Hon PHIL GOFF (Minister of Defence) Link to this
I move, That the Lawyers and Conveyancers Bill be now read a third time. This bill is a cornerstone of the reforms of legal services being undertaken by this Government. It removes unnecessary regulation from the legal services industry and replaces it with a more efficient regulatory framework that will give the public greater confidence in the legal profession.
The bill’s purpose is to maintain public confidence in the provision of legal services, to protect consumers, and to recognise the status of the professions that provide them. The Government has a vital interest in the regulation of the legal profession, as the quality of lawyers’ services is critical to justice and to the maintenance of the rule of law. The impetus for reform of the legal profession came from the New Zealand Law Society itself, which sought a more responsive regulatory structure than the Law Practitioners Act 1982 provided. The reforms largely follow the model proposed by the New Zealand Law Society.
I would like to acknowledge the many hours of work that the Law Society has dedicated to the development of this bill, and most particularly, the patience with which it has awaited its enactment. In particular I mention Ian Haynes, who first came to see me as president of the Law Society about this reform when I was Labour spokesperson on justice in the 1990s. That is how long this has been around. I also acknowledge Christine Grice, past president of the society, Chris Darlow, the current president, and Alan Ritchie, the Executive Director of the New Zealand Law Society, and note their tireless efforts to see this bill through to conclusion. I also acknowledge the huge contribution made to this bill by Michelle Vaughan and her team at the Ministry of Justice, and the work done by the Chief Parliamentary Counsel, Walter Iles QC, who is now retired.
The introduction of the occupation of conveyancers has its origins in the 1997 Conveyancers Bill that I introduced into this House, because the then monopoly on conveyancing and scale charges together meant that ordinary New Zealanders were, in my view, paying far too much for this work. Licensed conveyancers exist in most of the Australian states and in the United Kingdom. Their presence in those jurisdictions has reduced the costs, but most certainly has not reduced the quality of conveyancing, and the work they have done has been particularly in the residential market. The simple threat of competition has already seen in this country over previous years a marked improvement through lower costs. Consumers will now have the choice of who carries out their conveyancing work for them, and as always, they will benefit from a market where there is competition, rather than a monopoly supplier.
For the legal profession the bill offers a modern regulatory environment. The federal structure of the statutory district law societies will be dismantled. District law societies can continue to exist as representative bodies offering services to members, if members opt to support them. The New Zealand Law Society will become the regulatory arm of the legal profession. It will be charged with developing the rules that govern the practice of law. A similar body will be formed for conveyancers. The societies will have responsibility for practice rules on matters such as professional conduct, trust account rules, and indemnity insurance. But the rules must be subject to consultation with the profession, and will require approval by the Minister.
This bill will create flexible professional environment for lawyers and licensed conveyancers, while at the same time protect the public from negligent or incompetent lawyers or licensed conveyancers. Many areas of work traditionally reserved for lawyers will be opened up to greater competition. Many of the consumers will have greater choice about where, and from whom, they purchase their legal services. Where previously only lawyers have been permitted to practice, either on their own account, or in partnerships, lawyers and conveyancers will be able to practice in incorporated firms. That will help the two professions to respond to the changing needs of consumers and suppliers in the legal services market.
The Government has not agreed to calls for multidisciplinary practices, and the Law Society itself does not support that. We will, however, continue to monitor overseas developments. The bill significantly improves the existing complaints and discipline regimes for lawyers. Many criticisms have been made over the years of the current disciplinary system with its focus on professional misconduct rather than providing an appropriate mechanism by which consumers can complain and seek redress. The federal structure of the New Zealand Law Society itself means inconsistencies about the way in which complaints have been dealt with across districts.
The bill will provide a far more efficient and independent complaints process. The focus is on fairness and transparency for all parties. The most significant reform in this area, I believe, is the appointment of an independent legal complaints review officer, who will assume an ombudsman-like role in the hearing of complaints against lawyers and conveyancers.
This is an important bill, both for the public and for legal services providers. The introduction of licensed conveyancers is significant. The new occupational framework for lawyers and conveyancers is an excellent example of co-regulation at work. It combines the benefits of industry self-regulation—that is, flexibility, innovation, and industry buy-in—with sufficient regulatory oversight to maintain consumer confidence. The reforms contained in the bill are fundamental and overdue.
I am pleased to see that there has been very strong support for the bill across the House. Again, I thank the Law Society for its forbearance and for its efforts to ensure that we now have this new structure covering the activities of lawyers and of the new profession of conveyancers. I commend the bill to the House.
Dr RICHARD WORTH (National) Link to this
The previous speaker fairly and fully summarised the merits of the legislation. He also noted its drawn-out legislative history. It is coming up to 3 years since the bill was introduced to Parliament. That, from any point of view, is a long period of lawmaking.
The bill was introduced on 24 June 2003, had its first reading a month later, then was referred to the Justice and Electoral Committee, where it was the subject of substantial submissions. I would like to pay tribute, as the previous speaker did, to the work of the select committee, and also to the quality of the submissions that were made. It came back from that committee, not within the customary 6-month time frame, but a little later than that—in fact, something just short of a year. It had its second reading on 29 March 2005. It is fair to say that the Committee of the whole House on the bill was much delayed. Despite efforts by a number of us to see the legislative programme advanced more quickly, that seemed in vain, so it was not until this week that the Committee stage was completed. That is a pity, because the delay caused quite a lot of tension. It created difficulties for the Government and for the Opposition, and it created tensions within the New Zealand Law Society, and probably, I surmise, within the various districts. But here it is, and tonight we will see the legislation progressed.
The previous speaker referred to the purposes of the bill, but not completely. I will start by dealing with that aspect, because the purposes of the bill are framed within the provisions that are to be enacted this evening. First, they are to maintain public confidence in the provision of legal services and conveyancing services. Second, they are to protect the consumers of legal services and conveyancing services. And, third, they are to recognise the status of the legal profession, and to establish the new profession of conveyancing practitioner. The bill is called the Lawyers and Conveyancers Bill because of the significant emphasis in the legislation—as the previous speaker said—in the setting up of the new conveyancing practitioner profession.
I would not be true to the cause, on behalf of National, if I did not note that we harbour a degree of reservation about the legislation. That said, we have supported it throughout its passage. The bill comprises 350 clauses and seven schedules, so it is weighty legislation on any basis in terms of the legislation that comes to Parliament. Although National supports the legislation, I would like to note briefly some of our reservations. Those reservations are expressed in the bill as reported back from the Justice and Electoral Committee. However, in the way the parliamentary process works, that commentary has now gone and will likely never be revisited. Certainly, the copy of the bill that is before Parliament today—the copy that is available to politicians to make comments on—is not preceded by the commentary. I will, therefore, indicate the key matters that have been of concern to us.
First are the aspects relating to the preservation of the fidelity fund. I have always thought it strange that one should subsidise one’s fraudulent competitors in business. So it has been the case that a number of occupational groupings have been persuaded—and have been able to persuade this Parliament—that fidelity funds should no longer continue. We have seen the fund abolished for most other occupations, including chartered accountants, motor vehicle dealers, and sharebrokers. Just as the fund has gone for them, so it seems to me that it should be gone for lawyers. The reason for that view is that the fund had its place when lawyers were actively involved in mortgage lending. That practice is pretty much gone. It is a rarity to find lawyers involved in the advancing of sums of money by way of second or third mortgage through their trust accounts to other clients. That is the first matter we would like to have seen changed in the bill in these closing processes.
The second point—and it will come as no surprise either to the current Minister of Justice or to the previous Minister of Justice—relates to the New Zealand Society of Conveyancers. It is not an issue about opening up the so-called conveyancing monopoly—it is not really about that at all. It is more about the issue—as we heard in the evidence offered to the select committee—that the New Zealand Society of Conveyancers might comprise, say, 10 people. I truly doubt the justification for a highly prescriptive statutory regime for such limited numbers. Of course, there is the very real aspect that it will be impossible for a fidelity fund to be provided from such a small occupational grouping. It will not be achieved by way of insurance; it certainly will not be achieved by way of contributions from various members.
A third point is that National had concerns about reserved areas of work, but I think that that issue has now been set to rights with the skill of parliamentary counsel and, in particular, of Mr Iles, who has been engaged on this mammoth task. We were, and remain, completely unpersuaded about the new complaints and discipline structure, but I am bound to say, as the previous speaker also said, that what has been done represents a significant improvement on the present system. I had the opportunity in the Committee stage to suggest what National believes would have been a better system, and also to accentuate something that I do not think sufficient is made of—that is, the role that lawyers have as officers of the court, with obligations to the court. I think it was a retrograde step to rank arrangements in respect of obligation, which has seen officers of the High Court, I would say, downgraded.
There will always be practical aspects to the implementation of legislation, and National remains concerned about those rule-making power provisions. We remain concerned that issues such as compulsory legal education and the indemnity regime are to be left to rule-making powers. It is, of course, to be the case that the Minister of Justice will be involved in such rule-making powers. I am not aware of comparable powers held by a Minister of State in respect of other professional organisations, and it is not to be assumed that the Minister will have any better view than the New Zealand Law Society on rule-making issues, or that he or she will be better able to strike a balance between the interests of the legal profession and the interests of the consumer.
The previous speaker referred to a number of people who had made substantial contributions to this legislation, including officials within the ministry. That is quite proper, but those he listed would not represent an exhaustive list of contributors who will see this legislation passed. He was right to identify past presidents of the New Zealand Law Society, but these issues go back far beyond Mr Haynes. Perhaps they start with people like Judith Potter, a president of the New Zealand Law Society who is now a senior judge. It is very much correct, though, to acknowledge the contribution of Mr Ritchie, who has had to deal with district law societies, in his unflagging and conscientious way, to produce an outcome that basically sees those districts lose their statutory status and assume another—and, we hope, equivalently effective—form. So I, too, commend this legislation and its passage, on behalf of National.
RUSSELL FAIRBROTHER (Labour) Link to this
I support the passing of this bill, and I commend the Minister who spoke on the third reading, the Hon Phil Goff. The bill recognises his diligent work back in the 1990s, his carrying it through as an Opposition MP, and his having the foresight to see the defects in the Law Society’s structure as it was and the need to bring the Law Society into the 21st century. That the bill has taken so long is not a criticism of the Hon Phil Goff but a credit to his foresight and perseverance.
On listening to the last speaker, who sometimes passes himself off as an advocate for the free market, I believe that it is ironic he said that the profession of conveyancers will never get off the ground. He argued that lawyers should not lose their right to convey, and that the creation of a separate profession is doomed to fail. Of course, the idea of a fidelity fund for conveyancers is to put them on the same footing as lawyers, and if the fidelity fund is initially very low, then that will give lawyers the trading advantage and they can capitalise on that.
However, if lawyers do not continue to meet, or even rise to meet, the market need for conveyancing that is both safe and economical, then the conveyancing profession will grow. Perhaps that will be at the expense of some of those expensive firms in the high towers we see in the city, and as that profession grows so will its fidelity fund. So there is a clear point of difference that the last speaker should have been welcoming rather than criticising.
One matter in this bill that I heartily endorse relates to the position of Senior Counsel. I have listened to the submissions to the Justice and Electoral Committee, and to the debates both at the select committee and in this House, and they carry the same old matters that have plagued the profession for as long as I have been in it. They are the mystique about Queen’s Counsel, the move to elitism rather than meritocracy, and the belief that if one is obsequious and obedient and has ability, one can rise in the profession, but if one is fearless and outspoken and has ability, one will be held back.
We can see an example of that in Tony Ellis, a barrister in Wellington, who has developed the law of human rights in the courts of this country like no other lawyer before him. He is outspoken and he is not ashamed to take judges head-on, but that is not a prescription for becoming a Queen’s Counsel. We saw recently the case of Robert Lithgow, a skilled litigator in the criminal field, previously employed on contract by the Crown Law Office and respected as an appellate lawyer, who sheeted home some home truths about underlying presentations and presumptions in the Court of Appeal in a recent New Zealand Law Journal article. Of course, that will not endear him to the process of elevation to Queen’s Counsel.
That is exactly what Kevin Ryan, one of Auckland’s better-known criminal barristers and QCs, has said. He fought for some 6 years to become a QC, but was refused and refused. He went on TV on one of the Sunday documentary programmes, wrote a book, and was eventually made a QC in 1998. He said, only 2½ years ago in 2003, that to become a QC was a question of who one knew, who one did not know, and whether one toed the party line.
Kevin Ryan, who had trodden on the toes of the Law Society and had even sued law societies, insisted the proposed new system should, instead, focus on how Senior Counsel are appointed. That point was picked up by Christine Grice, the previous president, who indicated that the appointment of Senior Counsel is a matter for the rules, which are yet to be developed.
But the argument—the folly of the vanity of Queen’s Counsel—is underscored if we look at our top court. The argument of those who criticise the abolition of Queen’s Counsel would have merit if only Queen’s Counsel held positions in our top court. Our Supreme Court has five judges. Until a few months ago three of them were not Queen’s Counsel. With the retirement of Sir Thomas Gault to run a golf club somewhere in Scotland, Justice Anderson became the replacement Supreme Court judge, and his appointment brought the number of Queen’s Counsel in that court to three. As I recall, Sir Kenneth Keith was not a Queen’s Counsel, either. So at one stage we had a Supreme Court that had only two Queen’s Counsel out of its five members.
We go to the Court of Appeal, which has six judges. In that court are two Queen’s Counsel and another four judges who are not Queen’s Counsel, and we should look at the quality of those four. In the time available to me I can only touch upon this, but we should look at Justice Susan Glazebrook, who has an MA (Hons) First Class, LLB (Hons), a Dip Bus (Finance) from Auckland University, and a PhD from Oxford University in French legal history. She worked at some firm called Simpson Grierson, was a member of commercial boards and Government advisory committees, was the president of the Bar Association in 1998, and was appointed to the Court of Appeal in May 2002. She cannot be a Queen’s Counsel because she did not go to the independent Bar.
Justice Hammond, who was the Dean of Law at the University of Auckland and was appointed as a High Court judge in 1992, cannot be a Queen’s Counsel because he was not a member of the independent Bar. We go on to Justice Robertson, who attended the University of Virginia and Otago University, and was a partner in a Dunedin law firm—which should not be held against him—and a Harkness Fellow in 1972-73. He has been a judge of the High Court and president of the Law Commission. He could not be a Queen’s Counsel because he did not follow the independent Bar.
So it is absolute vanity without substance to say that Queen’s Counsel add to the practice of law in New Zealand. The title of Senior Counsel, however, recognises that which is recognised at the Bar, and any experienced litigators, after sufficient recognition by judges, will be referred to as a Senior Counsel without having to take the appellation by way of “SC” after their name, because that is when it becomes a vanity rather than a merit recognition.
We will have a process that I trust will be more open for the appointment of Senior Counsel. It is a good thing that it is based on merit, and not the fallacy of the independent Bar. I say “the fallacy of the independent Bar” for this reason: there has been an argument advanced in this House—advanced, in fact, by some members of the independent Bar—that the New Zealand public needs an independent Bar to provide advice that is independent from the major law firms.
Well, it may need lawyers who are not part of major law firms to give independent advice, but members should look at the way barristers’ practices are sold. They are sold not on the mum and dad clients or the clients’ litigation but on the connections those barristers have with law firms, and that goodwill comes from the relationships they have with selected law firms. One attends Christmas parties, and some Queen’s Counsel or some barristers are there—though not all. So the fallacy that says the independent Bar is truly independent and fights fearlessly is long on tradition and short on fact.
In the short time available to me today I just want to endorse this bill. I want to recognise the good work of the Hon Phil Goff, who has brought this bill to fruition, and that of the Law Society. I also recognise the efforts of the Justice and Electoral Committee, which worked very hard on the bill throughout the last term. This bill will become law, and will convert into reality what has become the practice in New Zealand.
Finally, that reality is demonstrated most by the fact that many district law societies have been recognising the futility of continuing independently. Good law societies have been closing libraries for the last 8 years now because the move is towards centralisation, one central body, and specialisation, which is the world of the 21st century. This bill takes lawyers into the 21st century. It is a very good bill. It will be a very fine Act of Parliament, and I support it thoroughly.
CHRISTOPHER FINLAYSON (National) Link to this
As Dr Worth said, National supports the third reading of the Lawyers and Conveyancers Bill. In my opinion, it is generally a very good piece of legislation, although I think it is flawed in a number of respects.
First let me emphasise the positive points of the bill as it has come out of the Justice and Electoral Committee. First of all, Part 1 usefully states the fundamental obligations of lawyers and conveyancers, and I think it does so very clearly. That is a new provision and I welcome it. Secondly, there is the important and fundamental distinction between misconduct and unsatisfactory conduct, which is a welcome expansion of the general area of conduct in the Law Practitioners Act 1982. It is the unsatisfactory conduct of lawyers that causes so much grief to clients, even if it does not come within the category of professional misconduct.
Part 4 is at the very heart of the legislation and provides for the continuation of the New Zealand Law Society. As various speakers have said, district law societies will cease to exist, at least in their present statutory form. This is a move away from the old provincial model, which bedevils so many organisations in this country, and I welcome it. Other clauses in Part 4 are standard. They are repeats of what is in the 1982 Act and there is no magic in any of them.
I generally welcome the provisions of Part 7 that deal with discipline. The New Zealand Law Society is now responsible for maintaining a complaints service. The reasons it is important for the New Zealand Law Society to maintain this responsibility, rather than to have the task delegated to district law societies, are spelt out in clause 111—particularly, I emphasise, paragraphs (e) and (f). That will be the model to ensure throughout New Zealand both the consistency and the quality of the complaints service, and to provide assistance to lawyers standards committees and to the office of such committees. So to centralise the complaints service and to have that New Zealand Law Society overview, even if the standards committees operate in various parts of the country, will ensure that there is a national standard. The complaints procedures are much more flexible, and I emphasise that it is not just discipline that those committees will be concerned with but also solutions and remedies, which at the end of the day is what people want.
The Minister mentioned the establishment of the new office of Legal Complaints Review Officer. I personally questioned in the Committee stage the need for that, especially bearing in mind the other layers of review of decisions. But I accept that if the right person is appointed, that person could effectively operate as a kind of legal ombudsman. The tribunal remains, but its status is upgraded and that is no bad thing. Its procedures and powers remain basically the same.
Finally, I am still confused by clauses 243 to 247, which deal with certain jurisdictional matters, but I am rapidly learning in this place that raising jurisdictional points here is even more hopeless than raising jurisdictional arguments in the court.
Part 11 deals with certain miscellaneous provisions. I welcome the introduction of the conditional fee. I note that it will not apply to family and criminal work, or certain types of work under the Immigration Act. Hopefully, that will reduce reliance on legal aid for civil litigation. Finally, I note the dissolution of the district law societies and workable provisions for law libraries, and I express the hope that within the next 5 years the profession will grapple with this matter and provide a library service to the professions that is worthy of the 21st century, because the present set-up simply does not provide that.
Parts 2, 3, 6, 8, 9, and 10 substantially repeat what was in the 1982 Act and I am not going to waste any time on those. I briefly want to refer to what I consider are the flawed parts of the bill. The introduction of conveyancers is referred to in Part 2 and Part 5. From one point of view, as a litigator, I am reasonably relaxed about the concept of a conveyancer. I take the litigator’s view that it simply means there will be more people who can be sued for professional negligence, and that will mean more work. But is there really a need for conveyancers? I think we will have to wait and see, but I have my doubts.
Clause 104, which repeats the present section 61 of the Law Practitioners Act, with a change, is essentially meaningless. I am disappointed that the Committee did not pick up various submissions I made on that point, because it is an example of what often comes out of the House of Representatives—that is, meaningless drivel that lawyers then have to contend with over the years.
Of greater moment are clauses 105 and 106, which introduce Senior Counsel to replace Queen’s Counsel. After my contribution in the Committee stage, someone contacted me to say that in New South Wales there has been, over the years, a move away from the name Queen’s Counsel to Senior Counsel, and that it has not caused too much of an upset over there. Indeed, some Queen’s Counsel are converting and now want to be called Senior Counsel because it is the young hip thing to do and they do not want to appear fuddy-duddy. But it is not the name that worries me so much as the concept of independence. I do worry that what we have created here undermines the essential independence of the silk, particularly by allowing Senior Counsel to practise in law firms. That is a foolish move, and one that I think the House will have to revisit.
My Green Party colleague Mr Tanczos raised a very important matter—and it is a shame it was not properly dealt with in the Committee—that dealt with the State conferring a monopoly on a certain class of person. I think the time is coming, as I said in the Committee, when we will need to move away from the Attorney-General making these appointments in conjunction with the Law Society and the judges, to the judges, the Bar Association, and the Law Society looking at the question of appointments.
Generally, the bill is good legislation. It reflects the needs of the profession in the 21st century, and much more important than the profession, it reflects the needs of the public.
Finally, I join with both Minister Burton and Dr Worth in recognising those who have contributed to the passage of the bill. The ministry officials were mentioned by the Minister, as was Walter Iles. I should also mention Hugo Hoffman of Parliamentary Counsel Office, who has been responsible for the drafting and updating of the bill in recent days. I join with the Minister in his generous comments about the current President of the New Zealand Law Society, Chris Darlow, and his predecessors for their leadership during the time of transition. I particularly mention Alan Ritchie, the Executive Director of the Law Society, who has worked so hard on this matter for many, many years. He is the first to recognise that there is much more work to be done, and I certainly wish his society and him all the best in their endeavours over the next few years. In a rare display of bipartisanship and good manners, it is only fair to mention the Hon Mr Goff, who was Minister of Justice during the key stages of development of the bill. He, too, should be thanked for his efforts.
KATE WILKINSON (National) Link to this
When we have a bill that has 346 pages, 350 clauses, seven schedules, and a gestation period spanning several years; a bill that encompasses both litigators and non-litigators, that introduces a new breed of licensed conveyancers, that restructures law societies throughout, that provides the discipline and training for two professions, and that regulates the activities of lawyers and conveyancers; a bill of such enormity and such magnitude, it is no wonder that there may be some details with which some will take issue.
But we must look at this bill holistically, philosophically, and positively. As a conveyancing lawyer in my past life I know only too well that conveyancers think differently from litigators. It is no wonder that to organise lawyers has been likened to herding cats. From a philosophical point of view one could view this bill as an envy bill—as an attempt not to trivialise but certainly to underestimate the value of legal work undertaken by conveyancing lawyers. This bill deregulates conveyancing. But it does more than that. It says that licensed conveyancers can do any legal work except give advice relating to court and tribunal proceedings, and property relationship agreements. I do have some concerns that the aspects of the bill relating to conveyancing and licensed conveyancers will have the effect of lowering the respect that lawyers are held in, without necessarily increasing the respect for licensed conveyancers. We must not build up the profession of licensed conveyancers by bringing down the profession of lawyers.
For 26 years I have been advocating that conveyancing is not a rubber-stamping, tick-the-box exercise. It is becoming more and more complicated, it is involving more and more responsibility, and it is becoming more and more underestimated. I am not wishing to demean qualified licensed conveyancers in any way. I am merely trying to emphasise the fact that whoever does the work must be suitably qualified and experienced to do the work. Conveyancing involves an intricate knowledge of the law of contract. It involves an intricate knowledge of the Property Law Act and the Land Transfer Act, and of easements, leases, mortgages, guarantees, etc. It involves intricate knowledge of other legislation: the Resource Management Act, the Building Act, and even gasfitters, plumbers, fire safety, and electricians legislation. Also, it invariably involves knowledge of different ownership structures, company law, trust law, taxation law, and employment law.
Interestingly enough, under English law conveyancing is defined as the transfer of property, etc., but it expressly excludes wills. But under this new bill, wills will be included. Yet if one gets the will wrong, often it is too late, for obvious reasons, to redraft it and to try to work out what the testator’s intentions were. So licensed conveyancers now need to have an intricate knowledge of wills and associated legislation, such as the Family Protection Act, the Law Reform (Testamentary Promises) Act, and the Property (Relationships) Act.
It is simplistic therefore to suggest that licensed conveyancers will be involved only in straightforward residential property transfers. I do fear that lawyers and conveyancers are now thrown together under this bill into the same barrel, and accordingly it is imperative that robust codes of conduct be established, that appropriate rules and standards be made and maintained, and that they reflect the critical importance of maintaining the already good reputation of lawyers. I have said it before: we must not build up the conveyancing profession by bringing down the legal profession.
That brings me to the provisions relating to the two fidelity funds: one for the lawyers, the other for the licensed conveyancers. How many licensed conveyancers there will be is anyone’s guess, but as they are required to have their own fidelity fund, it will be important that there is a sufficient critical mass to enable them to set up a realistically-funded fidelity fund. In practical terms that may not be easy. But this bill places lawyers and conveyancers on the same level playing field, and one of the components of that level playing field is each profession having its own fidelity fund. This will not work if only one group, the lawyers, are in a position to realistically fund the fidelity scheme.
As the quid pro quo for this bill deregulating lawyers and removing their monopoly to practise conveyancing, lawyers will now be allowed, firstly, to incorporate and, secondly, to sell real estate, both previously prohibited under the Law Practitioners Act and the Real Estate Agents Act. Allowing incorporation merely brings lawyers into the 21st century in relation to business structures. Why should lawyers be orphaned as the only ones who must continue to practise in partnership, with its consequential joint and several liability?
One of the primary purposes of this bill is, as we have heard, to maintain confidence in the provision of legal services and conveyancing services, and to protect the consumers of legal services and conveyancing services. Allowing incorporation should not jeopardise either of those objectives. The public—the client—will still be protected against naughty and bad lawyers and against naughty and bad conveyancers by the usual laws of negligence and by the existence of the fidelity funds. Lawyers will not be able to hide behind the corporate veil completely.
It is important that the conveyancers’ fidelity fund is on a par with the lawyers’ one. Why should innocent, good lawyers give an unlimited guarantee for all other lawyers—for the bad lawyers? It is easy to argue, and I have done so in the past, especially when I personally contributed my $10,000 to the Renshaw Edwards fund. Times have changed since the Renshaw Edwards case. There are now fewer nominee mortgage companies, for a start, and the fund is now limited and capped.
It is critically important, when one is dealing with other people’s money, that every protection is afforded the consumer and the client. The fidelity fund goes some way towards doing this: the money is paid over to the lawyer or conveyancing practitioner, the money still belongs to the client, and the money must be paid to the client or as the client directs. There are no ifs or maybes—the rules are clear. They are strict, and so they must be in order to ensure that the integrity of, and confidence in, the legal profession is maintained; and so they must be in order to ensure that the integrity of, and confidence in, the conveyancing profession is earned. Deregulation of lawyers—and I know this represents only a portion of this bill—is fine, but only as long as there is no risk of any decrease in standards and no opportunity of any increase in the risk to the consumer.
HONE HARAWIRA (Māori Party—Te Tai Tokerau) Link to this
Some time ago, a feisty young Māori MP objected to the vesting of petroleum in Crown ownership, arguing that whether Māori knew about oil in 1840 was irrelevant. He argued that indigenous rights should not be locked into the time warp of colonisation, and he argued that the challenge for lawyers was not the exact interpretation of the law but a vision of how that law should be developed. That politician was Sir Apirana Ngata, and the time was 1937. Seventy years later, Sir Apirana’s words remind us that the true art of law is not just about working to the rules but also about delivering justice.
The Māori Party acknowledges the flourishing Māori legal profession for developing the skills of drafting, practising, and prosecuting law in the ways Ngata first spoke of. We recognise the help it gives to Māori politicians of all persuasions in promoting and advancing legislation through the House. We celebrate the fact that there are more than 1,200 Māori students enrolled in legal studies. That celebration, of course, is somewhat tempered by the fact that Māori make up less than 5 percent of the legal fraternity and 7 percent of the judges.
We have also heard a lot, during this debate, about how conveyancers and lawyers are supposed to act in the public interest, and I have to ask myself whether that is my public. Is “the public” that is referred to the people down at Charlie’s place in Panguru or my whanaunga out in Whangaruru? Are my brother and his whānau out in west Auckland part of this decision-making process, or my uncles and aunties in Te Hāpua? Or is it some other public that we refer to here? I have a strange feeling that my people are not the public that is often referred to when people talk about the public interest, and that worries me.
Then, when I look back into our history, I see that in 1841 a Mr William Spain was appointed as a commissioner to examine land claims in Wellington and Taranaki. Our tūpuna were presented with the remarkable, racist, and truly ludicrous spectacle of an English lawyer deciding who of Te Ātiawa had land rights and what constituted Te Ātiawa custom, and establishing a benchmark that bedevils many of the issues we face in the legislation before the House today. In fact, the whole matter would have been truly laughable were it not so tragic. Such is the basis of legal history in Aotearoa, which assumes that statute law that came on a sailing ship has more authority than laws that came by waka. And such is the basis of many of the legal problems we face today.
The real question, of course, in this bill, as in all other bills, is what obligation we have to respect Te Tiriti o Waitangi, because for all the hullabaloo that politicians raise about its historical importance, its constitutional authority, and its spiritual significance, the Treaty does not even rate a mention in the Lawyers and Conveyancers Bill. That is the case even though it was Te Tiriti o Waitangi that gave the Crown the right to set up a Government to establish laws in the first place. In return, the Crown was to guarantee and actively protect Māori authority over their lands, their fisheries, their forests, and other treasures, and to extend to them the status and rights of British citizens.
I was very interested, therefore, when on 15 February the Associate Minister in charge of Treaty of Waitangi Negotiations, the Hon Mita Ririnui, assured the House of the Government’s commitment to the Treaty being included in legislation. I was pleasantly surprised to hear that commitment, and I suggest that Minister Burton may want to have a conversation with his colleague in order to ensure they are both singing from the same song sheet. I make that point because it is due to the special constitutional status of Te Tiriti o Waitangi that the Māori Party will be introducing a paper to have an Oath of Allegiance to Te Tiriti o Waitangi included alongside the Oath of Allegiance to the Queen, in the Oaths Modernisation Bill.
The obligation to uphold the rule of law should require every lawyer to take formal education in Te Tiriti o Waitangi, its significance as the founding document of Aotearoa, its interpretation, and its application to current systems, policies, and events. That education should also include a look at the effects of colonisation, at the value of Māori perspective, and at partnership, land ownership, sovereignty, and social justice. It is heartening to see in the bill that the Council of Legal Education has chosen to recognise the aims, aspirations, and involvement of Māori as employees. We would hope that that can happen right across the legal fraternity. We commend the council for its work in that regard.
The Māori Party is pleased to see the bill reach the light of day, because it will mean the opening up of the closed-shop legal profession, and it will give our people protection from the legal sharks. We all shudder at the stories of lawyers acting as trustees and choosing court action over resolution, simply to fatten their wallets. But, in truth, it seems that legal sharks have always been part of the profession. Indeed, Sir Richard Malins, an English jurist, made this stark observation way back in 1878: “One cannot help regretting that where money is concerned, it is so much the rule to overlook moral obligations.”
Twenty years ago Moana Jackson presented a report entitled The Māori and the Criminal Justice System. One of his proposals was for a parallel criminal justice system for Māori. As we come into a time when politics is being dumbed down by the constant cry of one law for all, it is maybe time to look again at how the law embodies and protects cultural values. Mr Jackson reminds us that the law is never culturally neutral, and that legal ideals are always the product of a particular culture. He also proposes the view that one law for all should not mean one process for all but rather one justice for all. The Māori Party will demand that that justice includes the active involvement of whānau in all stages of the legal process.
I point out that as a person who has practised the law—although not being a lawyer—I can say that there is a lot of hoodoo about what it takes to practise law. In the same way, I believe there is probably a lot of hoodoo about what it takes to practise conveyancing. The Māori Party also has concerns that this is another law based on one profession sharing with another profession a role that extracts money from people who can ill afford it.