The three pillars which underpin our way of life are: Democracy, the Market Economy and The Common Law. These pillars are being eroded by the present government. Most of us notice the attacks on our democratic institutions with the push for a tribally based society and the backlash which has forced a Prime Minister from power and replaced her with a trick cyclist who is displaying impressive skills of back peddling. The economy is in a parlous state fuelled by massive handouts of taxpayer money to pet Government projects which further their larger objectives while holding a looming threat over our rural industry – that which is all that is keeping our chins (just) above water. Attacks on the third pillar, the Common Law, go largely unnoticed by the general public, and why not? Like the air we breathe, it has always been there when we needed it and we assume it will remain so. Put simply it is a body of rules which govern our lives, laid down by parliament and the Courts supervised by an impartial judiciary appointed by the Sovereign and owing nothing to the government of the day. Those rules must be and are certain, readily understandable, and knowable in advance. They apply equally to all without (as the judicial oath says) fear or favour, affection or ill will. The Common law we enjoy in New Zealand is to be found in most of the world’s advanced, prosperous democratic states. We inherited ours from the British as part of the institutions exported around the world in that extraordinary explosion of peoples which came to be known as the British Empire. It has stood the test for hundreds of years in societies which could not have been dreamed of when it first came into existence. It is a priceless gift which the shrewd Maori Chiefs who entered into their compact with Queen Victoria in 1840 realised would provide a bulwark against the long standing murderous tribal warfare to which they were prone and enhanced by the advent of muskets and improved means of travel afforded by the British ships which came to trade. The indisputable proof of the value which Maori people have placed on the Common Law over the ensuing years since they accepted the British Monarch as their Sovereign is the enthusiasm with which they have embraced the Courts in settling disputes and securing what is their due. The Law Reports are replete with cases involving the settlement of their tribal and more general claims of right.
The Legal Profession
Lawyers are said to be the second oldest profession known to history. Over the centuries they have been crucial in servicing the legal requirements of the public. Broadly speaking they divide into two quite separate parts, those involved in conducting litigation, Barristers, and those who look after the interface between the law and a client’s private property rights, solicitors. Because all human activity is fallible it is necessary, in order to protect the rights of the client, that there be strict rules concerning the way in which a lawyer conducts the client’s business. Generally speaking, Barristers need less regulation by statute because they owe strict and rigorously enforced duties to the Court. Any departure from those standards can terminate a barrister’s career. Solicitors on the other hand are more intimately concerned with furthering a client’s business affairs, buying, and selling property, forming trusts, writing wills and interfacing with local authorities and the like. There is always the potential that malpractice by a solicitor may result in financial losses to a client. For this reason, it has become necessary for the Government to intervene and prescribe a binding code of conduct (the latest was the Act of 2006). In addition, all solicitors are required to contribute to a compulsory fidelity fund which is available to compensate clients who suffer loss resulting from a solicitor’s negligence or misfeasance. This has worked well for many years and is amended as necessary to meet changing business conditions – for example, strict new rules concerning money laundering and the like.
The Report
All this has worked well until for some reason on the 1st March 2022 the New Zealand Law Society or as they now call themselves Te Kahui Ture o Aotearoa it seems commissioned a report by an “independent” panel into “Legal and Structural Change in the Law Society”. I say “it seems” because in the outcome one can detect the hand of the Cabinet Office prescriptions for “Treaty of Waitangi Guidance” published on 22 October 2019. Among other worthy objects this document is intended for “All officials involved in Policy Development.” The “Independent Review Panel” so formed released its recommendations on the 9th March 2023. The report deals with the current poster children of the elites: Gender Equality, incorporation of the Treaty of Waitangi into the “regulatory objectives” of the Society, and encouraging diversity and inclusion in the profession. Significantly it recommends that the oversight of lawyers be given to an independent regulator who answers to the Government of the day. To this end three Commissioners were appointed. They are: Professor Ron Paterson ONZM whose area or expertise is in health and disability services and “medical law”; Professor Jacinta Ruru Australian born of some Maori ancestry and is lecturing at Otago Law School; and Jane Meares who has an extensive background in commercial legal work at a high level and could be presumed to understand how the legal profession works. Neither of the other two appear to have practised as barristers or solicitors and must therefore take their understanding of the profession from others. The report builds on an earlier report of the Law Society dealing with ‘sexual harassment of young female law clerks and summer clerks’. Quite why this should be the springboard for such a far-reaching enquiry into all aspects of the practice of barristers and solicitors is not clear. These nasty incidents were dealt with promptly and the offending males are no longer in a position to sexually harass female law clerks. The society dealt with these unsavoury incidents at tedious length in its Working Group report running to 130 pages and it is difficult to see why any further investigation was required but apparently it was and the further report of the panel described above and comprising 192 pages was tabled in the House in March 2023. It has a Maori name which apparently in English translates as “Regulating Lawyers in Aotearoa New Zealand’.
It is not made clear what can possibly be the role of a compact entered into in 1840 between the Crown and some Maori chiefs in managing the contribution of lawyers in 2023. The report is commissioned to enquire “how is the culture and structure of the legal profession a contributing factor to discrimination in all its forms within the profession.”
Much of the report, deals at tedious length, with the case for an independent regulator and an independent complaints system and is probably of little interest to the general public. But at page 95 of the 192 page report the commissioners record that their terms of reference require them to:
Consider changes needed to promote a commitment to honouring Te Tiriti o Waitangi and the bi cultural foundations of New Zealand including Te Ao Maori concepts….the Act makes no mention of the Treaty or Maori. We believe it is time for this to change.
The reason given for this belief is that “it would guide how the regulator engages with the public.” Interestingly this approach was rejected by 44% of those surveyed on the grounds that it would cause separatism and uncertainty within the profession and the public and dilute the lawyers’ obligation to uphold the Rule of Law. Support for the proposal came largely from women’s groups and unsurprisingly, Maori Law practitioners. The commissioners had no hesitation in rejecting the view of the majority of practising lawyers and recommended that a clause be included in the proposed legislation that:
All persons exercising powers and performing functions and duties under this Act must give effect to the principles of the Te Tiriti o Waitangi.
The Commissioners conclude that introducing such a Treaty clause will:
Result in the Regulator partnering with Maori………..in the delivery of key functions promoting the use of te reo maori in its operations and reporting, and reflect Tikanga in areas such as admission (e.g. making Marae based ceremonies commonplace for those who want them) and complaints handling for those parties who prefer a Tikanga approach.
To the enduring credit of the majority of the panel (Professor Paterson and Jane Meares) they then grappled with the question of where there is a conflict between the Treaty claims and the common law which prevails? They concluded in a somewhat oblique way:
The majority of the panel does not support reference to New Zealand’s constitution and Te Tiriti as part of a lawyer’s fundamental obligation to uphold the Rule of Law… in our view adding an explicit reference to New Zealand’s constitution and Te Tiriti as part of upholding the Rule of Law – risks unintended consequences.
The force of this concession was somewhat muted by the observation that the 44% who argued for the maintenance of the Rule of Law held views which are “conservative or antiquated” with a rider that as Treaty jurisprudence evolves then views about the crucial importance of the Rule of Law may change.
Presumably the other member of the panel, a professor of law charged with the responsibility of ensuring that her students have a firm understanding of the importance of the Rule of Law was unconcerned about those risks and the damage that may be caused to the Common Law and our Constitutional arrangements. Her minority view includes a requirement that the disciplining of lawyers should include promoting the use of the Maori and Pacific languages, and New Zealand sign language, working with Maoris to promote Tikanga because it was New Zealand’s first law. In addition lawyers should promote “climate change consciousness in the practice of law.” Further she wants the Treaty elevated to a part of our constitution and it made an offence for any lawyer to advise a client that the Treaty is a nullity (as has been held by Chief Justice Prendergast in the Supreme Court in the 1870s). Interestingly in a footnote to the cabinet office prescription for the elevating of the Treaty to a place in all legislation it defines Tikanga as including a number of social Maori customs existing in 1840 but nowhere does it mention “law”.
Comment
The question then is where is all this leading and what is it that provoked nearly four hundred pages of reports. It cannot just be the unsavoury behaviour of some male lawyers towards some young female lawyers at office parties. There must be another agenda. Could it be a parting legacy from our dear departed leader to use whatever is available to impose state control over a hitherto independent profession and to further the cause of the Maorification of our country. If the report is accepted by the government, and this one certainly will, The New Zealand Law Society and presumably its Maori offshoot will have an external regulator, bound by the “principles of the Treaty of Waitangi” and required to implement pre European Maori customs which varied from tribe to tribe and for which there is no exact definition. This is sought to be imposed on a society of lawyers which has regulated its own affairs since its inception in the 1860s and who have the unique obligation of observing and giving effect to the Common Law which is at the heart of the Rule of Law.
The report glosses over the problems inherent in these Maorification and “diversity” proposals. To take a few instances: A young Maori lawyer working in a legal firm complains to the Regulator that he or she has been overlooked for promotion (this is given as a specific reason by the Commissioners for implanting the Treaty in the proposed legislation) and invokes the “partnership” provisions of The Treaty asserting either they were passed over because of race or that the law firm must have an equal number of Maori and non Maori partners irrespective of experience or ability. Or to take another example, if a Maori candidate stands for office unsuccessfully on either a District Law Society or the National body do they have a legitimate complaint to the Regulator that their failure is either the result of racial prejudice or they are needed on the body to fulfil the partnership requirements of the “Treaty”. Or in furthering the proposed requirement of gender neutrality and “diversity” a transvestite unsuccessfully seeks a partnership in a firm or stands for office or is not made a KC and complains that their failure is the result of discrimination and contrary to the diversity “principle to” be enshrined in the proposed legislation. Should the Regulator be attracted to these sorts of argument, and they will be hard to refute, then that spells the end of a free and independent law profession, degrades the standard of legal service available, and more importantly impacts on the profession’s ability to uphold the Rule of Law. If you, dear reader, consider these to be improbable outcomes, reflect on the fate of the child to be taken from stable and loving foster parents and sent back to the conditions from which she was removed for her own protection solely in order to satisfy the recently enacted provision making it necessary for Child Welfare officers to have regard to the “principles of the Treaty of Waitangi”.
The Commission’s proposals do not exist in isolation. Indeed they forecast that such “maorification” and diversity provisions will become common in other professions. They have every reason to make that prediction. Engineers for example exist to ensure that built structures, or machines, or electrical devices and systems are safe, state of the art and reliable, and will do what they are designed to do. The sole function of an architect is to design buildings and related structures to the instructions of the client and in compliance with building codes. Both of these professions are private enterprises that owe nothing to the State other than to comply with the necessary safety requirements and certainly do not owe anything to a pre-European stone age culture. Yet the virus has already entered their hitherto collegiate activities. Their institute’s publications are now heavily comprised of lengthy passages in maori which virtually none of the members is capable of understanding or wishes to do so. The Commission’s expectations that these hitherto private enterprise bodies will in future become subject to the “Treaty” fabrications is no idle threat. This is entryism (destroying an institution from the inside) of the worst sort dressed up as it is in high sounding, but empty phrases masquerading as “principles.” It is designed to hollow out control of the lawyers’ professional affairs and substitute state interference and control. It is in many ways the parting, He Puapua shot of our late unlamented leader.