On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.
From the Wellington Writers’ Walk:
“It’s true you can’t live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”
– Lauris Edmond, from The Active Voice
Yesterday’s blogpost noted the Dompost’s report of more Wellington Councillor vacillation on road building to avoid future bottlenecks. But the Dompost failed in the Fourth Estate’s first duty – letting us know who are our problem politicians.
This extract from Council meeting minutes of 8 April shows both the “reasoning” and the Councillor response (emphasis mine).
8 a. Notes and supports the strong community opposition to both Option C (to widen SH1 north of the Tawa junction) and Option D (to build a new link road through Takapu Valley).
Voting for: Councillors Mayor Wade-Brown, Eagle, Foster, Free, Lee, Lester, Pannett, Peck, Ritchie, Sparrow, Woolf,
Voting against: Councillors Ahipene-Mercer, Coughlan, Marsh, Young,
Majority Vote: 11:4 CARRIED.
Let us be grateful for small mercies – at least declared Mayoral challenger Nicola Young was not among those currying favour with the NIMBYs. But still worrying to see her announced running mate Paul Eagle lining up with Justin Lester as a bob-each-way ditherer. Wellingtonians have been talking up the leadership potential of both.
They can make all the brave claims for the future they like (supporting airport extension etc), but when leadership shows funk in the face of self interested status quo pleading, at the expense of the overwhelming majority who want fast safe roads, Wellingtonians are right to feel gloom descending.
Success and vibrancy depend on decisiveness, courage and confidence in action and decision, not just words. Recording ‘Strong community opposition’ means nothing more than fear of facing down self-interest.
John Milford of the Wellington Chamber of Commerce has rightly cried alarm about the WCC rejection of the Takapu Valley roading plans. That is not to say that rejection is necessarily irrational – just that it all reminds us of how disfunctional our Council can be.
Wellingtonians have long been embarassed by our Council’s dithering and eventually awful decision-making on the urban ‘bypass’ that left airport traffic struggling through the upper Cuba St area, and the Basin Reserve Flyover debacle. That inability to decide on long term transport infrastructure investments opposed by NIMBYs (and noisy beards and artsy fantasists of a world without traffic) is among the reasons why many ratepayers look for salvation to the mirage of super-city efficiency.
The political pressures are clear in Peter Dunne’s opposition. WCC needs the Granada link to assist Wellington, but the northern links off it would primarily help Hutt businesses. So WCC panders to Ohariu NIMBYs.
Out of the LGC amalgamation exercise must come a decision structure on regionally important infrastructure that ensures NIMBYISM is subordinated to regional majority decision. A simple solution would be to ensure that such decisions were made by a specialist regional transport agency, as proposed, ironically, by WCC submissions to the LGC a few weeks ago. That would be more reliable than giving the decision to the Regional Council, who would not necessarily protect it from the NIMBYs.
But why did the Dompost report not give us the information we’d most like to know – who among the Wellington Councillors voted for and who against the Takapu Valley road proposal?
Our current ETS, allowing use of international credits to satisfy local obligations, is a brilliant scheme. It tells the world we are set up to pull our weight as soon as the big countries stop feigning action and make their carbon credits meaningful. When they do, ours will immediately increase in price.
At that point our scheme will bite. How hard it bites is dependent entirely on how genuine is the carbon rationing reflected in the price of internationally traded credits. When there is a scarcity of credits our economy will automatically be forced into incurring the emission reduction expense that otherwise would simply drive a foolish transfer of emitting activity toward the feigning countries if we lumbered ourselves with it now.
Until the others are genuine, any steps taken by us are not only damaging for no compensating benefit to the environment, they could actively make the world worse – like the dumb ethanol from corn and soybean laws, or as would be the case if our grass-based cow farming was transferred to a feedlot country like China.
So I’m a mite puzzled by the inernationalist sanctimony in Colin James’ column yesterday in the ODT.
To be fair, he attributes the sanctimony to others. But without mentioning the genius in our current scheme. Overall his tone of is of clear though gentle lashing of Ministers for not ‘doing more’.
.Meanwhile, a word on an international interaction in which many think that, unlike at Gallipoli, we do not do our full bit.
On Friday Tim Groser released the greenhouse gas (GHG) emissions inventory, showing a 23.1 per cent rise from 1990 to 2013, only partly due to the rise in population. A small fall in 2013 was the result of varying hydroelectricity lake levels and consequential recourse to thermal generation.
Per capita emissions remain the fifth highest in the rich world.
We will meet our 2020 target of a 5 per cent cut in net emissions from 1990 only because we have a lot of trees which absorb carbon dioxide.
The bad news is that trees are being cut down faster than new plantings. Plantings have collapsed because slack rules for the emissions trading scheme (ETS) — two-for-one allocations to lighten big emitters’ burden coupled with near-open slather for purchases of foreign units, many of dubious climate-reducing quality — have generated such a low “carbon price” (around $6 a tonne) that foresters see no point in planting. They need about $15.
When the big 1990s plantings are cut down in the 2020s, total forests will be too small to offset emissions from agriculture, industry, oil, coal, transport and daily living.
….The UN asked countries to table the INDCs by March. Only China, the European Union, Mexico, Norway, Switzerland and the United States did. They set different targets and target dates, ways of getting there and explanations and justifications, with in some cases intentions to do better if others do.
…. So far ministers have mixed defensive assertiveness and assertive defensiveness in climate change policy: little can be done about animal methane, the world needs food and we are highly GHG-efficient; we already have a very high percentage of renewable-generated electricity; we have the ETS; we are doing research; and we are helping in the South Pacific. That is, we are doing our “fair share”, given our constraints.
There is a stronger story to tell.
Animal methane does not accumulate as carbon dioxide does. We have six methane-reduction research programmes and Groser has got 45 countries to back a global research programme.
Agricultural emissions per unit of output have fallen — in dairy by 25 per cent since 1990. We can take that efficiency expertise abroad and are doing in the Chile. …
We could greatly expand renewable electricity for transport (some ministers are interested) and low-grade heat for buildings. We could plant lots of trees, do more to drive energy efficiency in industry and buildings and fix the ETS, on which a discussion document is due soon.
None need be at the economically crippling cost the cabinet fears.
How do you know Mr James? Industries and exports are crippled by marginal cost differences, not absolutes.
Why bother? We all know the UN talks are a roundabout and the INDCs’ actions will not go near containing warming to the targeted 2 degrees.
One: we trade on being a model global citizen. Two: there is a real possibility the Paris summit will, through “bottom-up” INDCs and “top-down” agreement on accounting and other rules, set a framework for future negotiations.
If so, then the next summit (say, 2025) will be an upgrade of 2015 to fit new realities and capacities, including already rapid technological advances, not the past five years squabble over fundamentals.
Incremental change doesn’t give scope for jingoism. But it might enable a future cabinet to be more inventive.
But only when it would not be a stupid gesture, a loony lone charge over the top yelling to cynical countries sniggering in the trenches ‘follow me’. When we charge it should be after we see the big emitters on their way. Until then, our ETS shows absolute sincerity and commitment, provided it will be positive, not negative.
Should St Bedes’ baggage carousel riders have been stood down? Was the punishment proportional? Should the parents have let their kids face the music? What kind of lesson are kids getting when lawyers protect them from their school’s view of conduct?
A wise academic from Canterbury has identified bad lawyering and judging as the real villains in this drama, and had the courage now unusual in legal circles, to say it clearly. the TV3 News website quotes Canterbury University dean of law Dr Chris Gallivan as saying – “It undermines the authority of the school and it makes the courts look bad, it makes lawyers look bad and it makes the parents look bad. It undermines the authority of the school.”
The judge in the case may have had little alternative but to grant the interim injunction that meant the school effectively lost. Though she appears to share the views of appeal court judges (on their right and duty to fine tune the ‘proportionality’ of decisions by lay citizens) senior judges’ appeal decisions may not have left her much room to move. Proportionality is a fashionable doctrine that conveniently justifies an infinite range of second guessing of others’ decisions.
In the clamour of views on the case Dr Gallavin’s are the only ones I’ve seen from a lawyer that essentially focuses on the feeble judging that has created the dilemma that tempted the parents. It is unfair to blame the parents when judges have created a situation in which a parent could blame themselves for failing to stick up for their child, irrespective of the bad outcomes for schools generally. The judges should have been guarding others, and they’ve failed repeatedly.
There is plenty of public recognition that schools and teachers everywhere are now tormented by choices between bad and worse - should they draw sharp behavioural boundaries, where what matters most is certainty of authority, with the ‘correctness’ or ‘proportionality’ of an individual decision being of secondary importance, or is it better just to fudge issues and let ‘mercy’ reign because the risks and costs of a fight with lawyers are just too great.
The fault lies with arrogant judging. Those responsible do not feel arrogant. They think they do good by indulging the universal human wish to look compassionate. But it is arrogant all the same. Judges who feel free to satisfy their urge to tinker with decisions retrospectively, irrespective of the costs have delivered us into the clutches of long delayed decisions, timorous authority, sensible people who simply stay away from public service, from taking school teams anywhere risky. Judges who think that achieving the ‘right’ outcome in the case before them is a judicial duty and privilege, forget their responsibility to the rule of law. Their art should always be subject to the questions - ’but what will this do to the law – what lesson/message/rule/precedent does it propound for the thousands who look to the particular cases for guidance on how they will be treated”. Will people now know in advance whether they are on the right side of the law, or the wrong? Can people now work without routine recourse to lawyers? What practical message will be the ‘rule of lore’ conclusion from this judgment.
It should have been simple. The consequences of teachers uncertain of their authority are far worse, for all parties, than the loss of a sports event for two boys.
Perhaps too many judges who try to apply the rule of law perspective are without the mental furniture to do so dynamically. That is they fail to work through the consequences far enough to see how they affect the incentives facing the just and the prudent, as well as the unjust. But too often they do not appear to think they even need to try.
Watch out for Dr Gallavin. He is worth listening to.
An interesting book review http://www.psmag.com/books-and-culture/how-does-one-tell-the-untraumatized-majority-about-the-conditions-that-constitute-the-underworld-of-trauma reminds me of the insubstantial foundation for the burgeoning trauma counselling industry.
The review covers two books and favours The Evil Hours by David Morris
The reviewer summarises many strands teased out by the authors but one could save ACC and the government a lot of money, and more importantly save many ‘victims’ from consolidating their victim hood.
“…. dwelling on oneÃ¢Â€Â™s infirmities is a prescription for invalidism.
This has implications for policy. We tell people they are broken at great peril because, when they are feeling fragile, they tend to believe it. For example, the VA often grants monthly disability checks to veterans at the first sign of debility. It does so with good intentions, but when it does so prematurely, it discourages one of the most therapeutic activities, which is participation in the workforce. Most vets with PTSD improve with aggressive treatment and rehabilitation, which must come before we evaluate veterans for lasting impairments.”
“Our culture presumes fragility. One force behind this is psychiatrists, who fall prey to the clinician’s illusion, whereby they assume their patients are representative of the wider population. After 9/11, health professionals predicted an epidemic of PTSD that never materialized. Hundreds of millions of dollars went to trauma therapy, and people were subtly encouraged to misinterpret justified sadness and sleeplessness as signs of mental illness. PTSD is also a diagnosis tailored for political use, and it plays into the illusion, dating to the Vietnam era, of the mentally scarred vet, the walking time bomb of films such as Taxi Driver, Rambo, and Coming Home.”
Another embarrassment for our criminal justice system dealt with by the Privy Council, the world’s best independent top court.
There will be too much political resistance to admitting a stupid mistake in dumping that inexpensive heritage assurance of judicial objectivity. But the need remains.
We should promptly ask the High Court of Australia to accept our appeals where we need demonstrable assurance that the result will not be influenced by insider defensiveness or local groupthink.
According to the Wellington Regional Council Mayor, not being allowed to lie in official advertising “could drastically restrict how local bodies operate”. She believes that having to live up to the standards expected of business “poses a real risk to robust political debate”. Putting aside the inconvenient fact that Council advertising should be informative, not political propaganda, it is incredible that there is no media furore over her further defence that seeking the Advertising Standards Authority ruling was “legal nitpicking”.
The DomPost has reported the matter under the heading “Advertising Standards Authority calls GWRC super-city ad ‘misleading’”. Note the implied warnings to ignore – “calls’ instead of “finds” and the word ‘misleading’ in quotes to distance the DomPost from the dreadfully unwelcome judgmentalism implicit in ‘misleading’.
Take a look at the ASA report, ( 15/004) which attaches my firm’s letter setting out the facts. Someone in the GWRC was either too stupid or too reckless to merit staying employed, or set out to deceive. See also the submission on behalf of the GWRC which says essentially that councils should be free from ASA supervision of their advertising, because being constrained to the truth would be problematic.
How do the honest members of the Council feel about this? Will they seek an inquiry into it. Will anyone be held accountable?
Businesses, remember that indifference to honesty, when you next want to shade the truth to GWRC. Its leader thinks that “misleading advertising” which was “not prepared with a due sense of social responsibility” is just robust debate.
In 2008 I blogged on journalistic blind eyes to lies by politicians, compared to their frothing pursuit of easily made mistaken business claims.
“As a commercial lawyer I’m sickened by the left’s sanctimony toward business. Labour love passing laws they could never satisfy in their own conduct. They lie happily, yet business people (properly) face prison or huge fines for faulty prospectus statements.”
I’ve had some journalists and politicians claim that it is because business can lose people so much money. We saw that claim in full lynch mob glory in the media’s repeated whipping of two former Ministers of Justice. They were found by a court to have been honest though mistaken. They’d failed to add enough emphasis to their written warnings of the risks facing Lombard Finance.
The company’s failure (like most mezzanine development finance lenders) had nothing to do with the misleadingly mild warnings. Many commentators wanted them in jail for years, nonetheless.
But in matters like the proposed amalgamation of a region to put it under provincial government the amounts at stake are enormous. If Wellington ratepayers end up funding the executive pay increases and rate increases experienced in Auckland the per household costs will dwarf anything a Fair Trading Act prosecution for misleading statements would usually deal with.
Why the double standard? Why are GWRC councillors not facing calls that they go before the courts and risk imprisonment for false statements, the way company directors do? The GWRC statements too may have been errors of judgment, not dishonesty. But that did not save the Lombard directors from criminal conviction .
Councillors are not at risk because there will be no media call for equal treatment morality.
As an MP I ran into it constantly – deep suspicion from politicians and journalists that business people are inveterate liars. Few of the former had the faintest idea how much everyday business effort goes into protecting a reputation for being honest. Standard due diligence for published statements was inconceivable. I found it impossible to shift their pre-conceptions. They simply applied to everyone their own absence of morality – they lie freely if they think they can get away with it, so to them everyone else will be worse.
But what about the days of boredom we’ve endured as the Gallery pursued John Key over when he knew something, compared with when he said he knew it? Surely that shows they still think lying matters?
It does – but just for their enemies. To them lying is OK when it is for their causes, and by people they want to win. It remains wrong, but only worth beating up for the mugs who don’t lie when it is suspected in their opponents.
Thank God we now have specialist and social media to bypass mainstream political journalists and their editors.
Does the DomPost still have a news editor?
Opposite the page this morning that headlined Annette King’s non-story on Health discarding a few thousand dollars worth of redundant pamphlets was a tiny item noting the Local Government Commission’s admission of a $30m under-estimate of the transition cost for its preferred Uber-City model for Wellington region.
Yet the DomPost thought amalgamation important enough to dignify with a weightless supporting opinion a few months ago. And it has recorded previous LGC confusion over such trivia as cost, though it has never thought to campaign for cost benefit analysis. Could the Regional Council advertising budget have anything to do with the DomPost lack of curiousity about LGC incompetence?
Because today’s correction is a tip of the iceberg admission. There are two more glaring problems in the LGC report and draft recommendation. Will the LGC come clean on those?
First, they’ve ignored the very purposes of local government. Secondly there is a reasoning gap between their preferred solution, and their own financial analysis, that seems to show that the LGC’s objective for amalgamation is really bigness for its own sake, not the efficiency so often claimed.
Even after today’s correction ordinary people will not trust amalgamation cost estimates. Normal experience of empire-building IT and amalgamation projects should have made the LGC much more cautious about cost estimates. A glance at the woes of the Auckland integration ($100m over budget, late and still not delivered) should have been enough to tell the LGC its Wellington empire costings were unreliable.
But it may need a Court to set them straight on their other bungles.
Purposes - The LGC has set out to ignore the law that inconveniently tells them local government is about local government – that means decision-making by communities for themselves, not arrogant provincial government. The LGC is required to promote democratic local decision-making. Incredibly, in citing that criterion they blithely omit the vital statutory word “local”*. It is hard to think of more calculated ruler insolence or incompetence than a statutory body citing its own empowering legislation falsely, in the way it wants it to read, rather than how it actually reads.
Pretending the word ‘local’ is not there seems intended to help the Commission conclude that a single region-wide council with impotent/decorative local boards ranks higher in terms of [“local”] democracy than the existing genuine local self government by councils with real decision-making power.
The second bungle is equally important.
It seems the LGC chose to simply overlook efficiency – the other strand in the law for deciding on structural changes. They’ve recommended the option ranked fifth out of the eight alternatives in its own commissioned financial analysis.
Of the reorganisation options the standout performer was ‘Stronger Regional Delivery’ (the closest to the reform option advocated by Hutt City) It would build on current collaboration among the regions local authorities, for delivery of network services like transport and water. The net present value (NPV) of this option is expected to be $199m with an estimated transition cost of $129m.
In contrast, the LGC’s preferred option of a supercity is expected to cost $210m with a NPV of $58m.
How can the LGC have applied the statutory criterion when its recommended option is fifth out of the eight? How have they taken account of costs, expected returns, and implementation risks (things not turning out as hoped) if it is not in their own financial analysis?
Will there be another correction from the LGC. Will business ‘thought leaders’ in Wellington ask for them? Or might the Minister of Local Government step in as some councillors want?
Citizen opinion suspects LGC prejudice against genuine local self determination. But it is not easy for the Minister to now influence much other than the timetable. She’ll try to stay well away from the debacle looming for the LGC
*See paragraph Local Government Commission (p. 110, Section 4.96) – Draft Proposal for Reorganisation of Local Government in Wellington, Volume 2
Few business people are good at democratic politics. They expect what works in business to work in democracy. They’re frustrated by the messy necessity to maintain a working consensus, by multiple conflicting objectives, and by the unreliability of delegates.
They think that if only the right people were in charge, the best structures and systems would be like those in business, where everyone accepts single prevailing decisions from nominated rulers, and he who pays, rules.
Business people who get embroiled in politics commonly hate it so much they eject before they flame out. Those who survive and learn may be small in number but they are among the best we have, and we owe them a lot for their patience.
Many good business people are equally hopeless in assessing policy. I could not count the number of times I’ve heard the idiocy that the RMA is a good law, with nothing seriously wrong with it except how it is administered by council people who are stupid or wrongly motivated. These business defenders have no idea that they’ve just explained exactly why the RMA is so badly conceived and written as to besmirch the rule of law.
They’re misled by objectives. In business, if you can get your objectives clear, and set them out for your staff, much of the work is done. But the promoters of all law recite noble objectives, usually purposes we can all agree on. The key problem in both policy and law-making is the unintended, often the application of law for purposes never thought about.
What distinguishes bad law from good law is simple. Well designed and drafted law works whether or not ‘idiots’ are in charge. It is predictable because it limits what rulers can do. It is very carefully designed knowing that people of malign intent will try to misuse any law. Frequently they will have power. Good law is drafted by wise sceptics about human nature. It remains predictable in effect despite attempts to distort it.
The RMA is set up instead to reflect the shifting fashions of ruling sentiment from time to time. It is therefore specially handy for those who like to claim they are acting in the interests of others, a common excuse for calculated abuses of power.
In many respect the RMA does not qualify as part of the rule of law. It enables decision-makers to dress up their aesthetic, spiritual, class, social and economic prejudices in complicated processes. They look legal, but they demean the reputation of law. If you can’t generally decipher in advance from a provision what you can and can’t do and how the rights of others will affect your plans, it is not law, it is just an instrument delegating decree powers.
Those who framed the RMA deliberately excluded normal rule of law certainty and predictability. It has taken 20 years for business people to learn that it must be judged on how it works, not on its claims to noble purpose.
I’ve come to the conclusion that I’m watching similar business naivete on super-city amalgamations. Here in Wellington the Chamber of Commerce and the Property Council have not bothered to offer their members any analysis, reasoning, or even debate, before joining the ’bigger is better’ campaign. Perhaps it is natural for business people to favour bigness – after all most probably regard growing bigger as the measure of success.
But I’m not aware of any evidence that small councils are comfortable berths for more stupidity than bigger ones. When I was in the Office of the Ombudsman many years ago experience often suggested the opposite. Counties and country areas seemed better run, on average, than their bigger neighbours.
That is not research evidence, but it is puzzling that business has not watched the Canterbury experience, and the extent to which Canterbury has been saved from presenting unrelieved incompetence by the safety valve councils of Selwyn and Waimakariri. You’d think they might have asked Hugh Pavletich to come up and report. Christchurch has been hostile to business ever since Christchurch City was jammed together as a prototypy ‘super-city’ two decades ago.
Many Wellington business reps have an intuitive faith in ’bigger is better’ territorial government. I say ‘territorial’ because it would be a lie to call Uber-City Wellington and Super-City Auckland “local government”. Two councils governing half the population of New Zealand may be government, but it is certainly not ’local’ government, on any measure.
This faith based policy development by business reminds me of the business elite of Britain on the Euro.
Twelve years ago Britain was consumed in deciding whether to adopt the EU common currency. Gordon Brown decided not to join, against the wishes of his PM, Tony Blair, and much of the UK elite, including the Confederation of British Industry and other business leaders. This Guardian article talks of the snobbery that divided the two sides. On the anti side with Brown were a comparatively few hard-nosed experts who demanded analysis. They pointed out that most Euro support was hope – a half-baked conviction that it was safer to be with the big battalions, whether or not they were right. Brown had Treasury support, but more importantly he had on his side the mass of his electors, though much of the TUC and Labour leadership was on the other side. Ordinary people had an intuitive suspicion the euro would not end well, to their cost. And so it has proved for the poor in many countries whose leaders fell in with the elite Project. The Euro was sold on a combination of ”bigger is better” fear, and the elite’s faith in their superior purposes, not careful calculation.
Four years ago, after the Project collapsed into the current morass, it became hard to find those who’d supported the Euro.
Here in Wellington are strong signs of the same wilful refusal to think. Those bent on a Uber-Council for the whole Wellington region are not worried that it will replace genuine community self determination. Perhaps they feel it goes without saying the peasantry would be better off ruled from afar by their betters. The LGC claim that Wairarapa is not viable is breathtakingly patronising. They don’t quite say that it will always need Wellington office tower subsidies but there is no other implication.
Why has that not signalled “Caution!” to the Property Council? They feel no need for research evidence that scale efficiencies are common in local government, or that they outweigh the inefficiencies of larger bureacracy and more distant representation.
To amalgamators it seems to be enough to believe there is widespread incompetence in local government and lost opportunities for ‘growth’. Even if that is right, how size solves it is not explained. Size would put more eggs in the same basket. How will it make the basket less dodgy? From experience it could mask even greater incompetence, or deter more able candidates. It is especially odd that business is not interested apparently in more pay on local politicians, not less.
I know many amalgamators. They are good people, and many have lead good businesses. But few understood politics when I was an MP. Things have not changed. Councils must preserve and respect and continually learn from dissension. Businesses are ruined by it.
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The Economist explains for lay readers some competing considerations in the Obamacare challenge the Supreme Court is about to consider.
It is worth reading, though the reporter’s bias shows in a dismissive description of the legal principle that makes this such a serious challenge, even for lawyers who very much want Obamacare to survive.
The principle that the law is what the words say, not what politicians claim they intended, lies deep in the rule of law. Citizens should be able to know in advance, from the words of the law, what is lawful and what is not without asking any politician, or subordinare ruler what they want the rule to be made to mean.
This is now particularly important in New Zealand, where our ruling parties collaborate to pass undefined slogans as law, hoping they will get away with appearing to satisfy their supporters without fully alerting those who will have deep-rooted objections.
National’s Marine and Coastal Area Act, replacing Michael Cullen’s more principled Seabed and Foreshore Act is a case in point.
Despite the sloppiness in the drafting of the US law in question I think the Court will find a way to uphold its effectiveness, correctly.