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Lawyers and Conveyancers Amendment Bill (Consistent) (Sections 5, 17) [2010] NZBORARp 4 (15 February 2010)

Last Updated: 5 May 2019

Lawyers and Conveyancers Amendment Bill

15 February 2010 ATTORNEY-GENERAL

Lawyers and Conveyancers Amendment Bill (PCO13984/1.8) - Consistency with the New Zealand Bill of Rights Act 1990

Our Ref: ATT395/119

1. We have reviewed this Bill for consistency with the New Zealand Bill of Rights Act 1990. While the Bill gives rise to questions under s 17 of the Bill of Rights Act (freedom of association), we conclude that the possible limitation of that right is in any event justifiable under s 5 and that the Bill therefore appears to be consistent with the Act.
   

The Bill

2. The Bill amends the Lawyers and Conveyancers Act 2006 to reinstate the office or

rank of Queen’s Counsel (QC) and restore the pre-2008 [1] position where that office could only be held by barristers sole.

3. Currently, s 118 of the Lawyers & Conveyancers Act 2006 expressly states that no barrister or barrister and solicitor is ineligible for appointment as Senior Counsel by reason only of the fact that he or she:
   
   • 3.1 Practices either alone or in partnership with any other lawyer; or
   • 3.2 Is actively involved in the provision by an incorporated law firm of legal services; or
   • 3.3 Is an employee or statutory officer.
     
4. The section also provides that persons holding the rank of QC or Senior Counsel may join such organisations.
5. The Bill proposes to reverse this (clause 6, proposed ss 118A and 118B).
6. The Bill contains transitional provisions which effectively allow those appointed under the current regime to practice in association with others, contrary to the new rules (clause 6, proposed ss 118C and 118D).
   

Apparent inconsistency with the right to freedom of association

7. The repeal of s 118 and the re-introduction of the previous system raise an arguable issue with freedom of association under s 17 of the Bill of Rights Act. Section 17 provides:
   

“Everyone has the right to freedom of association.”

8. The proposed amendments will prohibit QCs from practising their profession in partnership with any other lawyer, or as part of a law firm. The proposal therefore directly limits the freedom to form an association for professional purposes with other lawyers. Similarly, the proposal penalises those who are in such associations, by making them ineligible for the office or rank of QC.
9. The office of QC is recognised as being of substantive benefit to practitioners, and partnership with those holding the office is also likely to be of value to other lawyers. Similarly, the freedom to choose a working environment, and in particular the freedom to choose between practicing one’s profession with colleagues, or alone, is also significant. [2]
10. On its face therefore the proposal raises a possible inconsistency with s 17 of the Bill of Rights Act. However, the position is complicated by the uncertain scope of that right in comparable jurisdictions, which do not necessarily recognise the extension of the right to protect associations of a commercial character. However, in our view the proposal is in any event justifiable under s 5 of the Bill of Rights Act as reflecting a rational and legitimate policy choice by the legislature to re-emphasise the importance of the independent bar through re-introduction of this limit to the office of QC.
    

The scope of s 17

11. The scope of the protected right in s 17 is not well-settled. There is a difference in approach between the Canadian jurisprudence and the European and United Nation cases under the European Convention on Human Rights and the International Covenant on Civil and Political Rights. The difference is approach is not clearly acknowledged or considered, and is further complicated by a possible third approach indicated by a recent decision of the House of Lords.
12. In brief, the Canadian cases contain the most considered discussion of the scope of the right, and lean towards protection for the right to form any kind of association, including those of a commercial or professional character. [3] The cases focus attention not on the activity of the association, but rather on whether the

“associational character” of the activity has been targeted. [4] In simple terms the right is infringed if the activity in question is permitted for an individual acting alone, but prohibited for those acting together in an association. Under this approach, the proposal to prevent QCs practicing in association with others would infringe s 17.

13. The European approach is more focussed on whether there is a recognised “association” of the character that the right seeks to protect. There is little discussion of what type of association would be protected, but the underlying

rationale of the case law appears to be that only private “civil society” associations, notably voluntary political, social or similar groupings, are protected – public or state run or regulatory associations are not covered by the right. [5] While it is not clear, it appears from the caselaw that the right currently does not extend to associations that are not not-for-profit. [6]

This is a far more limited approach and if adopted would mean that the s 17 right is not engaged by the proposal.

14. The House of Lords fox hunting decision suggests a possible third approach in the United Kingdom. While the Court of Appeal adopted a similar approach to the

Canadian cases, and examined whether the prohibition on fox hunting targeted the “associational character” of the activity, [7] the House of Lords [8] instead appears to have focussed on the constitutional importance of the activity itself, and found that as it was merely “sporting or recreational” is was not within the scope of the right.

This approach, of differentiating between the value of the activity concerned, does not appear consistent with either the European approach, [9] or the Canadian.

15. It is also not consistent with the earlier approach taken by the Privy Council in Collymore v A-G of Trinidad and Tobago [1969] 2 All ER 1207, which – although the issue was not central to the decision – seems to support a wider view of the right:
    

“In my judgment, then, freedom of association means no more than freedom to enter into consensual arrangements to promote the common interest objects of the association group. The objects may be any of many. They may be religious or social, political or philosophical, economic or professional,

educational or cultural, sporting or charitable...”

16. The scope of the right in s 17 has not been considered in any depth by the New Zealand courts. The commentary by Drs Butler suggests, however, that a broad interpretation is appropriate. [10] A broader view is also consistent with the

discussion in the 1985 White Paper “A Bill of Rights for New Zealand”, which

describes the proposed (now) s 17 in the following terms:

“10.64 Again, this is an important right with application to a wide range of situations. A law which prohibits the formation of political parties is an obvious example of something which infringes this provision. Again it has be reconciled with or weighed against important competing interests. Consider for instance the law relating to restrictive trade practices, or criminal or tortious conspiracy.” [emphasis added]

17. The authors of the White Paper clearly envisaged that the right would not be restricted to not-for-profit community associations, but rather would be of wide application, limited only by justified restrictions where competing interests came into conflict with the right.
18. Therefore, while the matter is not yet finally resolved in New Zealand, it is at least arguable that the scope of s 17 is sufficiently wide to encompass the professional and commercial association of lawyers practicing in a firm, and is therefore engaged by the proposal in this Bill.
19. However, as noted, even if the right is engaged, in our view there is a reasonable basis to support the view that the infringement of this right is justified in terms of s 5.
    

Justification under s 5

20. In applying s 5, it is necessary to consider whether the restriction serves an important objective and, further, whether it is both rationally connected and proportionate to that objective. [11]

21. The Explanatory Note to the Bill indicates that the objective of the reinstated restriction is to uphold the independence of the bar. That requirement can, in turn, be seen to serve two related purposes:
    
    • 21.1 It provides for an official recognised category of independent expert practitioners; and
    • 21.2 Given the material and reputational advantages that such recognition entails, it provides a structural incentive to expert practitioners to enter into, or remain in, sole practice, and thus strengthens and supports the independent bar.
      
22. The first of these purposes could be seen to provide a public benefit through such practices as the appointment of QCs to conduct public inquiries and the use of “QC clauses” in certain commercial contracts. [12] However, such benefits could be achieved by other means, as they are in other jurisdictions, and more importantly are limited in their relevance. It follows that this limited purpose could not by itself justify a restriction that applies to the legal profession as a whole.
23. The second purpose reflects a broader contention that there is a public benefit in the continuation of independent practice by some expert practitioners, and the promotion and strengthening of the independent bar. While New Zealand does not, unlike a number of jurisdictions, restrict any area of legal practice to sole practitioners, it can nonetheless be suggested that the promotion of independent practice is of benefit. For example: [13]
    
    • 23.1 Independent practice may assist in providing expert legal assistance to unpopular clients; and
    • 23.2 Independent practice may provide a means to avoid or, at least to lessen the difficulty of managing, conflicts of interest in areas of specialist practice.
      
24. These are valid objectives in terms of s 5 and they are rationally connected to the proposed restriction.
25. In assessing proportionality, however, it is difficult to quantify or indeed fully verify the benefits associated with the independent bar. They entail assumptions about the behaviour of practitioners and their clients and are also, so far as varying practices in other jurisdictions are concerned, dependent upon the legal and professional context of those jurisdictions. However, it is also difficult to quantify the adverse impact of the restriction, as that again depends upon practice and context.
26. In seeking to apply s 5 in such an uncertain context, the Canadian courts have held that where government seeks to regulate a matter that is not readily measurable and where the regulatory choices are open to reasonable debate, it is accepted that there is some margin open to the legislature. [14] The regulation of this aspect of the legal profession and, more generally, the means taken to promote robust independence in the legal profession, are areas of substantial policy choice and the proposed restriction falls within that scope.
27. On that basis, we consider that it is open to conclude that the restriction is proportionate and so justifiable in terms of s 5.

Yours sincerely

Footnotes:

1. The Lawyers and Conveyancers Act 2006 came into force on 1 August 2008.
2. Black v Law Society of Alberta 27 D.L.R. (4th) 527, 543–4:
   

“The pursuit of a livelihood through a trade or calling has been, in Canada,

accepted as an appropriate and vital human ambition The relationship is not merely commercial; it relates to the vital, fundamental human activity, save only for subsistence itself, of pursuit of a livelihood in the form of a

trade or calling. ”

Dunmore v Ontario [2001] 3 SCR 1016 noted that the purpose of the right is to allow the achievement of individual potential through inter-personal relationships and collective action (p 31), that work organisations are a powerful and vibrant example of the collective pursuit of common goals (p81), and quoting Reference re Public Service Employee Relations Act [1987] 1 SCR 313 , 368:

“Work is one of the most fundamental aspects in a person’s life, providing the individual with a means of financial support and, as importantly, a contributory role in society. A person’s employment is an essential component of his or her sense of identity, self-worth and emotional wellbeing. Accordingly, the conditions in which a person works are highly significant in shaping the whole compendium of psychological, emotional and physical elements of a person’s dignity and self-respect.”

3. Black v Law Society of Alberta [1989] 1 SCR 591. This case concerned a rule prohibiting members of the Law Society who ordinarily reside and practice in Alberta from entering into partnership with anyone who was not ordinarily resident in Alberta. The majority found a contravention of the Charter mobility rights, and did not answer the question of whether there was a contravention of the right to freedom of association. McIntyre and L’Heureux and Dube JJ disagreed on the issue of mobility rights but found that the restriction “no doubt offends the provisions of s 2(d) of the Charter, which guarantee freedom of association”, but was justifiable.
   

Black is referred to by the New Zealand Court of Appeal in Lewis v Real Estate Institute of New Zealand Inc [1995] 3 NZLR 385, which noted that the issue in that case was clearly one of freedom of association. Lewis did not engage the right as the question was whether a lawyer could engage in real estate activities, and was thus a restriction on professional or business activities of the lawyer, not the lawyer’s association with others.

See also for example the first instance decision in Costco Wholesale Canada Limited v Board of Examiners in Optometry (1998) 157 D.L.R. (4th) 725 (Supreme Court of British Columbia) the prohibition on business associations between optometrists and non-optometrists was held to contravene s 2(d).

4. Canadian Egg Marketing Agency v Richardson [1998] 3 SCR 157.
5. See for example Le Compte, Van Leuven and De Meyere v Belgium (6878/75, 7238/75, 1981) and Siguronsson v Iceland (16130/90, 1993).
6. See for example the decision of the UNHRC in Wallmann v Austria (1002/2001). A broader approach may, however, be suggested in the judgment of the Grand Chamber (full court) of the Court in Gorzelik v Poland (2004) 38 EHRR 4:
   

[92] While in the context of Article 11 the Court has often referred to the essential role played by political parties in ensuring pluralism and democracy, associations formed for other purposes, including those protecting cultural or spiritual heritage, pursuing various social-economic aims, proclaiming or teaching religion, seeking an ethnic identity or asserting minority consciousness, are also important to the proper functioning of democracy. For pluralism is also built on the genuine recognition of, and respect for, diversity and the dynamics of cultural traditions, ethnic and cultural identity, religious beliefs, artistic, literary and socio-economic ideas and concepts. The harmonious interaction of persons and groups with varied identities is essential for achieving social cohesion. It is only natural that, where a civil society functions in a healthy manner, the participation of citizens in the democratic process is to a large extent achieved through belonging to associations in which they may integrate with each other and pursue

common objectives collectively.”

Note however to the contrary D Harris, M O’Boyle & E Bates & C Buckley Law of the European Convention on Human Rights (2ed:OUP 2009) 526, n 84.

7. R (Countryside Alliance & Ors) v Attorney-General [2006] EWCA Civ 817; [2007] QB 305 (CA) at paragraph 105, quoting Adams v Scottish Ministers [2004] SC 665:
   

“Article 11 is engaged if a person is prohibited from doing something so long as he is a member of a particular association; for example, if he is disqualified from holding an office, or is otherwise adversely treated, by reason of his membership of a Masonic lodge or of a political party ... but there is a material distinction, in our opinion, between a restriction which compels an individual to join an association or prohibits him from joining it, or penalises him in either event ... and the restriction that, without reference to any association, merely prohibits a particular activity with the indirect result that persons cannot associate for the purpose of carrying it out.”

8. R (Countryside Alliance & Ors) v Attorney-General [2007] UKHL 52; [2008] 1 AC 719.
9. See Chassagnou v France [1999] ECHR 22; (1999) 29 EHRR 615 specifically on the topic of fox hunting, and Gorzelik v Poland (2004) 38 EHRR 4 (quoted at fn 6 above).

10. A Butler & P Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, 2005), 449.

11. R v Hansen [2007] 3 NZLR 1 (SC) at [70], [123], [203]-[204] and [271].

12. See, for example, C Chapman & J Mallon “Conflicts of Interest Faced by Solicitors Instructed by Insurers to Conduct Litigation on Behalf of Insureds” (1996) 26 VUWLR 679, 706 (QC clauses as means of redressing potential conflicts of interest).
13. See, for example, J Farmer “The Application of Competition Principles to the Organization of the Legal Profession” (1994) 17 UNSWLR 285, 292ff and General Council of the Bar (UK) Competition in Professions: The Bar’s Consultation Paper in response to the OFT Report (2001), [5.10] & [6.12] and the contrary views noted in, for example, Office of Fair Trading (UK) The Future of Queen's Counsel (2003).
14. See, for example, Canada v JTI-MacDonald Corp [2007] 2 SCR 610, [43], and Hansen, above, [116]ff per Tipping J.
    

In addition to the general disclaimer for all documents on this website, please note the following: This advice was prepared to assist the Attorney-General to determine whether a report should be made to Parliament under s 7 of the New Zealand Bill of Rights Act 1990 in relation to the Lawyers and Conveyancers Amendment Bill. It should not be used or acted upon for any other purpose. The advice does no more than assess whether the Bill complies with the minimum guarantees contained in the New Zealand Bill of Rights Act. The release of this advice should not be taken to indicate that the Attorney-General agrees with all aspects of it, nor does its release constitute a general waiver of legal professional privilege in respect of this or any other matter. Whilst care has been taken to ensure that this document is an accurate reproduction of the advice provided to the Attorney-General, neither the Ministry of Justice nor the Crown Law Office accepts any liability for any errors or omissions.