This article was originally published by the Auckland District Law Society.
Brian Keene KC, who was ADLS’ President from 2014 to 2016, also says the language used in parts of the paper, particularly around the constitutional status of the Treaty of Waitangi, suggests the outcome for many of the issues under review has been pre-determined. The consultation document, he says, has been masterminded by the government and is part of its plan for the cultural and constitutional transformation of New Zealand. Most worrying, however, is what he sees as the ongoing erosion of the rule of law. Keene says he can see links between many of the assumptions made in the consultation paper and moves by the government to elevate indigenous rights.
As an example, he cites an advertisement on the back of the latest issue of LawTalk, the quarterly magazine of the New Zealand Law Society (NZLS), which reads: “Can the rights of indigenous peoples be defined and defended by western law? What are the alternatives? It’s an ad for the University of Auckland Law School – Keene’s alma mater. The ad continues: “Challenge accepted thinking. Become an expert in public law at NZ’s leading law school.” Effectively, Keene says, the question is a challenge to the rule of law. When he read the ad, “my blood boiled, then it froze,” he says. “What they’ve actually done is to say the rule of law can be trumped by tribal rights.”
Nor is it clear exactly what sort of rights are at issue, or to whom they might apply. The question indicates the erosion of the rule of law, where all people and institutions are bound by and accountable to the same law, is happening already, he says. “If the law says you can’t do X but a tribe says ‘yes you can because it’s part of our culture’, who wins? It pre-supposes that Māori are entitled to separate treatment and rights which are not available to the world in general.
Keene says he expects a backlash from those who don’t share his views and accusations of racism. “I’m not a racist,” he says. And to those who point to the low representation of Māori and other ethnic minorities in the upper echelons of the law, Keene says the government makes QC and judicial appointments, not the profession.
According to the discussion document now out for consultation with the legal profession, the review is said to have been prompted by concerns about the complaints mechanism for lawyers, the culture and diversity of the profession, the regulator’s powers to deal with unacceptable behaviour and whether a membership body such as NZLS should also be responsible for admitting, regulating and disciplining lawyers or whether an independent regulator should be appointed.
The three-person review panel will also consider whether the ban on corporatisation for law firms should be abolished and non-lawyers be permitted to have financial stakes in law firms and whether firms could be multidisciplinary in a similar way to accounting firms. The panel is considering ways of honouring the Treaty of Waitangi “and the bicultural foundation of Aotearoa New Zealand”. As part of its remit, the panel will explore whether the core provisions of the Lawyers and Conveyancers Act 2006 should be revisited, including the purpose statement and “how the treaty should be incorporated into the Act and whether legislation should specify the objectives of the regulator”.
Keene takes issue with the assumptions behind the word “how”. In his view, the document should have asked “whether” the profession thought the treaty should be incorporated in the legislation and, if so, how that might be done. This assumption runs right through the document, he says. For example: “We are also interested in how the regulation and representation of lawyers in Aotearoa New Zealand can further incorporate tikanga and te reo Māori.”
The document also makes it clear that the panel’s terms of reference have been drawn up through a Treaty of Waitangi lens. “Te Tiriti o Waitangi is not just a discrete component of this review,” it says. Rather, it is woven through the entire discussion paper.
The document notes that s 4 of the Act requires, among other things, that lawyers uphold the rule of law and facilitate the administration of justice. The panel also wants to test whether there is a case for creating a new obligation for lawyers – that they uphold the constitutional principles of New Zealand “including the treaty, or whether the current rule of law obligations is broad enough to encompass this principle”.
Keene questions the need for this, along with the assumptions behind the discussion paper’s next comment – that adding this obligation could be “a positive modernising step for a profession that is increasingly recognising its bicultural foundations and places greater weight on cultural competency and training”. On this point, the panel says it welcomes lawyers’ views. Another example of an untested assumption is a section of the discussion document that references the Federation of Law Societies in Canada which, in 2021, published a list of guiding principles for fostering reconciliation.
As the discussion document puts it: “This statement indicates that lawyers have responsibilities to expand their knowledge and understanding of indigenous perspectives and knowledge and to take steps to ensure they are not contributing to the harms their indigenous clients experience when engaging with the justice system.” Keene says he’s not confident the review will end well. “The profession doesn’t have the balls to do anything other than say ‘this is going to be difficult, but the will of the government is the will of the government’.” ■
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