The body of the Response indicates the Council considered there are many matters requiring further consideration. It is disappointing that the Society has rushed to engage with the government to get something on the “legislative agenda” before engaging with the profession on the issues where there is significant disagreement even within the Council.
Individual Council members, excluding the Board, voted electronically on each of the Panel’s recommendations. The votes were used to compile the Response which was adopted at the last of three Council meetings.
Readers of LawNews will know that I criticised the Report in two principal respects, the threat to lawyers’ independence and the recommendation that the new regulator be required to give effect to the principles of the Treaty.
The Response states that only 3 of the 20 Council member respondents accepted the fundamental proposition to establish a new regulator. 8 accepted it in principle. 3 did not accept. 6 felt further consideration was needed. So, 11 accepted or accepted in principle, 9 did not – a bare majority in favour of acceptance in principle.
If an independent regulator were to be established a majority of the Council respondents were of the opinion that it had to be independent and effective. The Response states: “The Law Society has nonetheless received clear feedback that if a regulator is established, it should not be a Crown entity, and it must be completely free from government and ministerial influence, both through funding and the appointment of Board members.” The Council was unable to respond to the next recommendation concerning the composition of the regulator’s board, without further consideration. Nor to the next one about who appoints the members of the board.
These survey answers and explanations in the Response seem to indicate the Council was of the view that an independent regulator is a good idea, but it must be completely independent of the government. How to achieve that has not been worked out.
This is a major advance in support of lawyers’ independence, but why trot off to the government -- opening the way for the government to do it the government’s way -- before either coming up with an acceptable mechanism to address the problem or dropping the independent regulator idea altogether?
The Council also had difficulties with the recommendation that the regulator be required to give effect to the principles of the Treaty. The Response reports that the recommendation was accepted in principle on the basis that 2 accepted it and 10 accepted it in principle with 2 not accepting it and 6 saying further consideration was needed. Problems for Council members reported in the Response concerned how such a clause might be worded and how it might be applied to a professional regulator.
The Response reports a wise observation: “Te Arawhiti [the office for Maori Crown Relations] has commented on the use of te Tiriti clauses, noting that: “A recent proliferation of Treaty clauses, however, has raised questions about the extent to which they are the product of well-considered policy and careful analysis of their legal and practical effect. If Parliament’s intended effects of a Treaty clause are not clear there is a risk they will not be implemented, potentially leading to unintended or adverse consequences both in the portfolio area and for the Māori Crown relationship.”
This has been the problem with Treaty clauses right from the start. Bung it into the legislation and let the parties fight over what it means. What are these principles of the Treaty? They seem to be whatever idea someone comes up with and can persuade a court or the Tribunal to accept.
NZLS has created its own problem for itself through the actions of previous Board members and presumably Council members setting up the reform structure with incorporation of Treaty principles as part of the agenda. As Chris Finlayson KC has pointed out, individual New Zealanders and non-Crown institutions like NZLS are not parties to the Treaty. Had there been clear thinking and the eschewing of ideological considerations, such ideas would have been rebuffed from the outset; the response to whoever was advocating for these ideas should have been: we are not the Crown, there is no need for us to get involved in that issue.
NZLS Council members may be well advised to ask whether there is something about the way the Society is governed and managed which has led to this unfortunate situation where the process was put in train with assumptions about the desirability of a new regulator and giving effect to the principles of the Treaty. Assumptions made before existence of well-considered policy and before careful analysis of the legal and practical effect of the assumptions.
Now it is in the hands of government bureaucrats who will make recommendations to Ministers according to their views. The people who speak for the profession and are required to serve our interests have gone to the government prior to the formulation of coherent and complete propositions. The reason the Response gives is “so that it can be considered for the Government’s legislative agenda.” Why does NZLS want it on the agenda when they do not know what they want?
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack - where this article was sourced.
Readers of LawNews will know that I criticised the Report in two principal respects, the threat to lawyers’ independence and the recommendation that the new regulator be required to give effect to the principles of the Treaty.
The Response states that only 3 of the 20 Council member respondents accepted the fundamental proposition to establish a new regulator. 8 accepted it in principle. 3 did not accept. 6 felt further consideration was needed. So, 11 accepted or accepted in principle, 9 did not – a bare majority in favour of acceptance in principle.
If an independent regulator were to be established a majority of the Council respondents were of the opinion that it had to be independent and effective. The Response states: “The Law Society has nonetheless received clear feedback that if a regulator is established, it should not be a Crown entity, and it must be completely free from government and ministerial influence, both through funding and the appointment of Board members.” The Council was unable to respond to the next recommendation concerning the composition of the regulator’s board, without further consideration. Nor to the next one about who appoints the members of the board.
These survey answers and explanations in the Response seem to indicate the Council was of the view that an independent regulator is a good idea, but it must be completely independent of the government. How to achieve that has not been worked out.
This is a major advance in support of lawyers’ independence, but why trot off to the government -- opening the way for the government to do it the government’s way -- before either coming up with an acceptable mechanism to address the problem or dropping the independent regulator idea altogether?
The Council also had difficulties with the recommendation that the regulator be required to give effect to the principles of the Treaty. The Response reports that the recommendation was accepted in principle on the basis that 2 accepted it and 10 accepted it in principle with 2 not accepting it and 6 saying further consideration was needed. Problems for Council members reported in the Response concerned how such a clause might be worded and how it might be applied to a professional regulator.
The Response reports a wise observation: “Te Arawhiti [the office for Maori Crown Relations] has commented on the use of te Tiriti clauses, noting that: “A recent proliferation of Treaty clauses, however, has raised questions about the extent to which they are the product of well-considered policy and careful analysis of their legal and practical effect. If Parliament’s intended effects of a Treaty clause are not clear there is a risk they will not be implemented, potentially leading to unintended or adverse consequences both in the portfolio area and for the Māori Crown relationship.”
This has been the problem with Treaty clauses right from the start. Bung it into the legislation and let the parties fight over what it means. What are these principles of the Treaty? They seem to be whatever idea someone comes up with and can persuade a court or the Tribunal to accept.
NZLS has created its own problem for itself through the actions of previous Board members and presumably Council members setting up the reform structure with incorporation of Treaty principles as part of the agenda. As Chris Finlayson KC has pointed out, individual New Zealanders and non-Crown institutions like NZLS are not parties to the Treaty. Had there been clear thinking and the eschewing of ideological considerations, such ideas would have been rebuffed from the outset; the response to whoever was advocating for these ideas should have been: we are not the Crown, there is no need for us to get involved in that issue.
NZLS Council members may be well advised to ask whether there is something about the way the Society is governed and managed which has led to this unfortunate situation where the process was put in train with assumptions about the desirability of a new regulator and giving effect to the principles of the Treaty. Assumptions made before existence of well-considered policy and before careful analysis of the legal and practical effect of the assumptions.
Now it is in the hands of government bureaucrats who will make recommendations to Ministers according to their views. The people who speak for the profession and are required to serve our interests have gone to the government prior to the formulation of coherent and complete propositions. The reason the Response gives is “so that it can be considered for the Government’s legislative agenda.” Why does NZLS want it on the agenda when they do not know what they want?
Gary Judd KC is a King's Counsel, former Chairman of ASB and Ports of Auckland and former member APEC Business Advisory Council. Gary blogs at Gary Judd KC Substack - where this article was sourced.
1 comment:
The question then is if there is so much concern who is driving this and why are they getting away with it?
Is it a case of the old adage, evil is the hand the slides into the glove of apathy?
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