Goff Phil: Lawyers and Conveyancers Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Goff Phil: Lawyers and Conveyancers Amendment Bill — Second Reading 
[Sitting date: 25 September 2012. Volume:684;Page:5612. Text is incorporated into the Bound Volume.] 
Hon PHIL GOFF (Labour—Mt Roskill) 
: 
 There are two parts to this bill the Lawyers and Conveyancers Amendment Bill one of which will be supported by the Opposition the other thoroughly opposed. Part 1 does three things. First of all it replaces the title Senior Counsel with Queen’s Counsel. That is an anachronism. It is not accurate it is not relevant and it has been dropped by most other countries. Secondly it reimposes the restriction on where you can appoint Senior Counsel from. Previously it was predominantly only from the bar—barristers sole. It was broadened out to include those working in law practices and other fields of law. This is a move backwards. Thirdly it reverses the transparency of the appointment process. For all three of those reasons we are opposed to the bill and I want to come back to them. 
Part 2 of the bill is largely concerned with practical measures and I think they are reasonably sensible. They include “grandchildren” in the definition of relatives who are able to be shareholders in an incorporated law firm. They ensure that control of an incorporated law firm is maintained by the lawyers and conveyancers who work in it. 
Hon David Parker 
: Grandchildren working a tax rort! 
Hon PHIL GOFF 
: Could well be! It provides a power of attorney becoming effective where a sole practitioner is an undischarged bankrupt and it clarifies that applications for a review of a decision by the standards committee have to be within 30 days. All of those are quite sensible moves and that is the sort of legislation that we as a responsible Opposition would support. 
But I want to go back to Part 1. Part 1 is unnecessary it is a retrograde step and there is no justification for moving in the way that the Government is intending to do. Let us take the first one and perhaps the least important of the three issues I mentioned before which is that once upon a time people who aspired to this title would be known as Queen’s Counsel. We changed that—in fact I changed that as Minister of Justice in drafting the law that was ultimately introduced and passed after I ceased to be the Minister. There were good reasons why we did it and we did it after consultation with the Law Society. For a start when the Government says there is a historical link between Queen’s Counsel and the past that is true. In the 15th the 16th and the 17th centuries this was an accurate title. If you were a Queen’s Counsel you were there to do the King or Queen’s bidding depending on who was on the throne at the time. But that changed in the 18th century. In the 18th century people who took up that role if I can use the words of the Bills Digest “ceased in any real sense to be counsel to the Crown and became simply a class of counsel who by eminence or favour had been given a rank superior to that of ordinary barristers.” That is from the Bills Digest. That sets it out absolutely accurately. 
These days Queen’s Counsel or Senior Counsel as they became known no longer operate for the Crown. They are not instructed by the Solicitor-General or by Crown solicitors in most cases. They represent a wide range of clients: private individuals and private businesses. So the term “Queen’s Counsel” ceased to be an accurate reflection of the sort of work they do. Why would you want to go back to the term “Queen’s Counsel”? In other mature Westminster-style democracies—in Australia in all but one state and in Canada—that title has been dropped and they are known as Senior Counsel. They are countries that are proud of their independence proud of their sovereignty and they want to have titles and laws that reflect the 21st century not the 16th century. This is a bit of snobbery on the part of the National Government. That is the only reason for it. There was no justification given and there was no justification given before the Justice and Electoral Committee apart from a group of people with a self-interest in the bar who say “Well if it’s restricted to us as barristers sole then we get the benefit of that title and we accrue the financial rewards from it.” Of course they would be in favour of that monopoly but that is to suggest that only people who are barristers sole have the ability and the excellence and the advocacy that would entitle them to carry such a title. So there is no argument for going back to a term “Queen’s Counsel” that is about three centuries out of date. 
 Secondly the bill moves to restrict appointments to the title of Senior Counsel or Queen’s Counsel as it might become to people who are barristers sole. Well the argument they make is that if you are a barrister sole you are more likely to be independent. When you examine what it actually means you find that there is absolutely no justification for the Government’s position on that. Actually the term “Queen’s Counsel” suggests that you have a relationship with the Crown which is the opposite of independence. But if you look at the commercial interests again there are strict rules governing all lawyers in terms of conflict of interest. They are bound by statute under the Lawyers and Conveyancers Act section 4(b) to be independent. Restricting the appointment of somebody as a Senior Counsel because they are a barrister sole because they are more likely to be independent is a nonsense when every lawyer is bound by the statute they are bound by the oath that they take and they are bound by the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008 requiring independence in the promotion of their client’s interests and requiring independence in terms of their professional responsibilities to the court. Jack Hodder made some comments to the select committee about that which I think are particularly pertinent. He also made the point that in the United Kingdom where this law originated in Canada and in Australia they all recruit Senior Counsel or Queen’s Counsel from across the board in terms of people working for law firms or people who are barristers sole. He said that surely if there was a problem with independence it would have emerged in one of those jurisdictions. Has there been any problem in those other mature democracies? No there have been no problems at all. 
This again is pure pretence by the National Government. This is legislation put forward without an ounce of evidence to back it up and that is no way to make legislation. Legislation should be evidence based. I searched the submissions and I searched the report of the select committee. There is no evidence to sustain the restriction of the position of Senior Counsel to people who are barristers sole. In fact the law even contradicts itself because it makes an exception that perhaps you can appoint somebody from a law firm if they are an extraordinary individual. Well if the Governor-General can appoint somebody who is not a barrister sole and that does not offend against independence then that undermines the Government’s own rationale in bringing forward this bill that takes us back to the past. 
The third section of the bill that I want to touch on is the selection process. I have got to say that before 2006 the process of appointment as Queen’s Counsel and now Senior Counsel was shrouded in secrecy. The Attorney-General had the responsibility. He or she could initiate that. They would consult with the Law Society or the Bar Association but in essence it was the Attorney-General making the decision. That led to concern and suspicion about political patronage. And by God would not you worry about political patronage today? Even New Zealand On Air is appointing the political chairman of the Prime Minister’s electorate. In foreign affairs they are taking away the professionals. They are appointing more and more people on a political ground—some of them obviously not up to the job and I will not go into that. But the fact of the matter is that in 2006 we made the law more transparent. We made the process more transparent. There was a panel consisting of the Solicitor-General two people from the Law Society and two people from the Bar Association. Everybody could see it it was above board and that was the way to go. I have got to say that in every respect this is a backwards movement in our legislation. It is unnecessary. It is unjustified. It is wrong. When Labour is re-elected it will go.