers, judges and other lawyers. I am grateful to my 10-person organising committee. The YLC would love to see the mooting competition become a regular fixture of the Wellington young lawyers’ calendar and to encourage the expansion of the competition to other regions in New Zealand. The YLC is especially grateful to the NZBA for its encouragement and support. ❑ The moot judgment, authored by Tim Cochrane, is available online from the “NZ Bar Association/YLC Mooting Competition Final 2013” page at www.younglawyers.co.nz . * Elizabeth Chan was the co-ordinator of the NZBA/YLC Mooting Competition 2013. She also works as a judge’s clerk at the Supreme Court of New Zealand. More pictures on page 5 Electronic security screening for Porirua District Court By Mark Wilton, President, Wellington Branch, NZLS OUR Branch has been notified by the Ministry of Justice that the permanent electronic security screening system, first implemented in Auckland and Manukau District Courts in September 2010 and subsequently at Wellington District Court in March this year, will commence at the Porirua District Court on 4 November 2013. We are assured that the security protocols being introduced in Porirua are similar to those operating in other centres including the system introduced into Wellington at the beginning of this year. The screening is designed to reduce the chance of weapons being brought into court buildings. People entering Court will walk through a metal detector which will be used to detect prohibited items. The machine will be situated at the public entrance of the Court. The screening will not involve use of an x-ray machine and, accordingly, if there is an indication shown by the metal detector then a hand-held detector (wand) search will be conducted to identify the suspect item. This may also involve a request to open baggage for further inspection. By now members should have seen notice of this in e-brief with a link to the letter we have received from the Ministry which includes a list of frequently asked questions. We are advised that security screening will also eventually be introduced into the Hutt Valley District Court. If you would like to give any feedback regarding the implementation of the screening protocols in Porirua or any comment on how the screening process has been operating in the Wellington District Court since March, please feel free to email me at [email protected]. Where are women QCs? 3 Lawyers without borders 3 Lawyer to walk NZ trail 8 Page 2 – COUNCIL BRIEF, NOVEMBER 2013 Case summaries based on those written for LINX database. Copies of the judgments are available from the NZLS High Court Library: [email protected] 64 4 473-6202 o 0800 FORLAW– 0800 36 75 29 Wellington Branch Diary November Thursday 7 November Gifting and residential Care Subsidies – potential liability. NZLS CLE webinar. Noon-1pm. Human Rights Committee Thurs-Fri-Sat 7-9 November Stepping Up Foundation for Practice on Own Account. NZLS CLE Training Programme. NZICA Convention Centre. Tuesday-Wednesday 12-13 November The Lawyer as Negotiator, NZLS CLE Workshop. Terrace Convention Centre. Thursday 14 November Courts and Tribunals Committee Family Law Committee Public Law Committee Monday 18 November Mediating Dangerously – learning the lessons conflict can teach. NZLS CLE Workshop, NZICA Convention Centre. Monday-Tuesday 18-19 November Reading Accounts and Balance Sheets, NZLS CLE Workshop, Terrace Convention Centre. Wednesday 20 November The Role of the Trustee, NZLS CLE Seminar, NZICA. 9.30-11.30am. Thursday-Friday 21-22 November Family Law Conference, Auckland. Tuesday 26 November The Retirement Village Option – advising your clients on benefits and pitfalls, NZLS CLE Webinar. 11.00am-12.30pm. Wednesday 27 November Wellington Branch Council meets Legal Assistance Committee Friday 29 November Women in Law Committee that only legal question meeting requirements for second appeal under s13 Supreme Court Act 2003 (the Act) was whether there was seriousness threshold to be met before s152(2)(a) power might be exercised by Standards Committee – policy of Act did not favour appeals on preliminary points which could be raised at conclusion of process – appeal against preliminary decision by Standards Committees that complaints should be determined by Tribunal analogous to appeal against interlocutory order – s13(4) highly relevant to whether it was in interests of justice to permit prehearing appeal of such a point – relevance of other processes of review – no settled basis of fact on which Court could decide whether the way the Committees proceeded and laid charges was lawful and fair – no prejudice to applicant in requiring him to go through disciplinary process before seeking to raise his objections to the respondents process on an application for leave to appeal in this Court – HELD: not in interests Orlov v New Zealand Law Society (NZLS) Supreme Court, [2013] NZSC 94, SC 68-2013, 8 October 2013, McGrath, William Young & Arnold JJ CIVIL PROCEDURE – unsuccessful application for leave to appeal – CA judgment dismissed appeal in judicial review proceedings challenging procedural decisions of respondent Standards Committees of the New Zealand Law Society not to deal with complaints but to lay charges before the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) – CA allowed cross appeal against HC finding that certain matters did not reach standard of sufficient seriousness to warrant reference to and determination by Tribunal – CA inter alia rejected view as to implicit threshold of seriousness to be met for referral of matters to Tribunal as unwarranted gloss of s152(2)(a) Lawyers and Conveyancers Act 2006 – leave application determined on basis of justice to hear and determine appeal prior to Tribunal’s decision on the charges and determination by lowers courts of any appeals against that decision – application for leave to appeal dismissed. COUNCIL BRIEF CROSSWORD TWO essay prizes have been awarded by the Wellington Women Lawyers Association and Victoria University Law Faculty to celebrate Harriette Vine, the first woman law graduate from Victoria University. The winners are: Monique Van Alphen Fyfe and Amelia Guy-Meakin. Each received a $750 prize from WWLA. In further celebration a special issue of the Victoria University of Wellington Law Revue is planned for early 2014. PRACTISING WELL You can use this diagram for either the Quick or Cryptic Clues, but the answers in each case are different. This month’s solutions are on page 2. Chaplain, Julia Coleman, 027 285 9115 Cryptic Clues ACROSS 6. Unusually angered (7) 7. Agree to advance (3,2) 9. Such remarks may still be pointed! (5) 10. Decorations I prohibit in small thoroughfares (7) 12. For many road-users, they provide a stern outlook (4,7) 14. Patient attendants who treat only employees? (5,6) 18. He won’t make certain advances (7) 19. It may be sung in a lovely rich baritone voice (5) 21. People count on them to send them to sleep! (5) 22. Exercise done by a prisoner (7) Harriette Vine essay prizes DOWN 1. Single unfronted fireplace (5) 2. Red Indian who may keep watch for you (6) 3. Catch a number up (3) 4. Free beer held up and put down again (6) 5. Common knowledge (3-4) 8. I arrive upset, for a sunny holiday? (7) 11. A good one will be true to type (7) 13. Wasting a prize (7) 15. Possibly gifted young scholars may be told not to! (6) 16. Rarely seen part of the French President’s residence (6) 17. Not much to steal (5) 20. Don’t go without a pen (3) Quick Clues ACROSS 6. Nominate (7) 7. Lesser (5) 9. Afterwards (5) 10. Pad (7) 12. Booby prize (6,5) 14. Go separate ways (4,7) 18. Horse-soldiers (7) 19. Accumulate (5) 21. Performed (5) 22. Regulated (7) DOWN 1. Utter (5) 2. Spanish dance (6) 3. Finish (3) 4. Chessman (6) 5. A wise man (7) 8. Vegetables (7) 11. Postpone (7) 13. Poise (7) 15. Journey (6) 16. Figure (6) 17. Awry (5) 20. Skill (3) Deadline December Council Brief – Monday 25 November Conferences November 15 2013 – Mental Health Law Conference 2013, Claro and ANZ Association of Psychiatry Psychology and Law (ANZAPPL), Wellington. [email protected] November 21-22 2013 – Family Law Conference, Auckland. www.lawyerseducation.co.nz November 22 2013 – 2nd NZ Labour Law Society Conference, The Employment Forum of the NZ Work Research Institute, AUT, Auckland. www.workresearch.aut.ac.nz November 25-27 2013 – Australia New Zealand Law and History Conference: ‘People, Power and Place’, University of Otago, Dunedin. www.otago.ac.nz/law/ conferences December 5 2013 – Key Issues in International Arbitration in the Asia-Pacific region, Sydney. www.ibanet.org December 6 2013 – IBA Asia Pacific Arbitration Group Inaugural meeting, Sydney. www.ibanet.org February 14-16 2014 – Earth Law Conference on Sustainability, Earth Law NZ & German Australia Pacific lawyers Association, VUW Law Faculty, Wellington. [email protected] February 19-21 2014 – 5th International Gambling Conference, AUT City Campus, Auckland. Problem Gambling Foundation of NZ. www.internationalgamblingconference.com March 11-12 2014 – IER Industrial and Employment Relations Summit, Crowne Plaza, Auckland. www.conferenz.co.nz April 8-9 2014 – ANU/NJCA Conference on Sentencing, Canberra. http://njca.com.au April 14 2014 – Resource Management Law Association of NZ, Wind Energy Conference, Wellington. www.rmla.org.nz April 21-24 2014 – World Bar Conference 2014, Auckland. www.nzbar.org.nz May 8-9 2014 – 6th World Women Lawyers’ Conference, Paris. www.iba.org June 20 2014 – IBA Asia Law Firm Management Conference, Singapore. www.ibanet.org June 24-27 2014 – World Indigenous Lawyers’ Conference, Brisbane. www.indigenouslawyersqld.com July 3-5 2014 – 5th LAWASIA Family Law & Children’s Rights Conference, Sapporo, Japan. http://lawasia.asn.au Candidate Information Meeting for March 2014 admission Presented by the Wellington Branch NZ Law Society and the Wellington High Court Registry Council Brief Advertising 1-2pm Monday 11 November 2013, Level 8, NZLS Building 26 Waring Taylor Street, Wellington CBD Please RSVP https://bookwhen.com/wellington-branch [email protected] Please encourage anyone you know who will be seeking admission in March next year to attend. MA DESIG N m Answers: See page 7 1 Solve the following symbolic Sudoku: G M ! ! 2 It is black’s turn to move. What should black do? # % # % G @ * & & * ! M & # $ # * !!!!!!!!" ?^$ >$ =$ <$ @ ;$ : $ $ M 9$ 8$ © Mark Gobbi 2013 %@ABCDEFG' COUNCIL BRIEF, NOVEMBER 2013 – Page 3 WOMEN QCS Women Queen’s Counsel: where are they? By Rachael Dewar Wellington Branch Women in Law Committee RECENTLY I was delighted to congratulate the latest additions from the Wellington Bar appointed as QCs. Those appointments were richly deserved and the Inner Bar is strengthened as a result. However, I was surprised that there were no women QCs among them from Wellington. Several women QCs were appointed in Auckland in this round and this led our committee to ask why no Wellington women were included. Karen Feint of the Wellington Branch Women in Law committee made a request under the Official Information Act 1982 for details of the total number of applicants for the 2013 appointment round of Queen’s Counsel plus the number of women who applied. She also requested a regional breakdown of candidates. The response from the Attorney General, the Honourable Christopher Finlayson, makes sober reading. The table at right shows that no Wellington women applied and outside of Auckland, women applicants numbered only five. Why is it that out of 116 applications to be appointed Queen’s Counsel, only 16 were women? Some may argue that there simply are not enough able women to boost the number of female QCs. Others might argue that women lack the confidence to apply to become a QC. Whilst I (*Queen’s Counsel Guidelines for Candidates 2013: appointments “in recognition of their extraordinary contribution to the field of law”, pursuant to section 119C Lawyers and Conveyancers Act 2006). disagree with the first supposition, there may well be merit in the second one. There is a growing acknowledgement that women lawyers tend to undervalue their abilities Wellington Branch and Victoria University invite you to hear this year’s New Zealand Law Foundation International Dispute Resolution speaker – Professor Catherine Rogers Professor Rogers will present a seminar on ‘Lawyers without Borders’ on Wednesday, 27 November 2013, at 5.15-7.15pm on Level 8, NZLS Building 26 Waring Taylor Street, Wellington CBD. The seminar will be CPD-compatible. Cost $10 to cover catering. Please RSVP https://bookwhen.com/wellington-branch Professor Catherine Rogers is a Professor of Law at the Dickinson School of Law, Pennsylvania State University, where she teaches international arbitration and professional responsibility. She focuses on the convergence of the public and private in international adjudication, and on the reconceptualization of the attorney as a global actor. She has written extensively on the need for a new conception of what it means to be an “international lawyer” or a “global advocate,” using the term “accidental legal tourists”, and points to the need for a new approach to regulating these individuals. “Many of the world’s most urgent issues of transnational regulation are increasingly being funnelled into international and transnational adjudications. These adjudications are brought and managed by advocates whose ties and commitments to any particular legal system are often partial and tangential. The response to resulting ambiguities about what ethical rules apply to their conduct has primarily been a reliance on choice-of-law rules that designate particular national ethical rules. There is an emerging realization, however, of the inadequacy of national ethical rules, which were designed to apply to domestic practices.” In the American context she speaks of rewriting American Bar Association rule 8.5 to regulate international law practice. “Ultimately, however, resolving the problems with Rule 8.5 is only a first step in the ominous but important task of developing a coherent regulatory regime for international legal practice.” She is also involved in a new initiative, the Jerusalem Arbitration Center, a joint venture among the International Chamber of Commerce of Israel, the Chamber’s International Secretariat in Paris, and its new member, the International Chamber of Commerce of Palestine. Professor Rogers was formerly on the law faculties of Università Commerciale Luigi Bocconi in Milan, Italy, and Louisiana State University Law Center. Her forthcoming book, Ethics in International Arbitration, will be published in 2014 by Oxford University Press. LEGAL WORD PROCESSING • SECRETARIAL SERVICES and do little to draw attention to their achievements in practice. This in turn means they are often overlooked and lack opportunities to lead and gain experience in high profile cases. The exception in my view is Crown Law which for many years has recognised the distinct experience and perspective women bring to their work. When you consider the table from a regional viewpoint more questions arise. Surely women achieving at a high level are not all concentrated in Auckland? And why, when our Law School women graduates outnumber the men, are so few women applying? By applying in such large numbers, our male colleagues clearly consider they are good enough to be appointed Queen’s Counsel. Their confidence (and that of their referees) is clearly warranted. However there must also be women lawyers who deserve similar recognition. We challenge the whole profession to think carefully about which women should throw their names into the ring for the next appointment round. To do this, senior members of the profession will need to consider mentoring women, encouraging them in their careers and provide opportunities for them to engage in challenging work. Many women are modest about their abilities and need to be actively encouraged to see themselves as potential leaders in the profession. Anne Hinton QC recently commented that “these appointments are in the hands of the government. This is the government that signed up to CEDAW [The Convention on the Elimination of All Forms of Discrimination Against Women]. It is about time the government did something about this. It is not within the private sector’s hands to appoint women QCs and women to the Bench.” If women put themselves forward in greater numbers, the hope is that the government will act and appoint more women QCs. The percentage of women QCs in New Zealand is still very low at 15 percent so there is considerable room for improvement. This compares with only 7.92 percent of all practising silks in Australia being female, according to a recent Australian Women Lawyers (AWL) report. Over the ditch it seems that women barristers appear in Court for significantly shorter periods of time when compared to male barristers (on average 2.8 hours for females and 3.8 hours for males). Private practice law firms there are also far more likely to brief male barristers than female barristers. It seems likely that similar statistics apply here, but so far little research has been undertaken in New Zealand. The Auckland Women Lawyers’ Association currently has a survey underway which we hope will throw more light on what is happening here. Lastly, it seems that many women who are appointed as silks in Australia are soon appointed to judicial positions. The challenge there is to keep ahead of that trend and to ensure there is sufficient growth in the numbers of women being made silks, so that when they do head off to the Bench the numbers don’t go backwards, according to AWL President Kate Ashmor. New Zealand does not seem to be suffering from the same haemorrhaging of women QCs to the Bench. Rather we need to focus on identifying and encouraging women candidates to apply to become QCs in the first place. So who do you know who should apply next time around, but may need a push in the right direction now? Talk to her today and formulate a plan so that next time, there is a wider diversity of skills, aptitude and experience available for the government to make its selection. Typing pleadings • Opinions • Correspondence Transcribing hearings, arbitrations, interviews Concept Secretarial has the facilities to receive and transcribe digital voice files via email Criminal, TrafficInvestigations, Accident Investigations Traffic Accident Criminal File/Case Analysis File/Case Analysis CONCEPT Secretarial Services Limited LEVEL 14, 89 THE TERRACE, WELLINGTON Telephone (04) 473-0277 Email: [email protected] Fax (04) 471-0672 TELEPHONE 021 663 236 WELLINGTON: PO BOX 30080, LOWER HUTT, NEW ZEALAND CENTRAL NORTH ISLAND: PO BOX 7168, WANGANUI, NEW ZEALAND E-MAIL: [email protected] [email protected] WEBSITE: www.paulbass.co.nz E-MAIL: [email protected] WEBSITE: www.paulbass.co.nz Page 4 – COUNCIL BRIEF, NOVEMBER 2013 CONTINUING PROFESSIONAL DEVELOPMENT A very well-attended 90-minute workshop at Te Papa on 22 October covered guidelines to help members produce their continuing professional development plan and records. This event was one of a number of similar events presented by NZLS around New Zealand to mark to beginning of CPD. The workshop was presented by NZLS Executive Director Christine Grice (centre) and Professor Neil Gould of the University of Windson, Canada (left). Wellington Branch President Mark Wilton is seen here speaking to the audience. An valuable Criminal Law Committee CPD-compatible panel discussion on Reasonable Cause (Search and Surveillance) was held on 31 October. Presenters, from left, were: Stephanie Bishop covering admissibility considerations, Elizabeth Hall, practicalities of mounting a challenge, and Dale La Hood, search warrants. Branch President Mark Wilton introduced the event. Earlier in the month the Employment Law Committee held an introductory session to provide occasional or junior practitioners in employment law with an understanding of what to expect when appearing in the Employment Relations Authority and and how to approach the Authority. The presenters were Wellington Branch Council member Steph Dyhrberg and Authority member, Greg Wood. Tanya Kennedy of McBride Davenport James organised the event. This was the first Wellington Branch CPD-compatible event. Attendees at both events were able to claim one hour CPD to carry over for their individual plans next year. The Branch hope to facilitate a number of CPD-compatible events in 2014. 8TH ANNUAL CRIMINAL BAR (DES DEACON) DINNER Judge O’Dwyer, Shane Robinson, Chris Nicholls and Jodi Ongley. Sarah McLean, Geraldine Kelly and Louise Brown. Judge Butler and Megan Boyd. Judge Grace, Helen Cull QC, Judge Behrens and Justice O’Regan. Angela Brown, Brittany Peck, Kerrin Eckersley, John Millar, Sarah Mann, Katty Lau, Charlotte Hollingsworth and Chanelle Lovegrove. Jamie Eng, Judge Walker and Miriam Wilkinson. Dale La Hood, John Tannahill and Mike Lennard. Emma Light, Tom Daniel and Kathy Scott-Dowell. Sir David Carruthers, Sgt Kevin Shaw and Margaret Overton. Andrea Ewing, Val Nisbet and Stephanie Bishop. Left: Sarah McLean, Greg Gimblett, Steve Gill and Ian Murray. Right: Judge Hobbs, Megan Boyd, Mike Lennard, Geneva Lowe and Sarah Pettett. Noel Sainsbury and Andrew Davie. Rennie Gould, Chris Nicholls and Judge Thomas. COUNCIL BRIEF, NOVEMBER 2013 – Page 5 CHINA DELEGATION Wellington Branch hosts Chinese delegation You don’t have to sacrifice quality for cost. We have practice management solutions that are both affordable and flexible. CONTACT US TO ARRANGE A FREE DEMONSTRATION A delegation led by Mr Yang Xiaodu, a high-ranking member of the Shanghai Communist Party leadership and head of the Shanghai Disciplinary Commission, a powerful body monitoring official corruption, visited the Society recently. Seen with Mr Yang are delegation deputy head Bei Hua, Wellington Branch president Mark Wilton, Judge Sir David Carruthers of the Independent Police Conduct Authority, Mr Yang, NZ Law Society Executive Director Christine Grice, Penny Liu of legal planit, Law Commission President Hon Sir Grant Hammond and Lilly Shi, solicitor and executive China business, with Kensington Swan. Mr Yang was previously Vice-Mayor of Shanghai and is well known to New Zealand. The delegation was interested in speaking with New Zealand agencies on legal and institutional machinery required to prevent corruption in government. The group had also met with the Ombudsman, officials from Treasury and Ministry of Justice, and the Auditor-General. 0800 10 60 60 [email protected] www.jpartner.co.nz NZBA/YLC Mooting Competition Mr Yang and Mark Wilton. Sir David Carruthers and Mr Yang. Mr Yang with Hon Sir Grant Hammond and Christine Grice. Supreme Court Justices Glazebrook, William Young and Arnold presiding at the Mooting Competition 2013 in the old High Court. Mark Wilton and Karen Clark QC. Elizabeth Chan, Francis Cooke QC and Tim Castle. Hugh McCaffrey, Catherine Shipton, Michael Green and Grace Boos. These pictures were taken at the NZ Bar Association/Young Lawyers’ Commiittee Mooting Competition final on 24 October and the prizegiving ceremony at Thorndon Chambers. See page 1 Rikky Minocha, Nigel Salmons and Jamie Grant. Jamie Grant, Nadia Gastaldo-Brac, Elizabeth Chan, Tim Cochrane and Natalie Manuel. Nikky Farrell, Anne Melkiau and Edward Greig. Kerrin Eckersley, Tim Cochrane and Katy Martley. Nigel Salmons, Nadia Gastaldo-Brac and Nicholas Wood. Page 6 – COUNCIL BRIEF, NOVEMBER 2013 VUW LAW FACULTY Shrinking expenditure for law study; a Criminal Cases Review Commission? By Professor Tony Smith, Dean of Victoria University’s Law School THE Government has released a draft Tertiary Education Strategy Document 2014-2019, with a requirement that feedback should Professor Tony Smith be provided within six weeks. My experience of these exercises is that they are not so much about consultation, an opportunity for providing meaningful input into the process, but that they alert their objects to the first inklings of what a government proposes to do to them in the near future. This one is no different in that respect, although it is in some ways rather odd. To start, several of the proposals seem to have very little to do with the tertiary education sector (which I take to be the third sector, coming after primary and secondary). I wholly appreciate that there are institutions other than universities in the tertiary sector at which some of this might be targeted. But of the six “strategic priorities” identified, the second aims at “Getting at-risk young people in to a career”, and the fourth at “Improving adult literacy and numeracy”. I have absolutely no doubt that these should be national priorities (especially in both cases, perhaps, for those in prison), but I have some difficulty in seeing quite how the tertiary education sector is supposed to achieve them. Priority three aims at “Boosting the achievement of Maori and Pasifika”, and again I have no quarrel at all with the objective – universities have already been given targets that they are expected to achieve in this area. But I would have thought that correcting some of the manifest problems at primary and secondary education level should come before a turn to the tertiary sector is appropriate. For some time now, governments have been seeking to identify and forge closer links between the state of the economy and the contribution of the tertiary sector to the nation’s economic well-being. Priority number one in the new Strategy Document is “Delivering Skills for Industry”. We are reminded that there are “skill shortages in specific areas such as ICT, large animal sciences and engineering”. For those of you struggling to decipher the acronym, incidentally, it stands for Information and Communications Technology. Google it, as I had to do, and you will see just how many other plausible candidates there are for this. Mindful as I am of the mantra that “context is all” in matters of interpretation, I rejected out of hand the possibility that this might refer to the International Communist Tendency. Worry about national skills shortages can be seen as being of a piece with one of the early initiatives of the current Wellington lawyers prominent in 50th NZ Universities Law Review THE New Zealand Universities Law Review is celebrating the 50th anniversary of its first publication. One of New Zealand’s earliest law reviews, then, as now, it is a joint venture between the country’s law faculties, has published many of the country’s leading academic and legal authors and leads debate in legal matters. A Special Anniversary issue was launched on Friday, 1 November to celebrate the milestone. Its theme is taken from a Maori saying: Nga tapuwae o mua, no muri which translates as “Footprints of the past, to guide (influence, navigate, inform) the future”. The Editor of the Special Anniversary edition is Professor Tony Smith, Dean of Law at Victoria University. Contributors include: Justice Sir Grant Hammond (Judges and Academics); Sir Geoffrey Palmer (Constitutional Reflections on 50 years of the Ombudsmen in New Zealand); Professor John Burrows (Academics and Law Reform) and Don Mathieson (Fair Criminal Trial and Exclusion of “Unfair Evidence”). Don Mathieson QC has the distinction of being published in both the first edition of NZULR (Australian Precedents in New Zealand Courts) in August, 1963 and the Special Anniversary issue. Other contributors to Vol 1, No 1 include G. P. Barton (The Chancery Master); B.D. Inglis (Evidence of Adultery) and Sir Alfred North (Parliaments and Great Councils). A half-day seminar featuring many of the Special Anniversary issue contributors will also celebrate the longevity and relevance of the publication. “There is a focus on new and emerging scholars in both the Special Anniversary issue and the seminar” says Editor, Professor Tony Smith. “This is in keeping with the theme of looking to the past and, at the same time, forward to the future. The quality of their contributions bodes well for the outlook of the legal academy in this country.” For more information, please contact: Nicky Saker, Communications Adviser, Faculty of Law, Victoria University of Wellington government to focus tertiary education spending on the so-called “STEM” subjects, Science, Technology, Engineering and Mathematics, with more student places to be made available in these areas. Whether universities should be concerning themselves with “skills” as opposed to more fundamental science in these areas is perhaps a matter for debate – and it is a debate that has been strongly contested in the UK in the last few years. Where a Dean of Law might be a bit concerned about these developments is that the government has repeatedly made it plain that there is to be no extra funding to the university sector (as opposed to the tertiary sector more widely) to accomplish these objectives. You can have more places for these subjects, is the message, but you will have to find them within your existing resources. Law is a candidate for the expenditure to shrink. International linkages Lest you think that my take on the Strategy Document is entirely negative, I should say that I am wholeheartedly in favour of the sixth priority on the list , “Growing International Linkages”. Placed where we are at the bottom end of the earth, we New Zealanders have to be more outward-looking than Europeans and Americans, and increasingly Asians, whose claim on the attentions of the rest of the world are obvious and visible. But making and keeping these links, even with all that is most up-to-date in the ICT paraphernalia, is hard and expensive work, especially in an environment where no further cash is to be forthcoming to help us accomplish this worthwhile objective. Criminal Cases Review Commission? The Privy Council’s quashing of the conviction in the Lundy case has precipitated another round of discussions as to whether or not it is appropriate for New Zealand to establish a Criminal Cases Review Commission similar to those in England and Scotland. I heard very few views that had not been fully rehearsed before with the exception, perhaps, of an English academic who complained that the English Commission was too concerned with cases involving relatively trivial criminality. I do not see the force of the criticism – it was precisely that these sorts of cases did manage to slip through the system and result in wrongful convictions that persuaded JUSTICE to recommend the establishment of the Committee in the first place. The other slightly dispiriting element of the discussion was that none of the participants seemed to have been aware that junior counsel in the appeal, Malcolm Birdling, had recently completed a study, “Correction of Miscarriages of Justice in New Zealand”. The study involved field work with the Ministry of Justice files and provided a number of fresh insights into the workings of the New Zealand system, some of them very critical of what it found. It is available free on-line at http:// ora.ox.ac.uk/objects/ uuid:2dae4513-4fd2-40cd-bb6adbba696d6d7f, and is a must-read for anybody seriously interested in participating in the debate. Continuing professional education In this column last month, I expressed some views about continuing Professional Development in the United Kingdom, of which I have had personal experience, that were somewhat this side of complimentary. It was interesting to read, therefore, that the English Solicitors Regulatory Authority has just announced that it proposes to “end the current discredited ‘tick-box’ approach to post-qualification training (continuing professional development) and introducing a system under which, while professional development remains mandatory, it is in large part the obligation of individuals”. Just so. Law Foundation visiting scholar to speak A leading scholar of international arbitration and professional ethics is visiting Wellington in November. Catherine Rogers is a scholar of international arbitration and professional ethics. Her visit will include sessions on Third Party Funding and her work with the Jerusalem Arbitration Centre. This new initiative seeks to offer arbitration on issues relating to the $4B yearly trade between Palestinians and Israelis as a peace building enterprise – 90 percent of Palestinian trade is with Israel. “Third Party Funding has real ethical issues, including who is in control of the case – the funders or Candidate Information Meeting for March 2014 admission ceremonies Presented by the Wellington Branch NZ Law Society and the Wellington High Court Registry 1-2pm Monday 11 November 2013 Level 8, NZLS Building 26 Waring Taylor Street, Wellington Please RSVP https:// bookwhen.com/wellington-branch Please encourage anyone you know who will be seeking admission in March next year to attend. the plaintiffs? But whose case is it? Who decides about appeals – the funders or the plaintiffs? Return on funding drives strategy and shapes the opportunity for justice and determines the demands on the court system. It’s a fascinating, topical subject,” says Deborah Hart, CEO of AMINZ. Professor Rogers schedule in Wellington is: 27 Nov – Law Society seminar in Wellington “Lawyers without Borders”, NZLS Building, Level 8, NZLS Building, 26 Waring Taylor Street, 5.15pm – 7.15pm (see page 3 for more details) 28 Nov – AMINZ breakfast meeting “Third Party Funding” AMINZ Conference Room, Sir Ian McKay-Bill Draper AMINZ Suite, Level 3, 276 Lambton Quay, 7.15 – 8.45am 28 Nov – VUW Law School interview with Linda Clark about the Jerusalem Arbitration Centre in LT3 (Old Government Building) from 6.30pm – 8.30pm Professor Rogers’ visit is generously funded by the New Zealand Law Foundation. COUNCIL BRIEF, NOVEMBER 2013 – Page 7 COMMUNITY LAW CENTRE Should schools punish students for cyberbullying outside school hours? By Felicity McNeill, Community Lawyer Community Law Wellington and Hutt Valley COMMUNITY Law Wellington and Hutt Valley hosts the Parents Legal Information Line (PLINFO), a free phone service for parents and caregivers seeking information and assistance on issues about children and young people at state or integrated schools. PLINFO receives an average of 400 legal enquiries a year from callers whose children have run into some kind of problem at school. A recurring issue is bullying in schools, which can be anything from emotional threats to physical violence. Increasingly, callers are asking about the school’s jurisdiction where cyberbullying has taken place. Bullying in cyberspace is the focus of international media coverage as well as domestic legislative reform.1 It is also on the increase among New Zealand school children. Often, cyberbullying that has its origin in the school ground continues and escalates after school hours, as cyberbullies continue to harass and attack victims at any time of the day. The question is, can schools punish or suspend students for this after-school conduct? Legal obligation As a starting point, schools have a legal obligation to ensure that students are safe in school. The National Administration Guidelines (NAGs) provide that schools must “provide a safe physical and emotional environment for students” (NAG 5(a)) and “comply in full with any legislation currently in force or that may be developed to ensure the safety of students and employees” (NAG 5(c)). Under health and safety law, a Board of Trustees must take all practicable steps to ensure no hazard or actual harm occurs to people in the vicinity of the school.2 It is well established that schools have the authority to discipline students for bullying behaviour at school, and that Boards may make bylaws or school rules related to the control and management of the school.3 However, the jurisdiction of the school to discipline a child is less straightforward when students engage in bullying conduct outside school grounds. There is a lack of New Zealand authority on this matter, but there appear to be cases on the territorial and substantive limits of schools’ authority in other jurisdictions that suggest that student misconduct must be sufficiently proximate to the school - in connection, time and place - for the school to have jurisdiction.4 For example, a student bullying another student on the weekend in a skate park would not be ‘sufficiently connected’ for the school to have jurisdiction. In contrast, a student in school uniform who – in front of other students in a shopping mall – plays a harmful trick on another student would be ‘sufficiently connected’. Outside school grounds? School discipline outside the school grounds can arguably be exercised if bullying occurs on school trips, on a school bus, when a student is in school uniform, if they are at a school event, or when the student is otherwise representing the school. A school may be within its rights to take action over a student who, for example, damaged a school’s COUNCIL BRIEF The monthly newspaper of the Wellington Branch NZ Law Society Advertising Rates: casual or contract rates on application. Telephone Robin Reynolds, Reynolds Advertising, Kapiti Coast (04) 902 5544, e-mail: [email protected]. Rates quoted exclude GST. Advertising Deadline: for the December 2013 issue is Wednesday 27 November, 2013. Circulation: 3150 copies every month except January. Goes to all barristers and solicitors in the Wellington, Marlborough, Wairarapa, and Manawatu areas. Also goes to many New Zealand law firms, to law societies, universities, judicial officers, and others involved in the administration of justice. Will Notices: $57.50 GST inclusive for each insertion. Subscriptions: Annual subscription $46.00 incl. GST. Extra copies $5.00 each. Subscription orders and inquiries to: The Branch Manager, New Zealand Law Society Wellington Branch, P.O. Box 494, Wellington. Editor: Chris Ryan, telephone 472 8978, (06) 378 7431 or 027 255 4027 E-mail: [email protected] Opinions expressed do not necessarily reflect those of the NZ Law Society Wellington Branch or the Editor. Council Brief is published for the NZ Law Society Wellington Branch by Chris Ryan, and printed by APN Print, Wanganui. reputation outside of school hours by posting an offensive blog concerning the school community. In such an instance, the substance of it is capable of being characterised as affecting the school’s educational mission, making it a matter for school discipline. Jurisdiction must be clear But what about cyberbullying that does not “name the school”, and which occurs outside the school grounds? Unless there is evidence that cyberbullying continues at school, it is likely that schools do not have the jurisdiction to punish or suspend such a bullying student. Bear in mind that under the Education Act 1989, schools should have clear jurisdiction before administering punishment or a “section 14 suspension”, which must meet the specific threshold of “gross misconduct or continual disobedience which is a harmful or dangerous example to other students”. Over a decade ago (before cyberbullying was even a real possibility) the academic Paul Rishworth argued that “section 14 does not envisage discipline for conduct with no connection to a school other than that the perpetrator happens to be a student. This may well mean that schools will have students in them who are known to have done certain things out of school, and who might in that sense be harmful “examples” to others. This might be thought undesirable, but the fact is that section 14 is intended to provide sanctions for enforcing rules about behaviour at school, or sufficiently connected to a school such that the school’s educational mission is or is potentially affected. The power is not a free standing power to rid the school of unhelpful role models, for that would be at odds with the right of the student to an education.”5 Take proactive action It is, nevertheless, within a school’s prerogative to take proactive and preventative steps to address cyberbullying outside school hours. NetSafe proposes a range of interventions: a “class contract” with all students that includes appropriate behaviour online or on mobiles, both during and after school hours; and to continuously engage parents and caregivers about the perils of cyberbullying.6 For now, schools also have the option of engaging assistance from the police, as cyberbullying may amount to a criminal offence which warrants police warnings or a criminal charge if the student is over sixteen years of age. It is noted that on 14 October 2013,7 the government released a response to the Law Commission’s 2012 report on cyberbullying and other harmful uses of communication technologies,8 providing an indication that the Communications (New Media) Bill has priority 3 status on the 2013 Legislation Programme. It is anticipated that in the not too distant future, schools will be able to rely on the law when dealing with students who cyberbully outside school hours. Felicity McNeill is the Supervising Lawyer of the Parents Legal Information Line (PLINFO), which has been in operation since 1999. The PLINFO number is 0800 499 488. Footnotes www.beehive.govt.nz/release/ time039s-cyber-bullies 2 Health and Safety in Employment Act 1992, s 16. 3 Education Act 1989, s 72. 4 Paul Rishworth “The lawful powers of schools - territorial and substantive limits” (October 2001) New Zealand Law Society Seminar ‘Recent Developments in School Law’ at 31 - 37. 5 Rishworth, above, at 26. 6 www.cyberbullying.org.nz/ teachers/ 7 www.justice.govt.nz/publications/ global-publications/h/harmfuldigital-communications-cabinetsocial-policy-committee-paper/ publication 8 www.lawcom.govt.nz/project/ review-regulatory-gaps-and-newmedia/publication/ministerialb r i e f i n g / 2 0 1 2 / ministerial-briefing-harmfuldigital-communicationsadequacy-current-sanctions-and-remedies 1 New lawyers’ CVs at Wellington Branch THE Wellington Branch NZLS holds the CVs of lawyers and people preparing for admission who are looking for employment. If you are looking for a researcher or a new employee (part-time or full-time) contact the Branch to see whether we can match up a candidate with the skills you are looking for. Council Brief Advertising [email protected] Crossword Solutions From page 2 Cryptic Solutions Across: 6 Enraged; 7 Get on; 9 Blunt; 10 Ribands; 12 Rear windows; 14 Staff nurses; 18 Toddler; 19 Lyric; 21 Sheep; 22 Stretch. Down: 1 Ingle; 2 Pawnee; 3 Net; 4 Relaid; 5 Low-down; 8 Riviera; 11 Printer; 13 Atrophy; 15 Fidget; 16 Elysee; 17 Pinch; 20 Sty. MA m Answers for puzzles from page 2 1 Quick Solutions Across: 6 Appoint; 7 Minor; 9 Later; 10 Cushion; 12 Wooden spoon; 14 Part company; 18 Cavalry; 19 Amass; 21 Acted; 22 Ordered. Down: 1 Speak; 2 Bolero; 3 End; 4 Bishop; 5 Solomon; 8 Turnips; 11 Adjourn; 13 Balance; 15 Travel; 16 Number; 17 Askew; 20 Art. ‘LAWYERS WITHOUT BORDERS’ – SEMINAR BY PROFESSOR CATHERINE ROGERS 27 NOVEMBER; SEE PAGE 3 MORE DETAIL DESIG N 2 $ M ! # * @ & % G @ G # M % & * ! $ & % * ! G $ M @ # M # $ * & % ! G @ G ! & @ # M % $ * % * @ $ ! G # & M ! @ M & $ * G # % # $ % G M ! @ * & * & G % @ # $ M ! 1…Rh8+ KxNg3 (if 1…Kg1 then 2 Rh1#) 2 Bb8# Deadline December Council Brief – Monday 25 November THE WIZARD OF ID Page 8 – COUNCIL BRIEF, NOVEMBER 2013 SITUATIONS VACANT Legal Counsel !"#$ %& '()*+)', LOCUM Rules Team, National Office Are you seeking further experience of the legislative process and would you be interested in a position involving both the drafting and interpretation of legislation? We are a Crown agency that is responsible for contributing to an affordable, integrated, safe, responsive and sustainable land transport system for New Zealand. Our work includes regulating, where required, to achieve a safe and efficient transport system and to contribute towards achieving the Government’s transport objectives. The appointee will be a legal counsel in the Rules Team, which is part of the Legal Services Team in the Organisational Support Group. As part of a small specialist team responsible for the production of land transport legislation in the form of plain language Rules, this position will provide you with a variety of work including drafting of Rules, identification and analysis of legal issues and consequential legislative amendments arising from Rules, managing the Rules publication contracts and arranging publication of Rules and related material. The work will involve liaison with senior management and with government departments, Rule publishers, industry organisations and individuals. You should have: Lifeline Counselling has a team of qualified professional counsellors experienced in working with clients across a broad range of issues. Our high-quality confidential service can help with day-to-day issues such as: stress, anxiety, burnout, depression, relationship issues, grief, trauma and addiction. All our Counsellors are qualified to Masters level and are members of the NZ Association of Counsellors. For New Zealand Law Society members and families there is a discounted rate: Skype Face-to-Face counselling applies throughout New Zealand. Please contact Lifeline Counselling on [email protected] LOCUM LAWYER • an interest in the design and operation of regulatory frameworks that contribute towards law that is easily understood and complied with • a sound academic record • an understanding of, and experience in, the public sector or regulatory environment, or experience in legislative processes Bel Baker LLB • excellent oral and written communication skills (Ex Mabel Sue) • held, or be eligible to hold, a current New Zealand Law Society practising certificate. Covering lower North & upper South Islands For any general enquiries please email [email protected] or call Laura Finlayson on 04 894 6327. For role specific enquiries please email [email protected] or call her on (04) 894 5018. To be considered for this position you must have a legal right to live and work in New Zealand. Cell 021 064 7838 Applications close on 25 November 2013. [email protected] Log on to complete the application form and upload your Cover Letter and CV http://www.nzta.govt.nz/about/careers/index.html or phone 09 909 8750 Masterton lawyer to spend summer walking the South Island leg of Te Araroa NZ trail WAIRARAPA lawyer Julie Millar is abandoning her desk over the summer to spend three months walking the South Island section of Te Araroa, New Zealand’s continuous 3,000 km walking track which winds from Cape Reinga to Bluff. The Associate at Logan Gold Walsh in Masterton says her bosses have kindly given her nearly three months’ leave of absence to walk the 1400km South Island stretch of Te Araroa, starting just after Christmas at Ship Cove in the Marlborough Sounds. Julie has been a keen tramper since leaving university, walking many tracks in the Tararuas and fulfilling a personal goal of visiting all 48 huts and bivvies in the Tararuas that are marked on the DOC website. She has done some of New Zealand’s “great walks”, such as the Milford and the Heaphy, and tramped elsewhere in the South Island. She has also climbed seven of the Ruapehu summits and three peaks in the Nelson Lakes National Park and is a search and rescue volunteer. Her interest in Te Araroa was piqued when she heard a speaker from the Hutt Valley Tramping Club talking about walking the Appalachian Trail and then read Geoff Chapple’s book Te Araroa: Walking the New Zealand Trail. “I really like the idea of ‘through hiking’ – it’s popular in the States but not a lot of people know about it here. I was enthralled by the challenge of it – I am really looking forward to three months with minimal technology.” It’s a long time to spend on the track and needs a lot of careful planning. “I will send food forward in December before I leave, mostly dehydrated food as it is lightweight and high calorie. While most of the walk is hut to hut I will have to camp sometimes and have an ultralight tent. I bought an annual hut pass earlier in the year which covers all of the huts – $90 for almost three months accommodation isn’t bad. I’ll need to stay in towns at least once a week either camping or in backpackers’.” No doubt there will be other adventurous walkers to team up with at least some of the time, but Julie is also meeting up with other tramping friends and husband Glen is joining her in Queenstown about two thirds of the way. For around three weeks she expects to be walking by herself. As well as pursuing her own great adventure Julie hopes to raise money for the three-year-old Carterton boy, Quinn Lyford, who has been diagnosed with the degenerative muscle wasting disease Duchenne Muscular Dystrophy, and whose family need funds for his care and drug treatment. “I’m going to make a little bit of money for him through local businesses sponsoring part of my blog to be published each week in the Wairarapa News. I’m also looking at setting up a special purpose trust for him but at present the funds are being directed through the Rotary Club of Masterton Charitable Trust.” Julie begins her epic journey on 27 December 2013, with her return to work on 24 March 2014 a distant dream. She will have a personal locator beacon and a SPOT device that will regularly transmit her location. You can follow her progress via the internet. Julie will have a 4G tablet which will enable her to get news out anywhere she has cell cover. She will also stop about once a week in townships and should be able to get news out then. Julie’s web address is – www.purposefulwandering.co.nz – and it is almost ready to go! Julie Millar.