Lawyers and Conveyancers Amendment Bill

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I move, That the Lawyers and Conveyancers Amendment Bill be now read a first time. I intend to move that the bill be considered by the Justice and Electoral Committee. This bill amends the Lawyers and Conveyancers Act 2006. The amendments reform the regulation of the legal profession in New Zealand. The bill replaces the existing regulatory framework for lawyers with a co-regulatory regime that also covers the new profession of conveyancers created by the Act. The Act enables both professions to respond more effectively to the changing needs of consumers in the legal services market. The Act came into force on 1 August 2008, and it has been working well since its implementation. However, this bill makes an important change to the Act by restoring the title of Queen’s Counsel to the office currently known as Senior Counsel and some auxiliary changes to eligibility for that office. The bill also makes some minor amendments to enhance the functioning of the Act.

I will talk, first of all, about Part 1 of the bill, as it restores the title of Queen’s Counsel to the office currently known as Senior Counsel. The Lawyers and Conveyancers Act replaced the title of Queen’s Counsel with that of Senior Counsel. The Act also made a number of changes to expand eligibility for the rank, which now extends to lawyers in all forms of practice, including law firms. The bill will repeal that arrangement by reinstating the title of Queen’s Counsel and restricting eligibility in most cases to barristers sole rather than lawyers in partnerships or firms.

The title of Queen’s Counsel reflects the public purpose and status of this position. It underscores the historical link between Queen’s Counsel and the Crown, which has been established on the reputation of the rank in New Zealand and abroad. The rank identifies leading advocates in New Zealand and provides official recognition of excellence. In particular, it provides leadership to the legal profession and assists people to resolve disputes by identifying legal counsel.

Eligibility for appointment of Queen’s Counsel will be limited to barristers sole in most cases. This returns the rank to its original form, and recognises and protects the independence of Queen’s Counsel, enhancing their ability to accept instructions and to provide frank, independent, and objective legal advice. To maintain that independence, Queen’s Counsel who are providing regulated legal services, as defined by the Lawyers and Conveyancers Act, will continue to practise as barristers sole, or they will be deemed to have surrendered the title.

It is intended that the amendments will preserve the existing arrangements for those Queen’s Counsel and Senior Counsel who have entered with other lawyers in partnership or incorporated law firms since the Lawyers and Conveyancers Act came into force. Clause 6 of the bill, containing new sections 118A and 118B, may require minor amendments to ensure that those purposes are accurately reflected.

However, the amendments also preserve the Governor-General’s power to appoint, from time to time, other lawyers, including litigators in law firms, as Queen’s Counsel in recognition of their extraordinary contributions to the field of law. This is consistent with the established practice of occasionally appointing exceptional lawyers in government and parliamentary counsel as Queen’s Counsel, although they are not members of the independent Bar.

Part 2 of the bill makes minor technical amendments to the Act. First, the bill amends the definition of “relative” to include a reference to a grandchild of a lawyer or conveyancing practitioner. This will enable grandchildren to be shareholders of an incorporated law firm or incorporated conveyancing firm, or, if a minor, to be a beneficiary of a qualifying trust.

Secondly, the bill permits a qualifying trust to be a non-voting shareholder in an incorporated law firm or an incorporated conveyancing firm. A “qualifying trust” means a trust in which each beneficiary is a relative of one or more of the trustees, and each trustee, for an incorporated conveyancing firm, is a conveyancing practitioner, or, for an incorporated law firm, is a lawyer who is actively involved in the practice. The Act is quite specific as to who may be a shareholder of an incorporated law firm or conveyancing firm. This ensures lawyer or conveyancer control of an incorporated firm, which is important to maintain professional standards. The use of a qualifying trust as a vehicle for shareholding avoids the need for proliferation of relatives holding shares in their own right. It will also enable children and grandchildren who are minors to benefit from income through distributions from the trust.

Thirdly, the bill extends the power of attorney that those in sole practice must give to authorise another to have the power to conduct the practice through any periods where the sole practitioner is an undischarged bankrupt. The Act requires a sole practitioner to issue a power of attorney that enables the power to conduct the practice in a range of circumstances. These do not include the bankruptcy of a sole practitioner. Instead, where the practitioner is an undischarged bankrupt, a process needs to be instigated by either the New Zealand Law Society or the New Zealand Society of Conveyancers with the New Zealand Lawyers and Conveyancers Disciplinary Tribunal to have the practitioner struck off or suspended before the power of attorney provisions can apply and the practice can be continued. The amendment will remove the need for that cumbersome process, and will provide a more simplified and streamlined process in those difficult circumstances. That will also serve clients better, as it will be an immediate response to the situation and will enable client matters to be managed more effectively.

Finally, the bill makes a technical amendment to the complaints procedure. One of the reforms introduced by the Act is a new, three-tiered complaints and disciplinary process. Complaints are usually heard in the first instance by locally run standards committees. The decisions or actions of that committee can then be reviewed by the Legal Complaints Review Officer. The bill amends the notice period for lodging a review with the Legal Complaints Review Officer of a standards committee decision. It provides that an application for review must be lodged within a 30-day period, which begins to run when the applicant is notified of the committee’s decision. The date of notification is presumed to have occurred 5 days after the committee’s decision. This amendment will ensure there is sufficient time for applicants to lodge a review application if they wish to do so. I commend this bill to the House.

CHARLES CHAUVEL (Labour) Link to this

Part 2 of the Lawyers and Conveyancers Amendment Bill, which has just been described by the Associate Minister of Justice, contains some quite sensible provisions, but because of the appalling provisions in Part 1, there is no way that Labour can support this legislation. With this bill, the National - ACT - Māori Party - Peter Dunne Government leads us boldly back into the 19th century. We go cringing back to our colonial origins.

PAUL QUINN (National) Link to this

It gives me great pleasure to rise to speak in support of the Lawyers and Conveyancers Amendment Bill. I agree with the previous speaker, Charles Chauvel, to the extent that the second part of this bill is excellent legislation. I disagree with him in respect of the first part of the legislation and his comments relating to the reinstatement of Queen’s Counsel.

I will spend my contribution to the debate sharing with the House my experiences from a practical point of view. I know that dear old Charles has his own views. I had better call him Charles Chauvel before someone raises a point of order, but I am sure he will not mind me calling him Charles.

Hon DAVID PARKER (Labour) Link to this

I take much pleasure in following the Dennis Denuto of the National Party, Paul Quinn. For anyone who has ever had the pleasure of seeing The Castle, a wonderful Australian comedy, that was not a compliment.

Sometimes this Parliament really is a Bleak House—it really is a bleak house. It is most often a bleak house when we turn back our clocks 200 years, as we are doing now, and go back to Dickensian traditions—Dickensian traditions that are born of a judicial system in the United Kingdom that does not allow solicitors to appear as barristers in the higher courts. That is what this tradition arose from, and that is why it was right that it was tossed into the bin of irrelevancy a couple of years ago.

Provincial areas have very few Queen’s Counsel, but they have a lot of good lawyers. I am a lawyer; I used to practise in Dunedin. I know that the leading lawyers down there, many of the best advocates, were both barristers and solicitors. These were leading counsel—leading counsel—and I will name just a few of them. They happen all to be men because of the virtue of their age. The people in the legal profession ahead of me in the senior positions were men, as a consequence of its being a very male-dominated profession in those times. They were people like Neville Marquet, Bruce Robertson, and Kelvin Marks, who was a leading counsel. He was the counsel in the case involving civil aviation and MacKenzie, which was the case that distinguished between absolute liability and strict liability. He was a barrister and solicitor in Dunedin. He should have been made a Queen’s Counsel but could never be so because he acted as a barrister and solicitor. In provincial towns there is not the wealth available to be spent by Government departments and major corporates that there is in Auckland and Wellington, which can support a separate bar. The best advocates in the provinces are often found—not always but often found—in the firms of barristers and solicitors. Alf Jeavons was another one. Jim Guthrie is another man who comes to mind.

But if that is not a good enough example, let us think of our current Supreme Court. Amongst our leading jurists, Justice Tipping would never have been a Queen’s Counsel. He is one of our leading judges in New Zealand, and no one would dispute that. He was a partner in Wynn Williams. He could never have been a Queen’s Counsel, but he should have been able to be made a Senior Counsel. Is that an exception? No, it is not. How about Bruce Robertson on the Court of Appeal? He is another leading jurist in New Zealand. He was always a barrister and solicitor in a firm, rather than a barrister sole. He could never be made a Queen’s Counsel, but he should have been made a Senior Counsel. Members might think that that is only a couple of examples, but I ask about Justice McGrath. Justice McGrath is another of our Supreme Court justices. He could never have been made a Queen’s Counsel while a Crown solicitor, but he is on the Supreme Court. Before that he was the Solicitor-General. Earlier he was a Crown solicitor in the Crown solicitor firm in Wellington; he could never have been made a Queen’s Counsel in those days. What about our leading prosecutors in Auckland, in Meredith Connell? They can never be made Queen’s Counsel. Members might think that those are only a few examples, so I thought about Justice Blanchard. He is another of our leading jurists in New Zealand. He could never have been made a Queen’s Counsel, because he too practised as a barrister and solicitor, not as a barrister sole. That is what makes this such an absurd law.

I feel as if I should be here with my fingerless gloves and in a black suit. No doubt everyone will be required to put on their wigs again when they go to court. I saw an article about that in the paper. Here we go; we are heading back—

Dr KENNEDY GRAHAM (Green) Link to this

Allow me to offer a particularly humble contribution to this debate on the Lawyers and Conveyancers Amendment Bill, and let me state from the outset that the Green Party has not decided its final policy towards this bill and will not do so at this first reading. We are prepared to vote it through to the Justice and Electoral Committee and listen to the argumentation. That position was not taken lightly, but after some deliberation the fact is that we are sceptical of some of the provisions in the bill and have our reservations on others. We wish to approach the issue with an open mind, and we are prepared to explore it with the Government and other parties in the select committee.

The bill aims to achieve three things: first, to restore the rank of Queen’s Counsel and alter various provisions surrounding the position; second, to alter provisions pertaining to the holding of non-voting shares in an incorporated law firm; and, third, to require a power of attorney to be given to another person to conduct the work of a barrister sole during periods of bankruptcy. It is the first of these aims pertaining to Queen’s Counsel that requires exploration. There are three issues at stake. The first is the title of the provision; the second is the potential eligibility for applying; and the third is the method of choosing an applicant. The proposed amendments would reverse three changes made by the Labour Government in 2006. In short, this present bill would restore the title of Queen’s Counsel, which was dropped by the Labour Government in 2006; it would limit eligibility to barristers sole rather than the general legal profession, which Labour allowed; and it would remove the selection panel and allow the Attorney-General to appoint in consultation with the Law Society and the Bar Association.

Let us consider each one. Why would the Government seek to restore the title of Queen’s Counsel, and why would it seek to limit eligibility? The stated reason to revert back to Queen’s Counsel is to restore what the Government claims is the reciprocal relationship between Queen’s Counsel and the Crown. There is an expectation that a Queen’s Counsel will sometimes take instructions to act on behalf of the Crown. The qualities that have marked the rank of Queen’s Counsel will be preserved—that is, the Government will continue to have confidence in the rank, to appoint Queen’s Counsel, and to assist with work such as ministerial inquiries where a degree of independence from the executive is thought desirable.

The point was advanced by Mr Power when in Opposition back in July 2003 that the role of a Queen’s Counsel as an independent member of the Bar is to hold an office that allows one to challenge authority. It allows a Queen’s Counsel to challenge Governments and those who conform to the rules of our society. This is done in a way that gives one a certain degree of independence from such conformity. The fact that the title Queen’s Counsel reflects a colonial heritage is, Mr Power believed, to be of secondary importance. What was more important, he claimed, was that the role of Senior Counsel would be too readily available to members of the legal profession who practise in large law firms that undertake substantial commercial work for the Government, whether it is a department, a State-owned enterprise, or a Crown entity. They act on behalf of the Government in those roles.

The idea of a Queen’s Counsel, Mr Power believed, was to lift the individual barrister above the mire so that one is able to take on an unpopular case that others might turn down. A Queen’s Counsel is able to hold, without fear, the views of a client whom all others in a society may view as having committed wrongs, whether civil or criminal, and they would do this well before a judge or jury makes such decisions. Mr Power urged against removing the last vestige of a barrister’s independence at that level and replacing it with a label that could be assigned to any senior lawyer in any firm. There are some 12,000 or so lawyers in the profession in this country, I think, but only a few hundred barristers sole. This may be a reasonable argument. The aspects of independence and credibility that enable any counsel to take on criminal cases on behalf of a defendant who may be vilified before a trial begins is of critical importance to the integrity of the judicial process. The Green Party has always supported this principle. Yet we remain unconvinced that the very title Queen’s Counsel itself is an imperative. We could, perhaps, accept the argument that the role should be preserved to barristers sole for the reasons outlined; it does not necessarily follow that the title Queen’s Counsel itself has to remain. What is the problem with retaining the title Senior Counsel while restricting it to barristers sole?

The third issue has to do with the appointments process. Before 2006 the Attorney-General consulted with the Law Society and the Bar Association over potential candidates. The 2006 Act has the Attorney-General being advised by a panel comprising the Solicitor-General and four individuals drawn from the Law Society and the Bar Association. This 2010 bill would restore the status quo ante on the grounds that the panel system is unnecessarily rigid and it would be preferable for the Attorney-General to have greater flexibility. The difference may not be great between the two arrangements, although a panel’s advice might be more appropriate rather than Attorney-General flexibility in itself.

It would be useful to consider this argumentation in more detail. Where, for example, is the evidence offered by the Government that the panel system is rigid? And what do we mean by flexibility? Reasonable flexibility to some may be, perhaps, excessive licence to others. As I understand it, there has been only one round of appointments to the position of Senior Counsel since the 2006 Act came into force. In 2008 seven individuals were appointed, one of whom was Sir Geoffrey Palmer, and we have heard a lot tonight about Mr Jack Hodder. That is scarcely displaying unacceptable rigidity.

On balance, our preliminary thoughts are as follows. Firstly, we would be disposed to retain the title Senior Counsel rather than revert to Queen’s Counsel. Secondly, we are prepared to listen to a more detailed argument from the Government to restrict the role to barristers sole rather than to the legal profession generally, but we acknowledge the arguments advanced by Labour’s David Parker tonight for keeping the potential pool broader than purely Queen’s Counsel. Finally, we tend to favour retention of a panel to accord advice to the Attorney-General in the appointments process. These are our preliminary thoughts. Based on this preliminary approach we will consider supporting certain aspects of this bill, but not all of them. We are, however, prepared to see the bill go through to select committee with a view to engaging the Government in a constructive dialogue on the merits of each of the three issues at stake. We shall, therefore, vote for the bill through to select committee, while preserving our option to support or oppose the bill in due course.

RAHUI KATENE (Māori Party—Te Tai Tonga) Link to this

The Māori Party supports any legal changes that will ensure that barristers who generally are appointed to conduct court work on behalf of the Crown have the title of Queen’s Counsel restored. In many ways it is simply stating what is already the case: if one is working on behalf of the Crown, then that work should be recognised appropriately with a title that indicates the responsibilities.

The selection process appears to be reasonable, with the New Zealand Law Society having substantial input in consultation with the Attorney-General. I recommend, however, that Te Hunga Roia Māori o Aotearoa should be approached with a view to hearing its perspectives from the point of view of tangata whenua. Te Hunga Roia Māori o Aotearoa maintains a database of Māori lawyers, makes submissions on a range of policies and proposed legislation, ensures representation of its members on selected committees, and organises regular national hui. As such it is an ideal body to seek specialist advice on these changes.

In many ways there is an inevitable connection to the constitutional review that the Māori Party has negotiated as part of our coalition arrangements with National. Although New Zealand has its own Supreme Court, we are still a Commonwealth country, and on admission we swear an Oath of Allegiance to the Queen. As such, the constitutional relationship between the Treaty partners must be actively considered at every level of the administration of law and policy. At this first reading we are happy to support the Lawyers and Conveyancers Amendment Bill. We believe it could help maintain public confidence in the provision of legal services and conveyancing, and by virtue of highlighting the reputation of the barristers involved will lead, we hope, to the protection of consumers of those services.

KANWALJIT SINGH BAKSHI (National) Link to this

It is my privilege to speak in support of the first reading of the Lawyers and Conveyancers Amendment Bill. The bill will make amendments to the provisions in the Lawyers and Conveyancers Act 2006, along with implementing the Government’s policy on Queen’s Counsel, currently known as Senior Counsel.

The Act changed the rank of Queen’s Counsel by renaming it Senior Counsel. It also relaxed the eligibility for the appointment of Senior Counsel to all lawyers specialising in advocacy, regardless of the form of their practice. This bill is an important step in reinstating status and independence for the top rank of lawyers in New Zealand. The eligibility to be appointed as Queen’s Counsel will be restricted in most cases to barristers sole, rather than lawyers in partnerships or firms. Amendment to the Lawyers and Conveyancers Act will simplify the selection process and appointment of Queen’s Counsel, while providing for consultation with the New Zealand Law Society and the New Zealand Bar Association on proposed appointments. The amendment preserves the Governor-General’s power under the royal prerogative to appoint other lawyers as Queen’s Counsel from time to time in recognition of their contribution to the law. Queen’s Counsel should be able to advise and represent fearlessly and independently both law firms and clients who engage them, without the potential conflict and pressure of working in a partnership or incorporated firm.

We have listened carefully to the legal profession, and this is a response to their concern that the title of Senior Counsel, created in 2008 under the previous Government, does not adequately reflect the nature and status of the rank. The title of Queen’s Counsel is instantly recognised as providing a certain standard of legal advice, both among the New Zealand public and internationally. We are taking steps to protect the essential independence of the inner bar. The looser rules for eligibility as Senior Counsel, introduced by the previous Government, threatened to dilute the independence of our most senior advocates. I commend this bill to the House.

LYNNE PILLAY (Labour) Link to this

It will come as no surprise that we in Labour oppose the Lawyers and Conveyancers Amendment Bill. Talk about a major step backwards!

SANDRA GOUDIE (National—Coromandel) Link to this

I am delighted to rise in support of the Lawyers and Conveyancers Amendment Bill. I also applaud the speech made by Paul Quinn, who was rightly acknowledged as an egalitarian, down-to-earth, solid, good guy—a gentleman—by the Opposition. He recognises the need for excellence and that everything should not be dumbed down to the lowest common denominator. This issue is not about fairness and justice, it is not about colonialism, it is not inappropriate, and it is not cultural cringe, as previous speakers would have us believe.

This is about recognising excellence and giving people the opportunity to make the choice between an ordinary lawyer and a Queen’s Counsel—and there is a difference. One has a greater capability than the other. It may not necessarily always be the case that a lawyer cannot achieve what a Queen’s Counsel will achieve, but we can be certain that in just about every case a Queen’s Counsel will give us the outcome that we seek. This has been demonstrated time and time again. This bill is not about cultural cringe. It is highly ignorant of the role of a Queen’s Counsel and of the Lawyers and Conveyancers Amendment Bill to suggest that. Once again, the Opposition has not done its homework. At least the Green Party did its homework and had a contribution of some substance to make, but it was not so with the Labour Opposition.

I am delighted to see that we recognise the excellence and the different standards of lawyers we are able to engage to represent us. I for one always say that if one wants to win one’s case, then one should employ a Queen’s Counsel. If people want their case over and done with in as short a time frame as possible they should employ a Queen’s Counsel.

I had some friends who were going to challenge Environment Waikato on a policy and a regional statement. I suggested to them that they employ a Queen’s Counsel. They were of the same mind, so they did. The Queen’s Counsel came from Dunedin. There were a number of submissions in favour of this particular policy and only one against, which happened to be mine—no surprises there. I never spoke to the Queen’s Counsel until after the event, but to my surprise he said that the first thing he did was read the one submission opposing the statement rather than all those for it. He felt that the substance was in that submission and he won the case. Once again, it highlighted the capability of a Queen’s Counsel; we might take a risk if we employ an ordinary lawyer.

I have no hesitation in supporting the bringing back of the position of Queen’s Counsel, and acknowledging their excellence and different degree of capability. That is what this bill is about. We would not expect every single contestant at the Olympic Games to get a certificate, would we?

JACINDA ARDERN (Labour) Link to this

I welcome the chance to follow the member Sandra Goudie, because she issued a challenge during her speech and said that the Opposition needed to do its homework on the Lawyers and Conveyancers Amendment Bill. I ask the member what her homework demonstrated to her. The sense I got was that Sandra Goudie is under the impression that the Labour Government got rid of the idea of recognising excellence within the legal fraternity, and that is absolutely untrue. She said that the bill was about recognising excellence, and not dumbing down. She chose not to demonstrate why the title of Senior Counsel, which Labour introduced, did not recognise excellence, or why the title of Senior Counsel was dumbing down. If anything, I think the Government is dumbing down our system, because it claims that people do not understand or recognise what Senior Counsel is. It claims we need to revert back to the old style of Queen’s Counsel, because that is what people understand. If that is not dumbing down, I do not know what is. If the member is unable to demonstrate to me that our system as it currently works does not recognise excellence, then I am sorry but I do not believe that she has done her homework.

Labour changed the appointment process and Labour changed the eligibility for appointees; we did not change the fact that certain members of the profession were duly recognised. That was something that, of course, we retained. Therefore, we can only distil from this the fact that this bill is simply about reverting back to an antiquated system that I do not recognise as being part of my country. I do not recognise the idea that excellence can be attributed formally only if we attach some reference to the monarchy. I think that is an absolutely antiquated idea that, quite frankly, makes me feel embarrassed.

Let us go through the history of some of this, perhaps to demonstrate that some homework has been done. This bill reverses the changes Labour made to the Queen’s Counsel regime in 2006. That was after a lengthy process of consultation and deliberation. It was not done on a whim. We chose to modernise what was otherwise the quite ancient position of Queen’s Counsel, by changing the name, eligibility, criteria, and appointment process, not the notion itself.

I want to refer to one interjection that was made by the Hon Judith Collins, during the contribution of one of our members. Her main argument seemed to be that we should revert back to the Queen’s Counsel title because Parliament’s history lay elsewhere, and that we should recognise Parliament’s history. Well, it is one thing to acknowledge one’s history, and another to simply live in it. We have to recognise that as a country we are dynamic and we are moving forward, in the same way that we acknowledge that the Treaty of Waitangi is a living document and a dynamic document, and we continue to incorporate it as we move forward. We should not sit entrenched in history without acknowledging the changes that our country is undergoing.

Personally, as I have said, I find it embarrassing that having gone through the process of introducing Senior Counsel, which was quite a lengthy one, we are now simply sliding backwards without a rational justification from the Government as to what it is about the current system that is not working. I have not heard one argument from the Government as to why the current system is not working, except for the notion of an antiquated title attached to the monarch.

If the Government will not canvass some of the ideas on why we are having this change, I will canvass them and argue against them myself in a one-on-one debate, given that the Government seems unwilling to engage. Internationally I do not think there is any precedent that we could possibly be following, because Canada has already abolished the title and so have most of the Commonwealth nations. They probably find it quite laughable that New Zealand not only has only recently abolished it but is now jumping backwards soon after doing so. In fact, all the Australian states bar one have moved to the title of Senior Counsel.

I find it interesting that, to be fair, both sides of this House have continued to look for areas of commonality and harmonisation in our legal system with Australia. In fact, the Trans-Tasman Proceedings Bill and several other bills that I have been involved with have all looked at trans-Tasman harmonisation. This makes sense given the close nature of our countries, but then we go and do this. I question whether it is the one desperate attempt from the Government to demonstrate that we are catching up to Australia by leap-frogging through history over the top of them. Perhaps Government members might like to demonstrate that I am wrong in that regard.

In desperation I looked at the regulatory impact statement to see whether it demonstrated any solid reasoning behind this legislation, which was again left wanting. According to the regulatory impact statement the title of Senior Counsel “overlooks the historical link between Queen’s Counsel and the Crown.” So apparently we are doing this simply because we need a history lesson in law, which I do not believe is an adequate justification for what the Government is doing. Historically, the link between Queen’s Counsel and the Crown refers to the title’s ancient English origins. It indicated barristers who were selected to assist the Attorney-General in carrying out the Crown’s legal business. Therefore the modern Queen’s Counsel does not have the same kind of notion that it had when first created, given that modern Queen’s Counsel, when we had them, acted for a wide variety of clients, including private individuals and businesses. So we could even argue that the historical link the Government is looking to entrench no longer exists anyway, in a practical sense. Again, the bill is left wanting. In fact, Paul Quinn made a contradiction when he said we needed to have this title to demonstrate the role of Queen’s Counsel, but then demonstrated that Queen’s Counsel do much more than advise the Crown. So I am not left any the wiser as to why we are regressing, having looked at some of the explanations from the Government.

I will go over some of the other changes we have seen, particularly to eligibility and the appointment process. David Parker canvassed well some of the issues to do with the Government’s decision to change the eligibility criteria, and on the face of it does look like it is a form of elitism, but I think it is even more bizarre than that. The Government believes that the “extension of eligibility to litigators in law firms failed to provide due recognition to the importance attributed to the independence of the office.”

It was well said by Jack Hodder in his submission on the nature of Queen’s Counsel that the Government’s proposal assumes, by default, that we cannot have any trust or faith in those operating in our legal fraternity. It creates a two-tier perception of independence for some but not for others in the way that they operate. That is something he strongly rejected. He rejected the idea of any form of elitism within the legal fraternity, as far as I can tell, whether it is Queen’s Counsel or Senior Counsel, but I think a lot of his arguments still hold when it comes to Queen’s Counsel in particular. It is Labour’s view that restricting the title to barristers sole grants a commercial advantage to a limited number of competitors in the legal services market. The fact that for nearly 90 years only a fraction of New Zealand’s advocates have been eligible to apply for the rank is a ridiculous situation for a country as small as New Zealand. But again I have to acknowledge that the Government has not taken into account New Zealand’s uniqueness, in any sense whatsoever, in this bill.

In relation to the appointment process, the Government has claimed that the current requirement for the appointment of a selection panel is unnecessarily rigid. So on the one hand Labour introduced too much openness, and on the other hand we included an appointment process that was too rigid. I think that perhaps, in the end, Labour had the balance right, and it is the Government that has demonstrated some confusion. It is unfortunate, given that even Great Britain has a very open and transparent appointment process, that the Government has said ours is too rigid, yet has not given much prescription over the way the appointment process will work, and, in fact, has left it to an Order in Council. I think that is inadequate, given the calls from the legal fraternity to make the process much more open.

As my colleagues have said, this a backward step. I think it demonstrates the lack of faith that the Government has in our independence as a nation. It is an antiquated step, and one I am very disappointed in.

Hon NATHAN GUY (Associate Minister of Justice) Link to this

I move, That the Justice and Electoral Committee consider the Lawyers and Conveyancers Amendment Bill