I am appalled to see that, in its email bulletin this evening, NZLS is cravenly accepting MBIE’s interpretation of the Level 3 restrictions instead of applying the plain wording of the Health Act (COVID-19 Alert Level 3) Order 2020.
The order was promulgated yesterday. (I know about it not from NZLS, or the government’s COVID-19 page, but from a friend who posted it on FaceBook.)
A lawyer may meet to sign a document with a client – with care
Clause 7(a) clearly permits a client to leave their home for the purpose of accessing a business or service. Clause 7(c) also permits a lawyer to leave THEIR home for the purpose of providing a service. They have to maintain physical distancing while doing so. What isn’t permitted is lawyers attending clients on the lawyers’ business premises.
Clause 10(1) applies. Lawyers are category C, except in relation to urgent court business.
‘Physical distancing’ means – for lawyers and clients not engaged in urgent court work – staying 2 metres apart, except for periods of less than 15 minutes. (See definitions in Schedule 1.)
So it is entirely practicable (and lawful) for a lawyer to meet a client in a public place, or in the lawyer’s garden, or in the client’s garden, put the document on a chair or table 2 metres away, and have it signed and witnessed by each signatory going to the table in turn and signing it with their own pen and otherwise standing 2 metres away. This is the technique used by some lawyers in Australia and the UK. It doesn’t even require anyone to be in close personal contact for up to 15 minutes – it can be done without any personal contact at all, as long as someone has a table or chair and it is not raining.
This could readily be arranged if NZLS had by now compiled a database of lawyers who were willing to act as agents, to assist other firms by delivering and/or witnessing documents for those firms’ clients in their own neighbourhood or suburb, while they are working from home.
MBIE does not decide what the law means
NZLS must never convey the impression that MBIE has the role of interpreting legislation. It does not.
MBIE does not make the law.
NZLS’s President, Tiana Epati, pointed this out, in effect, in her recent letter to the Epidemic Response Committee.
It is a constitutional travesty for NZLS to issue a bulletin that says, in effect, ‘MBIE says…. and therefore we cannot…’.
Still an issue? Take it to the High Court immediately
I happen to feel rather strongly about this, because it is 10 years this month since my practice was destroyed by bureaucrats (the then Legal Services Agency) who thought they had the right to interpret legislation and make unilateral variations to their contract and policy. (At that time, NZLS refused to help me – the Rule of Law Committee had in 2008 formed the view – privately, without asking me for more information – that what I was alleging in terms of unconstitutional behaviour would not happen and therefore was not happening and therefore I was mistaken.)
I did not then understand that confirmatory bias meant the bureaucrats would not listen – once I finally identified what they were misinterpreting – and I ought to go straight to the High Court for a declaratory judgment on the interpretation issue. That was my crucial error.
I was heartened earlier this month when the Rule of Law Committee (and other NZLS committees and officials) stepped up to remind the government of constitutional fundamentals after the first week of the Level 4 lockdown.
I am aware that the same advice from MBIE as relayed today was initially relayed by NZLS last week. That was before the new order was made.
If, despite the order’s clear wording, MBIE are still saying that lawyers cannot meet with their clients as suggested above, it is time for NZLS to go straight to the High Court.
Cheryl Simes – Kiwilaw – 28 April 2020