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Council BriefIssue 460 October 2016
The monthly newspaper of the Wellington Branch New Zealand Law Society
Wellington
ISSN 2382-2333(Print)ISSN 2423-0103 (Online)
Celebrating legal executives:beneficial mutual support
INSIDE:Wairarapa dinner 4Too much law? 5Marlborough dinner 5Domestic violence 6
As the end of the year fastapproaches our diaries are
starting to fill up with a numberof commitments and pressures.All the more reason to take timeto stop and catch our breath tocelebrate milestones andachievements.
One such milestone was therecent 25th anniversary celebra-tions of the Wellington Branchof the New Zealand Institute ofLegal Executives held recently atthe offices of Kensington Swan.
I had the great pleasure ofjoining in the celebrations astheir master of ceremonies withDavid Dunbar and Nerissa Bar-ber also in attendance for theSociety.
NZILE past and current presi-dents also attended includingNecia Parker the current Wel-lington Branch President ofNZILE together with formercommittee members MarjorieGambitsis and Bronwyn May-smor who cut the anniversarycake, and are pictured below to-gether with a photo of the pastand current committee.
The New Zealand Law Societyhas a close and collaborativeworking relation-ship with the NewZealand Institute ofLegal Executives.Their president(Pam Harliwich)and executive offic-er (Jo Buckton) at-tend our NZLSCouncil meet-ings. The Society,through NZLS CLELimited, and the
Institute work together with toadminister the NZLS Legal Exec-utive diploma. A major aspect ofthe diploma is the compulsorydrafting component in each ofthe four advanced papers.
The course comprises six sub-jects including the practice ofproperty law, business law, es-tate law and litigation. These pa-pers are usually studiedpart-time but some of the teach-ing institutes (including Whiti-rea here in Wellington) offer thecourse as full-time study, ena-bling a student to complete allsix papers in one year if theywish.
Legal executives throughoutthe country support us, workalongside us and lead variouswork streams within our legalpractices to deliver legal servicesto our clients. The final producton a number of occasions is theresult of joint efforts and team-work of both lawyers and legalexecutives. Without this benefi-cial mutual support, our respec-tive jobs would be all the moredifficult; we rely on one anotherto provide the very best serviceto our clients.
I take this opportunity to ac-knowledge and thank the manylegal executives who work withus and provide such a significantand sterling contribution to ourpractice of the law.
Mark WiltonVice President
Former NZILE committee members Bronwyn Maysmor and Marjorie Gambitsiscutting the anniversary celebration cake.
Current and previous NZILE committee members at the25th anniversary celebrations.
� Shirley Smith Address
By Aroha Beck
Prominent criminologist to deliver 2016 Address
of the person – who and what can andshould bear rights and duties. Thistopic first took shape in Law and theSexes: Explorations in Feminist Juris-prudence (Allen and Unwin, 1990)where she examined the gender ofthe legal person. The topic receivedits fullest development in Law’sMeaning of Life: Philosophy, Religion,Darwin and the Legal Person (Hart,2009). She is currently writing about
the central character of criminal law, the respon-sible subject, as seen through the eyes of theleading male scholars and jurists of the nine-teenth and twentieth century. Professor Naff-ine’s Shirley Smith Address will explore thattopic.
The Shirley Smith Address commenced in2008 and is now a well-established annualevent in Wellington.
The website, shirleysmithaddress.org pro-vides information on past Addresses, alongwith the text of most.
The Women in Law Committee ofthe New Zealand Law Society’s
Wellington branch is pleased toannounce that the eighth annualShirley Smith Address will bedelivered by prominent criminologistProfessor Ngaire Naffine.
Ngaire Naffine is the BonythonProfessor of Law at the University ofAdelaide and Fellow of the AustralianAcademy of Social Sciences. She haspublished in the areas of criminology, criminallaw, jurisprudence, feminist legal theory andmedical law. Professor Naffine has been GenestVisiting Professor at Osgoode Hall Law School(2012) and Baker-Hostetler Professor of Law atCleveland-Marshall College of Law, ClevelandState University, (2004). From 2007-2009 shewas a member of the Australian ResearchCouncil, College of Experts.
She is perhaps best known in New Zealandfor feminist critiques of criminology. Her bookFeminism and Criminology (1996, Temple Uni-versity Press) will be familiar to anyone thatstudied criminology this century. In that book,Professor Naffine railed against the reluctanceof criminologists to engage feminist theoriesand perspectives that would invigorate the dis-cipline. Highly critical of gender bias in crimi-nology and the criminal justice system, shesuggested a different kind of understanding ofthe impact of femininity and masculinity onboth criminal behavior and criminology’sworldview.
Of particular interest, and an enduring focusof her research, is the moral and legal philosophy
Professor Ngaire Naffine.
Ron Backhouse from Hamilton (left) was overall winner and awarded Devil’s OwnTrophy at the recent Devil’s Own golf tournament in Palmerston North; Alex
MacDuff as runner-up won the Jim McBride Cup.
� More Devil’s Own pictures and results on pages 7-8
Professor Naffine will deliver the Shirley SmithAddress – “Manliness, Male Right, and Criminal Law:the Uses of Criminal Law in the Formation of theCharacter of the Male Legal Person” – on Wednesday23 November 2016, at Rutherford House LectureTheatre 2, Victoria University of Wellington, Pipiteacampus (opposite the law school). It is a free publicaddress, made possible by the sponsorship ofThorndon Chambers.Formalities commence at 5.30pm, with lightrefreshments to follow the address.
Council Brief AdvertisingBook early for Law
Society events!
THE scheme to assist lawgraduates into work is still beingoperated by the WellingtonBranch.
Law graduates seeking workleave their CVs at the Society.These are available to potentialemployers needing staff whocan refer to the CVs and chooseappropriate graduates.
The work offered need not bepermanent. Any work in a lawoffice will give graduates experi-ence that may be helpful nexttime they make job applications.
Law graduateCV scheme
DeadlineNovember 2016
Council Brief
Tuesday 25 October
INSIDE:Youth Court 3Criminal defence bar 4 Contemporary art 5Devil’s Own golf 8
‘HE’S too pretty to become thenext Supreme Court judge,’ saidno one, ever. But it’s the fact thatwe still hear that sort commentabout our female role modelsthat indicates how far theprofession still has to come if it isto achieve anything approachinggender equality.
Wellington Women LawyersAssociation and New ZealandLaw Society Wellington BranchWomen in Law Committee invit-ed local lawyers to ‘(De)-sexingthe woman lawyer’ on August 30.The event quickly booked outwith practitioners with an appe-tite for the issues, and a morbidcuriosity for what an event so-named might entail.
Notwithstanding the flow ofwine and the favourable aspectof the Russell McVeagh offices,the real draw was ProfessorRosemary Hunter of QueenMary University of London, aleading academic in the socio-legal field and well known pro-ponent for the power and placeof women in law. ProfessorHunter spoke to us while in NewZealand for the Feminist Judg-ments Project Aotearoa. Thatproject will result in a volume of
Wellington Branch Diary OctoberMonday 10 OctoberCriminal Law Committee
Wednesday 12 OctoberILANZ ‘Mini’, Wellington
Wed-Fri 12-14 OctoberANZSLA Conference, Te Papa
Thursday 13 OctoberCourts, Tribunals & ADR Committee
Monday 17 OctoberTrusts and Estates Committee
Tuesday 18 OctoberFamily Law Committee
Wednesday 19 OctoberParole Law Committee, Sex Offenders on Parole: Modern Pariahs? 5-7pm,NZLS Building, 26 Waring Taylor StreetWellington Branch Council Meeting
Friday 21 OctoberInformal drinks, 5.30pm
Tuesday 25 OctoberHealth Law Committee
Wednesday 26 OctoberLegal Assistance Committee
Thursday 27 OctoberImmigration & Refugee Law CommitteeEmployment Law Committee
Thurs-Fri 27-28 October‘Advancing Better Government Through Legislative Stewardship’, NZ Centrefor Public Law, VUW Law School
Friday 28 OctoberWomen in Law Committee
Thursday 3 NovemberHuman Rights CommitteeSymposium: Law Reform Community in the 21st Century, Law Foundation
COUNCIL BRIEF, OCTOBER 20162 News
Crossword SolutionsFrom page 7
Across: 6 Hot cake; 7 Nomad; 9 Era; 10 Uppercase; 12 Break the law; 15 Latin master; 17Realistic; 19 Pro; 21 Noise; 22 Nothing.
Down: 1 Board; 2 Ace; 3 Skip; 4 Concreted; 5Oarsman; 8 Berths; 11 Fruitless; 13 Almost; 14Care for; 16 Arena; 18 Iron; 20 Shy.
Cryptic Solutions
Quick SolutionsAcross: 6 Quicken; 7 Debar; 9 Old; 10 Attenuate;12 Deferential; 15 Exhortation; 17Communion; 19 Ill; 21 Unity; 22 Rejoice.
Down: 1 Guile; 2 Act; 3 Zest; 4 Deduction; 5Partial; 8 Desert; 11 Deformity; 13 Extend; 14Expound; 16 Slack; 18 Over; 20 Vow.
Council Brief deadlineNovember issue Tuesday
25 October
ConferencesOctober 12 2016 – ILANZ ‘Mini’, Rydges Hotal,Wellington. http://ilanz.orgOctober 12-14 2016 – 26th Australian and NZSports Law Assn. (ANZSLA) Conference, TePapa, Wellington. [email protected] 13-14 2016 – Employment Law Conference,Auckland. www.lawyerseducation.co.nzOctober 13 2016 – Tax Conference, Auckland.www.lawyerseducation.co.nzOctober 20 2016 – Marketing Law Conference,Auckland. www.marketing.org.nzOctober 24-25 2016 – In-House CounselWorld Summit, Paris. http://icwsummit.comOctober 27-28 2016 – Advancing BetterGovernment through LegislativeStewardship, NZ Centre for Public Law,Wellington. www.victoria.ac.nz/legislative-stewardshipNovember 3 2016 – Symposium: The LawReform Community in the 21st Century,Wellington. www.lawfoundation.org.nzNovember 4-7 2016 – Asian Patent AttorneysAssn. Annual Council Meeting, Auckland.www.apaa2017.comNovember 14-15 2016 – The Art ofNegotiating and Drafting CommercialContracts , Wellington.www.conferenz.co.nzNovember 16-18 – ACC Australia NationalConference, Canberra. http://acla.acc.com
November 17-19 2016 – Maori Law SocietyHui-a-Tau, Queenstown.www.maorilawsociety.co.nzNovember 23-26 2016 – Australian & NZ Assn.of Psychiatry, Psychology and Law 36thANZAPPL Annual Congress, Auckland.https://anzappl.org./annual-congress/Nov 30-Dec 3 2016 – The Law and SocietyAssn. of Australia and NZ Annual Conference(LSAANZ), Brisbane. www.lsaanz.orgDecember 5-7 2016 – 35th AnnualConference of ANZ Law & History Society(ANZLHS), Perth. anzlhs.orgDecember 8-9 2016 – Colloquium – 40 Yearsof Property (Relationships) Act 1976:Reflections & Reform, Dunedin.www.lawfoundation.org.nzMarch 20-24 2017 – 20th CommonwealthLaw Conference, Melbourne.www.commonwealthlawconference.orgApril 5-9 2017 – Inter-Pacific Bar Assn.Annual Meeting & Conference, Auckland.ipba.orgMay 24-26 2017 – ILANZ Conference 2017,Rotorua. https:// ilanz.orgAugust 5-6 2017 – NZ Criminal BarAssociation Conference, Auckland.www.criminalbar.org.nzOctober 6-13 2017 – IBA Annual Conference,Sydney, Australia. www.ibanet.org
MADESIGNm
Answers for puzzles from page 61 a) It’s the numbers 0 to 9 set out
in alphabetical orderb) A cowc) One (1 => One, 9 => Nine, 11 =
Eleven)d) A secret or a mysterye) It’s too gross (144 is a gross; 2
x 144 is 288, which is 2 gross)
2 1 cxBb7 2 Qc6 (ahead a queenwhite would rather lose a rook thanallow white to queen) 2 Bb5!(pinning black’s queen againstblack’s king; if 2… axBb5 then 3bxRa8=Q+ QxQa8 4 RxQa8+ giveswhite a queen and a rook for aqueen, a bishop, and a pawn)
significant “alternative” judg-ments – decisions of the NewZealand Courts that have beenrewritten to incorporate a femi-nist viewpoint. (Feminist mean-ing, for anyone lagging,someone who thinks that wom-en are equal to men).
Professor Hunter began byhighlighting some statistic-backed facts about women inthe profession, to nods of recog-nition from around the room,concerns repeated endlesslydown the generations of lawyers– valuable female minds leavingthe profession, competing prior-ities, the legal life being moreonerous for a woman than aman, who both expect to live lifein its fullness.
True, the world does nowbenefit from women profession-als, we are freed from the bygonebeliefs that barred women frommastering the law on account ofwomen’s lack of rational detach-ment and true sense of justice.But the professor pointed toremnant attitudes, not confinedto the law, such as the litany ofcomments on women’s profes-sional appearance, remarkingthat the fixation on the trousers
suits of women like ChancellorMerkel and former SecretaryClinton, rather than the fact thatthey are running the world, wasquite astonishing.
But so it is, the senior womanpartner or judge still finds thatthough she may man the helmwith steely intellect, she nevercan dislodge the stigma of herfemininity from around herneck. Studies find that womenare being employed as ‘clientbait’, that is, assets for market-ing, rather than for their intellec-tual abilities. Mother lawyers arequestioned about their dedica-tion to work because they have afamily, a baby bump somehowdestroys professional credibilityand is perceived as being ex-tremely unattractive and off-putting to clients, and everystrong-minded woman is char-
acterised as a – bit choice forprint.
Professor Hunter illuminates aculture that stretches just farenough for a semblance of toler-ance; the lone hijab-wearing prac-titioner, the black woman (so oftentaken for the cleaner) and the lesbi-an reinventing herself to increaseher career trajectory. A culturewhere the typecast of true mascu-linity is still requiring men to valuewomen for their decorativeness,therefore excluding women fromthe ‘appreciation club’ of benefi-cial professional camaraderie.
Professor Hunter’s concludingand considered advice was tourge us to picture a different fu-ture that works for both profes-sional prosperity and thrivinghome lives. Men are encouraged
to call others out on discrepan-cies in the treatment of col-leagues, to be vocal amongsttheir peers.
The evening closed with a dis-cussion among noteworthypractitioners around the roomwho, to a woman, spoke warmlyof the need to foster young wom-en lawyers to stick it out to thehigher reaches. For women tosupport women. Many attend-ees of the event were part of theWellington Women Lawyers As-sociation, powered by successfulpractitioners who give their timeand provide some insight to re-taining one’s essential authen-ticity in the law – new membersare always welcomed, with wineand canapes, naturally.
www.wwla.org.nz
(De)-sexing the woman lawyerBy Anna Pallesen
Professor Rosemary Hunter.
News COUNCIL BRIEF, OCTOBER 2016 3
THE Youth Court as a truly medico-legal environment, the healthcomplexities of the young offender population and the changingdirection to solution-focused outcomes were all discussed in astimulating and insightful presentation by Principal Youth CourtJudge John Walker, when the Wellington Medico-Legal Society wasprivileged to host His Honour recently.
His Honour began by emphasising the com-pact period within which the Court has to dealwith youth offenders (generally aged between14 and 16 years). This, together with the com-plexity of the health issues faced – neuro-disa-bilities, serious drug and alcohol issues, physicaland mental illnesses – left his audience wonder-ing if the Youth Court was facing an impossibletask.
In the past five years the realisation of theprevalence of neuro-disabilities in young peoplewho offend has however changed the directionof youth justice. This was prompted by a report from the EnglishChildren’s Commissioner in 2012. Judge Walker described this asleading to “ripples, and then waves, in the youth justice sector”. Anexample cited in the report was that “while 24-31 percent of thegeneral youth population are affected by traumatic brain injury,65-72 percent of youth in custody are affected”. And as His Honoursaid, “the list goes on”.
Evidence showed that the characteristics of neuro-disability(hyperactivity, impulsivity, low intelligence, cognitive impairment,alienation and aggressive behaviour) led directly to offending or tolife choices increasing its likelihood. Judge Walker described it as a“huge wake-up call” and had raised the issue whether it was just topunish a child for behaviours connected to a disability such as foetalalcohol spectrum disorder.
This understanding of the impact of neurological issues and dis-eases has led to pragmatic responses from the Youth Court justicesystem, and an increase in the coordinated information about ayouth’s neurological and educational profile. His Honour describeda huge effort by those working in the sector to meet the requirementsof the CYPF Act 1989, which holds young people to account whilemeeting their needs.
Judge Walker said that increasingly all relevant information, in-cluding information about possible diagnoses, is now coming beforethe Court. This is no easy feat however, and requires skilled support,coming together through judicial innovation. His Honour cited as anexample Auckland’s Cross Over courts where care and protectionmatters and youth justice issues involving the same young personare dealt with in the one court by a Family Court Judge who is also aYouth Court Judge – both files on the bench at the same time.
The introduction of external experts, i.e. education officers, foren-sic nurses and sometimes communication assistants who were refin-ing and assisting the complex cases was also praised by JudgeWalker. As His Honour said “Complex cases involve complexresponses”. Those present listening to His Honour had no doubtthat he could deliver effective responses, but also understood thattrue success would involve the wider community with particularconcentration in health and social sectors.
Solution-focused Youth CourtBy Jenny Gibson
VUW senior lecturer JoannaMossop recently “unpacked”the complexities of the historicSouth China Sea Case betweenthe Philippines and China in afascinating lecture at theVictoria law school.
The case arises out of a longrunning dispute about sover-eignty of various features, is-lands and rocks in the SouthChina Sea and the consequenc-es for maritime zones in thatarea. The case has significantgeopolitical and legal implica-tions and was brought by thePhilippines under the arbitra-tion provisions of the UN Con-vention on the Law of the Sea(UNCLOS).
China claims through histori-cal association as denoted by theso-called “nine-dash line” to jus-tify its claim to islands and othergeographic features in the SouthChina Sea, despite many of themfalling within 200 nautical milesof a number of coastal states, inparticular the Philippines. Sov-
ereignty of the geographical fea-tures has implications for themaritime zones and for owner-ship of natural resources such asoil and gas.
The Philippines complaintfocused on several grounds –that the nine-dash line claimedby China did not justify anyrights to maritime jurisdiction,and that it was inconsistent withexclusive economic zones thatcould be claimed from any of thedisputed islands. The Philip-pines also wanted the tribunal todeclare the status of various sec-tions particularly the Spratlysand the Scarborough Shoal fur-ther north, because differenttypes of geographic features areassigned different maritimerights are under the Law of theSea Convention.
Specifically, islands generate200 nautical miles exclusiveeconomic zone, islands definedas rocks and which cannot sus-tain human habitation generateonly 12 nautical miles, while
features that are not above thesea at high tide do not generateany zone.
There were a number of otherissues including the construc-tion by China of artificial islandson some of the rocks, set downas a violation of the obligation toprotect the environment, de-structive fishing practices byChina and interference withPhilippine fishing activities.
The Philippines framed itsclaim in terms of economiczones rather than sovereignty,because under the Law of the SeaConvention the tribunal had ju-risdiction only on issues arisingout of the convention itself.
China refused to participatewith the tribunal, does not rec-ognise its jurisdiction and insiststhe ruling is non-binding anddoes not apply to them. A majordifficulty is that there isconfusion over what the nine-dash line actually means.
❑ Continued page 4
The Wellington Medico-Legal Society is an amalgam of practising
lawyers and doctors, and students with an interest in medical law.
Regular meetings are held featuring speakers with particular
expertise in areas that affect medical law. If you are interested in
joining the Society please contact either of the below email
addresses:
Jenny Gibson: [email protected]
Marina Kapua: [email protected]
Wellington Medico-Legal Society
ICLR OnlineThe official law reports for England and Wales are published by
the Incorporated Council of Law Reporting (ICLR). They date back to1865. The ICLR has been creating its own platform to deliver thiscontent and from January 2017 the official reports will only be availa-ble from its own website called ICLR Online. They are combining allof these cases with a new case citator called Citator+.
In addition to pdfs of all the reported decisions, you can accesscase summaries, transcripts of recent decisions and see recent judg-ments. Current UK legislation is also available from the website. Youcan see what this looks like here – www.iclr.co.uk
However you need to subscribe, as the Library has done, to get fullaccess.
E-book pilot lending projectAs mentioned in last month’s Council Brief, the Wellington Li-
brary is testing the LexisNexis NZ e-book lending system called LexisRed. If you are interested, instructions have been in recent E-briefemails. We will trial the system for a few months to see how it worksfor the Library and for the profession.
New Zealand Parliamentary Debates (Hansard) digitisedThe HathiTrust also has digitised NZPD content up to 1985 (vol.
462). See https://catalog.hathitrust.org/Record/010236658These can only be searched volume by volume it seems, but it is a
useful development.
CCA handbook : making the Construc-tion Contracts Act work, Wellington :Writes Hill Press 2016 KN83.8.L1 DEG
Efficacy, accessibility and adequacy ofprison rehabilitation programs for in-digenous offenders across Australia,Melbourne: The Australasian Instituteof Judicial Administration 2016KM650.K1 JON
Riley on business interruption insur-ance, London : Sweet & Maxwell10th ed 2016 KN294.C6.A1 RIL
Ross on crime, Pyrmont, NSW : Law-book Co 7th ed 2016 KM500.K1 ROS
Standing orders of the House of Repre-sentatives : brought into force 20 Feb-ruary 1996 : amended 22 August 1996,amended 8 September 1999, amended16 December 2003, amended 2 August2005, amended 11 September 2008,amended 5 October 2011, amended 30July 2014, Wellington : Published byOrder of the House of Representatives2014 KM84.L1.Z1 NEW NZLSL WEL
The law of proprietary estoppel, Oxford:Oxford University Press 2014KN384.4.A1 MFA
Theobald on wills, London : Sweet &Maxwell 18th ed 2016 KN125.A1 THE
Tristram and Coote’s probate practiceLondon : LexisNexis Butterworths31st ed 2015 KN127.A1 TRI
Unit titles manual : a practical guide tounderstanding and complying with theunit titles regime, Wellington :Thomson Reuters 2nd ed 2016KN72.6.L1 ROS
Youth justice in New Zealand, Welling-ton : Thomson Reuters2nd ed 2016 KN176.L1 LYN
THE NZLS Wellington Branch Parole Law Committee is offering aCPD-compatible seminar to explain changes in the law aboutextended supervision orders (ESOs), public protection orders(PPOs), recent law changes and to discuss heightened communityreactions to paroled sex offenders. Attendees will gain:• a better understanding of ESOs, PPOs and recent law changes• an understanding of the different roles of the Court, the Parole
Board and Community Probation• an opportunity to discuss the management of sex offenders in NZ
communities in 2016 and various attitudes to rehabilitation andreintegration
5-7 pm, 19 October 2016, 8th floor, NZLS Building, 26 Waring TaylorStreet. Cost: $25 – refreshments will be served. To make a reserva-tion go to http://bookwhen.com/wellington-branch
Sex offenders on parole – modern pariahs?
By Robin Anderson, Wellington Branch Librarian
❑ Library News
New online library resources available
Principal Youth CourtJudge John Walker.
New titles at NZ LawSociety Library
Wellington
Might and right in the South China Sea –maritime claims in a shrinking world
Book early for LawSociety events!
Council Brief [email protected]
Forensic Consultants Ltd
04 905 4611 | [email protected]
Challenging and advancing the quality of forensic evidence
LINKED www.linkedforensics.com
COUNCIL BRIEF, OCTOBER 20164 Criminal Defence Bar
2629050_1
2016 Shirley Smith
Address
The Women in Law Committee of the Wellington
Branch NZLS invite you to the 2016 Shirley Smith Address
"Manliness, Male Right and Criminal law:
The Uses of Criminal Law in the
Formation of the Character of the Male Legal
Person"
To be presented by: Professor Ngaire Naffine
Bonython Professor of Law
University of Adelaide
When: Wednesday 23 November 2016
Formalities commence at 5.30pm
Where: Rutherford House Lecture Theatre 2, Victoria
University of Wellington Pipitea Campus
Light refreshments follow the Address
This is a free public Address.
This is a free public address.
This event has been made possible thanks to the generous sponsorship of:
THE criminal defence barin Wellington is facing anexistential crisis and is in dangerof virtually disappearing, withsevere implications for access tojustice.
This was the view of many ofthose attending a WellingtonBranch Criminal Law Commit-tee forum recently. Criminal BarAssociation president NoelSainsbury chaired the forum.Other members were barristerElizabeth Hall, former criminallawyer Julia Robertson, DeputyPublic Defender Kevin Preston,and barrister Robert LithgowQC.
The nub of the problem iswhat some called a “void” be-neath the mostly aging presentmembers of the criminal de-fence bar, and the inability toattract younger lawyers to looktowards criminal court worklargely through perceptions ofpoor remuneration and a lack oftraining opportunities.
Most of those in the “aging”category trained at the feet ofbarristers of the past. They weretaken on as juniors and trailedthe steps of the seniors, did“dogs-body” work, learning onthe job in the manner of an ap-prentice.
This approach no longerworks. With the present eco-nomic structure senior lawyerscannot afford to take on “ap-prentice” lawyers who are likelyto be essentially unproductive atleast at first. The process – large-ly put down to reduced and re-strictive legal aid rates and rules– has been building for the past
30 years or more. The result nowis there are few intermediatecriminal lawyers who might beexpected to replace those near-ing retirement, and an evensparser population of juniors.
Statistics, obtained from theMinistry of Justice via an officialinformation request by Eliza-beth Hall, confirm the position.In June 2016 there were 153criminal legal aid providers inWellington, down from around200 in 2010. Supervised criminallawyers are down from 52 in2010 to 22 now, indicating fewerjunior lawyers. The number ofDuty Solicitors is down from 161in 2010 to 96 now. Several peoplecommented that there are so fewDuty Solicitors working in theWellington region now thatthose still there are on much ofthe time and under stress.
Julia Robertson spoke abouther own situation as a youngerlawyer who started in the crimi-nal bar but had changed direc-tion at least for the time being.She said a criminal defence law-yer working in a larger firm couldnever hope to meet monthly tar-gets on criminal fees earned. Shefelt the criminal bar shouldspeak out on issues that erodedjustice and impacted the crimi-nal bar because “… no one elsewill.”
Kevin Preston noted that thePublic Defence Service providestraining for graduate lawyerswishing to become criminal law-yers. “The quality of graduatelawyers wishing to join the PDSis very high, their sense of socialjustice phenomenal… The PDS
is not a threat to the future of thecriminal bar – 95 percent of ourcases PAL 1 (Criminal ProviderApproval Level 1) cases. We in-tend to train quality young law-yers who eventually will moveout into the private bar and helpfill the void…”
A questioner asked whetheroutsiders could attend PDStraining, the answer being nega-tive. Another asked whether par-allel funding similar to thatavailable to the PDS could notalso be applied to the private barfor training junior lawyers.
Robert Lithgow QC said of hisrecent experience overseas thatlegal aid lawyers of fewer than 10years experience in England andWales were paid very poorly,
perhaps even worse than here.The reality of the pupillage sys-tem for young barristers, he said,is that many do not have a“chair” at their chambers butsimply call in on their way fromhome to court to collect files andconsult the clerk.
He spoke of the apprentice-ship scheme developed in theNew Zealand automotive indus-try in the past. Under thisscheme the engineers union setup a cooperative with the MotorTrade Association which em-ployed automotive apprentices,supervised the training and han-dled administration. “The LawSociety could do that, could setup a secretariat responsible forthat.”
Members of the forum whose members recently discussed the future of the criminal defence bar were: Elizabeth Hall,Robert Lithgow QC, Noel Sainsbury, Julia Robertson and Kevin Preston.
He said the law library, whichhe saw as a space with potential,could be the base for young bar-risters where the traditional sup-ports and communal aspectswould be provided. Senior law-yers would be based there tomentor the young lawyers, to an-swer their questions and to offeradvice. “We have failed to attractpeople to the criminal bar,someone has to put the effort in– at the moment we are not giv-ing them what they want.”
The consensus of discussionwas that some kind of trainingstructure was essential if theproblem of succession in thecriminal defence bar was to beovercome.
The tribunal decided that Chi-na was asserting rights outside ofany possible exclusive economiczone that could be generated un-der the Law of the Sea, and beyondany possible Chinese exclusiveeconomic zone. While there weresome instances elsewhere wherehistoric rights had overridden oth-er rights, the tribunal said they didnot apply in this case. They con-sidered that formation of exclu-sive economic zones essentiallyextinguished all historic rightsthat may have existed.
The 500-page decision ap-peared in July 2016 is likely to be-come a treasure trove for thoseinterested in the Law of the Sea,Joanna Mossop said, and will be-come a source of jurisprudenceon which lawyers can base argu-ments.
She briefly touched on anyimpact the decision might haveon New Zealand, which relies ex-tensively on offshore islands forcreation of exclusive economiczones and continental shelf.Some of these had some humanhabitation for periods but werelargely uninhabited, while theChathams have been occupied
for centuries. Unlike the SouthChina Sea, where sovereigntyhas been contested, New Zea-land’s exclusive economic zonesare largely respected, and whereforeign fishing nations enteredinto treaties with New Zealandessentially agreeing to observethe New Zealand zones and con-servation practices. New Zea-
land filed outer limits of territo-rial seas with the UN in 2006which would be expected todraw opposition if there was anybut there but there were no ob-jections.
This lecture was one of anumber of Law School eventsthat are CPD compliant for law-yers.
❑ From page 3
The South China Sea – maritime claims in a shrinking world
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COUNCIL BRIEF, OCTOBER 2016 5Demystifying the art world
TAKING the mystery out of the artworld and making it more accessiblewas the objective of a recent Womenin Law Committee event.
This was the third ‘Demystifyingthe Art World’ event held in so manyyears, again at the beautiful PeterMcLeavey Gallery and once again soldout.
The lucky 65 lawyers who managedto secure a space heard from fourspeakers including two contemporaryNew Zealand artists with very differ-ent mediums.
Andrew Barber, 2016 C Art TrustAward recipient, talked about his pas-sion for paint, oil on canvas and hisdesire to create life size artwork. Thisambition has resulted in the paintingof floors as Andrew could not get bigenough canvases.
Jeweller Octavia Cook discussedthe narrative that flows through thejewellery she creates and her use ofdifferent materials, though focusingmostly on acrylic.
Both spoke of the lengthy creativeprocess that goes into their art thatforms the foundation of the final piec-es that the public sees.
Richard Moss and Courtney John-ston spoke from the perspective of
By Caroline Rieger – Co-Convenor of the Women in Law Committee
Demystifying the art world
collectors of art. Richard, a memberof the C Art Trust Board, confirmedthat choosing the first piece of art youbuy is perhaps the most difficult. Hetalked about how getting a buyinggroup together can be a great way tostart your collection and also to pushthe boundaries in terms of the art youwould collect.
Courtney Johnston, director of TheDowse Art Museum, provided aunique perspective on the differencebetween collecting as a private personand for a public gallery. She discuss-ed the acquisitioning and de-acquisitioning process and policiesaround acquisitions. Courtney alsolet people in on the secret of the abili-ty to layby works with dealers facilitat-ed now through the MyArt interest-free art loans system and the benefitsof the ICOM Card when travellingoverseas and visiting galleries.
Courtney and Richard both provid-ed some great tips to potential, newand more experienced collectors.Some of Richard’s tips for collectingcontemporary art are featured below.Richard has also generously agreed toshare a draft buying group agreementused by his group.
Artists Octavia Cook, centre, and Andrew Barber to her left, with collector Richard Moss, gallery managerOlivia McLeavey, Dowse galley director Courtney Johnston and event organiser Nerissa Barber.
Octavia Cook and Courtney Johnston examiningOctavia’s jewellery.
Andrew Barber speaks about his “life with paint”.
COLLECTING New Zealand contemporary art canseem a daunting and expensive prospect. Itdoesn’t need to be that way and the rewards ofcollecting are immense.
One way to begin is to form an art buying group.You will need to think about number of members,contribution and duration. There is value in limit-ing numbers to a maximum of four people. If youdecide to commit $500 each, the $2,000 availablewill allow you a huge choice of art works to buyfrom Wellington’s best dealer galleries. If you wereto commit $1,000 each you would find works inmost exhibitions that you could buy for $4,000 oralternatively you could buy two or three smaller,less expensive works. There is also value in limitingthe amount of agreement needed in order to makea purchase. The need for agreement frequentlymeans that inspiring work is overlooked for some-thing more acceptable and prosaic.
Whether you do this individually and set asidean amount you will spend annually on your collec-tion or if you do this as a group, you can approacha dealer and ask to be shown work they hold at aparticular value. Before you do that, you will prob-ably need to decide broadly what you want to col-lect. Photography and works on paper are oftencheaper than works on canvas. You might decideto collect text-based work or political work or min-imalist abstraction or monochrome or just workyou love.
If you want the work you buy to hold its valueand perhaps increase in value over time, then theprofessional dealer galleries are the place to go andin Wellington you will find wonderful work at –
Bartley and Company Contemporary ArtBowen GalleryHamish McKay GalleryPage Blackie GalleryPeter McLeavey GalleryRobert Heald GallerySuite Gallery
Insights on art collectingthrough a buying group
By Richard Moss, art collector and philanthropist
1. The members of the group called xx Collection areK, S, R and G, who hold equal shares. Works pur-chased are the property of the group and not of anyindividual member.
2. The members will contribute the amount of $xxper annum payable on 1 April 201x and at or before 1April in each subsequent year.
3. The xx Collection will purchase New Zealandworks exclusively.
4. The members will appoint a Treasurer who willoperate a bank account requiring the signature oftwo members. All members will be signatories tothe bank account. The role of Treasurer will rotateannually unless otherwise agreed.
5. There will be an Annual General Meeting once ineach year at which any of the rules may be changedby agreement of more than 50% of the members. ASpecial Meeting may be called at other times at therequest of any member.
6. The purchase arrangements are that, each year,one member, known as the purchasing member willpurchase works of art to the value of $6,000. Thepurchasing member will rotate annually. The rota-tion begins in 201x and continue as follows:
∑ Year 1 G
∑ Year 2 S
∑ Year 3 R
∑ Year 4 A
7. Works will be hung in member’s homes for a 12month period and then rotated. The rotation willensure that all members have access to each workfor a12 month period in each 4 years. In the year ofpurchase, the work/s will hang in the purchasingmembers home.
8. The winding up of xx Collection will take place xyears after the date of establishment being x March201x, unless there is unanimous agreement to contin-ue for a further fixed period or it may be wound upearlier by agreement of more than 50% of the mem-bers.
9. In the event of winding up the works will be valuedand distributed in equal portions by agreement. Inthe event that there is no agreement then there will
be a lottery and each member will take a number either 1, 2, 3, 4and will select a work in order until the collection is distributed.At the conclusion of that selection the values of the works heldby each member will be totaled and the difference in value willbe settled in cash between the members. Any remaining workswill be auctioned and the funds distributed.
A __________________________________ Date _____________
G__________________________________ Date _____________
S__________________________________ Date _____________
R __________________________________ Date _____________
Donations to the Solicitors Benevolent Fund can be made through:
• “Give a Little” http://www.givealittle.co.nz/org/Solicitors,which will be automatically receipted, or
• by Direct debit: Bank of New Zealand: 02-0506-0101108-097
All donations go directly to the capital reserve. The Solicitors’Benevolent Fund Trust is registered as a charitable trust(number CC48709) and has tax deductible status.
If a receipt is required when making a direct debit, pleaseemail [email protected] with your name, theamount deposited and a contact number to ensure a receipt isissued and sent to the correct place.
The Solicitors’ BenevolentFund – ways to donate
Memorandum of Understanding: xx Collection
The Wellington Branch is creating a register of practitioners preparedto volunteer their time presenting CPD to their colleagues.
We all recognise that CPD comes with a cost both in time and moneyso we are creating a register of practitioners and educators who wouldbe available to present CPD if requested at no or low cost to theircolleagues.
We remind you that CPD presenters can get time in their own right.Time is claimable for preparation of CPD presentations (usually at aratio of two hours preparation for each hour of presentation) and timespent delivering. A typical one hour presentation would allow thepresenter to claim three hours of CPD, ie, two hours for preparationand one hour for the delivery.
Any practitioners prepared to go on the Branch register please contactthe Wellington Branch, email [email protected]
Please include your name, your area of expertise, your telephonenumber and your email address.
Register of Presenters for ContinuingProfessional Development (CPD)
MADESIGNm
© Mark Gobbi 2016
Answers: See page 21 Decode these rebus puzzles:
STA4NCE
cHtOnGuEeEk
A4ID
graVity
SPIBRED
2 It is black’s turn to move; whatshould black do?
Council BriefAdvertising
COUNCIL BRIEF, OCTOBER 20166 Community Law Centre
By Rob O'Brien, Volunteer
On 15 September 2016 theHealth Select Committeereported back on the SubstanceAddiction (CompulsoryAssessment and Treatment) Bill(SACAT Bill), unanimouslyrecommending its passage. Ithas been described as “the lastoutstanding item from thePrime Minister’s TacklingMethamphetamine actionplan”1. But it is more than that.It will replace the Alcoholismand Drug Addiction Act 1966(ADA Act), which grants broadpower to detain individuals andsubject them to compulsorymedical treatment. This articlewill provide a brief overview ofhow the regime proposed by theSACAT Bill differs from thecurrent law.
The current lawUnder the ADA Act an addict2
may be made subject to compul-sory treatment for alcoholism oraddiction to other drugs by ei-ther: (a) making a voluntary ap-plication for detention;3 or (b) bycourt order on application of arelative or other reputable per-son.4
Where a voluntary applica-tion for detention is made thereis no requirement for medicalevidence in support, but beforeordering detention for treat-ment the Court must be satisfiedthat: the applicant is an addictand fully understands the natureand effect of their application;and that there is a certified insti-tution willing to receive the ap-plicant.5 The most importantpoint is that the individual un-derstands the effect of the ordersought. This is because the per-son is voluntarily giving up their
liberty for a period of up to twoyears (it is the order which is vol-untary, not the subsequent de-tention and treatment).
A relative, or a constable or‘any other reputable person’may also apply for a compulsorydetention order.6 Such an appli-cation requires supporting cer-tificates from two medicalpractitioners to the effect thatthey believe the patient is an ad-dict and that the making of a de-tention order is ‘expedient’ inthe addict’s own interest or inthat of their relatives.7 The Judgemay only grant an order if satis-fied of the truth of the applica-tion and that an identifiedcertified institution is willing totake the addict.8 Again, deten-tion for treatment can run for upto two years.
A patient may, however, be re-leased from treatment on a revo-cable leave of absence or bydischarge.9 It is common for pa-tient’s release to be by way ofleave of absence so that if theyrelapse and are at risk of harm tothemselves or others they canmore readily be returned totreatment.
Problems with the current regimeThe Ministry of Health ac-
cepts that the ADA Act does notfulfil its purpose of making bet-ter provision for the care andtreatment of addicts and that itreflects an “outdated treatmentphilosophy”,10 in particular giv-en its marked inconsistencieswith the New Zealand Bill ofRights Act 1990.11
As the Law Commission not-ed, “it is a fundamental commonlaw principle that medical treat-ment cannot be imposed upon acompetent adult without thatperson’s consent (or some otherlegal justification).”12 Even vol-untary agreement to compulsorytreatment is hard to justify, be-cause if a patient has the capaci-ty to opt-in to treatment theyshould also be able to opt-out.13
Perhaps of more concern withcompulsory detention is the lackof evidence that there is a thera-peutic benefit from long termdetention.14 The Ministry ofHealth concluded there is someevidence that compulsory treat-ment for “short periods” can beeffective in harm reduction butthat “there is little evidenceavailable to support its effective-ness in rehabilitating people orachieving long-term behaviouralchange”.15 The ability to hold anindividual in a treatment institu-tion beyond a point where thereis a harm reduction or rehabili-tation benefit does not sit com-
fortably with the right not to bearbitrarily arrested or detained.
The new proposed regimeThe SACAT Bill is premised on
the idea that the right to refusemedical treatment is not an ab-solute right, but that detentionand compulsory treatmentshould only be considered whenless restrictive options will notenable effective treatment. Theobjective of imposing compulso-ry treatment on a patient is tofacilitate the stabilisation of thepatient through medically man-aged withdrawal, and if possible,restore the patient’s capacity tomake informed decisions abouttreatment and give them an op-portunity to engage in voluntarytreatment.16 The SACAT Bill ef-fectively repeals the ability of apatient to voluntarily submit tocompulsory care.
In line with these objectives,the SACAT Bill shortens the max-imum period of detention to 56days17 and narrows the circum-stances in which an individualcan be subject to compulsorytreatment. The criteria for com-pulsory treatment now mandatethat treatment must be ‘neces-sary’ (rather than simply ‘expe-dient’) and there is no longer anyreference to the interests of rela-tives or other persons who maybe impacted by the patient’s ad-diction.
What is necessary is that theindividual has a ‘severe sub-stance addiction’; that is, thatthey compulsively use a sub-stance with such severity that itposes a serious danger to theirhealth or safety and seriously di-minishes their ability to care forthemselves.18 The new regimedoes not retain the concept forextended leave of absence fromtreatment,19 so a patient cannotbe returned to care sometime af-ter they have finished treatmentby a simplified revocation ofleave process.
The SACAT Bill also pre-scribes significant proceduralchanges which allow for the de-tention of a person before an or-der is made. Any person aged 18years or over may apply to theMinistry of Health for an assess-ment of another person accom-panied by a medical certificatefrom a medical practitioner or, ifa medical certificate cannot beobtained, a memorandum froma designated health profession-al.20 The matter is then referredto an approved specialist whocan impose care on the patientby executing a compulsory treat-ment certificate.21 Importantly,an approved specialist need not
be a medical practitioner. Rath-er, they must be a health profes-sional whom the Ministry ofHealth is satisfied has significantexperience in the treatment ofsevere substance addictions andis suitably qualified to conductspecialist assessments and re-views.
ConclusionAs accepted by both the Law
Commission and the Ministry ofHealth, the ADA Act regime forcompulsory treatment of addic-tion is out-dated and not fit forpurpose. Shortening the maxi-mum period of detention andnarrowing the circumstances inwhich an individual can be sub-ject to compulsory treatmentgoes a long way to addressingthis. What will need to be re-solved over time is the Courts’willingness to grant compulsoryorders where a patient with ap-parent capacity to make deci-sions objects to treatment, butthe Court and expert health pro-fessionals considers that objec-tion to be actually part of theaddiction from which the pa-tient suffers.
In their report the Health Se-lect Committee has recom-mended that the operation andeffectiveness of the SACAT Billbe reviewed within 3 years and 6months of the Bill coming intoforce. This is suggested in light ofthe Ombudsman’s concern thatthe bill breaches the UN Con-vention of the Rights of Personswith Disabilities. It will also al-low health professionals to as-sess whether the SACAT Bill hasresolved the difficulties with theADA Act, or simply replacedthem with a new set of problems.What can be said now is that thenew regime will better reflectboth the legal axioms as to therights of the individual and thepractical (even if anecdotal) evi-dence that rehabilitation treat-ment for addiction is moreeffective when undertaken on avoluntary basis.
1 Scoop Media, 8 December 2016,“Bill to Replace Alcohol and DrugAddiction Act Introduced”.
2 Pursuant to s 3 of the ADA, a per-son is an addict (in this article ‘ad-dict’ and ‘alcoholic’ aresynonymous) if their addiction (or“persistent and excessive indul-gence” in the case of alcohol) “iscausing or is likely to cause seri-ous injury to his health or is asource of harm, suffering, or seri-ous annoyance to others orrenders him incapable of properlymanaging himself or his affairs”.
3 Section 8 ADA Act. 4 Section 9 ADA Act. 5 Section 8(4) ADA Act. 6 Section 9(1) ADA Act. 7 Section 9(6) ADA Act. 8 Section 9(7) ADA Act. 9 Section 17(1) ADA Act.10 Ministry of Health, Regulatory Im-
pact Statement: Substance Addic-tion (Compulsory Assessment andTreatment Bill)(December 2015),at paragraph 10
11 A situation brought into sharp fo-cus when the ADA Act is com-pared to the Mental Health(Compulsory Assessment andTreatment) Act 1992.
12 NZLC, Report 118 “CompulsoryTreatment for Substance Depend-ence – A Review of the Alcoholismand Drug Addiction Act 1966”2010, at paragraph 3.3 (see alsos.11 New Zealand Bill of Rights Act1990)
13 NZLC, Report 118 “CompulsoryTreatment for Substance Depend-ence – A Review of the Alcoholismand Drug Addiction Act 1966”2010, at paragraph 5.45.
14 NZLC, above n 15, at paragraph2.41.
15 Ministry of Health, above n24, atparagraph 25
16 SACAT Bill, clause 35.17 SACAT Bill, clause 32(2). Note,
however, that clause 32 permitsthe extension of the order by a fur-ther 56 days if the court is satisfiedthat the criteria for compulsorytreatment continue to be met andthere are reasonable grounds tobelieve that the patient suffersfrom a brain injury.
18 SACAT Bill, clause 4(1)(b).19 There are limited circumstances
for leave including on compas-sionate grounds and for medicaltreatment (SACAT Bill clause 39).
20 SACAT Bill, clause 14.21 SACAT Bill, clauses 11(1) & 23.
Alcohol and other drugs: a new regime for compulsory treatment
Counsel in Concert is preparing for its end of year concert on 13 December.Any singing lawyers and experienced orchestral musicians would be warmlywelcomed. Choir rehearsals began on Tuesday 27 September at Crown Law.For further information please contact: [email protected]
Counsel in Concert – seeking legal musicians
DOWN1. Get on a governing body (5)2. Express service unit (3)3. Bound to leave something out (4)4. Concerted movement put some-
thing on a firm basis (9)5. He may be involved in a row (7)8. New arrivals, we hear, at the docks
(6)11. Useless as a costermonger without
stock (9)13. Not quite out of St. Malo (6)14. Be fond of and look after (4,3)16. Stadium takes an age to erect (5)18. Might be in or even out (4)20. Reserved for the cast (3)
ACROSS6. Swift seller (3,4)7. He refuses to settle (5)9. The time in which the race was
run (3)10. Capital charge not dealt with in
lower courts? (5,4)12. Wrong way to make wealth! (5,3,3)15. Raiment last altered for an old
language teacher (5,6)17. It is clear in composition, and
practical (9)19. Not against the professional (3)21. One is upset by such a din (5)22. Quite different people have it in
common (7)
DOWN1. Cunning (5)2. Deed (3)3. Enthusiasm (4)4. Subtraction (9)5. Incomplete (7)8. Forsake (6)11. Ugliness (9)13. Lengthen (6)14. Interpret (7)16. Lax (5)18. Finished (4)20. Pledge (3)
ACROSS
6. Expedite (7)
7. Exclude (5)
9. Ancient (3)
10. Make thin (9)
12. Submissive (11)
15. Counsel (11)
17. Fellowship (9)
19. Badly (3)
21. Oneness (5)
22. Exult (7)
Cryptic Clues
Quick Clues
PRACTISING WELL
Chaplain, Julia Coleman, 027 285 9115You 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.
COUNCIL BRIEF CROSSWORD
Council Brief [email protected] November Council Brief – Tuesday 25 October 2016
In two earlier articles I haveurged on readers my belief
that Judges would be justified inbreaking away from strictreliance on previous decisions,in an attempt to achieve promptand fair outcomes. Underliningthis proposal is of course theembarrassment I think we all feelabout the overwhelming cost ofjustice to the ordinary litigant.
This of course is by no means aproblem specific to New Zealand.In fact for a small country with alimited pool of lawyers I think ourjustice system achieves morethan might be expected. Howev-er, comparing our Court levelswith those in Australia, the USand the UK, I sometimes wonderif we are overdoing it. Those oth-er countries all have Magistrate’sCourts, or their equivalent, whichdeal swiftly with minor crime andcivil cases – thus leaving the morecomplex matters to highercourts. Here however we expectour District Court Judges (By def-inition practitioners of experi-ence and legal ability) to handle ahuge amount of minor workwhich in other countries theywould not have to do. This obvi-ously increases the burden of “se-rious” litigation to be coped withby them in the time left for it. Ialso have a feeling – though nogrounds for it – that their growingexperience in complicated mat-ters (to come from sheer continu-al practice) may risk falling back.
Anyway, the result is that wehave four levels of courts – Dis-trict, High, Appeal and Supreme,whereas in the other countriesmentioned above there are five.Australia (best known to me) andthe US also have huge waves of
litigation to be sorted out Stateby State to Court of Appeal stage,before leave for the highest courtmay be sought. This creates astrict filter to keep out mattersnot of general public interest. Inthe UK the Supreme Court, (pre-viously the House of Lords) dealslikewise with the top of the pyra-mid. The whole structure inthose countries arises throughfive levels of complexity andpractice. But here in my view thelowest level is doing too much,and the work in the three levelsabove is too squashed together.
In Australia appeals from theDistrict Court go straight to theCourt of Appeal – not to the HighCourt (save for trials on indict-ment) as here. I note in passingthat the superior courts have de-vised a question trail to be put toDistrict Court juries – surely thefirst time that Judges in any courthave imposed practice rules oncourts below, diminishing the tra-ditional control which each judgeshould exercise in their owncourt. However, going back toAustralia, the High Court (therecalled the Supreme but the sameanimal) is left without an appel-late function and dealing onlywith nisi prius cases (as surely itshould). It also operates in divi-sions – crime, common law, equi-ty, commercial – but we simply donot have the personnel to do this.However, I see that Court as con-centrating the work efficientlyand well to the most appropriateform of adjudication for eachcase. I know we are not NewSouth Wales, with over 2000 bar-risters in Sydney, not permitted ashere to do solicitor’s work, andthe pool of judges there is wideindeed. But the consequence ofcourse from our system is thatonce you get clear of the HighCourt (subject to leave barriers),cases are dealt with in Wellingtonbetween the Court of Appeal andthe Supreme Court, with Judgesoccasionally swapped from one tothe other – not downwards – andwith the greatest of respect I can-
not see any real intellectual differ-ence in the questions to be an-swered in both those courts, andperhaps in the ability of each todeal with them. This is not a criti-cism but simply a comment onhow cases of similar complexityhave not come from differentState systems, over whom someregulated findings can be placed,but simply because our top Courtis just down the road. I have toadmit being influenced in mythinking by the abolition of ourcivil appeals to the Privy Council,which I, having conducted severalappeals there in the old days, sawas an efficient and cheap structurewhich often brought a welcomefresh outlook to the cases before it.
Our Judges are not to beblamed for this (as far as I know)because it was the nationalist sen-timent in our country which ena-bled the government to abolishthe Privy Council in 2002 and sub-stitute our new Supreme Court.Oddly enough it was the Maoribloc who held out against thechange, for they believed that theQueen through her Privy Council-lors had a special responsibility tothem. However, with all respect tocurrent Judges, I am convincedthat the change not only in-creased our expenses exponen-tially but also squashed down ourfour levels of Courts by imposingthe new level at the top. Also inpoint must be the fact of the smallpool of suitable barristers or solic-itors available for Court appoint-ments in this country. Despitethis we have set up four levels,with, I would dare to suggest, toomuch work on the lower level andnot enough on the top.
Underlying everything must bethe government’s duty to the citi-zen. The greatest gift of democra-cy must be an available courtsystem. The number of levelshere through which the litigantmust climb must be minimised.We are not the US or even Austral-ia. At the moment we are makingaccess to justice impossible formost of our population.
Opinion COUNCIL BRIEF, OCTOBER 2016 7
Is there too much law?John Burn is a retired barristerwith over 20 years at theChristchurch Bar and then over 20years at the New South Wales Bar,now living back in Christchurch.This is the final article in a series ofthree. Previous instalments werepublished in the August andSeptember issues of Council Brief.
By John Burn
COUNCIL BRIEFThe monthly newspaper of theWellington Branch NZ Law Society
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Sunday competitionsJuvenile Delinquency third place Roger Mori Michael DixonJuvenile Delinquency runners up Nigel Stirling Richard PryceJuvenile Delinquency winners Michael Fisher Kevin Pearson
Distress Foursomes third place Peter Quinn Michael SweeneyDistress Foursomes runners up Fred Thorp Mark ReillyDistress Foursomes winners Geoff Baxter Sean Kelly
Qualifying round competitionsOpen Teams Match Runners up – Randoms 299 James Aitken, Brent Weenink, Tim Power, Dan ParkerOpen Teams Match Winners – Naki Boys 297 Gavin White, Geoff Shearer, Brett Gould, Chris Cargill
District Teams Match Runners up – Wellington 1 308 John McCardle, Peter Quinn, Don Breaden, Peter JenkinDistrict Teams Match Winners – Waikato/BoP 307 Michael Dixon, Ron Backhouse, Mark Hammond, Richard Pryce
Highest Net Score – 160 Sinclair Prize Julien LeysLowest Net Score – 64 Ross Morpeth Trophy Alice Nunn
Highest Stableford Points Runner up – 41 David PageHighest Stableford Points winner LexisNexis Trophy Alex MacDuff
Gatley fourth place Simon PoundGatley third place Roger MoriGatley second place Ross CrottyGatley winner Tony Nolan
Cracking the Glass Ceiling fourth Laura ClewsCracking the Glass Ceiling third Tenille BurnsideCracking the Glass Ceiling runner up Morgan BradyCracking the Glass Ceiling winner Alice Nunn
Matchplay competitionsTally Ho Flight runner up David JonesTally Ho Flight winner Mark KellyTally Ho runner up Jon OlphertTally Ho winner Tom Ennis Trophy Jonathan Temm
Legal Aid Flight runner up Jim KilpatrickLegal Aid Flight winner Ben VanderkolkLegal Aid runner up Richard LangeLegal Aid winner Tim Rainey
Fidelity Flight runner up Johnny FarquarFidelity Flight winner Phil SheatFidelity runner up John HornerFidelity Flight Winner Fred Thorp
They Also Serve Flight runner up Simon ClarkThey Also Serve Flight winner Dean PalmerThey Also Serve runner up David ButlerThey Also Serve winner Michael Lucas
They Have No Time to Stand Flight runner up Michael RiordanThey Have No Time to Stand Flight winner Peter QuinnThey Have No Time to Stand runner up Chris BlairThey Have No Time to Stand winner David Smith
Careless Drivers Flight runner up Mark HammondCareless Drivers Flight winner Sean KellyCareless Drivers runner up Hugh LeabournCareless Drivers winner Geoff Baxter
Dorrington Handicap Flight runner up Steve WinterDorrington Handicap Flight winner Max SimpkinsDorrington Handicap runner up John McCardleDorrington Handicap winner Paul Fisher
Pauper’s Appeal Flight runner up Geaff ShearerPauper’s Appeal Flight winner Brett GouldPauper’s Appeal runner up James AitkenPauper’s Appeal winner Julian Long
Ancient Lights Flight runner up Jieran LomasAncient Lights Flight winner Gavin WhiteAncient Lights runner up John BeaumontAncient Lights winner Brian Blackwood Trophy Adam McDonald
Devil’s Own Flight runner up Greg KeeneDevil’s Own Flight winner Dick Kearney Cup Tim PowerDevil’s Own fourth Michael CochraneDevil’s Own third Chris CargillDevil’s Own runner up McBride Cup Alex MacDuffDevil’s Own winner Devil’s Own Trophy Ron Backhouse
Devil’s Own full results
COUNCIL BRIEF, OCTOBER 20168 Notices
Litigation LawyerMain Street Legal LimitedBarristers and SolicitorsUPPER HUTT
We are looking for a lawyer with some experience in criminal, family orcivil litigation.
This position requires the ability to work both independently and within ateam environment. A lot of the work would be undertaken on Legal Aidand therefore preference will be given to those applicants who already haveprovider status with Legal Aid. Supervision will be provided.
For more details regarding our firm visit our website:www.mainstreetlegal.co.nz
Written applications, with written curriculum vitae and referees, should beemailed to: [email protected] or marked confidential andforwarded to:
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Attention John Gwilliam
All applications wll be treated as confidential.
Closing date for applications is Friday 14 October 2016.
A field of 106 players – including 13 first timers – took part in the 82ndDevil’s Own Golf Tournament played at the Manawatu Golf Clubcourse at Hokowhitu from 23-25 September 2016.
Qualifying round – Friday afternoonAlice Nunn from Hamilton was the top qualifier on Friday after-
noon with a net score of 64 to win the Ross Morpeth Trophy.Alex MacDuff from Auckland was the winner of the Lexis Nexis
Trophy for highest stableford points.Julien Leys from Auckland was awarded the Sinclair prize for the
highest net score of 160.The Waikato/BoP team of Michael Dixon, Ron Backhouse, Mark
Hammond and Richard Pryce won the Perpetual Guardian DistrictTeams Match competition.
Runners up in the District Teams Match competition was theWellington team of John McCardle, Peter Quinn, Don Breaden andPeter Jenkin
Devil’s Own Championship – SundayThe semi–finalists were Michael Cochrane from Palmerston
North and Alex MacDuff from Auckland, and Chris Cargill fromTaupo and Ron Backhouse from Hamilton.
The finalists were Alex MacDuff and Ron Backhouse. Ron won thefinal to win the Devil’s Own Trophy and as runner up Alex receivedthe Jim McBride Cup.
Other trophy winnersAlice Nunn was the winner of the women’s competition.Tim Power was the winner of the Devil’s Own flight and the Dick
Kearney Memorial Cup.Adam MacDonald was the winner of the Ancient Lights division
and the Brian Blackwood Memorial Trophy.Jonathan Temm was again the winner of the Tally Ho division and
the Tom Ennis Memorial Trophy.Tony Nolan was the winner of the Gatley competition and the
recipient of the Gatley Tankard.
More than 100 lawyer golfers enjoythe 2016 Devil’s Own golf tournament
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Devil’s Own golf
Ron Backhouse, second from right, was the overall winner of the Devil’s Own Trophy. Runner-up Alex MacDuff is to his right, andsemi-finalists Michael Cochrane and Chris Cargill are left and right.
Ross Crotty, Richard Howie and Madeleine Harris. Tim Power, Chris Cargill, Michael Kensington and Tom Broadmore.
Michael Gould, Julian Long, Simon Badger and Brett Gould. Ben Frampton, Julian Long, Greg Keene andMichael Riordan.
Hadleigh Brown and Jimmy Sinclair.
Alex MacDuff and Dan Parker.
Chris Blair, David Smith, MichaelRiordan and Peter Quinn.
Peter Jenkin, Tom Broadmore, Roger Mori andMichael Dixon.
Richard Lange, Tim Rainey andBen Vanderkolk.
David Butler, Dean Palmer, Michael Lucas andSimon Clark.
Brett Abraham, Dean Palmer, Nigel Stirling and Michael Lucas.
Max Simpkins, Steve Winter, Paul Fisher and John McCardle.
The Devil’s Own organising committeeare very grateful to sponsors of thetournament: Hyundai, ASB, LexisNexis,Elizabeth Arden, Good Health, Triumphand Disaster, Mainprice King, Appservand Fuji Xerox.
Thanks to sponsors
