What the Independent Review really says on Te Tiriti
Auckland District Law Society (ADLS) publishes what New Zealand Law Society will not
By Gary Judd KC, in ADLS’s LawNews 16 June 2023,
On 6 June, I sent the following email to the NZLS publications email addresses.
I attach my answer to “What the Independent Review says on Te Tiriti.” Although I am not named, I expect that I am amongst those within "Recently, there has been a bit of commentary …." There will certainly be people who will assume that the article is responding to material which I, amongst others, have written or spoken.
I am also representative of what the Independent Review Panel describes as a "vocal minority." A small part of my submission was published, under that description.
Therefore, I considered it appropriate to prepare an explanation of why the article is incorrect.
It is in the interests of fair and open discussion of a very important aspect of potentially monumental changes to the environment within which the profession operates, that Newsroom should publish the attached answer. Please confirm that it will be published.
There has been no response, but last Friday, LawNews published, as a letter to the editor, a letter from the President of the NZLS addressed to me, but not sent to me. Having read it, I decided it would be appropriate to submit for publication by LawNews what I asked NZLS to publish.
I would add that instead of critical issues being evaded by NZLS, it would be fitting that they be answered in substance and not ignored. They incude:
Does the NZLS disagree that we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the Treaty promised, and the rule of law requires? If so, what are its grounds for disagreeing? If it does not disagree, why is it appearing to support the recommendations instead of rejecting them out of hand?
Will the interests of NZLS members be served by turning over regulation of lawyers to a regulator whose board members will be appointed by the government which is charged with giving effect to the principles of the Treaty when exercising its powers and performing its functions and duties? If so, how will it serve their interests?
The article submitted to NZLS follows.
This is my answer to claims in the piece in Newsroom of 1 June, “What the Independent Review says on Te Tiriti.” No author has been named, and Newsroom is a New Zealand Law Society publication, so it appears to be an official response to public commentary from various people, including me.
The article argues that the Independent Review does not propose changes which would impose obligations on individual practitioners:
There has been some commentary suggesting that the obligations would apply to individual practitioners. This is not the position. The Independent Review Panel considered whether a lawyer’s responsibilities to Māori, te reo and tikanga warranted specific reference as separate regulatory objectives. The majority of the Panel viewed the proposed reference to professional competence as encompassing being up to date with relevant law, including tikanga; and the reference to cultural competence as sufficient to cover a lawyer’s responsibilities to Māori clients, including the use of te reo when appropriate. The majority of the Panel did not support including a reference to New Zealand’s constitution and Te Tiriti as part of a lawyer’s fundamental obligations.
This is subtly deceptive argumentation as the recommendations achieve the same result indirectly.
The Panel recommends in 3a that the new statutory regulator be required when exercising powers and performing functions and duties “to give effect” to the principles of the Treaty. How can the new regulator not impose Treaty principles on lawyers if the regulator is required to give effect to Treaty principles when exercising its functions and performing its duties (which, of course, include regulating and providing for the disciplining of lawyers, as primaries)? If it did not, it would be in breach of its statutory obligations. Its ability to impose Treaty principles will be enhanced by the new fundamental obligations recommended in 3c.
If the regulator must give effect to Treaty principles, it may need to take steps to see that lawyers who are not supporting those principles are disciplined. Even the mere possibility of such interference is obnoxious for it would impinge on lawyers’ human rights and fundamental freedoms as individual members of the New Zealand community. See Bill of Rights ss 13 and 14: “Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.” “Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.”
For instance, if the regulator says that in complying with its statutory obligation to give effect to the principles of the Treaty, it has determined that it is a principle of the Treaty that Māori are entitled to special treatment under the law with respect to representation on Local Government (as seems to be the implicit claim of the legislators and local body councillors who have promoted these undemocratic practices) and, for example, I (as a “vocal minority”) trenchantly denounce this on the basis that it is contrary to the rule of law’s requirement for equality under the law (or on some other basis), I must run the risk that someone will make a complaint alleging that what I have done is conduct unbecoming, or worse? And the further risk that a disciplinary Tribunal of some sort will decide that I am guilty?
No doubt, the possibility will be more or less pronounced depending on the detail of the legislation establishing the new regulator, but in this age where it seems more and more acceptable to force people to conform, the possibility is by no means fanciful. Not only is it not fanciful, but the Review Panel is providing a foundation for it.
The Report states (94-95):
We envisage the regulator (and other entities created by the new statute) being created and designed in cooperation with Māori. Working co-operatively with Māori, the entities will need to develop, for example, new governance, management and human resource policy and practices that give effect to the principles of Te Tiriti. These policies and practices should reflect New Zealand’s bicultural foundations, the recognition of te reo Māori as an official language (which parties and counsel are entitled to use in legal proceedings) and tikanga Māori. We envisage changes in regulatory practice and decision-making, including the regulator partnering with Māori, for example Te Hunga Rōia Māori, in the delivery of key functions, promoting the use of te reo Māori in its operations and reporting, and reflecting tikanga in areas such as admission (eg, making marae-based admission ceremonies commonplace for those who want them) and in the exercise of other regulatory functions (eg, complaints handling, for parties who prefer a tikanga approach).
The situation is exacerbated because we do not know what the Treaty principles are. The Report does not identify them. When, in a recent interview, the chairman of the Independent Review was asked to explain what they were, he was unable to do so. So, the Panel envisages the development of policies and practices giving effect to principles the Report does not define and the chairman cannot explain!
These recommendations were also made in defiance of the views of the lawyers who responded (Report, 93-94). Only “35 per cent of survey respondents supported the incorporation of Te Tiriti in the regulatory framework.” “44 per cent of survey respondents opposed the incorporation of Te Tiriti in the Act. Their views spanned a broad spectrum, with the following submission summarising the position of a small but vocal minority….”
I recognised only recently that when the Report refers to “the following submission summarising the position of a small but vocal minority,” what was quoted was an incomplete extract from two paragraphs of my own submission.
Those two paragraphs were part of this section of my submission:
Ethnic or racial separatism
39. The discussion document states that “The Act makes no mention of Te Tiriti or Māori and there is no requirement for the NZLS to promote or have regard to the interests of Māori.”
40. Why should the Society promote or have regard to the interests of Māori differently to the interests of any other person, and consider seeking to have imposed on it and/or on lawyers a legal obligation to do so? This suggests a desire to promote or have regard to the interests of Māori, as a separate racial or ethnic group, by giving Māori separate and different treatment under the law in new legislation. This may be a fashionable approach in some circles, but the Law Society should act on principle. It, like the lawyers who are its members are required by law to do, should seek to uphold the rule of law principle of equality under the law.
41. The New Zealand Law Society should do nothing to suggest it is advocating or condoning ethnic or racial separatism. Nor, indeed, should it promote cultural separatism. As conveyed by Dame Anne's message [earlier in my submission I had quoted from an analysis by Dame Anne Salmond], we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the Treaty promised. Does anyone really want to disagree with that?
42. The Society should be doing everything it can to promote equality of individuals in the eyes of the law. One way of doing that would be to point out that the Treaty upholds the rights of individuals and recognises that all are equal in the eyes of the law.
43. The Society should not promote the inclusion of upholding the Treaty in the purpose statement in the Act (s 3). That would just open the way for people to use the new legislation to advocate different treatment based on ancestry (i.e., race). It would extend separatism, or the potential for separatism, to the way the profession is regulated and represented, and the way lawyers deal with individual members of society.
44. The Society should take the exactly opposite tack. It should advocate for equality under the law and should resist any attempt by the government to require the profession to engage in separatism.
[The Panel quoted from paragraphs 43 and 44 omitting the words I have now italicized.]
The Panel did not face up to the points I made about the promotion of separatism.
In paragraph 41, I said: “we should seek a future based on reciprocity and mutual respect, as individuals entitled to be treated as equals in the eyes of the law, which is what the Treaty promised. Does anyone really want to disagree with that?” I would add, as my submission makes clear, it is also what is required by the rule of law. The rule of law is part of New Zealand’s constitution (see Senior Courts Act 2016, s 3(2)). The rule of law came to New Zealand through the Treaty and its principles of equality are reinforced by Article 3.
The question which I posed, drawing on Dame Anne’s eloquent words, is one which any responsible and self-respecting organisation charged with representing its lawyer members and serving their interests would surely ask, especially as those members have a fundamental obligation to uphold the rule of law ((2006 Act, ss 66 and 3). The Panel to whom the question was posed did not attempt to answer it; it ignored it. To my mind, this is a critical failure which completely undermines the credibility of the whole Report.
The passage I quoted from the Newsroom piece suggests a misapprehension: “The Independent Review Panel considered whether a lawyer’s responsibilities to Māori, te reo and tikanga warranted specific reference as separate regulatory objectives.”
Neither the Panel nor the Law Society can find justification for its position in the assumed lawyers’ responsibilities because lawyers do not have them. As Christopher Finlayson KC has pointed out, neither individual lawyers nor the Society has any obligations under the Treaty. The parties to the Treaty were the Crown and the Māori Chiefs. By contrast, lawyers do have a responsibility to the rule of law because they have a fundamental obligation to uphold it. The rule of law sees each person as an individual human being inherently equal in worth and under the law.
There is in the Terms of Reference and the Panel’s approach a strange obsession to force lawyers to approach their practice in a race-based way. Is it not possible to understand that each client is an individual irrespective of their race or ethnicity, and we owe the same obligations of fidelity and care to each of them?
The practice of law is or should be colourblind, but that does not rule out competition. Some lawyers who have particular skills, such as language abilities, may be better placed to offer services to some clients than others. Potential clients can choose a lawyer who has such a skill if the client considers it to be important.
Those are the main points I make in response to the Newsroom article. However, I note reference in the article to the “survey recently conducted by the Law Society.” This, presumably, is the one which closed on 31 May. I did not respond to the survey. In a letter to the Society’s Auckland branch president who sent the survey out to members which included me, I said:
I have fundamental objections to the recommendations, which cannot be conveyed by responses to the survey questions. For example, “5. Recommendation 1: Establish a new independent regulator to regulate lawyers in Aotearoa New Zealand,” and “6. Recommendation 2a: Ensure the independence and effectiveness of the new regulator by institutional arrangements that include establishing an independent statutory body, which is not a Crown Entity and not subject to direction from Ministers.” My answer to 5 would be "do not accept". Yet, question 6 requires an answer presupposing at least some level of acceptance of Question 5, as do all the other questions hanging off question 5.
There are similar problems with the other sets of questions. Overall, the questionnaire and its explanatory comments seem designed to elicit the responses desired by the proponents of the recommendations.
A properly professional survey would likely have produced greater disagreement – certainly had I been able to express my views in answers to the survey, unconstrained by its terms, there would have been at least one more respondent to add to the 41% who did not accept the recommendation. I see that, even so, a majority disagreed.
Finally, a separate point not directly raised by the Newsroom article is the recommendation to establish a new independent regulator, itself.
It is truly bizarre that the Independent Review should recommend, and the Society should be considering advocacy for, legislation to extinguish the Society’s regulatory function (2006 Act, s 65) with that function to be taken over by an entity whose board will be appointed by the government.
Most organisations would be fighting tooth and nail to retain for themselves the ability to regulate their members, and to avoid their members getting into the clutches of the government. As I have noted, the Society’s representative function is “to represent its members and to serve their interests” (s 66). Neither members’ interests nor the public interest is served by proposals which threaten lawyers’ independence from the government. That must surely be self-evident.