A DIY guide to battling the system

By Andrew Stone

Mai Chen, constitutional lawyer and co-founder of  Chen Palmer,  aims her book  at the people. Photo / Mark Mitchell
Mai Chen, constitutional lawyer and co-founder of Chen Palmer, aims her book at the people. Photo / Mark Mitchell

Lawyer Mai Chen tells Andrew Stone why she wants to help people avoid the courts.

After two years of frantic work, lawyer Mai Chen thinks she can take a break. A brief one.

Last Monday night she put the finishing touches to her hefty new book, Public Law Toolbox, and said hello again to John Sinclair, her husband of 26 years and their young son, Jack.

Now she has a book launch to organise. Never one to do things by halves, Chen plans to kick the work off at Parliament, giving 25 speakers six minutes' speaking time and filming the whole show on video.

She calls it a TED-style plan, after the international forum of the same name devoted to sharing ideas and inspiration.

Chen says her aim is to help kickstart nothing short of a revolution by giving citizens access to the mechanisms of power and information to challenge and overturn decisions.

Chen's book is essentially a field manual for navigating the corridors of Wellington, its bureaucratic mazes and its legions of public servants. The energetic lawyer says she set out to rectify the one big gap in her own legal education - that of the public system of law.

Law school, she recalls, taught her commercial, criminal and property law - but skated right over public law and the nuts and bolts which could help people solve their problems.

Her shorthand definition of the toolbox is "there's more than one way to skin a cat".

In other words, rather than resorting to the courts, take the road less travelled, she suggests. The outcome might be better, certainly a lot less expensive and most likely be achieved a lot faster.

She wants to empower citizens to take on public institutions, and fills her book with advice on where to go, who to see and how to make representations. Instead of hiring a costly legal team to fight a battle against a government decision, she advises spending time hunting out the right body to take up the cudgels on your behalf.

"The best advocates," asserts Chen, "are people themselves."

She observes that lawmaking is the unique task of government and Parliament. She set out to show how individuals could work with institutions of the state to influence law and policy and release, as she puts it, "the brown cardigan handbrake on progress".

The book is packed with footnotes, stretches to 650 pages and is filled with her own experiences representing clients battling the Beehive. It is being released in hardback and as an ebook. One reviewer called it a road code and GPS for negotiating with government.

Chen takes the reader on a journey through New Zealand's power structures, suggesting ways they can make governments more accountable, challenge decisions and rulings, play a role in public policy and make agencies and institutions answerable.

She provides a guide to using the Official Information Act for prising secrets from public agencies and a run-down of official complaints bodies and regulators.

She covers in detail the business of running the country and suggests ways that ordinary citizens can level the playing field when confronted by the power of the state. Chen thinks its lessons could, for instance, help harassed Christchurch homeowners battling the Earthquake Commission.

The book crystallises Chen's career as a public law specialist, a field she seriously began cultivating in 1993 when boutique law firm Chen Palmer was formed. (The Palmer part was former Labour Prime Minister Sir Geoffrey Palmer, who left the firm in 2005 to become president of the Law Commission. Chen says she has tried, without success, to find the right person to share the workload.)

The author also says she was determined that people taking on the Crown would not face the hurdles she encountered as a 6-year-old immigrant from Taiwan.

"I was the classic outsider. I couldn't speak the language and had to learn everything from scratch." She always felt, she recalled, that if she just had a book that held all the answers, then her new life in New Zealand would have been a lot better.

Chen, now 48, calculates she relinquished the best part of $1 million by turning down work to concentrate on the book. "But that's okay," she insists, saying she can get back to her family and taking a course at the University of Auckland Business School on - what else? - the toolbox.

Palmer, in a comment on the book, wrote that his former legal partner had set out lessons in dealing with the "big, breathing, beast called the New Zealand Government."

Mai Chen, dragonslayer? Not at all, insists the spirited advocate. But if you have ever wondered "who you're going to call", then Chen might just have an answer.

Nuts and bolts to help David fight Goliath
The best chance of solving public law problems is to use a number of guiding principles, writes Mai Chen in her new book, Public Law Toolbox.

First, she writes, dealing with government does not have to be David vs Goliath.

"A common concern of clients seeking advice is the imbalance of power in dealing with the Government. [It] has powers that no private individual has - to make law and to exercise public power. They can use taxpayers' money and have government departments and agencies to advise them. The Government has the power to tax and to require the provision of confidential and commercially sensitive information. [It] also has taxpayer-funded lawyers (Crown Law) to defend itself against legal challenge.

"Governments have unique vulnerabilities, however, as there are more ways to attack their decisions than those made in the private sector. Legal obligations usually constrain the exercise of public power, and breaches can be challenged in court, or complaints made to public agencies. The Government is also subject to the Official Information Act 1982 and is accountable to Parliament, to constitutional watchdogs and, ultimately, to the electorate through the ballot box.

"So while [its] influence over the lives of citizens has expanded with growing regulation and laws, citizens now enjoy a greater ability to influence and to challenge [it]. For example, social media has democratised the lobbying process through online petitions and Facebook or Twitter campaigns against policies and laws.

Secondly, timing is critical. "Most clients do not understand that government works to yearly and three-yearly (election) timetables. The longer you leave a problem, the more resources will be needed to achieve a policy, legislative or administrative outcome with a decreasing likelihood of success.

"Timing is also important for lobbying. You have to know how the system works and what is going on in the system to understand when your advocacy on policy and legislative decisions will have greatest effect.

Thirdly, find a common national or public interest. "The most important determinant for success in fixing a problem with government is not who you know, as clients often think, but whether there is a shared national or public interest for fixing a problem. Politicians and officials have to be able to justify policy or law reform, or expenditure of public funds to the electorate. The skill is in finding a shared interest with government in having a problem resolved.

"The common interest principle also allows David to get Goliath to help to rein in competitors, by convincing the Government to regulate a competitor if it is in the national or public interest. Thus, David co-opts Goliath to fight other Davids.

A further principle is be willing to compromise. "MMP has now built compromise into our system of government. The Government may not necessarily have the numbers as it did under FPP. The result is that [it] is now far more willing to compromise."

* Public Law Toolbox, by Mai Chen (LexisNexis NZ Ltd, price to be confirmed. Release date March 14).

- NZ Herald

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