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Effective intervention – the AODT Court celebrates two years of making a difference Can't touch this! Can cellphones be seized and searched? Clients recording legal advice – should we go there? ISSUE 41 21 NOVEMBER 2014 The Alcohol and Other Drug Treatment Court recently held a training day at ADLSI's Chancery Chambers premises. Among those pictured are Court Pou Oranga, Rawiri Pene (front centre), flanked by Judge Lisa Tremewan and Judge Ema Aitken. Also present were Judge Philippa Cunningham (far left), along with a number of lawyers, case managers, police prosecutors, peer support workers, probation officers, Ministry of Justice staff, case coordinators and representatives from marae kaitoko whanau support. + Courts, alcohol and other drug treatment
ALCOHOL AND OTHER DRUG TREATMENT
COURT MARKS TWO YEARS OF A NEW Their Honours Judges Lisa Tremewan and
In honour of the occasion, pioneering unique New Zealand context. Ema Aitken reflect on achievements to date
international Drug Court expert, Judge Peggy and what is ahead for the AODT Court
Hora, visited from her San Francisco base, Another regular training day was also held in late and was also on hand to run some additional September, with the venue provided by ADLSI, The adult Alcohol and Other Drug Treatment
team training. Judges Lisa Tremewan and Ema as pictured above.
(AODT) Court, Te Whare Whakapiki Wairua,
Aitken, who have overseen the establishment which sits at the Auckland and Waitakere
The AODT Court is currently operating under of the AODT Court, regard such ongoing District Courts, marked its two-year
a five year, fully evaluated pilot. Each of the training opportunities as vital. The Court is anniversary in early November this year.
Courts is currently restricted to a cap of fifty founded on evidence-based best practice, but with that research then being applied to the Continued on page 2

+ Courts, alcohol and other drug treatment
ALCOHOL AND OTHER DRUG TREATMENT
COURT MARKS TWO YEARS OF A NEW Continued from page 1
only been providing treatment options for alcohol and other drug issues, but a number of participants. Currently, the Courts are close to other programmes are offered, such as anger being "full" with around 90 participants across management, driver safety programmes, and a the two Courts. However, with graduations from highly effective Cognitive Behavioural Therapy the 12-18 month programme now occurring (called MRT) proven to be well suited to these regularly (as well as other exits taking place defendants in making changes to their ‘criminal where some participants are unable to comply thinking'. Feedback from the participants with the Court's strict obligations), there are still themselves has also been positive; they places available for incoming applicants who appreciate being assisted to make these changes." meet the prescribed eligibility criteria. One of the entry criteria requires the participant (who The Judges stress that the Court is not an easy will receive a community-based sentence on option. Applicants must realise that, if accepted, graduation) to have otherwise been looking at a Her Honour Judge Lisa Tremewan, Her Honour their participation in the Court would be akin to Judge Peggy Hora (from the United States) and term of imprisonment for up to three years. All a "full-time job" for 12 to 18 months (or more), Her Honour Judge Ema Aitken current active charges must have guilty pleas as they pursue a life in recovery. Their progress entered to gain entry; the Court only takes cases is scrutinised by the AODT Court team, which which are post-plea but pre-sentence. works in a non-adversarial way, and while progress and compliance are acknowledged When describing the work of the AODT Court, It is imperative that duty along the way, sanctions are also applied in the Judges emphasise that the New Zealand lawyers are alert to cases response to breaches, using a "carrot and stick" Courts follow the internationally accepted, which may be suitable to be highly authoritative research of Dr Doug Marlowe. This research identifies these types referred to the AODT Court. Lawyers should be aware that those with mental of courts as being best suited to what might be health or physical health concerns (other than Time is of the essence as the deemed the toughest group – those not only those which are already inherent with alcohol with "high needs" (in terms of their alcohol or research indicates that entry or other drug dependency) may likely be other drug dependency) but who are also at into the Court within unsuitable for entry and care is needed not to "high risk" of non-compliance. raise unrealistic expectations. "In some cases 50 days of offending or arrest we have received applications from defendants "In other words," says Judge Tremewan, "these enhances the likelihood of who would be obviously better suited to a are the ones for whom the system has effectively mental health court – which this Court is not. tried everything before, but they continue a positive outcome. The We cannot be all things to all people, and if we to be in a revolving door within the criminal Judges find it frustrating are to demonstrate that the AODT pilot court is justice system. It is therefore important when successful, then we must be very mindful of the when occasionally sitting considering the work of these Courts, that one entry criteria," remarks Judge Tremewan. bears in mind that we are dealing with what in the normal District Court might be termed the ‘hard basket'. The benefits So far, there have been more than twenty sentencing court, to see of dealing better with this challenging cohort are graduations across the two Courts. After however, obvious, both for the community and cases which appear well graduation, graduates are also invited with for the participants who have a chance to wholly suited to the AODT Court, their whanau to a ceremony held twice yearly change the direction of their lives." "He Takitini" (which refers to the many who but were not referred, and stand together), where they are presented with Judge Aitken notes that the results at this early are long past the 50 day a pounamu taonga representing their place in stage are already looking very promising: "In the the group of graduates from the Court as well as 12 months before the participants came into the "advisory rule". their ongoing commitment to their recovery. The AODT Court, they had been known to commit first such ceremony was held at Orakei marae more than 900 offences between them; however and was attended by more than 200 people in the 12 months after they entered the Court including various dignitaries, officials and also these participants had collectively committed the current participants from the AODT Court. only nine offences. While this is still nine which this Court is dealing," says Her Honour.
offences too many, it is a significant reduction in While the participants have come from the rate of offending and especially significant Judge Aitken also describes the range of services many varied backgrounds, the largest group given the high risk/high needs group with provided to the participants: "We have not Continued on page 10
Editor: Lisa Clark
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free of charge to members of ADLSI, and ISSUE 41, 21 NOVEMBER 2014

+ Human rights law
US Supreme Court decision Riley v California –
searching data in seized cellphones Associate Professor Scott Optican of the University Hence, searches under the SITA rule were held of Auckland's Faculty of Law recently spoke about reasonable under the 4th amendment, and the a 2014 United States Supreme Court (USSC) USSC established this as a bright line rule for search and seizure case (Riley v California (2014) police – whether or not there were actually facts 573 US) at an event recently presented by New to suggest that a search was necessary to secure Zealand Centre for Human Rights Law, Policy and evidence or seize weapons from an arrested Practice and hosted by Minter El ison Rudd Watts criminal suspect.
Lawyers. The theme of the evening was "Privacy and religion: The 2014 US Supreme Court Term The facts at issue in Riley v California were and some implications for New Zealand", and saw as follows. Mr Riley was arrested in 2009 by Associate Professor Optican and Professor Paul California police following a lawful traffic stop, Rishworth QC present two cases from the 2014 which subsequently revealed that he had loaded USSC term. This article is based on Associate firearms in his car. As part of the arrest process, Professor Optican's talk. Mr Riley was subjected to a SITA and his cellphone (which was a smartphone) was seized "Reasonable" search and seizure
from his pocket. Believing that they had the The United States Bill of Rights comprises
4th amendment authority to search all objects the first ten amendments to the United
and containers in Mr Riley's possession, police States Constitution. The 4th amendment in
officers went through the messages, contacts, particular deals with search and seizure by
videos and photographs on the smartphone. In Associate Professor Scott Optican government actors (usually the police), and
doing so, they found evidence that linked Mr states that all such searches and seizures must
Riley to an unrelated shooting that had taken be "reasonable". An equivalent provision can
place several weeks prior to his arrest and in be found in section 21 of the New Zealand
Chief Justice Roberts of respect of which he was ultimately charged.
Bill of Rights Act 1990 (NZBORA), discussed
Prior to trial, Mr Riley applied to suppress the US Supreme Court said all of the evidence that police had obtained that comparing modern on his cellphone (pursuant to the USSC- Associate Professor Optican posed the fashioned exclusionary rule for illegally- question, "How does the USSC decide what smartphones to wallets, for obtained evidence), claiming that the cellphone is reasonable?" To answer that, he turned to the purposes of applying had been unreasonably searched under the the USSC's view that the essence of the 4th "search incident to arrest" 4th amendment. The State of California amendment is to protect personal privacy, and (unsurprisingly) moved to dismiss the claim, that the requirement of "reasonable" search rule, was like saying "a ride stating that the well-established SITA doctrine and seizure protects "people and not places". on horseback is materially permitted the full search of Mr Riley's cellphone, So, to determine reasonableness with respect just like it did any other object or container in to any particular police search, a court would indistinguishable from a Mr Riley's possession. The Californian Supreme have to balance the nature, scope, and strength flight to the moon". Modern Court held that the SITA rule applied, and the of the privacy interest at issue against the law case went to the USSC from there.
enforcement interests surrounding the police smartphones "implicate investigation in question. While a reasonable privacy concerns far beyond Associate Professor Optican likened the way search is one where the law enforcement those implicated by the in which the case was framed in the USSC interests justify a particular intrusion on to a "Sesame Street" argument, based on the personal privacy, an unreasonable search is one search of a cigarette pack, a television show's popular "Which of these things where the privacy interests win out. wallet or a purse". is not like the other?" segment. Essentially, Riley v California comes down to just that: is Over the decades, the result of this balancing a cellphone just like a wallet or handbag, for approach has been to create categories of the purposes of applying the SITA rule? Or is "reasonable" and "unreasonable" searches and a smartphone different enough to such objects seizures under the 4th amendment. Because that a different reasonableness balancing test they are constitutionally based, these apply to under the 4th amendment should apply? While police officers all over the United States. In fact, backpacks), and any other receptacles or spaces the Californian Supreme Court argued that almost all of the important and interesting rules within the arrestee's immediate grabbing area. these types of items were not different from each of police search and seizure have been shaped The justification for the SITA rule had to do with other, in a 9-0 decision the USSC disagreed.
by USSC interpretations of reasonableness, both sides of the 4th amendment balancing test. meaning that the most significant rules in the On the privacy side, criminal suspects were said Decision of the USSC
United States governing police searches are a to have "reduced expectations of privacy" once Writing the principal opinion for the USSC, product of constitutional common law.
the police had taken control of their person, based on probable cause to believe that they had Chief Justice Roberts said that comparing Riley v California – facts and issues
committed a crime. On the law enforcement side, modern smartphones to wallets, for the purposes the police were said to have strong interests in of applying the SITA rule, was like saying "a ride Turning to the case at hand, Riley v California conducting the search in question, in order to on horseback is materially indistinguishable from dealt with one clear and reasonable type of search a flight to the moon". The USSC acknowledged under the 4th amendment – the "search incident that, with respect to the law enforcement to arrest" rule (SITA). As far back as 1969, the the suspect did not have access to a interests justifying the reasonableness of the USSC held that, when an individual was arrested SITA rule, modern smartphones could very likely by the police, the police could search his or her in order to search for evidence in the contain significant evidence of criminal activity. person, any containers in his or her possession suspect's possession that could be relevant However, on the privacy side of the balancing (such as a wallets, cigarette packs, handbags or to the offence charged or other offences. Continued on page 11
ISSUE 41, 21 NOVEMBER 2014 + Mental health
Food for thought – should mental health clients
be able to record discussions with lawyers? By Carole Curtis, Principal at Marshall Bird
Is it now, with the advance technology, the right of a client to be able to & Curtis and Convenor of ADLSI's Mental
record (for listening to later) the advice given at Health & Disability Committee
of modern technology, the the time by counsel? right of a client to be able In September this year, I was fortunate
One of the difficulties, of course, is that we as enough to attend a medico-legal conference in
to record (for listening to lawyers have no control over how or when the Greece and enjoyed a week-long programme
later) the advice given at recording can be used. of papers presented on different issues both
legal and medical.
the time by counsel? One of Also, we have no control over whether that the difficulties is that we as recording has been tampered with, so what may One issue that was raised in a paper by Dr have been said originally to the client is not John Mailos, a medical practitioner from lawyers have no control over then what is possibly replayed to a third party or Australia, was the "Audio Recording of Medical how or when the recording indeed the client themselves.
Consultations: Friend or Foe?" can be used. Also, we have The relationship is between the lawyer and the This was a very interesting seminar paper no control over whether that client – and not a third party. It was of concern because it looked at the issue of trust between the possibility that information given to Client A the doctor and the patient and how medical recording has been tampered can be replayed and provided to a non-client or information was conveyed. with, nor whether information even the client elsewhere.
Dr Mailos often had to convey complex medical given to Client A can be It was of concern that, as counsel, we simply information to a patient and sometimes replayed and provided to a have no control over the information that has distressing news to a patient whose presenting been recorded and it can be relayed to others condition may not be able to be assisted by or altered and left lying around for an unknown modern medicine.
third party to read.
Often such news would be distressing to a It was the view of the Committee that, when we are acting for clients who are fragile and vulnerable, we would not want our legal Dr Mailos was of the view that it was quite consultation and advice given to be recorded in acceptable for his patients to be able to record the consultation so that, in their own time, they can listen to the medical data received. The writer follows up her legal advice with a letter to the client setting out the advice given This is an interesting concept for lawyers, and would be our response to either a request or and any plan of action that might be pursued, is a topic that ADLSI's Mental Health and an observation that a client was recording the and this was seen to be perhaps a more sensible Disability Committee considered at our last conversation and the legal advice given. The writer herself practises in both mental There are real privacy issues that arise and There are a number of issues raised when health and refugee law and clearly indicates possibly the intellectual property as well for the lawyers are giving legal advice to vulnerable to her clients at the start of any meeting that lawyer in respect of the advice. cellphones are to be switched off and we are always happy to put our legal advice in writing It would be very interesting to know what is the Lawyers who practise in the area of mental later to the client. practice of other lawyers concerning this issue. health see clients who may be suffering from delusional thoughts and can be in various stages Another colleague actually takes the cellphone Any comments or feedback for the Mental Health from the clients to ensure that they are not & Disability Committee on the issues raised in switched on and the advice being recorded. this article can be sent to Ben Thomson at Some do have access to cellphones and, at the Committee meeting, we discussed what Yet is it now, with the advance of modern + Update from ADLSI's Commercial Law Committee
Unfair Contract Terms – Commerce
Commission Guidelines Provisions of the Fair Trading Act that
Submissions on the draft guidelines closed on A final version of the guidelines is expected prohibit the inclusion of unfair contract
14 October 2014. ADLSI's Commercial Law shortly and should be available on the terms in standard form consumer contracts
Committee made a submission, see Commerce Commission website.
come into effect on 17 March 2015.
ADLSI is holding a webinar on this topic on In July 2014, the Commerce Commission 11 February 2015. See page 8 for more details. released draft guidelines to explain how it The draft guidelines can be found online at: considered the new law would work and how it would approach enforcement. ISSUE 41, 21 NOVEMBER 2014

+ Insolvency law, tax
Supreme Court disagrees that IRD has "super
By Brent Norling, Senior In-house Counsel,
Decision of the Supreme Court
On 7 November 2014, the Supreme Court The facts
released its decision in respect of this matter Jennings Roadfreight Ltd (Jennings) was
(Jennings Roadfreight Limited (in liq) v placed into liquidation on 24 March 2011. At
Commissioner of Inland Revenue [2014] NZSC liquidation it owed the IRD approximately
160). The decision is also significant to the $50,000 for PAYE.
insolvency industry. At the liquidation date, Jennings held $14,076.38 The Supreme Court has held that the IRD's in its bank account. After liquidation, pursuant interpretation of section 167(1) of the TAA to its seemingly infinite powers, the IRD caused would have the effect of allowing the IRD to Jennings' bank to pay the funds to the IRD. "leapfrog" ahead of other preferential creditors. The Supreme Court considered that this would The liquidators of Jennings made an application be contrary to the scheme of the legislation. to recover these funds. The Supreme Court agreed with Ellen France J In response to the application the IRD submitted Brent Norling and Associate Judge Doogue and held at [46]: that, in the event that the IRD is owed PAYE and the liquidated company has a credit balance "All the PAYE at issue in this case had been in its bank account, then the IRD is entitled to deducted but not paid to the Commissioner receive the balance pursuant to the statutory The Supreme Court's decision on its due date and it remained unpaid at the trust created by section 167(1) of the Tax time of liquidation. The funds were not kept Administration Act 1994 (TAA). The liquidators in Jennings restores unison by Jennings in a separate account. This means submitted that the statutory trust created by between the Companies Act that all of the PAYE that was unpaid at the time section 167(1) of the TAA is extinguished by the of liquidation in this case (including the credit and the Tax Administration liquidation of a company. balance in the bank account of $14,076.38) is Act. More importantly, dealt with under s 167(2) and is thus distributed The liquidators were successful at the High in accordance with the priorities set out in sch 7 Court and Associate Judge Doogue held that the certainty is achieved in a of the Companies Act." "trust" ended at liquidation. liquidation where the order In the writer's opinion, the Supreme Court's However, that decision was overruled by the of priorities is unambiguous decision restores unison between the Companies majority of the Court of Appeal (Wild and White and centralised in a single Act and the TAA. More importantly, certainty JJ), with Ellen France J dissenting. is achieved in a liquidation where the order of priorities is unambiguous and centralised in a The Court of Appeal decision was significant for single identifiable schedule. the insolvency industry. The key take-outs are: On the basis of the Supreme Court's decision, Under section 167(1) of the TAA, any credit creditors of failed companies have certainty in Jennings' bank account at liquidation was The issues for the Supreme Court
that assets of the liquidated company will be held on trust from the IRD. distributed in accordance with schedule 7 of the The Supreme Court (Elias CJ, McGrath, William As such, the bank account of Jennings Young, Glazebrook and Arnold JJ) were tasked does not form part of the estate in the with considering: There is, however, a question left open as to whether the IRD is entitled to retain funds it The relationship between section 167(1) The decision altered the order of priorities has received prior to liquidation of a company. and (2) of the TAA; and under Schedule 7 of the Companies Act 1993 as In particular, whether a liquidator could claw the IRD effectively obtained a super priority as The nature of the "trust" created by section these back pursuant to the voidable transaction against all other creditors. A range of preferential offers, available to ADLSI members, from carefully selected partners.
To view the latest offers visit www.adls.org.nz
ISSUE 41, 21 NOVEMBER 2014 + Local government law
Development contributions – legislative update
By Shaun McAuley, Senior Solicitor, Legal
Developers may request that councils infrastructure" limits this activity to Services, Auckland Council
enter into development agreements for the funding community centres, halls, play delivery and funding of infrastructure. The equipment on neighbourhood reserves, There is now a "new regime" for development
legislation requires councils to consider and toilets. Whilst this amendment has contributions as a result of the Local
these requests without "unnecessary delay" resulted in some reduction of development Government Act 2002 Amendment Act 2014,
but does not compel councils to enter into contributions, councils will need to use which largely came into effect on 8 August
these agreements. other funding sources to fund projects such Councils may no longer require reserve as libraries and aquatic centres.
New purpose and principles sections are set contributions for non-residential activities. A gap in the legislation has been plugged to guide future development contributions It is not clear what this will mean for the now that councils may require development decision-making. The purpose itself nicely provision of open space to service new contributions when certificates of summarises the tenor of the new framework commercial and industrial centres.
acceptance are granted for unlawful – it provides that the purpose of development building work.
contributions is to enable councils "to recover Key changes for councils
from those persons undertaking development Some of the key amendments that affect councils Whilst the legislation prohibits councils a fair, equitable, and proportionate portion of requiring reserve contributions for non- the total cost of capital expenditure necessary to residential activities, it confirms that service growth over the long term". Councils may now adopt, and amend, councils may require these contributions development contributions policies for accommodation units (such as motels I have identified the primary amendments and without the need to undertake the formal and hotels).
discussed them below, by reference to whether "special consultative process" in the Local the amendments primarily affect developers or Government Act 2002. This will allow councils to fund infrastructure by creating new, or enlarged, funding areas in parallel Whilst some of the amendments may be viewed Key changes for developers
with the promulgation of new special as a clarification of existing practice or existing interpretations of the previous law, other There are three key changes that affect housing areas and plan change areas.
amendments will clearly have broader-reaching Councils are required to publish a schedule implications such as the new development Developers may object to development of the projects and programmes that will contributions objections framework. contribution assessments. The objections be delivered by development contributions. If you are interested in learning more about will be heard (at a hearing, if requested) by Whilst this gives the community greater the amendments and what they will mean in independent development contributions visibility as to what development practice, you may wish to register for the ADLSI commissioners. This is a significant change contributions are delivering, councils retain Seminar "Development Contributions – The New as previously the only way to challenge the ability to reprioritise projects as long as Regime", scheduled for 25 November 2014. Please development contributions was by way of the overall price does not increase.
see page 8 for more details. LN judicial review.
A change to the definition of "community + Appointments
Simpson Grierson appoints head of Public
Simpson Grierson has appointed Tony
government and business, giving him a Ryall as the new head of its Public Policy
diverse and unique view across the New practice. Mr Ryall will join the firm at the
Zealand and wider regional economy." end of January next year.
Mr Ryall has thoroughly enjoyed his political In this role, he will provide strategic and career but is now very focussed on his future operational leadership to Simpson Grierson's as a key member of the Simpson Grierson Public Policy practice nationally and "The interface between the public and private "Tony brings to Simpson Grierson a long sectors in New Zealand is increasingly and impressive track record in public life," important, and I am looking forward to said Simpson Grierson's Chairman Kevin working at that interface with Simpson Jaffe, "and he will be a strong contributor Grierson and its clients," he says.
to the firm's senior leadership team. This Tony Ryall appointment is another significant initiative in During a distinguished parliamentary career, the development and growth of our firm.
Mr Ryall has held portfolios as Minister of a number of large, complex ministries. He's Health, Minister of State-Owned Enterprises, "Tony is a proven leader who has gained wide a strategic thinker with strong analytical and Minister of State Services, Minister of Justice, respect across the political spectrum as well as problem-solving strengths.  Minister in Charge of Housing New Zealand from community and business leaders. During Limited, Minister of Local Government, and his parliamentary career he has compiled an "Over the years Tony has developed an in- Minister in Charge of the Audit Department.
impressive ministerial record while leading depth knowledge of public policy issues across ISSUE 41, 21 NOVEMBER 2014 + New book
A Practitioner's Guide to the Property Law Act
2007, 2nd Edition Author: Jody Foster
Pages: 1024
A Practitioner's Guide to the Property Law Act 2007, 2nd Edition is a
practical and easy-to-use reference resource providing thorough section- by-section commentary to the Property Law Act 2007. This book is designed to provide busy practitioners with quick access to the many areas of law covered by the Property Law Act 2007. The equivalent provisions of the Property Law Act 1952 are also identified Additional features include a user-friendly table of words defined in the Property Law Act 2007, a concise exposition of legal rules commonly referred to in the context of that Act, and tables comparing the provisions of the Property Law Act 2007 and the Property Law Act 1952.
Price: $173.91 plus GST ($200.00 incl. GST)*
Price for ADLSI Members: $156.52 plus GST ($180.00 incl. GST)*
(* +Postage and packaging)
To purchase this book please visit http://www.adls.org.nz/adlsi-store
or contact the ADLSI bookstore by phone: 09 306 5740, fax: 09 306
5741 or email: [email protected].
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Send your order to: Auckland District Law Society Inc, P O Box 58, Shortland Street, Auckland 1140, DX CP 24001 Fax: (09) 309 3726 Forms enquiries DDI (09) 306 5740; Email: [email protected] To view all ADLSI CPD & register: www.adls.org.nz/cpdEmail us: [email protected] Phone us: 09 303 5278 Featured CPD
Introducing the ADLSI Companies Suite of Precedents II: The Sale and Purchase of Shares Agreement
3 December 2014 This webinar introduces a further WebForm in the companies suite: the Sale and Purchase of Shares Agreement.
12pm – 1pm Precedent author, Chris Bradley, and Patrick Learmonth will indicate how to use the Agreement to best effect and will discuss some of the challenging issues lawyers encounter when advising clients in this area.  A sample copy of the new Agreement will be provided to registrants.
on your portable device Learning Outcomes• Become familiar with the new Sale and Purchase of Shares Agreement.
1 CPD HOUR
orkshop Gain insights int o the rationales for the structure, the content and the wording of various clauses of the Agreement.
• Develop an awareness of choices and considerations for tailoring the precedent to meet clients' particular needs.
Who should attend?Any lawyers who advise clients about buying and selling shares.
Presenters: Chris Bradley, Director, Carson Fox Bradley Limited; Patrick Learmonth, Partner, Macky Roberton
Development Contributions – The New Regime
s in the law rela o development contributions are upon us. This seminar will equip you with need-to-know information about the new regime: what it will mean for you, your clients and other stakeholders.
Learning Outcomes • Become familiar with the legislative background and changes, including key definitions, objections, reconsiderations and costs.
• Learn how Auckland Council, and possibly others, will implement the new legislation.
• Discover how these contributions will interrelate with resource consents, infrastructure funding agreements and development 2 CPD HOUR
Who should attend?
Resource management and local government lawyers, developers and council officers.
Presenters: Padraig McNamara, Partner, Simpson Grierson; Shaun McAuley, Senior Solicitor, Infrastructure & Contributions, 
Auckland Council; Vicki Toan, Senior Associate, Glaister Ennor
Chair: Bryce Town, Partner, Morrison Kent
Wednesday, 6. Webcast The Financial Mark
ets Conduc
t Regulations: Charting the Changes
The long-awaited FMC Regulations complete one of the most significant changes to financial dealings in New Zealand. This webinar provides an essential update on the new Regulations and useful guidance on how to apply them in respect of the various financial product categories. This session is a time-effective way to gain an understanding of this complex area.
Learning Outcomes • Understand the consequences of choosing to adopt the FMCA regime early.
on your portable device • Gain practical insights into the relationship between Product Disclosure Statements (PDS) and the Offer Register.
• Develop a better understanding of how to design efficient and effective due diligence processes.
1 CPD HOUR
Learn about the new lic • Be updated on what to expect during the transition period and the exemptions that will apply.
Who should attend?Commercial lawyers with some knowledge of the FMC Act, bankers and their in-house counsel, fund managers, corporate trustees and investors.
Presenters: Lloyd Kavanagh, Partner, Minter Ellison Rudd Watts; Ross Pennington, Partner, Chapman Tripp
The Unfair Contr
act Terms: Taking Standard Form Consumer Contracts to Task
11 February 2015 The new provisions of the Fair Trading Act set out the law relating to unfair contract terms. They substantially change the rules that apply to standard form consumer contracts. It is vital for lawyers to be able to advise clients on the changes involved and to know what action the Commerce Commission, as enforcer, will take if the terms are breached. This webinar will provide timely advice, and practical examples of both.
on your portable device Learning Outcomes• Gain a clearer understanding of the scope and application of the new legislation.
1 CPD HOUR
4. Conferenceout the role of the Commerce Commission and its intended approach to potential breaches.
• Be better equipped to identify terms that may infringe the new law.
• Develop tactical ways of avoiding or redrafting unfair contract terms. Who should attend? Commercial lawyers, transactional lawyers, litigators, in-house lawyers and general practitioners who need to be fully aware of the significant changes coming into force on 18 March 2015.
ISSUE 41, 21 NOVEMBER 2014 CPD in Brief
Traffic Law: Offences, Defences, Experts and Interlocks
Thur, 12 February 2015 4pm – 6.15pm To view all ADLSI CPD & register: www.adls.org.nz/cpd Traffic law affects our everyday lives and is subject to rapid and constant change, partly because of technological advances.
Presenters: Sergeant Craig Kitto, National Trainer, Police Prosecution Service, NZ Police; Steve Cullen, Barrister, Albion
Email us: [email protected] Phone us: 09 303 5278 Chambers; Dr Anna Sandiford, Director and Expert Witness, The Forensic Group Ltd; Gavin Foster, Director, Sober Check
Self-Represented Persons: Problems and Solutions – Family Law
Wed, 18 February 2015 12pm – 1pm Trending now: numbers of self-represented and unrepresented litigants in New Zealand. This webinar, the first in a series, will address the gener context and focus on Family law issues for judges and practitioners – and how to manage those issues.
Presenters: His Honour Judge Maude; Lynda Kearns, Barrister, Bastion Chambers
Commercial Law Series: Employee Share Plans – ESOPs Fables and Facts
Wed, 4 March 2015 1 Hot on the heels of changes brought about by the Financial Markets Conduct Act, this webinar will cover the regulatory environment, the typ of schemes and considerations that apply, as well as the features of options schemes and share purchase schemes.
Presenters: Andrew Simmonds, Managing Partner, Simmonds Stewart; Julie Fowler, Partner, Simmonds Stewart 
The CCCFA, Lending & Enhanced Consumer Protection
Wed, 25 March 2015 4pm – 6 The Credit Contracts and Consumer Finance Act has been significantly amended as part of wider reforms of the financial sector. Standard form contracts and information disclosure, amongst other things, will have to change. This seminar will enable you to prepare your clients for the amendments which come into force next year.
Presenters: Brett Carter, Principal Counsel Competition, Commerce Commission; Jonathan Flaws, Partner, Sanderson Weir
Chair: Gayatri Jaduram, Lawyer and Disputes Tribunal Referee
2015 SAVE THE DATES
Property Law Half-Day Conference Tues, 24 February 2015 12.30pm – 5pm
Cradle to Grave Conference Auckland: Mon, 20 April 2015 Christchurch: Thur, 23 April 2015
CPD On Demand
Unit Titles Unleashed: Practical Tips on Rules and Committees – 1 CPD HOUR
Are the courts changing their view in relation to unit title rules and committees? Attend this webinar for practical guidance on t
to unit titles: body corporate operational rules and committees. Presenters: Joanna Pidgeon, Principal, Pidgeon Law; Liza Fry-Irvine, Senior Associate, Pidgeon Law 
Sale and Supply of Alcohol Act 2012: What all Lawyers Need to Know about the new Liquor Laws – 1.5 CPD HOURS
This On Demand seminar provides a brief historical context to ensure all practitioners understand the scale of the changes intr6. Weo
became effective on 19 June and 19 December 2013. 
Presenters: Alan Dormer, Barrister & Author; Mary Davenport, Senior Solicitor, Legal Services, Auckland Council
CPD Pricing
D3. W3. Weliv
ery Metho
Member Pricing
ebinar 3. Workshop $75.00 + GST (= $86.25 incl. GST) $95.00 + GST (= $109.25 incl. GST) S7.7.eminar (in p $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST) $125.00 + GST (= $143.75 incl. GST) $180.00 + GST (= $207.00 incl. GST) On Demand (1-hour recording) $85.00 + GST (= $97.75 incl. GST) $110.00 + GST (= $126.50 incl. GST) On Demand (2-hour recording) $95.00 + GST (= $109.25 incl. GST) $130.00 + GST (= $149.50 incl. GST) For group bookings for webinars & CPD On Demand, see the ADLSI website at: www.adls.org.nz/cpd/help-and-faqs/group-bookings/. ADLSI LIVE STREAMING
Bringing seminars to you,
wherever you are.
ISSUE 41, 21 NOVEMBER 2014 Continued from page 2, "Alcohol and Other Drug Treatment Court marks two years of a new approach" represented are Māori. The Judges are not a good alcohol- and other drug-testing regime is members, employers and the wider recovery surprised by this. Judge Tremewan states, extremely effective. community. In other words, strong support in "We know about the unacceptable over- and around their daily lives and that support will representation of Māori in our national criminal Two years in, the Judges have noticed that, while be lost if they move away once the programme is justice statistics, however we have a significant some lawyers are proactive about referring opportunity in this court to establish different suitable cases to the Court, this is not what processes dealing better with root causes in a occurs across the board. It is also imperative A major change to soon be effected in the meaningful way, resulting in better outcomes that duty lawyers are alert to cases which may Auckland AODT Court is the temporary for Māori, as well as all other participants." The be suitable (as a number of duty lawyers already departure of Judge Aitken, on secondment to appointment of Rawiri Pene, as the Pou Oranga are), so that defendants are advised of the AODT the Supreme Court of Samoa for one year. This (Māori cultural advisor) across both Courts has Court as a possible option in a suitable case, follows on from her presentation on the AODT been seen as pivotal in adopting a more effective which they may seek to raise with their own Court to the Samoan judiciary and interested approach to working with Māori. Greater awhi/ counsel when assigned. AODT Court handbooks parties in April this year. While she will sit as support is also offered through Kaitoko Whanau, are freely available for defendants to read. Time a Justice of the Supreme Court, she will also restorative justice and other iwi-run services.
is of the essence as the research indicates that provide advice, assistance and support to the entry into the Court within 50 days of offending judiciary with the establishment of an AODT To graduate, participants are expected to be or arrest enhances the likelihood of a positive Court in the District Court of Samoa. Both self-supporting through work (or be studying) outcome. The Judges find it frustrating, when Judges Aitken and Tremewan are pleased that and to have completed a significant number of occasionally sitting in the normal District Court their experiences here in New Zealand have hours of voluntary work hours during their time sentencing court, to see cases which appear enabled them to make what is hoped will be a in the Court. For a number of them so far, their well-suited to the AODT Court, but were not meaningful contribution to this exciting Pacific exemplary efforts at community work have in referred, and are long past the 50 day "advisory fact led to full-time work. Many hundreds of hours of community work have so far been done Judge Aitken will start work in Samoa in by participants in the AODT Court.
Another area where the Judges sometimes see February 2015 and, while she is there, Judge problems is in relation to applicants who do not Tremewan will take over her responsibilities The Court has a number of other positive have a residential address within the catchment in the Auckland AODT Court. However, Judge developments in the pipeline. The appointment areas of Auckland/Waitakere (including for Philippa Cunningham will also be sitting in of a new housing officer has recently been those in custody). "This is important," explains that Court regularly and Judge Tony FitzGerald made which should make a difference to Judge Aitken, "for two reasons. Firstly, all of will also be sitting regularly in the Waitakere supporting participants who need safe and the Court's services are located within the two AODT Court to assist Judge Tremewan with her sober accommodation. Another area where the court catchment areas. This has significant responsibilities there. This is important in terms Judges would like to see more support provided practical implications in terms of participants of capacity-building, say the Judges, "especially is with pharmacological treatment, for example, attending treatment, testing and all other if in time we are able to see the AODT Court a brief intervention using "naltrexone", which rehabilitative programmes. Secondly, because model extended". Judge Aitken meanwhile will can reduce cravings and suppress the brain's the purpose of the Court's programme is to remain in close contact with the pilot from reward system (if there has been use), providing graduate participants who are well supported in Samoa, and continue to contribute to its ongoing a disincentive to use. Research indicates that their recovery, this means building strong and such support in combination with treatment and enduring relationships with pro-social whanau Online magazine version of now available to subscribers.
Effective intervention – the AODT Court celebrates two years of making a difference Can't touch this! Can cellphones be seized and searched? Clients recording legal advice – should we go there? LAWNEWS subscribers who prefer to read LAWNEWS online, can now switch their weekly subscription from the printed format, to the new, online magazine format.
ISSUE 41 21 NOVEMBER 2014 Simply email [email protected] and let us know you'd like to switch your weekly print subscription to online, and we'll arrange to send you an email every Friday with a link to the latest issue of LAWNEWS. The Alcohol and Other Drug Treatment Court recently held a training day at ADLSI's Chancery Chambers premises. Among those pictured are Court Pou Oranga, Rawiri Pene (front centre), flanked by Judge Lisa Tremewan and Judge Ema Aitken. Also present were Judge Philippa Cunningham (far left), along with a number of lawyers, case managers, police prosecutors, peer support workers, probation officers, Ministry of Justice staff, case coordinators and representatives from marae kaitoko whanau support. + Courts, alcohol and other drug treatment
ALCOHOL AND OTHER DRUG TREATMENT
COURT MARKS TWO YEARS OF A NEW Their Honours Judges Lisa Tremewan and
In honour of the occasion, pioneering unique New Zealand context. Ema Aitken reflect on achievements to date
international Drug Court expert, Judge Peggy and what is ahead for the AODT Court
Hora, visited from her San Francisco base, Another regular training day was also held in late and was also on hand to run some additional September, with the venue provided by ADLSI, The adult Alcohol and Other Drug Treatment
team training. Judges Lisa Tremewan and Ema as pictured above.
(AODT) Court, Te Whare Whakapiki Wairua,
Aitken, who have overseen the establishment If you'd like to start a subscription to LAWNEWS, it's free for ADLSI Members and $130+GST per year for which sits at the Auckland and Waitakere
The AODT Court is currently operating under of the AODT Court, regard such ongoing District Courts, marked its two-year
a five year, fully evaluated pilot. Each of the training opportunities as vital. The Court is anniversary in early November this year.
Courts is currently restricted to a cap of fifty founded on evidence-based best practice, but with that research then being applied to the Continued on page 2
non-members. To enquire about subscribing, email [email protected] or visit www.adls.org.nz/adlsi-store + ADLSI Council
Contact details for ADLSI Council
Here are the contact details for your ADLSI Council. They welcome your queries and suggestions.
Brian Keene QC (President)
Vikki Brannagan
David Roughan
Ph. 09 366 0306 E. [email protected]
Ph. 09 435 2261 E. [email protected]
Joanna Pidgeon (Vice-President)
John Hagen
Mary Anne Shanahan
Ph. 09 337 0826 E. [email protected]
Ph. 09 309 1689 or 021 452 326
Ph. 09 827 6106 or 09 827 2783
John Brandts-Giesen
Ph. 03 313 4010 E. [email protected]
Stephanie Nicolson
William Spring
Ph. 09 309 2500 E. [email protected]
Ph. 09 486 1609 E. [email protected]
ISSUE 41, 21 NOVEMBER 2014 Continued from page 3, "US Supreme Court decision Riley v California" equation, modern smartphones, "implicate privacy concerns far beyond search power by police can, depending on the circumstances, still be those implicated by the search of a cigarette pack, a wallet or a purse". unreasonable under section 21 of the NZBORA. Moreover, in making those Noting that smartphones differ "in both a quantitative and qualitative sense determinations of reasonableness or unreasonableness under section 21, from other objects that may be kept on an arrestee's person", the USSC New Zealand judges have: stated that the sum of an individual's entire life could be reconstructed engaged in the same kind of law enforcement/privacy balancing act from the digital data stored on such a phone. The heightened privacy that informs US 4th amendment law; and concerns implicated by smartphone searches thus demanded a different made it clear that, if police are in a workable position to get a warrant 4th amendment balance than the one justifying the established SITA rule. from a detached and neutral magistrate without risking the loss or The new rule, said the USSC, is that before searches of the databases of destruction of evidence, section 21 suggests that they should do so. In smartphones taken from arrestees could take place, police must have: many (if not all) instances where cellphones are seized from arrestees, probable cause to believe that the phone will contain evidence of that circumstance will apply.
criminal offending; and So, on the assumptions that: (a) New Zealand police will search the turn that into an application for a search warrant granted by a smartphones of arrested criminal suspects without a warrant pursuant detached and neutral magistrate. to section 88 of the Search and Surveillance Act; and (b) New Zealand In response to the argument that this would cause an increased burden on criminal defence lawyers will claim that such lawful, warrantless searches law enforcement when dealing with arrestees, Chief Justice Roberts replied are nonetheless an unreasonable infringement on privacy under section 21 simply: "Privacy comes at a cost." of the NZBORA, Riley v California could be influential as a jurisprudential model for decisions in defence applications to exclude the evidence Relevance to New Zealand law
from such searches pursuant to New Zealand's version of the American exclusionary rule (currently found in section 30 of the Evidence Act 2006). So, why is Riley v California important and what are its implications (if any) for New Zealand search and seizure law? The case is important Indeed, if the reasoning behind Riley does commend itself to New Zealand because it is the first USSC search and seizure decision to recognise that judges, it would have the effect of "reading down" section 88 of the traditional rules of "reasonable" search and seizure (and the traditional Search and Surveillance Act based on limits imposed by section 21 of the 4th amendment balancing acts that underlie them) may need to be revised NZBORA – at least in situations where police have a workable opportunity and revisited in light of the heightened privacy interests created by digital to secure a search warrant for items in an arrestee's possession (such as a storage devices and, more broadly, the storage of private information in the cellphone) implicating some manner of heightened privacy concerns. digital age. So, for those interested in United States search and seizure law, this is an interesting jurisprudential development. It remains to be seen Scott Optican is an Associate Professor at the University of Auckland's how far such rethinking might be taken and applied in 4th amendment Faculty of Law, where he specialises in evidence, criminal procedure and cases to come.
comparative criminal procedure, and has written widely on criminal trial and policing issues arising under the NZBORA. LN However, its relevance in New Zealand is not entirely clear. New Zealand passed a new Search and Surveillance Act in 2012 that was meant to revise and codify New Zealand's overall law of search and seizure for police and other government actors. Section 88 of that Act gives New Zealand police the power to search the persons of arrestees (or other lawfully detained individuals) without a warrant (as required by Riley v California), if a police officer has "reasonable grounds to believe" that there is "anything on or carried by" the arrestee that "may be used to harm any person", "facilitate the [arrestee's] escape", or "is evidential material relating to the offence" for For information about which the person was arrested or lawfully detained. creating a legacy for the Where section 88 applies, the statute would seem to encompass searches animals contact Bob Kerridge of smartphones carried by arrested criminal suspects, perhaps leading to on 09 256 7306 or the inference that the new Act settles the matter as far as the application of Riley v California might be concerned. But maybe not, considers Associate Professor Optican. Coming back to section 21 of the NZBORA, he notes that this section, like the 4th amendment to the US constitution, also requires that all police search and seizure be reasonable – even the ones that are legal under an authorising statute like section 88. Indeed, established law on section 21 makes it very clear that invocation of a lawful Insolvency Specialists • Litigation Support PRACTICE
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to publication date. Reply in strict confidence to Email [email protected] or call 021 371 302 to book your Call Paul Sargison, John Leonard Telephone 09 377 3099 Simon Dalton or Matt Kemp www.gerr yrea.co.nz ISSUE 41, 21 NOVEMBER 2014 Galbraiths is a well-established Howick Village based law firm operating from modern premises. We offer a wide range of legal services to our clients. We require a full time Property Lawyer to join our friendly team.
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CyberEdge is AIG's award winning cyber insurance, WILL INQUIRIES LAW NEWS providing innovative protection to help New Zealand businesses safeguard against losses resulting from The no-hassle way to source missing wills for sensitive data breaches, computer hacking, computer $80.50 (GST Included)
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Post to: Auckland District Law Society Inc., Let us add our expertise to yours so you can stay ahead PO Box 58, Shortland Street, DX CP24001, Auckland 1140 of the curve. Learn more at aig.co.nz/cyberedge Fax to: 09 309 3726 For enquiries phone: 09 303 5270 Insurance and services provided by AIG Insurance New Zealand Limited, a subsidiary of American International Group, Inc. For additional information, please visit our website at aig.co.nz. Please refer to deeds clerk. Please check your records and advise ADLSI if you hold a will or testamentary disposition for any of the following persons. If you do not reply within three weeks it will be assumed that you do not hold or have never held such a document.
Gary Allan ANDERSON aka Tahuri Gary Allan ANDERSON, late of 21a Waterview Road West, Takanini, Auckland (Previously Papakura & Mt Wellington), Driver, De Facto relationship, Aged 56 (Died 03'10'2014)Patricia FAHY, late of McEwan House Rest Home, 33 Sturdee Road, Manurewa, Auckland, Retired, Single, Aged 93 (Died 15'06'2014)Jacqueline Wardell GODFREY, late of Apartment 38 P2, Metlifecare Bayswater, Mt Maunganui, Retired, Aged 87 Book your next meeting or event at Chancery Chambers
(Died 08'10'2014) Let Chancery Chambers look after your next meeting or event.
Kumi MASUI, late of 109 Kia Ora Road, Beachhaven, With four distinct meeting rooms suitable for planning sessions, board meetings and workshops, plus a stunning Rooftop Terrace available to book for drinks at the end of a Auckland, Aged 43 (Died 06'10'2014) session, or as a venue for cocktail parties, team drinks, Christmas parties and weddings, Chase Richard Te Kuma O'CONNOR, late of Waiouru, we've got you covered.
Located in the heart of Auckland CBD's legal district, in a heritage building, Aged 23 (Died 12'05'2014) Chancery Chambers has a dedicated floor for meeting rooms, supported by an Denis Charles PELHAM, late of Mercy Park Hospital, experienced venue co-ordinator to ensure your event runs smoothly. Full catering services and equipment hire are also available.
12a Umere Crescent, Ellerslie, Auckland, Engineer, Discounted rates are available for ADLSI members, upon enquiry.
Single, Aged 70 (Died 12'10'2014) For further information on room capacities, pricing and catering options, Dean Malcom RENDLE, late of Auckland, Aged 48 visit our website www.adls.org.nz or contact us to discuss your requirements on (09) 303 5270 or email [email protected]. (Died 28'09'2014) Bookings are subject to availability at time of enquiry.
Tekura Tuaunga TUPOU (nee TOI-TAIKOKO), late of 26 Tole Street, Ponsonby, Auckland, Aged 85 (Died 30'07'2007) ISSUE 41, 21 NOVEMBER 2014

Source: http://www.adls.org.nz/media/6192573/Law-News-41-Final.pdf