Category: New Zealand

Questions for the Law Society about sexual harassment in law firms

Posted on by Editor 2 Comments

Wellington, New Zealand - Supreme Court building - inside the court room by Buffy May

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

It’s possible the last time the legal profession was under an intense spotlight was in the 1990s due to a string of fraud cases. The most memorable involved two partners of law firm Renshaw Edwards who were both, separately and unknown to each other, stealing money from the firm’s clients. The New Zealand Law Society had a fund to reimburse theft by lawyers but not on that scale. So the Law Society intervened and raised a levy from around 2,800 principals of law firms, mainly law firm partners, of $10,000 each. This contribution reflected and reminded senior lawyers of their obligation to conduct themselves with integrity, ensure their colleagues act with integrity, and to self-regulate. Recent stories of sexual misconduct at law firms gives the impression that those lessons, and integrity in general, have been left at the law firm door.

The lessons that need to be relearned now are similar, although obviously the impact on the people involved is wildly different between fraud and sexual misconduct. Graeme Hunt, in a book about fraud in New Zealand wrote that at first there was a lack of understanding about fraud, difficulty of obtaining sufficient evidence to lead to a conviction, and that “many companies were unwilling to do more than sack offending employees”. Hunt “argued that ‘sheltered’ professions (medicine and law in particular) are less likely to identify wrongdoing among their members than those professions that have to compete fiercely in the marketplace.” NBR’s Jock Anderson similarly identified the lack of fraud prosecutions before the 1970s as due to the “closed nature of the legal profession rather than the [good] behaviour of practitioners” saying matters “were kept in-house and charges were very rarely put”. But if the lessons are the same, there’s hope. Anderson says things “changed in the 1970s. It was a more open period for investigative journalism and for people to challenge authority”.

The Law Society and sexual misconduct

The reports by Newsroom of incidents at Russell McVeagh weren’t the first time sexual harassment in law firms had been recently brought to the Law Society’s attention. In November 2017 a lawyer wrote an anonymous article for LawTalk, the New Zealand Law Society’s magazine, describing two incidents of sexual harassment she experienced as a young lawyer. The Law Society responded with a statement titled “Law Society targets sexual harassment in the workplace” but it was empty of any concrete actions being taken to target sexual harassment, and ended stating “as a profession we must also look at ourselves and agree that any harassment in our workplaces is absolutely unacceptable”.

The latest issue of LawTalk contained a number of articles about sexual harassment in the legal profession. Tim Jones, Auckland Vice-President of the New Zealand Law Society, wrote in the issue’s ‘from the Law Society’ editorial that the “Society receives very few complaints of harassment in the workplace”. Notably missing from the list of conduct the New Zealand Lawyers & Conveyancers Disciplinary Tribunal has typically found to be misconduct is “discrimination, sexual harassment and assault”.

The issue of LawTalk also notably publicly names John Revans Eichelbaum for “failing to treat another lawyer [opposing counsel] with courtesy and respect” by, among other things, asking her to bend over. Former lawyer Olivia Wensley told the NZ Herald that she has knowledge of the complaint and the report published by the Law Society had been “sanitised”.

Sexual misconduct in law firms

Recent media and online reports have confirmed that serious sexual harassment (including harassment involving physical contact), bullying of employees and colleagues, and alcohol abuse is occurring in law firms across the country and remains underreported. This should be the subject of deep reflection and action by all law firms.

In many cases the law firm partners became aware of the conduct, but failed to protect their employees. There’s a hesitation to report misconduct of fellow business partners to the Law Society, in spite of their legal and ethical obligations as lawyers to do so. When faced with the prospect of protecting a partner who might be earning the firm $1 million of fees annually and protecting a solicitor who might be earning the firm $200,000 of fees annually the partner is often shielded from meaningful consequences for their actions. Sometimes human resources staff are aware of the conduct, but they are conflicted working for the partnership and managing a partner’s misconduct. Often there is a severe gender imbalance in these partnerships.

There is sometimes crossover between law firms this type of conduct occurs in and firms nominated for “Employer of Choice” awards, which raises the question of what policies and procedures should be in place and what culture should exist for a law firm to be nominated as a “good employer”.

Partners that eventually leave firms because of this sort of conduct often go on to work at other firms, perhaps due to inadequate reference information being sought or provided, or as independent barristers in New Zealand.

What’s the price of silence?

Complainants who leave the firm and pursue a claim under employment or human rights law often have their claims settled, with settlement amounts ranging from $25,000 to $100,000, including costs. Those agreements are generally subject to strict confidentiality clauses that largely protect the law firm and person or people accused of sexual misconduct, even explicitly prohibiting contact with the media and including prewritten media statements to give if the former employee is approached for comment.

The Law Society’s (lack of) response

Last Wednesday I emailed the Law Society several written questions about their approach to sexual and other harassment. They have not responded to those questions, although they had previously instructed a lawyer to send me a warning letter.

Those questions, in an edited form, are listed below.

Questions for the Law Society

Law Society training on sexual misconduct and bullying

1. Have the staff/tribunal/committee members involved in considering sexual misconduct complaints received any special training? If not, why not?

2. Does the Law Society collect statistics on sexual misconduct and workplace bullying complaints? If not, why not?

3. Does the Law Society survey the profession on sexual misconduct and workplace bullying? If not, why not? [The Law Society wrote in their latest issue of LawTalk that they are preparing a national survey on the workplace culture of the New Zealand legal profession. Will that survey be statistically robust?]

Help for practitioners

4. Does the Law Society assist practitioners to access professional mental health support and advice in relation to their wellbeing, alcohol use, inappropriate behaviours (for example sexual harassment and bullying), and when they are facing serious Law Society complaints? If not, why not?

5. What support does the Law Society provide to law firm employees, especially junior practitioners, who are being bullied including being turned down for promotion because they challenge an unsafe working environment?

Criminal conduct

6. Is conduct that could be considered as criminal conduct referred to the Police for investigation when it comes to the Law Society’s attention? If not, why not?

Harm reduction

7. If a practitioner has employees and is accused of serious sexual misconduct or bullying, does the Law Society consider suspending that practitioner pending the completion of their investigation?

8. How often does the Law Society use supervision and law firm management professional development to address misconduct like this?

9. What is the Law Society doing to stop predatory behaviours (often from partners or senior employees) at the source, for example compulsory programmes on appropriate relationships and conduct, rather than placing the onus on employees to report or otherwise manage other people’s misconduct?

Other employees

9. Are other employees involved in conduct complained about offered appropriate support (for example access to Employee Assistance Programme-type support and independent legal advice, and are they given the opportunity to engage in the Law Society complaints process? If not, why not?

10. Does the Law Society look at the whole firm when addressing complaints, including whether human resources staff and partners have appropriate training and direction, especially to deal with the misconduct of a partner?

11. Will the Law Society, of its own motion, pursue practitioners, including partners, who know of but fail to report matters constituting misconduct to the Law Society?

Career and family

12. What is the Law Society doing to support lawyers wanting to have a career and raise children?

Confidentiality clauses in settlement agreements

13. Does the Law Society support the inclusion of confidentiality clauses for the benefit of the law firm into law firm employees’ settlement agreements when the settlement relates to sexual harassment and/or assault by practitioners?

14. Are the use of these clauses for the benefit of the law firm appropriate conduct from the partnership, especially when a practitioner is the perpetrator?

Stopping misconduct

15. What does the Law Society do to prevent similar conduct from recurring when addressing consequences for practitioners, for example publication of names or completion of sexual misconduct programmes?

[On 29 March 2018, a day after these questions were sent, the Law Society published details of an upheld complaint regarding sexual harassment of opposing counsel.]

16. Does the Law Society monitor law firms and practitioners involved in complaints to ensure action is taken to prevent misconduct occurring again?

Image credit: Buffy May, Wellington Supreme Court building, CC BY-SA 2.0.

Posted in Law, New Zealand

Girls, Not Brides

Posted on by Matt Taylor 13 Comments

Girls Not Brides - end child marriage now graphic

My submission on the Marriage (Court Consent to Marriage of Minors) Amendment Bill:

Thank you for the opportunity to submit on this Bill.

I agree that this Bill is a good first step, however it does not go far enough and should be amended to ban all forms of child marriage and civil unions. The legal minimum age of marriage and civil union should be 18 with no exceptions. This includes no exceptions due to judicial or parental consent.

I study a Bachelor of Arts (Psychology) and a Bachelor of Laws.

As a young person, I think it is important that the voice of youth is taken into account during the Select Committee process at all times, but especially when issues relating to young people are being debated and discussed.

We set legal ages for many activities. When someone is 16 they can’t vote, they can’t get their full driver licence, they can’t buy alcohol or cigarettes, they can’t apply for a credit card, they can’t buy Instant Kiwi scratchies, and they can’t gamble in a casino. We set these limits because we are conscious of the development stages of children.

A non-government organisation’s name states this bluntly. These are Girls, Not Brides. Their ‘Role of Parliamentarians’ report is attached.

Sustainable Development Goals

New Zealand has agreed to the Sustainable Development Goals. To achieve target 5.3 this Bill must be amended to ban all marriage for children under 18, with no exceptions.

The Sustainable Development Goals are the successor of the Millennium Development Goals and are intended to determine national and international development priorities up to 2030. There are 17 goals and 169 targets and one of them relates to child marriage.

All United Nations member states pledged their support toward achieving target 5.3, which is to end child marriage. Ending child marriage will contribute to achieving eight of the Sustainable Development Goals.

To be clear: New Zealand will not end child marriage by 2030 unless the practice is completely prohibited – this means there can be no loopholes such as obtaining judicial approval.

This Bill is the perfect opportunity to implement target 5.3 through an amendment that will prohibit child marriage entirely.

The Rights of the Child

The Committee for the Convention on the Rights of the Child recommends that the minimum age of marriage be 18 years.

Child marriage affects the rights of children, especially girls’ right to health, education, equality, and the right to live free from violence and exploitation.

Child marriage increases health risks.

For girls it encourages the start of sexual activity when they are still developing and when they might not know as much about their rights and sexual and reproductive health. Girls in a child marriage are forced to negotiate safe, consensual sex with usually much older husbands.

They are under social pressure to prove their fertility and so are more likely to experience early, unplanned and frequent pregnancies with an increased risk of pregnancy-related issues.

Girls married before 18 are more likely to experience domestic violence than unmarried peers and to report that their first sexual experience was forced. Child brides more likely to believe that a man is sometimes justified in beating his wife compared to women who marry later.

A rubber-stamping process

My preference is for this Bill to be strengthened so that no marriages of children under 18 occur.

However, if the judicial consent avenue is taken the process needs to be strengthened.

  • From watching the speeches at the first reading of this Bill, it seems clear that the intention of the Bill is to reduce the number of these marriages, however the Bill provides no criteria for Family Court judges considering an application from a 16-17-year-old to take into account.
  • The Bill does not empower judges to seek funded expert reports, such as psychologist or cultural reports, or to order funded counselling. A lawyer for child should be appointed and reports such as cultural, medical, psychiatric, and psychological reports should be able to be requested by a Family Court judge. Family Court Act 1980 section 16D would need to be amended too.
  • There is no need for the Bill to include provisions around public/media presence and other matters that are covered by other Family Court legislation. Sufficient controls on the media and public are contained in the Family Court Act – a person under the age of 18 or a vulnerable person cannot be identified in a report and the public are not able to attend hearings without consent of the Family Court judge.
  • The Committee should consider amending Family Court Act 1980 section 12A rather than including an evidence subsection in the Marriage Act.
  • This Bill should be compared to the law in Australia. If the judicial approval approach is taken the legislation should be reworked to be much more similar to sections 11 to 21 Marriage Act 1961 (Australia). For example: that authorisation should only be granted in exceptional circumstances, parental authorisation should be required as well, expiry of consent etc. The Australian law makes it clear that the intention is to reduce child marriages: “the circumstances of the case [shall be] so exceptional and unusual as to justify the making of the order”. However, please note that even this does not meet the Sustainable Development Goal requirements.

UNICEF recommendations

The Committee should consider UNICEF’s recommendations (PDF), such as:

  • child marriages should be voidable by either party with applications being able to be made within two years from the date the person reaches the age of majority (with considerations made regarding immigration status, division of property, and care of children);
  • in relation to penalties; and
  • child marriages taken place to date should be analysed.

Civil unions

The Civil Union Act 2004 should also be amended to make the minimum age for civil unions 18.

Image credit: Girls Not Brides

Posted in Law, New Zealand, Worldwide

Christchurch Regeneration Minister refuses to release document from December Cathedral meeting

Posted on by Matt Taylor 13 Comments

ChristChurch cathedral

The new Minister supporting Greater Christchurch Regeneration, Hon Nicky Wagner, has refused to release the contents of a document tabled at a 21 December 2016 meeting between Crown negotiators and Church Property Trustee representatives.

Entire pages of the document, embedded below, were redacted under the obligation of confidence and negotiation sections of the Official Information Act.

The Minister recently released various cabinet documents in relation to the Cathedral stalemate, including a 13 December 2016 cabinet paper presented by previous Minister Gerry Brownlee a week before the meeting. It recommended the approval of a $10 million payment toward the Cathedral reinstatement and a $15 million credit facility. In a Stuff article Minister Brownlee said that the offer was made in December, but diocesan chancellor Jeremy Johnson said no binding offer had been received.

$10m Crown contribution and $15m credit facility (p. 4)
View entire document on DocumentCloud

 

Image credit: Robert Young (CC BY 2.0)

Posted in New Zealand

Excessive burden? USA not contributing to NZ’s $5.8m Dotcom case costs

Posted on by Matt Taylor 16 Comments

Kim Dotcom outside New Zealand's Parliament

Crown Law has provided figures under the Official Information Act on the money and time spent in relation to legal work completed in respect of Kim Dotcom and his associates which amounts to more than $5.8 million.

Crown Law writes that the United States Department of Justice is not reimbursing New Zealand for any of these expenses, even though the cases largely relate to charges that they wish to bring against Mr Dotcom and his associates.

Crown Law hours spent

The figures:

  • are as at 8 February 2017;
  • include work on both domestic and mutual assistance (United States initiated extradition) legal proceedings;
  • exclude work completed to provide advice to other Government Departments, for example the Police or the GCSB who respectively picked up the bill for Crown Law’s advice to them; and
  • include most Crown Law legal staff time and some support staff time.

2011: 432.10
2012: 7,356.67
2013: 4,087.50
2014: 5,742.27
2015: 4,911.80
2016: 3,207.26
2017: 4.77
Total: 25,742.37

25,000 hours.

Using a conservative estimate of the value of the time spent ($140 per hour,1 which is the rate a Crown Law junior prosecutor would be billed out as – senior solicitors’ time is likely worth more, support staffs’ likely less), this comes to around NZD $3.6 million.

Disbursements

New Zealand has also covered the bill for work completed by external counsel on Crown Law’s behalf and expenses paid by Crown Law in relation to the Dotcom/Megaupload matters – another NZD $2.2 million.

This includes: $1.98 million on external barrister/solicitor fees, $171,800 on travel and accommodation, $23,151 on Court filing fees, $20,125 on photocopying, and $17,356 on professional fees including research material.

An excessive burden?

At least NZD $5.8 million has been spent on Kim Dotcom et al. by New Zealand so far, and it begs the question: was it worth it?

Should we have refused the United States’ mutual assistance request when it was made? Section 27(g)(i) of the Mutual Assistance in Criminal Matters Act 1992 allows New Zealand to refuse a request made by a foreign country if “in the opinion of the Attorney-General, the provision of assistance would impose an excessive burden on the resources of New Zealand”.

Kim Dotcom had hundreds of millions of dollars worth of assets before the raid on his home and it’s not a shock that he has aggressively defended the cases brought against him.

If spending $5.8 million+ has not been an excessive burden on New Zealand, what amount would be?

1 This is a lower rate to that used by David Fisher in his September 2015 article of $198/hour.

Image credit: Sarah-Rose

The full response from Crown Law, including the breakdown of expenses incurred is embedded below.

Posted in Law, New Zealand, Technology, Worldwide

Peter Thiel’s New Zealand Citizenship File

Posted on by Matt Taylor 6 Comments

Peter Thiel

At around 5:15pm today the Department of Internal Affairs released some of the information they hold on Peter Thiel’s application for New Zealand citizenship, emailed on mass to those who had made requests under the Official Information Act.

Peter Thiel has never lived in New Zealand and doesn’t plan to live in New Zealand. He’s a controversial figure. We looked past that because of a few New Zealand business investments, public speaking engagements, and a donation to the Canterbury earthquake relief fund.

Neil Strauss wrote a book in 2009 called Emergency about disaster preparedness. In one part he investigates the trend of the super rich applying for secondary citizenship in another country. They wanted to be prepared when “the shit hits the fan” by having a Plan B country to retreat to if there was some sort of disaster. Strauss said New Zealand would be a great country to have citizenship in but that our requirements are so strict. He settled for Saint Kitts and Nevis.

When you’re Peter Thiel and are worth US$2.7 billion, I guess you don’t need to settle.

Thiel has his Plan B, New Zealand, but don’t expect to see him around unless the world is falling apart.

Highlights and the full documents are embedded below:


DIA’s PDF document released 1 February 2017

Image credit: Heisenberg Media CC-BY-2.0

Posted in Law, New Zealand, Worldwide

MBIE’s Chief Engineer on a reduced standard of earthquake repairs in Canterbury

Posted on by Matt Taylor 1 Comment

Earthquake damaged buildingThe Ministry of Business, Innovation & Employment has released a 2013 briefing to the Minister of Housing Hon Dr Nick Smith written by their Chief Engineer.

The Minister asked about a reduced standard of repair for older properties “particularly in the context of Housing New Zealand [properties]”, however the Ministry’s response is still illuminating:

  • There is no reference to the Earthquake Commission Act 1993 and the standard of repair required by the Act.
  • Although a building may have been damaged, the Ministry provided a list of scenarios where “no repair is required”.
  • Minimising cost and avoiding obtaining engineering advice for individual properties were primary considerations of the Ministry.
  • The Minister was concerned with avoiding “excessive” money and time spent on earthquake recovery.

The full document is embedded below.

Posted in Law, New Zealand

Submissions on petition to reverse convictions for consensual homosexual acts close tomorrow

Posted on by Matt Taylor Leave a comment

Bert and Ernie

Submissions on a petition in front of the Justice and Electoral Select Committee to reverse past convictions for consensual homosexual acts and issue an official apology to those convicted close tomorrow (Thursday 6 October 2016).

You can submit online here.

My submission:

I support this petition to reverse the convictions of people who were convicted of consensual homosexual acts and for the Government to officially apologise to them.

I strongly disagree with Justice Minister Amy Adams who has said that the process would be a hugely complicated task. It would not be onerous for the Government to set up a process to proactively review conviction files to void convictions for consensual acts which would be legal today.

Implementing the above would work towards restoring the human rights of those whose mana and dignity has been tarnished.

Image credit: See-ming Lee

Posted in Law, New Zealand

Minister Peter Dunne’s Uber expenses actually for luxury car service

Posted on by Matt Taylor 1 Comment

The Office of the Minister of Internal Affairs, Peter Dunne, has confirmed that two trips declared as Uber rides in Minister Dunne’s international travel reconciliation form for a trip to the United States were actually for a luxury car service.

A staffer writes that the transactions to Kelley’s Luxury Car Service “were mislabelled [as Uber rides] on the expense form due to a case of mistaken identity of the company involved”.

The two trips between Newark Liberty International Airport and “accommodation in New York for Ministerial staff while on ministerial business” cost USD $92 and USD $102.

Uber estimates that an uberX fare between Newark Liberty International Airport and a Midtown hotel, The Westin New York Grand Central (where Minister Nicky Wagner stayed while in New York), would cost between USD $43 and USD $50. It is unclear which hotel Minister Dunne stayed at.

Uber fare estimate between Newark Liberty International Airport and The Westin New York Grand Central

Posted in New Zealand

University of Canterbury must improve crisis student communication and support

Posted on by Matt Taylor Leave a comment

Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here.

Student communication

University of Canterbury James Hight libraryOn 22 July 2016 a woman was sexually assaulted while walking through the University of Canterbury owned Ilam Fields.

In response to a request from the Police, who informed UC Security of a “physical assault”, an email was sent to all students that day.

UC Security advised of a physical assault ('late in the day' should probably read 'early in the morning') (p. 1)
View entire document on DocumentCloud
University of Canterbury email to all students (p. 2)
View entire document on DocumentCloud

On 24 July 2016 a reporter from The Press contacted the University in response to the Police releasing a statement to the media. The Police told The Press that the assault was actually a sexual assault, and this fact was published in an article that day. In response to an Official Information Act request, most of which was initially declined, the University said that “the Police appeared not to have told the University of the sexual nature of the incident before telling the media”.

Police told media assault was sexual before UC (p. 2)
View entire document on DocumentCloud

However, the University did not inform students of the sexual nature of the incident after it became public knowledge. The assault was alluded to in a 28 July UC blog post, which included 10 ’safety and security tips’ and a list of ’support for students’ links, including a link to the UC Health Centre. This content was also included in the next edition of the ‘Insider’s Guide Newsletter’, a weekly digest sent to all students, on 31 July.

Last night a student died suddenly at the Rochester and Rutherford Hall of Residence.

The death has been reported as sudden and not suspicious, often used by the media as code for a suspected suicide.

UC acting vice-chancellor, Dr Hamish Cochrane was quoted by the media as saying “all the university’s students and staff were advised [Sunday], and made aware of the support available”.

Communication to students consisted solely of a UC blog post listing four UC support services that are available to students, including the UC Health Centre. Links to blog posts appear for a few days in the sidebar of Learn, UC’s online learning management system which is regularly accessed by students and staff. However, no email was sent to students, and there was no acknowledgment that a student had died.

Late on Sunday night, a link to the blog post was included in the ‘Insider’s Guide Newsletter’ emailed to students.

UC Health Centre Counselling under pressure

Students are struggling to access support.

The UC Health Centre provides free counselling to UC students, however their website states that counselling appointments “are in high demand [and] you may have to wait a few weeks to be seen”. During office hours there is an on-call counsellor to deal with students facing an “emergency situation”.

During this year’s UCSA elections one group of candidates asked students on Facebook which one out of four campaign policies they thought was most important. “Increased mental health awareness and support” was voted second. In response to a question asking how the UCSA should help support those with mental health issues, students voted overwhelmingly for “increased health centre funding for more counsellors”.

Students wanting to skip the UC Health Centre counselling waiting list could choose to pay for sessions with a private counsellor or psychologist. Students may be eligible for the disability allowance, however there are restrictions, including a maximum payment of $61.69 a week (appointments with private psychologists can cost $150 or more).

Posted in Mental Health, New Zealand