Engagement, protection of fundamental principles at top of the list for A-G
A crisp, cold morning greeted Canterbury practitioners at the recent ADLS-hosted breakfast with the Attorney-General in Christchurch. But inside The George, the welcome was warm and personal as attendees caught up with each other and settled in for an update on what ADLS has been doing in the region, followed by insights from the Hon Chris Finlayson QC on the theme of the day, “modernisation”.
ADLS President Brian Keene QC opened proceedings by stressing the importance ADLS places on collegiality and the exchange of information with our members and with relevant bodies. With one third of members now hailing from outside the traditional Auckland area, Canterbury-based practitioners make up the largest group outside of Auckland.
“We wanted not to just say we are going to be a national organisation, but we wanted to do it,” said Mr Keene.
And ADLS continues to be committed to providing services to the profession across the country, and to creatively “get stuff done” in ways which might not always occur to other organisations.
Modernisation and the lawyers of tomorrow
A key part of ADLS’s efforts in the Canterbury area (as indeed has been the case nationwide) is “getting our demographics right”, by engaging with the young up-and-comers of the legal profession and those in their final stages of study.
Recent efforts have seen ADLS supporting Dean Ursula Cheer and the University of Canterbury in the establishment of a “buddy scheme”, whereby those coming out of university are paired up with mentors in the early stages of practice. Feedback from both mentors and mentees in the Auckland pilot of the scheme has been very positive, and a similar response is expected as the programme takes off in Christchurch and other major centres. Similarly, ADLS’s work experience programme has kicked off down south, encouraging Christchurch firms and practitioners to give law students the chance to “see for themselves the excitement that a law firm can offer”. Hopefully, this will help “attract and hold” our best and brightest within the legal profession, rather than seeing them lost to an alternate career path.
Another key focus for ADLS has been the provision of modernised services to our members, a recent example being a substantial upgrade to ADLS’s WebForms platform (with more innovations ongoing) to enable our 200-plus standardised forms to be used even more easily and efficiently. Similarly, ADLS’s pioneering CPD webinars and livestreaming offerings continue to attract large audiences and enable learning at a distance, with constant improvements to the service making the virtual experience as close as possible to being there in person.
“We’re about innovation, trying to build the profession from the inside and getting members to join with us in making a real difference,” said Mr Keene, prompting Mr Finlayson to quip: “I don’t like monopolies, so I think it is fantastic that ADLS is playing such an active role in the legal community!”
Vexatious litigants, contempt and specialist panels
Sticking with the “modernisation” theme, the Attorney-General went on to discuss some areas of our law “which have been weighing upon me in particular” and where he sees a need for modernisation – vexatious litigants and the issue of contempt.
“Sometimes you can amend legislation, but doing too much amending can undermine the infrastructure of an Act – sometimes it needs a fundamental re-write,” he said. And in his view, such a re-write was needed in the case of the Judicature Modernisation Bill, which is coming up in the next session of Parliament. “I was very keen to see something done about the courts legislation, particularly in relation to vexatious litigants – the existing tests in the Judicature Act don’t seem to be dealing with the issue.”
In terms of contempt, the Attorney-General lamented, “In a world of instant social communication, no one seems to understand the boundaries anymore.” While reform in this area is “still a work in progress”, the Law Commission is now on top of it and the Attorney-General hopes that there will be some movement in the not too distant future.
Mr Finlayson also touched on the hot button topic of proposed specialist judicial panels within the court system. While acknowledging that “we have to approach this carefully” and the need to “avoid overspecialisation”, in his view a panel system with some degree of specialisation would be “no bad thing”.
Fundamental principles – separation of powers and legal professional privilege
The Attorney-General concluded by asking the profession to stand with him against what he sees as incremental erosions of two key legal principles – the separation of powers and legal professional privilege. He has been “very troubled” about certain recent developments affecting what should be “unchanging principles that we should not lose sight of, even as we adapt to changing times around us”.
Despite every lawyer learning about the distinction between the various branches of government in their earliest days at law school, Mr Finlayson’s experience is that tensions and difficulties with the separation of powers “come up over and over again”. “The theory’s great, but the application sometimes gets lost – it is not particularly well understood in practice,” he says.
“We need to be respectful of the different branches and their separate roles, and we need to make sure that these fundamental points are referred back to time and time again. It’s very important that the role of the judiciary is not undermined in the quest for efficiency.”
Similarly, legal professional privilege is also very close to his heart. While the term “privilege” can mislead and sound as if it is there for the benefit of the lawyer, as Mr Finlayson says, “We all know what it’s designed for – to protect the individual’s right to operate within the legal system.”
“People must be able to consult their lawyer in confidence, and know that what they say is not going to be revealed without their consent. It is more than an ordinary rule of evidence – it is a fundamental condition for the operation of justice”.
And privilege does not just apply to ordinary individual client/lawyer relationships – it also applies in the context of governmental clients and lawyers. The Attorney-General maintains that it is just as important for Crown lawyers to be able to stand up to Ministers and give them full and frank advice, and for the Ministers to be able to speak freely to the lawyers advising them.
He has been particularly troubled by a challenge by the Chief Ombudsman in relation to the release (under the Official Information Act) to a senior health researcher of legal opinions prepared for the Ministry of Health. The Ombudsman distinguished between legal advice in the context of contested proceedings and advice to an agency on the interpretation of a particular term, considering that, in the latter case, public interest in favour of disclosure outweighed the privilege.
The Attorney-General “strongly disagrees” with what he sees as a “downgrading of what legal professional privilege is supposed to be”. Although the Official Information Act “has done much to promote transparency, which is a good thing”, Mr Finlayson maintains that there is “a line in the sand beyond which we should not go”, and reserves the right to refuse disclosure by Order in Council in future if need be.
“The point of privilege is not to provide protection in sensitive cases alone, but more widely to avoid clients feeling like they can’t make full disclosure to their legal advisers.”
The Attorney-General encouraged ADLS and the legal profession generally to speak out on these important questions.
“The submissions of the legal profession are of utmost value – it is very important to us that we get the input of the legal profession on law reform and these fundamental principles, and I am always very happy to engage on these questions with ADLS.”