EDIT: this entire post is wrong because of the amended s 3AA of the Bail Act 2000. Disregard it. But for more shoot-from-the-hip legal analysis stick around!
This is to be filed under “this is strange and I haven’t seen it before, but I’m not saying it’s necessarily wrong”.
Here is the New Zealand Herald:
Changes to the Bail Act which take effect on Monday will mean the safety of victims and their families will be the primary consideration when deciding whether to grant bail or on what conditions for those charged with family violence offences.
It also means that any judicial officer, registrar or police employee who grants bail can impose any conditions they deem reasonably necessary to protect victims and their families.
The second tranche of changes under the Family Violence (Amendments) Act and the Family Violence Act come into force on July 1 next year. They will include extending Police Safety Orders, improved access to protection and property orders and removing legal barriers to information-sharing between agencies.
There is no doubt that the Family Violence (Amendments) Act 2018 is now in force. And if you look in the Bail Act 2000 the changes are there (although legislation.govt.nz has not incorporated the amendments yet, so I haven’t linked it for now). For example, s 8(3A) now states:
(3A) In deciding, in relation to a defendant charged with a family violence offence, whether or not to grant bail to the defendant or to allow the defendant to go at large, the court’s primary consideration is the need to protect –
(a) the victim of the alleged offence; and
(b) any particular person or people in a family relationship with the victim.
This is one of the new subsections that does the heavy lifting. But you can see from the language that it only applies to defendants charged with a “family violence offence”. Plainly it’s going to be important to know what a “family violence offence” is.
As with all legislation, we turn to the interpretation section to see what that has to say. And it’s true “family violence offence” is defined. Section 4 states:
family violence offence means an offence—
(a) against any enactment (including the Family Violence Act 2018); and
(b) involving family violence (as defined in section 9 of that Act)
So it can be any offence at all, but it has to include family violence. But family violence doesn’t mean just anything, it is defined in s 9 of the Family Violence Act 2018. That’s no problem in theory. A whole bunch of legislation cross-defines terms like that. We just go to look at the Family Violence Act 2018.
Except here’s the problem. The Family Violence Act 2018 is not in force. It exists. It has been passed by the House and given royal assent. But Parliament says it will not enter into force until 1 February 2019.
The question then becomes, can you define a term in an active act (the Bail Act) by reference to a definition in an Act that is not in force (the Family Violence Act)?
And I don’t know the answer to that. I haven’t seen it done before, though that doesn’t really count for much.
In one sense, referring to a definition in a not-in-force Act seems okay. The definition is just some words that are written down, and even if the Act is not yet in force they are words that Parliament has passed validly. But it wouldn’t even matter if Parliament hadn’t passed the Family Violence Act already. Parliament could define terms in its legislation by reference to literally anything if it wanted to. Legislation could be directing us to look at the nearest KitKat wrapper if Parliament wanted us to.
But in another sense it seems strange. By delaying the entry into force Parliament has said about the Family Violence Act “no no, these will be words you should care about, but not until we say so. Not until the appointed hour”. So why should we be permitted to take into account those words in any legal sense before that time. And, if it wanted to, Parliament could have brought into force s 9 of the Family Violence Act from the same day as the Bail Act amendments entered into force. That would have avoided this completely.
There’s no doubt that we can see how these two Acts will fit together after 1 February 2019 when they are both in force. But before that time it is slightly unclear if the term “family violence” in the Bail Act remains effectively undefined. It would be really interesting to know if this was intentional (and so the PCO thinks it’s fine), or whether this was an oversight. Given the centrality of these definition provisions I would bet someone a lot smarter than me thinks it is all okay.
All it really means for certain is that I can add a new category to my trainspotting journal of legislative techniques.
A legal positivist, a purposivist, and a realist all work for the highway patrol.
A motorist is driving down a road. The legal positivist pulls him over and begins writing out a ticket.
“Why on earth am I getting this ticket?” asks the driver.
“You were going 51 km/h in a 50 zone,” explained the positivist. “The law is very clear and was enacted validly. I have to give you a ticket.”
The driver rants and raves at the positivist.
“This is ridiculous, bloody revenue gatherers!” he says. But he ultimately takes the ticket and carries on driving down the road, a little slower than before.
The driver doesn’t get far before the purposivist pulls him over and begins writing a ticket.
“Why on earth am I getting this ticket?” asks the driver.
“You were going 40 km/h in a 50 zone,” explained the purposivist. “The law is designed to prevent unsafe speeds and you were going so slow that you were unsafe. I have to give you a ticket.”
The driver gets even angrier at the purposivist.
“I can’t believe you people. First I drive to fast, now I drive too slow!” But he ultimately takes the ticket and carries on driving down the road, this time being certain to stick to exactly 50km/h.
The driver doesn’t get far before he is pulled over by the legal realist, who begins writing him a ticket.
“Hey!” said the driver. “I wasn’t driving too fast, I wasn’t driving too slow. What on earth are you giving me this ticket for?”
“Well,” said the legal realist. “You were awfully rude to my colleagues.”
The list of new Queen’s Counsel appointments was announced today, causing dozens of workplace injuries. Lawyers across the country fell off their chairs when they learned the powers that be had finally seen fit to appoint equal numbers of male and female silks.
Speaking, half-paralysed from the floor of her office, one lawyer said “Frankly the fact that the people making this decision managed to meet basic standards of equality came as a complete shock.”
Lawyers suffered injuries including coffee burns from surprised spit-takes and altitude sickness caused by rapidly elevated hopes that something might finally be changing in this godforsaken hellscape of a profession.
The lawyers who will take silk are:
The appointment of Andru Isac as Queen’s Counsel also contributes to the diversity of the spelling of “Andrew” among senior practitioners.
There are lots of things that can be said about r 2.8 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. It just seems like no-one’s said them.
It’s the rule that turns lawyers into narks. You have to report potential misconduct about other lawyers to the Law Society. The rule says this:
2.8 Subject to the obligation on a lawyer to protect privileged communications, a lawyer who has reasonable grounds to suspect that another lawyer has been guilty of misconduct must make a confidential report to the Law Society at the earliest opportunity.
2.8.1 This rule applies despite the lawyer’s duty to protect confidential non-privileged information.
2.8.2 Where a report by a lawyer to the Law Society under rule 2.8 may breach the lawyer’s duty to protect confidential non-privileged information, the lawyer should also advise his or her client of the report.
Not “may” make a report to the Law Society, but “must”. Which is tough! Look to your left, now look to your right. These people are under a professional obligation to betray you! Although if you have your fingers in the trust account then fair enough.
Misconduct is a higher disciplinary finding than unsatisfactory conduct or s 241(c) negligence. The two most common categories of misconduct are wilful or reckless breaches of the Rules, and disgraceful conduct (a sort of catch all). So it is not every infraction that needs to be reported. It needs to be of decent seriousness. You also have to have reasonable grounds to suspect, which is not a particularly high standard in the law – it’s more than speculation but akin to saying something is possible. The Legal Complaints Review Officer decision of UK v VL LCRO 142/2013, 2 September 2016 set out a list of matters to be considered before making a confidential report:
 There is a process to be gone through before a lawyer makes confidential report under rules 2.8 or 2.9. The first step rule 2.8 calls for is for the reporting lawyer, by whatever means, to acquire some knowledge. In some cases, that lawyer may acquire knowledge as a result of a duty to be informed, but not in others. Step two: does the knowledge acquired raise a suspicion of misconduct? At this point, a prudent lawyer may well check the Act to see what ss 7 and 12 say, look to the rules for guidance, consider legal authorities, perhaps seek advice and perhaps consider making further inquiry. Step three would involve varying levels of analysis and decision-making depending on what was known or could be found out about the conduct, so that the reporting lawyer can be satisfied that the suspicion raised is based on reasonable grounds.
 There may or may not be an easy answer. However, a structured process has a number of advantages. By thinking it through, a reporting lawyer may recognise a range of potential issues and consequences; other lawyers may be spared the inconvenience of having to address groundless complaints; the resources of the regulatory processes may not be diverted into addressing complaints and reports made on the basis of suspicions for which no reasonable ground exists. Some other good reason for making or not making a confidential report might become apparent.
 In thinking it through, whether a report is made should be guided by the purposes of the Act. A careful thought process is consistent with the fact that complaints and mandatory reports form part of a lawyer’s professional record, whatever the outcome. Complaints and confidential reports should not be lightly made, and call for a careful exercise of professional judgement when made by lawyers.
Remember this is a rule of professional conduct. A lawyer that fails to comply with this rule – who fails to make a confidential report when there are reasonable grounds to suspect that another lawyer has been guilty of misconduct – is in breach of the conduct rules themselves. The lawyer who fails to report may themselves face disciplinary action.
But despite this it barely rates four passing mentions in the Webb et al textbook on Ethics, Professional Responsibility and the Lawyer. The literature is sparse. One case, speaking about an equivalent rule in another jurisdiction, says this:
The rationale behind this rule is simple – no one is better suited to recognise a breach of the Rules or better situated to observe one.
Attorney U v Mississippi Bar (1996) 678 So 2D 963 at 976 quoted in GE Dal Pont Lawyers’ Professional Responsibility (5th ed, Thomson Reuters, Australia) at [25.15]
That seems right, and there are good reasons. The Law Society can only be in so many places. It aids the regulation of lawyers to have every member of the profession act as eyes and ears against misconduct. Plus, lawyers already have a professional obligation to uphold the law, and the conduct rules are part of the law, so an obligation to report is, in a way, just an extension of that more fundamental obligation.
But there are two problems with r 2.8 as I see it. Both stem from the plain wording of the rule. One is frivolous, the other serious. Both suggest that the rule could be worded better. Both suggest that r 2.8 will, in practice, be subject to some twisty interpretation. This latter point is not ideal – every time we have to say “oh the rule says that, but it doesn’t mean that” is an admission that our law isn’t clear and accessible. But enough harrumphing.
The first problem is that r 2.8, as worded, will require all lawyers to make a confidential report to the Law Society every time they see something like this or this. What stronger grounds to suspect that a lawyer has been guilty of misconduct are there than a determination by the Lawyers and Conveyancers Disciplinary Tribunal? And every time they do, the Law Society should receive confidential reports from every lawyer who reads the article.
The second problem is more difficult. Some lawyers sexually harass people with whom they work. Sometimes they may do even worse than that. There will be many cases where the lawyer’s conduct falls clearly within one of the definitions of misconduct. The next thought to add is that a lawyer’s victims in this respect may well be other lawyers. If that’s the case, then the victim will be under a professional obligation to make a confidential report. The victim will have more than at least reasonable grounds to suspect; after all, they were there and experienced it.
I don’t feel qualified to offer an opinion on much on this topic. But it does strike me as intensely unsatisfactory in some cases that a lawyer who is already a victim in that situation would have what little sense of power and control they can muster in the aftermath removed from them by a rule that says they must promptly tell the Law Society.
There are responses to my point. Abusers should face disciplinary action. Prosecutorial discretion will mean victims aren’t prosecuted for a breach of r 2.8. All true. But a lawyer-victim in that situation has likely suffered enough in a situation like that without their professional obligations turning on them too.
I wrote a bunch of moot problems this year for various groups. They are posted below and you are welcome to use them with no attribution and free of charge. I wrote guides for judges for the first two problems, and you can message me on Twitter if you want those.
I have confirmed with the various groups that I can do with them now what I want, including distribute them. Alternatively, feel free to take the underlying issues and adapt the problems as you see fit. PDFs should be able to be downloaded at the links below.
Issue One: the meaning of “use” in the offence of dishonest use of a document.
Issue Two: the threshold for making enquiries of jury deliberations post-trial under s 76 of the Evidence Act 2006.
Issue One: whether certain diversion agreements under the Police Adult Diversion Scheme are lawful in light of Osborne v Worksafe New Zealand  NZSC 175 (see also this post).
Issue Two: name suppression following the granting of diversion to a young offender.
Single issue: when does litigation privilege expire?
Issue One: the enforceability of a no-oral-modification clause in light of the UK Supreme Court’s decision in Rock Advertising v MWB Business Exchange Centres Ltd  UKSC 24 (problem predicated on difference in approach between Lord Sumption and Lord Briggs).
Issue Two: whether consideration required for a variation of a contract and whether receipt of a practical benefit is good consideration.
There are some excellent summaries of the now-many Colin Craig cases. I like this one and this one in particular. This post is not those. Instead, it aims to collate and recap the litigation purely from a legal perspective. Fina
Below is a list of cases available on legal databases (Westlaw NZ, LexisNexis NZ, and nzlii.org). Any judgment only gives a small window into the case, and relying on judgments alone cannot give a complete picture. There will be court minutes, non-published decisions, and jury verdicts (when it comes to defamation) that are not available publicly. Even the best good-faith reconstruction from judgments may get aspects of the relationships and cases incorrect. For that reason I am, of course, very happy to correct anything here. In addition, links to the decisions are provided, and these should be favoured over any very brief summary in this post. Any inaccuracy through brevity is regretted.
Not included is Mr Craig’s bid to be included in a televised election debate.
Ms MacGregor brings a claim in the Human Rights Review Tribunal against Mr Craig for breaching the terms of a confidential settlement agreement. Mr Craig brings a counterclaim seeking a declaration he had validly cancelled the settlement agreement.
Mr Craig sues Ms MacGregor in defamation and Ms MacGregor brings a counterclaim in defamation.
Mr Williams sues Mr Craig in defamation and Mr Craig brings a counterclaim in defamation.
Mr Craig sues Mr Williams in defamation (separate proceedings to the matters above).
See also claims below against Mr Williams and Social Media Consultants Ltd together.
Mr Craig sues Mr Stringer in defamation. Mr Stringer sues Mr Craig in defamation. Mr Stringer also had a counterclaim but abandoned that due to his other separate defamation proceedings.
Mr Craig sues Social Media Consultants Ltd and Mr Williams for breach of copyright.
See also claims against Mr Slater and Social Media Consultants Ltd together.
Mr Craig sues Mr Slater and Social Media Consultants Ltd in defamation and Mr Slater brings a counterclaim in defamation.
Mr Craig sues Ms Stiekema in defamation.