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On the one hand, then the other – from the lawyers of course

  • May 31st, 2012

The Commerce Select Committee had the benefit of two high performing ex-ministers today, with the Hon Nick Smith a courteous and penetrating chair, and David Cunliffe doing the honours for Labour. The rest of the committee looked on.

Nick  permitted himself a wry question of the two New Zealand Law Society representatives when it became clear that they were presenting diametrically opposing views. Was it usual he asked, or was he seeing history made?

The lawyers responded that they were accustomed to presenting competing arguments. But Nick was right. It was unusual, though I think not unprecedented.

I approve whole-heartedly of the NZLS presenting both sides of arguments where the profession is unlikely to be of one mind.

I sat through far too many submissions from the Law Society where they were no help at all on the most knotty questions. .

Their excuse was that they were not there to debate contentious policy. Instead they saw their role as being to help improve the technical quality with expert suggestions for clarification. Trouble is they did often express fervent support for fashionable causes, even causes contrary to long held principles underpinning our justice system. 

For example they were all in favour of the Clean Slate Bill, that suppresses the criminal records of most offenders after  7 years, and instructs them to lie if asked about their offending. But wait – there was one exception, they thought that it should not apply to benefit people who wanted to be lawyers, or to work for lawyers in positions requiring trust.

And when it was obvious that there were divided views in the profession they often ducked even technical questions about the quality of expression. Recent Attorneys General have failed to prevent bills having deliberately uncertain or novel wording designed to dump politically awkward matters on the courts.

In my experience the Law Society was often too squeamish to point out even these blisters on the rule of law.

So I hope that the Society crystallizes today's practice into general use. Select Committees will learn far more from skilled presentation of competing perspectives and elucidation of the often unintended consequences of provisions, than from an artificial and unlikely presentation of one view, or no view.

It does not derogate from my approval, but it was a pity that the Consumer Law Reform Bill on which they were presenting led one of the presenters into flights of imagination.

The Bill was sadly in need of testing for legal quality. If it was still proceeding under the auspices of an ACT Minister it should alone have been enough to split the party. Bills like this are the case for the rejuvenation of an analytical Ministry of Justice as a control department. The Bill does some necessary things, a few desirable, and then scores a number of consumer own goals, with prescription that should never have passed the tests of the Regulatory Reform Bill being worked on by Mr Boscawen's colleague, Rodney Hide.

One of the Law Society reps gave orthodox lawyerly analysis. The other offered worthy sentiment couched as economics and legal theory. If it was either it was from schools unknown to me. I think I heard Rajan Prasad  cited as an economic sage, but I must have been mistaken. And it must have been hard for the other lawyer to sit politely when the committee was told that they should over-ride freedom of contract by competent adults because "law should mimic what a perfect system would produce if everyone was acting fairrly and in each other's best interests".

That is theology not law. It could only be administered by priests, with god-derived powers to know more than the parties to contracts. Perhaps that is the point. Now we have no priests there are plenty of candidates to fill their supple shoes.

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