Fairbrother Russell: Lawyers and Conveyancers Bill — Third Reading 
Fairbrother Russell: Lawyers and Conveyancers Bill — Third Reading 
[Volume:629;Page:1699] 
RUSSELL FAIRBROTHER (Labour) 
: 
 I support the passing of this bill and I commend the Minister who spoke on the third reading the Hon Phil Goff. The bill recognises his diligent work back in the 1990s his carrying it through as an Opposition MP and his having the foresight to see the defects in the Law Society’s structure as it was and the need to bring the Law Society into the 21st century. That the bill has taken so long is not a criticism of the Hon Phil Goff but a credit to his foresight and perseverance. 
On listening to the last speaker who sometimes passes himself off as an advocate for the free market I believe that it is ironic he said that the profession of conveyancers will never get off the ground. He argued that lawyers should not lose their right to convey and that the creation of a separate profession is doomed to fail. Of course the idea of a fidelity fund for conveyancers is to put them on the same footing as lawyers and if the fidelity fund is initially very low then that will give lawyers the trading advantage and they can capitalise on that. 
However if lawyers do not continue to meet or even rise to meet the market need for conveyancing that is both safe and economical then the conveyancing profession will grow. Perhaps that will be at the expense of some of those expensive firms in the high towers we see in the city and as that profession grows so will its fidelity fund. So there is a clear point of difference that the last speaker should have been welcoming rather than criticising. 
One matter in this bill that I heartily endorse relates to the position of Senior Counsel. I have listened to the submissions to the Justice and Electoral Committee and to the debates both at the select committee and in this House and they carry the same old matters that have plagued the profession for as long as I have been in it. They are the mystique about Queen’s Counsel the move to elitism rather than meritocracy and the belief that if one is obsequious and obedient and has ability one can rise in the profession but if one is fearless and outspoken and has ability one will be held back. 
We can see an example of that in Tony Ellis a barrister in Wellington who has developed the law of human rights in the courts of this country like no other lawyer before him. He is outspoken and he is not ashamed to take judges head-on but that is not a prescription for becoming a Queen’s Counsel. We saw recently the case of Robert Lithgow a skilled litigator in the criminal field previously employed on contract by the Crown Law Office and respected as an appellate lawyer who sheeted home some home truths about underlying presentations and presumptions in the Court of Appeal in a recent  
New Zealand Law Journal 
 article. Of course that will not endear him to the process of elevation to Queen’s Counsel. 
That is exactly what Kevin Ryan one of Auckland’s better-known criminal barristers and QCs has said. He fought for some 6 years to become a QC but was refused and refused. He went on TV on one of the Sunday documentary programmes wrote a book and was eventually made a QC in 1998. He said only 2½ years ago in 2003 that to become a QC was a question of who one knew who one did not know and whether one toed the party line. 
 Kevin Ryan who had trodden on the toes of the Law Society and had even sued law societies insisted the proposed new system should instead focus on how Senior Counsel are appointed. That point was picked up by Christine Grice the previous president who indicated that the appointment of Senior Counsel is a matter for the rules which are yet to be developed. 
But the argument—the folly of the vanity of Queen’s Counsel—is underscored if we look at our top court. The argument of those who criticise the abolition of Queen’s Counsel would have merit if only Queen’s Counsel held positions in our top court. Our Supreme Court has five judges. Until a few months ago three of them were not Queen’s Counsel. With the retirement of Sir Thomas Gault to run a golf club somewhere in Scotland Justice Anderson became the replacement Supreme Court judge and his appointment brought the number of Queen’s Counsel in that court to three. As I recall Sir Kenneth Keith was not a Queen’s Counsel either. So at one stage we had a Supreme Court that had only two Queen’s Counsel out of its five members. 
We go to the Court of Appeal which has six judges. In that court are two Queen’s Counsel and another four judges who are not Queen’s Counsel and we should look at the quality of those four. In the time available to me I can only touch upon this but we should look at Justice Susan Glazebrook who has an MA (Hons) First Class LLB (Hons) a Dip Bus (Finance) from Auckland University and a PhD from Oxford University in French legal history. She worked at some firm called Simpson Grierson was a member of commercial boards and Government advisory committees was the president of the Bar Association in 1998 and was appointed to the Court of Appeal in May 2002. She cannot be a Queen’s Counsel because she did not go to the independent Bar. 
Justice Hammond who was the Dean of Law at the University of Auckland and was appointed as a High Court judge in 1992 cannot be a Queen’s Counsel because he was not a member of the independent Bar. We go on to Justice Robertson who attended the University of Virginia and Otago University and was a partner in a Dunedin law firm—which should not be held against him—and a Harkness Fellow in 1972-73. He has been a judge of the High Court and president of the Law Commission. He could not be a Queen’s Counsel because he did not follow the independent Bar. 
So it is absolute vanity without substance to say that Queen’s Counsel add to the practice of law in New Zealand. The title of Senior Counsel however recognises that which is recognised at the Bar and any experienced litigators after sufficient recognition by judges will be referred to as a Senior Counsel without having to take the appellation by way of “SC” after their name because that is when it becomes a vanity rather than a merit recognition. 
We will have a process that I trust will be more open for the appointment of Senior Counsel. It is a good thing that it is based on merit and not the fallacy of the independent Bar. I say “the fallacy of the independent Bar” for this reason: there has been an argument advanced in this House—advanced in fact by some members of the independent Bar—that the New Zealand public needs an independent Bar to provide advice that is independent from the major law firms. 
Well it may need lawyers who are not part of major law firms to give independent advice but members should look at the way barristers’ practices are sold. They are sold not on the mum and dad clients or the clients’ litigation but on the connections those barristers have with law firms and that goodwill comes from the relationships they have with selected law firms. One attends Christmas parties and some Queen’s Counsel or some barristers are there—though not all. So the fallacy that says the independent Bar is truly independent and fights fearlessly is long on tradition and short on fact. 
In the short time available to me today I just want to endorse this bill. I want to recognise the good work of the Hon Phil Goff who has brought this bill to fruition and that of the Law Society. I also recognise the efforts of the Justice and Electoral Committee which worked very hard on the bill throughout the last term. This bill will become law and will convert into reality what has become the practice in New Zealand. 
Finally that reality is demonstrated most by the fact that many district law societies have been recognising the futility of continuing independently. Good law societies have been closing libraries for the last 8 years now because the move is towards centralisation one central body and specialisation which is the world of the 21st century. This bill takes lawyers into the 21st century. It is a very good bill. It will be a very fine Act of Parliament and I support it thoroughly.