Lawyers and Conveyancers Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Lawyers and Conveyancers Amendment Bill — In Committee 
[Sitting date: 13 November 2012. Volume:685;Page:6504. Text is incorporated into the Bound Volume.] 
Lawyers and Conveyancers Amendment Bill 
In Committee 
Part 1 Amendments relating to Queen’s Counsel 
CHARLES CHAUVEL (Labour) 
: 
 Part 1 of the Lawyers and Conveyancers Amendment Bill contains particular clauses that the Opposition takes objection to. Part 1 is the part of the legislation that will restore the archaic title of Queen’s Counsel. But actually worse than that it will do two other things that we particularly object to. I can see that there are members on the other side with whom I have discussed this matter and I hope that they will make a contribution in this debate and that we will hear from the Minister in the chair the Hon Amy Adams as well. 
The view has been put to me including by members opposite that going back to the title of Queen’s Counsel is something that honours our traditions that the move to sever the title and to replace it with the title Senior Counsel was something that was done by the previous Labour Government without a mandate that it disrespected those traditions and that therefore we should be supporting this move. What I want to say is that I am unconvinced but I do understand the point. 
Here are our objections to going back to the old title. First of all it is archaic. Secondly we are in the middle of a constitutional review—the Maori Party concluded an agreement with the National Party some time ago; I think it was after the 2008 election—and that review is to look at our constitution and questions like whether or not we should have Queen’s Counsel or Senior Counsel what the place of the Treaty should be in our constitutional arrangements whether we should eventually become a republic what the status of the New Zealand Bill of Rights Act ought to be—all these matters. 
I can see that Dr Sharples is in the Chamber. I hope he is going to take a call during the debate on this legislation. I have put the question to him and to his staff as well as to Peter Dunne the self-professed republican over there who chaired the last constitutional review that we had in this country. Mr Dunne came up with all sorts of brave recommendations and told his electorate of Ohariu that he was a confirmed republican and wanted to see New Zealand take the inevitable step toward becoming a republic and severing our ties with the Crown. Perhaps today he is off to a dinner party or some other sort of social event with the Prince of Wales because it seems to me there is no consistency of principle amongst those people. 
Dr Sharples you cannot support this legislation and be acting in good faith about participating in a constitutional review. This legislation is pre-emptive of that exercise. Mr Dunne you cannot tell people that you are a republican on the one hand and support this legislation restoring a royal title a rank conferred by royalty to lawyers in New Zealand on the other. As was famously said by the Prime Minister in the House a week or two ago there is a word for that sort of positioning and it starts with “h” and it is hypocrisy. 
Let us just assume that the National Party and its allies have the numbers to go back to the title Queen’s Counsel. That is democracy and if that is the case members on this side will accept that. What I am keen to do is have the argument across the Chamber about the other matters that are dealt with in Part 1 because let us face it titles matter. What we call things matters in the end because symbolism matters but actually it is the reality of practice that matters even more. 
That is why I have put an amendment on the Table today that would make a couple of changes to this legislation. These changes would leave the title Queen’s Counsel in place. They would not disturb Chris Finlayson’s ardent desire and his electoral promise of 2008 to the legal profession to restore the title Queen’s Counsel. I know that he has probably applied already to Judith Collins as the Minister of Justice for his own application for the title of Queen’s Counsel to be processed before he leaves Parliament at the next election so that he can go out and practise with that title which he was denied when he applied for it in the ordinary course when he was a barrister on the basis that he had juniored in too many cases rather than having been senior counsel which is the required experience for this sort of title to be conferred. 
Here is what my amendment does. It says first of all that this legislation is wrong to say that it will restrict the award of the title Queen’s Counsel to barristers in practice. Just a little history lesson here: what the original legislation did was it expanded out the way in which this title could be awarded. It replaced the title Queen’s Counsel with Senior Counsel and it said that instead of this archaic old rule that only barristers sole who are a tiny fraction of our legal profession could be awarded the title Queen’s Counsel or Senior Counsel basically everybody practising in the profession would be entitled to the rank if they merited it. 
This bill will go back to restricting the title to just barristers although it has weaselly words in section 119C in clause 6 that say never mind all that. The royal prerogative is saved. So a lawyer who is a particular favourite of the Government and is not actually a barrister practising at the Bar can still get the title. So it is a kind of “We Want to Have the Best of Both Worlds Bill”. What I have done is actually try to get the bill to recognise that reality by in my amendment omitting paragraph (b) of clause 4 to recognise the reality that this bill does not really restrict the status to barristers at all despite Mr Finlayson’s promises to the Law Society. But the real nub of my amendment relates to the changes in section 119C in clause 6. 
The best thing that Labour did apart from abolishing the archaic title of QC and opening up the status to all lawyers of merit practising whether they be in firms at the Bar in local government in government practice or what have you was having an open appointments procedure. One of the problems that we have in the law in New Zealand is that people who are not lawyers feel locked out. They do not understand how lawyers come to be appointed judges or how they come to exercise the many privileges that they do in practice and often it is quite difficult to progress a complaint against a practising lawyer because of all the procedures and the rules that need to be followed. It is very difficult to understand how somebody becomes a judge. It is very difficult to lodge a complaint against a judge. 
I see my friend Jackie Blue over there who has taken a great interest in the judicial complaints procedure and rightly so because that was another way of opening this whole thing up and demystifying it—something that I am very proud of the last Labour Government for doing even though it was opposed by the National Party at the time. 
So my amendment is another measure in that vein. What it says is that we will keep an open appointments procedure so that we can encourage women minorities and all the diversity that we are finally seeing coming through the legal profession and so that we can see openly whether or not those members of the profession are being blocked from getting this ultimate accolade that we award to lawyers in this country—the title QC which is now being restored by the National Government. 
The way I do it is this. I say that the Lawyers and Conveyancers Act (Lawyers: Senior Counsel and Queen’s Counsel) Regulations 2008 which are the procedural rules made under the Act to govern applications for being made either a QC or an SC and the rules that are made under regulation 5 of those regulations by the Solicitor-General will remain in force notwithstanding the passage of this amendment and obviously with necessary amendments until a further Act of Parliament varies those rules. So if we do get rid of the title SC and retain just QC or if Parliament does retain the restriction so that barristers will normally be the only people who are qualified to apply to be Queen’s Counsel then we will still have an open appointment process. 
I would really just ask members opposite to consider this amendment if they consider nothing else that I have said in this debate. What is wrong with openness? What is wrong with saying to the public look how you become a Queen’s Counsel should be a matter for openness in a free and democratic society. It should not be shrouded in secrecy. It should not be something that the Attorney-General and the Chief Justice get together about in some room somewhere and discuss without a bit of sunshine being shone on the process in the way that we shine it now pretty much everywhere else in our society except ironically on the doings of lawyers. So what I am saying is I would ask members to consider this amendment on its merits. There is no harm in doing this. 
TIM MACINDOE (National—Hamilton West) 
: 
 I am happy to follow Mr Chauvel in the debate in the Committee stage on this bill the Lawyers and Conveyancers Amendment Bill. I have listened carefully to his view on the matters that Labour has consistently argued are in its view the most objectionable. 
I just want to make the point that in fact although that is the Labour Party position it is very much out of touch with both the judiciary and the legal profession and I would suggest the public at large. It is worth remembering that Labour abolished New Zealanders’ right of appeal to the Privy Council it abolished the awarding of traditional royal honours such as knighthoods and it abolished the practice of appointing a small number of barristers each year to the rank of Queen’s Counsel. In doing so it described such initiatives and practices as anachronistic and Mr Chauvel has just used the word “archaic” again. And reading from Labour’s minority report they represent “the bland comforts of the past”. As I say we have heard more on that theme in the last few moments from Mr Chauvel. 
But it is worth noting that the previous Government made each of those changes without a mandate from New Zealanders. One has to wonder why if the previous Government was so convinced that these institutions had lost their relevance and appeal in contemporary New Zealand society it was not prepared to test that view by consulting the people. The restoration of the rank of knighthoods and dames by the current Government has certainly been well received and there is pretty clear evidence from the legal profession that the restoration of the title Queen’s Counsel is desirable given that Labour’s creation of the title Senior Counsel in 2008 has devalued the role found little public support or even understanding and fails to reflect the nature and status of a role that is hugely important within the legal profession. 
This change in this part of the bill is about much more than the restoration of a title and status—important as those outcomes are to those who value our inherited traditions from Westminster as much as those other aspects of our blended culture that make New Zealand special and unique. The changes outlined in Part 1 of this bill are designed to protect the essential independence of the Inner Bar. I think that is a matter that Mr Chauvel was not really dealing with. As has been noted Mr Chauvel by the Minister and other Government speakers at earlier stages in this debate the looser rules for eligibility as Senior Counsel which were introduced by that previous Government threaten to dilute the independence of our most senior advocates. 
Queen’s Counsel should be able to advise and represent both law firms and clients who engage them fearlessly and independently without the potential conflicts and pressures of working in a partnership or an incorporated firm. That is why Part 1 of the bill provides that eligibility to be appointed as Queen’s Counsel will be restricted in most cases to barristers sole rather than lawyers in partnerships or firms but the bill does preserve the royal prerogative—and Mr Chauvel was quite disparaging about this—to appoint lawyers other than barristers sole as Queen’s Counsel where that recognises exceptional legal practice. That of course is consistent with a very long-established practice highly recognised and respected within the profession and within the public as a whole and I would suggest to Mr Chauvel something that many many decades of tradition and practice bear out as being of value. The Opposition may think otherwise but this would be the case as reflected widely within the profession. 
So we are restoring something that is about much more than just titles about much more than just history; it is about gravitas and the ability within the profession to strike a correct balance. So with those comments I am very happy to support Part 1 and I look forward to seeing this come to pass. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 Mr Chairman thank you very much. I presume your emphasis on the word “Honourable” in calling me talks about the fact that we keep certain titles for ourselves in this Parliament beyond our holding the particular rank that might be attributed to them. 
I think the comments that we have heard from the Government member who has just resumed his seat Tim Macindoe really do sum up the difference between National and Labour very very clearly. Although the words that came out of his mouth talked about threatening to dilute independence I actually heard preserving exclusivity I heard preserving privilege and I heard preserving the capacity to charge whatever they like for the advice because of course that is the reality of the QC ranking when it is restricted simply to members of the Bar. 
I think the framing of this issue as one around independence actually does not stack up when one looks at the nature of the advice that somebody would be seeking. I thought the transfer from the concept of Queen’s Counsel and our tie with the past to the concept of Senior Counsel actually talked about the capacity for somebody to provide advice at a very senior level and that really does not depend on their being taken from purely the Bar. Why they would have to remove themselves from the legal firm where they are associated in order to become Queen’s Counsel I believe represents one of the problems of the past and does not actually bring forward all of the people whom one would want to have available to provide that very senior level of advice. The Senior Counsel concept did seem to me to resolve some of those problems. 
As my colleague Charles Chauvel has stated under the Lawyers and Conveyancers Amendment Bill only New Zealand the UK and a handful of tiny former colonies will retain the rank of Queen’s Counsel. When the member was running through the litany of changes that Labour had brought about in this area I was saying: “Well yes that is great. That is fantastic. We got rid of appeal to the Privy Council.” How many countries in the world have retained the right of appeal to the Privy Council? I think there is about three or four left in the world that have retained it beyond the UK. 
Andrew Little 
: Bahamas is one. 
Hon LIANNE DALZIEL 
: Bahamas might be one. But the point that I am making is that— 
Tim Macindoe 
: Major constitutional change. You didn’t go to the people. 
Hon LIANNE DALZIEL 
: It was a constitutional change. The point that I am making is that these were positive changes and a break with the past and I think the sooner that we do actually talk about the serious issues in relation to whether this country should become a republic the better. I think a lot of people are starting to ask that question. Why are we not going out to the public with a positive position in order to engage the public in this most fundamental of reforms? 
I believe that going back to Queen’s Counsel now creates a worse problem than existed before it was changed because it means that there is going to be a to-ing and fro-ing. Every time there is a change of Government we are going to take it forward and if National becomes the Government it is going to take it back. I do not believe that that is actually in the interest of developing our own independent status as a nation. I believe that it is really important that we do try to see our way forward into the future. 
The thing that I was concerned about and that my colleague seems to have addressed in his amendment to add section 119C(3) is the question of the appointment process itself. The appointment process of course once it goes back to the way that it was before naturally shuts it down. I think the member Tim Macindoe himself said that it creates you know confusion in the public—that the public have no idea that they know what a QC is but they do not know what a Senior Counsel is. I think that is nonsense. I think the person on the street has no idea what a QC is compared with any lawyer either other than that a QC charges a humungous amount of money and you might as well have one on your side if you are being sued for defamation by somebody who has got one representing them on the other side. 
Hon Clayton Cosgrove 
: Judith! 
Hon LIANNE DALZIEL 
: Well I presume that certain Ministers do actually use QCs in order to support themselves whether they are defending themselves against a potential defamation or whether they are promoting the idea that some comments might be regarded as defamatory when I think they are the only people in the country who would think that. But that is by the by. There is a significant element of exclusivity and privilege I think associated with this whole question of Queen’s Counsel. 
There are a number of counsel at the moment who do not actually want to go back to the old way of doing this. They do not want to go back to the old definition of Queen’s Counsel or King’s Counsel as it will be I think some time in the future. 
Hon Clayton Cosgrove 
: In Gerry’s case KFC. 
Hon LIANNE DALZIEL 
: I do not think I will repeat that Mr Cosgrove but thank you for your amusing interjection. I think it will find itself now recorded in  
Hansard 
 without my having to repeat it. 
Hon Clayton Cosgrove 
: The clansman. 
Hon LIANNE DALZIEL 
: If you think of any more I am happy to call upon the— 
Hon Clayton Cosgrove 
: The big chief of the highland games. 
Hon LIANNE DALZIEL 
: I do not think we will talk about the clansman because that is probably a bit unfair. 
But leaving that aside the point I am making is that what the honourable member Charles Chauvel is attempting to do is to make sure that with the amendment that obviously the Government is going to push through—with our maintaining our opposition throughout—we do not wholly do away with the question of preserving the openness in the appointment process. I think that my colleague makes the point that whether the appointment is statutory or a prerogative process our requiring the existing open procedure required by regulations and guidelines to continue to be followed with necessary modifications really does state for the public that the process that was put in place by our Government will be the one that will still prevail. I believe that that is a small amendment that we can make to an otherwise unfortunate change that the National Government wants to put upon us. 
I do think there ought to be better debate around these sorts of issues as well because when one looks at where New Zealand stands in the world and whether these issues are going to be truly debated I do not think I heard anything from the Government side as to why we should restrict the appointment of Queen’s Counsel to the Bar. I think that if the Government truly believes that that is in the best interests of ensuring that our Queen’s Counsel are broadly representative of the legal profession as a whole—which of course has changed over the years since I was admitted to the Bar. I think it certainly has changed in terms of the greater number of women obviously who have been admitted to the Bar. But again when you look at different elements of the profession women are still underrepresented. When we look at barristers sole we find that it is a male-dominated element of the profession. 
By pushing back to Queen’s Counsel or reverting to Queen’s Counsel and moving away from the concept of seniority I think we do a great disservice to those who will be looking for the quality of representation that one would expect from Queen’s Counsel. I think it is a retrograde step and I do believe that we are in danger of seeing important constitutional issues becoming this political football—pro anti pro anti. When National is in Government it gets reverted back to the way it was; when we are in Government it gets promoted to the way it should be. I think we have got to really seriously think about whether the legal profession would want to see that continue to happen. I do not believe that it is in the interests of the quality of the work that we are all saying we are seeking to achieve to have this to and fro arrangement. 
I believe that our Government very firmly stood for making sure that we could stand alone as an independent nation. We did not have to have the final right of appeal to the Judicial Committee of the Privy Council comprising mostly British judges and sitting away on the other side of the world in London. We did not need to have the award of knighthoods and other honours of English origin and of course that annual practice of appointing a small number— 
JULIE ANNE GENTER (Green) 
: 
 I would like to rise to take just a very quick call on Part 1 of the Lawyers and Conveyancers Amendment Bill to go through some of its constituent parts and to restate the Green Party’s opposition to this bill. It is clause 4 that sets out the main purpose of Part 1 which is itself really the main purpose of this part of the bill. It tells us that the bill seeks to amend the Lawyers and Conveyancers Act to reinstate the title of Queen’s Counsel and to restrict eligibility to that title to barristers sole. I have to agree with the Hon Lianne Dalziel and Mr Charles Chauvel who spoke earlier on this. It is a very retrograde act. It is a move to reinstate an anachronistic title that seems to limit New Zealand’s independence and send us back half a century at least to the days when we were solely reliant on the British Crown for validation which is a bit embarrassing frankly. 
 Although one could imagine different practical considerations around the procedure for appointments as set out in the provisions of new section 118 in clause 6 we have not really heard a sound practical argument for the title of Queen’s Counsel itself to make a comeback and one really has to ask oneself is this the single biggest priority in the justice area that this Government should be dedicating time to? It seems that New Zealand is facing all sorts of challenges and yet what the Government comes up with is returning this anachronistic title—a throwback to the monarchy. It just seems a little bit irrelevant and frankly I think that the New Zealand public could expect a little bit better from this Government than simply dedicating time to a small group of privileged high-paid—an exclusive group of lawyers who for some reason are going to be given this title Queen’s Counsel which simply is not moving us forward in the direction of an independent New Zealand one that is not so focused on these ancient hierarchies. 
There is simply no call to amend sections 118 and 119 in the principal Act and although the Law Society submission pointed out that there was an original lack of clamour for the change in the first place it was a policy decision one that came from a proud assertion of New Zealand as independent and willing to embrace a future where we no longer rely on Britain for authentication. It was not a particularly radical policy in the first place but I think that it was important and symbolic. Similarly clause 6 in amending sections 118 and 119 to bring back the title of Queen’s Counsel is light on clamour but strong on symbolic policy. I accept that the Government members probably feel strongly about this but I doubt that the public of New Zealand really sees this as a priority and I think that it is a bit unfortunate that we are taking up time in the House for this legislative ping-pong game between the poles of independence and a return to the monarchy. 
I would also just add one other point which is that I appreciate the endeavour that Mr Chauvel has made to open up the process of appointment and make it less exclusive and more transparent and for that reason although the Green Party is not supporting the bill we will be supporting the amendment put forward by Mr Chauvel. I thank him for his contribution to this because I think it is a positive contribution in what is otherwise a pretty sad pathetic old sort of bill that is taking up our time. 
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. 
Dr JACKIE BLUE (National) 
: 
 I am pleased to speak to the Committee stage of the Lawyers and Conveyancers Amendment Bill. I was not part of the select committee that listened to the submissions the Justice and Electoral Committee. In fact I think there were about six submissions and the select committee listened to the debate—the pros and the cons. Essentially Part 1 restores the title of Queen’s Counsel. That seems to be one that has been welcomed by the profession. I took the time to go to the Bar Association’s submission. It summarises and quite clearly states that “The Bar Association supports the intentions of this bill because it restores the historical status of the rank of Queen’s Counsel in New Zealand.” The interesting thing is that the New Zealand Law Society made the comment that the changes were largely policy-based in that the revert back to Senior Counsel had been policy-based and ideological and not a response to any call for pressing change. That was very interesting I thought. 
I think it is important that the select committee did listen. It listened very carefully to the debate—the pros and the cons. Part 1 specifies in new sections 118 to 119C the reinstatement to Queen’s Counsel which certainly does provide a recognition of seniority of a certain standing of practice in this country. It also allows for independence of that practitioner. I think that new sections 118 to 119C specify quite clearly the position of a barrister sole the eligibility criteria and so forth. I think this is not a retrograde step. This is one that is going to restore the profession’s standing in the eyes of the public and that can only be a good thing. Thank you. 
ANDREW LITTLE (Labour) 
: 
 It is a great pleasure to take a call on the Lawyers and Conveyancers Amendment Bill. What is very clear is that for the sake of a robust democracy and for the sake of the rule of law in a democratic country like ours having a high-standard high-standing professional Bar is absolutely crucial. Having a body of advocates who can take cases whether in the criminal jurisdiction the civil or any other and represent people fearlessly and without favour before Her Majesty’s judges—and before anybody else if they so wish—is absolutely crucial to ensuring that people’s statutory and common law rights are observed and respected and that justice is able to be administered properly and fearlessly. So in that context and with the amount of law that we have—statute law and common law—having a legal profession that is well led and that has men and women of standing substance and intellectual capacity is very important. Having a means by which we recognise those who are excellent performers and top performers in the profession not only gives confidence to those who are dependent on their advocacy and their services but also is important—it is absolutely crucial—to the administration of good justice in the country. So this bill touches upon a very important aspect. 
I agree with my colleagues who have participated in the debate so far that most members of the public would not know what the distinguishing features or factors are between a QC and any other member of the legal profession. When people get into trouble or get into conflict or a dispute they want someone who will represent them. They are not particularly fussed about the letters after their name—except of course when the invoice arrives. Then of course it does become very important. 
I want to say that we have been very well served in this country not just by the legal profession at large but also by the senior advocates within it. We have tended to recognise those senior and outstanding advocates—those who engage in excellent advocacy in the court—by conferring on them this title which was once upon a time QC King’s Counsel before that and more recently SC Senior Counsel. 
In my experience I have come up against and I have dealt with many excellent holders of the QC title. I think of people like Kit Toogood who was outstanding in the employment field and who is now on the bench. I think of someone like Simon Lockhart to whom I juniored in my first ever jury trial who was most influential in education and people like George Barton QC who brought great intellect to the field. I think of women like Kristy McDonald and Denise Bates. More recently I think of Harry Waalkens who cross-examined me at length on behalf of Air New Zealand once. Two days later we settled the case on terms favourable to the union. I think of David Goddard and I must say more recently an outstanding QC in my view Nigel Hampton who represented the Amalgamated Engineering Printing and Manufacturing Union and the miners in the Royal Commission on the Pike River Coal Mine Tragedy and who is now representing one of the victims of the Christchurch earthquake and the collapse of the CTV Building. He is a most compassionate humanitarian in his advocacy and in his work and in his community work too. And then of course there is Paul East who is a friend to all of us. But one of the QCs whom I have come across and whom I appeared opposite but whom I expect to have contact with very soon is of course Julian Miles. He is a very good performer in the court and a very good advocate. We will see how he goes of course in proceedings in which I am involved along with my colleague Trevor Mallard and indeed a well-known Cabinet Minister. 
But outstanding as all these representatives are as outstanding as all these counsel are one of the great virtues of the reforms that the last Labour Government led was that they allowed those who had won the respect of the profession and the right to have the title conferred on them of Senior Counsel to be drawn from a much wider berth. I think that was the good thing about it. The truth is that there are outstanding advocates who are not members of the so-called independent Bar. The two points I make about that are that firstly I know because I have dealt with them in the employment field members of the so-called independent Bar are embedded to use a military term in the commercial companies on whose behalf they are acting. They have a letterhead that suggests an independent chambers but when you look closely at the address and when you meet them they are actually at the commercial premises and the head office of the company for whom they are acting. That is one side of the independent Bar. 
The other is that law firms themselves certainly in their senior ranks and the senior partners of law firms produce some frankly top performers. I think of people like Jack Hodder who is a great constitutionalist a great public lawyer and a great partner of a law firm. Then I think of people like Mai Chen as well who similarly is a partner of a law firm but it would be hard to describe her as anything other than totally independent and fearless on whichever side of the fence or the argument that she is advocating. So there is simply no call there is no logic to the argument that reinstating the rank of QC is about preserving the independence of the rank or elevating the independent Bar. It will not do that because the independent Bar stands apart we know who the top performers are and they can be recognised irrespective of where they are in the profession. So it will be disappointing to take that backwards step. 
Then of course the other rationale for this change is that we want to restore in name at least the links to the Crown or to the monarch. Well we have been moving gradually away from that in so many other respects and much as we respect the role that the monarch plays in our constitution the truth is that we have been increasingly independent as a nation—a genuine dominion as we aspired to be at the beginning of last century but genuinely independent and it is disappointing that by reinstating the title QC we are taking that backward step. Notwithstanding that part of it there is no question that there are important ways in which we can recognise those who are at the top of the profession and those who are excellent advocates without having to confer on them some mythical link to the Crown. 
All those QCs those respectable men and women whom I adumbrated just now are people I have met none of whom were representing the Crown when I worked with them appeared opposite them or did whatever. They were acting either in commercial or in public good capacities and so they should—so good advocates should. That rank was conferred on those senior practitioners who had displayed an ability to argue both sides of difficult arguments who had shown a willingness and an ability to take on what were often unpopular cases and put up with the public opprobrium that went with them and because they could demonstrate how well they could perform in the profession—then they were conferred that title. Well the only thing that the title gives now really is a marketing advantage and of course the privilege that goes with being able to invoice at a much greater rate. I know a QC who today invoices at the rate of $14000 a day. That is what QC-ship confers on someone and it simply should not be that. 
Let us recognise the top performers in our profession recognising how important that is but we do not need to do what this bill provides for. It is a backward step. Let us embrace modernity let us move forward and for the profession that has modernised itself so much let us continue with what we have and recognise all top performers not with an anachronistic title but with a title that represents modern New Zealand. 
SUE MORONEY (Labour) 
: 
 It is a privilege to rise and speak to the Lawyers and Conveyancers Amendment Bill. I have a question at the outset of my contribution to this debate and my question to the Government is simply this: is this the brighter future? Is this what National members meant when they campaigned on that slogan of a brighter future—taking us backwards with archaic references to privilege? That is what this bill in fact does and I am proud to stand up and say that Labour opposes this bill. We oppose being dragged backwards to an area of privilege and archaic protection. That is all I can see in this bill and I do not think it represents at all that idea that the Government was trying to convince the country of which I think it is finding it harder and harder to maintain these days which was that somehow it had a vision of this modern this new future a vision going forward when in fact here it is once again bringing in—and wasting the time of this Parliament with—a piece of legislation that actually takes us backwards. 
It takes us backwards in a direction that I know that the Labour Party does not stand for. It takes us back into an area of snobbery—that is the best word I can use to describe this actually. It uses Parliament’s time to change back to an old title and I have yet to hear any Government member give us the evil that we are trying to fix here. What is the wrong that this bill is trying to fix? I have not heard one example yet from a Government member opposite about what the problem is—the practical problem the really practical problem that everyday New Zealanders come across that is going to be fixed by changing the title Senior Counsel back to Queen’s Counsel. What is it what is the evil what is the wrong what is the problem that this is trying to fix because I cannot see it. 
It was interesting to see that one of the few Government members who has taken a call on this bill was Tim Macindoe from Hamilton. I am really surprised to hear Tim Macindoe get up and make an impassioned speech on this. I do not think that this is what the people of Hamilton West sent him down to Parliament week after week to do—to get up and argue for privilege as this bill does and for snobbery and for $40000 a day because we heard from my colleague Andrew Little that this title of Queen’s Counsel apparently allows people to charge up to $40000 a day for ordinary New Zealanders to use their services if they have this title after their name. Well that is not the vision that I have for the future of this country. But it is now showing quite a trend from this Government because just a few weeks ago it was protecting privilege by spending taxpayer money to bail out Wanganui Collegiate School. It was doing that just days after it had cut funding for special education schools—close down special education schools but put taxpayer money into protecting privilege through taxpayer money to keep Wanganui Collegiate School going. This bill reflects exactly that same situation that same snobbery that comes from the National benches opposite. 
And here we are in the lead-up to the final weeks before Parliament rises before Christmas. What is it in the justice portfolio that the Government thinks is most important to spend its time on? Well today it is changing a title. It is changing a title for legal representation and in changing that title it is spending time—taking up Parliament’s time—to do something that is unnecessary. If we kept the title as Senior Counsel there is a particular part of this bill that we would not even need any longer. The title Senior Counsel does not actually reflect gender and—this is unusual for me—I am going to argue here that we are doing a disservice by reflecting gender in this piece of legislation. By changing back from Senior Counsel which does not have any gender connotation to it to Queen’s Counsel we have to draft up and spend this country’s money on actually changing a part of this law because if suddenly we did not have a queen but we had a king we would have to have a new section. We have to have a provision in here to take account of that change in gender of a ruler in a distant land. 
LOUISA WALL (Labour—Manurewa) 
: 
 Kia ora Mr Chair. Thank you very much for the opportunity to contribute in the Committee stage of the Lawyers and Conveyancers Amendment Bill. This is a constitutional issue and I actually do want to reiterate what my colleague Charles Chauvel said earlier in terms of this debate because when you look at the history that started for us in 2002—yes when we were in Government—there was a decision by Cabinet at that point in time to not only rename Queen’s Counsel but also look at the eligibility of that very privileged and special role within our society. So for us it was about creating the opportunity for all litigators not just barristers sole to have the opportunity to represent what is the highest office I believe for the legal profession. And why did we do that? I think we did that actually as a deliberate attempt to try to carve out for ourselves our own national identity as an independent country in a world where we have to recognise and we will always recognise that we were colonised by the British and that we are part of the Commonwealth. It was actually starting to forge some of our own national identity. Within the framework of that debate and discussion we decided that this was an area that we needed to reform. So we did create the title of Senior Counsel and we did change it from Queen’s Counsel and I think we should remember that. 
When I looked back at some of the debates—for example those that occurred in 2005 when the Lawyers and Conveyancers Act came into force—it was very interesting to note that the Law Society at that point in time actually agreed with the change. It agreed with the fact that we should be enabling all of the people within the legal profession to have the opportunity. So the two primary drivers when we drove the change were about renaming it but also about the eligibility. It was a move towards New Zealand’s independence as has been spoken about previously. 
We did follow the UK and we followed Australia and it is interesting when we look at other Commonwealth countries—for example we have Senior Advocates in India we have Senior Counsel in South Africa and we have President’s Counsel in Sri Lanka. What we started to undertake was something that a lot of other Commonwealth countries had started to undertake which was to actually look at what this role represented or what this role was empowered to do within the context of New Zealand being an independent sovereign nation. I guess that within modern democratic societies and in a society such as ours those are some of the challenges that we will face in the future. We do have to recognise in this discussion that we do have a constitutional reform process under way. 
So when we look at the retrograde aspect of this particular piece of legislation you do have to wonder where the motivation came from to put this piece of legislation through the House. It seems that it was initiated by the Attorney-General the Hon Christopher Finlayson in June 2009. So there was a commitment by the Government to do that but I am not really sure why it would do that within the context of us as a country having these big discussions about the constitution of our country—the place of the Treaty of Waitangi for example. What sort of a State do we want to create for our children of the future? It does seem to be a little bit at odds that we would be discussing a bill such as this within the context of that discussion. 
I was in the House when the Oaths and Declarations (Upholding the Treaty of Waitangi) Amendment Bill was debated last week. It seemed that that was the primary rationale for National members not supporting the honourable Te Ururoa Flavell’s bill—it was because we were in the middle of a constitutional review. So they decided we should wait for that constitutional review to take place to then allow for example us as members of Parliament to decide when we swear an oath whether to also swear to uphold the principles of Te Tiriti o Waitangi. So that was a really interesting I guess principle to make a decision on and it seems that that principle is completely transferable within the context of our discussions around this bill. 
CHARLES CHAUVEL (Labour) 
: 
 It has been interesting to hear the various contributions in this debate on Part 1 of the Lawyers and Conveyancers Amendment Bill. I would like to begin by just acknowledging the Green member Julie Anne Genter and thanking her for her party’s expression of support for my amendment. 
Just to pick up some of the points that have been made in the debate to date the first speaker for the Government side talked about why this legislation is important from the point of view of restoring the independence of the senior Bar. But we have never really heard how that is to be brought about by this legislation. We have never really heard how the legislation creating the status of Senior Counsel and permitting lawyers who practise in firms in New Zealand and others to be appointed to senior status threatens the independence of the Bar. 
Here is the point. All lawyers in New Zealand be they barristers or barristers and solicitors or solicitors only are subject to the same set of ethical obligations. The bar is set high on those standards. It does not matter whether one is practising at the Bar solely or in a firm. The same rules about conflicts of interest apply. The same rules about whether one is required to disclose a matter to a client apply. So this old-fashioned contention that somehow restoring QCs in the way that this bill would do preserves or enhances or restores the independence of the most senior of our lawyers by restricting the appointment to barristers only has never been proved. 
There has never even been an explanation of that point from the Government and its sponsors. It is wrong. I suspect that the reason it has been advanced is that it is easier than saying “Well we want this because it’s a nice way to preserve our monopoly.” That is really all that restricting appointment to the rank of QC to senior barristers will do. It will as my colleague Lianne Dalziel said from the moment of appointment enable them to charge a lot more because they have been recognised in this way. 
The amendment that I have put forward does something important. It preserves the independent appointments procedure that currently exists for Senior Counsel. We accept that the Government has the numbers to do this—to put QCs back into the system—but we are asking whether or not Government members would at least consider with an open mind the benefits of keeping a bit of sunshine on the process. 
Jackie Blue and Katrina Shanks and others will be interested in this little anecdote that I am about to relate. Recently a friend of mine joined chambers. He is a barrister. He is a good barrister; he is in good chambers. It was a nice thing to be able to go and celebrate with him. A number of other lawyers came up to me during the course of the evening and said to me “We’re really concerned about two aspects of this legislation. First of all the restriction of the rank to barristers rather than to include practitioners in a firm and we’re worried about going back to an old murky procedure—the old boy network.” 
Guess what gender these lawyers were? They were my female colleagues. They said these things for this reason. It is much easier as a woman practising in the law to practise in a firm partly because if you have ambitions to have a child firms tend to have provisions around parental leave and around flexibility of work conditions if people want to try to combine family life with practising in a firm. 
The Bar does not have that and here is why. If you are going to be at the Bar you have to be what we would call in ordinary parlance an independent contractor. You cannot be employed by anybody. You cannot be in a partnership. You cannot form a safety net or pool your risk. You have to be on your own in terms of employment status. That is why we have had so few senior women in the profession reaching the utmost heights of SC or QC-dom even though for probably 10 or 15 years now fully 50 percent of the graduates from our law schools have been women. It is really really hard. 
So to restrict the status to barristers sole and to go back to some murky appointments procedure where nobody really knows how you become a barrister—just that it has something to do with being on good terms with the Attorney-General or the Solicitor-General or the president of the Law Society or a senior judge—is going to inevitably have the effect that fewer women are going to get appointed to the status. We are going to have less diversity at the top end of our legal profession. 
All I am saying to members opposite is that if you think those are bad ideas then you can let Chris Finlayson have the victory of going back to the title of QC. If you believe that that is a good thing you can have it but by adopting my amendment what you could also do is preserve the openness of the appointment procedures that we now have. You could actually help keep a bit of diversity in the senior levels of the Bar rather than going back to the bad old days of the old boy network which will inevitably happen if the legislation passes in its current form. And do not take my word for it; take the word of the people who came up to me recently at the event that I have described to you and listen to the fears that they expressed. 
 Dr Blue said: “Well you know this isn’t a bad thing because the Bar Association asked for it.” With respect Dr Blue that is a bit like senior specialists in a particular medical profession saying “We would quite like not to have to be subject to a particular disciplinary regime because it restricts our independence and our ability to apply best practice in our particular field.” 
Of course the union the professional association representing a particular group of people is going to want what is best for that group of people. That is its job. That is what it is doing when it puts that sort of submission forward. It does not mean it is in the public interest. It does not mean that the association is thinking about how best to preserve diversity at the most senior levels of our profession. It does not mean that it is thinking about how we ensure that the best public confidence exists in our senior lawyers by ensuring that they are appointed openly to a particular status and that they are appointed from as wide a background in the profession as possible rather than restricting them to the Bar where just by economics only a certain type of practitioner in New Zealand to date in general has been able to flourish. That is really all I am asking members in the Committee to think about. As I say I thank one party in particular for having taken on board this idea. I hope others will consider it with an open mind. 
Finally I would just like to try to make a bit of an appeal to logic. We have talked about how the bill will generally revert to a system where only barristers can be made Queen’s Counsel. And yet there is a provision in section 119—119C I think it is—in clause 6 that says that none of all that really matters because the royal prerogative as to the appointment of Queen’s Counsel is preserved by this legislation. That is the provision under which Paul East had himself appointed Queen’s Counsel before he went off to argue the French atmospheric testing case in the world court. 
Presumably that is the clause upon which will be relied to make Mr Finlayson a Queen’s Counsel because under the statutory procedure he is not practising as a barrister. He is a member of this House and he is excluded as far as I can see by the provisions of the bill. So even under this legislation the Government has got a “Well we can do whatever we like.” clause. To me that undermines the logic of the position that Mr Macindoe took earlier—that somehow this legislation is vital to restoring the independence of the senior Bar. 
Well that cannot be if the Government is still going to have an out clause allowing it to invoke the royal prerogative at any time which means that the Attorney-General can go off and see the Governor-General at any stage and say “Sir I advise you to appoint the following people to the rank.” whether or not they are solicitors whether or not they are working at a senior level in local government whether or not they are the chief legal adviser in a particular Government entity and whether or not they are a sitting MP. That is the flaw of this bill and it is why I am trying to get some better sense into it. 
The question was put that the amendments set out on Supplementary Order Paper 136 in the name of the Hon Judith Collins to Part 1 be agreed to. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Amendments agreed to. 
The question was put that the following amendments in the name of Charles Chauvel to Part 1 be agreed to: 
to delete clause 4(b); 
to replace the title of section 119C in clause 6 with “Royal prerogative power and appointments under section 119 unaffected except as provided for by this section”; and 
to insert after section 119C(2) in clause 6: 
(3)When a candidate is to be considered for appointment to the office of Queen’s Counsel whether under the royal prerogative or otherwise the requirements of the Lawyers and Conveyancers’ Act (Lawyers: Senior Counsel and Queen’s Counsel) Regulations 2008 and any guidelines issued under regulation 5 of those regulations shall continue in effect with necessary modifications until amended replaced or revoked by a further Act of Parliament. 
A party vote was called for on the question  
That the amendments be agreed to. 
Ayes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Noes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Amendments not agreed to. 
A party vote was called for on the question  
That Part 1 as amended be agreed. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Part 1 as amended agreed to. 
Part 2 Amendments relating to other matters 
CHARLES CHAUVEL (Labour) 
: 
 When the Lawyers and Conveyancers Act was originally passed it made one or two significant changes to the way in which the legal profession was run in New Zealand. First of all it recognised and conferred particular recognition on a class of practitioners who were not lawyers but who were registered conveyancers—people who had gained some expertise in the art of conveying property and in satisfying the legal requirements in New Zealand that would be required in such circumstances. The policy background here was to introduce some competition into the system so that the virtual monopoly that had been enjoyed by lawyers previously on this important type of work might be interrupted and prices might come down. 
The lawyers and conveyancers legislation went further. It allowed law firms and firms of conveyancers to do something that had not been permitted previously. Previously there had been a requirement that these entities operate only as partnerships and that they not be able to limit their collective liabilities. Basically every act or deed done by one of these firms would be something that would result in liability for every partner in the firm and would not be able to be contracted out of. The legislation allowed for the incorporation of these entities. It sought to preserve the liability regime that I have described but basically looked at ways to make them more bankable for want of a better way of describing it. 
 There are a couple of sensible machinery amendments in Part 2 of this legislation that are consequent on those changes. They relate to the position of the estates the wills and the trusts of those who have become involved in conveyancing law firms that are incorporated as a trustee of a trust in which each beneficiary is a relative of one or more of the trustees and each trustee is a conveyancing practitioner in the case of the registered practitioners or is a lawyer actively involved in the provision of the body corporate of regulated services. They are sensible changes. There are also changes to the disciplinary regime that applies to lawyers. Applications for a review by the legal complaints review officer of a particular decision or action of a standards committee will have to be lodged within a 30-day working period commencing on the day after a copy or notice of the decision or action is brought to the applicant’s attention. We have always said that we support these amendments. They are sensible. It is just a shame that although we will be voting for this part because of the provisions that are contained in Part 1 to which we take strong exception we will be voting against the bill as a whole. 
The question was put that the amendments set out on Supplementary Order Paper 136 in the name of the Hon Judith Collins to Part 2 be agreed to. 
Amendments agreed to. 
Part 2 as amended agreed to. 
Clauses 1 to 3 
CHARLES CHAUVEL (Labour) 
: 
 I foreshadowed in my earlier contributions that I thought this bill the Lawyers and Conveyancers Amendment Bill probably would merit some different titling than the one that it has managed to end up with. First of all this bill is clearly part of the Minister of Justice’s charm offensive with certain parts of the legal profession part of her attempt to soften her image as the crusher of cars and the enactor of “three strikes” legislation. I would like to propose that we consider another title for this legislation. Perhaps it is the “Softening of Crusher’s Image with the Senior Bar Bill” because clearly that is going to be one of the potential effects of the legislation. 
As Dr Blue said the Bar Association really wants this legislation to be passed. Well of course it does because it means that it will remedy the drought that has occurred for 5 years because Chris Finlayson has refused to appoint any Senior Counsel under the existing legislation. So what has happened to our profession? It has had no senior appointments made while all the Australian states and territories have had Senior Counsel appointments made in them every year. We should remember as we think about perhaps another alternative title for this bill the “Luck of the Australians Bill” that all those Senior Counsel appointed in Australian states and territories are entitled to practise in New Zealand. What the Attorney-General has done by failing to make the appointments that he is entitled to make under the legislation for the last 4 or 5 years in New Zealand is he has put those Australian Senior Counsel at a massive competitive advantage against the leaders of our profession who have had to sit around waiting for action to be taken around what status or rank would be accorded to senior New Zealand lawyers. 
While they have waited without any sort of title or rank being conferred upon them guess what has happened to those Australian lawyers? Well as a result of the Canterbury earthquake they have been the ones whom the big insurance companies have commissioned to write the major opinions on liability over the earthquake they are the ones who have been looked to to give opinions on whether or not litigation should occur and they have been the ones who have sat there thinking “Mmm I wonder whether it’s worth going and litigating this case or that case in the New Zealand Court of Appeal or the Supreme Court?” as they are entitled to do. So that could well be another alternative title. 
Of course yet another title could be the “Chris Finlayson (I’m Going to See Myself Appointed a QC Come Hook or By Crook) Bill” because it seems to me that that is a motivation that we cannot ignore here. We know that the Attorney-General was very sad when Michael Cullen took advice and then acted on it that he could not really in good faith give him the appointment of QC at the time because he really did not qualify. So here we see a tradition in the National Party being fulfilled. I mentioned earlier that Paul East had himself appointed as a QC in the 1990s when he was the Attorney-General. At least in that case Paul East was heading the Government legal team. He had John McGrath the Solicitor-General at the time as his junior in the litigation team in the International Court of Justice which was designed to seek to prevent France from resuming underground nuclear testing at Mururoa and it was thought that it was appropriate that the New Zealand legal team should be headed by the most senior rank of lawyer available. 
Clearly when the Solicitor-General himself a Queen’s Counsel was going to be the junior in the case the Attorney-General who outranks the Solicitor-General in the order of precedence could hardly appear without some sort of rank clothing him. So it is understandable how Mr East came to have himself appointed as a QC in those circumstances. It remains to be seen whether Mr Finlayson’s lust for status will be clothed in similarly respectable garb or whether it will simply end up being a more naked grab for such status. But these are all titles that would be equally apt for this legislation because they do describe the reality of the situation. 
Given what I said earlier about what the effect of this bill will be another fair title for it would be the “Let’s Keep Diversity Out of the Senior Ranks of our Legal Profession Bill” because that undoubtedly will be the effect of this legislation. I said earlier that for a long time now women graduates from our law schools have been I think over 50 percent of the out-take every year. Yet survey after survey of the profession shows that very very few women manage to get to the absolute top of the Bar. We do have a few and they are outstanding. It is wonderful to be able to acknowledge that and to work with those people as my colleague Andrew Little pointed out. I say that without any hint I hope of sounding patronising. They are amongst the best lawyers in the country. 
But there are fewer of them and there is a reason for that and it is the reason that I explained earlier. It is much harder to have to work as an independent contractor than it is to be able to pool one’s risk if one wants to have a family and work. And requiring appointments to be made from the Bar only does exactly that. It says to those who want to found a family or who want to do something else with their life other than just work every hour God gave that if they want to do that then they can but they have got to find a way to pay for it themselves. So saying that you cannot be a QC if you want to be in a firm or you want to find some other way to support yourself even though you might be the most brilliant legal practitioner this country has ever produced is what this bill will do. It will inevitably have an effect on lessening the diversity at the most senior levels of our Bar. That to me is one of the most lamentable things about this retrograde step that this Parliament is taking today. 
But perhaps the best way that we could describe this legislation given the voting down of my amendment earlier—and I thank the other parties who supported it including New Zealand First and the Mana Party; I have already acknowledged the Greens and of course my Labour colleagues—and the saddest thing about getting rid of the transparency that currently exists in the appointment process for now Senior Counsel soon to be Queen’s Counsel is this: nobody really knows how QCs become QCs. It is a murky process. It is a process where whom you know matters much more than who you are. I want to relate one story about this but before I do I am going to propose that a better title for this legislation would be the “It’s Not What You Know But Who You Know Bill” because that is what we are doing here. 
 I have a friend who is a very very able lawyer. He practises at the Bar in Auckland or he did until a couple of years ago when he retired. There is no doubt in my mind that he would have made a very fine Senior Counsel or QC and a friend of mine who sits in the High Court agrees. That judge took up this man’s cause at the time of the last appointments round for Queen’s Counsel and was told that because this candidate was not well known to the judges who sit around in the common room in the High Court in Auckland really he needed to get a bit better known put his name about maybe get a bit more active in the Auckland District Law Society perhaps join the golf club and play a bit more golf with the lawyers concerned. Well this is the reality of what we are condemning a lot of our practitioners to. We are saying “Look the National Party thinks the old boys’ network works best.” It wants to see more of its own appointed to the most senior ranks of our lawyers and it has gone about this by ensuring that we are voting down the retention of an appropriately transparent process. 
In every other area of our society we are being transparent and yet in the one area that causes the most grief and the most mystery to ordinary New Zealanders—how do you get a lawyer that you are concerned about disciplined or held to account; how do you get a judge in that situation held to account—we are going backwards. We are saying in order to become the most respected and senior type of lawyer in this country well it is going back to hocus pocus and that is the saddest thing about this legislation. 
ANDREW LITTLE (Labour) 
: 
 Again I express my disappointment that at a time when the country we like to think is rapidly modernising when in every sphere of the labour market we are looking to diversity and we are looking to inclusive means to grow and nurture and develop the relevant workforce this bill the Lawyers and Conveyancers Amendment Bill takes us backwards. It takes us back to an age of privilege to exclusivity to focusing not on those who may be the best legal minds but on those who have the right connections and can persuade the right people at the right time in order to achieve the right appointment. 
This bill might be better titled the “Lawyers and Conveyancers Return to Exclusive Privilege Bill” or the “Lawyers and Conveyancers Return to Inexplicable and Undeserved Exclusivity Bill” because that is what is happening with this bill. The legal profession is very important and those who practise at its most senior levels those who are most experienced are those whom we need to retain because—let us face it—many lawyers many senior practitioners suffer the same temptations and are often offered the same blandishments as those in other walks of life. The prospect of early retirement of spending one’s twilight years on the golden sandy shores of various beaches of the nation—those sorts of things—is very tempting and yet they are people who have much to offer in the practice of law and in the prosecution of the very important role that they play in the courts of this land. 
Yet this bill says that we are now going to go back to a time when a small number of people a small coterie—the Attorney-General and those who are close to the figures of the establishment and the Government of the day—will select those who have chosen to go to what is I think now incorrectly named the Independent Bar because the independence at least in some cases is open to question. Those who are in the Independent Bar will qualify whereas those who are senior practitioners and excellent advocates in other parts of the profession will not qualify and that is such a bad step. 
At a time when the legal profession is reorganising itself into a more coherent organisation offering up better oversight and greater discipline amongst the profession and setting ever higher standards this legislation will take us back to an age and an era that did not promote and encourage that. It promoted the rubbing of the right shoulders—that is to say shoulder to shoulder not the massaging approach that might otherwise have been suggested by that turn of phrase. 
Those in the gentlemen’s clubs of the nation who knew each other well and could speak highly of each other—often with the correct accent nurtured by King’s College or even Christ’s College and those elite schools of the nation—could well find themselves as candidates to be a QC if they had those contacts and those connections. Because of the exclusivity of the nature of the appointment it gave them a market advantage. That is what it was often seen as—as a marketing advantage—and they could charge a higher fee. Well that is not what we want to see in the senior ranks of any profession much less the legal profession. 
That is why we need to know if we are going to see true development and the application and the prosecution of the rule of law in our courts that in our courts of justice and our tribunals the people who are operating at the most senior ranks represent the diversity that we are seeing in so many other spheres in New Zealand. That is why it is important if we are going to have this bill—and it looks like there is an inevitability about it—that it properly reflects what is happening. But this bill represents a retrograde step a backward step. It is not embracing modernity and the modern approach we would expect in a modern profession in a modern country that is seeking to fight its way and find its way through the world. 
For that reason we will oppose this bill disappointingly and grudgingly as that may be because it will not improve the profession or those who operate within it or most important those who aspire to its senior ranks and to be the senior practitioners of tomorrow. 
Hon LIANNE DALZIEL (Labour—Christchurch East) 
: 
 I wish to participate in this part of the debate on the title and commencement clauses of the Lawyers and Conveyancers Amendment Bill that we have in front of us. I participated in the debate on Part 1 of the bill and I made a couple of points that I would like to reiterate in the sense that where this legislation has its commencement date does in fact relate to the specific proposals in respect of the title of Queen’s Counsel. 
I think that the disappointment that we have expressed on this side of the Chamber actually relates to the fact that the date that the legislation itself is due to come into force is presumably by way of Supplementary Order Paper 136 updated from 1 July 2010 which was the date that it was intended to take effect when this bill was actually originally referred to the Justice and Electoral Committee. It has obviously been at the select committee for some time as Supplementary Order Paper 136 now has the bill coming into effect on 3 December 2012. 
I thought this was quite interesting because when the legislation was originally—in actual fact I think it is the clause by clause analysis of the bill that is incorrect. Oh no no—Part 1 was always due to come into force on 1 July 2010 but clause 2 in Supplementary Order Paper 136 requires that we replace 1 July 2011 with 3 December 2012. I am just wondering whereabouts one can replace the words “1 July 2011” if they do not appear in the legislation. I wonder whether that is correct or incorrect. 
Charles Chauvel 
: The Minister in the chair will know. 
Hon LIANNE DALZIEL 
: The Minister in the chair the Minister for the Community and Voluntary Sector perhaps could get some advice from her officials and perhaps respond to us because the way that it reads at the moment in the commencement clause is that it says in clause 2 that “Part 1 comes into force on 1 July 2010.” That has not been amended at the select committee. The Minister of Justice’s Supplementary Order Paper 136 says in clause 2: “In clause 2(1) replace “1 July 2011” (line 5 on page 2)…”. Well line 5 on page 2 says “Part 1 comes into force on 1 July 2010.” on the copy I have got so maybe I have lost something. Maybe I have got the original copy—oh yes I have got the original copy. It has been updated since it was referred back from the select committee so it has obviously been at the select committee for a long time. Obviously my colleague—my very honourable colleague Charles Chauvel—has handed me an old copy of the bill and not the reported-back version from the select committee because I see that it is in the name of— 
Charles Chauvel 
: Nathan Guy. 
Hon LIANNE DALZIEL 
: —Nathan Guy who is presumably not the Minister who is taking this through now is he? Is it back in the name of the Minister or— 
Louise Upston 
: Are you on the right bill? 
Hon LIANNE DALZIEL 
: Hmm? Do we know whose name the bill is in? 
Charles Chauvel 
: Collins is moving the Supplementary Order Paper. 
Hon LIANNE DALZIEL 
: It is back with the Minister of Justice so it has been diverted back to her. 
But anyway the question that obviously the select committee had to deal with at such a—oh yes here we go. Now we have got the copy of the bill that was reported back from the select committee. It says “Part 1 comes into force on …” and “1 July 2010” has been struck out and replaced with “1 July 2011” and now this is being replaced by Supplementary Order Paper 136 in the name of the Hon Judith Collins with “3 December 2012”. That of course is not very far away and no doubt that is why we are seeing this bill passed into law through Parliament at this stage. 
The bill is though I guess a particular shame and disappointment to this side of the Chamber. We think that in modernising the way our legal system operates we could create a distance from our traditional past in the UK. Seeing the previous position of Senior Counsel being replaced with the reinstated position of Queen’s Counsel is I think a retrograde step. I think it is very disappointing that Parliament is having to deal with this in this way. 
A party vote was called for on the question  
That clause 1 be agreed to. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Clause 1 agreed to. 
The question was put that the amendment set out on Supplementary Order Paper 136 in the name of the Hon Judith Collins to clause 2 be agreed to. 
A party vote was called for on the question  
That the amendment be agreed to. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Amendment agreed to. 
A party vote was called for on the question  
That clause 2 as amended be agreed to. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Clause 2 as amended agreed to. 
A party vote was called for on the question  
That clause 3 be agreed to. 
Ayes 64 
New Zealand National 59; Maori Party 3; ACT New Zealand 1; United Future 1. 
Noes 57 
New Zealand Labour 34; Green Party 14; New Zealand First 8; Mana 1. 
Clause 3 agreed to. 
Bill to be reported with amendment presently.