O'Rourke Denis: Lawyers and Conveyancers Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Lawyers and Conveyancers Amendment Bill — In Committee 
[Sitting date: 13 November 2012. Volume:685;Page:6510. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 I think this bill should be retitled the “Lawyers and Conveyancers (Elitist Purposes) Bill” because— 
Tim Macindoe 
: We’re not on the title Denis. 
DENIS O’ROURKE 
: We are not on the title? But nevertheless that should be what its title is because that is what it is. It takes us back to when Queen’s Counsel were appointed by a mysterious non-transparent process with all the suspicion of inappropriate influences and political influence that that involves. New Zealand First therefore opposes this legislation. It is not good for the legal profession in practice or for its reputation. It is not good for the community or its understanding of the profession. It is about the National Party’s philosophy and ideology where it appears that elitism and cronyism are celebrated. 
What it is about most is going back to the past instead of moving to the future. New Zealand will be moving backwards with this legislation when all comparable jurisdictions have moved on with a more modern and relevant approach to the issue of acknowledging senior practitioners and I refer especially to Canada and the Australian states or most of them. In fact I question whether it is actually really even necessary to award either Queen’s Counsel or Senior Counsel titles in this country because in these days it is generally accepted that markets should be free of discriminatory and anti-competitive rules imposed by Governments. National I would think usually supports that sort of approach so why the aberration in this case? National has simply got it wrong and it has got it wrong for all the wrong reasons. It is wedded to the past and it is not future-oriented. 
However if we are to persist with the ranking of legal practitioners in this way rather than to rely on reputation and the market then it is important to define those members of the profession who have achieved a level of experience and competence in an area of expertise that should be officially acknowledged on a fair and transparent basis. The current legislation goes a long way to achieve this and should not be repealed. Therefore to assist in the operation of the legal system the current legislation should be maintained and this bill should not be passed. The acknowledgment of highly regarded and experienced practitioners with special expertise should not be about status or reward or cronyism in the way that it has too often been in the past and it should not be seen in the same way as the award of knighthoods and honours are generally seen. New Zealand is no longer—since 1947—a British colony with all of its traditions and peculiarities. It should not simply allow commercial advantage by one practitioner over another as this bill would do. Our system must be fit for our needs and be relevant useful and fair in the selection process and it must be transparent. 
The bill as presented does not appear to be designed to achieve any of those things. It appears to be designed to perpetuate elitism as distinct from “meritism” by which I mean the recognition of a status well earned instead of one simply awarded in the manner of some sort of an honour or worse still some sort of a favour. Under Part 1 the term Queen’s Counsel returns again to replace Senior Counsel and I think that is unwise. Contrary to what Mr Macindoe said I think the public can more readily understand the term Senior Counsel but usually do not understand the term Queen’s Counsel. I think that “understandability” for the public is an important issue and it relates to the reputation of the profession. People tend to think that the term Queen’s Counsel still means a senior barrister who has the function of supporting the Attorney-General as it once was. That is far from the situation these days. The term Senior Counsel is more descriptive and does not have the connotations of some overhang from the old English legal system and our colonial past. 
New Zealand not only needs a thoroughly modern legal system it needs to be seen as such. None of this is assisted by the term Queen’s Counsel and Senior Counsel is clearly better; nor does the assertion that somehow the reversion to Queen’s Counsel will enhance the independence of the profession. If independence means independence from the Crown—in New Zealand meaning effectively independence from the Government—then this bill is more likely to do the opposite by restoring the old system under which the scope for political and other influences is actually worse. Concerning eligibility it is not clear to me why only barristers sole are favoured to be eligible. Others should not be excluded if they practise in law firms whether incorporated or not as is allowed in comparable jurisdictions and others should not be excluded if they are barristers and solicitors. The position relating to that is so different from what it is in the UK that that comparison does not bear scrutiny. 
The strangest section is new section 118A(2) in clause 6 which appears to override the other sections and reinstate a general royal prerogative. That seems to me to have no substantive reason for such a leap backwards. Why should there be a need in this day and age for such a general provision? The royal prerogative in New Zealand really means Government prerogative and that is not appropriate. It brings in all the old problems of unfairness discrimination anti-competitive behaviour and the scope for cronyism and bad process that will be entrenched by this bill. It is therefore thoroughly objectionable and will actually need to be repealed if it is now passed. The need for transparency has also not been achieved in this bill and that is what modern best practice requires. We ask these days in all other professions for people to have transparent processes. Why then would we reinstate the exact opposite with regard to Senior Counsel in this country? 
New Zealand First therefore objects to the entire concept of this retrograde bill. It is misconceived and is a step back to the bad old ways. It is a barrier to the development of a modern legal system. It is devoid of proper processes. It is unnecessarily restrictive. It is based on discrimination for no good reason. The object should be to define senior practitioners in specialist areas so that the public and other members of the profession are assisted in knowing to whom they may best go for specialist services. If that is not the objective then there is no reason at all for either Queen’s Counsel or Senior Counsel for that matter. 
Anyway however you look at this bill it is a thoroughly bad bill. It will create bad law and should not be passed. Indeed if it is passed then it will be incumbent upon some future Government to return back in the future and repeal it.