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:6516. Text is incorporated into the Bound Volume.] 
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.