8
Council Brief Issue 463 February 2017 The monthly newspaper of the Wellington Branch New Zealand Law Society Wellington ISSN 2382-2333(Print) ISSN 2423-0103 (Online) INSIDE: From the President High Court Library 3 High Court reopens 3 Admissions 4 Counsel in Concert 8 THE trustees of the Solicitors’ Benevolent Fund were incorrectly named in an article on page 1 of the December issue of Council Brief. The correct names are: Wayne Chapman, Lance Pratley, Jessie Hunt, Rachael Dewar, and Richard Fowler QC. Benevolent Fund trustees – correction P lanning is in full swing for the fundraising gala on 17 March 2017 at Te Papa. For $120, attendees will enjoy a three-course dinner in the stunning Te Marae space, which overlooks the harbour, and benefit the Solicitors’ Benefit Fund. A cash bar will operate throughout the evening. Dinner will be followed by the fundraising auction, conducted by auctioneer Chip McCabe of Ray White Real Estate. Council members are securing exciting items for the auction (and raffles) from generous donors. After the auction, fun local band The Retro Divas (pictured above) will perform dance hits from the 60s, 70s and 80s. Keen eyed readers may spot Wellington employment lawyer Steph Dyhrberg in this photo. Tickets are now on sale from the local Branch or from Council members (who will soon be approaching practitioners to buy tickets). You can help by buying tickets (a couple or a table of 10!) or donating something for the auction. For tickets or information, or to donate a prize, contact Steph Dyhrberg ([email protected]) or Julia White ([email protected]). Solicitors’ Benevolent Fund Gala Update IN 2015, at the age of 47, I was diagnosed with two different types of cancer. Both were at an advanced stage. I needed urgent surgery to treat several sites of cancer. My ongoing treatment plan was six months chemo- therapy, four weeks radiation and 12 months of Herceptin. From the moment of the diagnosis, you are on a conveyor belt of appointments, scans, blood tests. You get pumped full of stuff which highlights parts of your body you didn’t know existed. It seems completely unreal. But over time, as you lose your hair and the other delightful side effects of treatment hit you, the reality of your situation is hard to avoid. Cancer fatigue kicks in. You never feel revived, you have no energy, daily chores become tiresome, life’s pleasures no longer bring joy or are impossible. I had trouble concentrating, thinking clearly; some call it “chemo fog brain”. You enter a stage of depression as well, where you do not want to see people; you just want to be left alone. It never ceases to amaze me what the body can cope with, but as a lawyer, how the mind is affected was concerning for me. My employer and colleagues were very supportive and backed me 100 percent. I took time off for the surgery and to recover. I started to work again, as much as possible, when the chemo- therapy started. It soon became clear the effects of chemotherapy were hitting me hard. After much thought and anguish (and many tears), I decided the best thing was for me to take a leave of absence from work for a period of four months, so I could concentrate on my health and wellbeing. This filled me with dread and sorrow. Work was how I valued myself and the fact that this cancer was making me stop it, was soul destroying and it meant the cancer was winning… Also, I would have to leave my home, rent it out and move in with my mother, and become financially dependent on family and WINZ. A work colleague mentioned the Solicitors’ Benevolent Fund to me. I had never heard of it. I made the call to then Branch Manager Catherine Harris and before I knew it, I was sitting with her, explaining my situation. Catherine and the trustees were amazing. They were supportive, approachable, encouraging, and empathetic. They didn’t judge. They understood life has twists and turns and sometimes we go down a path we never thought we would. Within a week, I was told the fund would assist me during the next four months and all I needed to worry about was getting better. Without the help of the fund, I truly don’t know what would have happened. I was able to continue to live in my home and concentrate on my health, without worrying financially. I will never be able to express how grateful I am to the fund, the trustees and the generous people who donate to the fund. That generosity enabled me to focus on my wellbeing and without a doubt, made it possible for me to get better. I encourage you all to attend this Gala, and to dig deep so that this fund can continue to support your fellow practitioners and their families in times of need. See you on the dance floor! A beneficiary of the Fund tells her story ‘You never think it’s going to be you’ N ga mihi o te tau hou ki a koutou. Welcome to 2017. How ever long your summer break, I hope you found opportunity to refresh with family and friends. Any new year prompts reflection on the old one, on the ongoing challenges we face within our profession and for our client community. The need to ensure access to justice remains pressing and requires us to remain alert to the small barriers that can incrementally create injustice. I recall the Josh Pemberton’s research report on the experiences and retention of New Zealand’s junior lawyers, which was summar-ised in LawTalk in July 2016. I think too of the increasing discussion of the challenge posed to the profession to address the unconscious biases that can too easily arise in relation to gender and family status. Shirley Smith A highlight for me in the closing months of 2016 was the Shirley Smith address from Professor Ngaire Naffine. Professor Naffine’s fascinating address, which will appear shortly on the Shirley Smith website, ultimately challenged us to question core assumptions in case and statute law that appear at odds with evolving and maturing societal values. (See page 3 in this edition of Council Brief) At its last meeting of 2016, Branch Council members were pleased to welcome Dean of VUW Law School, Professor Mark Hickford. I, and previous presidents, have regularly attended meetings of the Law Faculty, which we have all valued. Professor Hickford gave an overview of the school, its staff, programme, and size, before addressing the school’s strategic direction. His environ- mental scan included an analysis of a changing inter- national approach to rating schools and the implications for the Victoria and other schools. Changed Council term At the same meeting, the Council adopted changes to its rules regarding the Council term. The changes had earlier been approved by the NZLS Board but required Council ratification. Council moves to a two-year term with effect this year. The Council president will continue to be able to serve two (two-year) terms. The current rules can be found on the NZLS website here http:// www.lawsociety.org.nz/law- society-services/law-society- branches/wellington/ documents/wellington-branch- rules.pdf Council members greatly appreciated the response of Branch members to its consultation. Of the 189 members who responded, 175 (or 92.6 percent) supported a change to a two-year term; with 163 (or 86.7 percent) supporting the option for the Council president to serve two terms. In announcing this let me reiterate Council’s commitment to accountability to the Branch membership. Annual general meetings will continue and, as always, your attendance and your voice at these meetings remains vital. Equally warmly, I encourage you to participate in the events and the activities of your Council and its committees over the course of 2017. Speaking of which, I invite you to put 17 March 2017 in your diary now! The Wellington Branch will be hosting a gala event as a fundraiser to ensure the continuation of the Welling- ton Branch Solicitors’ Bene- volent Fund. [See article elsewhere in Council brief]. I look forward to seeing you there. Have a great year! The Retro Divas, photographed here at a classic car rally at Tirohana Estate, will perform at the Benevolent Fund gala on 17 March. Deadline Council Brief March - Monday 20 February 2017 New year thoughts and reflections on old one

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Page 1: Council Brief High Court Library 3 High Court reopens 3 ... the auction, fun local band The Retro Divas (pictured above) will perform dance hits from the 60s, 70s and 80s. Keen eyed

Council BriefIssue 463 February 2017

The monthly newspaper of the Wellington Branch New Zealand Law Society

Wellington

ISSN 2382-2333(Print)ISSN 2423-0103 (Online)

INSIDE:

From the

President

High Court Library 3High Court reopens 3Admissions 4Counsel in Concert 8

THE trustees of the Solicitors’ Benevolent Fund were incorrectlynamed in an article on page 1 of the December issue of Council Brief.The correct names are: Wayne Chapman, Lance Pratley, Jessie Hunt,Rachael Dewar, and Richard Fowler QC.

Benevolent Fund trustees – correction

Planning is in full swing for the fundraisinggala on 17 March 2017 at Te Papa.

For $120, attendees will enjoy a three-coursedinner in the stunning Te Marae space, whichoverlooks the harbour, and benefit the Solicitors’Benefit Fund. A cash bar will operate throughoutthe evening.

Dinner will be followed by the fundraisingauction, conducted by auctioneer Chip McCabe ofRay White Real Estate. Council members aresecuring exciting items for the auction (and raffles)from generous donors. After the auction, fun local

band The Retro Divas (pictured above) willperform dance hits from the 60s, 70s and 80s. Keeneyed readers may spot Wellington employmentlawyer Steph Dyhrberg in this photo.

Tickets are now on sale from the local Branch orfrom Council members (who will soon beapproaching practitioners to buy tickets). You canhelp by buying tickets (a couple or a table of 10!) ordonating something for the auction. For tickets orinformation, or to donate a prize, contact StephDyhrberg ([email protected]) or Julia White([email protected]).

Solicitors’ Benevolent Fund Gala Update

IN 2015, at the age of 47, I wasdiagnosed with two differenttypes of cancer. Both were at anadvanced stage. I needed urgentsurgery to treat several sites ofcancer. My ongoing treatmentplan was six months chemo-therapy, four weeks radiation and12 months of Herceptin.

From the moment of thediagnosis, you are on a conveyorbelt of appointments, scans,blood tests. You get pumped fullof stuff which highlights parts ofyour body you didn’t knowexisted. It seems completelyunreal. But over time, as you loseyour hair and the other delightfulside effects of treatment hit you,the reality of your situation ishard to avoid.

Cancer fatigue kicks in. Younever feel revived, you have noenergy, daily chores becometiresome, life’s pleasures nolonger bring joy or areimpossible. I had troubleconcentrating, thinking clearly;some call it “chemo fog brain”.You enter a stage of depression aswell, where you do not want tosee people; you just want to beleft alone. It never ceases toamaze me what the body can

cope with, but as a lawyer, howthe mind is affected wasconcerning for me.

My employer and colleagueswere very supportive and backedme 100 percent. I took time offfor the surgery and to recover. Istarted to work again, as much aspossible, when the chemo-therapy started. It soon becameclear the effects of chemotherapywere hitting me hard. After muchthought and anguish (and manytears), I decided the best thingwas for me to take a leave ofabsence from work for a period offour months, so I couldconcentrate on my health andwellbeing.

This filled me with dread andsorrow. Work was how I valuedmyself and the fact that thiscancer was making me stop it,was soul destroying and it meantthe cancer was winning… Also, Iwould have to leave my home,rent it out and move in with mymother, and become financiallydependent on family and WINZ.

A work colleague mentionedthe Solicitors’ Benevolent Fundto me. I had never heard of it. Imade the call to then BranchManager Catherine Harris and

before I knew it, I was sitting withher, explaining my situation.Catherine and the trustees wereamazing. They were supportive,approachable, encouraging, andempathetic. They didn’t judge.They understood life has twistsand turns and sometimes we godown a path we never thought wewould.

Within a week, I was told thefund would assist me during thenext four months and all I neededto worry about was getting better.

Without the help of the fund, Itruly don’t know what wouldhave happened. I was able tocontinue to live in my home andconcentrate on my health,without worrying financially. Iwill never be able to express howgrateful I am to the fund, thetrustees and the generous peoplewho donate to the fund. Thatgenerosity enabled me to focuson my wellbeing and without adoubt, made it possible for me toget better.

I encourage you all to attendthis Gala, and to dig deep so thatthis fund can continue to supportyour fellow practitioners andtheir families in times of need.

See you on the dance floor!

❑ A beneficiary of the Fund tells her story

‘You never think it’s going to be you’

Nga mihi o te tau hou ki akoutou.

Welcome to 2017. How everlong your summer break, I hopeyou found opportunity torefresh with family and friends.

Any new year promptsreflection on the old one, on theongoing challenges we facewithin our profession and forour client community. The needto ensure access to justiceremains pressing and requiresus to remain alert to the smallbarriers that can incrementallycreate injustice. I recall the JoshPemberton’s research report onthe experiences and retention ofNew Zealand’s junior lawyers,which was summar-ised inLawTalk in July 2016. I think tooof the increasing discussion ofthe challenge posed to theprofession to address theunconscious biases that can tooeasily arise in relation to genderand family status.

Shirley Smith

A highlight for me in theclosing months of 2016 was theShirley Smith address fromProfessor Ngaire Naffine.Professor Naffine’s fascinatingaddress, which will appearshortly on the Shirley Smithwebsite, ultimately challengedus to question core assumptionsin case and statute law thatappear at odds with evolvingand maturing societal values.(See page 3 in this edition ofCouncil Brief)

At its last meeting of 2016,Branch Council members werepleased to welcome Dean ofVUW Law School, ProfessorMark Hickford. I, and previouspresidents, have regularlyattended meetings of the LawFaculty, which we have allvalued. Professor Hickford gavean overview of the school, itsstaff, programme, and size,

before addressing the school’sstrategic direction. His environ-mental scan included ananalysis of a changing inter-national approach to ratingschools and the implications forthe Victoria and other schools.

Changed Council term

At the same meeting, theCouncil adopted changes to itsrules regarding the Councilterm. The changes had earlierbeen approved by the NZLSBoard but required Councilratification. Council moves to atwo-year term with effect thisyear. The Council president willcontinue to be able to serve two(two-year) terms. The currentrules can be found on the NZLSwebsite here http://www.lawsociety.org.nz/law-society-services/law-society-b r a n c h e s / w e l l i n g t o n /documents/wellington-branch-rules.pdf

Council members greatlyappreciated the response ofBranch members to itsconsultation. Of the 189members who responded, 175(or 92.6 percent) supported achange to a two-year term; with163 (or 86.7 percent) supportingthe option for the Councilpresident to serve two terms. Inannouncing this let me reiterateCouncil’s commitment toaccountability to the Branchmembership. Annual generalmeetings will continue and, asalways, your attendance andyour voice at these meetingsremains vital. Equally warmly, Iencourage you to participate inthe events and the activities ofyour Council and its committeesover the course of 2017.

Speaking of which, I inviteyou to put 17 March 2017 in yourdiary now! The WellingtonBranch will be hosting a galaevent as a fundraiser to ensurethe continuation of the Welling-ton Branch Solicitors’ Bene-volent Fund. [See articleelsewhere in Council brief]. Ilook forward to seeing you there.

Have a great year!

The Retro Divas, photographed here at a classic car rally at Tirohana Estate, will perform at the Benevolent Fund gala on 17 March.

Deadline Council Brief March - Monday 20 February 2017

New year thoughts andreflections on old one

Page 2: Council Brief High Court Library 3 High Court reopens 3 ... the auction, fun local band The Retro Divas (pictured above) will perform dance hits from the 60s, 70s and 80s. Keen eyed

Wellington Branch Diary FebruaryThursday 2 FebruaryHuman Rights CommitteeParole Law Committee

Thursday 9 FebruaryCourts, Tribunals & ADR Committee

Monday 13 FebruaryCriminal Law Committee

Wednesday 15 FebruaryCPD Top-Up – Wellington A: General Practitioner

– Wellington B: In-house and Governmentwww.lawyerseducation.co.nzWellington Branch Council Meeting

Monday 20 FebruaryTrusts and Estates Committee

Tuesday 21 FebruaryFamily Law Committee

Wednesday 22 FebruaryLegal Assistance CommitteeMedia Law. www.lawyerseducation.co.nz

Thursday 23 FebruaryEmployment Law CommitteeImmigration Committee

Friday 24 FebruaryLast Resort Golf, MastertonWomen in Law Committee

Tuesday 28 FebruaryHealth Law CommitteeHuman Rights is the New Business Risk – New Challenges in DisputeResolution; Prof. Robert Volterra, public lecture VUW Law Faculty 5.30-7pm

Wednesday 1 MarchGuarantees. www.lawyerseducation.co.nz

COUNCIL BRIEF, FEBRUARY 20172 News

Crossword SolutionsFrom page 7

Across: 1 Orbs; 3 Smuggler; 9 Eagerly; 10 Forge; 11Compare notes; 13 Slight; 15 Stay up; 17 Pull together;20 Hails; 21 Clapper; 22 Cheering; 23 Tomb.

Down: 1 Overcast; 2 Begum; 4 Mayhem; 5 Gift of thegab; 6 Larceny; 7 Roes; 8 Breathalyser; 12 Spare rib;14 Inutile; 16 Toucan; 18 Hippo; 19 Chic.

Cryptic Solutions

Quick SolutionsAcross: 1 Sell; 3 Maturity; 9 Affront; 10 Fatal; 11Disapproving; 13 Recent; 15 Sudden; 17 Cream-cracker; 20 Ennui; 21 Aileron; 22 Intended; 23 Once.

Down: 1 Slanders; 2 Lifts; 4 Attire; 5 Unfavourable;6 Intoned; 7 Yell; 8 Compensation; 12 Entrance; 14Coronet; 16 Scrape; 18 Koran; 19 Yeti.

June 29-July 1 2017 – 25th ANZSIL (ANZSociety of International Law) Conference,Canberra. http://.anzil.org.au/eventsAugust 5-6 2017 – NZ Criminal BarAssociation Conference, Auckland.www.criminalbar.org.nzAugust 31-Sept 2 2017 – Banking & FinancialServices Law Assoc. (BFSLA), Brisbane.bfsla.orgSeptember 8 2017 – ‘Reforming the Law ofEvidence’, Faculty of Law Victoria University ofWgtn. [email protected] 13-15 2017 – NZ Insurance LawAssociation Conference (NZILA), Wellington.www.nzila.org/conference/September 21-23 2017 – Resource ManagementLaw Association of NZ – RMLA Conference,Wellington. www.rmla.org.nzOctober 3-5 2017 – ANZ Education LawAssociation (ANZELA) Conference, Sydney.www.anzela.edu.auOctober 6-13 2017 – IBA Annual Conference,Sydney, Australia. www.ibanet.orgOctober 18-20 2017 – The 27th Australian andNew Zealand Sports Law Association(ANZSLA), Sydney. https://anzsla.comNovember 4-7 2017 – Asian Patent AttorneysAssociation Conference, Auckland.www.apaa2017.comDecember 6-9 2017 – The Law and SocietyAssn. of Australia and NZ Annual Conference(LSAANZ), Dunedin. www.lsaanz.orgOctober 7-12 2018 – IBA Annual Conference,Rome, Italy. www.ibanet.org

March 20-24 2017 – 20th CommonwealthLaw Conference, Melbourne.www.commonwealthlawconference.orgMarch 22 2017 – Building & Construction LawConference, Auck. www.thomsonreuters.co.nzApril 4 2017 – Cyber Law Conference,Wellington. www.lawyerseducation.co.nzApril 5-9 2017 – Inter-Pacific Bar Assn.Annual Meeting & Conference, Auckland.ipba.orgApril 20-21 2017 – 8th Financial Markets &Corporate Governance (FMCG) Conference,Wellington. www.victoria.ac.nz/saciMay 3-5 2017 – ALAANZ (Aviation LawAssn.ANZ) 36th Annual Conference,Auckland. http://alaanz.orgMay 5 2017 – Global Pound ConferenceSeries, International Mediation Institute,Auckland. imimediation.orgMay 11 2017 – 15th Annual Immigration LawConference. www.wolterskluwer.co.nzMay 19 2017 – The Maritime Law Associationof Australia & NZ, NZ Branch Conference,Waiheke Island. mlaanz.orgMay 24-26 2017 – ILANZ Conference 2017,Rotorua. https://ilanz.orgJune 15-16 2017 – NZ Society of ConstructionLaw Conference, Te Papa, Wellington. http://constructionlaw.org.nzJune 27 2017 – The 13th Annual FinancialMarkets Law Conference, Auckland.www.conferenz.co.nzJuly 27 2017 – AMINZ 2017 Conference,Auckland. www.aminz.org.nz

Conferences

1 (a) a joke

(b) your breath

(c) time

(d) a racecar (spelled thesame reading left or right)

(e) charcoal

2 1…Nxg3+ 2 hxNg3 Qh6+ 3 Bh3QxBh3# [Gruenfeld v TorreBaden-Baden 1925].

MADESIGNm

Answers for puzzles from page 6

PROFESSOR Ngaire Naffine ofthe University of Adelaidepresented the Shirley SmithAddress for 2016.

Professor Naffine is widelypublished in the areas ofcriminology, criminal lawjurisprudence, feminist legaltheory and medical law. TheAddress was well received anddelivered to a packed lecturetheatre. The audience includedmembers of the judiciary, seniorpractitioners and members ofShirley Smith’s family.

The Address focused on theconcept of male right andmanliness, and how this hasinfluenced the development ofthe criminal law. ProfessorNaffine postulated that the mostinfluential of men haveemployed criminal law toenforce and justify theirauthority over women. She saidthis sustains their sense of self asmen, but is done in subtle waysthat do not advertise thisauthority. Professor Naffinetook care not to put words intothe mouths of men, insteadquoting some of the mostrespected male jurists and legalscholars as representative of

mainstream society. These men(and the ideas of others likethem) resulted in laws thatcompromised and flouted themen’s most basic principles.

Professor Naffine stated thatfor the 19th and some of the 20thcentury, women were hiddenfrom public life and were not ofconcern to men. They could notvote, attend university, holdimportant public offices, theirproperty transferred to theirhusband upon marriage, andmarriage was their mainoccupation. For men, this meantthe majority of their publicconcerns – for their physicalsafety, economic security and inpolitics – were in relation toother men, and thereforeinternal to the male sex.

However, at home, men haddaily contact with women andthe criminal law was used toensure that men were notimpeded in pursuit of theirinterests. To ensure this, womenwere not treated as mans’ equal,for if she was, she wouldnecessarily have at her disposalthe most fundamental right – toexclude all others from herperson. Criminal law was

employed to ensure husbandscould exercise personal controlover their wives, to the end thatrape within marriage was lawful.

Such a position was the veryantithesis of criminal law. Itviolated the most fundamentalprinciple of criminal justice.Criminal law protects bodilyintegrity. By allowing maritalrape, the criminal law hadsuspended the very hallmark ofcivilised criminal law.

Professor Naffine traced thelegal commentary back to pre-Victorian England. She citedjurists and philosophers such asSir Matthew Hale and WilliamBlackstone, and more recentacademics such as NorvalMorris, Glanville Williams,A. L. Turner and Colin Howard,all of whom defended andreinforced the right of men torape within marriage. In doing

By Cassandra Kenworthy

so, they explored the limits of ahusband’s right, but never theright itself.

Incredibly, Professor Naffinepointed out many of theseacademics were liberal thinkers– Williams campaigned forabortion and euthanasia rights;Morris was a champion ofprisoner rights. She posited thatthis demonstrates an en-trenched system of thought andtotal lack of reflection by thelegal system in failing torecognise the inconsistency inthe criminal law as it stood.

The legal defence persistedinto the late 20th century, withthe defence being abolished in1986 in New Zealand. ProfessorNaffine linked the more modernissue of the sexualised abusetargeted towards public womenas a further example of theexpression of male sexual right.

Her address becomes perhapseven more poignant givenrecent political events.

Her conclusion that the factthat marital rape persisted in ourlaw for so long was as a result oflack of reflection on the statusquo is a timely reminder of howfar our law has come in the pastdecades, how hard fought suchprogress is, and how cautioussociety should be to becomingcomplacent and reverting to theold status quo.

The Shirley Smith Address isan annual address organised bythe Women in Law Committeeof the New Zealand LawSociety’s Wellington branch inhonour of pioneering NewZealand woman lawyer ShirleySmith. Professor Naffine’spaper can be found atshirleysmithaddress.org

❑ Shirley Smith Address

Criminal law and the problem of men

TEN years of the Evidence Act 2006 is to be reviewed at a conferenceand workshop to be held at Victoria University in September.

The event will mark the decade since the Act came into force andalso the second five-year review by the Law Commission.

Speakers and consultants include: Fionnghuala Cuncannon,Meredith Connell; Professor Jeremy Gans, University of Melbourne;Professor David Hamer, University of Sydney; Professor Jill Hunter,University of New South Wales; Professor Elisabeth McDonald,University of Canterbury; Associate Professor Scott Optican,University of Auckland and Hon Douglas White QC, President of theNew Zealand Law Commission

The event is to take place at The Old Government Building, 55Lambton Quay, Wellington, on Friday 8 September 2017, 8.30am-5pm.

For more information email [email protected] conference is CPD compatible.

Review of Evidence Act 2008

THE scheme to assist lawgraduates into work is stillbeing operated by theWellington Branch.

Law graduates seekingwork leave their CVs at the So-ciety. These are available topotential employers needingstaff who can refer to the CVsand choose appropriategraduates.

The work offered need notbe permanent. Any work in alaw office will give graduatesexperience that may be helpfulnext time they make job appli-cations.

Law graduateCV scheme

Page 3: Council Brief High Court Library 3 High Court reopens 3 ... the auction, fun local band The Retro Divas (pictured above) will perform dance hits from the 60s, 70s and 80s. Keen eyed

News COUNCIL BRIEF, FEBRUARY 2017 3

[email protected]

Council Brief Advertising

DAVID KILGOUR spoke to the WellingtonMedico-Legal Society recently to elicit thesupport of lawyers and medical practitioners forhis organisation’s fight against forced organharvesting1.

David Kilgour is a lawyer and formerprosecutor, was a long-serving member of theCanadian Parliament for 27 years, and from2002 to 2003 served as the Secretary of State inthe Asia-Pacific region.

He claimed that a minimum of 60,000 FalunGong practitioners have been killed for theirorgans in a state-sponsored programme inChina. Falun Gong is a minority group ofpacifists, who do not smoke, drink or engage inpolitics and continue to face arbitrary arrest fortheir views.

In 2009 he published, with David Matas,human rights lawyer, Bloody Harvest – thekilling of Falun Gong for their Organs. He andMatas were awarded the 2009 Human RightsPrize of the International Society of HumanRights in Switzerland for their work.

In 2016 the report was updated and becameglobal news2. The authors disputed theChinese government’s position that forcedorgan donation from convicted and executedprisoners had ceased in 2015. David said thatresearch in hospitals in China had revealed thatorgan pillaging was continuing, and thatinvoluntary organ donation from prisoners andFalun Gong did not end in 2015. Davidreported 140 hospitals were performingtransplant operations routinely and referredto evidence of set quotas for organtransplantation. The research supporting this isextensive. The updated report contains over2400 footnotes.

Organs from China are being sold across theworld, he said. The primary motivation for theChinese government continuing forced organharvesting was cited as money. Davidestimated the return would be approximately $1billion US dollars per annum.

David said that very few countries have madeit an offence to buy a trafficked organ. Amongthose who have are Taiwan, Israel and Spain.While David could not report on how NewZealanders may have been accessing organsfrom China for transplantation, he was veryconcerned at the New Zealand government’scontinued silence.

David was asked how the outlawing oftrafficked organs would affect those who mayhave had an organ transplant in China andreturned to New Zealand for aftercare. Heacknowledged that such a law would not changethe outcome for those patients but was hopefulthat if people realised that prisoners ofconscience were being murdered for organs,maybe those needing an organ would “wait alittle longer” for a legal transplant. He stressedthat people needed to be aware of the humanrights abuses implicit in forced organ harvesting.

Anyone interested in assisting should contactMargo McVicar at End Organ Pillaging –[email protected]

The Wellington Medico-Legal Society is anamalgam of practising lawyers and doctors, andstudents with an interest in medical law. Regularmeetings are held featuring speakers withparticular expertise in areas that affect medicallaw. If you are interested in joining the Societyplease contact either of the below emailaddresses:Jenny Gibson: [email protected] Kapua: [email protected]

Footnotes1 See www.stoporganharvesting.org2 http://edition.cnn.com/2016/06/23/asia/china-

organ-harvesting/

http://www.theglobeandmail.com/news/world/report-alleges-china-killing-thousands-of-prisoners-to-harvest-organs/article30559415/

http://www.news.com.au/world/asia/a-bloody-harvest-thousands-of-people-slaughtered-for-their-

By Jenny Gibson

Organ harvesting and transplants

AT the time of writing the Law Society Library in the Wellington High Court is beingre-carpeted and ceiling tiles replaced after being damaged by the Novemberearthquake. Lighting also needs to be replaced and this could take several weeks.As a consequence the books will not be back in the short term. Library staff hope tobe back in the building before that, offering research services and computers forlawyers to use to access all the electronic information we have. No dates or firmtimeline yet for that but we hope sooner rather than later.

Ways of accessing electronic resources• In the meantime, we are installing a kiosk computer in the Wellington District

Court that members will be able to use during court opening hours in the levelthree Lawyers’ Room there.

• Another way you can access some of our electronic resources is to use Lexis Red.This is an e-book borrowing library of some 20 LexisNexis titles. You need todownload and install the Lexis Red software on a Windows PC or Ipad.Instructions and information are in the recent e-brief sent out by the WellingtonBranch and we can email information to you if needed. Contact:[email protected] for more information.

• Victoria University Library has very kindly confirmed that lawyers are able touse the print collections at the Law Library weekdays between 8 am and 5 pm.You can check the Victoria Library catalogue (Te Waharoa) first to see if theyhave the book you want and to see where it is as the law library is in the midst ofmoving their stock. Ask at the service desk on the ground floor if you can’t finditems. The catalogue is at this internet location: https://library.victoria.ac.nz/library/ You use the box called Find books, articles, online resources. Pleasenote that the online resources at the library are for Victoria staff and studentsonly and not available to the profession. You will need to use our computers toaccess the NZLS Library online resources.

By Robin Anderson, Wellington Branch Librarian

❑ Library News

High Court Library arrangements

Recent pictures inside the High Court Library.

Reopening of WellingtonHigh Court building

THE Wellington High Court building at 2 Molesworth St, Wellingtonwill reopen on 1 February 2017.

The building has been closed since the earthquakes lastNovember.

While structural engineers found the two structures that make upthe building are structurally sound, the complex suffered water andrelated damage from sprinklers and burst pipes.

The Law Society library will remain closed as further work isrequired.

The following arrangements will apply:• Until 5pm Tuesday 31 January 2017, the High Court Registry will

continue to operate from the 6th floor of the Wellington DistrictCourt (43-49 Ballance St). Lawyers or members of the publicwanting to file documents can do so there. All other contactdetails for the High Court, telephone and email remain the same.

• From 1 February 2017, Judges of the Wellington High Court, theirassociates and clerks will recommence work at 2 Molesworth St.

• At 9am Wednesday 1 February 2017, the High Court Registry (andprobate unit) will reopen at 2 Molesworth St.The Chief High Court Judge, Justice Venning, said the Judiciary

had been committed to ensuring minimal disruption to the work ofthe courts following the earthquakes and appreciated the supportthe Ministry had provided.

“We have the experience of Christchurch to draw on and it is acredit to everyone involved that we are in a position to move back tothe High Court building as planned for the start of the year.””

Justice Venning also thanked the Wellington High Court Judges,their support staff and the Registry for their flexibility and positiveattitude throughout what had been a challenging few months as aresult of the earthquakes.

Daily lists of fixtures and their locations continue to be publishedon the Courts of New Zealand website:

courtsofnz.govt.nz/going-to-court/calendar/daily-lists

Further information about the High Court building, openinghours and other details can be found at:

justice.govt.nz/contact-us/find-us/wellington-high-court

Page 4: Council Brief High Court Library 3 High Court reopens 3 ... the auction, fun local band The Retro Divas (pictured above) will perform dance hits from the 60s, 70s and 80s. Keen eyed

COUNCIL BRIEF, FEBRUARY 20174 Admissions

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Admittee Sascha Zerjal, centre, her moving counsel Sarah Retter, right, with Dennis, Wendy andJasmine Zerjal.

Liz O’Brien, centre, with her moving counsel Steph Dyhrberg, and Maryand Maurice O’Brien. Steph was also moving counsel for Alun Pang, left.

Alun, who is admitted in Hong Kong, travelled to Wellington for theDecember ceremony.

Admittee Conor Donohue with his moving counsel Hazel Armstrong, far left, andJean O’Neill and Ann and Mary Donohue.

Admittee Elliot Foxall and his moving counsel Aleyna Hall with Tinn and Lester Foxall and Wellington BranchPresident David Dunbar at back.

Admittee David Hill with Diane and Rohan Hill.

New Young Lawyers’ Committee convener Emma von Veh andJen Howes who has stepped down.

Admittee Samah Seger, third from left, and her moving counsel William Fussey, far right, with Sascha Zerjal, Helen Lyttelton,Shreyasee Halder and Samuel Dickinson.

Admittee James Cartwright, left, with his moving counsel PhyllisStrachan, fellow admittee Fergus Low and Fran Lints.

Admittee Andrea Poanta, holding Jeremy Poanta, with Andrea’s moving counselEmanuela Gabor and Alin Poanta.

Admittee James Cartwright, second from left, with Rodney Venning, Gabby Adler andCashill Timms.

Admittee Monique Rijnberg and Kieran Jongerius.

Admittee Claire Sweetman, centre, with her moving counsel Valerie Bland, withRichard and Philippa Sweetmman and Mark Hough.

Aric Yahya ShakurJessica Catherine AshleyEmily Trevena BlincoeCaitlin Storm CoughtreyLai Po DikCharlotte Rose GreigSimon Aroha HoffmanAsha JonesAshley Sarah KirkConnor William MorrissTimothy Peter Saker O’ReganMonique Diana RijnbergNicholas Leith McNaughton RobertsJoachim Ludwig TaëniJoshua Martin TempletonAndrew Scott DysartSarah Patricia DysartMatthew Ian HagueDanielle Eva Hammond

Candidates admitted to the Bar on 9 December 2016Samuel James JensenNicholas Stuart William JollyOlivia Lindsay NorlingElizabeth Helen O’BrienYan Lun PangAlice Julia RitchieStephen Te Lun Sullivan-ThamStacey Jade ThomsonLarissa Nicole TrownsonLydia Farn T’en TsenElizabeth Jane AstonTimothy Gregor BainAimee Louise BellSean Robert ClarkeAmanda Claire CrehanFrederick Coates Bennett DunphyHarriet Mary Louise FarquharElliot Lloyd FoxallDavid Warwick Hill

Shivana Nicole Laytham PembertonElsie Joyce Randow-StoneHyekang Monica ShinMyles James Lane SnaddonClaire Victoria SweetmanMark Kieran Patrick TownshendLucy Charlotte TravisPeter John BristowJames Charles Edward CartwrightFraser Mark ChapmanHugo Alexander Daniell DobsonAutumn Marriella Wilks FaulknerHannah Megan Cook JacobiCharlotte Louise KerrFrances Stewart Grace LintsFergus Harry George LowThomas Taylor NelsonAndreea Gabriela PoantaMilne Hayden Riley

Tara Schoeller-BurkeFaalagilagi TuimavaveKathryn Evelyn WatsonElla Francis CollisSamuel David Callahan DickinsonConor John DonohueEmma Louise GarnhamHugo KanCharlotte Millie LynskeyThomas William Robert LynskeySimon Ian MackleyFrances Alexandra NewboldSophie Louise PidgeonSusan Maree ScutterSamah SegerAdam Te Kanawa Gray TapsellTessa Jane VincentAbhiteja Kandarpa WoodridgeSascha Rose Zerjal

These pictures were taken atthe Wellington Branch socialfunction held on 9 Decemberto welcome newly admitted

members and their families tothe legal profession.

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COUNCIL BRIEF, FEBRUARY 2017News

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5

THE Wellington City Councilis establishing an in-house

legal team after many years ofoutsourcing legal services.

Kane Patena, the Director ofGovernance and Assurance andGeneral Counsel, who joinedWellington City Council in April2016, says the intention of thenew team is to manage legal riskmore effectively across theCouncil.

“We looked at how in-houselegal capacity would produceefficiencies and enhance theunderstanding of legal risk amongofficers throughout the Council,by using people who are actuallypart of the organisation ratherthan external advisers,” he said.

A robust external review on thedemand for legal services withinthe Council, conducted by TimPower of Power Law, canvassedthe Council’s senior leadershipteam, business unit leaders andexternal providers, andsupported this view.

While oversight of legalservices is part of his role, MrPatena has a wide brief across thecomplex Council organisation.“Council functions are verybroad and the legal profile just asvaried. When you add in that it isa public sector organisation withpublic accountability, it is clearthat in-house legal capability isthe best way to proactivelymanage legal risk.”

The first task was to develop anoverview of the nature of, anddemand for, legal services anddetermine the size andcapabilities required of the legalteam. To that end, two initialappointments have been made:Head of Legal Hayley Evans,

previously with the ToddCorporation, and Senior LegalCounsel Julia White, previouslywith Buddle Findlay.

They had barely started workon the overview when it wasderailed by the Kaikouraearthquake of 14 November. MsEvans started work just beforeand Ms White just after the quakeand their first weeks wereoverwhelmed by responding toits implications – dealing with theBuilding Act, civil defence andemergency management.

A positive from this was theflood of offers of assistance fromaround the country. “I have beenso impressed at how collegialpublic sector lawyers are,” MsEvans says. “We have had offersof help from government entities,from lawyers in Christchurch andAuckland, and from other localauthorities – it has been verygratifying.

“Now we need to get back to theoverview – building relationshipsacross the Council anddemonstrating the value of in-house legal services. How do wemove away from decentralised,outsourced and reactive work,towards centralised, internal, andproactive management of legalrisk?”

Both Hayley Evans and JuliaWhite are excited by the diversityof legal issues generated throughCouncil activities, and by thechallenge of developing a newteam from scratch. “It is a veryrare opportunity to start a newservice like this, to look atfundamental questions such as

what the role of the in-houseteam should be, and what is thenature of its relationships withCouncil and with external legalproviders,” Ms Evans said.

Ms White points out that withtheir different backgrounds sheand Ms Evans complement eachother. “Hayley has had more of aprivate corporate background assenior legal counsel at the ToddCorporation, whereas I wassenior associate with theresource management team atBuddle Findlay and before thatworked in the government sector,so bring more of a public lawperspective.”

By 1 July this year the Councillegal budget will be centralisedand the team expects by thenCouncil staff will be familiar withthe in-house provision of legalservices and appreciate its value.“At present, staff are seeking ouradvice as they see fit,” Ms Whitesays. “We find staff are gratefulfor our input at meetings and seethat we can be involved early inissues – they don’t hesitate toseek our advice proactively.”

The Wellington City Councilin-house legal team is a work inprogress with much more tocome. In the meantime, the teamis energised by the challenge andlooking forward to workingcollaboratively with other in-house legal teams in territorialauthorities around the country.

Kane Patena, director governance and assurance (general counsel), Hayley Evans, head of legal, and Julia White, senior legalcounsel, of the new Wellington City Council in-house legal team, pictured on a breezy Wellington day.

DeadlineMarch 2017Council Brief

Monday 20 February

New WCC in-house legal team

IntroductionMost people will be familiar with restorative justice in the context ofthe criminal justice system, where it has been a feature for severalyears. Its application in environmental prosecutions under theResource Management Act is less well known and understood, andwe would argue that it is underutilised.

Restorative justice has features that make it well suited toenvironmental prosecutions because it places emphasis onaddressing the harm that has occurred through a process ofengagement between those most affected by the offending and thedefendant.

This article provides an overview of some of the key features of therestorative justice process and discusses the impact it can have onthe outcome of prosecutions under the RMA. Although there aresome uncertainties with restorative justice, there are also substantialbenefits that can be secured by all parties and so this option shouldnot be overlooked by defendants that are facing prosecution underthe RMA.

What is restorative justice?Restorative Justice can be simply defined as a “recognised form of

dispute resolution that views non-compliance as a violation ofpeople and relationships and where offenders are encouraged to takeresponsibility for their actions in a meaningful way, by repairing theharm caused by their crime”. It involves less focus on punishmentand deterrence, and places more emphasis on the needs of the victimand the affected community who take an active role in the process.

Use of restorative justice in RMA contextIn 2002 the Sentencing Act was amended so that the Court is

required to take into account the outcome of restorative justiceprocesses. The Act provides for adjournments to allow restorativejustice conferences to be held, for restorative justice outcomes to beimplemented and for any “offer to make amends” to be taken intoaccount on sentencing.

Despite the law change, the use of restorative justice in the contextof RMA prosecutions has been relatively modest. During the periodbetween July 2001 and September 2012 it was used on 33 occasionsout of a total of 860 prosecutions. Even so, some regulators areactively seeking to utilise restorative justice in appropriatecircumstances. Environment Canterbury, for example, has publishedguidelines regarding how it will implement use of restorative justiceas part of its ‘regulatory toolbox’.

The level of compliance monitoring and enforcement activityundertaken by local authorities has substantially increased over thepast 20 years. There are more prosecutions initiated and the level offines imposed by the District Court has also generally increased.Most charges laid are successful – data collected by the Ministry forthe Environment shows a 90 percent conviction rate over the sameperiod. This is largely because under the RMA it is not necessary forthe prosecuting agency (usually the council) to prove that theoffending was intentional; a simple mistake, carelessness orignorance will be sufficient to support a conviction. Also relevant tothe conviction rate is that companies, landowners and consentholders can be prosecuted for mistakes made by employees andother third parties working on site.

These circumstances paint a fairly gloomy picture for personsprosecuted under the RMA. Environmental prosecutions areexpensive in monetary terms and can harm the reputation of theprosecuted company. Against this context restorative justice is animportant alternative justice mechanism that can provide forimproved sentencing outcomes for defendants.

When will restorative justice be appropriate?Restorative justice will be appropriate in circumstances where the

defendant accepts guilt and there is potential for the defendant tomake amends, generally by some form of environmental restoration,in a manner that is supported by victims of the offending and thecouncil. So in order for restorative justice to be successful there needsto be (a) agreement by these parties (as well as the defendant) toparticipate in the process and (b) support for the outcome of therestorative justice conference.

In the case of environmental prosecutions, the term “victim” isconstrued quite broadly to include not just the person against whoman offence is committed but also persons who suffer loss or damageto property, physical harm or who are disadvantaged by an offence.This means that depending upon the circumstances, the victim maybe someone whose trees have been cut down, someone who hassuffered headaches from odours, or a group representing the wider

Book early for LawSociety events!

By Chris Fowler, Partner, Adderley Head

Environmental prosecutionsand restorative justice

❑ Continued page 7

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[email protected]

Council BriefAdvertising

COUNCIL BRIEF, FEBRUARY 20176 Community Law Centre

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.

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© Mark Gobbi 2016

Answers: See page 2

1 Which of the following are truebearings: 45°, 90°, 180°, 270°,360°?

2 It is white’s turn to move. Whatshould white do?

The Children, Young Persons,and Their Families (Oranga

Tamariki) Legislation Bill passedits first reading in Parliament on13 December 2016, with publicsubmissions now being sought.

The Bill amends the Children,Young Persons, and TheirFamilies Act 1989 (the Act),providing the foundation for thenew Ministry of VulnerableChildren, Oranga Tamariki, todeliver a “child-centred” careand protection system and a“balanced” youth justicesystem.1

From the perspective ofCommunity Law Wellington andHutt Valley (CLWHV), threeproposed changes particularlywarrant notice. Firstly, CLWHVis concerned that the removal ofthe ‘whanau first principle’ willpave the way for more tamarikiMaori to be removed from theirwider whanau, which willdamage vitally importantconnections to their culturalidentity. Secondly, the broadinformation disclosure require-ments set out in the Bill maydeter those in need of help fromseeking support and underminethe relationship of trust betweencommunity workers and theirclients. Thirdly, though the Billtakes the positive step ofincluding lower-risk 17-year oldsin our youth justice system, theyouth justice age remains out ofstep with the higher care andprotection age of 21.

Removal of the ‘whanau first’principle

One of the key changes the Billmakes is to the purposes andprinciples of the Act, removingprotections which gave priorityto placing tamariki with amember of their family or widerhapu. The Bill removes section 5,the ‘whanau first principle’, thatrequires consideration to be

given to how a decision willaffect the stability of a child oryoung person’s whanau, hapu oriwi. It also deletes section 13,including the provision that“where a child or young personis removed from his or herfamily, whanau, hapu, iwi, andfamily group… that, whereverpracticable, the child or youngperson should be returned to,and protected from harm within,that family, whanau, hapu, iwi”.

The Bill has attractedcriticism from a range of Maorigroups, non-governmentalorganisations and individualsfor the deletion of the whanaufirst principle. It has beenargued that the proposedreforms distort the principles ofthe 1986 Puao-te-ata-tu(Daybreak) report, whichmoulded the original ground-breaking Act. The reporthighlighted that there is noinherent conflict between thewelfare and best interests of achild and the customarypreference for the maintenanceof children within the hapu.Most importantly, regarding thesafety and welfare of children,the report accentuated thecentrality of whanau and thenecessity of keeping childrenwithin the whanau/hapu group.

Privacy concerns

The changes to privacy lawproposed by the OrangaTamariki Bill are extensive. TheBill will allow the chief executiveof the Ministry, a care andprotection co-ordinator orconstable to request informationfrom any agency (including aperson) if the information isrequired to determine whether achild or young person is in needof care, or for proceedings underthe Bill.2 Information may berequested not only about thechild or young person, but also

about any member of the childor young person’s family, anyperson the child or young personis in a domestic relationship withand any person the child oryoung person is likely to residewith.3

These changes mean thattherapists, counsellors, doctors,other health professionals,teachers, social workers andmany other professionals can berequired to breach confi-dentiality and pass oninformation (though legalprivilege still applies). There areprotections around how suchinformation can be disclosedafter collection, including wheredisclosure would breach aprofessional’s duty of confi-dentiality.4 However, the mererequirement to provide thisinformation will in our opinionundermine the relationship oftrust that exists between, forexample, patient and therapist,as well as impacting on someprofessionals’ sense of integrity.There are already extensiveprotections in place forprofessionals who choose todisclose.

Changes to the youth justiceand care and protection ages

The Oranga Tamariki Billproposes to include lower-risk17-year olds in our youth justicesystem and creates an entitle-ment for young people to remainin care or return to care up to theage of 21.5 It further extends thechief executive’s ability to

provide assistance and advice toyoung persons up to 25 years ofage.6 This raising of the youthjustice and care and protectionages was recommended by theModernising Child Youth andFamily Expert Advisory Panel.7

Over 33 organisations withfrontline and researchexperience in the justice sectorcollectively petitioned thegovernment to raise the youthjustice age to at least 17 years.The raising of the youth justiceage brings New Zealand into linewith its international obligationsincluding the United NationsConvention on Rights of theChild. Furthermore, mostoverseas jurisdictions that welike to compare ourselves toinclude 17-year-olds in theiryouth justice systems.8

Statistics tell us that 83percent of prison inmates under20 have a ‘care and protection’record with Child, Youth andFamily,9 however, the OrangaTamariki Bill creates adichotomy between the care andprotection and youth justicesystems. CLWHV supportsarguments that the youth justiceage should be raised tocorrespond with the care andprotection age, as the YouthCourt has the power to order abroader range of interventionsmore appropriate to youngpeople’s needs.

The Oranga Tamariki Billproposes wide ranging practical

and philosophical changes tothe way New Zealandapproaches the care andprotection of children andyoung people and, as such,deserves to be read with greatscrutiny. CLWHV sees a largenumber of whanau who will beaffected by the proposedchanges and would encourageall practitioners with an interestin this area to considersubmitting on the Bill.

Footnotes

1 Explanatory note, Children,Young Persons, and TheirFamilies (Oranga Tamariki)Legislation Bill.

2 Ibid., clause 38.3 Ibid.4 Ibid.5 Ibid., clauses 4 and 115.6 Ibid., clause 116.7 Modernising Child, Youth

and Family Expert Panel(2015) Expert Report on theModernisation of CYF, p 97.

8 http://www.occ.org.nz/a s s e t s / P u b l i c a t i o n s /FINALRaisingtheAge.pdf

9 http://www.radionz.co.nz/n e w s / n a t i o n a l / 2 8 2 6 2 3 /’staggering-link’-between-cyf-care-and-crime

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A critical analysis of the Children, Young Persons,and Their Families (Oranga Tamariki) Legislation Bill

By Helen Kaimarama (Roia Hapori) and Kate Scarlet (Roia Kahika)- -

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COUNCIL BRIEFThe monthly newspaper of theWellington Branch NZ Law Society

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 March 2017 issue is Wednesday 22 February, 2017.

Circulation: 3000 copies every month except January. Goes to all barristers and

solicitors in the Wellington, Marlborough, and Wairarapa. 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

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Editor: Chris Ryan, telephone (06) 378 7431 or 027 255 4027

E-mail: [email protected]

Opinions expressed do not necessarily reflect those of the NZ Law Society Wellington Branch or the Editor.

Council Brief is published for the NZ Law Society Wellington Branch

by Chris Ryan, and printed by Beacon Print, Hawke’s Bay.

ISSN 2382-2333

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DOWN1. Showed that one’s judgement as a producer

had become clouded? (8)2. Possibly be a fool being brought up as a

princess (5)4. It’s a crime when he has a number after one

month (6)5. There’s a lot to be said for having it (4,2,3,3)6. One takes something for it (7)7. Lines, we hear, of eggs (4)8. It will be a blow to take this test - and fail!

(12)12. Joint description of Eve’s origin (5,3)14. Useless, until changed inside that is (7)16. He has an enormous bill to face (6)18. Animal in hardship popularly abbreviated (5)19. Elegant style in which ice-cream is served (4)

ACROSS1. Spheres or balls lose everything (4)3. He does his running on the quiet (8)9. Organise a gay reel with zest (7)10. Copy wrongly (5)11. How detectives may collaborate to

catch counterfeiters? (7,5)13. Trifling affront (6)15. Put off one’s retirement (4,2)17. Work in harmony, as rowers should

(4,8)20. Greets in stony fashion? (5)21. Appreciative watcher gives tongue!

(7)22. Encouraging applause (8)23. To a doctor it’s grave (4)

DOWN1. Defames (8)2. Elevates (5)4. Dress (6)5. Inauspicious (12)6. Chanted (7)7. Bawl (4)8. Recompense (12)12. Way in (8)14. Small crown (7)16. Abrade (6)18. Moslem bible (5)19. Abominable

snowman (4)

ACROSS1. Vend (4)3. Ripeness (8)9. Insult (7)10. Lethal (5)11. Censorious (12)13. Modern (6)15. Abrupt (6)17. Type of biscuit (5-7)20. Boredom (5)21. Flap on aircraft wing

(7)22. Meant (8)23. At one time (4)

Cryptic Clues

Quick Clues

PRACTISING WELL

Chaplain, Julia Coleman, 027 285 9115You 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.

COUNCIL BRIEF CROSSWORD

Council Brief [email protected]

News COUNCIL BRIEF, FEBRUARY 2017 7

Wellington lawyers are very keen to attend events presented by theWellington 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.

Book early for Law Society events!

https://bookwhen.com/wellington-branch

Deadline Council Brief March - Monday 20 February 2017

© Mark Gobbi 2017

1 What am I if—I can be made, played, cracked, ortold?I am harder to catch the faster yourun?I can fly without the aid of hot air,engines, or wings?I am a speedy thing that looks thesame from either end?I am black when new, red whenused, and grey when done?

2 It is black’s turn to move. Whatshould black do?

MADESIGNm

Answers: See page 2

community (such as a residentsgroup or hapu) whose localenvironment has been damagedby discharge of contaminantsinto a waterbody.

What is the procedure forrestorative justice?

The restorative justiceconference is the cornerstone ofthe procedure and it can beinitiated by the Court, the victim,the council or the defendant.The Court proceedings areadjourned to allow theconference to occur.

Restorative justice confer-ences are facilitated by anindependent agency. They focuson accountability and seek torepair the damage done by theoffending by identifyingpractical measures that arewithin the control of thedefendant to implement.Typically the conferenceprovides an opportunity forvictims to express the impact of

the offending on them, to findout what happened and for thedefendant to make an apologyand propose methods to makeamends. Once the conference iscompleted, the facilitatorprovides a report to the Courtthat records the events in theconference as well as any agreedoutcomes or conditions.

What impact doesparticipation in restorativejustice have on the outcome?

When the matter is recalled,the restorative justiceconference report is used toassist the Court to determine theappropriate sentence in thecircumstances of the case. Indeciding whether and to whatextent any offer to make amendsshould be taken into account theCourt must consider (a) whetherit was genuine and capable offulfilment, and (b) whether it hasbeen accepted by the victim asmaking amends for the wrong.Each case must be considered inthe context of its own facts andso there are no hard and fastrules about what sentencingoutcomes will result whenrestorative justice isimplemented.

Where the restorative justiceconference is successful, thecouncil and the defendant willoften present a joint view to theCourt about the appropriatesentence. This may range from adecision by the Council towithdraw the charges altogether(similar to diversion in thecriminal context for minoroffences by first time offenders),discharge with or withoutconviction, to reduction in thefinancial penalty imposed by theCourt.

The Court has held that thereis nothing wrong with partiesmaking a joint proposal for asentence by advancing what is ineffect a negotiated settlement.However this will be looked atquite closely by the Court as it

needs to be satisfied that theagreed settlement –• has been reached on a

principled basis• has been arrived at on a

transparent basis• has some relationship to the

potential fine which mighthave otherwise been incurred.

What are the pros and cons?The benefits of restorative

justice for victims and theenvironment are fairlystraightforward. They includevindication for victims byproviding a forum where thedefendant acknowledges theyhave wronged the victim, and thevictim’s needs are given someattention by the defendant. Thenatural environment benefitsbecause the defendant’scommitment to make amendstypically involves restoration ofthe natural environment whichhas been damaged.

For the defendant, thebenefits are less obvious but stillimportant. Restorative justiceprovides an opportunity for thedefendant to have greaterinfluence over the sentencingprocess by active engagementwith those that are most affectedby the offending. To be effective,such engagement must begenuine with a high level ofcommitment to the process andthe outcome. When this occurs,victims (and the council) willoften be willing to supportpractical measures to restore theenvironmental harm caused bythe defendant. This can translateinto a substantially less punitivesentence than would otherwisehave been imposed by the Court.

The restorative justiceconference also provides anopportunity for the defendant torestore their reputation withinthe community by allowing themto respond in a manner that isconsistent with personal orcorporate values of account-ability, transparency and

partnership with thecommunity. In some cases thiscan significantly influence theway in which the defendant’sconduct is reported in themedia. For some defendants,reputation damage arising fromadverse media coverage is moreimportant than the financialpenalty that the Court mayimpose.

The disadvantages of restor-ative justice are that it is notfeasible in every case, and theoutcomes are not certain. Forexample, some parties simplymay not agree to participate, orthe parties may not be able toreach agreement at therestorative justice conference.Even if they can, the Court maynot accept the joint proposal forsentencing promoted by thecouncil and the defendant. Also,the process is neither easy norcheap. It requires personal andfinancial commitment by thedefendant to be successful.

Some public indemnityinsurance policies provide coverto meet the financial cost ofenvironmental restoration fordamage caused by the insured.Where these policies areavailable, they can substantiallyreduce costs to the defendantarising from restorative justicecommitments. Companies thatwork in sectors where there isrisk of environmentalprosecution should checkwhether their insurance policyprovides this type of cover.

ConclusionIn many respects, restorative

justice presents as a ‘win-win’sentencing option that candeliver substantial benefits to all

participants. It is not a softoption for defendants. Howeverit can provide a positiveoutcome that addresses theharm caused by the offendingand may substantially reducethe penalty that would otherwisebe imposed by the Court. Insuitable cases it can result inwithdrawal of the chargesentirely. Restorative justice alsoprovides an opportunity forcompanies to restore theirreputation within the affectedcommunity.

Consequently use ofrestorative justice in thesentencing process under theRMA can provide beneficialoutcomes for victims, theenvironment and the defendantthat would not otherwise beavailable. For defendants, thereare costs and uncertaintyassociated with this procedurehowever in our view these willoften be outweighed by thebenefits.

In the Canterbury region,ECan has signalled its interest insupporting restorative justice.Our experience is that ECan iswilling to explore its applicationon a case-by-case basis. Overall,it would appear that there isconsiderable scope for greateruse of this alternative sentencingoption than has occurred todate.

Disclaimer: This is a briefsummary for informationpurposes only and is not legaladvice

This article first appeared in CanterburyTales and is republished with permission

❑ Continued from page 5

Environmental prosecutions and restorative justice

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COUNCIL BRIEF, FEBRUARY 20178 Notices

Please contact the solicitorsconcerned if you are holding a will

for the following:

FOR URGENT ACTION

WILLENQUIRIES

■ The cost of will notices is $50.00 (GST inclusive).Please send payment with your notice.

■ Will notices should be sent to the BranchManager, NZ Law Society Wellington Branch,PO Box 494, Wellington.

PETTENGELL, Dora

Late of Upper Hutt, widow.

Died on 14 September 2016.

Please contact Paul Barnett

[email protected] or

tel 04 498 4932

P O Box 1320 Wellington 6140

Brandons is a general practice with a property focus located on TheTerrace within the Wellington CBD. We are seeking to employ a solicitorwith up to 3 years PQE. Newly admitted solicitors are welcome to apply.

In this role you will be involved in all aspects of property law as well asundertaking commercial, small business and estate work.

You will have:

• Sound legal knowledge and/or an interest in the above areas• Excellent written & oral communication skills• Strong work ethic• A client focused attitude

To the successful applicant we offer:

• A supportive and collegial environment• A commitment to on-going professional development• A competitive salary• Excellent work/life balance

If you think you may have what we are looking for, then please applyto Vicky Hays (Office Manager) at [email protected] by18 February 2017.

Solicitor – Newly admittedor up to 3 years PQE

The Wellington Branch is creating a register of practitioners preparedto volunteer their time presenting CPD to their colleagues.

We all recognise that CPD comes with a cost both in time and moneyso we are creating a register of practitioners and educators who wouldbe available to present CPD if requested at no or low cost to theircolleagues.

We remind you that CPD presenters can get time in their own right.Time is claimable for preparation of CPD presentations (usually at aratio of two hours preparation for each hour of presentation) andtime spent delivering. A typical one hour presentation would allowthe presenter to claim three hours of CPD, ie, two hours forpreparation and one hour for the delivery.

Any practitioners prepared to go on the Branch register please contactthe Wellington Branch, email [email protected]

Please include your name, your area of expertise, your telephonenumber and your email address.

Register of Presenters for ContinuingProfessional Development (CPD)

Counsel in Concert

In a pre-Christmas gift to Wellington, ‘Counsel in Concert’performed twice last December at St Andrew’s on the Terrace.The entertaining programme this time featured music inspired byWilliam Shakespeare, marking 400 years since his death.

Counsel in Concert is based at Crown law and has beenperforming since 2009. The choir and orchestra are comprised oflawyers and other legal professionals from throughout theWellington region as well as law staff from Crown Law,augmented by members of the New Zealand SymphonyOrchestra and Orchestra Wellington. The performances raisefunds for the Child Cancer Foundation.

Waiting for Counsel in Concert: Justice Ellen France, Justice TerenceArnold, Justice Mark O’Regan, Justice John McGrath and Greg Kelly.

Chief Justice Dame Sian Elias greeting Jan Fulstow,former Assistant to the Solicitor-General.

Council Brief AdvertisingCouncil Brief Advertising

[email protected]

Date: Friday 24 February 2017

Tee-off: 12.15 pm followed by drinks in the bar, the historic 8th holeshootout (don’t forget your jacket), and dinner to be held at theMasterton Golf Club at approximately 6.45 pm.

Location: Masterton Golf Club, Manuka Street, Masterton.

Cost: $75 / meal included; $40 / meal not included.

Email: [email protected] or phone 06 370 6479 byTuesday 21 February 2017 to advise:

1. Name of Entrant

2. Meal: Yes / No

3. Stableford / Ambrose

Please inform anyone who may be interested

Put in your diary now!

The Last Resort Golf Tournament 2017The Annual ‘Last Resort’ golf tournament is being held again this year –on Friday 24 February 2017. The format of the competition is Stableford.There will also be an Ambrose competition for the more casual golfers(numbers permitting).

The round of golf will be followed by drinks, the famous 8th hole shootout(don’t forget your jacket), and a meal. If this year’s weather so far isanything to go by, we will be looking for any excuse to take some time toget out of the office and enjoy some sun and social activity.