O'Rourke Denis: Lawyers and Conveyancers Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
O'Rourke Denis: Lawyers and Conveyancers Amendment Bill — Second Reading 
[Sitting date: 25 September 2012. Volume:684;Page:5610. Text is incorporated into the Bound Volume.] 
DENIS O’ROURKE (NZ First) 
: 
 This Lawyers and Conveyancers Amendment Bill I think should be entitled the “Lawyers and Conveyancers (Back to the Past) Bill”. This takes us back to the pre-2006 days when QCs were appointed by some mysterious non-transparent process which was all too susceptible to inappropriate influences and even to political interference. For those and several other reasons that I will mention New Zealand First opposes this legislation. 
It is not about what is good for the legal profession and it is not about what is good for the community; what it is about is the National Party’s philosophy and ideology and some of us do not have too much regard for that. What it should be about is a system that is designed for the future and not for the past. New Zealand will be moving backwards with this legislation when all comparable jurisdictions have moved on. Those of course are especially Canada and most of the states of Australia although not all. 
I actually question whether it is really even necessary at all to award either Queen’s Counsel or Senior Counsel positions in this day and age. I think it is something of an anachronism and is no longer necessary during an era in which it is generally accepted that markets should be free of discriminatory and anti-competitive rules imposed by Government. That is actually what this does and it seems so out of place today. 
However if we are to persist with the ranking of legal practitioners in this way rather than relying on reputation and the market then it is very important to fairly define those members of the profession who have achieved a level of experience and competence in an area of expertise that should be officially acknowledged. This may assist in the effective operation of the legal system and the way lawyers organise themselves as a profession and it may assist with public confidence in the profession but it should not be about status or reward or cronyism in the way that too often it has been in the past and it should never be seen in the same way as the award of knighthoods and honours generally has been seen in the past—and probably still is. 
New Zealand is no longer since 1947 a British colony with all of its traditions and peculiarities. Our system must fit our needs and be relevant useful fair and transparent. This bill does not appear to be designed to do that and as I said before I question whether the entire thing is necessary at all. It appears to be designed to perpetuate elitism as distinct from meritism by which I mean the recognition of a status well earned instead of one simply awarded in the manner of some sort of honour or worse some sort of favour. 
Under Part 1 the term “Queen’s Counsel” is returned to replace “Senior Counsel”. This is unwise because the public can more readily understand the term “Senior Counsel” but have usually never understood the term “Queen’s Counsel” very well. Understandability is important for our legal system. People tended in the past to think the term “Queen’s Counsel” still meant a senior barrister who had the function of supporting the Attorney-General—as indeed it once did in the UK. But these days that is far from how it works. So “Senior Counsel” would be more descriptive and not have the connotations of some overhang from the old English legal system. 
The idea that there is in any real sense some operation of royal prerogative also needs to be put firmly out of the question. New Zealand needs a thoroughly modern legal system and it needs to be seen as such. None of this is assisted by the term “Queen’s Counsel” and “Senior Counsel”—if we need them at all—is certainly better. Nor is it assisted by the assertion that somehow the reversion to QCs will enhance the independence of the profession. If independence means independence from the Crown—meaning in effect the Government in this country—then the bill is more likely to do the opposite by restoring the old system under which the scope for political and other inappropriate influences is actually worse. 
Sitting suspended from 6 p.m. to 7.30 p.m. 
DENIS O’ROURKE 
: In the first part of my speech I questioned whether Queen’s Counsel or Senior Counsel as an institution was really called for in this country in this day and age. But to the extent that it was necessary I said that it should be done in a fair transparent and non-discriminatory way. 
I would like to move on now and say that concerning eligibility it is not clear to me why only barristers sole are favoured in this legislation. I do not see any reason why other practitioners should be excluded if they practise in law firms whether incorporated or not as indeed is allowed in comparable jurisdictions. Nor should candidates be excluded if they are barristers and solicitors. In New Zealand the position in that respect is quite different from what it is in the United Kingdom. 
However the strangest section I think is new section 118A(2) in clause 6 which substantially overrides the other sections in the legislation in respect of the royal prerogative. I think that is complete nonsense. It is exactly the kind of provision that we should avoid. The royal prerogative in New Zealand really means the Government prerogative and all of the disadvantages I mentioned earlier: unfairness discrimination anti-competitive behaviour and the scope for cronyism. It is a bad process which would be entrenched by this subsection. It is thoroughly objectionable and even if passed now will need to be repealed at a later time. 
The need for transparency has also not been achieved in this bill. This is not what modern best practice requires. These days people rightly insist on a transparent selection process for these kinds of things. This will be a closeted Government process that the public could not have full confidence in. 
New Zealand First therefore objects to the entire concept of this retrograde bill. It is misconceived and is a step back to the bad old days of the past. It is a barrier to the development of a modern legal system. It is devoid of proper process. It is unnecessarily restrictive and it is based on discrimination for no good reason when the proper objects to the extent they may be useful are negatived by eligibility rules and rules of practice. The object should be to define senior practitioners in specialist areas so that the public and other members of the profession are assisted in knowing to whom they may best go for specialist services. If that is not the objective then there is no reason for Queen’s Counsel—or Senior Counsel for that matter—at all. Any way you look at it this bill is bad law and should not be passed.