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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

W Peters rising at Peter Cullen’s Breakfast

  • June 29th, 2016

Rt Hon Winston Peters this morning delivered his stump speech to a Wellington Club room stuffed to the gills with the city’s elite. He called on his great memory of events to keep them absorbed, despite random barbs for them as his natural enemies.
Chatham House rules prevail as Peter Cullen has reminded me. But I can say there was nothing I heard which would surprise anyone who has heard him speak recently, including his invitation speech on Brexit in London.
Election themes were foreshadowed with no surprises – inequality, immigration, arrogance and faults of government on behalf of a shadowy elite.

The significance of this is the huge number who got along at 7am to hear him, and the serious attention he is receiving. Peter Cullen tells me there was a large waiting list. They don’t turn up for a free breakfast. The courteous donate expense contributions. And the “breakfast” is token

Accordingly I see even lower prospects that Winston Peters will not decide who governs after the next election.

And we may be grateful. The media will not cover anyone else who calls out the NatLabGreen ruling consensus on immigration, and race entitlements that trash equality before the law. He alone may be able to ensure we do not need a Brexit style uprising against the elite before such stupidities are reversed.

If he does not find it just all too much work.

Peggy Noonan called Brexit (and Trump) in February

  • June 24th, 2016

Trump and the Rise of the Unprotected Why political professionals are struggling to make sense of the world they created.
The Wall Street Journal: February 25, 2016

We’re in a funny moment. Those who do politics for a living, some of them quite brilliant, are struggling to comprehend the central fact of the Republican primary race, while regular people have already absorbed what has happened and is happening. ….But in my experience any nonpolitical person on the street, when asked who will win, not only knows but gets a look as if you’re teasing him. Trump, they say.
…..
In America now only normal people are capable of seeing the obvious.
But actually that’s been true for a while, and is how we got in the position we’re in.
Last October I wrote of the five stages of Trump, based on the Kubler-Ross stages of grief: denial, anger, bargaining, depression and acceptance. Most of the professionals I know are stuck somewhere between four and five.
But I keep thinking of how Donald Trump got to be the very likely Republican nominee. There are many answers and reasons, but my thoughts keep revolving around the idea of protection. It is a theme that has been something of a preoccupation in this space over the years, but I think I am seeing it now grow into an overall political dynamic throughout the West.
There are the protected and the unprotected. The protected make public policy. The unprotected live in it. The unprotected are starting to push back, powerfully.
The protected are the accomplished, the secure, the successful, those who have power or access to it. They are protected from much of the roughness of the world. More to the point, they are protected from the world they have created. Again, they make public policy and have for some time.
I want to call them the elite to load the rhetorical dice, but let’s stick with the protected.
They are figures in government, politics and media. They live in nice neighborhoods, safe ones. Their families function, their kids go to good schools, they’ve got some money. All of these things tend to isolate them, or provide buffers. Some of them …..literally have their own security details.
Because they are protected they feel they can do pretty much anything, impose any reality.

Here too the anointed/protected impose their virtues on the proles, punishing them if they smack their children, or ride quad bikes without helmets, or drink from glasses of more than 50ml, choose schools that union leaders hate. They force racially inherited (probably life-time) slots on councils where until now voters could eject any  who lose their trust. They make secret the names of elite offenders before the courts, and so on and so on.

They’re insulated from many of the effects of their own decisions.
One issue obviously roiling the U.S. and Western Europe is immigration. It is the issue of the moment, a real and concrete one but also a symbolic one: It stands for all the distance between governments and their citizens.
It is of course the issue that made Donald Trump.
Britain will probably leave the European Union over it. In truth immigration is one front in that battle, but it is the most salient because of the European refugee crisis and the failure of the protected class to address it realistically and in a way that offers safety to the unprotected.
If you are an unprotected American with limited resources and negligible access to power you have absorbed some lessons from the past 20 years’ experience of illegal immigration. You know the Democrats won’t protect you and the Republicans won’t help you. Both parties refused to control the border. The Republicans were afraid of being called illiberal, racist, of losing a demographic for a generation. The Democrats wanted to keep the issue alive to use it as a wedge against the Republicans and to establish themselves as owners of the Hispanic vote.

Many Americans suffered from illegal immigration’s impact on labor markets, financial costs, crime, the sense that the rule of law was collapsing. But the protected did fine – more workers at lower wages. No effect of illegal immigration was likely to hurt them personally.
It was good for the protected. But the unprotected watched and saw. They realized the protected were not looking out for them, and they inferred that they were not looking out for the country, either.
The unprotected came to think they owed the establishment (another word for the protected) nothing, no particular loyalty, no old allegiance.
Mr. Trump came from that.
Similarly in Europe, citizens on the ground in member nations came to see the EU apparatus as a racket – an elite that operated in splendid isolation, looking after its own while looking down on the people.
In Germany the incident that tipped public opinion against Chancellor Angela Merkel’s liberal refugee policy happened on New Year’s Eve in the public square of Cologne. Packs of men said to be recent migrants groped and molested groups of young women. It was called a clash of cultures, and it was that, but it was also wholly predictable if any policy maker had cared to think about it. And it was not the protected who were the victims, not a daughter of EU officials or members of the Bundestag. It was middle – and working-class girls, the unprotected, who didn’t even immediately protest what had happened to them. They must have understood that in the general scheme of things they’re nobodies.

……
You see the dynamic in many spheres. In Hollywood, as we still call it, where they make our rough culture, they are careful to protect their own children from its ill effects. In places with failing schools, they choose not to help them through the school liberation movement – charter schools, choice, etc. because they fear to go up against the most reactionary professional group in America, the teachers unions. They let the public schools flounder. But their children go to the best private schools.
This is a terrible feature of our age, that we are governed by protected people who don’t seem to care that much about their unprotected fellow citizens.
And a country really can’t continue this way.
In wise governments the top is attentive to the realities of the lives of normal people, and careful about their anxieties. That’s more or less how America used to be. There didn’t seem to be so much distance between the top and the bottom.
Now is seems the attitude of the top half is: You’re on your own. Get with the program, little racist.
Social philosophers are always saying the underclass must re-moralize. Maybe it is the overclass that must re-moralize.
I don’t know if the protected see how serious this moment is, or their role in it.

Can a tolerant country tolerate those who hate tolerance?

  • June 13th, 2016

Last month I had a short (3 weeks) and humbling look into the Central Asia that launched Tamerlaine and Ghenghis Khan and many other less well known but regionally devastating conquerors.
I had several weeks in Kazakhstan and Uzbekistan, taking advantage of an offer by friends working there to join them as they explored some of it.
Uzbekistand in particular was awe inspiring (though Astana, the new purpose-built Kazakhstan capital is architecturally fascinating).

In Uzbekistan 35m hard working though poor people offer a warm welcome to awe-inspiring Samarkand, Buhkara, Khiva and post earthquake reconstructed Tashkent. Good food, knowledgeable guides, interesting wines from a very large wine industry, comfortable hotels, reliable transport. Why is it not over-run? Borat may have a lot to answer for.

The two Central Asia countries offered none of the expected badgering by hawkers or anyone else. 70 years of Soviet atheism has given Uzbekistan what Turkey is losing (officially secular state power co-existing with a mild Sufi Islam).

They’ve stayed mostly secular, despite infiltration and threats from neighbouring countries. They beat out a determined mainstream Islamist challenge 10 years ago, with no apologies for seeing it as a life and death matter.

It is challenging to one’s liberal beliefs to work out how the relative freedom and security of such countries could survive with the religious tolerance demanded by “Western”ť values.
10 years ago I did a job in Pakistan. Its intellectual life is dictated by the risk of prompt death for anyone who challenges Islamic orthodoxy, even if the mullahs represent only a small percentage of the population , and few of the qualified people who keep the country running.

For how long can a country survive if it tolerates those who do despise tolerance. How does it stop gaining a critical mass (which may be less than 5%) people whose religion says toleration by a ruler is sinful, with death and martyrdom as the proper responses to deviation, heresy, apostasy?

I felt last week what I feel every time I walk from Auckland International to the Domestic terminal. It is a huge privilege to be here. And this was added gratitude that I do not have to reconcile the diametrically conflicting certainties that drive so many ignorant people in our countries.

Aus research says bigger not better in local government – will business leaders notice?

  • April 28th, 2016

Do mergers make for better councils? The evidence is against ‘bigger is better’ for local government“. That’s how The Conversation on 31 March summarised some unequivocal Australian research findings.

They confirm just how lucky Wellington region, Hawkes Bay and Northland were to dodge the amalgamation bullets prepared by the nobs of New Zealand local government, and recent Ministers. The Australian research is consistent with international evidence reviewed by economist Phil Barry of TDB Advisory before his advice confirmed for Hutt City Council that resisting amalgamation was in the interests of their city and ratepayers.

Of course that resistance attracted snobbish scoffing from the Wellington great and good. They’d planned a fait accompli. They feared that the Hutt bourgeoisie might not comprehend that rule by their betters in Wellington would be best for them. Fortunately, law changes to nobble voter resistance to amalgamation were poorly drafted. A poll could not be prevented. And as voters learned more, they stayed suspicious of what the nobs were telling them.

Astonishingly no authority who pushed for amalgamation has ever thought it necessary to respond to the research. No media “opinion leader” has pressed them to explain themselves. Our Local Government Commission has never thought to apologise to the public for peddling baseless claims. Nor has LGNZ demanded evidence based policy. Instead, with divided membership it has struggled to stay out of the debate.

Wellington “business leadership” organisations came out for amalgamation, with slogans, not analysis. Property Council branches around the country spent time and money pushing amalgamations as solutions to problems they never dissected.  I’m not sure why, but I  speculate that brown-nosing to bigness comes naturally to many in business.

The voter rejection of that takeover wave gives New Zealanders another opportunity to become aware of the evidence. As the Aussie researchers report:

“NSW experienced a sharp dose of forced mergers in 2004. Queenslanders underwent draconian council consolidation under the Beattie government in 2008.

NSW is now on the cusp of a further round of mergers being inflicted on unwilling councils.

In all three cases, the architects of compulsory amalgamation have been under the sway of the dogma that “bigger is better” in local government. Ratepayers are told amalgamation will herald a new dawn of lower rates, cheaper services, improved service quality, enhanced financial viability and superior administration and planning.

In NSW, the Baird government has especially emphasised the financial advantages of municipal amalgamation. These claims are typically presented as the outcome of careful research and deliberation.

In New Zealand there were similar claims but little pretence of research. Most  assertions had little more to them than the ’rank’ of those who devised them. The Conversation’s report carries on:

Are these claims consistent with the empirical evidence? My colleagues Brian Bell and Joseph Drew and I investigated this question for NSW’s 2004 forced amalgamations.

We took advantage of being able to use 2014 data to compare the performance of merged councils with their unmerged counterparts over ten years.

We compared amalgamated “general purpose” councils with their un-amalgamated peer councils in the same local government classification. We thus had the benefit of a “natural experiment”, being able to compare the two groups of “like” councils against a common set of performance indicators.

Our peer-reviewed research paper will be published shortly.

The criteria we used for this comparison included four the Baird government is using under its “Fit for the Future” program – operating performance, own-source revenue, building and infrastructure renewal, and asset maintenance ratios – as well as council employees per capita.

We found no statistically significant differences in the performance of the two groups of councils against these criteria.”

No difference, and this does not take into account the transition risks, the extraordinary costs they often incur, the loss of local self determination and democratic accountability, losses in potential for local initiative and local experimentation and reduction in available seedbeds for emergence of local leadership.

But the researchers also:

“examined the outcomes of forced amalgamations in Queensland in 2008. These reduced the number of councils from 157 to just 73.

Our research demonstrated that this resulted in a greater proportion of councils exhibiting diseconomies of scale. That is, mergers created entities that were simply too large to be run efficiently.

Furthermore, of the 31 new councils the mergers created, 58% exhibit decreasing returns to scale. Comparing their efficiency through time, we found merged councils performed worse than unmerged councils.

This is more blunt than the Hutt’s TDB Advisory report to which the LGC failed to respond. But there is more. The 31 March report refers to other research that:

tested the claim that “bigger is better” by examining the financial performance of Australia’s largest council by population, Brisbane City. In our recently published analysis, we compared Brisbane City Council to Sydney City Council, the average of six southeast Queensland councils and the average of ten metropolitan NSW councils.

We did so using four measures of financial performance – financial flexibility, liquidity, debt service capacity and asset management. Between 2008 and 2011, the three comparator groups outperformed Brisbane Council in financial flexibility, liquidity and debt-servicing ability.

Taken together, these three papers cast doubt over the continuing dogma that “bigger is better”. They also add to the empirical literature on municipal mergers by demonstrating that “biggest is not best” either.

In particular, the financial performance of local authorities does not improve as advocates of amalgamation contend. On the contrary, amalgamated municipalities often perform worse than their unmerged counterparts.

…our findings underline the foolishness of making public policy in an “evidence-free” manner.

If forced amalgamations proceed, we may well see hundreds of millions of dollars in taxpayer and ratepayer funds squandered simply because policymakers preferred dogma to empirical evidence.”

The mayors of the Local Democracy Coalition beat the amalgamators. I’m proud of my firm’s work for them

But unfortunately the nobs are fighting back. A 44 page Cabinet Committee Paper obtained under the OIA treats voter rejections as mere  interruptions in the march to the sunny uplands of consolidation. It is just possible that cost benefit analysis was excised from the release copy, but there is no sign of a disciplined statement of assumptions, let alone questioning of them. There is no indication that evidence could be important. Instead the LGC which failed so abysmally in the last round is to get more authority, including to impose solutions.

Cabinet seems to be relying for more wisdom on recent changes of LGC Commissioners. So far, however, nothing from the new LGC shows more disciplined thinking. The Cabinet paper may not be theirs, but the LGC should have made unlikely such unpenetrating advice to Ministers. It should be educating us all.

The tino rangatiratanga flag

  • March 21st, 2016

I’ve finally sent in my vote in the flag referendum. I’ve vacillated. I do not like the black without red. When my subconscious finally formed a preference that held for more than a week, it seemed unfair that my vote might cancel out the vote of another (including in my family) to whom the issue obviously means much more. I will not care about the result.

I thought we should have taken the tino rangatiratanga flag. It is a great design, instantly recognisable. And if those who wave it persist with the false claim that we’ve wrongly stolen their sovereignty we might as well steal their flag. They want to feel wronged in any event.

I don’t much care about the referendum because I know familiarity with the puerile new flag would eventually turn to acceptance and possibly affection.  On the other hand I’ve never had sympathy with those who need gestures of repudiation to feel “grown-up”. I feel no need to doff my cap to any Pom, but I’m glad to be part of the British family. Then again I’ve always wanted to be able to remember how our flag differs from Australia’s.
If they now change theirs I’d want to get our current one back.

If the new flag is not approved, I hope the referendum attention  results in lots of flags flying. I must get a flag pole. When we’ve all been flying our preferred designs for a few years perhaps a consensus preference will emerge. Over time it will become our collective choice, and eventually a government will only need to make it official.

Will I dare start with the best – the tino rangatiratanga flag? Or the even better flag going unclaimed at the moment – the imperial rising sun of Nippon? We see the rising sun before them each day. We were in the team that defeated the soldiers carrying that flag. Victors commonly took home captured flags.

I know that appropriating it could be too soon after the horrors visited under it.
But it is a great flag.

Iron law of Arts Festivals – and thanks for Cubadupa

  • March 20th, 2016

My last Arts Festival attendance last night confirmed two things –

first the iron law of Arts Festivals  - attending more than four events without express endorsement of each from a trusted friend guarantees that at least one of them will be hideous. For us it inoculates us against more than token early bookings next time. We have to wait for word of mouth reports, and just take the risk of missing out.

A couple of years ago I bewailed the absence of anything like the ratings/reputation mechanisms that make filmgoing so much more reliable. I googled before last night’s ghastliness - but found no equivalent to Flicks or iMDB to provide protection.

That leads to the second reminder – there’s no accounting for taste. We were encouraged to attend an unpromising show by an enthusiastic friend. She was going for the second time. I’ve always seen her as notably level headed.

Now I have to wonder if I’ve been missing the snap of the whip and the whiff of Weimar about her. She warned us it was extremely sexy.

I suspect that being bawled at by a lip syncing overweight aging boy would pretty much eliminate lustful thoughts in most folk.

I know we were not alone in our desperate desire for it all to end. Others in our row had their fingers jammed in their ears. Yet sections of the audience seemed enraptured.

If only we had stayed wandering up and down Cuba St enjoying Cubadupa. Few were there without feeling privileged to be in Wellington at its best.

Why farmers pay higher interest on loans

  • March 14th, 2016

Specialist farm lending can be very profitable. Competition does not seem to wipe out the premium farmers tend to pay compared to other mortgage lending. It has puzzled economists from time to time.

Andrew Little’s stupid threats reported on Stuff this morning remind me why good farmers pay too much for their mortgages. I suspect he has just helped ensure more years of super-profits for farm lenders.

I’ve seen no recent study, but the farm sector interest margin was estimated to average over half a percent over many years when I was a lawyer for various farm financing institutions and a director of Wrightson and its finance company arm.

Stock and station agencies were able to profit in that market, despite higher costs of funds and lower prospects of ‘back office’ economies of scale, because of information synergies. They could draw on the knowledge of their agents and branch staff to appraise risk, and to know early when to pull the plug. They were rarely caught having to enforce their securities with formal mortgagee sales. But other lenders too had low loss experiences most of the time, certainly low enough in the main study I recall to justify a narrowing of the gap between farm lending interest rates and the rates charged on other mortgages with similar security.

We concluded that farmers were paying hundreds of millions extra in interest mainly because of a unique sector risk specifically created by farmer politicians, and farmer activist groups. In no other sector will the borrowers as a class gang up to prevent enforcement. Selling up a farmer was often  difficult, emotionally draining, expensive in legal costs and very slow. Farmer blockades,  threats to bidders at mortgagee sales, and the risk of political intervention created a sector profile that added a precautionary extra risk premium smeared across the whole sector.

It affected even the best borrowers, because of the theoretical possibility that political intervention could put even their mortgages into a compulsory forgiveness regime, as was done in the 1930s, or enable unilateral deferment of payments, or prevent practical enforcement.

I recall discussing it with Federated Farmer board members. They pointed out that it had been many years since anyone in their leadership had been calling for farmers to use force or threats collectively to over-ride contractual obligations. They agreed that those sold up were usually in a hopeless position, and often much better off emotionally after it was all over than when they were trying to fend off the inevitable. Sometimes even the activists would admit privately that the person they were trying to “protect” was actually a dud farmer, and would never make it work.

But they still felt good damning the banks and organising collective action. They were much less interested in the actual consequence.

It was not fair, but all farmers paid (and still pay) the price. The sector is landed with a premium because of the long history of anti-mortgagee sale campaigns from groups like the breakaway Northlanders. More recently those who have been campaigning to make banks liable for letting farmers enter currency risk deals, or otherwise lending “imprudently” have queered the pitch for the upcoming generation of entrepreneurial farmers.

David Farrar summarises well the stupidity in Andrew Little’s attack on the lenders. There may be reasons to worry about Aussie bank domination. But they are protected in it partly because of knee jerk regulatory responses to the GFC finance company collapses. The Reserve Bank supervision regime (and costs like AML/CFT) now protect the big banks from what should be the understory of new finance companies coming through in business lending to challenge them.

Even more worryingly, the Labour leader wastes his business credibility pandering to people who won’t make an electoral difference for him. How many less competent, or stretched farm borrowers are there? Little should let David Parker handle the finance portfolio and stay well away from it. I’ve heard Andrew speak to business people. He would have been better not to show his inability to understand them, or the economy.

In the meantime Mr Little has just reinforced the profitability of mortgage lending to farmers. His calls will not change anything tangible, because most farmers and their advisers know it could be disastrous long term. But in the meantime Labour has handed banks a justification for their premium, just as Mr Little’s colleagues ensured super-profits for those of us who invested in the electrity generation share offers. Their stupid nationalisation threats added risk to the floats, and therefore rewarded those who were willing to accept that risk.

PS For another puzzled and expert reaction, try Croaking Cassandra here

Another ‘light rail’ debacle

  • March 1st, 2016

The Economist reports on the commissioning of Washington DC’s stupid new ’street car’ service.

No doubt in due course they’ll get the opportunity to report on Auckland’s central city rail loop in similar terms. I hope that the forgettable politicians responsible will get a mention.

Here in Wellington we can be grateful to Mayor Celia for her willingness to risk the sentimental sector of her support by at least soft-pedalling (sic) her previous enthusiasm for light rail investment.

What we missed only a year ago, by rejecting Uber-Wellington –

  • February 29th, 2016

Remember this time last year – before Uber-Wellington was killed by overwhelming resistance from suspicious voters. Our ‘betters’ were deriding the instinct that empire building, not democracy, was the motive for bigger, more remote Councils. The Local Government Commission was still peddling claims they must have known were dodgy on how much more efficient big local government would be.

An ‘efficiency’ goody we missed out on was consolidation of ‘fragmented’ computer systems.
Bernard Orsman in the Herald tells us how that is going for Auckland, after spending of $1.24bn. At one stage it was going to save money, despite estimated transition costs of $600m.

Now it seems Aucklanders have to be satisfied that some day they will have the huge benefit of being able to use the same system across Auckland, for example to hire their local hall.

No one has ever explained who, other than a compulsive tidier, thinks it a benefit that everyone across a region must use the same processes and systems, when they rarely, if ever, want or need to use more than the nearest.

Orsman’s  report does not make clear how much of that $1.24bn since 2010 would have been spent without supercity amalgamation. But I’m reliably told that the  cost for Auckland local government IT recently has been around $165 per annum per person. Not much, you think - a couple of cups of coffee per week per ratepayer. Possibly worthwhile if dealing with the Council is 10x quicker than before, or elsewhere.

But that compares with less than 50c per week ($24 per year per person) for a typical  Wellington local authority. One of those Councils the LGC considers to be too small to be efficient and effective. Oddly it has extremely high ratepayer satisfaction ratings. I can’t find a comparable period measure for Auckland, but I venture that will be much higher than Auckland’s.

I hope the Local Government Commission is finding out why Auckland IT costs (even ignoring capital spend) 7x per person what a well run small Council incurs. The LGC believed in massive economies of scale. Where have they gone?

This is not a surprise to those who looked at evidence of local government costs from around the world, instead of slogans.

But I have to confess to thinking it would improve Wellington to see the drongo Councillors of Upper Hutt absorbed by a bigger neighbour. Mayor Guppy’s eloquent embarrassment saves them, and then I remembered Wellington Council’s pride in voting to be “Nuclear Free” and similar absurdities.

An insider on yesterday’s view of judicial arrogance

  • February 12th, 2016

I often get direct support from inside the criminal justice system. The authors will not comment on the blog because they can’t afford to risk the elite consensus vengeance on heretics.

Here is an example comment on yesterday’s post, edited to reduce the risk of identification:

I just read your blog post on the Kingi decision – I hope you don’t mind receiving an email direct, I can’t afford a ‘please explain’ for a public comment in my position.
I got about halfway through the judgment to the point where Justice Wylie started making excuses as to why Kingi should not receive a life sentence, then - disgust. I see no reason why the judge should take into account the effects of a life sentence on a murderer – as if death were a mere inconvenience that the victim will soon recover from. Nor why the infliction of only one blow to the victim’s head should be considered insufficiently brutal to invoke section 104(1)(e) of the Sentencing Act – one blow was sufficient to kill! I would argue that is the extreme of brutality, applied with callous efficiency.
I note that Wylie J referred to the Harrison case, in which Justice Mallon said that the threshold for the exercise of the discretion conferred by the words ‘manifestly unjust’, with regard to a sentence of life imprisonment, had been set very high, and the Turner case in which Justice Woolford said the manifestly unjust test should be a rare one. Surely it must have struck Justice Wylie as odd that all three cases met this incredibly high threshold. What odds!

Exactly. We’ve had three cases so far for application of the three strikes mandatory sentence for murder. Our judges have mysteriously found that all three involved circumstances justifying application of the “rare” and exceptional exemption. How do we get this remarkable coincidence? A court lawyer commenting on one of those previous cases, told me the judges might have decided to support each other in nullifying that part of the reform at one of their group-think conferences. Or they might simply share views without needing agreement. The organisers of these conferences invite like minded “experts” to lead them in secular ‘bible study’ sessions to know which ideas are fashionable, and which are not.

The commenter went on:

A High Court Judge recently sentenced an offender to seven years imprisonment (likely eligible for parole in less than two years) for extremely depraved and sustained sexual offending against his children. The learned judge indicated she did not consider the offender merited a sentence at the top of the band, as he had only been convicted of raping some of his children, not all of them. As if raping three children were somehow more meritorious than raping six. I take pride in not being a part of the culture of offence-taking we have developed in NZ that you have so adroitly written about, but I’m now in full-blown outrage. Relativity in sentencing is a cancer that needs cutting out of the ‘justice’ (good luck finding any) system, though I’ve no idea how to do it.

I’ve written previously about the illogic in our judiciary’s developing obsession with a spurious equality in sentencing. I’m aware of no evidence that differences cause people generally to lose confidence in justice, as long as they expect it. For example – adjacent states in federal countries often have material sentencing differences. NSW restored ‘life means life’ years ago. Other states have not. People understand campaigns – a judge in Napier who started imprisoning for graffiti was applauded. Our judges nevertheless pour resources into appeals against sentence.
I also note your point that maximum sentences are never handed down, as if whatever action parliament envisaged being worthy of a sentence of 14 or however many years of imprisonment has never come to pass. Coral Burrows, anyone?

The Government should share the blame. The Hon Chris Finlayson knows the courts are sidelining bits of the law they don’t like. He has shelved a reform (never brought part of an Act into force) that would have limited the power of the judges to do this.

When I started my career I was advised by senior colleagues to never get hung up on sentencing, as I would drive myself crazy. I took it on board as best I could because it was good advice in a band-aid solution sort of a way, but I now realise it’s a damning indictment on the whole broken system. Don’t even get me started on how long it actually takes to get things through court…
Anyway, that is my impotent rant. I realise that we don’t know each other from a bar of soap, but I hope this email finds you well.”ť
Thank you colleague.  Many justice insiders know their Empresses and Emperors have neither intellectual clothes nor the self knowledge to acknowledge it. So it is reassuring to hear it from you.

Just as you don’t want to dwell on the dishonesty in sentencing, I hate thinking about the disgrace my generation of lawyers has brought on the justice system. I rarely go now to law profession functions where I’ll have to hear clever barristers’ and judges’ speeches of mutual admiration. As this blog has explained previously, they should be hiding their heads  over features such as:

  • money and resources wasted without shame;
  • delays (it is scandalous that potentially innocent people can be in jail for up to 500 days awaiting trial)
  • self indulgent clinging to process rights (the so called right to silence for example) that serve lawyers’ self importance, not truth or justice
  • huge numbers of litigants trying to get through without lawyers,
  • persistent suppression of names and case details, denying freedom of speech and surrendering our inheritance of open justice.
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