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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

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.

Another Judge decides plain effect of law is “manifestly unjust” – dispenses with it

  • February 11th, 2016

The High Court decision in Kingi, delivered today, is that it would be manifestly unjust to apply the three strikes requirement of life without parole to a murderer warned of that likelihood in sentencing for robbery only a few months before he murdered.

Kingi bullied and robbed an inoffensive old man in public toilets then returned to kill him because he’d failed to show  ‘respect’ when Kingi demanded money, food then his car keys. Kingi of course had plenty of violent form.

So yet another High Court judge rationalises without apology his feeling that he is above the three strikes law. Another insider who considers the law his to determine, expressing the judiciaries’ resentment at being told how to treat standard issue recidivist violent criminals. In my opinion the reasons boil down to nothing more compelling than confidence that they are more virtuous (compassionate at the expense of others)  than elected representatives and the disrespectful people who elect them.

This generation of judges will bring down their own house when a Parliament finally imposes something like matrix sentencing. Some day Parliament will have to clean the judicial stables. The judges’ self indulgent waste of resources on elaborate calibrations of sentence is based on no evidence based connection to any of the purposes of sentencing. Without attempting to find out how their actions affect deterrence, retribution, rehabilitation, or even prevention (incapacitation), they cite each other in a self referential charade of reasoning, only occasionally linked to the Sentencing Act. Ritual references pretend subordination to its directions. But its contradictions leave them ample scope to ignore features they don’t like. For example, it directs judges to impose maximum sentences for the worst cases. How many 14 year sentences have you seen for the offences subject to that penalty? How many life without paroles? None.

Kingi instead heard a long mournful bleat before getting an 13 years before parole, well below the supposed starting mid point of the pathetic judicial tariff for murder. If I were the victim’s family I’d have heard the sentencing decision more as a respectful apology to the murderer for having to imprison him at all.

This judicial aggrandisement negates the simple unmistakeable message that three strikes was designed to send. It will deprive New Zealand of the dramatic drop in  offending rates seen in the US after President Clinton’s reforms confirmed to criminals that a new sheriff was in town – not the old suckers for sob stories.

Many judges moralise in decisions. They appear to assume some deterrent and denunciation function for penalties. But in this case the judge appears not to give any weight to those purposes of the law change. Simple rules without excuses were intended by Parliament to save thousands of prospective victims from suffering and loss.

The judges who have decided not to apply the law because they feel it would be unjust scarcely camouflage their real intention. To me the public justifiably questions their adherence to the judicial oath to apply the law. But to be fair, they are bound to act in accordance with the collective view as expressed by superior courts. And those courts have form in negating the intention of criminal law changes. I experienced first hand their contempt for the home invasion law successfully promoted by my ACT Party predecessor, that Labour later repealed.

The judgment should have been one paragraph long:

You were warned. Parliament has deliberately restricted our discretions to send a clear message to people like you. I will be betraying our constitution, and undermining the law if I waste more time in running through the complicated mitigating and aggravating considerations superseded when Parliament passed that law. So you are  sentenced according to the law to life imprisonment without parole. Take him down.

Instead the judge mentions the three strikes direction formulaically, then goes on for pages adressing “Mr Kingi” applying the baffling methodology that would have prevailed under preceding law. He finishes by sentencing as if the law had not been changed, except for a plainly ritual fresh three strikes warning.

It  even includes the inflammatory express reservation that if Kingi commits yet another murder it might still be manifestly unjust to apply the mandatory three strikes life-means-life sentence.

Farm scarce wildlife to take the profit from poachers

  • January 28th, 2016

Cheaper DNA identification could soon end lucrative illegal trading in protected New Zealand wildlife. All it needs are some careful law changes. Maori could once again routinely feast on (farmed) kereru, without risk to wild populations.

Current law prohibits buying and selling threatened species. That is meant to prevent profiting from poaching. Illegal supply to meet legal commercial demand could strip wild breeding populations. But the prohibitions perversely increase the scarcity value that makes poaching lucrative.

Now DNA technology can cheaply and quickly identify the family of individuals in a population. It could tell which are descended from an authorised commercially bred line and which are from the wild population. Effectively a body like ESR (The Institute of Environmental Science And Research) can DNA profile an animal, store its genetic fingerprint and from that fingerprint identify related individuals (or exclude those unrelated). The law can provide that only offspring of identified breeding stock can be sold or owned. They would have certified DNA.

This would allow licenced breeders to satisfy the demand that is presently fed by poachers and smugglers. Black market revenue from stealing wild specimen could instead go into growing the populations. The technology can also strengthen protection of wild populations with more simple prosecutions for illegal possession.

The ingenuity and experimentation and investment that goes into licenced breeding for sale could grow endangered species into comfortably secure numbers.

Unlike cats and possums, human predators of our wildlife rarely get headlines. This year was an exception. Caught in the international spotlight were some illegal kereru harvesters, and the unfortunate pukeko cullers who shot takahe they were supposed to be protecting.

But we’ve had no Cecil the lion.

Our rare species are hunted nevertheless. Our rhinos and elephants are skinks and geckos. Our ruthless armed poachers are harmless looking Germans lurking among the backpackers.

Black markets offer rich rewards with low risks of detection. A Radio NZ story this year mentioned jewelled geckos selling for up to $30,000. The Otago Daily Times reported in 2011 that up to 200 were taken in one year. Harlequin geckos fetch a similar price. Tuatara have been estimated to be worth $30,000 – $50,000 each in Europe.

But sentences for poaching are not long. Normal (though disgraceful) delays to trial mean foreign poachers are likely to be released as soon as their trial finishes.

With such obstacles to enforcement can we really defend our elusive taonga? There is despair about the fate of some of Africa’s megafauna, despite huge international attention? We do not have a dedicated anti-poaching force. Our fauna are largely silent, toothless, easily hidden and robust enough to be readily smuggled. Our habitats are accessible and generally open.

Yet there is reason for hope.

Our outdated laws against trading wildlife had a simple worthy purpose – to make it unprofitable to steal animals from the wild. The prohibition is intended to prevent scarcity in the wild. Unfortunately it guarantees scarcity in the market, and therefore assured profits for thieves from wild populations.

Using DNA tests to legalise revenue for breeding can make anti-poaching laws more practically enforceable. Farmed breeding populations can be conclusively distinguishable from wild populations. DNA identification is now fine grained and cheap enough to eliminate any need for GM tags or other alterations of the farmed population.

DNA testing does not end all complications. For example if kereru farming was licenced it might be difficult to prevent wild birds from mating with farmed birds. Such species could need periodic re-profiling and re-licencing of the breeding line. Science offers a back up though. Diet oriented stable isotope tests on a feather, for example, can support DNA fingerprinting. They can show whether a bird was reared on a wild diet or a farm diet.

It will need law changes – New Zealand is always the ‘goody good’ in these matters and we have diligently reflected in our law the international prohibitions on trading (CITES) to which many other countries pay lip service.

The benefits should make this a priority – commercial prospects will drive investment in farmed populations (humans work out how best to feed and breed all fauna they farm) – and a sustainable source of income for DoC, the guardians of our wild populations.

Wild populations may eventually be supplemented from sustainable farming surplus

Economist would say it is obvious. We get more produced with lower barriers to supply and to invest capital. Legitimised trade and ownership by honest people can make a market unprofitable for dishonest people.

Around the world there is a new approach to protecting “the commons”. New Zealand’s world leading tradable quota scheme has transformed our fisheries. After fishers became quota owners it became worthwhile for them to protect and enhance fish stocks. They became champions of enforcement. In many places the lessons of alcohol prohibition are being relearnt, as governments give up on laws to crush ‘victimless’ crimes (like marijuana) and instead focus on regulating and taxing the activity they cannot stamp out.

Even in the wildlife area it is not novel or contradictory to allow trading in a farmed population while treating wild populations differently. Feral and farmed deer are governed differently now without using DNA technology. One of our most (rightly) persecuted animals, the ferret, is not protected under the Wildlife Act 1953. Yet an isolated population of ferrets is farmed and exported whilst we continue to try to exterminate all wild ferrets.

DoC should take the premium earnable from our native animals, not the smugglers getting it now. DoC might offer breeding stock for tender. They could levy a conservation royalty on sales. Fishing again shows the way. Fish quota owners’ levies pay for research to reduce the by-catch of seals and dolphins.

There could be knee jerk resistance to “commercialisation”. There was initially strong resistance to the quota regime that transformed our fisheries.

But people who hate business are a minority. Public opinion is in favour of farming our natives. A weka farming proposal was supported by 85 per cent of 8000 viewers in a Close Up TV One survey.

Australia offers an encouraging example. Certain Aborigines regard an extremely rare ‘oenpelli python’ as sacred. It is connected to the rainbow serpent (the oldest continuing religious belief in the world). It’s now for sale. A scientist asked permission to take a pair, breed the eggs, return the adults and farm and sell the offspring. The pair was bought for a “significant price”. 10% of the sales go to the Aboriginal group which approved the proposal.

Our law must be updated to recognise scientific advances. More importantly it should not deny our rare species the propagation that humans ensure when they can share the benefits. That investment will be stingy until people know that it will not be wasted, or worse, increase rewards for those who dishonestly loot ‘the commons’.

The Herald has today published a shortened version of the above. It contains links not in the published version, but omits the Herald’s great photos.

It was suggested, researched and largely written by one of our young lawyers – Digby Livingston. Before joining Franks Ogilvie, Digby was employed in South East Asia to report on python farms under a United Nations programme to monitor regulatory compliance with the aim of exporting farming models to other developing countries.

I’ve had a live interest in threatened species propagation for many years.

I’ve been a member of Forest and Bird for over 40 years. I’d like iwi, or DoC, to commission a pilot amendment Bill to transform the prospects of an endangered or rare New Zealand animal.

Judicial overstepping of a sound constitutional line?

  • January 26th, 2016

Spare some pity for the predicament of the UK government after the presentation to Parliament of a 329 page report that Putin probably authorised the Litivinenko murder in London by Russian agents. Luke Gittos, Law Editor of the Spectator reminds us that this problem is a consequence of the overweening confidence of activist judging.

What can the UK do now? If it does nothing to indicate the unacceptability of the Russian leader’s conduct it discredits its own legal system. If it takes vigorous and genuine action an uncooperative Russia could cost more lives and treasure than the wrong could possibly be worth, without acheiving anything. For example a strong and sustained response might reduce the prospects of saving the $billions, and the many more lives that might be saved if a reasonable modus vivendi can be worked out with the Russians in Syria, instead of the implacable competitive hostility that may be the alternative.

No judge can balance such possibilities in advance in the way an elected leader must, continually. Even if the judge wanted to do so, being explicit about the balance would imperil the very legal values judges seeks to assert over what they can seem to feel are tawdry and inferior political calculations.

New Zealand faced the same dilemma after we caught the Rainbow Warrior killers. The capture was good for the reputation of our Police. But bad for the overall reputation and coherence of our criminal justice system. Real-politik – taking account of the costs and risks and benefits to New Zealand of prolonged antagonism from France, forced David Lange, among the most impetuous of our Prime Ministers, to make a mockery of our sentencing. He was forced to outrage his own voters with  early release of the killers. France hardly bothered to disguise their contempt for our sensitivities when they trashed the  terms of the deal which tried to camouflage the reality, that the French were taking their agents home to honour.

The events poisoned New Zealand, and New Zealander relations with France for years. How much better it might have been if we had been left to nurse bitter suspicions, without having our noses rubbed in the truth, and our powerlessness in the face of it.

Now the UK is saddled with similar risks, though it looks as if the Russians will take more care to avoid embarrassing the UK with people in the jurisdiction to charge.

We should rightly share the outrage of the victim family. But equally we should recognise the hypocrisy in our position. Millions enjoy watching Jame Bond dealing to foreign (sometimes Russian) agents no less summarily than the Russians dealt to their ‘traitor’ in London. Drones are eliminating enemies of our culture and our allies almost daily, without trial.

Lawyers and judges are obliged to be remorselessly  consistent (like cases must be treated alike is a fundamental of the rule of law). But such rigidity is likely to be both foolish, and impossible to sustain in international affairs. That is also the case in many other spheres that until recently were relatively immune from the pretensions and ineffable ignorance of lawyers.

Second guessing in matters as mundane as employer/employee relationships and school disciplinary actions involves the same arrogance, however reduced the scale. There is the same impossibility of ever knowing just what was really behind the incident that brings the relationship to breakdown. But more importantly to the parties there is the same blithe legal indifference to practical outcomes.

Those who know more of the facts are often outraged. Many will learn contempt for the law. They see posturing by a self-important clique so wrapped in the dignity of the law that they feel no need to consider the full consequences of their actions. In many such cases it is clear that none of the lawyers (judicial and otherwise) think they might have a responsibility to decide whether they are serving the best long term interests of anyone involved, even the plaintiffs.

Instead they think it is sufficient to believe that their virtuous intention – to apply the rules (often a charade of procedure) is enough.

The Owens report merely confirmed and detailed what was widely believed.  It is crying over spilt milk with no credible expectation of a better outcome. The lawyers who forced it were uninterested in whether there was a realistic prospect of acheiving justice. They saw the dilemma it leaves for the future as nothing to do with them.

The judge made law that authorises lawyer hind sight interventions in thousands of difficult daily management matters flows from the same spring of arrogance and indifference. Under a wiser previous generation of lawyers those matters were left to the parties, knowing that often they would reach results that could be criticised. But remembering too that mostly in human affairs a prompt outcome, and getting on with living is hugely preferable to tempting people to put their lives on hold, awaiting the decision of authorities who will not have to wear the costs of their delay and interventions.

More humility toward those who must exercise awkward powers would go a long way among the generation of lawyers in power.

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