Lawyers and Conveyancers Amendment Bill — First Reading 
Lawyers and Conveyancers Amendment Bill — First Reading 
[Volume:667;Page:14469] 
Lawyers and Conveyancers Amendment Bill 
First Reading 
Hon NATHAN GUY (Associate Minister of Justice) 
: 
 I move  
That the Lawyers and Conveyancers Amendment Bill be now read a first time. 
 I intend to move that the bill be considered by the Justice and Electoral Committee. This bill amends the Lawyers and Conveyancers Act 2006. The amendments reform the regulation of the legal profession in New Zealand. The bill replaces the existing regulatory framework for lawyers with a co-regulatory regime that also covers the new profession of conveyancers created by the Act. The Act enables both professions to respond more effectively to the changing needs of consumers in the legal services market. The Act came into force on 1 August 2008 and it has been working well since its implementation. However this bill makes an important change to the Act by restoring the title of Queen’s Counsel to the office currently known as Senior Counsel and some auxiliary changes to eligibility for that office. The bill also makes some minor amendments to enhance the functioning of the Act. 
I will talk first of all about Part 1 of the bill as it restores the title of Queen’s Counsel to the office currently known as Senior Counsel. The Lawyers and Conveyancers Act replaced the title of Queen’s Counsel with that of Senior Counsel. The Act also made a number of changes to expand eligibility for the rank which now extends to lawyers in all forms of practice including law firms. The bill will repeal that arrangement by reinstating the title of Queen’s Counsel and restricting eligibility in most cases to barristers sole rather than lawyers in partnerships or firms. 
The title of Queen’s Counsel reflects the public purpose and status of this position. It underscores the historical link between Queen’s Counsel and the Crown which has been established on the reputation of the rank in New Zealand and abroad. The rank identifies leading advocates in New Zealand and provides official recognition of excellence. In particular it provides leadership to the legal profession and assists people to resolve disputes by identifying legal counsel. 
Eligibility for appointment of Queen’s Counsel will be limited to barristers sole in most cases. This returns the rank to its original form and recognises and protects the independence of Queen’s Counsel enhancing their ability to accept instructions and to provide frank independent and objective legal advice. To maintain that independence Queen’s Counsel who are providing regulated legal services as defined by the Lawyers and Conveyancers Act will continue to practise as barristers sole or they will be deemed to have surrendered the title. 
It is intended that the amendments will preserve the existing arrangements for those Queen’s Counsel and Senior Counsel who have entered with other lawyers in partnership or incorporated law firms since the Lawyers and Conveyancers Act came into force. Clause 6 of the bill containing new sections 118A and 118B may require minor amendments to ensure that those purposes are accurately reflected. 
However the amendments also preserve the Governor-General’s power to appoint from time to time other lawyers including litigators in law firms as Queen’s Counsel in recognition of their extraordinary contributions to the field of law. This is consistent with the established practice of occasionally appointing exceptional lawyers in government and parliamentary counsel as Queen’s Counsel although they are not members of the independent Bar. 
Part 2 of the bill makes minor technical amendments to the Act. First the bill amends the definition of “relative” to include a reference to a grandchild of a lawyer or conveyancing practitioner. This will enable grandchildren to be shareholders of an incorporated law firm or incorporated conveyancing firm or if a minor to be a beneficiary of a qualifying trust. 
Secondly the bill permits a qualifying trust to be a non-voting shareholder in an incorporated law firm or an incorporated conveyancing firm. A “qualifying trust” means a trust in which each beneficiary is a relative of one or more of the trustees and each trustee for an incorporated conveyancing firm is a conveyancing practitioner or for an incorporated law firm is a lawyer who is actively involved in the practice. The Act is quite specific as to who may be a shareholder of an incorporated law firm or conveyancing firm. This ensures lawyer or conveyancer control of an incorporated firm which is important to maintain professional standards. The use of a qualifying trust as a vehicle for shareholding avoids the need for proliferation of relatives holding shares in their own right. It will also enable children and grandchildren who are minors to benefit from income through distributions from the trust. 
Thirdly the bill extends the power of attorney that those in sole practice must give to authorise another to have the power to conduct the practice through any periods where the sole practitioner is an undischarged bankrupt. The Act requires a sole practitioner to issue a power of attorney that enables the power to conduct the practice in a range of circumstances. These do not include the bankruptcy of a sole practitioner. Instead where the practitioner is an undischarged bankrupt a process needs to be instigated by either the New Zealand Law Society or the New Zealand Society of Conveyancers with the New Zealand Lawyers and Conveyancers Disciplinary Tribunal to have the practitioner struck off or suspended before the power of attorney provisions can apply and the practice can be continued. The amendment will remove the need for that cumbersome process and will provide a more simplified and streamlined process in those difficult circumstances. That will also serve clients better as it will be an immediate response to the situation and will enable client matters to be managed more effectively. 
Finally the bill makes a technical amendment to the complaints procedure. One of the reforms introduced by the Act is a new three-tiered complaints and disciplinary process. Complaints are usually heard in the first instance by locally run standards committees. The decisions or actions of that committee can then be reviewed by the Legal Complaints Review Officer. The bill amends the notice period for lodging a review with the Legal Complaints Review Officer of a standards committee decision. It provides that an application for review must be lodged within a 30-day period which begins to run when the applicant is notified of the committee’s decision. The date of notification is presumed to have occurred 5 days after the committee’s decision. This amendment will ensure there is sufficient time for applicants to lodge a review application if they wish to do so. I commend this bill to the House. 
CHARLES CHAUVEL (Labour) 
: 
 Part 2 of the Lawyers and Conveyancers Amendment Bill which has just been described by the Associate Minister of Justice contains some quite sensible provisions but because of the appalling provisions in Part 1 there is no way that Labour can support this legislation. With this bill the National - ACT - Maori Party - Peter Dunne Government leads us boldly back into the 19th century. We go cringing back to our colonial origins. 
Hon David Parker 
: Bring back fingerless gloves. 
CHARLES CHAUVEL 
: Yes fingerless gloves would be in order. The Attorney-General was the original sponsor of this bill although I see that it has been mysteriously taken over by the hapless Associate Minister of Justice Nathan Guy who just read the notes on the bill that were provided for him by the Ministry of Justice. It was a very good recitation of the departmental speech notes. 
It is interesting first of all to pose the question of why Chris Finlayson is no longer the sponsor of this legislation. I ask whether he wants to avoid the suggestion of a conflict of interest having returned the nation to this cringing colonialism and Queen’s Counsel so that when eventually he procures his own appointment to the rank he cannot be accused of such a conflict of interest. 
The Government has also restored knighthoods and the title of Right Honourable to the three senior officers of the State which is a total constitutional nonsense given that they are not members of the English Privy Council. They are just holders of this title which is redundant in this country without any meaning whatsoever. Maybe it will be good for the odd upgrade on a plane when they are retired from this place but that is about all it means. [ 
Interruption 
] I see that Ms Collins responds well to the idea of an upgrade. But the House needs to ask the question of how New Zealand can be taken seriously in the world as a multicultural Pacific nation while this Government is so addicted to colonial cringe. [ 
Interruption 
] I say to Nikki Kaye that this will not go down well in Auckland Central because people in Auckland Central are really proud to be multicultural and part of an independent country in the Pacific and here we have this Government going back to this colonial cringing. 
This Government must have our historical links to the Crown recognised. We must return to using English titles. We are not good enough on our own; we have to have Queen’s Counsel we have to have knighthoods and we have to be Privy Counsellors. It is just appalling. We cannot have the external trappings of an independent State. Under this Government we have to go back to the old colonial titles. We must be the only place on the planet that has abolished colonial titles like knighthoods privy counsellorships and Queen’s Counsel only to restore them by legislation in this case. 
It is bad enough that we are going back on this cultural cringe trip and that Nathan Guy has been put up to this job by the Attorney-General so that the Attorney-General can have the coveted title of Queen’s Counsel at last which has been so long denied him but worse is that the justifications advanced in the Associate Minister’s speech which he read so diligently for us do not stack up. 
Let us put the colonial cringe arguments aside. The bill is said to be all about preserving the independence of the legal profession and correcting what is said to be an overly rigid approach to the appointments process for Senior Counsel. There is nothing in the independence point—absolutely nothing whatsoever. The proof of that is in the fact that the Minister conceded when he read the notes from the department that the Governor-General retains the discretion to appoint members of the legal profession from law firms from time to time to the rank of Queen’s Counsel. There will still be the ability to do that. Given this legislation I ask how independence will be preserved if that extraordinary power continues to exist. It just proves the lie in the argument. 
The appointments process and the rigidity that is said to exist in it is also a complete nonsense. I will read into the record of the House something that was said in 2003 by one of New Zealand’s leading litigators. Jack Hodder was a barrister and a law commissioner and is now a partner in one of our major leading law firms. Incidentally he happened to be one of the inaugural appointees to the rank of Senior Counsel although at the time he could not have known that that would have been in the offing. This is what Mr Hodder said about the Queen’s Counsel appointments process which we are going back to: “This form of State patronage perpetuates a misleading and damaging two-tier perception of the legal profession. It empowers the State apparatus (currently the Attorney-General and the Chief Justice) to discriminate between lawyers advantaging some and (by implication) damaging others. All this is done under a secret and non-accountable process. That process cannot be sensibly reformed. The current and future holders of the offices of Attorney-General and Chief Justice should not be distracted nor placed at risk of charges of favouritism by involvement in such a process in which they must rely on secondary sources. The critical independence of the legal profession can only be impaired by any such selection process.” The truth of those words is manifest. Rather than enhancing the independence of the legal profession this legislation will take us back to a system where the Attorney-General and the Chief Justice from time to time under a secret process relying on secondary sources can elevate some members of the profession to exalted status enabling them to charge much more than they could have previously by way of fees and all this is said to be somehow enhancing of the independence of the legal system when in fact it will produce the opposite result. 
The other interesting observations made by Mr Hodder in his  
Independent 
 article are as follows. I agree with them and I want to make sure that the House takes note of them. Firstly he said: “The rank is of no assistance in maintaining or enhancing professional standards in the practising legal profession. The rank is not well understood by the public. Indeed it implies - quite incorrectly - that the beneficiaries of the rank are able or entitled to advise or speak on any legal matters with greater authority than others. The rank creates an unnecessary and unhelpful division between those few favoured with the rank and the rest of the profession who are implicitly (and sometimes explicitly) relegated to junior rank. For nearly 90 years only a fraction of the New Zealand Bar has been able to apply for the rank—the vast majority … practising in the fused profession as barristers and solicitors. … The rank has not been available to leading lawyers who practise in areas other than advocacy. The rank represents characteristics of the legal profession of England and of the past which are damaging to the New Zealand profession of the 21st century: adherence to archaisms; retention of elitist divisions; secret procedures; and a mistrust of market forces.” They are all hallmarks of the rank. Finally “the rank is not necessarily reliable as an indicator of skill as an advocate. While the current leading Queen Counsel are among the leading advocates in the country there are advocates in law firms who are their equals and there are Queen’s Counsel who are at best marginal candidates for any ‘leading advocates’ list.” 
This is bad law. It represents a colonial cringe that many of us thought we had grown out of in this country but clearly the actions of this Government show that we have not. It nullifies attempts to harmonise with the Australians in the legal market. The Australians have done away with this rank in all but one jurisdiction and they will laugh at any jurisdiction that actually goes as far as restoring it. This is bad law it is bad for New Zealand it is elitist and at the earliest opportunity a future Labour Government will repeal it. 
PAUL QUINN (National) 
: 
 It gives me great pleasure to rise to speak in support of the Lawyers and Conveyancers Amendment Bill. I agree with the previous speaker Charles Chauvel to the extent that the second part of this bill is excellent legislation. I disagree with him in respect of the first part of the legislation and his comments relating to the reinstatement of Queen’s Counsel. 
I will spend my contribution to the debate sharing with the House my experiences from a practical point of view. I know that dear old Charles has his own views. I had better call him Charles Chauvel before someone raises a point of order but I am sure he will not mind me calling him Charles. 
Hon Nathan Guy 
: He might like Sir Charles. 
PAUL QUINN 
: Sir Charles yes. I know that he has his point of view but I guess that is partly driven by the fact that he will never reach the dizzy heights of becoming a Queen’s Counsel. I do not think he has the capability. I guess there is a bit of sour grapes in his reflections. He quoted Jack Hodder ad nauseam. For a start Jack Hodder to my knowledge has never practised on his own account. He has been working for Chapman Tripp for about the last 30 years. I am sure David Parker will confirm that when he stands up to speak. But the simple fact of the matter is that the Law Society and most lawyers support the reintroduction of the title Queen’s Counsel. That is non-debatable. 
Let us reflect on that. This title was taken away in the same way that the previous Government got rid of knighthoods and all those sorts of things in a fit of pique. Then we were told that those titles did not represent a multicultural society. I would like to remind the Opposition that I think I contribute to that multicultural society and I am a valid member of that multicultural society. 
Sandra Goudie 
: Absolutely! 
PAUL QUINN 
: Yes. In fact I fully support the reinstatement of Queen’s Counsel. The reason is that I have been on the receiving end of employing these people. 
Hon Steve Chadwick 
: Oh! 
PAUL QUINN 
: Absolutely and against the Crown I might say. We have won every time. One of the reasons we won every time is that we employed a damn good Queen’s Counsel. The reason I knew that he was damn good was that he had the stamp of the brand of Queen’s Counsel. That means a lot. This is what people rely on. It is a badge of integrity; it sets a certain standard. I am afraid that unlike the Opposition I think the fit of pique that it had in getting rid of these things including redress to the Privy Council was a damnation—a damnation. It had nothing to do with talking to the motherland. The fact of the matter is that our justice system in my personal view is worse off because of the inability to go to the Privy Council. All we are doing with this legislation is restoring the integrity of experienced senior lawyers. 
If we go through any fraternity of any sort or any occupation of any sort we see that people get honoured for reaching certain standards. I am sure that even the Labour Party has juniors and seniors. People get recognised for graduating through the ranks and one day—one day—if Chris Hipkins is here for long enough he might get to the middle benches. But that will be through just sheer time. 
Hon Nathan Guy 
: There are 17 of them. 
PAUL QUINN 
: There are 17 of them. But the fact of the matter is that members of fraternities step up as they gain experience and competence and levels of excellence. That is all these titles reflect; the title of Queen’s Counsel reflects that. 
Simplistically what we have done after consulting—as we do on most things—with the organisations is reinstate this title to basically its former position and because of this reinstatement the general populace will be assisted when they are in need by these excellent guardians of freedom whom they rely on. So I have great pleasure in concluding my contribution by saying that I fully support this outstanding bill. 
Hon DAVID PARKER (Labour) 
: 
 I take much pleasure in following the Dennis Denuto of the National Party Paul Quinn. For anyone who has ever had the pleasure of seeing  
The Castle 
 a wonderful Australian comedy that was not a compliment. 
Sometimes this Parliament really is a Bleak House—it really is a bleak house. It is most often a bleak house when we turn back our clocks 200 years as we are doing now and go back to Dickensian traditions—Dickensian traditions that are born of a judicial system in the United Kingdom that does not allow solicitors to appear as barristers in the higher courts. That is what this tradition arose from and that is why it was right that it was tossed into the bin of irrelevancy a couple of years ago. 
Provincial areas have very few Queen’s Counsel but they have a lot of good lawyers. I am a lawyer; I used to practise in Dunedin. I know that the leading lawyers down there many of the best advocates were both barristers and solicitors. These were leading counsel—leading counsel—and I will name just a few of them. They happen all to be men because of the virtue of their age. The people in the legal profession ahead of me in the senior positions were men as a consequence of its being a very male-dominated profession in those times. They were people like Neville Marquet Bruce Robertson and Kelvin Marks who was a leading counsel. He was the counsel in the case involving civil aviation and MacKenzie which was the case that distinguished between absolute liability and strict liability. He was a barrister and solicitor in Dunedin. He should have been made a Queen’s Counsel but could never be so because he acted as a barrister and solicitor. In provincial towns there is not the wealth available to be spent by Government departments and major corporates that there is in Auckland and Wellington which can support a separate bar. The best advocates in the provinces are often found—not always but often found—in the firms of barristers and solicitors. Alf Jeavons was another one. Jim Guthrie is another man who comes to mind. 
But if that is not a good enough example let us think of our current Supreme Court. Amongst our leading jurists Justice Tipping would never have been a Queen’s Counsel. He is one of our leading judges in New Zealand and no one would dispute that. He was a partner in Wynn Williams. He could never have been a Queen’s Counsel but he should have been able to be made a Senior Counsel. Is that an exception? No it is not. How about Bruce Robertson on the Court of Appeal? He is another leading jurist in New Zealand. He was always a barrister and solicitor in a firm rather than a barrister sole. He could never be made a Queen’s Counsel but he should have been made a Senior Counsel. Members might think that that is only a couple of examples but I ask about Justice McGrath. Justice McGrath is another of our Supreme Court justices. He could never have been made a Queen’s Counsel while a Crown solicitor but he is on the Supreme Court. Before that he was the Solicitor-General. Earlier he was a Crown solicitor in the Crown solicitor firm in Wellington; he could never have been made a Queen’s Counsel in those days. What about our leading prosecutors in Auckland in Meredith Connell? They can never be made Queen’s Counsel. Members might think that those are only a few examples so I thought about Justice Blanchard. He is another of our leading jurists in New Zealand. He could never have been made a Queen’s Counsel because he too practised as a barrister and solicitor not as a barrister sole. That is what makes this such an absurd law. 
I feel as if I should be here with my fingerless gloves and in a black suit. No doubt everyone will be required to put on their wigs again when they go to court. I saw an article about that in the paper. Here we go; we are heading back— 
Lynne Pillay 
: Hair shirts. 
Hon DAVID PARKER 
: No they do not like hair shirts; they like silk—they like silk. But this is a nonsense. 
An exception is being made for people who were appointed during the recent period when we did have the ability to appoint Senior Counsel to continue in that role. So they have an exception for Jack Hodder—I do not know how many other people like Jack Hodder were made Senior Counsel—and so they should make exceptions because he is one of the most capable senior court advocates in the country as well. This is absurd law. 
What have other countries done? That might be illustrative. Are we following the trend or are we lurching to the past on our own? Well Australia as my colleague Charles Chauvel has already said except for one state has moved to Senior Counsel rather than Queen’s Counsel. Canada has done away with Queen’s Counsel completely—it sees that as an irrelevance an old-fashioned concept that has done its time—and so have most of the other countries of the Commonwealth. 
This is an absurd change. It is not based on principle. As I said I do not mind the status that attaches to senior people in a profession whether it concerns scientists being appointed to the Royal Society of New Zealand or senior lawyers being made Senior Counsel. I think recognition of excellence is a good thing; I believe in that. I just do not think that we should make artificial distinctions that are not made on the basis of quality but on the basis of some strange historical tradition inherited from the UK which has no relevance to New Zealand.  
I agree that we should celebrate our Senior Counsel. I agree that we should do that; I just do not think we should artificially exclude on some spurious basis those people whom I have listed who come from firms of barristers and solicitors. It is as if those people are inferior because they are in a firm of barristers and solicitors and as if they somehow have lower standards of ethics. What a nonsense! If they had lower standards of ethics they would be up before a disciplinary tribunal for breaching their duties to their clients. In fact the fact that these people have not been so proves that they are not doing anything wrong so this change is just an absolute nonsense; I cannot bring myself to vote for this bill even thought the second part of it is reasonably sensible as others have already said. 
I do not think there is much more to add really. I think the arguments in respect of this legislation are pretty simple. I think that Nathan Guy has been handed a bit of a hospital pass because the Attorney-General does not want to have to come to the Chamber and argue the case for the bill. He obviously likes the name Queen’s Counsel instead of Senior Counsel. I do not have anything particularly against the title other than the fact that it is an anachronism. The more important point of principle for me is this ridiculous return to the general position that those who are currently called Senior Counsel and are soon to be called again Queen’s Counsel can be appointed only if they are barristers sole rather than barristers in legal firms where they practise in a partnership of barristers and solicitors. 
Paul Quinn 
: Move a Supplementary Order Paper. 
Hon DAVID PARKER 
: We will do that and I invite the member to vote for it. Maybe reason will prevail on the other side of the House with members having heard the superior contributions from this side. With that piece of arrogance I would probably be entitled to be appointed a Queen’s Counsel but not a Senior Counsel so I should decline on that basis of course. I will not say anything more; the arguments have been well traversed by Charles Chauvel. 
Dr KENNEDY GRAHAM (Green) 
: 
 Allow me to offer a particularly humble contribution to this debate on the Lawyers and Conveyancers Amendment Bill and let me state from the outset that the Green Party has not decided its final policy towards this bill and will not do so at this first reading. We are prepared to vote it through to the Justice and Electoral Committee and listen to the argumentation. That position was not taken lightly but after some deliberation the fact is that we are sceptical of some of the provisions in the bill and have our reservations on others. We wish to approach the issue with an open mind and we are prepared to explore it with the Government and other parties in the select committee. 
The bill aims to achieve three things: first to restore the rank of Queen’s Counsel and alter various provisions surrounding the position; second to alter provisions pertaining to the holding of non-voting shares in an incorporated law firm; and third to require a power of attorney to be given to another person to conduct the work of a barrister sole during periods of bankruptcy. It is the first of these aims pertaining to Queen’s Counsel that requires exploration. There are three issues at stake. The first is the title of the provision; the second is the potential eligibility for applying; and the third is the method of choosing an applicant. The proposed amendments would reverse three changes made by the Labour Government in 2006. In short this present bill would restore the title of Queen’s Counsel which was dropped by the Labour Government in 2006; it would limit eligibility to barristers sole rather than the general legal profession which Labour allowed; and it would remove the selection panel and allow the Attorney-General to appoint in consultation with the Law Society and the Bar Association. 
Let us consider each one. Why would the Government seek to restore the title of Queen’s Counsel and why would it seek to limit eligibility? The stated reason to revert back to Queen’s Counsel is to restore what the Government claims is the reciprocal relationship between Queen’s Counsel and the Crown. There is an expectation that a Queen’s Counsel will sometimes take instructions to act on behalf of the Crown. The qualities that have marked the rank of Queen’s Counsel will be preserved—that is the Government will continue to have confidence in the rank to appoint Queen’s Counsel and to assist with work such as ministerial inquiries where a degree of independence from the executive is thought desirable. 
The point was advanced by Mr Power when in Opposition back in July 2003 that the role of a Queen’s Counsel as an independent member of the Bar is to hold an office that allows one to challenge authority. It allows a Queen’s Counsel to challenge Governments and those who conform to the rules of our society. This is done in a way that gives one a certain degree of independence from such conformity. The fact that the title Queen’s Counsel reflects a colonial heritage is Mr Power believed to be of secondary importance. What was more important he claimed was that the role of Senior Counsel would be too readily available to members of the legal profession who practise in large law firms that undertake substantial commercial work for the Government whether it is a department a State-owned enterprise or a Crown entity. They act on behalf of the Government in those roles. 
The idea of a Queen’s Counsel Mr Power believed was to lift the individual barrister above the mire so that one is able to take on an unpopular case that others might turn down. A Queen’s Counsel is able to hold without fear the views of a client whom all others in a society may view as having committed wrongs whether civil or criminal and they would do this well before a judge or jury makes such decisions. Mr Power urged against removing the last vestige of a barrister’s independence at that level and replacing it with a label that could be assigned to any senior lawyer in any firm. There are some 12000 or so lawyers in the profession in this country I think but only a few hundred barristers sole. This may be a reasonable argument. The aspects of independence and credibility that enable any counsel to take on criminal cases on behalf of a defendant who may be vilified before a trial begins is of critical importance to the integrity of the judicial process. The Green Party has always supported this principle. Yet we remain unconvinced that the very title Queen’s Counsel itself is an imperative. We could perhaps accept the argument that the role should be preserved to barristers sole for the reasons outlined; it does not necessarily follow that the title Queen’s Counsel itself has to remain. What is the problem with retaining the title Senior Counsel while restricting it to barristers sole? 
The third issue has to do with the appointments process. Before 2006 the Attorney-General consulted with the Law Society and the Bar Association over potential candidates. The 2006 Act has the Attorney-General being advised by a panel comprising the Solicitor-General and four individuals drawn from the Law Society and the Bar Association. This 2010 bill would restore the status quo ante on the grounds that the panel system is unnecessarily rigid and it would be preferable for the Attorney-General to have greater flexibility. The difference may not be great between the two arrangements although a panel’s advice might be more appropriate rather than Attorney-General flexibility in itself. 
It would be useful to consider this argumentation in more detail. Where for example is the evidence offered by the Government that the panel system is rigid? And what do we mean by flexibility? Reasonable flexibility to some may be perhaps excessive licence to others. As I understand it there has been only one round of appointments to the position of Senior Counsel since the 2006 Act came into force. In 2008 seven individuals were appointed one of whom was Sir Geoffrey Palmer and we have heard a lot tonight about Mr Jack Hodder. That is scarcely displaying unacceptable rigidity. 
On balance our preliminary thoughts are as follows. Firstly we would be disposed to retain the title Senior Counsel rather than revert to Queen’s Counsel. Secondly we are prepared to listen to a more detailed argument from the Government to restrict the role to barristers sole rather than to the legal profession generally but we acknowledge the arguments advanced by Labour’s David Parker tonight for keeping the potential pool broader than purely Queen’s Counsel. Finally we tend to favour retention of a panel to accord advice to the Attorney-General in the appointments process. These are our preliminary thoughts. Based on this preliminary approach we will consider supporting certain aspects of this bill but not all of them. We are however prepared to see the bill go through to select committee with a view to engaging the Government in a constructive dialogue on the merits of each of the three issues at stake. We shall therefore vote for the bill through to select committee while preserving our option to support or oppose the bill in due course. 
RAHUI KATENE (Maori Party—Te Tai Tonga) 
: 
 The Maori Party supports any legal changes that will ensure that barristers who generally are appointed to conduct court work on behalf of the Crown have the title of Queen’s Counsel restored. In many ways it is simply stating what is already the case: if one is working on behalf of the Crown then that work should be recognised appropriately with a title that indicates the responsibilities. 
The selection process appears to be reasonable with the New Zealand Law Society having substantial input in consultation with the Attorney-General. I recommend however that Te Hunga Roia Maori o Aotearoa should be approached with a view to hearing its perspectives from the point of view of tangata whenua. Te Hunga Roia Maori o Aotearoa maintains a database of Maori lawyers makes submissions on a range of policies and proposed legislation ensures representation of its members on selected committees and organises regular national hui. As such it is an ideal body to seek specialist advice on these changes. 
In many ways there is an inevitable connection to the constitutional review that the Maori Party has negotiated as part of our coalition arrangements with National. Although New Zealand has its own Supreme Court we are still a Commonwealth country and on admission we swear an Oath of Allegiance to the Queen. As such the constitutional relationship between the Treaty partners must be actively considered at every level of the administration of law and policy. At this first reading we are happy to support the Lawyers and Conveyancers Amendment Bill. We believe it could help maintain public confidence in the provision of legal services and conveyancing and by virtue of highlighting the reputation of the barristers involved will lead we hope to the protection of consumers of those services. 
KANWALJIT SINGH BAKSHI (National) 
: 
 It is my privilege to speak in support of the first reading of the Lawyers and Conveyancers Amendment Bill. The bill will make amendments to the provisions in the Lawyers and Conveyancers Act 2006 along with implementing the Government’s policy on Queen’s Counsel currently known as Senior Counsel. 
The Act changed the rank of Queen’s Counsel by renaming it Senior Counsel. It also relaxed the eligibility for the appointment of Senior Counsel to all lawyers specialising in advocacy regardless of the form of their practice. This bill is an important step in reinstating status and independence for the top rank of lawyers in New Zealand. The eligibility to be appointed as Queen’s Counsel will be restricted in most cases to barristers sole rather than lawyers in partnerships or firms. Amendment to the Lawyers and Conveyancers Act will simplify the selection process and appointment of Queen’s Counsel while providing for consultation with the New Zealand Law Society and the New Zealand Bar Association on proposed appointments. The amendment preserves the Governor-General’s power under the royal prerogative to appoint other lawyers as Queen’s Counsel from time to time in recognition of their contribution to the law. Queen’s Counsel should be able to advise and represent fearlessly and independently both law firms and clients who engage them without the potential conflict and pressure of working in a partnership or incorporated firm. 
We have listened carefully to the legal profession and this is a response to their concern that the title of Senior Counsel created in 2008 under the previous Government does not adequately reflect the nature and status of the rank. The title of Queen’s Counsel is instantly recognised as providing a certain standard of legal advice both among the New Zealand public and internationally. We are taking steps to protect the essential independence of the inner bar. The looser rules for eligibility as Senior Counsel introduced by the previous Government threatened to dilute the independence of our most senior advocates. I commend this bill to the House. 
LYNNE PILLAY (Labour) 
: 
 It will come as no surprise that we in Labour oppose the Lawyers and Conveyancers Amendment Bill. Talk about a major step backwards! 
Hon Steve Chadwick 
: Back to the days of the raj. 
LYNNE PILLAY 
: Exactly. 
I want to talk about some of the previous speakers. I acknowledge that I do not come from the law fraternity. However I hold very dear the principles of fairness and justice which underpin our justice system. I think both Charles Chauvel and David Parker spoke extremely eloquently and indeed very sensibly about—if I can quote Charles Chauvel—the “cultural cringe” of this bill and what it seeks to do. I put on record that I agree with absolutely everything my colleagues said. I acknowledge Kennedy Graham; I think he gave a very measured speech. He highlighted very clearly the challenges and what was inappropriate about this bill. 
I feel disappointed that good time will be used by this bill going to a select committee. For us in Labour it is as clear as the noses on our faces that this bill is inappropriate. The Greens are not quite so clear on that; they want to go through the arduous process of going to a select committee. I see time being spent on something that does not add value rather than the contrary though one may say that nothing this Government puts forward adds value. Is it not a bad thing to use up a lot of time on something quite irrelevant? The Green Party is perhaps being a little bit cynically clever by supporting this bill going to a select committee. 
I heard Paul Quinn talk earlier. Someone said to not quote Paul Quinn but I think if anyone in this House asked who is the most down-to-earth egalitarian grassroots salt of the earth guy we would have to say— 
Aaron Gilmore 
: Paul Quinn. 
LYNNE PILLAY 
: Paul Quinn—exactly. 
I heard that wonderful well-respected learned man talk about bestowing status honour and recognition. I know that every time we go to the Justice and Electoral Committee there is a silence. We all sit and wonder what Paul Quinn is going to say. I am not denigrating Chester Borrows; he is a good chair. But we know that no matter what from out of nowhere will come the wisdom of Paul Quinn. Paul Quinn—the natural down-to-earth egalitarian sort of guy—comes to this House— 
Aaron Gilmore 
: A gentleman. 
LYNNE PILLAY 
: Who said that? 
Aaron Gilmore 
: It was me. 
LYNNE PILLAY 
: Oh right. One of his colleagues said that he is a gentleman. Paul Quinn talked about the honours. He talked about bestowing status honour and recognition. I say that we in Labour believe in that. We believe it is very important to have recognition. It is very important to be honoured. It is very important to have status. But status should be recognised by people’s peers. 
We should look at New Zealand’s achievements and all the things that we have gone forward and achieved whether it is in nursing education literacy art medicine science or music. Nursing is my former occupation— 
Hon Steve Chadwick 
: We could be matrons! 
LYNNE PILLAY 
: Exactly. As my friend and colleague Steve Chadwick said why not bring back matrons and sisters in nursing? Why should we not be Sister Lynne Pillay and Matron Chadwick? That is what this bill is all about. It is all about a ridiculous status. We saw New Zealand—certainly not under this Government because this Government is going backwards but in the previous 9 years—going forward in social change and leading the way. What do we see under this Government? Whoops! We are going back to the future. 
Hon Steve Chadwick 
: Aspirational to go backwards. 
LYNNE PILLAY 
: Of course it is all very aspirational! If we look we see that the previous Government modernised the position of Queen’s Counsel in 2006 by changing it. Were we going out on a limb? Yes; we were leaders but we saw Canada Australia and even the United Kingdom going down exactly that path. So we were leaders but we were certainly in tune with progress with egalitarianism and with the rest of the world. And that is something we as Kiwis hold dear. But what happened? That lot gets into power and we look like a bunch of dorks. We look like a bunch of dorks overseas. 
After we have had a little chat in the Chamber and we go out and sit in those lobbies we see spittoons. What are we going to do—start spitting in the spittoons because it is all about tradition? I am all for history. History is a good thing. We feel pride in our history but there are times when think: “That is important in our history but it is time to progress.” It is not all about looking back; it is about human development and moving forward. 
“Moving forward” is a term that we hear— 
Hon Steve Chadwick 
: And stepping up! 
LYNNE PILLAY 
: “Stepping up” and “moving forward” are terms that we hear. In the instance of the title of Queen’s Counsel we did. We stepped up we moved forward and then—kapow—under the National Government we are going backwards. It is absolutely embarrassing. It is cringeworthy to feel proud of oneself to be in international circles saying “Oh yes you know we did do quite well. Oh yes we did do this that and the other.” and then this happens. It is really embarrassing. 
I cannot let the Maori Party off. I saw one of its members reading from their notes and absolutely endorsing colonialism in this country. I find that offensive. I hope that the Maori Party will listen to Hone. He will say: “Look you have done it again. You have got us into a position where we in the Maori Party are lying down and getting our tummies scratched by the National Government.” Is that worth it? There has to be a time when they question whether it is worth it. 
It will be no surprise to the House that along with my Labour colleagues I do not support this bill. I support a New Zealand that is proud that is a Pacific nation and that celebrates all of its achievements whether they are in nursing or elsewhere. We have two excellent registered nurses here one of whom is a midwife—Lynne Pillay and Steve Chadwick—who do not get a kick or a buzz out of being called matron and sister. Do members opposite know why? It is because we are proud Kiwis and we are proud of what our achievements are. 
Hon Nathan Guy 
: What’s their title? 
LYNNE PILLAY 
: All of those progressive people in Levin will be appalled at what Nathan Guy has been saying in this House. They will be thinking that for a young man he is so old-fashioned and so uncool. 
I hope that the Maori Party will use all of the concessions it has made to the National Government and that it will say: “Look guys this is ridiculous. We look like a bunch of dorks. Let’s just let this one go. Let’s go back to common sense. Let’s feel pride in our nation. Let’s feel pride about the achievements in our nation. Let’s stand on our feet and forget this cultural cringe.” Along with my colleagues I do not support this bill. It is a nonsense and it should not progress. Thank you. 
SANDRA GOUDIE (National—Coromandel) 
: 
 I am delighted to rise in support of the Lawyers and Conveyancers Amendment Bill. I also applaud the speech made by Paul Quinn who was rightly acknowledged as an egalitarian down-to-earth solid good guy—a gentleman—by the Opposition. He recognises the need for excellence and that everything should not be dumbed down to the lowest common denominator. This issue is not about fairness and justice it is not about colonialism it is not inappropriate and it is not cultural cringe as previous speakers would have us believe. 
This is about recognising excellence and giving people the opportunity to make the choice between an ordinary lawyer and a Queen’s Counsel—and there is a difference. One has a greater capability than the other. It may not necessarily always be the case that a lawyer cannot achieve what a Queen’s Counsel will achieve but we can be certain that in just about every case a Queen’s Counsel will give us the outcome that we seek. This has been demonstrated time and time again. This bill is not about cultural cringe. It is highly ignorant of the role of a Queen’s Counsel and of the Lawyers and Conveyancers Amendment Bill to suggest that. Once again the Opposition has not done its homework. At least the Green Party did its homework and had a contribution of some substance to make but it was not so with the Labour Opposition. 
I am delighted to see that we recognise the excellence and the different standards of lawyers we are able to engage to represent us. I for one always say that if one wants to win one’s case then one should employ a Queen’s Counsel. If people want their case over and done with in as short a time frame as possible they should employ a Queen’s Counsel. 
I had some friends who were going to challenge Environment Waikato on a policy and a regional statement. I suggested to them that they employ a Queen’s Counsel. They were of the same mind so they did. The Queen’s Counsel came from Dunedin. There were a number of submissions in favour of this particular policy and only one against which happened to be mine—no surprises there. I never spoke to the Queen’s Counsel until after the event but to my surprise he said that the first thing he did was read the one submission opposing the statement rather than all those for it. He felt that the substance was in that submission and he won the case. Once again it highlighted the capability of a Queen’s Counsel; we might take a risk if we employ an ordinary lawyer. 
I have no hesitation in supporting the bringing back of the position of Queen’s Counsel and acknowledging their excellence and different degree of capability. That is what this bill is about. We would not expect every single contestant at the Olympic Games to get a certificate would we? 
Aaron Gilmore 
: Labour would. 
SANDRA GOUDIE 
: Yes the Opposition would. Labour members do not like to see anybody achieve above the parapet. They just like to chop the heads off tall poppies. From the Opposition’s perspective it is about dumbing it down to the lowest common denominator. [ 
Interruption 
] Members opposite do not like it do they? This legislation is part of their legacy. It is the way in which they governed. I am delighted to support this bill. 
JACINDA ARDERN (Labour) 
: 
 I welcome the chance to follow the member Sandra Goudie because she issued a challenge during her speech and said that the Opposition needed to do its homework on the Lawyers and Conveyancers Amendment Bill. I ask the member what her homework demonstrated to her. The sense I got was that Sandra Goudie is under the impression that the Labour Government got rid of the idea of recognising excellence within the legal fraternity and that is absolutely untrue. She said that the bill was about recognising excellence and not dumbing down. She chose not to demonstrate why the title of Senior Counsel which Labour introduced did not recognise excellence or why the title of Senior Counsel was dumbing down. If anything I think the Government is dumbing down our system because it claims that people do not understand or recognise what Senior Counsel is. It claims we need to revert back to the old style of Queen’s Counsel because that is what people understand. If that is not dumbing down I do not know what is. If the member is unable to demonstrate to me that our system as it currently works does not recognise excellence then I am sorry but I do not believe that she has done her homework. 
Labour changed the appointment process and Labour changed the eligibility for appointees; we did not change the fact that certain members of the profession were duly recognised. That was something that of course we retained. Therefore we can only distil from this the fact that this bill is simply about reverting back to an antiquated system that I do not recognise as being part of my country. I do not recognise the idea that excellence can be attributed formally only if we attach some reference to the monarchy. I think that is an absolutely antiquated idea that quite frankly makes me feel embarrassed. 
Let us go through the history of some of this perhaps to demonstrate that some homework has been done. This bill reverses the changes Labour made to the Queen’s Counsel regime in 2006. That was after a lengthy process of consultation and deliberation. It was not done on a whim. We chose to modernise what was otherwise the quite ancient position of Queen’s Counsel by changing the name eligibility criteria and appointment process not the notion itself. 
I want to refer to one interjection that was made by the Hon Judith Collins during the contribution of one of our members. Her main argument seemed to be that we should revert back to the Queen’s Counsel title because Parliament’s history lay elsewhere and that we should recognise Parliament’s history. Well it is one thing to acknowledge one’s history and another to simply live in it. We have to recognise that as a country we are dynamic and we are moving forward in the same way that we acknowledge that the Treaty of Waitangi is a living document and a dynamic document and we continue to incorporate it as we move forward. We should not sit entrenched in history without acknowledging the changes that our country is undergoing. 
Personally as I have said I find it embarrassing that having gone through the process of introducing Senior Counsel which was quite a lengthy one we are now simply sliding backwards without a rational justification from the Government as to what it is about the current system that is not working. I have not heard one argument from the Government as to why the current system is not working except for the notion of an antiquated title attached to the monarch. 
If the Government will not canvass some of the ideas on why we are having this change I will canvass them and argue against them myself in a one-on-one debate given that the Government seems unwilling to engage. Internationally I do not think there is any precedent that we could possibly be following because Canada has already abolished the title and so have most of the Commonwealth nations. They probably find it quite laughable that New Zealand not only has only recently abolished it but is now jumping backwards soon after doing so. In fact all the Australian states bar one have moved to the title of Senior Counsel. 
I find it interesting that to be fair both sides of this House have continued to look for areas of commonality and harmonisation in our legal system with Australia. In fact the Trans-Tasman Proceedings Bill and several other bills that I have been involved with have all looked at trans-Tasman harmonisation. This makes sense given the close nature of our countries but then we go and do this. I question whether it is the one desperate attempt from the Government to demonstrate that we are catching up to Australia by leap-frogging through history over the top of them. Perhaps Government members might like to demonstrate that I am wrong in that regard. 
In desperation I looked at the regulatory impact statement to see whether it demonstrated any solid reasoning behind this legislation which was again left wanting. According to the regulatory impact statement the title of Senior Counsel “overlooks the historical link between Queen’s Counsel and the Crown.” So apparently we are doing this simply because we need a history lesson in law which I do not believe is an adequate justification for what the Government is doing. Historically the link between Queen’s Counsel and the Crown refers to the title’s ancient English origins. It indicated barristers who were selected to assist the Attorney-General in carrying out the Crown’s legal business. Therefore the modern Queen’s Counsel does not have the same kind of notion that it had when first created given that modern Queen’s Counsel when we had them acted for a wide variety of clients including private individuals and businesses. So we could even argue that the historical link the Government is looking to entrench no longer exists anyway in a practical sense. Again the bill is left wanting. In fact Paul Quinn made a contradiction when he said we needed to have this title to demonstrate the role of Queen’s Counsel but then demonstrated that Queen’s Counsel do much more than advise the Crown. So I am not left any the wiser as to why we are regressing having looked at some of the explanations from the Government. 
I will go over some of the other changes we have seen particularly to eligibility and the appointment process. David Parker canvassed well some of the issues to do with the Government’s decision to change the eligibility criteria and on the face of it does look like it is a form of elitism but I think it is even more bizarre than that. The Government believes that the “extension of eligibility to litigators in law firms failed to provide due recognition to the importance attributed to the independence of the office.” 
It was well said by Jack Hodder in his submission on the nature of Queen’s Counsel that the Government’s proposal assumes by default that we cannot have any trust or faith in those operating in our legal fraternity. It creates a two-tier perception of independence for some but not for others in the way that they operate. That is something he strongly rejected. He rejected the idea of any form of elitism within the legal fraternity as far as I can tell whether it is Queen’s Counsel or Senior Counsel but I think a lot of his arguments still hold when it comes to Queen’s Counsel in particular. It is Labour’s view that restricting the title to barristers sole grants a commercial advantage to a limited number of competitors in the legal services market. The fact that for nearly 90 years only a fraction of New Zealand’s advocates have been eligible to apply for the rank is a ridiculous situation for a country as small as New Zealand. But again I have to acknowledge that the Government has not taken into account New Zealand’s uniqueness in any sense whatsoever in this bill. 
In relation to the appointment process the Government has claimed that the current requirement for the appointment of a selection panel is unnecessarily rigid. So on the one hand Labour introduced too much openness and on the other hand we included an appointment process that was too rigid. I think that perhaps in the end Labour had the balance right and it is the Government that has demonstrated some confusion. It is unfortunate given that even Great Britain has a very open and transparent appointment process that the Government has said ours is too rigid yet has not given much prescription over the way the appointment process will work and in fact has left it to an Order in Council. I think that is inadequate given the calls from the legal fraternity to make the process much more open. 
As my colleagues have said this a backward step. I think it demonstrates the lack of faith that the Government has in our independence as a nation. It is an antiquated step and one I am very disappointed in. 
A party vote was called for on the question  
That the Lawyers and Conveyancers Amendment Bill be now read a first time. 
Ayes 76 
New Zealand National 58; Green Party 9; ACT New Zealand 4; Maori Party 4; United Future 1. 
Noes 43 
New Zealand Labour 42; Progressive 1. 
Bill read a first time. 
Hon NATHAN GUY (Associate Minister of Justice) 
: 
 I move  
That the Justice and Electoral Committee consider the Lawyers and Conveyancers Amendment Bill 
A party vote was called for on the question  
That the motion be agreed to. 
Ayes 76 
New Zealand National 58; Green Party 9; ACT New Zealand 4; Maori Party 4; United Future 1. 
Noes 43 
New Zealand Labour 42; Progressive 1. 
Motion agreed to.