Recently, there has been a bit of commentary on one particular recommendation arising from the Independent Review Panel’s report. The recommendation concerns the proposal that a new statute for the regulation of lawyers should include a stand-alone, overarching Te Tiriti clause that “All persons exercising powers and performing functions and duties under this Act must give effect to the principles of Te Tiriti o Waitangi.”
It is important to note that this recommendation applies to a new regulator, and not to lawyers or the duties they have. The new regulator would be established as an independent statutory body. It would not be a Crown entity, nor subject to directive powers or statements of policy from government.
There has been some commentary suggesting that the obligations would apply to individual practitioners. This is not the position. The Independent Review Panel considered whether a lawyer’s responsibilities to Māori, te reo and tikanga warranted specific reference as separate regulatory objectives. The majority of the Panel viewed the proposed reference to professional competence as encompassing being up to date with relevant law, including tikanga; and the reference to cultural competence as sufficient to cover a lawyer’s responsibilities to Māori clients, including the use of te reo when appropriate. The majority of the Panel did not support including a reference to New Zealand’s constitution and Te Tiriti as part of a lawyer’s fundamental obligations.
What does the recommendation say?
Recommendation 3a from the Independent Review Panel’s report recommends that the new statute incorporates “Te Tiriti and regulatory objectives …. and update the fundamental obligations of lawyers, by including a Tiriti o Waitangi section, requiring those exercising powers and performing functions and duties to give effect to the principles of Te Tiriti o Waitangi.”
As the Panel noted in their report, the inclusion of a Te Tiriti clause in the new obligations on the regulator will “signal the importance of Te Tiriti to New Zealand’s constitution and legal system, and guide how the regulator engages with the profession and the public and fulfils its functions.” It would also “bring the regulatory framework into line with other Acts establishing statutory bodies performing public functions.”
Reference to Te Tiriti appears in over 60 pieces of legislation in New Zealand. Further, New Zealand’s Legislation Guidelines require legislation to be consistent with the principles of the Treaty.
How would the recommendation work in practice?
The Panel’s report noted that including a Te Tiriti clause would mean “changes in regulatory practice and decision-making, including the regulator partnering with Māori, for example Te Hunga Rōia Māori, in the delivery of key functions, promoting the use of te reo Māori in its operations and reporting, and reflecting tikanga in areas such as admission (eg, making marae-based admission ceremonies commonplace for those who want them) and in the exercise of other regulatory functions (eg, complaints handling, for parties who prefer a tikanga approach).”
The language recommended by the Panel (“give effect to” the principles of Te Tiriti) reflects language recently preferred by legislators (the Water Services Act 2022 and the Natural and Built Environment Bill, both of which require persons performing duties or functions under the relevant statute to “give effect to” Te Tiriti principles). If there is legislative reform, there will be considerable opportunity for consultation on the wording of any proposed provision.
The Panel’s report acknowledges concern expressed by submitters about the “risk of uncertainty” associated with including a Te Tiriti clause in the legislation establishing the regulatory regime for lawyers and “what its practical effects would be.” The survey recently conducted by the Law Society indicated mixed views about this recommendation, with almost 40% of respondents either agreeing or agreeing in principle and 41% not accepting the recommendation.
What doesn’t the Report recommend?
The Report has not recommended amending or adding fundamental or additional obligations on lawyers in regards to Te Tiriti. This is explicit in the Report and, by majority, the Independent Review Panel did not “support the addition of a new fundamental obligation on lawyers relating to tikanga (as proposed in the minority view), since we regard the new fundamental obligation on lawyers to maintain their competence in their areas of law as sufficient to encompass being up-to-date with relevant law, including tikanga.”
Professor Jacinta Ruru’s minority view proposed amending the obligation on lawyers to uphold the rule of law to include a specific reference to Te Tiriti so that this fundamental obligation reads: “to uphold the rule of law (including the law and our constitution that includes Te Tiriti o Waitangi) and to facilitate the administration of justice.”
Professor Ruru also recommended adding a sixth fundamental obligation as well as three further obligations related to support for the use of te reo Māori and other first languages, preservation of tikanga, and promotion of climate change consciousness in the practice of law.
Professor Ruru said that the preservation of tikanga objective “would require the regulator to have a positive objective to work with Māori to encourage the use of processes in the practice of law that would allow for the dialogue to be traversed in a respectful and effective way.”
As noted, the majority of the Panel did not support reference to New Zealand’s constitution and Te Tiriti as part of a lawyer’s fundamental obligation to uphold the rule of law. They saw advantages in a less expansive list of regulatory objectives.
In their view, “adding an explicit reference to New Zealand’s constitution and Te Tiriti – as part of upholding the rule of law – risks unintended consequences, given that the scope and content of our constitution remains an area of unsettled law and jurisprudence about Te Tiriti continues to evolve.
“We also see conceptual difficulties in the proposed Te Tiriti obligation. The standard conception of the role of lawyer is one that takes on role-differentiated obligations: of neutrality, non-accountability and partisanship. Lawyers, in their professional role, are neutral as to the morality and political views of their client – it is not their role to sit in judgement.”
What are the next steps?
The recommendations are currently being carefully considered by the Law Society. The Law Society’s response to the recommendations is expected to be provided to the Minister of Justice by the end of the parliamentary term.