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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

Imagine if consumer law governed election propaganda

  • September 23rd, 2014

The Commerce Commission recently applauded a Court of Appeal decision on bold headline claims undermined by the fine print.

The case was brought by a carpet manufacturer against a competitor. The Commission joined in to help ensure that “businesses and consumers  have a clear sense of what the ground rules are“.

As you look at the principles set out by the Court, consider how political pitches for your vote would fare if politicians held themselves to the same standards they sanctimoniously impose on business. The penalties for breach can be very severe, and personal.  Competitors can ‘prosecute’ so that honesty in commerce is enforced whether or not the regulatory establishment favours the wrongdoers.

Contrast that with the situation under electoral law, where the Police have simply declined to enforce the law on many occasions of clear breach, but there is no effective right to the people to step in.

As summarised by the Commission’s lawyer, Mary Ann Borrowdale, the Court of Appeal held that:
“All consumers are entitled to the protection of the Fair Trading Act, not just the knowledgeable, well-off or sophisticated.
Claims are made to all members of the target audience, except for outliers which includes those who are ill-equipped or whose reactions are extreme or fancifulť.
When assessing whether a claim breaches the Fair Trading Act, it is the dominant message of the headline that is important.
Where there is a glaring disparity between the dominant message of the headline and the information qualifying it, the maker of the statement must draw the disparity to the consumer’a attention in the clearest possible way.
The Fair Trading Act will be breached where a claim has lured a consumer intothe marketing webť by misleading means. It does not matter that the consumer may come to appreciate the true position before the transaction is completed.

I do not think that our electoral speech should be inhibited by such liabilities. But there could be more consequences for casual or calculated lying – for example on the costs of promises, and the realism of income expectations from law changes.

Zombies, dementia and Maryan Street

  • September 21st, 2014

Here’s an interesting proposition from an investment analyst –   speculation that the vampire/zombie genre is a way of coping with an advancing army of demented baby boomers.

Patrick Cox wonders whether the current fascination with zombies  might be a protective cultural adaptation to the vast army of the old now gathering in the shadows of medicine’s remarkable extension of life expectancy.

His theory could explain something I’ve puzzled over, since enjoying Taiki Waititi’s vampire film  “What we do in the Shadows”.

The film is witty. It is fun to see Wellington from a night-walker’s perspective. But  I missed allusions clearly familiar to the mainly young audience at the session I attended. A deep knowledge of the vampire genre seems to be universal among under 30s.

Zombie, horror and vampire stuff has always been a complete mystery to me. I cannot understand how anyone finds them of the slightest interest, other than to spoof.

I subscribe to Patrick Cox’s weekly newsletters because science and technology are so much more interesting. Often they are more weird (even fantastical)  than any dull projection of atavistic fears. So Patrick’s speculation (while promoting analysis of a pharmaceutical company that may have a drug for Alzheimers) is much more interesting for me than a film review.

It also reminded me to praise New Zealander Gillian Bennett. In August she committed suicide in Canada, in the face of  deterioration into dementia. The Herald and the DomPost both provided excerpts from the courageous 85 year old’s written explanation of her decision.  Her explanation fuelled the pressure for a law change in Canada.

I believe it will be my duty to ensure I die before I become a terrible burden. My family should not see me for long if I cease to be me.

The loss of Maryan Street from Parliament may delay the time when our Parliament will squarely confront the law that means one must risk deciding too early, for fear that it will be too late when you are incapable. Maryan courageously sponsored a bill to reduce the risks of criminal prosecution for assisted suicide.

I’d rather see the law change delayed until there has been enough debate to evolve the outlines of a new ethical consensus.  I think we need understandings that will honour those of us who choose in free will to go before we become a husk with nothing left but appetites.

National will have a big caucus with not enough to do. Hopefully there will be a member there willing to promote such debate.  Near doubling of life spans does not spare any of us from going, but it can make the going much worse.

Who to vote for?

  • September 19th, 2014

A friend who is a new resident (who in my opinion should not have the vote, it should be only for citizens, not residents) asked me this morning who to vote for.

I could not go into the detail in this post because she would have been baffled by it, but it reminded me to answer similar requests from others.

First, I’ve never ruled out voting Green or Labour if they present the best leaders for the times. Russel Norman impresses. But his party remains much more red than green.

The current left includes a dire collection united by a shared psychological problem. Many seem impelled into politics to deal with personal demons. They are consumed by envy, conspiracy suspicion, and a need to project onto others their own lack of trustworthiness. It can generate extraordinary drive. But when folk of that character dominate their party it becomes unsuitable for democratic government. They can’t inspire, so instead they try to unite people behind them by finding enemy after enemy.

 So I want to vote so as to maximise the chances of continued government by people who welcome change and build opportunity with people as they are, not as they think they can make them.

The candidates are National, ACT and the Conservatives.  United Future might have made the cut on disposition, but there is no prospect of more than Dunne coming from that party, and his blocking of Amy Adams’ chances of proper reform of the RMA, and his conduct over the leak of confidential material to Andrea Vance rule him out.

 The Maori Party is the only positive race-based party, but we can’t vote for it. 

 John Key has more than deserved a return to power. National less so – with capitulation to bad policy in areas like health and safety, commercial regulation and appointment to powerful positions.  Still, I expect long term outcomes for New Zealand to be better under people of the kind who build the current right, despite their lack of principled analysis.

But our besetting problem is that the natural anchor for the right, among the social conservatives, has for two generations been in the hands of a man who gets their votes then sells them for personal baubles or satisfaction. Winston Peters is their brilliant hope and spokesman, but after gathering their votes each election he conducts an auction that disregards their natural allies on the right.

 As a consequence National has had to spend far more time trawling in left wing territory for tenuous support.

 So I’d dearly love to see the Conservative Party become the new home for Winston’s conservatives. Accordingly I’m still undecided. If the Conservatives could make it over the line, I think that next election they would cement their position. They’d have good MPs, and Colin Craig would either improve, or be managed into the more stable and sensible pattern where a niche or conviction party is not the personal reflection of its leader. The advantages of non-presidential leadership have been shown to great advantage by the Greens and the Maori Party.

ACT was destroyed by Richard Prebble’s view that shared leadership was silly, and the consequent hitching of all their prospects to Rodney Hide’s image. This time though ACT would bring us one, and possibly two potentially outstanding MPs. I’ll be very sorry if they are not both there.

But the real prize remains getting the Conservatives there for strategic reasons, even if you’d never vote for them again. In any event they would represent views that ought to be debated, not suppressed by elite consensus in our Parliament, just as it is good that Green views are expressed.

So what is the advice?

Don’t vote Green or Labour this election. 

Maximise the chances over the next couple of elections that Labour and the Greens attract and promote more people who are normal. We badly need an opposition that is intelligent and not ‘religious’ or tribal. Labour needs more like Shane Jones’, Damian O’Connor, Trevor Mallard, probably Nash in Napier.

Sadly too many Labour and Greens define themselves by who they hate. Their focus shifts as targets present themselves. They create labels (sexist, agist, racist, homophobe, warmonger etc) to vilify their target groups and to minimise the risk of challenge. Their endless range of ‘enemies” includes Christians (excluding  the effete heretic  leaders of dying mainstream denominations), white men, aging white men, employers, John Key, the United States, the police, the RSA, serving military men (but not dead ones to whom they pretend mawkish respect), principals and teachers who demand high standards and welcome performance measurement, male doctors with authority, sports jocks, the Sensible Sentencing Trust, private schools, private hospitals, big employers (other than the state) dairy farmers, car owners and anyone who does not pretend to love rail commuting, truck operators, scientists who examine dogma ( like climate change, or river quality studies, or GE research) country music musicians (with a few fashionable exceptions) accountants, economists (esp Treasury whose secondee to Labour was rejected), private broadcasting, especially radio talk-back hosts, beauty contestants, retirement village and retirement home operators, land developers, commercial property owners, fishing industry employers, mining businesses, oil explorers, self employed contractors and others who buck union rule, 

 There are normal people  in those parties who are not envious and judgmental and anxious to make more rules for everyone. They share our inheritance of reasonable trust in each other, and optimism for the future, and eagerness for change and development. But while they are marginalised, do not vote Labour or Green. 

Sideline them again until they can exclude more of the unhappy ones who  impose their struggles with their personal demons on our public life.

Spying sustains peace

  • September 18th, 2014

The Green/Labour/journalist/InternetMana approach to spying was finally balanced by  excellent pieces in NBR by Nathan Smith, and Paul Buchanan. Sadly they are behind the paywall. I’d reflected on some of the issues late last year, when Angela Merkel was being hounded by the German political commentariat to denounce the US for hacking her phone calls.

This post contains those thoughts, first published in a post yesterday prompted by the pathetic coverage of the Snowden/Dotcom show in the last week of our election.

Edward Snowden and Assange may have sent many people to their deaths. Perhaps they should be executed for treason. But one can still admire their courage, and respect spies the world over because what spies do is also essential, while supporting laws against treason.

Without spying, without the risk that what is hidden could become public,  behaviour can and would be so much worse. Indeed there is a strong line of argument that a world without spies is far more dangerous, because others will cautiously assume the worst about what is happening when they do not know. They over-react. They will not trust. Very effective spying helps the countries that are more often than not honest. Because spies confirming that a country is telling the truth to its neighbours, reinforces the foundations of trust. When spies revea that the truth is being ‘shaded’ or spun, the targets will apply their own morality – if the shading is within the bounds of the spin in which they too indulge, relative trust remains feasible. When spies and hackers reveal that another country is totally untrustworthy, but the truth is that they remain incapable of really damaging their neighbours, the spying is still a force for peace. The target of the lies need not over-react.

It is only when spying and hacking are in the service of a country already bent on doing its worst to the country spied upon, that is becomes a thoroughly malign force. And that malignancy is compounded if the target country has inadequate spying or hacking capacity itself to be aware of the threat, and to prepare to counter it. In other words, a serious imbalance in spying or hacking capacity is as serious a threat to peace as any other drastic inequality in power. Armed neutrality and the so called ‘balance of terror’ have served humanity well and better than foolish volunteering to be over-run (by pacifism or obvious inability to defend) for as long as we can look back in history.

The conditions that are most likely to result in war calamity are perceived imbalances in capacity, when the aggressor gets over confident, or the potential target of aggression over-reacts defensively, with pre-emptive defences that prove to have been unnecessary. The Bush/Blair Iraq invasion is reported as one of those cases. The intelligence was insufficient to dismiss the fears that Hussein could use weapons of mass destruction. As he was pretending to be able to deploy them he does not get the sympathy that might otherwise be due.

As nations can never be certain that a friend will not become at least the covert or de facto ally of enemies (as NZ did when it unilaterally abrogated the ANZUS Treaty with Australia and the US) it is prudent to ensure that you know as much as possible of the inner workings of anyone important to your future. I hope that our intelligence services always maintain a prudent eye on even our ‘most-of-the-time’ friends, while focussing on those whose behaviour and interests show clearly that we should not trust them.

Angela Merkel would know all that. I’m sure that her outrage at the US eavesdropping on her calls is feigned. By and large, if a friend has ways to know just where your words and actions diverge, they can be more accommodating and more confident in their dealings with you.

Conflicts of interest as a broadcast commentator

  • September 18th, 2014

I want to tell you a couple of true stories, to inject some balance after David Slack’s grandiloquent grief yesterday on Jim Mora’s Panel about ‘dirty politics’. But that will be a separate post.

 First I must deal directly with David’s references to me.  He said

“…I was outraged when I read [what SF] wrote last week that he will represent the interests of a client including, in venues such as this, ….no matter how repugnant that  particular client’s point of view might be, he will advance it  because it is duty as a lawyer to do so.

I do recognise  the obligation of lawyer to client to do that but I also think it is incumbent on a lawyer to declare that he is acting for his client when he expresses those opinions   ….

he makes no apology for doing that  and I don’t have the script in front of me  but the clear implication was that sometimes some of those opinions he is advancing on the Panel would appear to be  being advanced because it is  in the interests of his clients  and I have not heard him declare that “.  

 The blog post he refers to is in full here. It explained why I could give information to Cameron Slater for his blog if that was the most effective way for the client’s position to enter public debate. Mainstream media often decline to report matters that do not fit their journalists preconceptions. The blog world has blown open that form of censorship. My post expressly said that I do not lie for clients, or provide information I know to be false.

 On Jim’s Panel I give my own views and only my own views, unless expressly citing others or in heavy and obvious irony. I assume that I may have speculated on alternative arguments. But all those are obvious, and if there was client interest in any reference to a view that is clearly not my own, I’d say so. I don’t think that has ever happened.

 Sometimes my views coincide with client interests, as for example when we discussed the Green Party position on the constitutional significance of the Casino/Auckland convention centre deal. But client interest is either obvious because that is why I’m asked about it, or I say I’m working in the area. Or I decline to join in when there’s a client interest I can’t share.

 There was one exception a year or so ago, when the conversation moved on unexpectedly before I could mention the client connection. I was embarrassed by that, and called Jim’s producer afterward, and texted him so that they could tell listeners. The producer said it was not important enough, and it wasn’t.

 I would never pretend concern, or be deceptive on the Panel for a client or otherwise. I did not lie as a politician when it was harder to avoid, and I do not lie now.  I’ve never had a client ask me to.  

My colleagues at Franks Ogilvie sometimes ask why I haven’t discussed something on the Panel we are working on, but that is because  it is so interesting.  A joy of the job is getting into complicated issues that become more interesting the more you learn. Usually I don’t bring them up simply because there is not enough time to unravel the complexity. But for listeners my best offer is fully informed comment, and that has often come from client work.

 I think Sir Geoffrey Palmer took the same approach. His media contributions on legal and constitutional issues over his long years with Chen Palmer often reflected his involvements. And they were all the better for it.

On the moral merits of hackers and spies

  • September 17th, 2014

This morning’s Fairfax headlines demonstrated the childish naivete of our media “intelligentsia”. We got the astonishing news that New Zealand intelligence assets spied on things going on in foreign countries, including some with which we are friendly. Never mind that the same papers reported it in December last year. I looked in vain for anything in the breathless stream of shock on the front page to show someone somewhere was adult enough to pont out that if our spies were not doing just that, there should be serious sackings until they started doing the necessary.

Ordinary people understand the issue. The hairdressers today, and casual discussion at a dancing class this evening pointed to a dreary lack of journalistic realism as the reason for switching off days ago from the boring radio and TV coverage of the ‘mass surveillance’ claims.

It reminded me of a discussion on Jim Mora’s programme late in June when I ventured a few words on a related topic that really demanded a more full explanation. I argued then that laws protecting privacy are desirable, so that breaches are not routine, but they are mostly of recent invention, they threaten some of the noblest traditions of journalism, and are far less important than rights of free speech. Privacy law should merely ration or reduce breaches to an acceptable level. It should not be so severe or effective as to eliminate the reputation mechanisms, and the exposures of hypocrisy and corruption that are critical to healthy free societies and personal responsibility.

And for similar reasons, active and covert intelligence services are critical to our long term defence against determined enemies, and the avoidance of avoidable war with people who are probably not our enemies, though we are unsure.

My June radio comments were prompted by a long discussion at the office about secrecy, privacy, freedom of speech and phone hacking. I’ve previously worried publicly about the shortsighted journalistic welcome of Leveson proposals, and the recent NZ Parliamentary response to the exposure of Peter Dunne’s peculiar view of his Ministerial duties of confidentiality.

There was strand of opinion in our office that the News International phone hackers were disgraceful, and that was reason enough to support proposals for severe new rules governing the press, so that nothing like that could ever happen again

I see a clear difference between what is illegal, and what is immoral. I really want a media that is rude and unstoppable when it seeks the truth that power wants to hide. I want a media that pieces together people’s trash, that eavesdrops, that encourages leaks, to tells us when prominent people are hypocrites, and say one thing and do another.

I agree the hackers should go to prison. It would not be courage on their part if they did not risk that penalty. And that risk rations the conduct, so that by and large it is not universal. It is like traffic offences. I may speed, perhaps repeatedly, yet agree with the law against speeding. I am not a hypocrite as long as I accept being fined for speeding,

This kind of distinction between what is illegal and what is disgraceful underpins freedom. There is much conduct that should remain regulated only by shame, the sanction of disgrace, not law. There is much conduct that could be noble, but must nevertheless be illegal.  What Edward Snowden did, I regard as both disgraceful and illegal, but nevertheless heroic. Other spying or lawbreaking to get the truth or to spread it, might be both against the law, yet be admired as ethical and courageous and necessary.

Lawyer engagement in social media debate

  • September 11th, 2014

NBR (and Penny Bright) have asked for comment on Whaledumped emails that apparently refer to my firm,  Franks Ogilvie.

One reportedly asks Cameron Slater  what his ‘charging structure’ is, apparently with a view to hiring his services on behalf of a client of Franks & Ogilvie. NBR go on to ask:

” Are you concerned with Franks & Ogilvie being associated with the Whale Oil blog’s alleged practice of smearing individuals and organisations for commercial consideration? ….and

Is it appropriate for a solicitor to broker, on behalf of a client, services intended to either enhance of the reputation of the client or denigrate the reputation of an opponent or opponents of the client?”

I respect Nick and his paper, so I replied at length, along the following lines (with some editing).

“I have not accessed the emails and do not intend to unless or until something is drawn to my attention that requires it.

Ordinarily I would respond to such queries with ‘no comment’. That is  to maintain confidentiality of client matters. Entering discussion tends to result in spurious  significance for the particular point at which a line is drawn between what can and cannot be discussed without risk of conveying more than a client might want.

But I am happy to offer general comments on our practices.

A public voice for clients, and for views of what the law should be, does not shun effective platforms.

We have in the past, do now, and will in the future, write, publish, talk about and promote causes and interests in any medium that seems to us likely to be effective. Of course that includes social media. I have my own blog. I comment on the blog posts of others. Frequently the participation is on issues where I or the firm have a view, and our participation is a pro bono attempt to add expert correction or advice to the public discussion. Sometimes participation promotes the firm. Sometimes it is expressly to advance a client’s cause.

Like most people, we are probably more effective and more energetic on issues where our views coincide with those of the client. With their approval we’ll use as many channels as is practicable to ensure that the client position is communicated to the people who should have the information. We are public advocates. We do not eschew any lawful form of communication.

We will not be involved in peddling material which we know to be false. But otherwise we do not discriminate  between paid, earned and uninvited or unplanned communication. If the client’s interests are advanced by getting information out, unless specifically instructed otherwise, we’ll help them achieve that in any way that seems to us effective. That may be by blog commentary, writing blog posts, tweets, commissioned articles in MSM, public speaking engagements, questions at media conferences, personal lobbying, commissioning or supporting polling, encouraging investigative reporting, obtaining and releasing official information, formal submissions and hearings, and mixtures of those.

The channel matters, but effectiveness is the measure

We are obviously influenced by how we think information or messages may be affected by the channel, and the people associated with it. We look to get the best result for the least cost, and with the least risk of the message being distorted by the medium, or recipient perceptions of the medium. But personally  liking or not liking  a medium, or an individual (including a blog writer or reporter) or dislike of others who also use the medium, will not cause us to dismiss the use of a medium that would otherwise be the most effective for the client.

 Lawyers can’t be precious. Client interests prevail over personal interests, however unpopular the client

Subordinating personal preferences is orthodox. Indeed an undiscriminating approach to whatever is effective is probably required under lawyer ethical obligations to act solely in the client’s best interests, even at the cost of our interests, including reputation interests. Lawyers are not permitted to turn down a client, or to act otherwise than in accordance with instructions, except in very limited circumstances, such as where we do not have requisite capacity, or the client instructs the lawyer to mislead a court.  We are obliged to advise objectively on the clients’ courses of action without fear or favour.

You see those principles in action every day, with lawyers representing clients in and out of court, ensuring that they put their case and cause in the best light possible. Criminal lawyers are often adversely affected by public revulsion for their clients. It does not excuse them from following instructions. Our legal and political system depends on the constant testing of their limits and  protective mechanisms, often by people for whom there will be little public sympathy. We are hired to be the skilled voice of the clients, not our own. Lawyers have for decades placed paid advertisements in NZ Truth, for example, where it was considered likely to come to the attention of the target persons, despite that newspaper being also a preferred advertising medium for massage parlours. It maintained its circulation on the basis of salacious stories with which neither the lawyer nor the clients would want any association, but if it was the best channel for the message, it was used.

Are we unusual?

We probably use a wider range of media to advance client interests than most lawyers. But that is largely a reflection of the nature of our practice, and the reasons why clients engage us as public lawyers. Most clients of most lawyers probably want to avoid the public eye.  In public law the opposite is commonly the case.

Using the courts as a last resort – public advocacy is often necessary, more effective and it is more democratic.

There is no ethical excuse for shunning social media if a client seeks effective political or regulatory or other change. The conventional early public law recourse to judicial review is usually too expensive for most clients. It is also often less effective, much slower, less permanent in outcome and less consistent with democracy, than securing changes by persuading voters and the people with power more directly. Many of our clients want changes that are not vulnerable to regulatory or political whim. Improving the balance of information in the community so that democratically elected leaders see the need to change the law or change their priorities for the long term, requires engagement with people where they communicate. We do not adhere to the school of lobbying that sees it as primarily pretending to hold the key to access to Ministers. Access is commonly not difficult in New Zealand. But robust regulatory results often depend more on winning the hearts and minds of decision-makers and the opinion leaders in the community who mould consensus values. Social media are  vital in that regard. Choosing not to participate out of refined sensibilities would simply leave the field to those with less scruple.

 Negative information – MSM hypocrisy

You ask about a ‘blog practice of smearing individuals and organisations for commercial consideration’. I set  aside for the moment the irony of that characterisation from an employee of a business which (in my opinion quite properly) survives commercially by beating  its competitors to publicise for private profit, accounts of scandal, failure, embarrassment, and other dismaying circumstances for individual and organisations. If you are doing your job properly you will frequently be exposing information that the subjects would dearly prefer to remain secret. Your ethics and morality will constantly be attacked (wrongly) by embarrassed or angry targets. Your stories will be incomplete, and sometimes one-sided, however hard you might try to avoid that. We share a common public interest in your prompt publication despite the risks of unfairness even though from the target’s perspective you have no  interest other than to sell your services, and your publication. Many targets do not see that as morally legitimate.

Negative information vital to the public interest, and the main purpose of freedom of speech

Fostering engagement in public debate over matters that may affect the reputation (positively or negatively) of people in public life is among the most vital purposes of freedom of expression. Reputation mechanisms are critical to healthy operation of civil society. Without effective and continual testing of reputation including by sincere challenges that may prove to be baseless after full exploration, society would be left to rely for good behaviour sanctions and incentives on constipated official processes. That in turn subordinates society to lawyers and officials (and their political masters).

The proper boundaries to public discourse are set by defamation law. The fact that modern courts have allowed many of our civil remedies to become hideously expensive and slow, and beyond the reach of most people, does not invalidate the traditional standards set by the courts in more efficient days. Procedural reform of defamation law was a cause I advanced while in Parliament, and since.

Applicable principles

The law recognises the difficult boundary between,  on the one hand evidence as to character and modus operandi and prior conduct that is material to evaluation of current claims and explanations and charges, and on the other, such evidence that is designed simply to raise prejudice against an individual. We believe we should draw a similar distinction in our public discourse. Informative contribution to debate, including about the character, purposes and conduct of individuals can be  relevant  to an issue. On the other side is abuse and denigration for its own sake, for the base pleasure chooks presumably share in pecking off the feathers of a target hen.

The targets of both legitimate and unfair and unethical criticism and exposure may equally claim that it is ad hominem argument, or vilification. The mere claim does not dispose of the question.

 Our practice

That said, I cannot recall any occasion when we have been involved in public advocacy designed  only to discredit an individual, and we would be loathe to do it, whatever the instructions. I cannot recall us paying for any form of media exposure (including blog) that even someone who might have been on the other side would have properly characterised as vilification of an individual.  In all my time in public affairs I’ve tried to remain courteous to opponents, and even without the lawyers’ conduct rules I want our firm to reflect that value. And of course we will not disseminate statements we know to be untrue. But if there are  facts that should be in the public domain, including about people exercising power, for others to take into account in assessing their true character and motives, ensuring such disclosure would be a legitimate exercise of free speech for us and our clients.  The vigour and health of our public discourse depends on the likelihood that hypocrisy will be unmasked, and that false claims to trust or respect will be exposed.

 Slater’s effectiveness

As to Mr Slater, we’ve seen his blog as a very effective medium for breaking public interest stories that MSM were not prepared to investigate or run. We do not like the bombast or the offensive language that has been disclosed in his private communication, but there are many effective people in all walks of life whose private communication would shock us all were it to be public. The black humour that research shows to be a common coping mechanism for people in stressful occupations like policing, and emergency medicine, and probably journalism, is never meant to see the light of day. That does not mean we favour responding in kind to boastful and vainglorious expression, but we focus on our clients’ reasons for communicating through the medium that reaches the target recipients, not our reaction to the backroom culture.”

NBR also asked about Whaledump material connected to Jordan Williams. I confirmed that he left the firm to run the Taxpayers’ Union full time. We were sorry to lose him. We have great respect for his talents, for his motives and for his achievements. We think he has said publicly that he has learnt from this experience to be more circumspect in conversation, and he has apologised for some of his conduct. I approve of the way he has responded but it is now none of our business.

IQ changes – Is the Kardashian effect overwelming the Flynn Effect?

  • August 30th, 2014

Our world famous expert on IQ testing, Prof Jim Flynn of Otago University, discovered that people in rich industrialised societies score much more highly in intelligence tests than their great grandparents.

The revealed increased capacity for abstract reasoning is called the Flynn Effect. As the wikipedia description shows, it has generated enormous interest, and lots of research. Prof Flynn gets worldwide requests to explain and discuss it.

You'd think New Zealand would accordingly be a centre of IQ research. But many of us have scarcely heard of it.

And now  the Daily Mail reports research suggesting a material reversal of the trend in parts of the rich world. It suggests the IQs of people in the UK and Denmark have declined by 1.5 points since 1998. Prof Flynn has been involved in the resulting intellectual discussion. Despite the news that Australia is among the countries that seem to be dumbing down a quick search turned up no New Zealand originated public attention to this finding.

I'm stunned that it has not been brought into public policy discussion here. It seems ripe for people to call on it to serve their favourite theories or prejudices on education, for example, or immigration. The comments on the Daily Mail report  wearyingly reflect the left/right toxicity of Anglo-sphere politics (though I loved the comment reflected in the heading for this post).

I've been interested since meeting Jim Flynn in the mid 90's, because he was convinced (and convincing) about the plasticity of the brain. He emphasized the significance of the switch from farming to industrial work, and increasing concentration on reading. Early experience matters. How you prioritise your thinking time, the skills you practice, really matter. He was ahead of his time. Epigenetics is turning upside down many assumptions about how we inherit. Nature vs nurture arguments are more complex  than we ever thought. But 20 years ago Jim was suggesting that if your primary learning avoids stretch, or most of your reading or watching is passive, on undemanding trash, don't be surprised if your brain never fully develops its reasoning potential. I'm not aware of any Prof Flynn judgment about what category the Kardashians fit.

Subsequent research highlights how acquiring habits of perserverance in particular can vitally improve capacity in many spheres. Some of what my generation scorned as 'anal' now looks more useful, being practice in deferring gratification for greater future gain.

I suspect that we'll eventually see proof that some of the disturbing (and undiscussable) ethnic differences in reported IQ levels may  reflect cultural approaches to learning and intellectual training generally. Cultures and classes that won't train their children in perseverance and gratification deferral may be doomed to serve those who do. If  tested intelligence quotients change substantially from generation to generation according to how they spend their learning time, children whose parents and teachers fail to stretch them to keep up intellectually mght be more likely to inherit the wrong end of increasing inequality of wealth and income.  Genes may be blamed, or 'disadvantage' or 'discrimination' when it is just that old villain – well intentioned excuses for refusing to judge and change or discard 'cultures' that deserve fail marks.

The news that IQ averages may be falling reminds me of one of the serious oddities resulting from the US Supreme Court's attempts to nibble away at the death penalty in the face of democratic majority support. Failing to find constitutional authority to abolish it, in the 2002 case of Atkins v. Virginia, the Court held that an IQ of less than 70 can indicate mental retardation so profound that effectively the criminal should not be held fully responsible for his actions. Execution then becomes unconstitutional under the Eighth Amendment’s prohibition on “cruel and unusual punishment.”

In a recent case a man of Mexican heritage was executed despite having an IQ of 62, because a lower court "accepted the prosecution’s rather astonishing argument that although Hernandez’s IQ was low compared to “American norms,” when “scaled to Mexican norms” it should be adjusted upward. When assessed according to his “cultural group”, they argued, his results should be closer to 70, a level just outside the definition of mental retardation."

The article refers to another case where it was accepted that an Hispanic average IQ  7.5% lower than Caucasian justifies a corresponding adjustment  to assess whether an Hispanic defendant is still within the normal functioning range. But the argument goes the other way for some Asians. It has apparently been seriously argued that US murderers of Asian heritage with IQs higher than the 'cut-off' should still benefit from it, because in relation to their peers they would be treated as retarded at a much higher level of cognitive ability.
But a quick review of the huge literature generated by Jim Flynn's finding nearly 40 years ago, shows that on current tests, over 100 years ago, the average IQ of the forebears of  the 'Caucasian' norm, would have been around 70 – i.e. the level now treated by the Supreme Court as 'retarded'.

The Courts should get well off the shaky ground of racism, however well meant, and go back to a simple rule for this complex world – treat all men [and women] equally, even if they are not.

Deeming things for the sake of practicality is not new to the law. What else, for example, is the rule that we are all deemed to know the law? With every passing day our multiple sources of law spew out more and more law. Even lawyers will actually know only a fraction of the law we are all deemed to know.

Dudley killer name suppression and discharge without conviction

  • August 27th, 2014

The Solicitor General reports that there is no power to appeal against the bizarre result of the High Court's discharge of the Dudley killer without conviction.
 

When name suppression and discharge without conviction combine, the community is doubly insulted by the lawyers' sytem. The discharge without conviction officially says ‘nothing to see here, we'll keep no record that anything legally wrongful happened’. On its own, that is often a consequence of proper legal process – decisions not to charge,acquittals and innocence until conviction combine. .

But when name suppression is added we lose our normal freedom to form and act on our own views on the behaviour, and to remember it for future dealings with the offenders,  whether or not the high criminal standard of proof for exercise of the state's coercive power was reached..


The combination of discharge with name suppression, however, means that it could have been better for the Dudley family if the Police had simply declined to take any action. In that situation their freedom of expression would not have been trampled.
Because the name suppression survives the community can't now officially know who the culprits are, and take any apparent lack of remorse into account in their futures. Of course in their community, where it really matters at present, everyone already knows. But our judges have resolutely declined to consider such realities.

I have strong views about judges discharging without conviction – to me it is airbrushing history, deliberately depriving the community of information vital for healthy functioning of the social, employment and other deterrents that uphold good behaviour and deter bad ..
Our judges collectively ignore the fact that there will never be enough police, judges, prisons and social workers for officialdom to create a society in which people routinely prefer not to offend and the strong are not contemptuous of the weak. Shame and the other social results of offending are vital in all healthy cultures. Behaviour that is not unlawful but is nevertheless reprehensible, must attract its natural costs.
The bleeding hearts should be on our side in this. When the official justice system interferes with shame there is inevitable pressure to crank up ever more severe formal sanctions.

Name suppression after a discharge without conviction is judicial arrogance. It insults the victim’s family. It steals our rights to know, the purpose of freedom of expression. .It undermines the primary social mechanisms, which should be the first and inevitable outcome of wrong-doing. The criminal justice system should be the back-stop, not the first and only social response.

This is not to criticise the Solicitor General. It appears he was left with no power to appeal.

Competition to end parole

  • August 25th, 2014

ACT and the Conservatives are rmaking excellent criminal justice policy announcements. If both are in Parliament we might see an end to the cosy major party consensus that has fostered our high rates of serious violent and youth crime. 

Garth McVicar's announcement on parole is more straightforward than I had expected. Most criminals come up for parole at one third of their Judge-given sentence. Garth says:

"I have spent 13 years helping victims challenge a parole system that seems to have been designed to torment them…..

 “Victims are continually re-traumatized, the current system opens up old wounds and locks victims into the cycle of grief and ensures they cannot put the crime behind them.”

“The Conservative Party will overhaul the parole system so that a Judge given sentence means what it says, 9 years will mean 9 years. Life will mean Life. The only function of the parole board will be to apply release conditions and ensure they are enforced"

It seems that they would introduce the US Federal system introduced after 1996, when Bill Clinton reached across party lines and took the Republicans policy and ended federal parole. Instead, there is a period of mandatory supervision at the end of most sentences. 

Great! There is no evidence that parole works any better to reduce reoffending than supervision at the end of the judge-given sentence.

People worry that prison populations will explode. That has not been the inevitable experience elsewhere after parole has been cut back. Prison musters would likely drop after an initial rise while offenders worked out that a new sheriff had come to town.

Some attribute the long drop in crime rates in the US, for example, at least partially to the increased deterrence of sentencing certainty. There is a good research consensus that severity of sentencing has much less deterrent power than speed and certainty of detection, conviction and punishment. Ending criminal expectation of parole dramatically increases certainty, and judges could afford to reduce sentence lengths. 

But there is another reason why prison musters will not escalate nearly as much as some would theorise. Because much of the serious crime is committed by a relatively small population of career criminals, the change would  merely cancel for  those serious offenders, who accumulate records of hundreds of crimes, their brief parole excursions from prison to add to their tally. Instead they stay much longer where they cannot prey on fresh victims.

I would not keep the Parole Board as the Conservatives would.

Let  judges set the release supervision onditions at the time of sentencing, and allow them to be relaxed on application at release, or by the Prison Manager,. That would restore to prison management power to induce prisoner good behaviour. At the least  prison management should be able to remit up to 10% of a sentence, so that they have some carrots for good behaviour, as they did up till the dopey reforms of the 1980s.

That was when the failed experiment began, in the hope that if we were nice enough to criminals for long enough, they might be nice back.

Let's hope that ACT competes with similar policy, and that the Peters Party joins in too. 

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