Emerging from COVID-19 - Overnight everyone had to adapt how they worked - New Zealand Law Society
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I S S U E 9 4 1 · J u ly 2 0 2 0
Emerging from COVID-19
Overnight everyone had to adapt how they worked
Page 43
Satiu Simativa Staff wellness in How in-house Some further
Perese, Chief a post-COVID legal teams are issues in AML/
Justice of Sāmoa world dealing with CFT
the impact of
COVID-19
Page 12 Page 30 Page 36 Page 46
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9
06 · F R O M T H E L AW S O C I E T Y | ACCESS TO JUSTICE
TE KĀHUI TURE 22 · The Criminal Cases Review
Commission is underway
07 · N E W Z E A L A N D L AW S O C I E T Y |
▹ BY GEOFF ADLAM
TE KĀHUI TURE O AOTEAROA
24 · L AW Y E R S C O M P L A I N T S S E RV I C E
PROFILE
12 · Satiu Simativa Perese, TA L K I N G A B O U T M E N TA L H E A LT H
68
32 Chief Justice of Sāmoa 27 · Is there something wrong
▹ BY GEOFF ADLAM with me? ▹ BY EMILY MASON
PROFILE P R A C T I S I N G W E LL
15 · Sabina Bickelmann 30 · Staff wellness in a post COVID
▹ BY ANDREW KING world ▹ BY RAEWYN NG
PEOPLE PRACTICE
17 · On the Move 32 · Lawyers as Healers of Social
Conflict ▹ BY PAUL SILLS
ACCESS TO JUSTICE
20 · Pro bono clearing house PRACTICE
▹ BY CRAIG STEPHEN 35 · How in-house legal teams are
dealing with the impact of
COVID-19 ▹ BY ANDREW DE BOYETT
88
70
practice of law in New Zealand and represents lawyers who has a strict policy of not publishing articles in exchange
A B O U T L AW TA L K
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LawTalk is published monthly by the New Zealand Law Law Society are set out in the Lawyers and Conveyancers
L AW TA L K O N L I N E
Society | Te Kāhui Ture o Aotearoa for the legal profession. Act 2006. As well as upholding the fundamental obligations
It has been published since 1974 and is available to every imposed on lawyers who provide regulated services, the An online version of LawTalk is available on the New
New Zealand-based lawyer who holds a current practising Law Society is required to assist and promote the reform Zealand Law Society | Te Kāhui Ture o Aotearoa’s website
certificate. of the law, for the purpose of upholding the rule of law and at www.lawsociety.org.nz. A link to the latest online LawTalk
facilitating the administration of justice in New Zealand. is emailed to all practising lawyers each month after
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publication. Receipt of the hardcopy LawTalk may be
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4
Contents
PRACTICE U P D AT E – A C C I D E N T 64 · W I LL N O T I C E S
38 · Beyond future-proofing C O M P E N S AT I O N
66 · CLASSIFIEDS
▹ BY EMILY MORROW 52 · Does the legal profession
have any interest in the 67 · CPD CALENDAR
TECHNOLOGY
legal rights of accident
40 · What exactly is open source L I F E S T YL E
victims? ▹ BY DON RENNIE
software? ▹ BY DAMIAN FUNNELL 69 · A New Zealand Legal
U P D AT E – OV E R S E A S I N V E S T M E N T Crossword ▹ SET BY MĀYĀ
TECHNOLOGY
55 · Changes to the Overseas
42 · Emerging from COVID- 70 · TA I L E N D
Investment Act 2005
19 ▹ BY ANDREW KING
▹ BY PEDRO MORGAN
U P D AT E – A M L / C F T
U P D AT E – R E M E D I E S
46 · The AML/CFT regime and
58 · Electrix Ltd reaffirms NZ
some miscellaneous issues
quantum meruit position for
▹ BY STEVE DUKESON
contractors ▹ BY DERYA SIVA
U P D AT E – C A N N A B I S R E G U L AT I O N
L E G A L H I S T O RY
50 · The Cannabis Legislation
60 · At the Tribunals Bar
and Control Bill 2020
▹ BY SIR IAN BARKER QC
▹ BY OLIVER FREDRICKSON
F O R M AT O F T H I S I S S U E PEOPLE
Actions taken because of the COVID-19 pandemic have P R E S I D E N T Tiana Epati
resulted in this being the fourth consecutive issue of
LawTalk which is not published in hardcopy. Instead, it is VICE PRESIDENTS
D I G I TA L C O N T E N T E D I T O R SENIOR DESIGNER
available online and has been distributed by email and Jacqueline Lethbridge (Auckland)
Craig Stephen Andrew Jacombs
through the Law Society's website. This issue retains the Herman Visagie (Central North Island)
craig.stephen@lawsociety.org.nz andrew.jacombs@lawsociety.org.nz
design and layout of the hardcopy version and we hope Arti Chand (Wellington)
that readers will find it as informative and useful to the Frazer Barton (South Island) C O M M U N I C AT I O N S A D V I S O R DESIGNER
practice of law as our past issues. (SOCIAL MEDIA) Sophie Melligan
CHIEF EXECUTIVE
Jamie Dobson sophie.melligan@lawsociety.org.nz
C O N TA C T D E TA I L S Helen Morgan-Banda
jamie.dobson@lawsociety.org.nz
JUNIOR DESIGNER
PO Box 5041, Wellington 6140, New Zealand C O M M U N I C AT I O N S M A N A G E R
WEBMASTER Nina Gillanders
DX SP 20202 Morwenna Grills
Miranda Kaye nina.gillanders@lawsociety.org.nz
morwenna.grills@lawsociety.org.nz
PRINTING AND DISTRIBUTION miranda.kaye@lawsociety.org.nz
A D V E RT I S I N G
L AW TA L K E D I T O R
Blue Star, Petone, Wellington D I G I TA L C O N T E N T S P EC I A L I S T Maria Pirela · 04 463 2905
Geoff Adlam
ISSN 0114-989X (Print) · ISSN 2382-0330 (Digital) Angela Ludlow advertising@lawsociety.org.nz
editor@lawsociety.org.nz
angela.ludlow@lawsociety.org.nz
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F R O M T H E L AW S O C I E T Y | T E K Ā H U I T U R E J u ly 2 0 2 0 · L AW TA L K 9 4 1
F R O M T H E L AW S O C I E T Y | T E K Ā H U I T U R E
An important step for the
future of our profession
to get us to this point.
This week concludes our month- Our next steps will be to analyse
long consultation with the pro- and consider all your feedback and
fession and the public on the share a summary before the final
proposed changes to lawyers’ version is provided to the Board,
conduct rules under the Lawyers Minister and Council. Given the
and Conveyancers Act (Lawyers: process we are required to follow,
Conduct and Client Care) Rules 2008 our goal is to implement the new
(RCCC) and the (Lawyer: Ongoing Rules in 2021.
Legal Education Continuing One of the questions we have
Professional Development) Rules been asked is why it has taken so
2013 (CPD). long to develop these proposed
The proposed rules are a major changes. We worked closely with
step – for the first time any kind of the Government to explore options
discrimination, bullying, harass- to change the regulatory framework,
ment, sexual harassment and other initially proposing changes to the
unacceptable conduct will be clearly Lawyers and Conveyancers Act
defined; the threshold for reporting 2006. However, we were told this
unacceptable conduct to the Law was not possible at this time.
Society will be made clearer; and We then had to change tack – to
there will be rules to protect any one investigate what we could do to
who makes a report or complaint. strengthen our powers within the
The proposed changes will also existing regulatory framework. We looked at the rules I am confident the Law Society
require those who manage and oper- and regulations that applied to professionals both in New is doing what we can as one of the
ate law practices to provide a report Zealand and overseas and sought advice from regulation leaders in the profession to help
each year, declaring these issues are and ethics experts. bring about change. But again, we
being managed appropriately. The changes were informed by this advice, as well as cannot do this alone. Real change
The changes are critical to the work and recommendations of the Law Society’s will only take place when everyone
strengthening the Law Society’s Independent Regulatory Working Group chaired by in our profession takes responsibil-
ability to address this pressing Dame Silvia Cartwright, the 2018 Workplace Environment ity – from law schools right through
issue and our best option to fortify Survey and concerns and experiences courageously to senior judiciary. Whether that is
our regulatory arm. It has been a shared by many within the legal community. While all stepping up to support a colleague
complex journey to get to this point this has taken time, I believe the proposed changes are and calling out inappropriate behav-
and it is heartening to see such a even more robust as a result. iour (“showing up”) or consciously
positive response from the sector. It is understandable that some are frustrated by self-educating and building a
The Law Society is committed to the time it has taken to get to this point. I share that supportive, non-discriminatory
playing a leadership role in target- frustration. However, it is important to note that since environment within your workplace
ing and eliminating the culture of these issues became public in 2018, the Law Society has (“doing the work”). We all have a
discrimination, bullying and sexual not stood still. We have introduced several initiatives role in this.
harassment which exists in some to support healthy, safe, respectful and inclusive legal What is important is what we
parts of the legal community – but workplaces, including free counselling and an 0800 do now – and how we bring about
we cannot, and should not, do this number for those affected. fundamental, lasting change for the
alone. These changes will only be I have also spoken publicly about these issues – includ- future of our profession. ▪
effective if they are adopted and ing the need to take an intersectional approach which
embedded by the profession – and goes beyond just gender – on many occasions to keep Tiana Epati
I want to thank all those who have the conversation moving forward. All voices, on all forms President, New Zealand Law Society |
provided their time and expertise of discrimination, must be heard. Te Kāhui Ture o Aotearoa
6
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N E W Z E A L A N D L AW S O C I E T Y |
TE KĀHUI TURE O AOTEAROA
Public input sought on proposed
Conduct and Client Care changes
and other unacceptable conduct will informed by this advice as well as
The New Zealand Law Society | be clearly defined; the threshold for the work and recommendations
Te Kāhui Ture o Aotearoa is now reporting unacceptable conduct to of the Law Society’s Independent
inviting public consultation into the Law Society has been made Regulatory Working Group chaired
proposed lawyers’ Conduct and clearer; and there will be rules to by Dame Silvia Cartwright, the 2018
Client Care Rules changes around make it clear no one who makes Workplace Environment Survey and
bullying and sexual harassment. a report or complaint should be concerns and experiences coura-
As part of its work to help create victimised, she says. geously shared by many within the
healthy, safe, respectful and inclu- Additionally, the proposed legal community.’’
sive legal workplaces, the Law changes will require those who Consultation with all stakeholders
Society is seeking consultation on manage and operate law practices to will be vital to developing robust
proposed changes to the Lawyers provide a report each year, declaring and enduring Rule changes that
and Conveyancers Act (Lawyers: that these issues are being managed support cultural change within the
Conduct and Client Care) Rules 2008 appropriately. profession, Ms Epati says.
(RCCC) and the (Lawyer: Ongoing The Law Society worked closely “These are significant issues for
Legal Education Continuing with the Government to explore our profession – and these changes
Professional Development) Rules options to change to the regula- need to be developed by the profes-
2013 (CPD). tory framework. “While changes sion for the profession to be effec-
“Our priority is to strengthen to Lawyers and Conveyancers Act tive. I strongly encourage everyone
our ability, within our sphere of 2006 were proposed, we were told to have their say.”
influence, to address unacceptable this was not possible at this time. Public consultation on the pro-
behaviours by lawyers and employ- We therefore looked at the rules and posed rules changes was open until
ees of law firms,’’ Law Society regulations that applied to profes- 5pm, 3 July 2020.
President Tiana Epati says. sionals both in New Zealand and Further queries or additional
The proposed RCCC and CDP rules overseas and sought advice from feedback can be sent to the
changes are a significant step: for regulation and ethics experts.” dedicated Law Society inbox:
the first time, discrimination, bully- ‘’While this took time, the rulechangesfeedback@lawsociety.
ing, harassment, sexual harassment proposed rules changes were org.nz. ▪
Pacific Lawyers Association invited
to join Law Society Council
The Pacific Lawyers Association Pacific lawyers and Pacific people.
The New Zealand Law Society | was established in 2001 and has the Members include law students and
Te Kāhui Ture o Aotearoa has objective of promoting fellowship, graduates, lawyers and members
announced that it is delighted to wel- mutual support and continuing of the judiciary, who are of Pacific
come the Pacific Lawyers Association legal education for Pacific lawyers, descent and/or who have Pacific
to the Law Society Council as inde- identifying and responding to the affiliation. ▪
pendent observers, at the invitation legal needs of Pacific communities,
of the President, Tiana Epati. and promoting issues of relevance to
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N E W Z E A L A N D L AW S O C I E T Y | T E K Ā H U I T U R E O A O T E A R O A J u ly 2 0 2 0 · L AW TA L K 9 4 1
Key proposals for change to the
Conduct and Client Care Rules
the Lawyers and Conveyancers Act 2006 was initially “bullying means repeated and
This issue of LawTalk appears considered, the advice was that this was not possible. unreasonable behaviour directed
near the end of the consultation Substantive changes to the Act could follow the inde- towards a person or people that may
phase on the proposals to change pendent review of the structure and function of the lead to physical or psychological
the rules which apply to all lawyers. Law Society which was announced in October 2019. harm”;
This summary outlines some of the In the meantime, changes to the RCCC and CPD rules “discrimination means discrim-
key changes which are proposed. are being proposed in response to the Working Group’s ination that is unlawful under the
The full set of proposals has been recommendations. Human Rights Act 1993 or any other
sent to all practising lawyers and enactment”;
is also available on the Law Society How can any changes be effected? “harassment means– (a) intim-
website. After the consultation process, any final changes to the idating, threatening, or degrading
RCCC and CPD Rules must be approved by the Council behaviour directed towards a person
Why is change needed? of the Law Society and the Minister of Justice. or group that may have a harmful
The revelations and discussion effect on the recipient; and (b)
which began in 2018 about bullying Objectives includes repeated behaviour but
and sexual harassment in the legal The Working Group identified keys areas for regulatory may be a serious single incident”;
profession resulted in a commitment change to address serious conduct issues within the “sexual harassment means– (a) a
by the Law Society to help create legal community. One of the issues it noted was the request made by a person of any
healthy, safe, respectful and inclu- fact that the RCCC did not expressly state that sexual other person for sexual intercourse,
sive legal workplaces. Alongside violence, sexual harassment, bullying and discrimination sexual contact, or any other form
widespread input from the legal amount to breaches of specific RCCC rules. The Working of sexual activity that contains an
community, important contributors Group also observed it was problematic that it was not implied or overt promise of prefer-
have been the 2018 Legal Workplace clear how sexual violence, harassment, bullying and ential treatment or an implied or
Environment Survey, the December discrimination fitted within the statutory definitions of overt threat of detrimental treat-
2018 report and recommendations “unsatisfactory conduct” and “misconduct” that were ment; or (b) subjecting another
by the Independent Regulatory in the Act person to behaviour of a sexual
Working Group chaired by Dame The proposed RCCC and CPD Rules changes draw on nature that is unwelcome or offen-
Silvia Cartwright and consultation the Working Group’s recommendations for reform and sive to that person (whether or not
with executive and departmental aim to provide: it was conveyed to that person)”;
government, workers in the regu- • Clearer conduct obligations; “violence includes all forms of
latory and complaints area, the Law • Clearer reporting obligations; physical, psychological, and sexual
Society Board and members of the • Protections for those reporting or experiencing unac- abuse or assault”.
Culture Change Taskforce. The result ceptable conduct;
is a set of proposed changes to the • Closer regulation of legal workplaces; and Clarity on obligations
Lawyers and Conveyancers Act • Obligatory education and training aimed at reducing Obligations contained in the
(Lawyers: Conduct and Client Care) unacceptable behaviour. Schedule to the RCCC are to be incor-
Rules 2008 (RCCC) and the (Lawyer: porated into the rules themselves to
Ongoing Legal Education Continuing Who will the changes affect? emphasise that the preservation of
Professional Development) Rules All lawyers and employees of law practices: an individual the integrity and reputation of the
2013 (CPD Rules). lawyer practising on own account or everyone employed profession is the responsibility of
in any entity providing regulated services to the public. all lawyers, to ensure public trust
Why not legislative This is defined in RCCC 1.2. and confidence. Inclusion of these
change? obligations in the body of the rules
Close contact with Government New Definitions also makes it clear that there can
has been maintained throughout. Specific definitions of bullying, discrimination, harass- be a regulatory response when a
While the prospect of changes to ment and violence are included in RCCC 1.2. lawyer’s conduct does not meet
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these standards. RCCC 1.5.2 would law practice to terminate a retainer with the obligations contained in RCCC 11 in relation
state: “The preservation of the with a client if the client engages in to how a practice is operated.
integrity and reputation of the legal sexual harassment, sexual violence, • A new RCCC 10.3 would make it clear that discrim-
profession is the responsibility of discrimination, bullying and other ination, harassment, bullying, and violence are
every lawyer.” unacceptable behaviour towards a unacceptable within the legal community, with the
lawyer or employee. intention of simplifying enforcement for any breach.
Reporting obligations • A new RCCC 10.4 would reinforce the obligations to
Changes are proposed to the Lawyers responsible for respond appropriately to requests for information
reporting obligations in RCCC operating a law practice from the Law Society as regulator.
2.8 to improve the reporting of RCCC chapters 10 and 11 are re-or- Changes are proposed to RCCC 11 (to be entitled “Proper
unacceptable behaviour in the dered to differentiate between professional practice”) to simplify the wording and to
legal community and to provide general obligations which apply to expand the obligations to apply to employees and people
safeguards for those who report all lawyers (Chapter 10) and specific engaged by the practice, including summer clerks, vol-
or support reporters and people obligations relevant to lawyers who unteers, contractors and others who may be affected
who are subject to it. The refer- are responsible for the operation by unacceptable conduct at the practice.
ence to the report being ‘confi- and management of a law practice • The current RCCC 11.3 would be moved forward to
dential’ is removed, to assist in (Chapter 11). The proposed changes 11.1 with the wording simplified to confirm it relates
clarifying the process that will seek to set clear standards of what to the operation of the practice.
follow when a report is made. is expected of lawyers in their pro- • A new RCCC 11.2 would confirm each law practice
The proposed changes are also fessional capacity and should make must have effective policies and systems in place
designed to include protections it easier to differentiate between a to protect employees and other people working for
and exceptions for victims of the lawyer’s individual responsibilities the practice and ensure that the workplace is a safe
behaviour and make it simpler to as opposed to a lawyer’s responsibil- place for all.
understand when a report should ities when managing a law practice. • A new RCCC 11.3 would require a law practice to have
be submitted. The overall intention is closer reg- a designated person responsible for discharging new
ulation of workplace obligations, a reporting obligations designed to ensure unacceptable
Victimisation key element of the Working Group’s conduct by lawyers and employees is reported to the
A new rule RCCC 2.10 specifically recommendations. Law Society.
says that a lawyer must not vic- The heading to RCCC 10 would • A new RCCC 11.4 to 11.4.3 would establish new report-
timise a person who, in good faith, refer to “Professional standards”, ing obligations designed to ensure unacceptable
makes a complaint or report to the with the statement that “A lawyer conduct by lawyers and employees is reported to
Law Society. The definition of victi- must promote and maintain profes- the Law Society.
misation is wide and includes bully- sional standards.” • The existing RCCC 3.8, relating to the complaints pro-
ing, intimidating and professionally • Changes to RCCC 10.1 would cedures a law practice must have in place for clients,
disadvantaging someone. The inten- remove the inconsistency of would be moved to Chapter 11 to create RCCC 11.5. This
tion of the rule is to protect people lawyers being required to treat would group the obligations relevant to operating a
who come forward with complaints other lawyers with respect and practice together.
or concerns about conduct and to courtesy as opposed to treating
mark out victimising behaviour as all people they engage with in a CPD Rules changes proposed
completely unacceptable in the legal professional capacity with respect Changes are proposed to CPD Rules 3, 4 and 6 to allow
community. and courtesy. for introduction of a mandatory CPD component. This
• A new RCCC 10.2 would rein- would enable incorporation of training to address unac-
Termination of lawyer- force the overriding obligation ceptable behaviour in the legal community. The provision
client relationships to maintain the reputation of is intentionally broad to avoid an overly prescriptive
Changes are proposed in RCCC 4.2 to the profession, to simplify its approach and to enable targeted and effective education
provide a pathway for a lawyer or a enforcement, and to be consistent to be included in any mandatory component. ▪
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N E W Z E A L A N D L AW S O C I E T Y | T E K Ā H U I T U R E O A O T E A R O A J u ly 2 0 2 0 · L AW TA L K 9 4 1 Emergency COVID-19 legislation needs additional safeguards, Law Society says The COVID-19 Public Health Response Act 2020, passed under urgency on 13 May, enables orders imposing the most profound peace- time restrictions ever made to the rights and personal freedoms of all New Zealanders, and the New Zealand Law Society | Te Kāhui Ture o Aotearoa has recommended nine amendments to provide additional safeguards on the exercise of powers under the Act. Following passage of the legisla- tion, Parliament agreed to a motion that the Finance and Expenditure Committee would inquire into the operation of the Act and report to the House no later than 27 July 2020. The Law Society told the commit- tee on 11 June that it agreed that because the Act was passed under account wider economic and social new legislation to deal with the urgency, is given proper select com- considerations.” ongoing public health response to mittee scrutiny,” Mr Orpin-Dowell The Law Society also recom- the COVID-19 emergency had been said. mended other changes to the Act, needed and the new framework was The Law Society therefore such as strengthening Parliament’s an improvement, but it should have asked the committee to report to oversight and scrutiny of orders, had public and select committee Parliament at the earliest avail- and improving New Zealanders’ scrutiny before being passed by able date, so there was time for ability to access orders so they Parliament. any proposed amendments to be could understand and comply with “Allowing just a few days for the considered and enacted without the law. usual select committee process using urgency, before Parliament It was also important to recon- would have enabled better consider- adjourned, he said. This was particu- sider the risk threshold for Police ation of the legislation before it was larly important if powers under the to exercise the power to enter enacted, and increased its public Act needed to be used in the event premises, including private homes, legitimacy,” Law Society spokesper- there was a resurgence of COVID-19 without a warrant. son Jonathan Orpin-Dowell told the cases and New Zealand returned to The Law Society said it acknowl- committee. a higher alert level. edged the challenging balance The Law Society said it supported “As is now well known, restric- required between enforcement the Finance and Expenditure tions in Alert Levels 4 and 3 action to prevent the spread of Committee’s post-enactment impacted on almost every aspect of COVID-19, and New Zealanders’ review, as an innovative procedure New Zealanders’ lives, and restric- rights under the New Zealand Bill and an opportunity to review and tions on the rights and freedoms of of Rights Act 1991 to be free from improve the Act. all New Zealanders may be imposed unreasonable searches. However, “The problem however is that time again under the new Act,” Mr Orpin- this balance could be better struck in is very short to allow Parliament to Dowell said. the Act, by reserving the warrantless consider and amend the Act before “One important amendment is powers of entry only for cases where Parliament adjourns on 6 August to impose a higher threshold for a constable had reasonable grounds ahead of the general election – and the making of a section 11 order, to believe it was necessary to enter it is essential any amendment bill that the Minister is satisfied the premises to provide a direction to introduced to correct shortcom- order is 'reasonably necessary' as prevent an immediate risk to the life ings that weren’t picked up earlier a proportionate response taking into or safety of any person. ▪ 10
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A letter to the Editor
He also worked with a number of team. And thanks to him, many of us will never forget
Many of us will have read the contributors to ensure the voice of how to spell ‘practising’.
work of Geoff Adlam over the years, the profession was always heard. Geoff isn’t considering himself retiring. The phrase is
either in this publication which he Former Law Society President far too prescriptive. He will however continue to write
edited or through the many news Kathryn Beck says Geoff “seemed for various publications and pursue writing another
stories, media releases and editions completely unflappable and noth- novel. Come summer, he will have time for many a
of LawPoints. After ten years with ing shocked him. Well nothing round of golf.
the Law Society Geoff is hanging up seemed to, I would hate to play On behalf of past employees, contacts, and ourselves,
his mouse, handing over the reins of him at poker! we would like to thank Geoff for his Managing of
LawTalk which he has so ably edited “He has a good feel for what is LawTalk, and for being our Manager.
as well as the management of us – important. If you look back over
the communications team – who copies of LawTalk topics had often The Comms team
have a deep respect for our former been covered before they became
leader. issues in the broader sense.”
As Editor of LawTalk, Geoff With his unique blend of court- Response from the Editor
brought together his skills and expe- room and newsroom experience Thank you to the Law Society's communications team for
rience honed in journalism and law Geoff could cover press releases the very kind words. I have thoroughly enjoyed working
to provide informed, entertaining which required legal expertise with the team (who are listed on the contents page)
and practical articles. His ethos through his own knowledge or and others in the Law Society. Their innovative spirit,
for the role was that an informed knowing where to find the right professionalism and ability to work during the lockdown
profession was a regulated one, information. He was also a con- and the abrupt relocation from Waring Taylor Street has
walking the tightrope between the duit between media and lawyers, been impressive. I am also greatly appreciative of the
Law Society’s roles as regulator and connecting those in the best place chance I've had to work with and be part of the legal
representative body with finesse. to speak to the issues of the day. profession and community over the years. It is full of very
In that sense he has produced a Despite a front that doesn’t give clever and innovative people who are finding ways to
wealth of information – articles, bul- away any secrets, Geoff has a huge overcome the issues which it faces in areas such as eth-
letins, statements and the ever-pop- sense of empathy, humour, wit and nicity, gender, workplace environment, access to justice
ular snapshots of the profession. sharp intellect which inspired his and more effective ways of delivering legal services. ▪
GST and unconditional gifts
definitions in section 2(1) of the made” aspect of the definition should acknowledge
The Law Society’s Tax Law Act. Inland Revenue should con- that although voluntary payment will generally be
Committee has pointed out a firm, in the summary or later in one that is not made under a contractual obligation,
number of items in an IRD draft the item, its position regarding there may be circumstances in which this is not the
interpretation statement which it payments “in kind”, ie, supplies case (for example, a payment under a deed of gift
believes should be reviewed and of goods and/or services, being may still be an unconditional gift).
revised. It has provided comments “unconditional gifts”. • The discussion of when a benefit arises “in respect
on the draft item PUB00332: Goods • The discussion of the relationship of ” a payment in the “unconditional gift” definition
and services tax – unconditional gifts between the “consideration” and should be reviewed and revised, particularly in rela-
(draft). This is intended to provide “unconditional gift” definitions tion to the reference to a benefit having a “sufficient
guidance on the interpretation and should be amended to make it connection” with a payment based on the benefit
application of the ‘unconditional clear that a payment to a non- being “conditional or dependent” on the payment.
gift’ definition in section 2(1) of the profit body may not fall within • A review of the draft discussion on the meaning
Goods and Services Tax Act 1985. the first part of the “considera- of “arises or may arise” would be beneficial as it is
Among the matters raised by the tion” definition, in which case confusing and does not appear to stay focused on the
Law Society: the issue of whether or not the words “arises or may arise”.
• The draft refers only to “pay- payment is an “unconditional • Various aspects of the eight examples given at the end
ments”, as per the “considera- gift” will be irrelevant.. of the draft should be reviewed and revised. Some are
tion” and “unconditional gift” • Discussion of the “voluntarily potentially confusing or misleading. ▪
11PROFILE J u ly 2 0 2 0 · L AW TA L K 9 4 1
PROFILE
Satiu Simativa Perese,
Chief Justice of Sāmoa
BY GEOFF
ADLAM
current constitutional arguments in Sāmoa, he said
The new Chief Justice of Sāmoa the judiciary should only very rarely engage in public
came to New Zealand for education discourse on issues that may ultimately require their
when he was aged seven. Half a cen- interpretation and determination.
tury later, aged 58, he sees his return “When parties come to judges for determination, they
to live in the country of his birth as should be confident that a judge will act with impartial
the next step of a completion of a fairness,” he said.
journey.
“I need to complete that journey The start of the journey
and go back to Samoa, to see to Satiu Simativa Perese was born in Magiagi, a village in
what extent I can contribute to the north of the island of Upolu. His father was Satiu
Samoa in its development, having Fea Leasuasu Perese of Salimu, Fagaloa and his mother
taken on board all of the gifts and was Ulufafo Samau of Tanugamanono. His father passed
taonga that I’ve picked up in New away when he was aged three.
Zealand,” Satiu Simativa Perese said “Towards the end of 1969 when I was seven, I said
before returning to his homeland. to my Mum that I would like to go to New Zealand; I’d
The COVID-19 pandemic meant a like to see what it looks like. One thing led to another
planned swearing-in was delayed by and before I knew it, I was sent to New Zealand to go
a month, but on 12 June in Vailele he to school.”
was sworn in by Sāmoa’s Head of His first New Zealand residence was in Napier with his
State, His Highness Tuimalealiifano maternal aunt and her husband, in the decade from 1970.
Vaaletoa Sualauvi II. The ceremony “I loved Napier. It was a great place. We were one of
was attended by Prime Minister about half a dozen Sāmoans living in Napier at the time
Tuilaepa Sailele Malielegaoi, the and it allowed me to enjoy the community and meeting “He looked at me, and gave me a
Speaker of Parliament, Leaupepe lots of palagi people. I built great friendships that have go. And that’s how I came to study
Toleafoa Faafisi, members of lasted the years, and I’m still friends with people I went law. I worked at night for most of my
Parliament and Cabinet, members to school with.” degree and went to law school during
of the judiciary, the diplomatic He left to go to university, but not to study law. the day. I used to work on Radio NZ’s
corps and his Sāmoa-based family “I’d always been interested in economics, so I went to community network. In those days
and guests. Massey University and started off a business studies degree. Radio NZ had all its community
He follows the 27-year tenure of However, a couple of years into it I became a broadcaster. I stations link into one programme
Patu Tiava’asu’e Falefatu Sapolu who was the first Sāmoan or Pacific person to have gone through from about 7 or 10 o’clock at night
was appointed in 1992 and was the the Radio New Zealand Announcing School.” depending on the area. We would
just the second Sāmoan-born Chief By then he was married to Lucia Angelina. The host all the Radio NZ stations and
Justice of the Supreme Court of first posting was to Gisborne for half a year, then to keep the signal going out until 5 in
Samoa. Whanganui, and then to Wellington “so that I could work the morning when the now-departed
“The method by which the judi- on the Radio New Zealand network to do newsreading Merv Smith used to take over from 5
ciary maintains the integrity of its and continuity announcing.” to 6. I’d hand over to him and then
impartiality is to apply the rule of Radio NZ would break back out into
law and speak through its judg- Law by day, radio by night the local stations again.
ments,” Chief Justice Satiu said in Law, however, had always been in his mind. After a “I would do the night shift and
his first address as head of Sāmoa’s holiday in Sāmoa, in February 1986 he returned to then turn up to do Legal System
judiciary. Wellington and sought a special dispensation from the during the day. It was a bit of hard
In an indirect reference to the Victoria University Dean of Law to enrol late. going for a while.”
12L AW TA L K 9 4 1 · J u ly 2 0 2 0 PROFILE
Finishing his LLB, he was admitted
as a barrister and solicitor in June
1990. His first job in law was with
the Crown Law Office. He started
with John Oliver and Keith Robertson
with a focus on arbitration, and then
moved into (later QC) Mary Scholtens’
commercial regulatory team. He
worked on tax cases and was also
involved in asbestos-related litiga-
tion around the important McKenzie
v Attorney-General [1991] NZLR 506
and [1992] 2 NZLR 14 decisions.
“I really enjoyed working with ▴ Sāmoan Head of State His Highness Tuimalealiifano Vaaletoa Sualauvi II and the new
some really great lawyers who Chief Justice.
taught me a lot about the law and
the practice of law. It was an honour
to junior Mary Scholtens and the
Solicitor-General in the Court of
Appeal or High Court. I certainly
learned a lot about litigation while
working for Crown Law.”
Off to Auckland
Satiu Perese and his wife moved to
Auckland in 1993 for family reasons.
For a promising litigator it was an
opportune time, as the 1993 General
Election saw Labour candidate
Richard Northey take the Onehunga
electorate by a very slim margin.
National challenged the result, ▴ From second left to right: The Speaker of the House, the Prime Minister, the Head
arguing that a number of those on of State, Satiu Simativa Perese Chief Justice of Sāmoa, and Archbishop Alapati
the roll weren’t entitled to be there. Mataeliga.
Togiatama v Parker [1994] 2 NZLR 347
was a great opportunity for Satiu.
“It was one of those sorts of cases
that underpins the motivation to do Then to New York “I wanted to do something that
the law degree to be able to contrib- While he was at Crown Law, Satiu Perese had read was completely different and so
ute and make a difference. It was one about Pauline Kingi who had returned from studying focused on international law. I did
of those cases where it was impor- at Harvard after receiving a Harkness Fellowship. topics like international environ-
tant to stand up and give a voice to “I thought, well, that’s the way to do it, so I made mental law, trade, and international
the voiceless. All of the persons for an application at the end of 1994 and after being inter- commercial arbitration.”
whom objections against their inclu- viewed by a panel led by Sir David Beattie I was awarded A year in New York was a real
sion on the Electoral Roll had been a fellowship which allowed me to study in New York at bonus.
filed had one thing in common – Columbia University Law School. “Catching the subway and getting
they all had Pacific-looking names. “I was accompanied by my wife and our three-month- around New York. I actually found
However, it turned out that although old daughter. It was life-changing to be frank. It gave me New Yorkers really friendly people
they all had Pacific-looking names; a completely different view of the law and I thoroughly and I really enjoyed it. I was often
in fact some were Māori, some were enjoyed the opportunity just to spend a year studying mistaken for being a Hispanic and
palagi New Zealand women married and not having to worry about doing the shifts at Radio latinos would walk up and speak
to a Pacific people. It was an honour NZ, but just to focus on the law. It was an amazing year.” Spanish to me.”
to represent the four hundred-odd He ended the year with an LLM with a Certificate
people whose eligibility to be of Achievement with Honours in Foreign and Barrister sole
enrolled were challenged.” International Law. Back to New Zealand and still fired
13PROFILE J u ly 2 0 2 0 · L AW TA L K 9 4 1
up about international law, he had Pacific Radio Trust (of which he priority has been my children and looking after them
plans to study for a doctorate. was a founding trustee). He was and their needs and being able to spend time with
“I thought that I would have a one of the founding members of the them. We’ve had a great friendship and they’ve been
go at being a barrister as I thought Pacific Lawyers Association and its at St Mary’s College in Auckland. My oldest girl was a
I would have more opportunity first President, from 2000 to 2002. head prefect there in 2013, and my youngest is a couple
to do a doctorate as a barrister As a barrister his areas of prac- of years younger. She was a prefect there a couple of
than I would as a staff solicitor or tice were wide, including judicial years later.
associate or partner in a firm. But it review, human rights, immigration, “They’re both going to stay in New Zealand. My older
didn’t work out that way as I ended employment, commercial litigation, girl has applied for a job in Christchurch which hopefully
up getting a lot of work, paid and property and land law, charitable fits in with her art history degree and my baby girl wants
unpaid. trusts, professional negligence and to enrol in university in Auckland and start her own
“In those early years as a bar- criminal law. He has appeared at all business in due course.”
rister I gave it everything I had. I levels in New Zealand’s courts. This
really became involved in terms of included a successful appeal in the Outside the law
cases, a lot of church disputes and Supreme Court in Almond v Read Asked about his interests outside law, the new Chief
instructions from Pacific people. I [2017] NZSC 80, where the court Justice says “it’s just family. Having time for family.”
did a cross-section of other work overturned the Court of Appeal’s “If there’s time, I spend it with family. I’m also
from matters involving companies decision to refuse to extend time Catholic. I converted to Catholicism in the last five
right through to community-based to file an appeal. years. I grew up as a protestant, but having been
work.” involved on the board of trustees for St Mary’s College
His long career in the law has also Pacific practice and seeing what the college did for my daughters after
seen him involved in many legal Chief Justice Satiu was admitted to my wife died, I became involved in the Catholic faith
and community roles. He served the bar in Sāmoa in 1999. and I converted. I was heavily involved with the Church,
as a member of the Human Rights “I wanted to be admitted while being on the national committee for safeguarding pro-
Review Tribunal, from 2003 to 2009. my Mum was still alive. She died fessional standards. I’ve also worked as a catechist. I
“It was fascinating work and in 2005. It was a very proud day to was a reader of scripture on Sunday as part of a roster:
I worked with some really good be admitted in Sāmoa in 1999, and those are my interests – my family and my church or
people like Royden Hindle – who to be admitted by the person I am my church and my family.”
was the chief at the time – and replacing, by Chief Justice Sapolu
Deborah Clapshaw. The three of us who has left a major legacy as far Chief Justice of Sāmoa
would often get together for on the as transforming the judiciary is For many, assuming the highest judicial role without
papers work. I also was a District concerned.” having previously been a member of the judiciary would
Inspector of Mental Health for a few He has conducted criminal and be daunting. New Zealand, of course had a history of
years and a Youth Court advocate complex fraud trials and land appointing its Chief Justice straight from the bar until
from 1998 to 2003.” law cases in Sāmoa and has also Sir Thomas Eichelbaum in 1989.
His announcing skills saw him appeared in the Cook Islands on a “I recognise that there are real challenges, but there
called on to act as MC for confer- case-by-case basis. are probably not a lot of issues that I can’t get up to
ences for organisations such as the speed with quite quickly with the right support and the
Youth Court, Ministry of Pacific Family right networks of people. Sitting on the Human Rights
Island Affairs, and Children, Youth His wife died in January 2010 of Tribunal broke the ice with respect to a quasi-judicial
and Family international confer- leukemia. The couple had two position, and having an understanding of the conflicts
ences, Counties Manukau District daughters. and issues from the past roles gives me a great insight
Health Board and the National “For the last 10 years my first into organisational dynamics. That will help in terms of
assisting with the management of judges
and court resources.
“I came to New Zealand for education,
and I think I need to complete that journey
and go back to Sāmoa, to see to what extent
I can contribute to Sāmoa having taken on
Paul Moriarty BSc FCA F Fin MInstD
board all of the gifts and taonga that I’ve
T 09 363 3700
picked up in New Zealand.”
M 022 107 5787
www.moriartyassociates.co.nz
“The Chief Justice’s role is a calling and
I see there will be challenges. This is the
most important job I’ll have as a lawyer.
Expertise • Experience • Independence It’s an opportunity to use all my skills and
experience and hopefully do a good job.” ▪
14L AW TA L K 9 4 1 · J u ly 2 0 2 0 PROFILE
PROFILE
Sabina
Bickelmann
General Counsel,
Icebreaker
LawFest organiser Andrew King continues
a series of interviews with key legal profes-
sionals with their innovation and technology
stories.
Tell us about yourself
I’ve recently joined Icebreaker as General Counsel and
am stoked to be part of such an iconic New Zealand
company which is part of global movement striving to
create a healthier and more sustainable future for our
species and the planet.
I’ve always sought out as many different experiences
and opportunities as possible. When I finished uni with
law degree in hand, I went straight to London where I
worked for a US law firm before starting a graduate posi-
tion in Sydney at DLA Piper (which was Phillips Fox back
then). Prior to Icebreaker, I worked in the Cayman Islands
and Auckland in private practice and at Pfizer and most
recently led the legal function for nearly four years as instances technology drives innovation by allowing us
general counsel and company secretary at Vend, a New to do more with less, improving our organisations and
Zealand headquartered global tech company. lives in the process. Just look at how we are working and
living our lives today.
What does legal innovation mean to you?
Innovation is about implementing something new or differ- What developments do you see in how
ent that is useful or delivers value in some way. Creativity, legal services are delivered?
which is the ability to come up with novel ideas, is the The demand for legal tech will continue to increase. There
seed of legal innovation, but unless it is activated and is so much cool legal tech out there, it’s really a no brainer.
scaled, it is just still an idea and not innovation. In-house legal functions will continue to implement new
Legal innovation doesn’t always need to be disruptive technology to automate routine processes. The use of
or breakthrough; it is just as important to have a pipeline analytics will extend beyond managing legal costs into
of small innovative ideas. For me, some of the best inno- predicting areas of risk and exposure before issues arise.
vations are the simple ones where you slap your hand on I doubt we will see robots replacing humans in the legal
the table and go “duh, why didn’t I think about doing it department, but machine learning will increasingly be
that way before!” applied to legal tasks.
External legal providers will continue to respond to
What role does technology play in innovation? demands from legal teams for disruptive offerings that
Innovation and technology are not the same thing. assist in managing cost and add value. I’ve experienced
Technology can be used to implement innovation, but first-hand the benefits of subscription-based fee models
the technology itself doesn’t always produce innovation. which have provided me with predictable spend, as
There are a few instances where technology is simply well as “crowd sourced” legal advice enabling access to
used to meet the status quo. However, in the majority of high quality, specialist advice at a fraction of the cost.
15PROFILE J u ly 2 0 2 0 · L AW TA L K 9 4 1
The demand for virtual GC/in-house legal on demand my best creative thinking when I am being active and
services will continue to rise, driven by ‘new law’ firms outdoors. Walking meetings and strong coffee in diverse
responding to demands for flexible resources provided environments are great cognitive enhancers!
by highly experienced in-house lawyers seeking to live You could take a formal course or read up on the internet
and work differently. on systematic methods of innovation where you can learn
about idea management, idea selection and pipeline devel-
What opportunities has legal opment. Innovation is essentially another competency
innovation brought to you? which can be learned along with, for example, leadership.
I’ve been really lucky to have worked for companies where As well as being a competency, I think innovation is a
innovation and technology are part of the DNA. As a lawyer state of mind – it is an attitude and a culture. It helps to
working in those environments, the internal culture of surround yourself with people who come from diverse
continually seeking to improve things, including trying out backgrounds and challenge you to not just accept the
new software tools, quickly rubs off. It has been awesome status quo.
to feel empowered to try new things, find out that they
don’t work, and then pull the plug without fear or shame. Post COVID-19, what impact do you see in
From a technology perspective, I’ve implemented plenty how legal services will be delivered?
of technology solutions in a number of areas, including to During Lockdown, many lawyers who had previously
streamline workflows and approvals, create documents, feared technology suddenly found themselves seeing it
automate record keeping and manage signatures, audits as a lifeline to their survival. The realisation that technology
and notifications. However, to be honest, some of the best is not to be feared will accelerate the pace for technology
in-house legal innovations I’ve been involved with have uptake in the profession, which will in turn impact on
not utilised technology, and instead are the result of great how legal services will be delivered.
execution of a really simple idea that makes things better We’ve proved that working entirely through Google
for the legal team and the business. For example, creating hangouts and collaboratively through cloud-based tools
a new framework for the legal team to determine the level such as Google Docs is not only possible, but manageable
of legal input or rigour required around a decision based long term (and pretty bloody awesome!). As a result, there
on Amazon founder Jeff Bezos’ ‘one-way/two-way door’ will be more remote working which will enable in-house
strategy. legal teams and external legal providers to achieve better
Legal innovation has obviously created efficiencies work/life balance and do more of the things they love,
which have freed up me and others in my team to focus which in turn will increase engagement and productivity
on higher value, more strategic work. In many cases legal (and a reduction in emissions from less commuting!).
innovation has removed pain points for the business, I’m also hopeful that as a result of the Lockdown, we
deleted legal work the team doesn’t enjoy have all become more conscious consumers. In-house
and driven overall engagement. legal teams will more than ever seek out external legal
providers who can demonstrate a fair and inclusive culture
What are some of your tips to (including gender equality) and a strong commitment to
start innovating or developing the environment.
an innovative mindset?
Working in start-ups has taught me to not Why is it important for legal professionals
be satisfied only with making improve- Some of to continue to learn about legal innovation
ments. Instead, to strive to understand the the best and leveraging technology?
source of a problem and continually ask in-house legal At a minimum, we need to continue to innovate and
“how would we approach this problem if innovations I’ve leverage technology to stay relevant. We are in a time
there was no solution in the first place?” been involved of unprecedented change. What may have helped the
I think a great place to start is to pick with have organisations we support be successful in the past could
a clear focus. Perhaps start by thinking not utilised potentially cause that organisation to fail in the future.
about the processes or tasks that person- technology, Just as companies need to change and grow, their in-house
ally annoy you and that you really want and instead lawyers and external providers need to do so also.
to change. That’s the ‘why’ for innovation. are the result As lawyers we need to support our businesses to
Give yourself (and your team) the time of great confidently adopt technology at pace. We can do that by
and space to think. Google encourages its execution of a embracing the technology tools of our customers, trying
staff to spend 20% of their time on side really simple out our own new tools and upskilling generally in the
projects, which is why it is one of the most idea that areas of privacy and cyber security. ▪
innovative companies in the world. makes things
This might sound obvious or patronising, better for the Andrew King andrew@lawfest.nz is the organiser of
but stop staring at your computer screen legal team and LawFest, www.lawfest.nz, which is running a virtual
and sitting at your desk. Personally, I do the business OnDemand event ‘LawFestLive’ on 5 August 2020.
16L AW TA L K 9 4 1 · J u ly 2 0 2 0 ON THE MOVE
PEOPLE
On the Move
Tangi Utikere JP has been appointed a has been appointed
Commissioner for a four-year term from a Commissioner for a
Criminal Cases
15 June 2020. Mr Utikere is Deputy Mayor four-year term from
Review Commission
of Palmerston North. He has worked as 15 June 2020. She is a
appointments
a Judicial Justice of the Peace and as Professor of Indigenous
Justice Minister Andrew Little has a Visiting Justice. Mr Utikere has been Studies and Co-Head of
announced further appointments to the Secretary and Treasurer of the Pacific Te Wānanga o Waipapa
Criminal Cases Review Commission, which Leaders Council and a member of the at the University of
began operations on 1 July. Together with Minister of Pacific Island Affairs’ Advisory Auckland. Dr McIntosh is also currently
Chief Commissioner Colin Carruthers QC, Council. He is also a Panellist and Appeals the Chief Science Advisor for the Ministry
they will form the inaugural board. Tribunal Member for the Judicial Control of Social Development. She has carried out
Paula Rose QSO OStJ has been Authority for Racing, Commissioner for extensive research on the experience of
appointed Deputy Chief Resource Management Act Hearings and Māori and Indigenous people with the
Commissioner for a a member of the New Zealand Teachers criminal justice system, with a particu-
five-year term from 15 Disciplinary Tribunal. lar focus on incarceration. Her research
July 2020. Ms Rose is a Nigel Hampton CNZM OBE QC has focuses on social harm reduction, increas-
current member of the been appointed a ing collective wellbeing and disrupting the
Parole Board and has Commissioner for a intergenerational transmission of social
worked in a range of three-year term from inequalities.
governance roles. She is 15 June 2020. Admitted Dr Virginia Hope MNZM has
a Commissioner for the Transport Accident in February 1965, Mr been appointed a
Investigation Commission, member of the Hampton became a Commissioner for a
Broadcasting Standards Authority, Deputy Queen’s Counsel in three-year term from
Chair of WorkSafe New Zealand and direc- 1989. He was Chief 15 June 2020. She is
tor of several non-governmental organi- Justice of the Kingdom of Tonga, was the Medical Director Health
sations including St John South Island first Disciplinary Commissioner of Counsel Group at ESR. Early in
Regional Trust Board. Her experience in in the International Criminal Court and her career she served
criminal justice comes from her work at currently is Presiding Member of the as a Medical Officer of
New Zealand Police, including as National Disciplinary Board for the International Health (Environmental Health) at Auckland
Manager Road Policing. Criminal Court counsel. He is an instructor Regional Public Health Service and then
Kingi Snelgar has in litigation skills in New Zealand, Tonga became Manager (Environmental Health).
been appointed a and Sāmoa, and an author for Adams on Before working in public health she worked
Commissioner for a Criminal Law. for the Auckland Area Health Board, and
five-year term from 15 Professor Tracey McIntosh (Ngāi Tūhoe) she has also worked in universities and
June 2020. An Auckland
barrister operating from
Manukau Chambers, he
was admitted in May
2011 and worked at Meredith Connell as a
criminal prosecutor. Mr Snelgar completed
a Masters of Law at Harvard Law School as Legal Accounting Bureau · Save time and money Kathy Kell
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