The Independent Panel review: a watershed moment for the legal profession
Baden Vertongen (Ngāti Raukawa) gives his account of the Independent Panel Review’s report and why change is needed in our legal profession.
In March of 2022 the New Zealand Law Society (Law Society) commissioned an Independent Review Panel (the Panel) to review the framework for the regulation and representation of legal services in Aotearoa New Zealand. The Panel (Professor Ron Paterson, Jane Meares and Professor Jacinta Ruru) released an initial discussion paper in June of 2022, circulated surveys, conducted meetings with members of the legal profession, undertook research, and looked at overseas examples of the regulation and representation of the legal profession.
The Panel’s final report was released on 9 March 2023. That report contains a number of detailed and wide-ranging recommendations about how the legal profession should be regulated.
They cover issues that include whether there should be an independent regulator for the profession – one that is separate from representation functions. They ask about the place of Te Tiriti o Waitangi in the regulation and conduct of the profession. They discuss the approach any regulator should take to protecting the interests of consumers and supporting practitioners. They consider the scope of what might be regulated, including the business structures allowed within the profession. And they examine issues of diversity and inclusion.
The profession is a diverse one in a number of ways (though, as the Panel points out, not as diverse as it should be in some key areas). As a result, there will be a range of different views about each of the issues that the Panel raises, and there will be much debate to come. But across all of these issues the Panel clearly identifies, and compellingly argues, that change is clearly needed.
The background to why the Panel came about also needs to be kept in mind as part of this discussion, and for why change is needed. This process has its genesis in the 2018 public outcry when the prevalence of sexual violence, harassment, bullying, racism, sexism, homophobia, transphobia and abuses of power in the legal workplace became clear. The forerunner to the Panel is the 2018 Cartwright report that found that this behaviour was ‘part of the fabric of the profession and had been left unchecked for too long’. That report called for changes if the legal profession was to maintain its reputation and be fit for the future. As a result of that 2018 report some changes were made, such as requiring the mandatory reporting of misconduct, and the definition of this extended to include sexual misconduct and bullying. But deeper changes were needed to ‘the fabric of the profession’. The work of the Panel picks at that fabric, and that context is important to keep in mind.
Part of the reason why considering change can be so challenging for some of us is because the issues driving the need for those changes do not necessarily affect us all in the same way. If you have not had the experience of being sexually harassed or bullied, have never been mistaken for a defendant rather than a lawyer at Court, have not felt the pressure of being one of a small minority in a profession that is not representative of the wider population, then it may be challenging to see the experience that others have had and see the need for change.
But these things, and others, do happen and change is needed.
If this has been your experience, then your views on the matters grappled with in this Report are needed in continuing to push for change and to help develop a profession where this does not continue to occur. Your voice is important.
If these things have not happened directly to you then listen to, and hear, the voices of those to whom they have. Then consider whether or not you are happy that the profession that you are part of enables this, and whether it is the type of profession that you want your sons and daughters to be part of.
Change can also be confronting and challenging because we are tied to our history. Law Society has – for some – a long and illustrious history that stretches back to its establishment in 1869. But for others, we see 1869 as being a year when Pākehā New Zealand was still at war with Māori in parts of Aotearoa such as Taranaki and Tairāwhiti. NZLS has a history and structure that does not look to our founding constitutional documents, such as Te Tiriti, for its legitimacy and to help define its relationship with Māori. The Law Society’s history is one of significant achievements – but it is also a history where it took 28 years before women and Māori became part of the profession, 103 years before a Māori woman was a member of the profession, and 148 years before a Māori judge sat on our appellate courts. The systemic problems with ‘the fabric of the profession’ that led to these outcomes are still there – many groups remain underrepresented in key, and senior, parts of the profession. Change is needed and overdue.
The discussion about what the change should look like will be an important opportunity for those members of the profession who haven’t been able to see or hear themselves reflected in the representation and regulation of the profession in the past to have their say. NZLS, and its successor(s), must provide a whare that is inclusive and accountable to represent and regulate all of the profession. It therefore needs to be a body (or bodies) where all parts of the profession can see themselves reflected and see some legitimacy for its role.
What happens next with the Panel’s report, and their recommendations, now sits with the profession itself and with the Government. This is a ‘once in a generation’ opportunity to build a profession that looks to the future and is not chained to the problems of the past. But seizing that opportunity will need a broad range of members of the profession to have their say, and for others to listen and hear those voices. We now all have a responsibility to speak and to listen.