Chauvel Charles: Lawyers and Conveyancers Amendment Bill — Second Reading 
Text is incorporated into the Bound Volume 
Chauvel Charles: Lawyers and Conveyancers Amendment Bill — Second Reading 
[Sitting date: 25 September 2012. Volume:684;Page:5602. Text is incorporated into the Bound Volume.] 
CHARLES CHAUVEL (Labour) 
: 
 The Minister of Justice thanked the Justice and Electoral Committee for its work on this Lawyers and Conveyancers Amendment Bill and that is good of her but most of that work was completed over 2 years ago. Most of the members of the committee who served on it who heard the submissions that she mentioned are now—well looking at the list—either not in the House members of the executive or members of other committees. So— 
Hon Jo Goodhew 
: It doesn’t make them any less worthy Mr Chauvel. 
CHARLES CHAUVEL 
: We have just had an interjection from Jo Goodhew saying that none of that matters. Actually it matters for this reason Ms Goodhew—it matters for this reason. This Government needs to actually take justice legislation seriously not progress it through with the leisurely pace that we are seeing. It might be helpful to have people who actually heard the evidence speaking on the bill rather than what I apprehend will happen tonight. But that is all right because we will just see the Government members reading the notes from their research unit as we always do rather than actually debating the merits of this bill on the basis of the evidence they heard. That would actually be something that would be a novel experience for this House and probably quite a good experience; never mind that we are not going to get it tonight. 
The bill is divided into two parts. The Minister touched very briefly in her concluding comments on the second part of the bill which actually does contain some sensible amendments. She said she was going to move a Supplementary Order Paper to those parts. It will be interesting to have a look at what the contents of that Supplementary Order Paper will be. But the problem with this bill is that it will do what it does in Part 1 and that is to restore the title of Queen’s Counsel to our most senior lawyers. The last Labour Government ended a number of our links to our colonial past. We did away with the Judicial Committee of the Privy Council appeals. We did away with the award of knighthoods and other honours of British origin and we did away with the annual practice clouded in obscurity of appointing certain senior lawyers to the rank of Queen’s Counsel. 
In respect of that last reform what we did was we opened up the process. We made it very transparent. We said that it was not just senior barristers practising at the Bar who could apply for this status but any lawyer practising anywhere in the profession and we said that rather than call them Queen’s Counsel we would follow the practice of Canada Australia the rest of the Commonwealth and particularly those states in Australia with which we are trying to harmonise our legal practice and we would refer to these most eminent lawyers from now on as Senior Counsel. One round of appointments to Senior Counsel rank occurred under the Labour Government and then there were no more appointments. There have been no appointments to that rank under this Government since it took office. 
Why does that matter? Well the Canterbury earthquake is a big part of that. There has been a lot of opinion work for insurers and reinsurers. There has been a lot of litigation. One of the conditions that international commercial organisations often put on the qualifications of those who ought to lead such opinion work or lead such litigation is that they should hold the rank of Senior Counsel or the equivalent. We have seen New Zealand lawyers over the last 4 or 5 years miss out on work that they ought to be doing which they are qualified to do simply because the Attorney-General has not felt moved to exercise his powers under the Lawyers and Conveyancers Act to appoint Senior Counsel because he is determined and his ministerial colleagues are determined that we will revert to this archaic title of Queen’s Counsel. We oppose that and I just want to run through some of the reasons for that opposition. 
There are three reasons why the Government says that we should do this. The first is that it speaks of a historical link that we should preserve. The restoration of the title of Queen’s Counsel is said to recognise that historical link between certain senior lawyers and the Crown. It is true that in ancient times in England the rank of Queen’s Counsel denoted the existence of a barrister who would work solely for the Crown and not necessarily for reward. But for many centuries now and in all jurisdictions to which the rank has spread Queen’s Counsel have acted for a wide variety of clients including private individuals corporates and quasi-government organisations. Most QCs who practise in New Zealand today have acted only occasionally if ever for the Government itself. If they do they do it on instruction from the Crown solicitors because they are members of prosecuting panels in the big cities or on instruction from the Solicitor-General as chief executive of the Crown Law Office. The original notion of a special relationship between the Queen and Queen’s Counsel is simply redundant. 
Some submitters who did support reinstatement of the rank argued that while New Zealand continues to recognise the Queen as head of State and to award royal honours such as knighthoods it is logical that the rank should be retained but that is not the practice in Australia. We are trying to harmonise as much as possible on a commercial basis our legal practice and profession with Australia’s. Why would we retain this anomaly when Australia has done away with it many years ago? 
The second reason that is advanced for going back to the old archaic title of Queen’s Counsel is that this will somehow enhance the independence of the legal profession. It is never made quite clear when this argument is advanced how this will occur or where the threat to the independence of the legal profession comes from. If it comes from the Government then the assertion would actually contradict the first argument in favour of going back—that there is some sort of special link between the Crown and Queen’s Counsel. Well either there is a special link or they are independent. You cannot actually have it both ways. If the threat to independence comes from commercial interests then what we should remind ourselves is that we have one of the best regulated and most ethical legal professions in the Commonwealth probably in the common-law world. Every barrister and solicitor who practises in New Zealand is subject to very very strict rules of conduct that are enforced both by the High Court because all lawyers are officers of the court and by the New Zealand Law Society to which lawyers generally belong and which operates professional discipline organisational requirements. 
Then there is this odd monopoly that having this title actually gives to certain senior lawyers. What Judith Collins proposes is to take back the title and give it only to lawyers who choose to be barristers and practise at the Bar. So you have to uproot yourself from your law firm you have to go to the Bar and you have to hope that under some new but archaic appointments process the nod will somehow be given and you will become a Queen’s Counsel. Well the third reason for opposing it is that we opened up the selection process. We made it transparent. Everybody could understand how it was possible to become a Senior Counsel and it was possible to do that whether you were in a firm at the Bar in Government service or practising elsewhere. This move would close the appointments procedures back up. We would go back to the nod and the wink and all the mystery and the club of the single-gendered monochromatic appointments that we have seen in the past. 
This is a great leap backwards. It is largely symbolic but it will have some important commercial side effects that I have tried to outline in my speech. I think that it will be interesting to see how Peter Dunne a republican votes in respect of this legislation. It will certainly be interesting to me how the Maori Party which has negotiated a constitutional review with the current Government—which this move seems to me to cut straight across—will vote in respect of this legislation. I certainly hope that sanity will prevail and that there will be a careful consideration of whether this is really the direction that we want to take New Zealand’s legal profession in. I for one do not want to see it and I want to put on the record now that this is one of the moves that the next Labour-led Government will make it a priority to reverse.