Worth Richard: Lawyers and Conveyancers Amendment Bill (No 2) — Second Reading 
Text is incorporated into the Bound Volume 
Worth Richard: Lawyers and Conveyancers Amendment Bill (No 2) — Second Reading 
[Sitting date: 24 July 2008. Volume:648;Page:17435. Text is incorporated into the Bound Volume.] 
Dr RICHARD WORTH (National) 
: 
 The Lawyers and Conveyancers Act is quite complex legislation and parts of it are drafted in quite a tortuous manner not particularly explicable to lawyers and—presumably—even more arcane for those who are not legally qualified. But this Lawyers and Conveyancers Amendment Bill (No 2) gives rise to a host of problems—problems that clearly will need to be addressed in the Committee stage of the bill.  
I think in essence there are probably three points. The first is that the public have been grossly misled by the scope of this amendment bill—a point I will develop in a moment. The second is that it has been suggested that this change which we are asked to make in the context of this bill is a technical change that was somehow omitted. It is in effect a “slip bill” correcting something that should have been corrected at the time when the Lawyers and Conveyancers Act—the substantive legislation—was in the course of passage. The third point is that this change is clearly contrary to the interest of consumers of legal services because of the breadth—possibly the unintended breadth—of the wording.  
I now come back to the first point which is all about the explanatory note when the bill was introduced. To some extent—and I accept this—that has been overtaken by the commentary on the bill as it has been reported from the Justice and Electoral Committee. But that is not the way that the judges tasked to interpret this legislation would necessarily see it. I refer to the third sentence of the explanatory note which states: “This amendment is designed to ensure that unions and employer associations can continue a long-standing practice of providing legal services to members of their organisations as part of the delivery of an integrated prevention and advice service”—and then the key words which I underscore and emphasise—“connected with employment matters.”  
The status of an explanatory note is the subject of some academic writing. It need not be academic because it is actually incredibly straightforward and robust. It is not more complicated than Standing Order 258 which makes it absolutely clear that every bill when it is introduced must contain a memorandum—known as an explanatory note—stating the policy that the bill seeks to achieve. The explanatory note usually does explain the individual provisions of the bill. It is an attempt as it were in non-legal or less formal terms to set out the purport of the bill that has been presented to the House and as a matter of law it is regarded as a very important indicator of the meaning of the language used in the bill and also sometimes in the subsequent Act.  
The explanatory note of a Government bill such as the Lawyers and Conveyancers Amendment Bill (No 2) is prepared by the Parliamentary Counsel Office and the department principally responsible for promoting the legislation. It is absolutely clear that in all cases an explanatory note must be drafted in factual and not argumentative terms. It is also very clear that if the Minister in charge of the bill does become aware of a factual error in the explanatory note the House should be informed and a correction tabled. That should have been done in this case because the Minister was on notice that what was in the explanatory note of the bill—that the bill was restricted in the way I have described—was not carried forward into the drafting itself. That is most unsatisfactory. It is highly misleading. That is the first point I wanted to make.  
The second point is that I am not at the moment a member of the Justice and Electoral Committee but by chance I was there when the chairman Lynne Pillay proffered to those listening members of that select committee an explanation of what the bill was all about. She said: “Oh it’s just technical really and it’s just to correct an oversight in the Lawyers and Conveyancers Act.” That was completely wrong. In fact when the Lawyers and Conveyancers Act was being looked at the issue that the Minister spoke about was very critically looked at by the Justice and Electoral Committee which came to the view that this change should not be made.  
The select committee was right in focus because a number of entities including the Law Society had made comments about the way the legislation was worded. A very clear submission from the New Zealand Council of Trade Unions was also made on this very issue. In the introduction provision the council’s submission deals with one aspect of the bill relating to areas of reserved work that only a lawyer or a conveyancing practitioner may do. The submission stated: “Our concerns lie with the effect of provisions that capture and prohibit activities that are central to the purpose of unions in the protection and enforcement of members’ entitlements.”  
The situation that the bill sets out to address is not new. It was not created by the passage of the Lawyers and Conveyancers Act. Under the Law Practitioners Act 1982 it was simply not lawful for non-lawyers to provide legal services to the public or to non-lawyer members which is the issue directly here by employing lawyers to provide that service. So there are legitimately real concerns about this amendment bill to be resolved in the Committee stage. The first is an issue of principle and the second is the width of the provisions proposed in the bill as at present drafted.  
How appropriate is it that these union organisations and employer organisations have a freedom to offer a substantial range of legal services? Viewed from a consumer perspective I say it is wholly wrong. It should not be the case that these entities can give advice on drink-driving charges. They should not be involved in drafting family trusts. They should not be involved in tax advice on business structures. They should not be involved in advice on leasing proposals for personal investment.  
It was made very clear in the National Party’s minority report on the Lawyers and Conveyancers Act that the party was concerned about the drafting of these provisions in the substantive bill. In fact under a heading of “Reserved Areas of Work” it stated that National would seek rewriting of the provisions to make their intent more clear and to permit for example taxation lawyers to practise in accounting firms. I hope that an opportunity will be taken in the Committee stage to rework these provisions to make it quite clear what the scope of the activity of employer associations and union organisations should be. They should be starkly limited and they are not.  
I guess also there is a very significant issue around the role of in-house lawyers that has an ethical base. If an in-house lawyer as part of his or her duties to his or her employer provides legal services to anyone other than the employer the contract for the provision of those services is between the employer a non-lawyer which in this case is the employers’ association or the union and the client which in this case is the member—rather than between the lawyer and the client. The provision of legal services by non-lawyer organisations is forbidden under both the Law Practitioners Act and the Lawyers and Conveyancers Act.  
I have said enough at this point to identify the key concerns. My hope is that with some amendments which I trust will be forthcoming from parties in this House we can fix up this mess.