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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

Gareth is right – lets kill all the cats

  • May 18th, 2015

Though it says that is not the conclusion, an absolutely fascinating article in The Atlantic should lead to a much greater drive to rid New Zealand of feral cats. Toxoplasmosis may be far more sinister than we’ve thought.

We’ve long known it could be bad to let cats nest in the hay shed. Fouled hay caused abortions in stock. And we knew pregnant women should avoid cats.

But now toxoplasmosis, that needs cats for its life cycle, is implicated in schizophrenia, promiscuity, traffic accidents and increased suicide rates.

If you like your beef rare, you should be on Gareth Morgan’s side in this one. Read the article in full to find out why, and to be amazed.

Mad Max

  • May 16th, 2015

Great entertainment for me, nephew, brother in law, and son in  law - with the Spectator review capturing the appeal.

Organ donor veto – disqualifying beneficiaries – stop faffing

  • May 14th, 2015

David Farrar neatly shows why low organ donation rates are not a complex issue, though Peter Dunne says they are.

But Labour’s new found enthusiasm for ‘tough love’ incentives suggests the solution.

Labour want benefit entitlement suspended for failure to register to vote. National should have seized that with both hands and extended it to other normal social obligations of decent citizenship, like not  preying criminally on your neighbours, and getting your kids to school after a good breakfast.

But Labour’s rediscovery of the power of incentives also points to a simple way to get family wishes on organ donation rapidly lining up  with the wishes of their dear departed would-be donor.

New Zealand has a disgraceful shortage of donated organs. Under rationing it should be elementary, and widely known, that those in the queue who have ticked the donor box themselves rank ahead of those who have not. Those who tick more recently should rank behind those who have always been donors.

And donors whose families have not irrecocably waived their veto power should know that it is likely to disqualify them, or at least put them at the end of the queue, and possibly also affect the chances of their dear pre-departed.

Reciprocity is the basic element of social obligations, and mutual respect. What could possibly be more fair, more simple and more speedy than to announce reciprocal generosity as the basis of future policy. Once free-riding on the anticipated generosity of other families ceased to look so likely, New Zealand’s shameful organ donor statistics would rapidly turn.

Research shows that a feeling that social cheating or bludging  is rewarded is among the most corrosive factors in loss of social or civic capital.

Mr Dunne you could probably fix this without needing to lift a legislative finger. The current organ rationing criteria are not legislated. That does not need to change. It would just require the doctors concerned to announce that they will take reciprocal fairness into account, and to act accordingly.

Hippocrates would approve. I researched the current medical culture’s resistance to ’moral judgments’ some years ago and found it to be of very recent development.


Obama’s TPP pitch to Democrat voters

  • May 13th, 2015
Here’s how Obama is trying to rescue the TPP by direct pitch to his grass roots supporters. Impressive. I can’t imagine H Clark or J Key putting their personal capital at risk like this with party members, over the heads of the party bosses and legislature representatives.

“[first name] – I want to set the record straight. Right now, we have an opportunity to set the most progressive trade agreement in our nation’s history — with enforceable labor and environmental protections we simply can’t count on other nations to pursue.

Here’s why this means so much to me: I want to make sure that any deal we reach reflects our nation’s values, in a way that hasn’t always been true in the past. That’s why I’ve said I’ll refuse to sign any agreement that doesn’t put American workers first.

But as long as 95 percent of our potential customers live outside our borders, we don’t have the option to sit back and let others set the rules. We need to take this opportunity to level the playing field — because when we’re competing on equal ground, American workers win.

If you agree it’s important for America to lead on trade, join OFA supporters by adding your name today.

I’ve staked my presidency on middle-class economics, and fought hard for policies that ensure that anyone who’s willing to work hard and play by the rules can get a fair shot.

We’ve made a lot of progress over the past six years — rebounding from the worst economic crisis since the Great Depression, strengthening our manufacturing sector, and growing forward-looking industries like renewable energy.

We can’t go back — and we can’t leave it to nations like China to write the rules for the global economy.

This is personal for me. I understand the skepticism about this, or any, trade deal. I’ve met folks across the country who still feel burned by agreements of the past. Those are the people I came to Washington to fight for.

That’s what this is about for me. This is our chance to do better, to get it right.

I hope you’ll agree. Over the last few months, OFA supporters across the country have stood up to ask the hard questions on this issue — to make sure the outcome is good not just for our economy, but for working families. If you want to see America lead the way to establish a truly progressive trade agreement, add your name with OFA today:

Thank you,

Barack Obama

Paid for by Organizing for Action.

So why would Wellington businesses want to subsidise more ratepayers?

  • May 8th, 2015

John Milford of the Wellington Employers’ Chamber of Commerce criticises the rates intentions in Wellington City Council’s long term plan. It all looks sensible, but for one great puzzle.

It collides head on with the Chamber’s fervid support for amalgamation to add Porirua’s ratepayers to the subsidised householders already bludging off  Wellington’s businesses.

Here is how the Chamber explains the problem:

“….Wellington City businesses – commercial ratepayers – in total own 21% of Wellington City’s rateable properties but pay 46% of the rates. …We believe the Council’s rates increase is too high, it’s higher than both CPI and LGCI. When you compare the rates collected in the year 2014/15 to the amount projected to be collected in the year 2024/25, it is an increase of 61.28% or nearly $148 million.”

Interestingly it does not go on to call for less cross-subsidisation. But it does observe:

“Of this increase just 80% is for ‘business as usual’ and in addition the plan is to increase total debt by 101%. The Council argues there’s a need for a greater increase in rates to fund ‘invest to grow’ projects. … This ‘increase’ must be ring-fenced to only those big ideas – not base lined for other activities or councillor’s pet projects. And the project’s got to stack up – robust business case, cost benefit analysis, return on investment… “

This proper concern contradicts the Chamber’s faith in amalgamation because:

a) the LGC has purported to justify amalgamations (across the country – not just Wellington) on the grounds that ‘demographic’ [read poverty] problems can only be dealt with by locking rich communities with poor ones, so the poor ones get services they are not expected to be able to pay for.

b) Porirua enthusiasts have made no secret of their reasons – they want a share of the golden eggs they see as being laid by the ‘high rises’ in Wellington.

c) The serious embarassment for the LGC in the resolute rejection of amalgamation by Wairarapa, after the LGC said Wairarapa was not ‘viable’ on its own, without a subsidy stream it says is worth up to $11m per year. The law makes if very hard for the LGC to come out now with a revised scheme leaving Wairarapa without the subsidy, if it is in fact ‘not viable’.

Truth is, all communities should cut their coats according to their cloth. As Selwyn showed Christchurch the less rich can find ways to enjoy services more efficiently. As the Wairarapa has sensed there is more satisfaction in that than in begging for crumbs from their patronising richer neighbours.

Urban beekeeping – tomorrow on RNZ

  • April 29th, 2015

My urban beehive is a cautionary tale. Wellington City Council told me to remove my hive because of neighbour complaints. Their demands and orders would have scared me if I had not been a lawyer.

It is like with chooks and dogs. People are no longer expected to tolerate the minor inconveniences that once went with living alongside neighbours. They demand that the Council use its coercive powers to keep them safe, even from fears and irritations our ancestors would have scoffed at.

Bee flights over the houses below us on the hill left little yellow waxy spots on their windows (which we also got). That is a particular issue in spring when they are gearing up for the big pollen feed to grow the colonies and produce new queens and drones.
In years past when most people dried their laundry outside it was a known downside of having bees nearby. I do not diminish the issue. It would be irritating if you derived no benefit from the hive.
I offered honey to the people I thought were complaining  though the Council would not tell me who, even so I could go and offer honey.
I surveyed the neighbours. Our nearest neighbours were all in favour of me resisting the Council threats. One was sensibly direct about her unhappiness with the spots. A couple did not respond.

I tried to get a nearby site or two, where I could move the hive so the flight path would not cause the problem. I think the Hawker St Monastery garden would have been perfect, and troubled nobody. But they were scared of liability if the bees stung someone.
Eventually friends volunteered from a 10 acre block but I wanted the bees handy. I liked looking into the hive.  I loved the pohutukawa honey from our neighbourhood. I wanted our feijoas fertilised. A hive on the other side of the harbour would not do that.
Still, I could understand the neighbours’ upset. Despite the honey as recompense, one became very unsweet, so I gave the hive away. Respect for neighbours trumps.

I have to satisfy myself with the 500 or so hives on my land in the Wairarapa. I sold my hives to the beekeeper two years ago, so don’t own them now, but we are fairly involved in making it a good bee habitat. We are planting trees to feed the bees protein in spring, and placing hive sites where they might thrive.
Eventually we will be planting selected manuka seedlings, to extend the flowering season.

RNZ wants to talk to me about bees early tomorrow afternoon. Maybe we’ll discuss the story above.

Identifying courageous Councillors

  • April 17th, 2015

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.

Milford on WCC – weird Dompost reportage

  • April 16th, 2015

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?

Colin James on our ETS

  • April 15th, 2015

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.


A legal academic to look out for

  • March 25th, 2015

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.

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