Chauvel Charles: Lawyers and Conveyancers Amendment Bill — In Committee 
Text is incorporated into the Bound Volume 
Chauvel Charles: Lawyers and Conveyancers Amendment Bill — In Committee 
[Sitting date: 13 November 2012. Volume:685;Page:6520. Text is incorporated into the Bound Volume.] 
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.