Guest Post: Defending NZ monarchy

February 21st, 2013 at 4:00 pm by David Farrar

A guest post by barrister Nikki Pender.

Brian Rudman’s column in the NZ Herald today, A Charade of Heirs and Graces,  made me think.

An obviously devout republican, Rudman says:

How a liberal-minded modern politician can see any form of inherited monarchy as 21st century is beyond me. Especially one living in a realm on the other side of the globe from the home of said royal head of state. Suggesting this law change is a victory for human rights is a joke as far as ordinary Britons and New Zealanders are concerned. It doesn’t help any one of us becoming head of state of the democracy we live in.

But don’t we in fact enjoy a meritocratic constitutional monarchy?

No one forces us to remain part of the Commonwealth nor to retain the Queen (and her descendants) as Head of State. If there was general, popular support for a change it could be effected relatively swiftly.  But there is no popular support. Which is another way of saying that the majority of Kiwis consider that the Queen deserves her position.  And those who succeed her know that they too have to meet the same high standard – and ward off any competition – otherwise they’ll be dumped.

And frankly, who else on the planet has been trained from birth to fulfil what is a lifelong tour of public duty?

It works for me.

Guest Post on QCs

October 18th, 2012 at 11:00 am by David Farrar

A guest post by Nikki Pender:

New Queen’s Counsel Law: Taking Us Back to the Dark Ages?

In 2006, the Lawyers and Conveyancers Act replaced the title Queen’s Counsel (QC) with Senior Counsel (SC).  This followed Australia’s republicanising example, where only the Northern Territory has yet to change from QC to SC.  The 2006 change also made lawyers in firms eligible and purported to make the selection process more transparent. 

SCs are appointed for being “learned in the law”.  They are leaders in the legal profession and set standards of excellence for junior lawyers to meet.  Consumers (and other lawyers) rely on the SC “brand” as a sign of excellence and will pay a premium to use their services.  No one is legally obliged to use SCs so we can assume that this premium measures the economic value of the quality assurance function that the SC brand serves.

The Lawyers and Conveyancers (Amendment) Bill (now in Committee stage), would restore the title of QC and again confine eligibility to barristers sole (not practising in firms) 

Like knighthoods, reinstating QC is a deliberate positioning away from the pro-republican Clark Government.  Constricting the pool of eligible candidates is less understandable and diminishes the value of the branding process to users. 

Well over 100 years ago, the legal profession was freed from the UK segregation of solicitors and their work from barristers and their work.  Late last century, the UK finally caught up.  Any lawyer can now appear in court and be appointed QC. 

With our fused profession though some lawyers choose to be barristers sole, all practising lawyers can appear in all the courts and lead cases, large and small.  Some of our top civil litigators work in law firms.  Crown solicitors – who typically prosecute the largest and most complex criminal cases – are all partners in law firms.  Many busy regional courts are serviced primarily by lawyers in law firms.  Yet, regardless of their skills, experience, judgement, integrity and leadership and never mind the respect in which they are held by judges and the profession, the law change will deem these litigators as unsuitable for the QC rank. 

So why does the Government support such a protectionist measure?  Apparently, because it is “the best way of protecting the traditionally independent status of the rank”.  However, one of the fundamental obligations of all lawyers, not just barristers, is to be independent and free from compromising influences or loyalties when providing services to clients.  The Lawyers’ Code of Conduct devotes an entire chapter to this ethical requirement.  If lawyers practising as barristers and solicitors were inherently less independent than barristers sole, then the courts should restrict the rights of audience.  But they don’t – because there is simply no evidence that lawyers with work colleagues are less suitable for court work than those who choose to work alone. 

Labour has vowed to repeal the changes when next in Government.  But that alone is not a reason for the Government to stand its ground.  The debate over who can be appointed to the rank is not a right/left split nor does it follow traditional party lines. 

This measure is anti-competitive and anachronistic.  It will recreate an artificial divide amongst litigators without any relationship to the quality of legal services.  It flies in the face of the consumer-protection purpose of the LC Act.  Let’s hope that the Government reconsiders the wisdom of such a retrograde law change before the Bill’s next reading.

I’m all fine with going back to QCs, as no one knew what an SC was. We can change the term when we no longer have a Queen. But like Nikki I am puzzled a to why we would restrict the office to sole barristers. If it is meant to be a mark of experience and quality, then why discriminate against partners in law firms that qualify?

The Electoral Finance Act and the Bill of Rights

May 16th, 2008 at 8:35 am by David Farrar

The NZ Herald reports on the arguments in court yesterday on the Electoral Finance Act:

Aucklander John Boscawen – a fierce opponent of the Electoral Finance legislation – along with ACT MP Rodney Hide, Sensible Sentencing Trust spokesman Garth McVicar and Grey Power president Graham Stairmand, want to take a case to court, seeking a declaration that Attorney General Michael Cullen should have told Parliament that the law breached the Bill of Rights.

In the High Court at Wellington yesterday, Dr Cullen sought to have the case struck out. Crown lawyer John Pike argued that parliamentary privilege prevented the court from inquiring into the content of the legislation and the debate around it, and also that there was no settled legal view that the court could declare that the Electoral Finance Act was inconsistent with the Bill of Rights.

It is important to note the arguments yesterday were on the Crown’s application to strike the lawsuit out on the grounds of parliamentary privilege. It is only if they get past this strike out attempt, will the principal issues of whether the EFB and EFA breach the Bill of Rights get determined.

The legal arguments took all day and traversed time and space – judgments from three centuries, spanning four continents, were cited by lawyers from both sides. Justice Denis Clifford reserved his decision, a judgment which will instigate an intense constitutional debate on the roles of Parliament and the courts if he permits the case to proceed.

Nikki Pender, for Boscawen and the other complainants, said the Electoral Finance Act contained myriad provisions which breached the Bill of Rights, and that the Attorney General should have warned Parliament of that – as section seven of the Bill of Rights obliged him to do.

In a sense there are two issues here – whether the Electoral Finance Bill as originally drafted breached the Bill of Rights and whether the final Electoral Finance Act is inconsistent with it.

The NZ Law Society and Human Rights Commission (and almost every lawyer in NZ who has offered an opinion on this) is adamant the original EFB was in breach, and I would put the chance of victory there as well over 95% if the strike out application is unsuccessful. I mean the original EFB would have required every NZer to swear a statutory declaration before even offering an opinion on a political issue. It was, to quote Nicky Hager, something you would expect from the Nazi Party.

The final version of the EFA, while still seriously flawed in my opinion, certainly was a significant improvement over the original EFB and the arguments over how it stacks up with the Bill of Rights are more finely balanced.

Since the 1st of January there have been around 470 articles (and from what I can tell not a single one is favourable to the EFA or the Government) in the NZPA database mentioning the Electoral Finance Act. The Government hoped it would disappear as an issue within a few weeks, and instead it has been a relentless string of negative stories.

I am looking forward to the first reading of the Electoral Finance Repeal Act – hopefully it can be introduced before Christmas.