Council Brief Wellington The monthly newspaper of the Wellington Branch New Zealand Law Society Issue 452 November 2015 INSIDE: Councilwills Brief Advertising3 Valid AnnualDinnerdise.net.nz Dinner 4 Porirua NewReynolds NZLS President Advertising 5 Separating parents 6 ISSN 2382-2333(Print) ISSN 2423-0103 (Online) Branch Council undertakes strategic planning session From the President F IRST, my grateful thanks to the many members of our profession who completed our Wellington Branch Engagement Survey. The survey has provided us with extremely helpful feedback and ideas, and was of invaluable assistance in informing Council’s Strategic Planning session in October. (More on that below.) We are still digesting the survey responses and will report on the results in future. In brief, though, satisfaction levels are high, and preliminary results overwhelmingly endorse the key priority areas set by Council in 2014, and the work Council has been leading in conjunction with our Branch Manager, our committees and the wider New Zealand Law Society. I would like to particularly acknowledge and thank Council member Julius Maskell for his work compiling the survey and leading this project. Strategic planning In October our Branch Council undertook its Strategic Planning session, again superbly facilitated by Paul Rayner of BetterChange. Paul Rayner of BetterChange leads the strategic discussion. This year we adopted the SOAR approach, assessing Strengths, Opportunities, Aspirations, Results. Our areas of focus were threefold: • Engagement & participation • Professional development • Pastoral care & member benefits. As a result of the workshop, we determined our main priorities for the rest of the Council year: 1. Online presence: updating the website and a Facebook page. 2. A Complaints Information Pack: for practitioners when they are advised of a complaint against them. 3. Instituting a CPD Register: consisting of CPD topics, and the people who will present CPD (especially locals in outlying areas). 4. Sharing best practice: more engagement with the profession, particularly the big firms, on their initiatives (e.g., wellness, flexible hours, retention). 5. The Solicitors Benevolent Fund: raising its profile, and fundraising. 6. A re-launch of regular collegial events: including Friday night drinks; walking and running groups; and adding a wider variety of featured events. Also, introducing new ways of promoting our events, and encouraging friends and partners to come along. We will be doing more work on the delivery of these outcomes, and this will be discussed at our November Council meeting. We are also looking forward to catching up with our committee convenors, who will be joining us at our November meeting. Many thanks to our Council members for an excellent session. I also thank Paul Rayner of BetterChange for his time and marvellous facilitation, and Vice President Cathy Rodgers for her work in preparing for the strategic planning session. Members of the judiciary taking part in the ‘Life on the Bench’ event held recently at Buddle Findlay were Hon Justice Kós, Hon Justice Winkelmann, retired Family and District Court Judge Paul von Dadelszen QSO, and Chief District Court Judge Doogue. Members of the Women in Law Committee are Caroline Rieger, left, Karen Feint and Morgan Coats, right. ‘Life on the bench’ – what is it really like? By Caroline Rieger T HE Women in Law Committee and Buddle Findlay held a highly successful panel discussion recently about the process of becoming a judge and what it is really like when you are a member of the judiciary. The panellists for the event were Justice Winkelmann, Justice Kós, Chief District Court Judge Doogue and retired Family and District Court Judge, Paul von Dadelszen, QSO. The wealth of experience and humour that the panellists provided helped make for a thoroughly enjoyable and informative event. The event chairpersons, Women in Law committee member Morgan Coats and Committee CoConvenor Caroline Rieger, facilitated discussions around the question of becoming a judge: a possible career path to be taken if you want to be a judge, whether or not it is essential to go to the independ- ent bar if you are wanting to be appointed, the differences between District Court and High Court (and higher Court) appointments and several other topics. The discussions were complemented by comical personal anecdotes and occasional words of warning from the panellists. The key traits required to be a judge, the panellists agreed, include humanity, humility, patience, a touch of humour and legal acumen. What was apparent was that being a member of the judiciary is not at all lonely – a common misconception. All the panellists commented on how much they enjoyed their time on the bench and no matter how long you are a member of the judiciary, it is not quite long enough. Those attending were impressed by the openness of the judges and appreciated an enlightening and enjoyable CPD compatible event. Newly sworn-in Justice Matthew Palmer’s first High Court sitting was an admission ceremony in Wellington last week for Isaiah Okorie. Mr Okorie, who is from Nigeria and was admitted to the Nigerian bar in 2006, is based in Australia and wants to be able to practise in all three jurisdictions. It will probably be Justice Palmer’s only Wellington sitting as he will be based in Auckland. Moving counsel was Geoff Adlam, Wellington Branch member and New Zealand Law Society Communications Manager. The Solicitors’ Benevolent Fund – ways to donate 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, please email [email protected] with your name, the amount deposited and a contact number to ensure a receipt is issued and sent to the correct place. 2 News COUNCIL BRIEF, NOVEMBER 2015 Wellington Branch Diary Nov-Dec Appointment of High Court Judge WELLINGTON Queen’s Counsel Matthew Palmer has been appointed a Judge of the High Court. Justice Palmer graduated with an LLB (Hons) (First Class) in 1987. He has degrees in economics and political science from the University of Canterbury and a Masters and Doctorate in Law from Yale Law School. Justice Palmer held positions at the Treasury and as Deputy Secretary for Justice (Public Law) before taking up the role of Deputy Solicitor-General (Public Law) at the Crown Law Office in 2008 where he remained until 2012. While working in the public sector, Justice Palmer provided advice to Ministers, Cabinet and select committees on a range of matters including the agreement of protocols between the Commissioner of Inland Revenue and SolicitorGeneral. He was lead negotiator for the Crown in an international compensation claim for the MV Rena and in the first historical settlement of a Treaty of Waitangi land claim in New Zealand. In 2012, Justice Palmer joined the independent bar and was appointed Queen’s Counsel in 2014. He has specialised in litigation and advice challenging or defending decisions of government, Crown entities and public bodies and has led argument in over 50 public law cases in the Supreme Court, Court of Appeal, High Court and Waitangi Tribunal. Justice Palmer was also Pro Vice Chancellor and Dean of Law, and Director of the NZ Centre for Public Law, at Victoria University of Wellington for five years. He has taught law at the Victoria University of Wellington Schools of Law and of Government, Hong Kong University Law Faculty, Yale Law School, the Australian and NZ School of Government and the University of Chicago Law School. Justice Palmer was sworn in on 27 October and will sit in Auckland. Library News New research librarian this month By Robin Anderson Wellington Branch Librarian THE Wellington Library has a new Research Librarian starting on Thursday 19 November. Her name is Nicola Stedman. She has a law degree and has nearly finished a library qualification. She currently works in the Otago Library as assistant librarian and she also writes headnotes for the LINX database. We look forward to welcoming her to Wellington Professional responsibility database We also have a new database of interest to practitioners. It is the LexisNexis New Zealand online work Professional Responsibility in New Zealand written especially for lawyers with a lot of relevant and timely information for your day-to-day life and any lawyerly problems you may encounter. It can be used in the library on the public computers and in the branch library kiosks and is found under the Administrative & Public link in the databases menu. Auckland library move Our colleagues up in the Auckland Library are moving temporarily while a new courtroom and conference room are constructed using part of their library space. All the staff will be in the Auckland District Court till this work is finished. A lot of the books will still be in the High Court Library but you will need an access card 24/7 to get into this space. For more information, see the NZLS webpage: http://www.lawsociety.org.nz/law-library/ auckland-hc-library-move Monday 9 November Criminal Law Committee Tuesday 10 November Money Laundering: Independent Practitioners Committee, 5.15pm Law Society Building, 26 Waring Taylor Street (bookwhen.com/wellington-branch) Vulnerable Witnesses – Children, NZLS CLE Webinar, 11am-12.30pm 1.5 CPD Hrs Thursday 12 November Courts, Tribunals & ADR Committee Meetings – Legal Essentials, NZLS CLE Webinar, 11am-12.00pm 1 CPD Hrs Monday 16 November Wills, Estates & Trusts Law Committee Mon-Tues 16-17 November Reading Accounts and Balance Sheets, NZLS CLE Workshop, Terrace Convention Centre 7 CPD Hrs Tuesday 17 November Family Law Committee District Court Etiquette, Criminal Law Committee seminar, Jury Assembly Room, Wellington District Court, 5.30-7.30pm (bookwhen.com/wellington-branch) Wednesday 18 November Wellington Branch Council meeting Thursday 19 November Immigration Law Committee Retirement – Villages, Subsidies, Loans, NZLS CLE Webinar, 11am-12.30pm 1.5 CPD Hrs Final Sitting of Coroner Garry Evans, 4pm Courtroom 5.01, Wgtn District Court RSVP [email protected] Friday 20 November Informal drinks at Wellesley Boutique Hotel Monday 23 November Employment and Discrimination, NZLS CLE Webinar 1.5 CPD Hrs Tuesday 24 November Council Brief deadline December issue Tues-Wed 24-25 November Lawyer As Negotiator, NZLS CLE Workshop, Terrace Convention Centre 11.5 CPD Hrs Tuesday 24 November Update on Contract, NZLS CLE Seminar, Wellesley Boutique Hotel 2.5 CPD Hrs (Webinar 11am-noon 1 CPD Hr) Wednesday 25 November Legal Assistance Committee Parole Law Committee Thursday 26 November Human Rights Committee Friday 27 November Women in Law Committee New books Corporate governance intensive Wellington : New Zealand Law Society 2015 KN255.L1 NEW Cyber bullying, Wellington : New Zealand Law Society 2015 KN340.5.L1 NEW Cyber law : what happens to your bits & bytes when you die? Wellington : New Zealand Law Society 2015 KN347.L1 NEW Engaging with Maori business : the post settlement iwi dynamic Wellington : New Zealand Law Society 2015 KM208.431.L1 NEW Environmental law in New Zealand, Wellington : Thomson Reuters 2015 KN94.L1 ENV Estate administration in the 21st century, Wellington : New Zealand Law Society 2015 KN142.L1 NEW Farm succession planning Wellington : New Zealand Law Society 2015 KN120.L1 NEW Gale on easements, London: Sweet and Maxwell 19th ed 2012 KN65.1.A1 GAL Health & safety in employment Wellington : New Zealand Law Society 2015 KN198.L1 NEW Health law in New Zealand Wellington: Thomson Reuters 2015 KN185.L1 HEA Interviewing children : the steps to success, Wellington : New Zealand Law Society 2015 KN176.L1 NEW Law and custom of the constitution, Oxford: Clarendon Press KM31.A1 ANS Legal Executives Conference, August 2015 Wellington : New Zealand Law Society 2015 KL87.2.L1 NEW LinkedIn for lawyers, Wellington : New Zealand Law Society 2015 KL98.L1 NEW Invitation from Wairarapa practitioners for a collegial lunch in a country garden Wairarapa lawyers are having a collegial gathering for lunch at the home & country garden of Adrienne Hewitt and Grant Allan and cordially invite Wellington Branch lawyers to join them Saturday 14 November, 12.30pm, 139 Tararua Drive, Upper Plain, Masterton Bring your own drink but food will be provided by Wairarapa practitioners, although a donation to the trust fund for Louise Elder’s three girls would be appreciated. RSVP essential and can be made at http://bookwhen.com/wellington-branch For those wanting to make a weekend of it, there are other Wairarapa events and Toast Martinborough is on that Sunday. Deadline December Council Brief — Tuesday 24 November Proceedings before the Coroners Court, Wellington : New Zealand Law Society 2015 KL254.L1 NEW ❑ Continued on page 5 Crossword Solutions From page 7 Cryptic Solutions Across: 7 Lariat; 8 Select; 10 Opinion; 11 Paste; 12 Emit; 13 Fence; 17 Quits; 18 Peri; 22 Dwarf; 23 Ill-fame; 24 Euclid; 25 Capers. Down: 1 Almoner; 2 Prairie; 3 Ratio; 4 Respect; 5 Tense; 6 Other; 9 Uncertain; 14 Fun-fair; 15 Relaxed; 16 License; 19 Idled; 20 Hatch; 21 Float. Quick Solutions Across: 7 Expert; 8 Zenith; 10 Emotion; 11 Lucid; 12 Sane; 13 Bogus; 17 Greed; 18 Pair; 22 Thing; 23 Crucial; 24 Result; 25 Revere. Down: 1 Reverse; 2 Appoint; 3 Drain; 4 Zealous; 5 Pinch; 6 Shade; 9 Innocence; 14 Wriggle; 15 Mariner; 16 Trolley; 19 Story; 20 First; 21 Queer. MA DESIGN m Answers for puzzles from page 7 1 Rambunctious 2 Black wins if black moves first: 1…exBf5 2 g7 (if 2 d6 then 2…fxRg4 3 d7 gxNh3 4 d8=Q 4 hxRg2#) 2…fxRg4 3 g8=Q gxNh3 4 Qe6 (threatens 5 Qe3#) 4…hxRg2#. However, white would win after 1 dxe6 or 1 Bxe6, as this eliminates black’s best chance (stalemate is out of reach if white is careful because the black king has mobility). Friday 11 December Admissions Conferences November 27 2015 – Third Biennial Labour Law Conference: New Zealand Labour Law Society, VUW Law School, Wellington. www.victoria.ac.nz Nov 30-Dec 3 2015 – Annual Conference of the Law and Society Assn. of Australia and New Zealand, Flinders University, Adelaide. www.lsaanz.org December 4-5 2015 – 4th International Humanitarian Law Moot Court Competition for NZ law students, VUW & Old High Court. Red Cross/NZ Law Foundation. www.lawfoundation.org.nz December 7-8 2015 – International Organisations and the Rule of Law: Perils and Promise, NZ Centre for Public Law, Victoria University of Wgtn. www.victoria.ac.nz/law/ about/events December 10-12 2015 – Australia & NZ Law & History Society (ANZLHS) 34th Conference, Adelaide. law.adelaide.edu.au/anzlhs) January 7-11 2016 – 5th International Conference on Adoption Research (ICAR5), Auckland. www.icar5newzealand.com March 3-5 2016 – Dispute Resolution on the Edge: International Academy of Mediators, Queenstown. www.aminz.org.nz April 14-15 2016 – 13th Australasian Property Law Teachers’ Conference, Canterbury University School of Law. www.laws.canterbury.ac.nz April 14-16 2016 – ICAB World Bar Conference, Edinburgh. www.nzbar.org.nz May 12-13 2016 – ILANZ (In-house Lawyers Association) Annual Conference, Nelson. www.ilanz.org.nz May 19-20 2016 – Symposium on QuasiConstitutionality and Constitutional Statutes, NZ Centre for Public Law, VUW Faculty of Law. [email protected] August 27-29 2016 – Banking & Financial Services Law Assn. 33rd Annual Conference, Queenstown. www.bfsla.org September 12-14 2016 – Public Law Conference: The Unity of Public Law? University of Cambridge. www.publiclawconference.law.cam.ac.uk/ 2016-conference September 18-23 2016 – 23rd ANZFSS International Symposium of Forensic Sciences, Auckland. www.anzfss2016.org September 18-23 2016 – IBA Annual Conference, Washington DC www.ibanet.org September 22-24 2016 – RMLA (Resource Management Law Assn.) Conference 2016, Nelson. www.rmla.org.nz November 4-7 2016 – Asian Patent Attorneys Assn. Annual Council Meeting, Auckland. www.apaa2017.com 2016 (date to follow) – Aviation Law Assn. of Australia & NZ. Annual ALAANZ Conference, Canberra. April 5-9 2017 – Inter-Pacific Bar Assn. Annual Meeting & Conference, Auckland. ipba.org News COUNCIL BRIEF, NOVEMBER 2015 3 Underbelly of migration Where there’s a will, there could be a way round it By Kamil Lakshman By Caroline Sawyer for the Trusts and Estates Committee THERE is the power of intention, thoughts, words and actions which could then translate into belief, if a breeding ground exists. These words seem clichés, like titles of best seller books. However, it is universal truth. Many wars have been waged on this premise. The likes of Hitler have led others to commit atrocities. The likes of Gandhi have led others to the path of freedom. Your thoughts have the power to influence another’s thought process which can then have a snowball effect. Fashion is another good example; one way of dressing/appearance grabs the imagination of another. With appropriate positioning, it very quickly becomes the norm with an opening for a lucrative business venture. Culture and social norms adapt and change in this way. Some idea is introduced that has the power to influence. It brings about a change and a way of being that moves from a spectrum of unacceptability to acceptability. In other words, ‘it catches fire.’ Exploitation process One such thought that is fast taking hold is exploitation. Examples of it have recently been seen in the migrant community – one migrant exploiting another for financial gain. In some cases, the exploited migrant is not only, but also complicit, while in other cases, the exploited migrant has no choice. Sometimes the one that has been exploited, in turn has the potential of becoming the exploiter once he or she gets that ability. What is being taught is that this becomes a potential way of engaging. Breeding ground In New Zealand the breeding ground has been cultivated. How so? It is because of our current model of international student recruitment and immigration policies. The model may achieve the educational outcome; that is, to give educational qualifications. It may even achieve the immigration objective which includes economic and settlement outcomes but has the potential of a dubious social outcome. What is meant by dubious social outcome is that some migrants pay for jobs, work without pay and provide fictitious documentation to gain New Zealand residence. This is how competitive advantage is gained in some cases; it is said that for some companies, such dubious methods are critical for survival. Related outcome The stakeholders may insist that the educational outcome is distinct from the immigration outcome but in reality there is no distinction. The two are interrelated and go as a package. That is what is being bought. If the education pathway does not lead to a resident visa, then for some, the purpose for gaining that qualification is in vain. Education is not being seen as an end in itself. It is being viewed as a means to this end. Why? The policy framework settings enable the package to be sold in this manner. It gives the the ability to dangle a carrot of potential residency. Thus far we have been attempting to seek solutions by addressing the symptoms. However, there has been no real incentive to tinker with the golden egg in case it stops being golden. Considered holistically, we have bigger problems to deal with than has been apparent, so tackling the golden egg is now becoming imperative. If we are really serious about addressing this issue of migrant exploitation, which in my opinion has the potential of snowballing into the mainstream workplace practices, then the root of the problem has to be addressed and addressed fast. Otherwise New Zealand will be seeing a very different work place ethos and a developing underworld which may be out of reach for police to monitor and shut down despite the penalties in place. The power of thought is manifested because the breeding ground exists. Kamil Lakshman is Principal of Wellington based law firm Idesi Legal Limited. The opinions expressed in her article above are her own and not that of Idesi Legal Limited or the New Zealand Law Society, or its Wellington Branch. ❑ This article was first published in Indian Newslink Council Brief Advertising [email protected] THE Trusts and Estates Committee recently held an informal discussion on the implementation and effects of s 14 Wills Act 2007. Section 14 differs from the old s 9 Wills Act 1837, which had strict formalities for the execution of a valid will, and provides instead that the High Court may make an order declaring a document valid as a will if it is satisfied that it expresses the deceased’s testamentary intentions. The committee members mostly felt that the amendment and its implementation was appropriate. Any new legal process will, however, present questions. The committee considered, for example, the position of a lawyer instructed to obtain a grant of probate for a will, who then hears of a later, “invalid will” that the High Court might, if asked, declare valid. The committee was sure that a lawyer has no duty to make proactive enquiries where they have no knowledge of such a document. However, some members were particularly concerned that it was unclear how a lawyer’s overriding duty to the court would operate if they knew a later “invalid will” existed or might well exist, but the client’s instructions were strictly to obtain probate of an earlier, fully-executed will. The committee also considered whether best practice would now require alerting clients to the new situation. Whilst the new rule is used where a client has not understood that a formal-looking draft their lawyer has sent them still requires execution, other clients may be aware of the pre-2007 rules as to the requirements of formality, and not understand that if they change their mind they need to take positive action to ensure the draft is not subsequently admitted to probate. This might happen where, for example, full instructions for a fresh will are given by telephone after a family row and the draft is received after relations are patched up – and is put in a drawer, to be found by a beneficiary under it after the deceased’s death (and perhaps after probate of the earlier will). Deadline December Council Brief – Tuesday 24 November The meeting considered ways of forestalling such problems, including following up clients who did not respond to letters containing draft documents and eventually telling them that the draft would be withdrawn. The actual status of the draft after that would, however, be unclear. The committee considered the balance between the advantages of flexibility in unexecuted documents being potentially admissible to probate, as opposed to the disadvantages of opening the field to uncertainty and litigation. The committee also considered the High Court Rules where a possibly invalid will exists. These provide at R 27.5 a process by which an application for probate of an earlier fully-executed will may be deferred whilst an application for an order that a subsequent, “invalid”, will is valid instead is considered under s 53 Administration Act 1969. They do not, however, fully cover the situation where the lawyer instructed to apply for probate of the earlier will – who may indeed be the executor of the will – has some indication that there may be a later, potentially valid document – particularly as the Rules envisage only later documents which appoint executors. It is not necessary for a document to appoint an executor in order for it to be a valid will, and indeed the High Court has ordered recognition of client-made documents such as suicide notes, which are likely to consist only of dispositions. The discussion confirmed to all present that probate practice is an exciting and potentially contentious field, and that the committee is at its cutting edge. Guidance towards achieving best ethical standards is concern of Branch committee THE Wellington Branch of the Law Society has a range of resources for practitioners to use to resolve difficult issues. One of them is the Ethics Committee, whose principal objective is to give guidance on the highest ethical standards of practice – and a view on when those standards might not have been achieved. The standards apply in relation to clients, other lawyers, the court and society generally. Lawyers are of course also bound to follow the statutory requirements of the Lawyers and Conveyancers Act 2006, the Rules of Conduct made under that Act and the guidance issued from time to time by the Law Society, such as the rules on e-dealing. But the subject of lawyers’ ethics is discussed in articles and has also been the subject of case law. Lawyers should however be aware that the views of the Ethics Committee have no particular standing. The Committee is there only to provide guidance and views on issues or behaviour that is referred to it. A lawyer who would like to refer a matter to the Committee should contact the Committee Convener, Paul Barnett, email: [email protected] phone: 04 498 4932 Fax:04 471 0239. Paul will consult with the committee and a distillation of the committee members’ views will be passed back to the enquirer. The committee also holds seminars where questions of ethics are considered live. The next one is planned for the first half of 2016, and the committee invites practitioners to suggest issues they would like to see discussed. Please send your suggestions to [email protected] from where they will be sent on to the Committee. [email protected] 4 Annual Bar Dinner COUNCIL BRIEF, NOVEMBER 2015 Peter Dengate Thrush, Peter McKnight and Matthew Sherwood King. Gavin Adlam, Ken Johnston and Frank Handy. Kezia Tuohy, Judge Chris Tuohy and Donna Llewell. James Gallagher, Rebecca Garden and Seamus Woods. Kim Murray and Stephanie Winson. Christina Billing, Britanny Peck and Kerrin Eckersley. David Dunbar, Amanda Courtney, Cathy Rodgers, Nerissa Barber and Catherine Harris. Paul Morten, Hayden Wilson and Paul Radich QC. These pictures were taken at the Wellington Bar Dinner held at the Wellington Club early in October. Mike Lennard and Amanda Courtney were surprised to find they matched! Robert Lithgow QC, Rowland Woods and Justice Simon France. John Dean, Dan Parker and Greg Thomas. Frances Gush, Chris O’Connor and Steph Dyhrberg. Mary More, Elizabeth Bransgrove and Anna Kokje. Council Brief Advertising Sally Parker and Stuart Dalzell. James Gallagher had been looking for an occasion to wear his grandfather’s suit and found the annual dinner was it! [email protected] Annual Bar Dinner COUNCIL BRIEF, NOVEMBER 2015 5 Karun Lakshman, Dan Parker, Kamil Lakshman and John Evans. Bea Woodhouse and Matthew Brown. Emily Bruce and Jessie Nelson. Judge Ian Mill and Mark Wilton. Sandra North and Charlotte Hollingsworth. Sir Bruce Robertson, Gary Turkington and Felix Geiringer. Life on the bench Anna Bloomfield, Helen Tyree, Julia Robertson, Emma Manohar and Lisa Bazalo. Retired judge Paul von Dadelszen QSO, Janine Bonifant, Simon Martin, Jacinda Rennie and Charlotte von Dadelszen. Bill Bevan and Jeremy Upson. Lili-Marina Stanley, Justice Winkelmann and Toli Sagaga. Tara Hauraki and Sarah Gwynn. Kathryn Beck is new NZLS President ❑ From page 2 New books Property taxation legislation Wellington : New Zealand Law Society 2015 KM336.36.L1 NEW Tax conference, September 2015 Wellington : New Zealand Law Society 2015 KM335.L1 NEW The Native Land Court. Volume 2, 1888-1909 : a historical study, cases and commentary. Wellington : Thomson Reuters 2015 KM208.433.L1 BOA The New Zealand Bill of Rights Act : a commentary Wellington : LexisNexis NZ Ltd 2nd ed 2015 KM201.2.L1 BUT Closed Reserve The law of real KN60.A1 MEG Youth advocates 2015 Wellington Law Society 2015 property, 2012 conference July : New Zealand KN176.L1 NEW Chris O’Connor, Ken Ah Kuoi and Peter Knyvett. Council Brief Advertising [email protected] KATHRYN BECK from Auckland has been confirmed as the new NZ Law Society President, to take effect at the NZLS council meeting in March 2016. Kathryn is a partner at SBM Legal, a boutique employment law firm based in Auckland and working throughout New Zealand. She is a member of the NZLS Auckland Branch Council and the Vice President for Auckland of the New Zealand Law Society. She has a BCom (Labour Relations) and LLB from the University of Auckland and more than 20 years of practical legal experience. Kathryn practises predominately in employment law with a diverse client base. She is experienced in alternative dispute resolution and regularly acts as mediator and facil- itator as well as conducting independent investigations. Her practice has generally had a litigation focus. She previously worked at Haigh Lyon for over 11 years and led the litigation team there. She has been active within the legal community, and is a member of the Board of the Auckland Community Law Centre and has been on the ADLS Council. She was Convener of the NZLS Employment Law Committee for a time and has been a submitter for the Law Society to Select Committees on legislative change. Among many issues, Kathryn sees three areas of likely future focus: access to justice, promotion and retention of women in the legal profession and practising well. 6 Community Law Centre COUNCIL BRIEF, NOVEMBER 2015 Parenting through separation – Community Law and Family Works By Ione Gill and Geoffrey Roberts COMMUNITY Law Wellington and Hutt Valley (CLWHV) maintains relationships with a variety of organisations to provide services and programmes throughout the Wellington region. We believe that by doing this we can share expertise and draw on each other’s strengths to better meet the complex needs of our community. One of our latest initiatives is partnering with Presbyterian Support Central (Family Works) to provide the Parenting Through Separation (PTS) programme in Wellington, Kapiti, Hutt Valley and Wairarapa. CLWHV has built up a significant amount of experience delivering legal education and is often a first port of call for family legal issues. Community Lawyers and education workers cofacilitate with social workers from Family Works to deliver this free four-hour programme, over one or two days, to parents who are at various stages of ending their relationship and want to learn how best to deal with the care of their children during this difficult time. PTS aims to educate parents on the effects of separation on children and to encourage parents to put the needs of their children first. PTS also has an emphasis on minimising and reducing children’s exposure to parental conflict and on giving parents tools to reach postseparation care arrangements that are in the children’s best interests and without recourse to the Family Court. Research has shown that children whose parents separate are more likely to have negative outcomes, but parents have the ability to minimise the impact of Proposed repeal of redundant laws A DRAFT bill intended to repeal a range of redundant laws has been released for comment. The Statutes Repeal Bill will remove 120 pieces of superfluous legislation, and parts of eight other acts. It is being consulted on before it is introduced to Parliament. Regulatory reform minister Steven Joyce said feedback was sought from any party who thinks that they may be affected by the repeal of any legislation proposed for inclusion in the Bill, and from the legal community. Earlier this year the Government accepted a Productivity Commission recommendation to increase the use of exposure drafts to improve New Zealand’s regulatory system. The Statutes Repeal Bill currently proposes to repeal or partially repeal 120 Acts. It will reduce the total number of public Acts in force by 113, and the number of private Acts by seven. The draft bill and information on how to make a submission is available at http://www.pco.parliament.govt.nz/consultation-srb Submissions close on 4 December 2015. Law graduate CV scheme THE scheme to assist law graduates into work is still being operated by the Wellington Branch. Law graduates seeking work leave their CVs at the Society. These are available to potential employers needing staff who can refer to the CVs and choose appropriate graduates. The work offered need not be permanent. Any work in a law office will give graduates experience that may be helpful next time they make job applications. separation on their children.1 PTS has a focus on practical advice to help separating parents and their children deal with separation. Participants are encouraged to see their separation from their children’s perspective and come up with practical ways to keep their children away from conflict and to help them make a stable transition to their new situation. PTS offers participants the opportunity to learn valuable information by getting involved in discussions, contributing their own experiences, collaborating on activities and watching clips of children talking about what it was like for them when their parents separated. PTS also aims to enable grandparents and the wider whanau to get involved to support the children involved and to help parents minimise conflict. As a rule, ex-partners to the same Book early for Law Society events! Wellington lawyers are very keen to attend events presented by the Wellington Branch office. For several recent events demand has outstripped the number of places and long waiting lists have resulted. The answer is to please book early or you risk being disappointed. there is the opportunity for a connection where both participants are given a window into what it could be like for their expartner. If you need to refer a client or friend to this programme then please check out the Family Works website with details of our programme: www.psc.org.nz/family-works/ services-2/parenting/ parenting-through-separation . Footnotes 1 www.justice.govt.nz/publications/ publications-archived/2009/ evaluation-of-the-parenting-throughseparation-programme Lifeline Counselling has a team of qualified professional counsellors experienced in working with clients across a broad range of issues. Our high-quality confidential service can help with day-to-day issues such as: stress, anxiety, burnout, depression, relationship issues, grief, trauma and addiction. All our Counsellors are qualified to Masters level and are members of the NZ Association of Counsellors. For New Zealand Law Society members and families we are offering a discounted rate: $110 based on a normal 60min session Currently this Face-to-Face service is only available in person in the Auckland region. Other regions will be introduced in time. Skype Face-to-Face counselling applies throughout New Zealand. Please contact Lifeline Counselling on http://bookwhen.com/wellington-branch NZ Law Society – Wellington Branch Branch Manager: Catherine Harris Branch Administrator: Geeta Raman Librarian: Robin Anderson Research Librarian: Nicola Stedman [email protected] or phone 09 909 8750 COUNCIL BRIEF The monthly newspaper of the Wellington Branch NZ Law Society ISSN 2382-2333 Fax: 04 471 2568 Advertising Rates: casual or contract rates on application. Telephone Robin Reynolds, Reynolds Advertising, Kapiti Coast (04) 902 5544, e-mail: [email protected]. Rates quoted exclude GST. Advertising Deadline: for the December 2015 issue is Wdnesday 25 November, 2015. Circulation: 3150 copies every month except January. Goes to all barristers and solicitors in the Wellington, Marlborough, Wairarapa, and Manawatu areas. Also goes to many New Zealand law firms, to law societies, universities, judicial officers, and others involved in the administration of justice. Will Notices: $50.00 GST inclusive for each insertion. Subscriptions: Annual subscription $60.00 incl. GST. Extra copies $5.00 each. Subscription orders and inquiries to: The Branch Manager, New Zealand Law Society Wellington Branch, P.O. Box 494, Wellington. Editor: Chris Ryan, telephone (06) 378 7431 or 027 255 4027 E-mail: [email protected] email: [email protected] Opinions expressed do not necessarily reflect those of the NZ Law Society Wellington Branch or the Editor. Technical Services Librarian: Liz Oliver Library Assistant/LINX: Julie Kirkland PO Box 494, Wellington Phone: 04 472 7837 Email: [email protected] Website: www.lawsociety.org.nz NZ Law Society Library, Wellington Phone: 04 473 6202 Deadline December Council Brief – Tuesday 24 November relationship do not attend the same PTS course. Parents attend the course at different stages of their journey through separation, from being separated for one week to being separated for ten plus years. The parents are also at hugely varied stages in the legal process; some have only a verbal parenting agreement, others are going on to Family Dispute Resolution and some have protection orders against them. It is often reassuring for parents to realise that they are not the only one going through separation. Further, when someone recovering from addiction sits beside a participant whose expartner has addiction issues, Council Brief Advertising [email protected] Council Brief is published for the NZ Law Society Wellington Branch by Chris Ryan, and printed by Beacon Print, Hawke’s Bay. Contributory mortgages New requirements for law firms providing contributory mortgage lending services Torts law museum - CONSUMER advocate and former US presidential candidate Ralph Nader has opened an ‘American Museum of Tort Law’ in Winsted, Connecticut, reports NPR. The museum is filled with items like defective toys and unsafe machines tied together under a unifying theme: tort law. Many of the items on display were exhibits used in court cases. Nader came to prominence with the publication of his 1965 book Unsafe at Any Speed, a critique of the safety record of American car manufactuurers, particularly the first-generation Chevrolet Corvair. A bright-red Corvair is the museum’s centrepiece. Nader’s book helped establish car safetly features such as seat belts and airbags. By Beatrix Chin LAWYERS offering contributory mortgages under the current Securities Act (Contributory Mortgage – Solicitors and Incorporated Law Firms) Exemption Notice 2013 will be subject to new requirements rolling in on 30 September 2016 when the lawyer Exemption Notice expires. All affected law firms should by now be registered as a Financial Service Provider and be a member of an approved Financial Dispute Resolution Scheme in order to be Securities Act compliant. Upon expiry of the lawyer Exemption Notice, the NZLS, which provides lawyers with a separate compliance regime, will cease to regulate lawyers operating contributory mortgage lending services and the Financial Markets Authority (FMA) will take over the supervision of all contributory mortgage providers under its new Financial Market Conduct Act 2013 (FMCA) regime. Transitional provisions Under clauses 7 and 53 of Schedule 4 FMCA, new offers and existing contributory mortgage investments can, before the Exemption Notice expires on 30 September 2016, continue to be governed by the former NZLS regime – unless the law firm elects to come under the new FMCA regime earlier. However from 1 October 2016 to 30 November 2016, all contributory mortgages must be offered and managed under the Securities Act (Contributory Mortgage) Regulations 1988 (SA Regulations) (which apply to brokers who are not lawyers), unless the investments are already being managed under the new FMCA. From 1 October 2016, regardless of whether lending services are offered under the Securities Act Regulations or under the new FMCA regime, the FMA will supervise all contributory mortgage providers. The new FMCA regime Finally, from 1 December 2016, all new offers of contributory mortgages must be compliant with the new FMCA regime. New FMCA ongoing obligations such as disclosure and governance requirements need to be complied with. Note however notwithstanding the commencement of the new FMCA regime, existing contributory mortgages issued before 1 December 2016 can continue to be managed under the SA Regulations until they are cancelled, redeemed, forfeited or the obligations under them are discharged. Peer-to-Peer Lending (P2P) and Managed Investment Schemes (MIS) Under the FMCA, there are no specific provisions relating to contributory mortgages and a law firm offering contributory mortgage services will be treated as a financial broker, required to proffer financial market services under an FMCA category. They will likely be seen to be operating either under the FMCA’s “Managed Investment Schemes” (MIS) category or the Peer-toPeer Lending (P2P Lending) category. Briefly, MIS are schemes whereby the MIS Manager pools money contributed to the scheme by investors as consideration to acquire interests (financial benefits) produced under the scheme. “Regulated offers” under MIS will require disclosure and governance as prescribed for MIS and a licensed fund manager as well as an independent licensed supervisor. P2P Lending involves the facilitator acting as an intermediary between borrowers and lenders. Under this scheme, a licence is required if you want to match borrowers wishing to offer debt securities without supplying a product disclosure statement (PDS) with lenders wishing to loan money. Borrowers can then rely on an FMCA exemption which does not mandate a PDS. To obtain a P2P Lending licence, minimum standards need to be met. Once granted, there are numerous ongoing obligations such as complying with fair dealing policies, having a written agreement with clients, providing disclosure statements and monitoring ongoing compliance. Further, the applicant will have to demonstrate that it is able to meet the standard conditions that are attached to the P2P licence. Similar obligations apply to licensed MIS managers. and comply with the obligations imposed by the SA Regulations. Law firms that do not wish to wind down their lawyers nominee companies and instead intend to operate under the new FMCA regime should be vigilant about the amount of preparation and time involved in transitioning and organising the firm’s procedures to ensure compliance with the new regime and adherence to the professional fiduciary duty and duty of care to the lender. The NZLS may provide further specific guidance to law firms once more detailed requirements about ongoing transitional arrangements are received from the FMA. In the meantime any enquiries or requests for updates should be directed to the FMA at www.fma.govt.nz. Council Brief December issue deadline 24 November ❑ This article was first published in Canterbury Tales Options going forward Post 30 September 2016, law firms can: • Operate under the SA Regulations; • Re-offer contributory mortgages under the new FMCA regime; or • Cease contributory mortgage lending operations completely. In considering the way forward, note that if a law firm chooses to manage existing contributory mortgages under the SA Regulations instead of opting to operate straight under the new FMCA, then it would have to comply with two separate compliance regimes come 1 December 2016 when all new financial services are required to be offered under the FMCA. Further, until the firm ceased to operate under the SA Regulations, the law firm would need to register as a contributory mortgage broker Informal drinks at Wellesley Boutique Hotel 20 November & 18 December MA 1 2 DESIGN !!!!!!!!" ?$ I B M R >$ O T U A =$ <$ S U C N ;$ : $ If you get to move first, would9$ you rather be white or black? 8$ Why? %@ABCDEFG' © Mark Gobbi 2015 PRACTISING WELL You can use this diagram for either the Quick or Cryptic Clues, but the answers in each case are different. This month’s solutions are on page 2. Chaplain, Julia Coleman, 027 285 9115 Cryptic Clues DOWN 7. A line used in malaria treatment (6) 8. Make a choice in this election (6) 10. In my view, a vegetable with very good stuffing (7) 11. A step in the making of dough (5) 12. Give out when it’s time to come back (4) 13. An unlicensed receiver (5) 17. Leaves with all debts settled (5) 18. Fairy required, some experience necessary (4) 22. If all plants were this, there would be no great variety (5) 23. Reputation for enjoying poor health? (3-4) 24. He knew where to draw the line (6) 25. High jinks with a saucy flavour? (6) 1. Role man has created as a social worker (7) 2. Tract of the brave New World (7) 3. Odd trio holds a proportion (5) 4. A particular deference (7) 5. Maybe the present state of a nervous person (5) 6. To come up before her is not the same (5) 9. Centaur in doubtful form (9) 14. Ruffian out to provide popular entertainment (3,4) 15. Slackened and became loose in a rush (7) 16. Grant permission to break silence (7) 19. Did little after I’d made the running (5) 20. Give birth to a plot (5) 21. Amphibious cart? (5) m Unravel the following word: COUNCIL BRIEF CROSSWORD ACROSS 7 COUNCIL BRIEF, NOVEMBER 2015 Quick Clues ACROSS DOWN 7. 8. 10. 11. 12. 13. 17. 18. 22. 23. 24. 25. 1. 2. 3. 4. 5. 6. 9. 14. 15. 16. 19. 20. 21. Skilled (6) Acme (6) Feeling (7) Clear (5) Rational (4) Sham (5) Avidity (5) Couple (4) Object (5) Decisive (7) Outcome (6) Venerate (6) Opposite (7) Nominate (7) Exhaust (5) Fervent (7) Nip (5) Obscurity (5) Guiltlessness (9) Squirm (7) Sailor (7) Small truck (7) Narrative (5) Foremost (5) Odd (5) Council Brief Advertising [email protected] 8 Are you looking for a new challenge? COUNCIL BRIEF, NOVEMBER 2015 ͻ DĞĚŝƵŵƐŝnjĞůĂǁĮƌŵǁŝƚŚĂĚŝǀĞƌƐĞ ƌĂŶŐĞŽĨĐůŝĞŶƚƐ ͻ ^ƵƉƉŽƌƟǀĞĂŶĚƌĞǁĂƌĚŝŶŐƚĞĂŵ ĞŶǀŝƌŽŶŵĞŶƚ Gawith Burridge Consultation begins on Contract and Commercial Law Bill THE Government is seeking submissions on an exposure draft of the Contract and Commercial Law Bill. Eleven contract and commercial statutes, some dating back to 1908, have been revised and consolidated into a single Bill without changing the substantive effect of the law. Attorney-General Christopher Finlayson QC said this was the first revision Bill of the government’s statute revision programme, presented to the House of Representatives in December last year, aimed at producing an accessible, clear and up-to-date statute book for New Zealand. The Bill makes some very minor amendments to the law, as permitted under the statutory revision powers, which are clearly identified for comment. The exposure draft of the Bill and information about how to make a submission are available at www.pco.parliament.govt.nz/ consultation-cclb. Submissions on the draft Bill close on 4 December 2015 and feedback may be given through: www.pco.parliament.govt.nz/ consultation-srb Notices Are you looking for a new challenge? ͻ DĞĚŝƵŵƐŝnjĞůĂǁĮƌŵǁŝƚŚĂĚŝǀĞƌƐĞƌĂŶŐĞŽĨĐůŝĞŶƚƐ ͻ ^ƵƉƉŽƌƟǀĞĂŶĚƌĞǁĂƌĚŝŶŐƚĞĂŵĞŶǀŝƌŽŶŵĞŶƚ John William (Jock) Kershaw ĞƌƌLJΘŽŝƐĂƉƌŽŐƌĞƐƐŝǀĞůĂǁĮƌŵ providing a broad range of services. 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The ‘Night at the Gallery’ĂŶĚͬŽƌĂĐŽƉLJŽĨĂƉŽƐŝƟŽŶĚĞƐĐƌŝƉƟŽŶ͕ was hugely successful and over 250 young professionals ŽƌƚŽĂƉƉůLJĨŽƌŽŶĞŽĨƚŚĞƌŽůĞƐƉůĞĂƐĞ enjoyed the evening. Practising well supporting professional goals ĐŽŶƚĂĐƚDĂĚĞůĞŝŶĞ,ĂǁŬĞƐďLJŽŶ ϬϮϭϰϵϱϵϵϯ͕ŽƌĞŵĂŝů͗ ŵĂĚĞůĞŝŶĞΛŚĂǁŬĞƐďLJĂŶĚĐŽ͘ĐŽ͘Ŷnj ůůĞŶƋƵŝƌŝĞƐĂŶĚĂƉƉůŝĐĂƟŽŶƐǁŝůůďĞ ƚƌĞĂƚĞĚǁŝƚŚƚŚĞƐƚƌŝĐƚĞƐƚĐŽŶĮĚĞŶĐĞ͘ zŽƵĐĂŶĂůƐŽĮŶĚŽƵƚŵŽƌĞĂďŽƵƚ ĞƌƌLJΘŽĂƚǁǁǁ͘ďĞƌƌLJĐŽ͘ĐŽ͘Ŷnj Council Brief The Young Lawyers Committee and Government Legal Network held a networking event last week to reflect on how practising well supports the achievement of professional goals. Speakers were Saar Cohen-Ronen (Crown Counsel Public Prosecutions Unit) and Una Jagose (Deputy Solicitor-General and Acting Director GCSB). Cur ad valt URL Proof read by:_______________________________ With: _______________________________ Date:_______________________________ tested: advertising proof 201 Closing date checked: revisions: job:C53246 1 2 $0 $0 3 4 5 $25 $50 $75 PLEASE NOTE: Saar Cohen-Ronen speaks to that we have prepared thisthe group. format: full colour size: 16x1 & 9x2 publication run date Cur ad vult Council Brief mid-Oct Nov 5th position sort costEXCLGST $150.00 $885.00 Kathryn Nicholas and Kylee Maree Haw. advertisement proof based on our understanding of the instructions received. In approving the advertisement, it is client’s responsibility to check the accuracy of both the advertisement, the media and the position nominated. Cancellation of adverts booked with media will incur a media cancellation fee of $50. Emma von Veh, Cassandra Kenworthy and Rosa your contact: Reynolds. Amy Members of the Wellington Branch Immigration Committee with Minister Hon Michael Woodhouse recently: Richard Small, Fraser Richards, Mahinarangi Tangaere, David Dunbar, the Minister, Kar-Yen Pardington, Kamil Lakshman (Convenor), Rowland Woods, John Petris and Rhyn Visser. The NZLS Wellington Branch Immigration and Refugee Committee Dinner with the Minister of Immigration at the Wellington Club has become an annual event. The committee has become familiar with Minister Woodhouse as he has attended annual dinners on three occasions during his tenure as Minister of Immigration. The President of the Wellington Branch Council is normally present. This year we had David Dunbar, the Vice President to grace the occasion. These dinners are very useful, both for the Minister and the Committee members as it provides a relaxed and enjoyable forum to delve deeper into the emerging and pertinent issues of the day in the New Zealand immigration and refugee field. Georgina Dickson, Ved Prasad, Genevieve Rainey and Rebecca Garden. Ved Prasad, James Gallagher, Nathan Hollis and Amada Wilson. The Solicitors’ Benevolent Fund – ways to donate Donations to the Solicitors Benevolent Fund can be made through: Landmarks: Entick v Carrington—250 years on It’s ��� years since John Entick won his case in trespass against four of the King’s messengers, despatched by the Secretary of State under a warrant to seize “seditious papers”. Join us to hear a panel discuss the significance—then and now—of this famous case and the principles of the rule of law it stands for. Professor Richard Boast QC, Victoria University of Wellington Anthea Williams, Ministry for Primary Industries David Goddard QC, Thorndon Chambers Douglas Ewen, Brandon Street Chambers When: �.��–�pm, Thursday � November ���� Where: Lecture Theatre �, Government Buildings, �� Lambton Quay, Wellington RSVP: http://nzcpl-entick.eventbrite.com This event is part of the New Zealand Centre for Public Law’s Landmarks series that commemorates a number of significant legal anniversaries: Magna Carta (��� years) New Zealand Bill of Rights Act (�� years); the Treaty of Waitangi Act ���� (�� years) and Entick v Carrington (��� years). Book early for Law Society events! • “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 Wellington lawyers are very keen to attend events presented by the Wellington Branch office. For several recent events demand has outstripped the number of places and long waiting lists have resulted. 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, please email [email protected] with your name, the amount deposited and a contact number to ensure a receipt is issued and sent to the correct place. The answer is to please book early or you risk being disappointed. Council Brief Advertising http://bookwhen.com/wellington-branch [email protected]
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