Writing the post on email Christmas cards reminded me how many piously urged me to “take care” this "festive season". Yuck and yuck. 

The 'festive season' stuff might be excused as an artifact of card templates from the US, where it is presumably vital not to offend non-Christians. But I'm less charitable to those who've enlisted as safety sergeants in the inane army of nannies.

I did not waste time trying to persuade my colleagues to it, but I wish a Franks & Ogilvie card had commanded “Dont’ take care!"

We don’t need more warnings about the ordinary risks of life. The whole bloody establishment is busy pretending extreme loving concern for everyone. In reality they are enjoying the excuse to  issue orders without the restraint that until recently left adults largely free to decide what risks they chose to run. With a few exceptions (such as drug use) freedom to choose your own risk preference applied generally as long as you were not hazarding others.

What point is there in carefully avoiding risk? We have only one life and at the end we all die, those who’ve taken all the care in the world, and those who take none. So let’s make that one life as full of “life”, as intense, as possible.

Risk is intensity. Innovation is risk. Change to the status quo is risk. Risk adds adrenaline. Little is more satisfying than risk survived, from the 2 year old who has just wobbled across from one chair handhold to the next to the 80 year old whose letter to the paper sticks it to someone in power.

Risk is fuel for the optimistic. For the pessimistic and the timid risk prohibitions are the precautionary cords with which you bind your optimistic neighbours, revenge for their sunny boldness having made you look meagre.  Risk aversion is the tool of womens' revenge against the scary experimentation of men.

We need both the right and the encouragment for other people to take risks. Not risks at the expense of others. Risks at their own expense. Because it benefits us all to have a culture that respects those who put their own comfort and safety behind other values.

The Health and Safety in Employment Act orders bosses (major and minor) to foster timidity. It excused and justified those who were inclined that way, and inclined to micro-manage how others choose to work. It promotes hierarchical organisations with minimal lower level autonomy  because only all encompassing "systems" (read orders) will save the boss from liability.

Now that culture has extended deep into the organisations on which we rely to attract and reward and use the young who crave risk and chances to display courage. We crush the spirit of those who need hazard to the advantage of the rest of us.

When the Police won't let ambulance staff rescue a dying shopkeeper for fear that his attackers might still be around, when mine workers are prohibited from going straight after their mates before the methane levels climb again, and when Joe Bennett is ordered to leave his perfectly sound home in case a rock hits it – we are all diminishd.

Risk seekers will find other ways to express it – perhaps as boy racers, as thugs looking for fights, or in abusing dangerous drugs. How much better for all if instead that challenge remained widely available in ordinary honoured employment.

We should laud, not discourage the altruism of the foolhardy rescue. It should once again be a  defence to liability, that a volunteer has displayed a value that transcends his own safety. Values like duty to others, pride in family, curiousity, chivalry, thirst for adventure, loyalty to friends or colleagues or comrades, determination not to let bullies or criminals prosper should all trump "taking care" in most circumstances.  Those values gave us the privileged position we've enjoyed, at the top of the world heap (including being in the top 10% of consumers) for over 5 generations.

We've lived off the benefit of  our grandparents' boldness and the respect they engndered for altruistic courage. . They honoured it for its own sake.

They'd have been disgusted with their heirs' culture, ours.

So don’t urge anyone to take care, unless it is care for others.

John Key has managed to project his sunny optimism to many of us, despite a rough couple of years. Much of the western world has not been so lucky. Lets use that advantage. This year – don't take care!

I looked forward to seeing Margaret Thatcher at the movies last night after days of camping in rain. The film is disappointing but worth seeing nevertheless for those who:

• like to be awed by Meryl Streep's range and power to channel our speculations about famous women;
• will draw inspiration from recalling  the apparent powerlessness of her contemporary politicians to arrest Britain's humiliating collapse into poverty and her successful battles to reverse  it;
• will enjoy imagining the impotent rage of the tribal haters on the left as they realise that audiences will not be lead to share that hatred by a film much more interested in one politician's sacrifices of relationships than their political mythologies.

It was disappointing to me as a waste of stupendous talent and opportunity to reflect on the challenges, temptations and opportunities of genuine leadership. It gallops through the events that I wanted to see explored (the day to day mechanics of overcoming class snobbery and  defeatism to reinject vigour into the unfashionable virtues that had made Britain great)  and wastes endless time on the incipient Alzheimers of a lonely old lady.  The camera lingering on Streep's old age geisha mask makeup never let me lose awareness that it was Streep, and not Margaret Thatcher. The film doesn't allow Streep the acheivement of Helen Mirren in  "The Queen"..

I  could have seen lots more of young Margaret Roberts the Grocer's daughter becoming the Secretary for Education, and calming (or stifling) the fears of her colleagues during the successful years. The film does not take Margaret's advice to focus on doing rather than feeling, and so loses both.

This year I got many more business Christmas cards by email than by post.. I assume that's general, and they've become mainstream. No doubt NZ Post can tell how much the normal Christmas card mailings dropped.

It is fashionable to decry the email Christmas cards.  I liked most of them this year. Tasteful photographs seem to have replaced the moving bling-enhanced mini-posters of earlier years.

What a pity for NZ that NZ Post was not privatized years ago when its first transforming CEO Harvey Parker (and the Board) were warning the Government to take the gains of the huge increase in productivity before the rest of the world woke up to the difficult future for steam post. NZ Post was a world leader in post reform. When the government would not take the logical next step, Harvey Parker's team dissolved, though many had fun around the world advising other countries on how to stop losing money on dinosaur post.

If NZ Post's sunset businesses had been sold, even 10 years ago, the sale could have provided the capital needed by Kiwibank several times over.

There will always be fools around who'll pay on historical expectations for a horse based empire just as petroleum engines take over. Often they are politicians, driven by romantic attachment to sunset industries (or dependence on the funds and votes from their unions)  like Dr Cullen and the repurchase of NZ Rail. But Telecom's inspired sale of Yellow Pages was a reminder that we can rely on compulsory superannuation scheme managers, and investment bankers who advise them,  to squander their contributors' weekly mites.  In March 2007, Telecom sold its Yellow Pages business for $2.24bn to the Ontario Teachers' Pension Plan and Unitas Capital of Hong Kong. They and their bankers have lost most of their money.

I'm surprised that during the recent ill-informed debate on mixed ownership no one raised Bill Birch's inspired sale of the major forests, and some other dumpings of "family silver"  onto overseas investors.  The forest buyers lost well over 2/3rds of their investment. There are always investors around to gamble on the future looking like the past.  

My firm has had a good year. Things have gone broadly well for most clients. We've achieved more for some than I dared hope.

The year ends on a high note, with a gratifying judgment yesterday largely knocking back challenges to the consumer (our client MEUG) and Commerce Commission positions on procedure in a price control methodology merit review.

The day before was the announcement of our qualification on the government’s  law firm supplier panel. Though small we are  approved legal advisers to the government in two areas, finance and banking law (one of 8 firms approved nationwide) and corporate and commercial law (one of 14 firms nationwide). We think we can allow ourselves a cautious grin.

We like the offices we took over recently for expansion. The sun shines in. I walk fast to work each morning eager to get into the day's excitements.

But it is not quite so exciting to be here still late in the evening.

So among the first tasks of the new year will be recruitment. It is not success to be here evening after evening, trying to regain the moral right to spend time on a pro bono project or to post on my blog.

If you know some brilliant lawyer:

• who knows at least some aspect of law backwards, and
• has done enough legal  heavy lifting to make accuracy and precision instinctive, and
• who could want to do what we do,

steer them in my direction after the Christmas break. They can see what Franks & Ogilvie do from the website  but here's a short RFP:

We need at least one more lawyer. With the right senior appointment to share the supervision we can also take another junior.

An ideal candidate might be returning from OE, but not want to go back into what they know best, or they could be in partnership or on track for it, but with a nagging sense that conventional practice will not be satisfying in ten years. They would have at least four years post admission experience in one or more of:  

• company, securities, property, competition or commercial law, especially transactions, regulatory compliance and disputes;
• general litigation with administrative or commercial or similar experience an advantage.

 They'll probably be interested in politics, usually objectively but in some matters with a passionate view of what should be happening. Their political persuasion does not matter, we are a broad church.

They will respect the service obligation of  lawyering and they'll be articulate with a well above average command of English. 

Health warning – We established our firm to enjoy great work, the company and flexibility.  They might not enjoy working with us if they:

• always like to know just what they'll be doing next month;
• find an open plan office too much;
• can't laugh at themselves publicly sometimes;
• wouldn’t  enjoy networking friendships that mix business with pleasure. 

Mention to your friend that if they do get in touch they can spare us the cliches (being focused, results oriented, a team player, ambitious and committed to excellence).  Having said that, if they are not all those they might find the firm a mite uncomfortable.

A High Court Judge last night gently asked me the plural of ignoramus. Embarrassment was ready to hand. He did not need to refer to the NBR report of a careless conversation with Jock Anderson which prompted a recent post.

I had in mind in judges who refer to “the privilege of limited liability” when chiding business people, though judges in these areas are largely driven by statute.

Now I’ve seen the dictionary definition of ignoramus I could have scarcely scored a better own goal. The word gained currency as the name of an ignorant lawyer in a 1615 English play. The plural is ‘ignoramuses’, not the faux Latin ‘ignorami’ attributed to me by Jock, probably correctly.

My humbling is deepened by the crisp command of arcane finance theory displayed in a judgment of Clifford J delivered today. He is running a mammoth (in lawyer numbers) case testing a new merit review appeal regime under the Commerce Act provisions for price control. It will govern the methods for setting maximum rates of return on capital for monopoly suppliers in electricity and other markets.

In early hearings he disarmingly affected innocence of specialist expertise. Perhaps that was to help settle lawyer anxieties about the task facing the Court. They must argue  the Capital Asset Pricing Model and the significance of beta and leverage to the Brennan Lally simplification of the Weighted Average Cost of Capital, probably without any direct input to the court from experts other than the two lay assessors who will sit with the judge.

I can draw on dim flickers of  recollection from classes at the feet of Professors Trow and Winiata of VUW. . Clifford J's wry initial comments suggested he could not call on anything similar.

But today’s judgment summarises the finance theory issues with extraordinary economy.     Wow.

This morning's Press contains the first official hints I've seen that the Christchurch Council could be sacked, following the path pioneered by the incompetent and unlamented Environment Canterbury.

I'd heard some months ago that a prospective Commissioner had been sounded out for Christchurch. Tough talk by the Minister of Local Government, Rodney Hide, about Hamilton City Council if it failed to heed the Auditor General's advice on its financial incompetence* seemed to be warming up by  the government to give Christchurch a chance to thrive without some of the ball and chains it has habitually elected.

Under section 256 of the Local Government Act 2002 the Minister may appoint a commissioner to perform and exercise a local authority's responsibilities, duties and powers either generally or to the extent specified in the notice.

The minister must have formally warned the local authority and have concluded that the local authority "is wilfully refusing of substantially refusing to perform and exercise its duties and powers under this Act or any other enactment" and that the refusal is "impairing or likely to impair the good local government" of the city or "endangering or likely to endanger the public health or safety" of the city.

A less definitive intervention could be under section 254 which empowers the Minister to appoint a "review authority" to report on whether there has been "a significant or persistent failure by the local authority to meet its obligations" under statute, or " significant and identifiable mismanagement of the resources of the local authority" or there is a significant and identifiable deficiency in the management or decision-making processes of the local authority".

Both would be inflammatory, but the appointment of an objective and reputable reviewer would seem  a more likely initial step by the Minister than a sacking.

I understand that strong intervention could even have the support of some Christchurch Councillors, frustrated by their inability to make their Council more constructive, and impressed by Gerry Brownlee's capacity for leadership.

Unfortunately sackings and reviews rarely sheet the responsibility home where it should lie – often with people who know how to get ill-informed votes. Lets hope the electorate  thumbs down to Clayton Cosgrove and perhaps Brendan Burns (showing public distaste for ruthless politicking) contrasting with the voter loyalty to the constructive MPs Ruth Dyson and Lianne Dalziell, might send the right  message to Labour's nastier activists if they have ears to listen.

* Auckland Council had hired the senior person at the heart of the Hamilton woes but has since managed to lose him.

The debate mentioned in last week's post on the performance of our Supreme Court continues. Kiwiblog surveys recent criticisms and suggests:

" Section 17(1)(b) of the Supreme Court allows the Attorney-General to appoint a sixth member of the court. Perhaps it is time to do just that."

That is unlikely to deal with the main problem though it would reduce the awkwardness when one member is out of action or conflicted out . The Court would still sit in a bench of five. An extra judge could just add to the cost and under-employment of this luxury court.

In the past I've suggested other reforms (here and here).  

The most urgent need may not be susceptible to legislation. More useful judgments will not emerge on command. The court already has outstanding lawyers. It is (rightly) not reviewable by  time and motion men like other organisations. So how do we get the best from them.

Quality concerns may be minimised by more systematic mutual peer review. Those who dumped the Privy Council probably assumed our court would be just as collegial in developing judgments. Perhaps it is happening, but it is hard to see the evidence. Are they meeting to sift out defects in reasoning, to test each other's work constructively for unsustainable assumptions? There are too few signs of that in the "output".

Fresh blood in the Supreme Court might help but only if it contributed to an internal commitment to processes that would extract the best from each judge for a combined product. For example, perhaps they could commit to one majority judgment and one minority dissent.

For an ordinary organisation the reaction to such criticism would be simple – change the boss. That is usually the right first step whether the problem is the boss or not and whether it is fair or not. The buck stops at the top. But Courts do not necessarily have "bosses". The Chief Justice has some leadership powers but cannot sack or command her fellows. *

Company chairs are in a somewhat comparable position. The Chair does not necessarily choose the board, and directors are not commandable subordinates in the absence of consensus supporting the Chair. So most company constitutions have a solution. Directors elect their own chair, who holds office only for so long as he or she retains the confidence of a majority of the members they must lead.

Notably, the state has denied SOEs that benefit,  retaining the power to impose on Boards the politicians' choice of chair – a mistake that should be remedied for the energy companies about to go into mixed ownership

If I were the Attorney General (or the Minister of Justice) I'd be thinking about experimenting with giving the Supreme Court  judges the power to elect and to remove their own chair (but not of course from judgeship).

The other change I recommend is less urgent but more important.  It has been widely (but not often publicly) discussed since the Bill Wilson QC difficulty emerged.

That is is to ensure emergency access to judges who can be irreproachably neutral. It would be reserved for cases where no Bench can be put together from the pool of current and retired judges without leaving residual suspicions of conflicts of interest. A simple standby could be legislative authority to send such cases to the High Court of Australia (and of course agreement on any necessary legislation in Australia to permit that).

Given Australia's constitutional rigidity it might be easier to get agreement that Australian judges will be released for temporary appointment as NZ judges for the case.

We already call on Australian judges to help us out of the inevitable pickles that arise when our little circle of top lawyers could look as if it might put personal relationships ahead of duty. That is why an eminent Australian judge was brought in last year to advise (and give implicit probity assurance to) the Judicial Conduct Commissioner investigating the  embarrassing handling of concerns about Bill Wilson QC's relationship with Alan Galbraith QC.

As I've said before, I do not believe that the racing industy investment relationship would have prejudiced the outcome of the Saxmere litigation. Nevertheless the episode highlighted the vulnerability of the present structure and personne.  Restoring confidence in the irreproachability of our senior lawyers (including judges) could be extremely difficult without a way to get overtly unaffected judges. In the Judicial Conduct  Commission investigation, if we had not been able to call on the Austrailian judge the suspicion could have been worse.

I support parachuting an occasional top overseas judge into our court from time to time, to fertilise our line-bred pool. But that is for routine quality maintenance now that our lawyers have lost the regular exposures to world best judging in the UK. It would not deal with the potential for a constitutional crisis should we have a case in which a majority of our top judges have connections (or former connections) that ideally would disqualify them from sitting.

Unexpectedly, Dr James Farmer QC on Monday gave what appears to be a living demonstration of  the vulnerabilities in our current set up. His website gained a post attempting to distance him from his own criticisms of the Supreme Court.. It is so bizarre it seems explicable only if there is in fact an unhealthy importance in the  personal relationships between counsel and the Court in our senior legal hothouse. 

The significance of his recantation lies not in the second thoughts (we can all have those) but in a descent to personal insult in what seems to be a desperate attempt to distract attention from what he clearly said. Here is Dr Farmer on Monday this week:

I have heard it said that lawyers have the skills and experience to make good politicians but that, a lawyer who has become a politician, loses those skills and can seldom return to being a good lawyer. I was reminded of this when I read the interpretation to the Court Report broadcast given by Stephen Franks (a former commercial lawyer, ACT party MP and now lawyer again) on his web site. His discussion of the programme and in particular of my contribution to it begins with the heading “Heat Builds on Supreme Court” and then immediately suggests that the “skids” are under the Supreme Court in its current form.

Here is my "interpretation of the Court Report broadcast" he mentions. Can you work out what prompted Dr Farmer into this:

What nonsense! And it is just this kind of destructive and emotive and irresponsible language from someone who is well known that makes constructive debate that much more difficult. Constructive debate should lead to a greater awareness of issues that can be addressed and that may lead to improvement in an institution. Destructive commentary from the likes of Franks, particularly when it is not backed by practical suggestions of what should be changed, does nothing that is positive and is just plain corrosive.

 If I knew what his practical suggestions were, and on what we disagree I could perhaps understand ad hominem tactics. They remain poor form but can be effective nevertheless. But my comments are broadly aligned with his.  It is particularly odd to be accused of not making practical suggestions. Search this blogsite for "Supreme Court" and there are plenty.

Neither he nor I have said much I've not heard from a number of his brother barristers. Indeed I express them in less inflammatory and personal terms than them.

Hopefully this Parliamentary term will see energetic development of a procedure to either get patently non-conflicted judges sitting in our court for sensitive cases, or for the cases to be heard by a neutral outside court. It would be very rare indeed that such a procedure would be needed, but we should arrange it well in advance.  Our Attorney General has in the past expressed clear views on this matter.

*A Supreme Court judge can't be remove administratively, absent incapacity or moral turpitude, to use the handy old terms. I believe we need a right of citizen recall, especially now we've lost the safeguard of appeal to neutral outsiders, but the current issues are a million miles from what could prompt citizen recall initiatives in the states that enable them.

Yesterday morning Radio New Zealand covered a review of the national breast cancer screening programme. Reportedly it was commissioned because of resignations at the National Screening Unit which manages and supports screening.

I hope it goes much further. From client work we have been involved in this year, the Minister should be more concerned about whether the government is wasting a huge sum.  The cost/benefit balance of mass screening mammography is under question internationally.  See for example – here, here and here.

As reported by the Listener the Breast Screening Unit recently colluded with mammography providers to attack breast  thermography. The latter uses infrared heat signatures on skin to detect changes in breast health. The mammography campaign called thermography ‘dangerous’. On investigation it turned out that the danger was only that women might choose thermography when the breast screening promoters believe they should just rely on mammography.. 

In our opinion the attack may have been at least partly motivated by the screening programme supporters' extreme sensitivity to questioning of the value of their screening.  Some of those advising the Ministry and the NSU on the relative benefits of mammography and thermography appeared to have professional and/or financial interests in ensuring the mammography screening program continues.  The perception of thermography as a threat to the screening program, came at the same time as efforts were being made to downplay a scientific report questioning mammography’s cost/benefit justification.

Breast cancer is the a big preventable killer of New Zealand women.  Mammography may be the best early detection method for many women. But from what we saw of Ministry documentation there was little objectivity or rigour in the decision-making on screening matters. The NSU response to the international research casting doubt on the net value of mass screening was ludicrously defensive.

Worse from our clients' perspective, the Ministry would not discuss how publicity should best inform women of the pros and cons of the various procedures. Quite apart from their code obligations to be fair, in dealing with thermography providers they lacked simple courtesy. Apparently courtesy need not extend to those one disagrees with.

There is a real possibility that millions in precious health dollars are being wasted as a result of the poor performance of officials. If those responsible are among those who have left the Ministry, it is hard to be concerned. If  those remaining are those we've been tracking, there should be more to follow.

PS Lest there be misunderstanding, I do not purport to express a view on the merits of thermography or mammography despite having learned much more than I ever expected on them both. Their proper uses are for specialists to debate. It seems to me that thermography is likely to have value especially for women too young for mammography.  I would also encourage my family members to use free mammography screening. But that is a very different question from whether such mass screening is a sensible use of what it costs us as a country, and whether the money could save more lives used another way.

I’ve just had my attention drawn to a piece in the NBR reporting a conversation with Jock Anderson. I did not expect it to be reported like that, but it is fair, given normal compression.
But it is in unecessarily frank language and omits an aspect I would have highlighted had I realised the conversation would be featured (this is not a criticism of Jock – I should have known better).
The comment omitted was the cost to shareholders of creating asymetric uncompensated risks for directors. When shareholders take the benefit of directors’ risk decisions, but can pass the costs back to directors for ones that go wrong, then Directors can legitimately demand a better chunk of the return that owners would otherwise expect.

The article also leaves the impression that it is judges who are alone responsible for confusing and over-complicating previously conceptually clear law. In fact politicians and officials
responsible for legislation have as much or more to answer for.

Sadly the current is flowing strongly in the direction of even more of this kind of self-defeating “slogan law”.

The skids are under our Supreme Court in its current form.

Last night's Court Report on TVNZ 7 would look innocuous to non-lawyers, but Dr Jim Farmer QC's open public criticism of the Court's quality is highly significant. Dr Rodney Harrison QC was there for balance, but his defence of the Court was lame.  That three QCs were discussing the problem on TV at all is extraordinary in NZ. Our legal establishment has discreetly enforced the conventions against lawyer public comment that might undermine respect for the courts in which they practice. Concerns about judicial quality have been inhouse whispers only.

Dr Farmer's anxiety was made public in a post on his website in August. There too he was careful, to the  point of parody, to emphasize his respect for the Court. But what he says is a mild version of the worries widely expressed among eminent barristers.

Judges too are deeply frustrated. Court of Appeal judgments are commonly more useful than the superior court  judgments that supersede them. Instead of simplifying and clarifying, too many Supreme Court decisions add complexity.

Trial judges can find Supreme Court guidance confusing, and sometimes impractical.  I understand, for example, that recent Supreme Court dicta in Abdula (on procedures when defendants need translators)  has resulted the rare step of District Court judges formally warning the Ministry of Justice that such trials will double in length. This may be a simple illustration of the dangers of Supreme Court "legislating" without the kind of information that legislators commonly get.

The Supreme Court judges sit in an $80m new building with too little to do that really needs doing.

We've given ourselves a Roller and 5 chauffeurs for what should, in a country this size, be around ten to twenty outings per year. Previously a rich old uncle let us borrow his extra Roller when needed from his world renowned garage. It came with his vastly experienced chauffeurs. 

Until they landed this pseudo job our new chauffeurs were well respected in gainful truck driving. Now they are tempted to spend their spare time developing incomprehensible self-indulgent expositions and presumably bickering (since they often do not see their way to a consensus). On most issues they should be reconciling differences, finding principled and predictable ways to  ensure that the law is simplified each time they have an excursion.

Ideally that clarification would align with ordinary decent people's  instincts for what the law should be. Dr Farmer criticised the Morse judgments, essentially for not so aligning. I've posted on that case here and the Court here.

 I'm dubious about criticising a freedom of expression decision for not being in accord with majority feeling (though judges should test their instincts carefully when majority opinon will be outraged). More importantly Morse is one of the cases in which the judges have not coordinated their reasoning. Even acknowledging in their individual ruminations the contrary or coinciding view of their colleagues, and narrowing the room for misconceiving the scope of their disagreements would have been useful..

The proportion of cases in New Zealand now going three rounds is far above that of other common law countries, with no evidence of added certainty or clarity. The rule of law is imperilled by justified public disdainan for the law's delay, cost and outrageous outcomes. The Supreme Court is an enormously expensive indulgence for lawyers at the expense of litigants, and those who dare not get embroiled in litigation..

I look forward to more from the emboldened barristers on how to fix the problem. I'll post more on that. The solutions need not be complex. But there is a risk. This matter is too pressing and too important to be handed off to the odd assemblage comprising the Constitutional Review.

The Court Report will be broadcast again on Channel 7 at 10-05 pm on Sunday.

Labour will continue to benefit from their open leadership contest. It gives the media an excuse to pay otherwise unwarranted attention to their favoured party. That attention positions Labour as a material influence in politics when they should objectively be ignored for the next year or so until they have worked out how to stand for something more than reactionary envy and 1970s policy.

But I doubt that the membership primary will add much internal value.  Whether Labour emerges with a leader who can stimulate, tolerate and then carry the burden of a major ideological shift will be much more the result of coincidences of personal loyalties and ambitions than of any educative effect of internal debate and exposure to set piece oratory competitions before the members.

Internal candidate debating competitions are deeply flawed exercises in democracy. They cannot perform the main function of an election campaign. They cannot explore and expose the critical weaknesses of the candidates. If they did tease them out they would wound the party privately and publicly. Little damage is more long-lasting than the damage from publicised frank assessments of weakness by close colleagues.  So intraparty primaries become competitions in public self praise, with little risk of contradiction. Sure there may be cunning allusion, comparison by emphasis. But formally the candidates can only highlight their own attributes, and stay away from the dangerous territory of exploring their competitors' weaknesses.

The contest before members (and the media)  may allow members to compare oratical skills and to assess charisma. But oratory and charisma are desirable, not essential. A leader's greatest influence over the longer term will be on the party's internal culture. Does it value wisdom, courage, loyalty, honesty? Or does it  reward more slyness, ruthlessness and skill at playing the game.

If the candidates have any suitability for leadership at all they know that the party can only address those questions privately despite them being the most important. So intra-party primaries are  boxing with one hand tied behind, decision making with the most important information hidden.

Because Labour has not made the mistake of leading party members to think they will make the decision, the caucus voters can still test and draw out of the woodwork the evidence of worms and knotholes and character fungi.  They will not be forbidden territory in private.

But that means the eventual decision could run counter to the way members would vote after observing their oratory competition. The consequence can be unjustified rank and file suspicion of their representatives. 

The bigger risk for a party in running a primary is also unlikely to emerge in the current Labour exercise, because the decision has not been foolishly given to party members who go to the competitions. The bigger risk is that one or more of the candidates will decide that members must know of their competitor's defects. It may be just the short term interest in winning. It may be supplemented by a sense of duty to ensure that the voter decision is properly informed. Either way means the airing of dirty linen. All people and all organisations have some linen that is at least smudged.

A ruthless candidate may covertly promote third party questioning of competitors to elicit public exposure of vital negative information. It is a high risk strategy. It can rebound directly  in condemnation for all associated. Many contenders will have been  complicit for years in covering up the worst flaws of their colleagues. Simple loyalty and simple commonsense tell you that your party only thrives when you are all helping to compensate for and to cover for your colleagues' weak spots. So those who put the collective interest first will be hamstrung in responding to a whispering campaign, or even to media questions. The party rule will be no comment, to avoid adding oxygen to the illicit campaign.  One nil to the treacherous contender, at least for the short term.

More importantly the process of "briefing" against a colleague is enormously corrosive. Even if it is done through a third party to a grateful journalist  that journalist nevertheless know that you or your team are capable of treachery. Sooner or later that knowledge spreads. Suspicion that it could be true may infuse your party and warp its culture away from the spirit of altruism needed to make it hum.

To me the US primary process is at least partially responsible for producing parties full of representatives who spend more time highlighting how they differ from each other, and how little the parties have in common, than they do working after elections are won, on what they can build for their country in common. I recognise the benefits of forcing candidates to woo party members. But it should always be clear, as it is for Labour, that the final decisions will be made by much better informed subordinate leaders. Otherwise the costs of primary processes may exceed the benefits. 

I know about some of this from experience.    

Tis the season of anointing our eminent persons.

Auckland's Watercare Services has taken the accountants' prize for the top public sector annual report.

The Watercare award reminds me to try to find out what is going on in the waste and water industry . I understand that Watercare now feels big enough and strong enough (and presumably well enough connected) to weaken Water New Zealand, extending to limiting participation at the organisation's annual conference that may have affected even some of its consultants.

There may be a simple explanation, but I hope it is not just the monster enjoying flexing its muscles.

A couple of weeks ago I enjoyed the DomPost's Wellingtonian of the year dinner. I was mystified by the judge's decisions in some categories (and in previous years as recorded in the programme). Odd that Lloyd Morrison does not feature, but even more odd are some of the names that do.

On Wednesday I enjoyed the engineers' dinner. They are different from lawyers and accountants. To me the projects that made the finals were fascinating, but there were no detailed photographs or videos, and no explanations of the novel or outstanding elements. But much more memorable to me were the genetics on display.

Maybe the  influx of young Asian engineers now underway will change things, but from my observation at the dinner,  if your kids are short, fat, female and not red-headed, you might tell them the odds are against becoming top engineers.

I'm a little above average height for a male, but I was one of the shortest men in the banquet hall. The room was full of tall to really tall men, few fat. And the recipients of the individual awards seemed to be at least half gingas, or at least auburn. 

Fertile ground for some doctoral research, and then of course Human Rights Commission intervention.  Of course the explanation could be that engineering businesses send not their top people to these affairs, but those they can best spare for the evening. But that leaves the same problem. Why are they all tall. 

Dr Rod Carr on Morning Report this morning fighting for his university reminds me of yesterday's lunch with the Canterbury Alumni Association. Cathy is the alumnus, not me, but any excuse for a free lunch (on Cathy).

The lunch gathering heard two beautiful women background the the writing of their book, Goodbye Sarajevo. As an author promotion it worked -  now I will have to buy the book. But it also worked for Canterbury University.

The two authors more than repaid the alumni association favour of arranging their audience, with the fervour of their gratitude to the university, and to New Zealand. 

They highlighted the shock of a familiar civilised normality suddenly disintegrating to a mediaeval siege, with an average 300 shells per day landing in their city for the long years of the siege. I asked them whether that experience, and then being in Christchurch when it disintegrated had led them to a permanent sense of impermanence, that normality is fragile.

They disagreed with the premise of the question. Instead, they believe that no one should assume a  'normality'. The world will always shift unexpectedly so one should just look forward, determined to make the best of whatever circumstances throw up.

They were also refreshingly uncomplicated in answering questions about the geo-politics of the Balkan war. They were deeply grateful to Bill Clinton for his decisive intervention, brushing over dithering Europe, and the pusillanimous UN. They were scathing about "peacekeeping" when there is no peace, and an arms embargo that just meant their oppressors had a free run.

Watching the notorious cringe-making clip of David Cunliffe's stump speech I felt sorry for him. There are so many rituals one must observe to be safe from media slaughter as a politician. One must ooze caring. Unctuous cliches help. There is so much pretense that over time politicians lose their internal sensitivity to humbug. The internal compass that tells you when you've crossed the line loses calibration.

David's bro-speak is on that continuum, just a little further along from Helen Clark's special Labour party meeting whining kiwi accent, that she never had in State Dinner speeches with foreigners, for example.

I could not do most of that.  The ritual pieties of politics stuck in my throat. I respect words. I despise myself when I find myself using them carelessly, even if they are just empty social exahanges, like "hows it going?" when I have little desire to know.

Even as a politician I was never able to use  pieties – the florid ums and ahs of convention – like "drive safely" or "have a good day" or "how's your day been" or  "god willing" or "thank God". I'd have made a poor Muslim if "Allah be praised" had to be on the tape.

And so I could never bring myself to to iinvoke the sanctified "kiwi mums and dads" or "kiwi families" or "kiwi battlers" or "mum and dad investors" or any of the other horrible cliched terms that make politicians so easy to parody.

Kiwiblog has a scoop. It alleges that non-compliance with the Incorporated Societies Act may have made Winston's candidacy invalid under his party's rules.

I do not have time to reach any concluded opinion on that matter now. There may be plenty of lawyers looking at the issues next week.

Irrespective of the legality of the candidacy in terms of their constitution I doubt that Mr Peters will want any close scrutiny of his list selection process. An absurdly undefined provision of Electoral law requires that the process be democratic.

It will be interesting to learn the details of NZ First's democratic process.

Two weeks ago I predicted a simple, nasty last week in the election campaign. I expected Labour to lead it, with Mana and New Zealand First joining in like dogs at a tethered goat. I thought it might prove irresistible to the Turei/Delahunty red strand of green even if it did not fit Russel Norman’s new-model constructive Green strategy.

I expected the campaign to exploit one of the oldest themes in politics, probably the most persistently successful tactic for gaining power, but one of the least successful as measured by the prosperity and happiness of the countries where it is the dominant strategy.

The most powerful political strategies align with universal fears and temptations. All would-be leaders must offer certain protections. They must be thought capable of defending us from outsiders. They must be thought loyal, without allegiances or interests that could lead them to sell us out, and they must be able to enforce our consensus rules, particulalry those defining fairness and what is cheating or criminal.

Inciting an "inequality" pogrom taps into all those needs. Targetting the "filthy rich" has played well for would be demagogues throughout history. Zero sum economics seems to be deeply intutitive – so for the masses there is simple commonsense in blaming wide poverty on the greed of a few. The rich are not perhaps quite as good as a genuine external enemy to unite your followers in overlooking your failings, but they are always around. And if, like Labour, you've been responsible for some of the worst policy wrong turns a country can make (socialist control of production, welfare without regard to virtue, the criminal justice theory that if we are just nice enough for long enough to criminals they will give up preying on people who don't hit back) you need some distracting scapegoats. That need is becoming more acute as voters fear that the Left's instincts could be degrading our civilisation. So Labour need to foster an enemy within to stay in the game.  If the masses can be stirred into believing that poverty is because the rich are greedy, a soak-the-rich party gets a free pass through property rights, equality before law and so many other of the institutions which protect the long hard route to prosperity.

 John Key should have been a perfect target. A rich  former money market trader who holidays in Hawai, is Jewish, and naturally has friends who are rich, seems god-given to the Left's strategists.  

 Labour's campaign video set the scene, with Damian O'Connor's characterisation of trickle down economics as piss down. Labour candidates felt their way round the theme for weeks, trying out the words. Grant Robertson played well here in Wellington describing himself as in spirit an Occupy protester.   Labour's polite billboard "make sure that not just the better off are better off" was accompanied by platform speech references to fat cats, bankers, greed, speculators, and the rich. Labour's capital gains tax policy, and GST relief fitted envy as the principal theme.

But in the end class warfare did not fire.  It played well to the party faithful, an important audience for Labour apparatchiks preparing for the inevitable post-election power struggle, but they found it was not working well enough with the critical swing voters. Instead they had to fall back on the primitive (but necessary) patriotism theme that fuels our apprehension about asset sales.

The decision to focus on asset sales, leaving inequality as a subordinate theme, reportedly disappointed some Labour warriors. Goff was helped by the Green's shift to the middle. Sue Bradford has not been there to suck up Labour loyalists. Voting for a racist Mana party to get Sue is a much bigger stretch. And there has been plenty of warning to Labour that class war still has limited appeal in New Zealand. John Key has withstood pressure from within his own party defending policies designed to neutralise the class war weapon. It has worked. Attacks on the fat cat PM have bombed with the target voters, the ordinary punters the Left believe should be theirs but secretly despise because they are not much interested in politics. The inequality campaign has not damaged John Key any more than the "H Fee" that was supposed to be Helen Clark's ' neutron bomb' at the last election and Labour's pitiful attacks on philanthropist Americans' alleged connections with National in the 2005 election.

It will be interesting to see if Labour turns perversely hard left in the next few weeks.  Envy or inequality rhetoric will work for hopefuls in party blood-letting.  It  pays to have shown that you have no heretical tendencies in civil war. The party could even promote the people who are most closely identified with the attitudes and dogma that have lost them the election.

Party insiders learn slowly from voter thumpings. I know this from experience. The hardline ACT faithful were absolutely determined to stick state asset sales down the gullet of the gagging voters, and judged potential leaders according to their willingness to say that is what they would do.  

Thank you Forrie Millar J for your commonsense and decency in discharging without conviction the poor mother whose child drowned after being  left with her 12 year old, 11 year old, and 5 year old by the pool for a few minutes.

What possible interest can the state have in adding to the misery of a mother and family who have lost a child in those circumstances.

I'm concerned too for all the kids who are now over-mothered and never have the chances my generation  had to play in ponds and pools and creeks from toddlerhood . The price we pay for the safety fetish is enormous.

Not that they will care, but Water Safety New Zealand  will never get any favour from me. Their priggish support for the Police bringing of the charges is equally callous.

If only there was a party, or just one politician, standing in this election on a platform of confining the Police and the criminal law to pursuing and punishing people deliberately breaking the law.  If they could do that satisfactorily there might be some excuse for pouring resources into hunting the victims of accidental harm, but they are not.

Our litigation specialist at Franks & Ogilvie, Nikki Pender, reminds me that in our 2008  election  the  Labour and National campaign virtually ignored the GFC unfolding at the same time.  The election night balloons had hardly burst before the incoming Government was faced with circumstances markedly different from those forecast in Treasury’s Pre-election Economic and Fiscal Update (“PREFU”).

Track to another election campaign and we find politicians again being allowed by the New Zealand public to run blithe campaigns in the looming shadow of GFC Redux, as if it was not there. But this time the PREFU has that shadow very much in frame. Still the election lollies keep pouring out, though the PREFU would suggest we should be worrying whether there will be enough for the rent and groceries. Why, Nikki asked in notes that I've converted to this post, is the New Zealand media not hounding all parties with balloon puncturing questions?

I have no real explanation. Nor can I explain the constrast between the straightfaced reporting  of ludicrous tax and spending offers (especially by the Maori and Mana Parties) in comparison with the sustained mockery of Don Brash, leader of the only party which has consistently called for New Zealand to live within its means, lead by the man who produced the 2025 Task Force report on things we have to do to increase productivity.

Both National and Labour costings claim to be based on the main forecasts in Treasury’s 2011 PREFU.  Yet the PREFU indicates that the short term outlook is likely to be far less rosy than projected; or to use Treasury-speak, “the risks to our main forecasts are skewed to the downside”.  According to Treasury figures the “downside” would mean that NZ’s nominal GDP, cumulated over the five years to June 2016, is likely to be $35 billion lower than the assumptions on which the politicians are basing their election promises..

But that’s not the worst of it.  Even Treasury’s more pessimistic scenario assumed that Europe would be able to “manage the region’s debt issues and stabilise financial markets”.  In other words, as NZ Herald political editor John Armstrong pithily observed after the PREFU was released, “we are in the cactus if things really turn to custard in Europe and the United States”. 

 Two weeks later, and Europe is looking increasingly custard-like.  The Greek tragedy iswill struggle for audience attention now that Italy’s cost of borrowing has climbed above the 7%  assumed point of no return without bail-out assistance. Silvio Berlusconi may or may not resign;  Greek politicians can hardly agree on a new Prime Minister, let alone on the more critical issues; and Angela Merkel is reportedly considering an exit strategy from the euro. 

 Yesterday, a blogger on The Economist website Finito reflected on the dismal outlook:

 I have been examining and re-examining the situation, trying to find the potential happy ending.  It isn't there.  The euro zone is in a death spiral.  Markets are abandoning the periphery, including Italy, which is the world's eighth largest economy and third largest bond market.  This is triggering margin calls and leading banks to pull credit from the European market.  This, in turn, is damaging the European economy, which is already being squeezed by the austerity programmes adopted in every large euro-zone economy.  A weakening economy will damage revenues, undermining efforts at fiscal consolidation, further driving away investors and potentially triggering more austerity. The cycle will continue until something breaks.  Eventually, one economy or another will face a true bank run and severe capital flight and will be forced to adopt capital controls.  At that point, it will effectively be out of the euro area.  What happens next isn't clear, but it's unlikely to be pretty.

 How will this affect New Zealand?  Apparently not enough for the parties to alter their campaign course or their budgets.  No party has pulled any announced policy in light of this week’s developments.Yesterday Labour promised $75m worth of laptops to students over the next four years and National continued to splash asset sales cash about before it is banked.  As in 2008, it seems that New Zealanders have decided to enjoy a campaign in a parallel Pollyanna universe. 

I can understand why John Key and Bill English must remain optimistic. Jeremiahs do not win elections, especially if their competitors seem to have confined their economic education to Greek textbooks.  But when the election is over how will they defend themselves from allegations of wilful blindness in running on a manifesto based on a set of unequivocally outdated assumptions?  The truth may be that they feel forced to compete in Pollyanna land because no competitor was willing to demand realism. But a broken Labour Party will not carry much of the weight of unfulfillable election promises. This time National will not be able to claim “unexpected circumstances"..  If Europe is indeed at the beginning of Christiane Lagarde's dark decade it will look all too foreseeable with the hindsight of  a few months.

Labour lit its sparklers as it opened this campaign. They earned respect. Despite jibes that they were making a virtue out of necessity in vowing to campaign on policy, not personality,  they lead with a couple of genuimely courageous announcements (capital gains tax and increasing the superannuation age).

But since then despite John Key's prominence, National has been the genuine policy campaigner.Their welfare, RMA and employment announcements are solid claims for a reform mandate in the event of a National victory.

In contrast, Labour's policy descriptions are baffling fizzers, catherine wheels on the lawn, spurting sparks in fits and starts but perhaps no longer alight. Their welfare policy (borrow more to reduce incentives to work, abandon all Michael Cullen strove for with Working for Families) , on top of their reactionary employment law promises (kick more kids out of jobs and onto welfare, reverse the probationary period encouragement to employers, back to national awards) and their criminal justice policy (end three strikes) and education (capitulate to teacher union hostility to measurable standards) are memorable mainly for the narrowness of the classes they might appeal to.

This is sad for New Zealand, because we desperately need more ideas leadership from the left. We need New Zealand versions of Hawke, Keating, Mark Latham. We need a Tony Blair in Labour to reform the schools that are producing our dreadful tail of illiterates. Labour needs a Frank Field, or at least the recognition of the validity of a left  and right faction debate as in Australia.

It seems the clean-out after this election might be needed to liberate that kind of open-mindedness in Labour. Or perhaps it will be an interparty debate, between Labour and an energised, environmentally focussed less red Green Party..

It is not that the right does not know what needs to be done in Education and Welfare.  It is just that it is much harder for Tories to reform in the social sectors, and more costly for the country - their efforts immediately trigger "class war" or "culture war". The opposition left parties can become the focus of implacable resistance, and a damaging mythology of noble defence.

Serious reform is best done by the party which the sector would usually expect to defend their special interests, as Roger Douglas did in dismantling import licensing and other restrictions that were the result of an alliance between unions and favoured businessmen. The defensive sector will pick itself up best when it knows it is futile to expect rescue.

That problem means that Tories may be more successful than the left in dealing with major  failures in business law, or taxation or defence or economic policy.

It took Clinton in the US to reach across party lines to adopt Republican policy on welfare and crime, to then preside over their astonishing and sustained turn-around in  crime and welfare dependency rates. Healthcare is a business matter, so it is not surprising that Obama has bogged down.

So the dreariness of Labour's policy "fireworks" so far is depressing, but perhaps it provides a silver lining for some, like John Pagani, who may see it as helpful for Labour to at least have another three years out of the limelight in which to work out how they will genuinely reform the welfare monster. None with any knowledge of Labour movement history would think that Peter Fraser or any other of the early heroes would defend what it has become.

There is still time for this campaign to become a contest of ideas more than personality, but it is getting very hard to see much contest with the party (National) putting up the challenge to the reactionaries (labour).

I join Greg King QC in being appalled by National's announcement of "civil detention orders". A critical principle of our criminal justice system is that the state can only lock you up for what you are proven to have done, in proceedings conducted independently to ensure that the state does not abuse that power.

Because of the risk of abuse, we generally accept the risk summed up in the aphorism, "better that ten guilty men go free than that one innocent be convicted".

I've fought for law changes to restore sentences that mean what they say, and the end to playway justice, but never at the expense of the principles that protect us from punishment at the whim of our rulers.  Calling a detention power a "civil order" is Orwellian. Where was our Attorney General while this policy was being hatched?

I can't find the policy detail on National's website, so I'm still hoping it has been misdescribed. But from what has been reported it sounds like a sinister extension of the left/green "precautionary principle".

Worse, it comes from a government that claims to be responding to risk, but coolly rejects the most simple steps to reduce the predictable innocent injuries and deaths that follow the release on parole of most young serious violent offenders. Over 80% reoffend, most within a short period. Every such offense is a preventable offense, for which those responsible for the parole system should be held to account, just as employers are held to account for predictable work injury.

The cynicism of this civil detention policy is even more marked when compared with the government's refusal to countenance  a much more principled way to protect the public – ending concurrent sentencing and restoring cumulative sentencing.

Most serious convicted criminals probably serve no time for most of their crimes, because they are commonly tried for multiple offences, but serve only one sentence, for the most serious. 

This policy is coming allegely to keep people like Malcolm Chaston (killer of Vanessa Pickering) out of circulation when their sentences end. Yet Vanessa's mother Rachel tells me that when she consented to meet Chaston on some mad "restorative justice" initiative, she did not recognise him.

At taxpayer expense he has had his distinctive face tattoos removed. What on earth is the government doing, removing the kind of distinctive markings most likely to warn people to avoid him. If anything they should be looking at ways to make a distinctive brand or warning a routine part of the sentence for irredeemable predators, not giving them the privilege of hiding their own past from their next victims.