Ardern Jacinda: Lawyers and Conveyancers Amendment Bill — First Reading 
Ardern Jacinda: Lawyers and Conveyancers Amendment Bill — First Reading 
[Volume:667;Page:14481] 
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.