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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 Writersí Walk:

“Itís true you canít 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

China can count on NZ elite’s fear of ‘racist’ slur

  • September 14th, 2017

Newsroom’s carefully written stories of possible spying at the heart of our government appear to expose National Party naivete. The Financial Times report adds weight to the criticism. James Anderlini concludes with a call for liberal democracies to gain the “courage” to face up to the threats.

I can vouch that an important ally is reading the Newsroom report in New Zealand,  wondering if we are capable of waking up to our longstanding credulity and loss of sovereign integrity.

In the current election campaign the story may be played on a partisan basis¬†– ¬†blaming National’s desperation to access a torrent of cash flooding in from Chinese grateful that NZ, almost alone among target countries, seems happy allow local home buyers to lose in competition with them. Others might link it to NZ business’s¬†anxiety to¬†ingratiate themselves with China without regard to its human rights record, the unrefuted horror stories of organ harvesting from political dissidents, and its militarism.

But MMP has steered all parties into identity politics – selecting a shop window of ethnic, gender and age “diversity”. ¬†Parliamentary votes are preordained by party bosses. Too many MPs bring nothing to debate or select committee except their obedient party vote. Even constituencies which return independent minded genuine local leaders know they’ll no longer be expected to contribute compelling persuasion in a national debating chamber. Some MPs could not buy a coffee – the barista would not understand them, or notice them.

Still, MMP does not explain or excuse party and journalist venom toward any who’ve criticised immigration policy from a ¬†security risk and cultural corruption perspective.

I know many of those responsible. Venal party fundraising may explain some of it. But there is a simple, more deplorable, reason for the twitter put-downs of Newsroom for reporting the spying concerns. The give-away is that¬†only NZ First has picked up the story. Winston Peters has never been afraid of the reflex slur of “racist’. He expresses ordinary citizen concerns about immigration.¬†¬†Being¬†Maori¬†gives him a partial free pass. But¬†he has not relied on it. He gives as good as he gets. So he can’t be silenced¬†by¬†the cowards who¬†run a mile from any debate that could¬†seriously test that gagging slur.

It is not a left/right issue. Phil Twyford is supposed to be silent in shame since his ‘Chinese-names’ expression of the knowledge of every land agent in Auckland, about the false government under-reporting of foreign house buying in Auckland.

A suffocating elite consensus that nothing could be worse than to be accused of racism has young left wingers sneering with young right wingers about any determined interest in matters military and geopolitical. For them, foreign policy does not go far past a joint chorus of detestation for Trump. Concern about foreign threats has become risible.

Foreigners star in the elite public ‚Äėnarrative‚Äô as victims of our earlier sins and aggressions. Sometimes they are the benign and¬†respectful visitors who will rescue us from 60 years of spending more than we earn, borrowing the difference from them.

Unless of course the foreigners have private capital, in which case  suspicion is permitted.

Once the racism debate-stopper has been deployed, those who persist are¬†impossibly ¬†passe. Being passe¬†is of course¬†death in public life. Persisting with reasoned argument after that is conclusive evidence of not being with the programme (reactionary, ignorant, ¬†and embarrassing). Such persons must necessarily be discreetly excluded from national ‚Äėdiscourse‚Äô.

The fear of being branded racist is all pervading.

We could cite¬†the¬† documented destructions of complacent societies at the hands of more ‘barbaric’ competitors, aided by¬†elite elements of those betrayed. We could find recent stories of spies sent by currently non-threatening neighbours, until¬†ruthlessness stops biding its time. We could recount¬†how vital some sleeper commercial agents have been to the creation of the empire of which we were a part.¬† We could¬†remind people of the standard¬†pattern of societies and peoples being undone by the treachery of their own decadent elites, willing to sell their inferiors for temporary exemption from a foreigner‚Äôs exactions, or just for money or privilege, or to secure positions within the incoming regime.

But even if it got a hearing, it would not change smug minds. This little corner of the world has not heard the news – history was not abolished.

After this was posted I was contacted by a person I respect to pass on a view from one who knew the MP of the Newsroom story while he was at Auckland University. He was reportedly an admirable person, helpful to students. The commentator was upset for him, but acknowledged that did not dispose of the spy suspicion. The commentator pointed out that NZ language schools have been polishing the English of China’s spies for decades. After NZ pioneered warmer relations it became for them a favoured easy entry experience of the West. And we are so gullible it was inconceivable that we would not be well penetrated.

Bank regulation – respect for CER/mutual recognition?

  • July 16th, 2017

For some time APRA has shown limited respect for the NZ Reserve Bank’s regime for bank supervision. It has begun applying Aussie rules to the NZ subsidiaries that NZ says must have standalone capacity, as if parallel NZ requirements did not exist.

The consequence for our big four is overlap and expensive double reporting. ¬†It is not entirely surprising – a price for allowing ourselves to depend on another country’s banks. And understandable that APRA would not want to leave regulatory gaps as compliance loopholes. But I hear they’ve chosen to make little pretence at respectful collaboration.

It should be deeply embarrassing for the RBNZ (and the NZ government). The RBNZ under Dr Brash after the 80’s and 90’s reforms had a reputation as the world’s best central bank.

Now APRA has another casual slap on the way for NZ and the senior people at our big four. Submissions are due by 3 August on a plan for Bank Executive Accountability Rules that ignore and overlap with our regulation of investment advisors. Among other things they will stipulate for delayed payouts under senior banker incentive pay schemes.

Many may welcome interference in bankers’ bonuses. They might be less enthusiastic if the effect is to inflate bonuses in compensation for unwanted stipulations.

Theoretically, restrictions on the Aussie big four should give our domestic minnows more scope for inventive competition. Kiwi, Coop, Heartland and SBS might be more attractive employers in comparison. Rabo and HSBC and other offshore players will of course also be unconstrained.

This reminds me of how limited the competetition now is. In the two previous business cycles I’ve experienced, at a time when demand for business and developer finance is high, and the NZ interest premium is also high, with low interest rates on consumer deposits, we should be seeing rapid growth of finance companies. Some would eventually mature into bank competitors, some would be bought by banks and some would justify the high interest they pay by eventually collapsing

Unfortunately the current RBNZ leadership’s low intelligence regulation of non-bank deposit takers has strangled that process. By unlawfully ignoring the restriction of their powers to systemic level risks they extended bank prudential supervision to institutions that offered no systemic risk.

The RBNZ has underpinned Aussie Bank profitability by preventing what should have been emergence of competing challengers to bank intermediation.

How many naggers could we measure and dump?

  • May 31st, 2017

The Times of London reports on correlations between teen pregnancy rates and cuts on spending for teen pregnancy advising and free contraception.

The wonderful news –

“Teenage pregnancy rates have been reduced because of government cuts to spending on sex education and birth control for young women, according to a study that challenges conventional wisdom.

The state‚Äôs efforts to teach adolescents about sex and make access to contraceptives easier may have encouraged risky behaviour rather than curbed it, the research suggests.”

Of course people warned that the cuts would lead to runaway teen pregnancy. The study is sure to be attacked by those still employed in handing out contraceptives and advice.

Perhaps this apparent effect is just coincidence. Teen pregnancy rates have been falling anyway, and not just in the UK. The study reportedly took that into account.

“The number of pregnancies, however, has fallen at a significantly faster rate since the grants were scrapped in 2010, in spite of critics‚Äô dire prophecies … the decline was steepest in areas where councils slashed their teenage pregnancy budgets most aggressively.

The report quotes one of the researchers –

“Mr Wright said that the effect was fairly small but had remained robust after all of the pair‚Äôs adjustments to the data. ‚ÄúIt‚Äôs quite a surprising result, so we‚Äôve tried to do a lot of different tests to see whether we could explain it away effectively,‚ÄĚ he said“.

The report mentions other authoritative evidence to similar effect –

“A study in 2009 looking at a typical Teenage Pregnancy Unit campaign, which included SRE [Sex and Relationship Education]and access to family planning in schools, found that it resulted in significantly higher pregnancy rates. Meanwhile a gold-standard Cochrane review of SRE published last year found that the measure had ‚Äúno apparent effect on the number of young women who were pregnant‚ÄĚ.

New Zealand employs thousands of worthies exploiting politicians’¬†fears of being called¬†uncaring, Many of them will be well-meaning, and genuinely believe they help. Some will be invaluable. Others are simply our generation’s burden of useless priests, battening onto modern ¬†superstitions and fears.

There is a whole industry of counsellors whose effectiveness has never been established. We have EECA nannies telling us to save electricity. All over the country local councils are ordering us to recycle our rubbish and to save water, when for most New Zealanders at most times both activities just waste resources. The energy used and the alternatives people turn to,  may harm the planet more than the recycling can ever save.

And beyond that we have a vast new cadre of people peddling new pieties Рincluding health and safety compliance officers,  professional identity measurers and consultation full-timers, diversity zealots and governance advisers.

All should routinely be put under a sceptical secular microscope. It is bad enough to be wasting resources on them. But terrible if they add to the misery or wickedness they claim to be protecting us from.

It would not be surprising if a rigorous study found that Dame Susan Devoy’s sermons¬†on racism have the same effect on most of us as telling toddlers¬†not to stick beans up their noses – result, more beans up noses.

Has Air New Zealand been shopping us for some time?

  • April 26th, 2017

Should you book with Air New Zealand on a different device from the device you use to check availability and fares?

I’ve been suspicious for some time that Air New Zealand’s “dynamic” pricing pushes up fare quotes when the enquirer’s device has previously checked for space and fares on ¬†particular flights. When they know you really want a particular flight, its¬†cheap seats seem to disappear.

Patrick Watson’s newsletter reminded me of this suspicion with a comment headed¬†“Shopping the Shoppers”

“On the surface, online shopping seems to favor shoppers. It’s easy to compare prices, shipping cost and time, sales tax, and other factors to get the best deal. Retailers have to offer lower prices to make you buy, right?

Well, maybe. Last week, I read a fascinating Atlantic Monthly article by Jerry Useem: How Online Shopping Makes Suckers of Us All. ¬†It’s about the sophisticated ways online merchants adjust and even personalize prices to maximize revenue.

For several years I’ve been taking precautions just in case.

Watson goes on:
¬†“A quick excerpt:
“I don’t think anyone could have predicted how sophisticated these algorithms have become”¬Ě says Robert Dolan, a marketing professor at Harvard. “I certainly didn’t.”¬Ě The price of a can of soda in a vending machine can now vary with the temperature outside. The price of the headphones Google recommends may depend on how budget-conscious your web history shows you to be, one study found. For shoppers, that means price is ‚ÄĚnot the one offered to you right now, but the one offered to you 20 minutes from now, or the one offered to me, or to your neighbor‚ÄĚ [. It]may become an increasingly unknowable thing. “Many moons ago, there used to be one price for something” Dolan notes. Now the simplest of questions ‚ÄĚwhat’s the true price of pumpkin-pie spice?‚ÄĚis subject to a Heisenberg level of uncertainty.
Which raises a bigger question: Could the internet, whose transparency was supposed to empower consumers, be doing the opposite?

In other words, online retailers are now comparison shopping us. Amazon and others are learning how to dynamically adjust prices based on where you came from, what you bought in the past, where you live, what time of day it is, and even the current weather in your zip code.

Doubling down for Nick Smith

  • April 4th, 2017

I was obliged to spend all yesterday on unplanned responding to calls about Dr Nick Smith’s Resource Legislation Amendment Bill. It could be passed by Parliament this week.

Yet New Zealand is just waking up to what desperately bad legislation it is. Some beneficial provisions are badly overdue, but it tries to fix other weeping RMA sores by forcing Councils  to plaster them with Ministerial acne cream. It is so prescriptive it could be a Green bill, rejecting property rights as a cure for Planners Paralysis, and instead subjecting local authorities to detailed Ministerial decrees.

So it mostly wastes time instead of cauterising the RMA bleeding.

But the more critical problem in the Bill is its transformation of local government democracy into racial power sharing.¬†The Bill gives every local authority exercising RMA powers 18 months to reach a power sharing agreement with¬†any iwi¬†or hapu that asks for one.¬†If they¬†can’t agree the agreement¬†will be dictated by forced mediation, with “guidance” from the Minister.

Once reached the agreements are permanent, unless iwi/hapu agree to amendments. There is nothing in the legislation to protect citizens from permanent subjection to the religious/cultural/venal demands of unelected iwi leaders¬†with their hands on some of the most critical¬†levers of local government. The RMA¬†delegates to Councils powers which are legislative, semi-judicial, coercive and punitive.¬†They have been justified on the¬†basis that¬†the voters’ right to eject councilors is a backstop protection. Bitter experience of abuses of power have¬†also evolved the¬†prescribed procedures and criteria for exercising the power,¬†in the Local Government Act, and¬†supervisory jurisdictions including Auditor General inspection.

So far as I can tell from the Bill there is virtually nothing to prevent power sharing agreements with iwi/hapu from by-passing democracy and diving below the current legal safe-guards against dishonesty and self-dealing.

When I heard that the National caucus were being whipped into backing this Bill, to show solidarity with Nick Smith, I was reminded of the latter days of Sir Robert Muldoon.

Not because there is any¬†likeness between¬†Muldoon and PM Bill English. There isn’t. Bill English does not rule by fear. He has not tried to humiliate¬†journalists and the public service. He is not presiding over a government clinging to power with increasingly desperate expedients to block economic steam vents.

But I thought of Muldoon because taking a virtue to a foolish extreme can end both great and lesser political careers. Muldoon allowed blind loyalty to a friend named Colin McLachlan to show that he placed a friendship ahead of good government and his MPs interests. Muldoon had an incompetent (probably ill) Minister of Transport. The Minister became a target for media ridicule. It reached a crescendo with a ridiculous excuse for what appeared to be public drunkenness. But instead of distancing himself and his government Muldoon tried to force his caucus to back the doomed Minister.

It was only one among several reasons why caucus loyalty unravelled. But it told many backbenchers that Muldoon’s political instinct was no longer reliable. It¬†told them he no longer put¬†first the good of the country, and stable and respected government.

I’m reminded of that telling saga by the inexplicable determination to push ahead with Dr Smith’s Bill, especially just before an election. It can’t possibly get one extra house built before the election. It should be superseded early by the major reform recommended by the Productivity Commission. So its only function now is to try to salvage Dr Smith’s reputation as a ‘can do’ Minister.

It can’t do that on any objective assessment. Winston Peters will use it to mince up what is left of National credibility on RMA issues.

So to those whose calls I did not return yesterday, I apologise. I can’t explain why the government is doing something so radical and so dangerously silly (constitutionally and politically) other than to say that it would not be the first time that friend loyalty has trumped duty and common sense.

To the journalist who apologized¬†with¬†“Sorry to have to admit it, but I’ve only just heard about this. I couldn’t believe what I heard, but now I’ve looked into it, why haven’t we heard all about it for months. Why on earth is the government handing this gift to Winston?”


Is Greg O’Connor pretending to be liberal for Ohariu

  • March 14th, 2017

I feel for Greg O’Connor as the full destructive weight of low quality political journalism starts to focus on him.

When I became my party’s Justice Spokesperson I got the Parliamentary Library to feed me catch up criminology. I’d spent 20 years in commercial law. I badly needed to understand what had happened to turn the courts into awkward apologies for authority, from the oases of calm judicial and establishment confidence they were in my early practice.
But when I began to apply and discuss the findings of research, instead of the idealist fantasies that pass for policy analysis in public debate on law n order¬Ě, I was immediately accused of ‘far right nasty populism’¬Ě, and ‘playing the¬†crime card’¬Ě. The kindest comments would pretend to sympathise, asserting that as an intelligent man it must be hard for me to have to pretend to support criminal justice policies that just ‘pander to the worst in human nature’.

I was stunned by the complete media disinterest in the truth about crime rates. Literally no journalist ever reported on the thorough research behind our policy positions. None had the slightest interest in the astounding US success in cutting by nearly 90% the rampant vicious crime that the ‘compassionate’¬Ě elite from their leafy suburbs and gated apartments had decided was just a cost the poor must bear as a price of being in a diverse and caring society.

Few ever failed to add “far right” to any reference to me, in all the coverage of my criminal justice contributions. The fact that most of my policies were developed from hugely successful reforms of Bill Clinton in 1996, and explained in terms compellingly expressed by Tony Blair, made not a jot of difference to the ignorant media. They wanted only to report on the Punch n Judy show characters they’d invented to suit their dated class defined world view.

Greg O’Connor may never escape the stupid badging he is getting now, as some kind of policy Neanderthal, forced to tone down and live down his experience-derived understanding of policing. I know, for example, that his fresh thinking on marijuana is genuine, not something forced from him by dopey liberal Labour colleagues. He has been pondering the costs and benefits of the long prohibition for a long time. We discussed the pros and cons long before he challenged Peter Dunne in Ohariu.

Whether, of course, Labour wishes to be branded as the “soft on marijuana party” for this election is a matter that should legitimately be decided by the Party, not Greg. But the continual smug assertions that Greg is somehow learning in that area to dissemble, to pretend to views he does not hold are just normal media moral snobbery.

And even if that were not the case I’d be surprised if Greg was silly enough to think that dope policy will help him in Ohariu. Dopers may think that Peter Dunne is an icon of flopping expediency, but he too has been among the most consistent of liberal¬Ě members on drug matters. It is ironic that he was forced to appear¬†to dither over medical marijuana.

If Greg O’Connor and Peter Dunne were to debate drug policy outside an election period I’d be surprised if anyone but experts could predict the difference.¬†But Mr Dunne is far more experienced at saying what he thinks his audience wants to hear, however non-sensical.

Whether that will save him will be one of the most interesting questions for this election

Exclusion clause to allow Pike River entry

  • December 14th, 2016

My first draft of amending provisions to repair the grave damage to personal freedoms and rational decision-making in last year’s Health and Safety response to Pike River.

Exclusion of liability for personal assumption of risk
No person shall be subject to coercion, liability or penalty under relevant health and safety legislation (within the meaning of this Act) in respect of stipulated health and safety risks and hazards, in the circumstances and under the conditions following:
a) The risks and hazards are expressly assumed personally, only by persons (“volunteers”) who qualify under this section ;
b) The volunteer is fairly informed about the risks and hazards;
c) The only persons whose exposure to the risks or hazards is affected or governed under the exclusion in this section are volunteers with respect to the same risks and hazards, including for any aggravation of risk or hazard ( or diminution of mitigation) attributable to the actions or inaction of other volunteers;
d) No person who would be liable in respect of the risks or hazards without this exclusion has financially induced the volunteer to assume the risk or hazard, directly or indirectly;
e) The volunteer√Ę‚ā¨‚ĄĘs assumption of the risks or hazards is unequivocal.

In this section:
a) Stipulated risk or hazard means all risks or hazards that
a. Are specifically described in any acknowledgement or instrument evidencing the volunteer’s assumption of the risks and hazards
b. `a reasonable person in the situation of the volunteer should reasonably appreciate to be present or inherent in the circumstances for which they wish to assume the risks and hazards; and includes
c. .[technical detail reflecting the peculiar exhaustive descriptions of the Act]
b) For a volunteer to assume a risk or hazard means to accept irrevocably that:
a. the volunteer takes full responsibility for the volunteer’s health and safety in the face of the stipulated risks or hazards and
b. recognises that persons who would be bound under the relevant health and safety legislation to eliminate or to mitigate the risk and hazards are not so bound with respect to the volunteer, and will not be liable if they mature/eventuate, and that
c. no other person will be obliged in law or in morality to place themselves or anyone else at material risk, or to expend resources in rescue or remedy or mitigation of the consequences of the risk or hazard (without diminishing the right of others to offer help)
c) Fairly informed means:
a. having information to the extent a normal adult would require in the circumstances prevailing, to decide whether the probability of adverse health or safety outcomes from taking the risks or facing the hazards were outweighed by the benefits for that person or any other person whose interests they wanted to advance or to protect;
b. being expressly advised of any particular information about risks or hazards peculiarly within the knowledge of the persons who would be liable, that would be likely to alter the outcome of the volunteer’s risk/benefit assessment referred to in the preceding paragraph;
d) Unequivocal means expressed in terms and circumstances that make it reasonable to consider that the volunteer knows and intends that no third party who would be liable without this exclusion should face liability for the maturing of specified risks or hazards and accepts that the precautions those persons may have taken may be inadequate to protect volunteers under this section.
e) Financially induced does not include a waiver or reduction of reasonable charges or costs that would apply in the absence of the assumption of risk and hazard, where it is reasonable for the volunteer to take on the personal responsibility as a rational calculation of greater benefit than the costs of the precautions the person relieved by the exclusion would be obliged to take in the absence of the exclusion.

Could the earthquakes reduce Kiwirail distortions?

  • November 16th, 2016

The Kaikoura railway destruction has an economic silver lining.

There is now a possibility of less future waste on irrational and distorting transport subsidies.

Coastal shipping should have been getting much more of NZ’s long distance heavy freight. Shipping was long strangled by government fears of enforcing laws against maritime union thuggery, theft and anti-competitive conspiracy. Since union power waned shipping had been hamstrung by the unfair propping up of Kiwirail after Michael Cullen’s rescue of Toll Holdings. Political fear of challenging irrational rail sentiment has meant wasting $7k per household on Kiwirail since. The weird left political love for rail has been reinforced by understandable popular dislike of truck dominated roads.

Now that a sea link to Lyttelton will be needed for 6 months minimum, shippers will get used to the schedules, and Govt might have the courage to not waste capital restoring the uneconomic Picton to Christchurch rail leg.

Indeed shipping direct from Auckland and Tauranga to Christchurch should suit many who distribute nationwide.

Other experiments could be freed from unfair competition.
The proposed Wanganui to Nelson service could use the fast ferries eliminated by Sounds nimbyism.
We could then use much more of the Sounds for what God intended – mussel and salmon farms.

This is not necessarily good for Wellington’s Centre Port. But it has more than enough to worry about in remedying its quake damage.

And from a national perspective the less capital we have tied up under the control of woeful performer Greater Wellington Regional Council the better.

More on that in another post to come.

The Rugby Union’s clerical duties

  • October 6th, 2016

Have I lost touch with my country? Where am I?

When did it become an obligation on an employer to discipline an employee for what could be a fleeting airport toilet shag with a woman not his ‘partner’, thousands of miles from the ‘workplace’ with no evidence (so far) that it could affect workplace performance.

I’m especially baffled when the nation’s most economically illiterate lawyers (employment specialists) have created rules that block and reverse the most simple and efficient measures by employers to uphold honesty and other ethical standards, and even basic courtesy. ¬†These idiots will expensively second guess the natural disciplinary steps ¬†that have for generations made workplaces civilised (and civilising) places for association among non-kin of disparate cultures and backgrounds.

Yet today our media have been reporting the the Rugby Union’s latest venture into controlling off field conduct without a hint of irony or criticism. I feel for the rugby bosses. Last week the media rage focused on them¬†for failing to give the justice to victims which the justice system denied. Media castigation should have been exclusively on the judging class who think they are therapists for criminals, freed from their duty to do justice by their superior compassion. Instead it turned into a witch-hunt on rugby.

And even better directed would be a spotlight on the politicians who make the rules that allow the lawyer elite to pervert justice in secret. The government was about to announce that 17 year olds would come under the Youth Court. That¬†court is a secret court. It could not survive without secrecy. If that change had been made last year it would have been illegal for TV 3 to break last week’s story of the unpunished rugby thug. It would have suppressed the subsequent public debate. The four victims would have been gagged, lest their complaints identify the thug.

Instead of more secrecy, we need less. We only know about the two rugby cases because of the high profile of the protagonists. How many hundreds of other court cases (or “Family” Group Conferences) are telling youngish thugs they get a free hand until they are 18?

So will the media ask why that government announcement has been mysteriously delayed? Do they not care that they will be effectively confined to reporting the official pap they get on the Youth Justice system’s woeful performance? ¬†Respectfully parroting St Andrew Becroft that the Youth Court is not a milk and milo court is not journalism. It does not defend the free speech right of the people to know who is beating up who, and getting away laughing, and which judges are too gullible for their work?

So it is perhaps not surprising that the Rugby Union is struggling to work out how it should respond to demands that it accept responsibility for the morals of its players. The neo-witchhunters now demand tangible denunciations for offences that are not even unlawful. The courts can only punish law-breaking (so far). I guess that means the clerical class must hound others to display their virtue (and to enforce their hypocritical morality).

Maybe there is more to come. One suggestion in my office is that it is relevant that it was a disabled toilet. What about the responsibility of the airport company for not supervising access to it? Will we see demands for precautionary modifications of all toilets? Welfare offices must all now be rebuilt because a judge has decided the bosses are responsible for the actions of a mad and bad shooter. Are disabled toilets too inviting? I must confess to liking all that space. Strategically located spikes like those that deter pigeons on statues might help discourage misuse.

In this new country anything is possible.

Social and economic rights in a NZ constitution

  • September 26th, 2016

My last post mentioned the risks and problems arising when social and economic “rights” are created in law. ¬†The Palmer/Butler draft constitution¬†tries to allay those concerns by saying that such rights are “non-justiciable” (presumably meaning not enforceable in court). It then lays out in draft section 106 a glittering array of new rights – without solving the fundamental political problem – whose duty is it to provide the goodies, at whose cost.

106 Social and economic rights
In making provision for the social and economic welfare of the people, Parliament
and the Government shall be guided by the following non-justiciable principles:
(a) the right of everyone to an adequate standard of living, including
adequate food, clothing and housing:
(b) the right of everyone who requires it to social security for the provision
of financial and other support that clearly establishes the entitlements
that may be claimed:
(c) the right of everyone to the enjoyment of the highest attainable standard
of physical and mental health:
(d) the right of every worker to resort to collective action in the event of a
conflict of interests, including the right to strike:
(e) the right of every worker to enjoy satisfactory health and safety conditions
in their working environment:
(f) the right of workers to earn their living in an occupation freely entered

Those rights could provide an entire new generation’s lawyers’ with the¬†upkeep for pampered families,¬†hobby vineyards, yachts and holidays overseas. ¬†That is, if ‘non-justiciable’ fails to stop lawyers¬†from getting to decide what taxpayers must provide.

I look forward to seeing in the book how the authors expect our courts to handle “non-justiciable”. Twenty years ago our Court of Appeal did not take long to invent¬†cost liabilities to¬†‘enforce’ provisions of the New Zealand Bill of Rights Act, despite the clear Parliamentary expectation that it would not be enforceable directly.

So how long would ‘non-justiciable’ survive? Judges can start with a common law ¬†assumption that Parliament must be assumed to have meant the law to have effect, and that a court’s task is to ensure it does get effect in accordance with its words.

Perhaps the Palmer/Butler draft constitution¬†will acquire the kind of useful authority ¬†which European courts give to eminent scholars’ texts. On many topics the draft constitution codifies¬†the net effect of the mix of statute, common law, convention and customary approaches to the exercise of power – that is our “unwritten” constitution.

The Palmer/Butler constitution¬†could be cited in that way, as a convenient and concise formulation of rules and prescriptions that must otherwise be drawn from a range of sources. Indeed it is such a good compilation of best practice rules on things like Cabinet composition and structure, for example, that it may fossilise features ¬†that should remain open to evolution. It locks in a¬†contemporary view without analytically identifying the mischiefs addressed by “best practice”.

So the draft unapologetically goes much further than codifying current practice or crystallised consensus.  It is substantially normative or aspirational. It says what the authors think the law should be in areas of substantial dispute internationally, let alone here.

That does not mean it could not serve as a guide in court, even in those areas. Civil law scholars expect good writing to steer judges in determining disputes. They resolve uncertainties left by Civil Codes, toward decisions that will enhance the consistency and power and ‘morality’ of the law. If New Zealand courts take account of the Palmer/Butler formulations when faced with ambiguity or gaps in our law, and use it to support¬†their reasoning, the Palmer/Butler draft could be useful, without condemning New Zealand to the profitless “conversation” I wrote about here.

For example, judges have been increasingly assertive in telling the government what it should do for care-givers of disabled relatives, for special needs students in school. I predict¬†cases where the lawyers (and the judges) will draw on EU law and UN documents, to assert a legitimate “common law” evolution in the dangerous territory of comprehensive social and economic “rights”.

And perhaps¬†until Parliament shows plainly that it will not tolerate¬†de facto legislating, elements of the Palmer/Butler constitution will creep into judges’ development of our common law.


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