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On this site you'll find posts and pages from recent years. The site began as part of my public law practice after leaving Parliament in 2005. Accordingly it records my opinions, not necessarily those of Franks & Ogilvie of which I am a principal, or any client, or the National Party for which I contested the Wellington Central electorate in November 2008.

From the Wellington Writers’ Walk:

“It’s true you can’t live here by chance, you have to do and be, not simply watch or even describe. This is the city of action,the world headquarters of the verb”

– Lauris Edmond, from The Active Voice

Why does the left hate Israel – it seems counterintuitive?

  • November 8th, 2017

A Quora answer to that question was so crisp I wanted to record it somewhere I would remember.

I don’t know anything about Tostig Godwinesson who answered, but it chimed with what I recall from being a young leftie, and when alongside them in Parliament.

You will undoubtedly get lots of complex and detailed, thoughtful answers to this question, but in my mind it boils down to a very basic situation.

The left defines the human condition as a struggle between “oppressor” vs. “oppressed”. Every situation, country, conflict, and political or social issue can be and is seen through that lens.

The left sides with the oppressed, for many reasons: genuine heartfelt belief that the oppressed of the world need support, virtue signaling, etc.

Perceptive, though it still does not explain why they take that approach and not another.

The thing to grasp is that theirs is a 100 %  coherent world view. It makes total sense to the left. It has the intellectual rigor and coherence of applied Marxism, in a way that has tremendous power for people who view the world that way. The Marxian world of oppressed vs oppressor is taught and reinforced at universities, and then reinforced through peer pressure, social shaming, and clique formation.

If you don’t question the premises, including that humans are perfectible under enough coercion from moral and intellectual superiors.

It has given us everything from “white privilege” to “intersectionality” to just about every other cause of the modern left. EVERY leftist cause has oppressor vs oppressed at the core. Black lives matter, rights of illegal immigrants, you name it, and oppressor vs oppressed is what it’s about.

Israel has been defined by the left as the oppressor, and Palestinians the oppressed. Absolutely nothing can ever shake the left loose from this characterization of the problem. If, tomorrow, a Palestinian lobs a missile onto a school bus full of 3rd grade girls, the western left will see it as another example of how the oppressor (Israel) forced the oppressed (Palestinians) to take extreme, and sadly regrettable – but necessary action, for one must fight oppression, and the oppressor bears the brunt of responsibility. The more Palestinian rockets that fall on elementary schools in Israel, the more evident it is that the oppressors must change their ways in order to end the violence. The oppressed cannot really be blamed for their actions, and never are by the western left, because their actions are borne of desperation.

There was a time when Israel was seen as oppressed by western liberal elites – back in the kibbutz days, through the ’67 war, and maybe to ’73. The western left kinda liked Jews when they were powerless and at the mercy of others; not so much when they have a powerful military and control of a thriving state. Why? Because then they are no longer ‘oppressed’, and in the Marxian worldview, the only other thing you can ever be is an oppressor. It is binary.

The Palestinians and their media enablers have done a superior job of framing the conflict in simple, Marxian terms for a western audience. How well has it worked?

Well, we have “gays for Palestine” marches in San Francisco, rooting for the side that would just love to blindfold all gays and throw them off tall buildings, rather than the side that is one of the most LGBT tolerant societies on the planet. That kind of puzzling behavior is easily understandable once you process it through the oppressor vs oppressed lens. The LGBTQ folks feel they are sticking up for a fellow oppressed group, when what they are really doing is supporting the people who want to slaughter them. It sounds like a paradox, but it isn’t, once you evaluate it in classic Marxian oppressor-vs-oppressed terms.”

To the question – “why?” I’d try some psychological stereotyping. Whether it is backed by research, I do not know.

Crudely simplifying the world into goodies and baddies has always been a comfort to those deeply threatened by the paradoxes, compromises and complexity of reality. Manichaean duality appeals to teenagers and zealots. They get an excuse for cruelty and indifference that is not available to those who can’t divide the world into good and evil, sinners and angels.

Or perhaps it is that many sense that they cannot compete on their usefulness to others, on their ability to create, to build and to nurture. Too many of those may instead turn left, where they will find comrades who define themselves by what they hate, by who they oppose, and by constant fine-tuning of the categories of those who are by definition outside their tribe.

NZ’s productivity mystery not mysterious to me

  • October 31st, 2017

I’ve been musing on the official puzzlement about our country’s woeful lack of productivity improvement. It turns out that for years our productivity has barely improved. In other words we are generating too little more per head than 20 years ago. Our GDP has grown, but disappointingly little more than population growth.

We have a whole Productivity Commission to agonise over the issue.

Croaking Cassandra (Michael Reddell) offered a shockingly non PC theory last year, that it could be because of excessive low quality immigration. If I correctly distil what I’ve taken from his writing it is that our natural competitive advantage has been in our high productivity rural base. Our urban lack of competitiveness (distance, inefficiency, whatever)  has been subsidised by rural efficiency enabled by having few people using large areas of land.

It’s a puzzle to economists because we’ve seemed to do so many things  right:

  • our economic reforms have been lauded;
  • we rank high in the ease-of-doing-business ratings;
  • we are low on corruption – a handicap that undermines even the best resourced people;
  • we’ve bought lots of gee whizz capital equipment that should make us more productive;
  • we’ve invested in fast internet and lots of computing power;
  • we’re keeping kids studying for much longer;
  • we work long hours – 6th highest in the OECD for average hours worked;
  • we have one of the highest engagement rates in the OECD (proportion choosing to work);
  • we have one of the lowest unemployment rates in the OECD;
  • we’ve had 8 years of stellar performance compared with the countries that panicked after the GFC.

One can think of things that could have negated the benefits. For example:

  • we’ve been buying capital equipment with foreigner’s savings – the same kit is available everywhere and the goods it produces have been dropping in price accordingly;
  • while we are not yet corrupt, our lawyers and courts have become constipated. It is too expensive  to enforce simple contracts and a massively bigger legal establishment feeds off the uncertainties that come with its self-asserted discretions;
  • instead of upgrading tertiary staff quality and resources our “investment” in education has been diverted through free student loans to bribing more kids to eat and drink more while studying, teaching them that debt does not matter and then exporting many of the brightest and best;
  • many now going into tertiary education might be just extending their time of juvenile irresponsibility and dependency. They’d have learnt more on the job from people who do;
  • the international measures of ease to start a company etc do not pick up changes in the time wasted on fruitless compliance and virtue signalling that has never had proper cost-benefit assessment;
  • many health n safety measures require new supervision, and plainly pointless costs that induce worker cynicism about efficiency, and deprive ordinary workers of  autonomy, initiative and personal satisfaction;
  • a low jobless rate means marginal engagement of many of our most useless workers. The feral marginal workers may be nobbling the productivity of both employers and their fellow employees;
  • the burden of dealing with “work unready” people is magnified across the economy by the steps all employers must now take to minimise exposure to our most stupid lawyers and judges. They’ve  created deadweight employment costs for no benefit, even to those they claim to protect;

An economist might be able to say whether any of the above are readily testable.  It interests me that the Productivity Commission has shown no apparent interest in the vast increase in the proportion of our intelligent and anxious people doing ruler/lawyer/judge/police/security type work – essentially bossing other people around without any skin in the game (rulers who bear none of the costs they impose from over or under enforcing).

Ordinary workers have been emasculated, to use an old term deliberately. They must  work under managers terrified into generating back-covering records of close supervision. Much of it has been developed without any proven safety gain, and certainly no cost benefit evidence. For example, a recent study  suggests that scaffolding costs are adding appreciably to housing costs, to stop workers falling from single story buildings, when:

  • figures show that was a very rare risk;
  • the cost per life saved may be $180m, over 50 times what we consider the proper test for spending to make roads safer;
  • no account has been taken at all of the extra death and injury flowing from householders doing their own roof and wall painting work, because they can’t afford the scaffolding cost.

But there may be an even more simple contributor to our sorry productivity figures. I’d be interested to know if my impression chimes with what others are experiencing.

Last Christmas I concluded that we were in the midst of a serious culture shift when tradesmen friends sent details of when they would be back to finish a project. I’ve seen more this year from the roads on Fridays before a long weekend. I’ve never seen such full mid-week carparks at Mt Ruapehu, and many of the vehicles have work logos. I saw it last Christmas in the the emailed out-of-office responses to my messages. And this year in August, and again recently during the school holidays, my inbox had numerous out-of office responses.

I’m convinced that many more of us are informally taking much more time off. Many tradies seemed to close a week before Christmas, and come back only for the full  fourth week of January. Families that would have previously taken time away, now expect both parents to go during the year, when in the past it might have been only over Christmas.

I do not think it is just my age group. Friends with school age kids report that class-rooms are often noticeably emptier on days attached to long weekends. It is easier to pick their kids up, because so many families have gone before 3 pm. In Auckland they may have become accustomed to that, because of the terrible traffic delays before long weekends. But I hear that schools in other cities are not immune.

Young friends, and German and French work visa woofers we’ve hosted just love what they call NZ’s “laid-back” approach to work. They think it is remote from what they will return to.

Are only our self-employed taking more time off? Are other employees insisting on the same, without pay? Or accepting that employers who allow more leave will probably not offer pay increases. Is the trade-off overt? My impression is that it is not confined just to my baby boomer friends still working but taking much more time off.

Perhaps employees in a tight labour market are taking more unauthorised advantage of “glide time” or other twilight allowance time. Will they see that as compensation for lower pay increases? Perhaps what were once disguised as “sickies” have become mainstream and regularised.

Maybe most of us are not as materialistic as the Greens feared.  There has always been a worry that NZ business don’t grow big because the founder’s  ambition is beach, bach and BMW. Once they get comfortable, they take things easy.

It is pretty tax efficient for individuals. The current system can’t tax income we haven’t generated. If we’ve subconsiously  decided to take more leisure instead of increased income it may be very hard for any government to stop us.

If this is a collective move, I applaud it – as long as those who have been depending on an ever increasing pie understand that it might not come. Other countries have suffered similar experiences. The Scissors Crisis occurred when Lenin freed Russian peasants from their landlords. The young Soviet government was shocked when production dropped sharply as peasants decided on some leisure instead of the backbreaking work needed to grow enough to pay the rents.

History has accounts of taxes imposed on populations solely to force them to earn money, because they were too happy with subsistence and preferred it to working. Will wealth taxes be imposed to force us to work our assets?

Can the Productivity Commission measure whether we have quietly decided to forgo income increases? Is it widespread? Is it a response to less work satisfaction? Or just a privilege in a society that genuinely does not place high value on being rich?


Common sense we may not see in New Zealand for long three years

  • October 27th, 2017

Allison Pearson in the Telegraph has a blistering response to the UK Independent Reviewer of Terrorism Legislation‘s urging that the UK should welcome back young jihadists for integration. Entitled “How do you solve a problem like returning jihadis? I’ve got a pretty good idea” she excoriates Max Hill QC’s naivete.

Allison celebrates instead the refreshing bluntness of the UK Minister for International Development, Rory Stewart. who told BBC Radio Five Live that British Isil fghters should be killed in Syria, rather than be allowed to return to the UK.
 “These are people who have essentially moved away from any kind of allegiance towards the British government” he said.
They are absolutely dedicated towards the creation of a caliphate, they believe in an extremely hateful doctrine that involves killing themselves, killing others and trying to use violence and brutality to create an 8th-century state”.
“These people have held women and children hostage, are torturing and murdering, trying by violence to impose their will. They are a serious danger to us, and unfortunately the only way of dealing with them will be, in almost every case, to kill them.”

Mr Stewart is remarkably qualified to scorn the handwringing uselessness of the Establishment. He has walked across Afghanistan, and much of Asia. He founded a charity for the Afghanistan he knows so well and I’m told that his documentaries are gripping, including one on Afghanistan and the Great Game (the British Empire’s competition with Russia).

Allison Pearson lampoons the QC’s  recommendations, referring to Joyce Grenfell’s “Nursery School” sketches. Google them. I’ll think of them now whenever a report says some New Zealand bunch of vicious scumbags have been referred to Police “Youth Aid”

Pearson asks us to imagine Grenfell doing her bright and breezy best to de-radicalise a class of repatriated Islamic State fanatics:

 “Now, Mohammed, please put that down. Yes, dear, I know, but I’ve explained that knife is for cutting tomatoes. Good, that’s better.
 “Today, we’re doing non-violent use of knives. What’s that, Shamina? Junaid wants to lock you in the cupboard because he saw your arms? Junaid, we never shut people in cupboards. I don’t care what your Uncle Reyaad used to do to girls who didn’t dress modestly in Raqqa. This is England, dear.
 No, Shamina is not a Western whore, she’s a very pretty young lady.
 Kadiza, please let me see your face. I’m sure it’s a very nice burka, but remember our no-covered-faces rule? What do you mean it’s not Kadiza? Abdul, why are you wearing Kadiza’s burka? Take it off at once.”

Pearson goes on: 

I mean, what could possibly go wrong with integrating a few hundred extremists returning from a war zone?
Jihadists who, according to Max Hill’s generous interpretation, “have travelled out of a sense of naivety, possibly with some brainwashing”?
After all, we have so much money to spend on counselling wannabe suicide bombers after paying for the monitoring of 3,000 extremists already in the UK who are considered a direct threat by MI5 with 500 under constant costly surveillance.
Mr Hill’s suggestion would be alarming at any time, but it came in the same week that Andrew Parker, the head of MI5, warned that Britain was facing the worst terrorist threat he had seen in his 34-year career.
There had been a ‘dramatic upshift’ in attacks this year, he admitted, resulting in the murder of 36 men, women and children in London and Manchester. Some 20 plots in the UK have been foiled over the past four years with a record number of terrorism-related arrests: 379 in the year to June.
These are truly deafening figures. Yet, so often, the reaction of the authorities is to stick their fingers in their ears and act as if this dire threat from an enemy living among us were somehow normal like when London mayor Sadiq Khan said that terror attacks are “part and parcel of living in a big city”. As if bombing young girls at a pop concert were just a bad traffic jam.
It’s not jihadists who are guilty of naivety, possibly with some brainwashing. Increasingly, it’s the governing class of this country…”

Pearson refers to other PC idiots:

” Moral contortionists like those fools at the Foreign Office who said that the term “pregnant women” in a draft UN human rights paper should be changed to “pregnant people” because the former could “exclude transgender people who have given birth”.
In other words, British civil servants think it’s OK to promote a policy that is grossly offensive to half the population who, for very good reason, have the monopoly on getting up the duff. This, in order to spare the feelings of trans people who have got pregnant. All two of them. Yes, two.
The gulf between what the man on the street thinks and those in authority believe has never been wider.

She mentions the realism of France:

“When Francois Hollande, the former French president, told his security services that he didn’t want a single jihadist returning to the country, it was perfectly clear what he meant, and the French people were right behind him.”

She pins blame on the left though IMHO the timid right is just as guilty.
“Only a populace that has been enfeebled by the drip-drip of warped, self-hating Leftist propaganda would not wish to see British Forces take the same decisive action.
Unlike Max Hill, I could not care less about losing a generation of young people who went [to join Isil] before attempting to come back to the UK.”

There are many sound sentiments like that, which ordinary people no longer see shared by their media. Can you imagine on RNZ a Police boss,  someone in authority, anyone, saying what most normal people think when some young criminal kills himself breaking the law – “Good job”,  instead of false grieving.

Pearson reminds us who really pays to price for ruling class sanctimony:

I mind very much about one friend of a friend. Lisa Roussos was seriously injured in the blast at Manchester Arena that killed her eight-year-old daughter, Saffie Rose. So far, Lisa has had nine operations to remove the bolts which were embedded in every part of her body.
Her hand had to be reconstructed. Not only has she lost her little girl, the family have lost their fish and chip shop, and the flat above it that they called home. They are destroyed, emotionally and financially.
If there is any money for rehabilitation, it should go to innocent victims like Lisa Roussos and her family, not to returning jihadists who sympathise with the killer of Saffie Rose.

And while we’re about it, Rory Stewart should be put in charge of counter-terrorism. Amazingly, this is a politician who understands that the human rights of the British people matter more than those of our enemies.”

Will the Rt Hon Winston Peters (Statesman) be free to call it as we see it? Will Ron Mark be gagged as a Minister? Will the PM swoon if they do express the views of ordinary people?

The Coalition Agreement has a puzzling provision that seems expressly designed to let Winston punish our last Foreign Minister for a craven conspiracy with peoples who despise our values, to kick Israel. If he needs permission set out in the Coalition Agreement, what else is now forbidden?

Stupid law – No 1 – coffee warnings

  • October 24th, 2017

The Lost Angeles Times editorial of 30 September comments on a California law requirement that cafes with more than 10 employees expressly warn customers of the possible cancer risk from acrylamide in coffee. The fact that the risk may be tiny, and outweighed by potential anti-cancer effects of coffee drinking makes no difference. That warning will be added to the thousands of warnings about normal risks of everyday life that now insult adults everywhere.

So far, nothing of interest – lawyers and public health zealots have been at this for decades.  The interesting part is the Times’ mea culpa. They admit to having scoffed at the warnings of opponents of the referendum and the law, back in 1986.

“The prospect that warnings might be added to every cup of coffee seemed like a joke back in 1986, when opponents of the proposal touted its potential misuse. We pooh-poohed those claims at the time, even though we opposed the initiative as too inflexible.

To be sure, the potential problems would not approach the grossly exaggerated levels predicted by the anti-Proposition 65 campaign, led by oil and chemical companies and the agriculture industry, [but] we wrote. “Passage of Proposition 65 will not lead to the banning of ordinary table salt or require warning labels on every apple sold or cup of coffee served in California.”

The fact that the most outlandish prediction may now come true only underscores the need for fixing or replacing this law”.

I’ve not felt able to laugh wholeheartedly at such nonsense in the US for over 20 years, after I came across the then new flip up seats in a refurbished lecture theatre at Victoria University of Wellington. The authorities showed their diligent care for the safety of our nation’s juvenile brightest and best. Each flipped up seat bore a natty label on its upward facing edge with a legend of indisputable logic and simplicity (no doubt in typeface of regulated clarity and prominence) – “Warning – place seat down before sitting”.

An institution genuinely dedicated to high standards and excellence would instead have made do with a simple policy. Any student who failed to “place seat down before sitting” with the gall to complain about lack of care by the University should be instantly terminated for being too stupid to deserve a VUW qualification.

Dead store-keepers – a price of virtue signalling

  • October 7th, 2017

Another guest post, this time from Auckland, from Prof Owen Young, Professor of Food Science at AUT. I find two things particularly interesting in this one. First that unlike many academics he is not just virtue signaling –  urging new rules because he can see something bad happening (smoking) without worrying about unintended consequences.

Secondly, Prof Young wrote this article in 2014. At the time tobacco duty was raising $1.3bn. The article was rejected by the NZ Herald. What he warned about has come to pass. If anything he understated the risk.

Stuff reported on 2 October 2017 that NZ is now experiencing more than 10 robberies per day. Try searching Stuff  for ‘robbery, tobacco, dairy’.  And reflect on today’s Stuff article on the Wellington City Councillors who are happy to use their meeting time, Council consultation budgets, and to abuse their bylaw making powers in adding useless rules ostensibly about cigarette butts, but actually just to show they detest smokers. Ups to the three councillors who refused to go along with the preciousness, Crs Nicola Young, Brian Dawson and Simon Marsh. . 

E-cigarettes, hungry kids and dead storekeepers

The Tobacco Dragon, if not slain, is certainly on the ropes. Smoking rates in New Zealand are dropping in response to punitive and unrelenting increases in tobacco duty, and to persuasive advertising – if not always accurate –variously casting smokers as Pariahs or as addicts who need help to quit the pernicious grip of a tobacco addiction.

So what’s the problem with smoking? The obvious answer is the ill health and thus shorter lifespan of smokers. The argument that going to hell your own way was a personal choice never washed with the small army of Crusaders convinced that declaring care for the interests of the Pariahs is enough to justify ignoring their informed adult choices. The Crusaders are ceaseless. They did not bother to defend their over-riding of Pariah freedoms, but they knew it was a chink in their chain-mail, so they badly needed an innocent non-smoking victim.

That became the passive smoker. Now, second hand smoke was more than just an annoyance to many. It would shorten lives. The data to support the dangers of second hand smoke have come from many studies,  crammed together by mathematical trickery in the hope that if you torture the data long and hard enough it will ultimately confess. Hallelujah!

The reality is different. In spite of popular belief, the dangers of second hand smoke are greatly exaggerated as well-constructed studies over many decades have shown. And of course the Crusaders had long ago left that risk behind as they shifted into demanding smoke free status for parks and other outdoor spaces where second hand smoke could never be a credible public health risk.

But for the moment let us assume that second hand smoke really is a danger. How could someone living with a smoker – e.g. kids in homes with smoking parents – avoid exposure?

Help is at hand with the e-cigarette. While nicotine is undeniably addictive, it is not the nicotine that kills. It is the 1000 and 1 other chemicals in smoke that do the damage over a lifetime.

E-cigarettes generate none of these chemicals, so inhaling the vapour of e-cigarettes (termed vaping) is greatly safer than inhaling smoke. Fantastic, problem solved.

Not so, because e-cigarettes that deliver nicotine are illegal for sale in New Zealand as an over-the-counter product. But that won’t stop smokers legally buying supplies over the internet. A vaper tells me that e-cigarettes satisfy his craving for about $2 a day. Contrast that with a solid smoking habit that will cost about $20 a day, most of it tax.

So, why are nicotine e-cigarettes illegal for sale here? ASH, that indefatigable Dragon Slayer, says e-cigarettes normalise the combined action of fingers, object, mouth, inhale, exhale and therefore must be banned. However, ASH knows that nicotine e-cigarettes are greatly safer that tobacco cigarettes, so why the opposition if better health is ASH’s goal?

As for central government, which makes the law, what could be its motive for a ban? A cynic might say this: “We, the government, extract $1.3 billion a year in tobacco duty from smokers, who on average are the poorer members of society. This has at least two perverse outcomes: hungrier kids and terrified, injured and dead store-keepers and members of their families.

The two targets in most aggravated dairy robberies are cash and cigarettes. The tax on cigarettes has become so high that they are a currency worth murdering for, if you are a common NZ criminal.

But we care more about signaling our ‘care’ for smokers in spite of themselves, than about their kids and dead Istore-keepers and their families. Besides, smoking tobacco reduces lifespan, so we save  on National Superannuation and on geriatric health costs. So, it’s a win win to ban resale of e-cigarettes in New Zealand.”

Now we know that governments don’t exactly say this, but that is what it boils down to, and it’s morally indefensible.


Why no libertarian party rules (or thrives) anywhere

  • October 5th, 2017

This article is a fragmentary popularisation of conclusions in scores of papers and studies. Excerpts:

“Throughout history, there have been significant costs associated with appearing not to be altruistic. According to [a] paper in the Annual Review of Psychology, “Across cultures, people punish others who have violated moral norms, even when the violation leads to people being better off rather than worse off…In populations in which certain behaviours are punished, people are better off if they resist engaging in these behaviours, even if doing so is in their short-term interests.”

 The personal costs of altruistic behaviour are outweighed by the benefits: Reciprocation from our tribe. Additionally, we may be wired to protect our genially similar tribesmen, not just ourselves. This is in contrast to the view that we’re all just selfish creatures out for own best interests. Since acting selfishly is not always in our genes’ best interest, we may not be hardwired to do so.

However, the research conversely indicates that acting selflessly is not always in our best interest as the primary carriers of those genes. While it may have been beneficial for our ancestors to favor the interests of others over the personal and, as a result, we may have evolved to do the same, society is very different today than it was for our ancestors.

“Society was not invented by reasoning men. It evolved as part of our nature”, Ridley says. While our genes may want us to behave in a given way, we need not be slaves to our genes when the personal cost could potentially prove to be disastrous.

A Newsroom article this week has quoted me and Richard Prebble on the future for ACT and why it did so poorly. I got into my thinking on this with the journalist, but evidently he did not have the space for that part of our conversation (or my musing was too dense).

I believe ACT will not flourish until it is perceived as being comprised and lead by people who understand and share most people’s need and respect for altruism, nationalism and other expressions of the social and collectivist part of our nature. I, and most of the fellow citizens I trust, want to be lead by people who show genuine commitment to institutions that reinforce mutual obligation and support.

Too few people to matter electorally will ever trust a party, and people, who do not understand and reflect our collective impulses.

Most of the people who’ve lead in ACT knew that, intuitively. They were extraordinarily unselfish. They lived the values of effective collective obligations.  Sir Roger Douglas’s health, welfare and education policies were directed to creating very strong institutions, best compared to those in Singapore. He wanted reform to ensure long term political support for the social safety net. He was an original supporter of what is now called UBI, with a reverse income tax scheme. He wanted to reinforce the values of social duty and responsibility, but working with how people actually respond, rather than the current NZ model which rewards free-riders on the generosity of hard working neighbours.

But people were deaf to him. ACT branded him to them, but he reinforced that branding by being sometimes tone deaf to fears. Public musing, for example, on auctioning passports, sent a message that closed ears to the logic of that position, let alone his other mechanisms to strengthen the values of collaboration and mutual support.

Sensitivity to our collectivist side does not need repudiation of market capitalism, for example. But it does need obvious commitment to  enforcing honesty and upholding the rules that reassure people they will not be left to the mercies of robber barons. Sensitivity to the collectivist side does not demand renouncing individual economic and social and criminal responsibility, or anything else of the classical liberal canon. But I believe they will only be accepted (tolerated) within a framework of obviously shared adhesion to collective loyalties. If people retain a sneaking suspicion that their elites could prefer the company, and the values, and the money, of “the other”, they will shrewdly deny them support, no matter how well reasoned, and attractive is their marketing.

The journalist was testing the line that ACT’s brand is toxic, and that it needs to become clearly classically liberal. I accepted both as possibilities, but said I thought ‘classical liberal’ was now scarcely understood by the voting population. It would be confused with libertarian, yet condemned when it failed to embrace liberal/progressive causes (eg feeble on crime, keen on minority ‘rights’ that are in fact privileges dependent on coercing others) that are anything but classically liberal.

Nevertheless I see that the predominant view of commentators on WhaleOil and Kiwiblog about the very low party vote for ACT appears to be that it needs to become more “liberal”. The remind me of the Green activists who are convinced that the missing million and the Labour apostates will come to them when their party is more adamantly Corbynist.

Both sets of zealots ignore and deplore what drives normal humans. Sadly for ACT, however, the Corbynist vision can be made to appear closer to how people want to think of themselves and their leaders.

I did not want to give the journo hostile lines, so refrained from directly disagreeing with him in any concise way. But those who dream of wide enthusiasm for ‘ liberalism’ are to me more ideologically blind than the Corbynistas. The libertarian vision of the perfectible human may be even further from human nature than theirs.

I suspect that David Seymour is more in touch with his electorate’s nature than our current holders of the Green brand.

And it may not be ACT’s internal struggles that capture our attention over this next Parliamentary term.

From contact with young voters, I think TOP  could provide a reassuring home for the environmental Green supporters. TOP could expropriate the real Green brand and leave the NZ Corbynistas with Marama Davidson in a rump “Green” party. Without any anti-waka jumping law now, they could even support Parliamentary defection, for example by James Shaw and Julie Anne Genter.

I suspect that the TOP party will remain too beholden to Gareth Morgan to adhere to the discipline that would need. He would have to leave many of his social justice hobby horses unridden, to highlight his reliability as a true environmental Green.  Assuming that he could not avoid being drawn into social justice warfare, TOP and the rump Greens would end up fighting over the same dirigiste/inequality/Treaty worship voters – the types that just will not tolerate the compromises demanded by MMP (and democracy). That would continue to obscure and confound the fantastic Green/environmental brand. They’ll damage each other too much to gain the NZ First type power to determine who governs.



Why just Kingmaker? Why not King?

  • September 28th, 2017

The following is a guest post from my law colleague, Rob Ogilvie. Rob specializes in negotiation advice and strategy. At a Harvard course in negotiation many years ago, Trump cases were used to explore and illustrate successful negotiation approaches.  So to our astonishment early in Trump’s campaign Rob warned against dismissing his chances. Rob later won wagers taken when it still seemed inconceivable that Trump could become President.

Like many I lazily assumed National had it in the bag until their recent press conferences.  Then the faces showed they have had their “Oh Sh-t” moment.  To woo the elusive Mr Peters Mr English has already told David Seymour to scram, and both Ms Bennett (National) and Mr Davis (Labour) have offered to step aside from deputy leadership. Mr Joyce has said he really can be best friends, honest.  Both parties have made it clear that cherished policies are up for grabs.  Have whatever cabinet seats you like.  And that is just their opening positions.  The negotiations apparently haven’t even started.

The art and science of negotiation means Winston could be our next PM, or at least a newly constructed position more influential than Deputy PM.  If he really wants the job.

He has been working towards these two weeks all his life.  He is the longest serving MP and party leader, and has replayed these sort of negotiations many times.  He is in a position where he can trade two feasible potential governments off against each other.  Why wouldn’t he back himself for the top job?

To do so, he just needs to satisfy three simple negotiating conditions:

  • Be alive;
  • Hold the balance of power in MPs in Parliament;
  • Be credible dealing with Labour.

The reason this may translate into PM, despite NZ First only having 7% of the total MPs is simple:  BATNA.

Lots of factors will influence the negotiations over the next couple of weeks between NZ First, National and Labour – the numbers, policy preferences, personalities, perceived moral authority, misunderstandings, error.  We can only make assumptions.  But above all, what will drive the participants is what they think will happen to them if they don’t reach a deal: their Best Alternatives to a Negotiated Agreement, or BATNAs.  Analysing BATNAs is fundamental to understanding all negotiations.

BATNAs are a better guide than just listing what you want and arguing as to why the other side is morally bound to agree with your just cause.   Everyone with a place at the table thinks they are in the right.  And persuasive ability, experience and tactics can help to get the deal you want.  All the players in this political drama have that, especially Winston.  But these factors aren’t enough.

What the science of negotiation teaches is, paradoxically, that what matters most is what the other side perceives as their next best alternative.   In a negotiation your key job is to enhance your own real BATNA and diminish your opponent’s perception of their own BATNA.  And then, encourage your opponent to an agreement just slightly better than their own, diminished, BATNA.

For example, a simplified outline of each participant’s BATNA might start like this:

  • Labour:  at least another 3 years of the same boring opposition stuff. But room to complete a renewal.
  • National:  Lose all the baubles of office, likely for at least 6 years.  Abrupt reversal of many policy gains.  But preserve their integrity and avoid responsibility for the next market crash.  A bit like the Greens.
  • NZ First:  OK going with either.  Policy pluses and minuses largely balance out, likewise electoral outrage at a deal. Both will deliver the cabinet posts necessary to ensure the party could endure. If with Labour, Mr Peters may get the PM’s job but in a flakey weak Government.  If with National, only get deputy PM but in a more stable, effective Government.  But if fail to form a government at all, severe backlash from voters, and Mr Peters loses his last chance.

A BATNA analysis says that any deal better than this could be worth doing. There are many reasons that may not happen, and in particular both Labour and National have long term interests to consider which make some otherwise sensible deals unrealistic.  They may also have different perceptions of the longevity of a coalition deal with Winston.

On international comparisons there are really only thin policy differences between National and Labour (as evidenced by the fact Winston could credibly deal with either).  If NZ had a different political tradition, there could even be room for a “grand coalition” excluding NZ First.  But Labour and National can’t ignore their tribal differences. They define them and increasingly voters and supporters may be using and exaggerating those differences to define themselves. The way religion once did.

It makes all the difference that NZ First can credibly deal with Labour, especially if specials change a couple of seats to make that coalition more secure.  Without that, National’s BATNA would have been going back to the polls now and the likelihood of voters favouring stability and punishing NZ First.  So they could confidently drive a very hard bargain.  But now their BATNA is the wilderness and hoping for a weak Lab/NZ First coalition lasting only one term or less. And, for those in the negotiating team, the likely end of their political careers.

It makes a big difference that the Greens have such a poor handle on negotiation 101.  They could easily be in NZ First’s position had they just warmed up their base for a deal with National over the last several years.  Then the BATNAs of all participants would have been very different, and NZ First would have had a snowball’s chance at the top job.  But the current Greens’ self respect (as virtuous in a world of sinful humans) has depended on demonizing National and dismissing existing levels of NZ sacrifice to environmental visions. So the Green party treats democracy’s unavoidable negotiation and compromise as moral deficiency. By therefore minimising their leverage, they have ensured their voters can be taken for granted. Their best hope now is as a very junior partner in a three way coalition.

Bill English’s strong finishing performance makes it unlikely, but not impossible, that Mr Peters could get the top job (or a constructed close substitute such as “First Minister”) in a National/NZ First coalition.  Of course it is unthinkable this week.  But next?

So far, all Mr Peters has done is muddy the waters with a long list of negotiable “bottom lines” and making it clear he has all the time in the world.  He cares, but not T-H-A-T much.  (Master negotiator Herb Cohen 2003).  On the other hand, both Labour and National have already offered the deputy PM slot, cabinet positions, policy workarounds and NZ First’s choice of sacrificial lambs.  National has even started sacrificing their lambs already.  And that’s just their opener, before negotiations have started. We’ll see how far they’ll go when the grim reality of the BATNAs sink in.

We can already see National laying out the fine trails of silk, feigning confidence that they will ensnare Winston in the process.  Perhaps they will.  He needs a deal.  But Labour have nothing to lose, and can more easily offer the biggest prize.  And of all the participants, Winston has played this game many times before.  He knows what works and what doesn’t.  Maybe he doesn’t want the top job.  Maybe he will settle for good cabinet posts and some legacy policies.  But given that is each of Labour’s and National’s opening offer, why wouldn’t he play one off against the other to go for more?  It’s not as if he’s constrained by policy – he’s announced enough bottom lines to give everyone lots of options.

One reason is that this is a representative negotiation.  There are major agency risks for all participants.  Put bluntly, what really matters to the negotiators personally may not matter to their party and vice versa.  So for example, 3 years out of Government might well suit Jacinda, but might not suit the stern leaders of the Labour party.  Likewise NZ First might be better off trading PM for more solid cabinet spots in a stable government, and a deal on a safe seat for the next election, but Winston might not be. And some National backbenchers might prefer the opportunities that defeat and renewal could bring, but they won’t be in the room to decide on the deal.

The suggestion this morning by ex NZ First MP Tuariki Delamere that Ms Ardern offer Mr Peters a shared PM position now is premature.  A good negotiator never opens with their best offer – because that leaves no room for the major concessions the other side will expect to win off you before agreeing the deal.

Rob Ogilvie is a principal in Wellington boutique public and commercial law firm Franks Ogilvie and a specialist in commercial negotiation.

Counting our blessings – NZ still fending off the political tribalists

  • September 28th, 2017

This  must-read is from Andrew Sullivan, a thoughtful leftist. It acknowledges and explains the blight settling over all the Anglo democracies, though thankfully not yet heavily in our lucky land.

It is consistent with Helen Clark’s gracious warning to New Zealanders (her supporters) to respect the outcome of the election, reported in yesterday’s Stuff.

The democratic blight has been fended off since 2008 by the ‘teflon’ decency of John Key and then Bill English. While those two have lead from the centre the nastier left has been unable to persuade enough New Zealanders to share their hatreds. Ordinary people could see that decency through the media/entertainment elite’s hostile screen. And so most of the country did not catch Jacindamania.

I’m allowing myself to hope that Labour got enough sensible new blood this election to regenerate something positive in its caucus. When their leading elements line up in 2020 they may have a few who have actually experienced the lonely responsibility of building and leading an organization. There will still be almost none who have ever experienced the demands of business and putting their own money at risk. But even if the doctrinaire nasties remain the majority, many of them are genuinely stupid. A critical mass of incomers like Greg O’Connor could be the nucleus for rebuilding.



Q.E.D. on spies, from the Minister responsible for our security intelligence sevices

  • September 21st, 2017

Rarely, if ever in politics, does one get explicit, irrefutable proof of a risky and unpopular hypothesis within a week of venturing it.

But Attorney General Hon Christopher Francis Finlayson provided such proof last night.

Last week, after discussing on Radio NZ the Newsroom suspicions that NZ MP Jian Yang may be a spy for mainland China I blogged my explanation that time did not permit with Jim Mora. I predicted that the Communist government could expect their spies who have penetrated New Zealand leading circles to be sheltered by our  elite’s PC terror of being accused of racism.

Last night at an election candidate’s meeting Finlayson showed just how the accusing is done. The other  candidates then showed how effective it is in cowing them.

Here is Michael Reddell’s account of what happened yesterday.  Michael has recently retired from many years as an economist with the Reserve Bank of New Zealand. He is among our most highly respected analysts of matters economic. The bolding for emphasis, and the links are added.

I’m furious.
Local democracy came to Island Bay this evening, and I – an undecided voter – joined the crowd at the local candidates’ meeting, in the Rongotai electorate. Candidates congratulated themselves on a well-fought campaign – as the National Party’s candidate put it, not a cross word had been spoken between any of them through all the various meetings they’ve attended together. Most of tonight’s meeting was like that. Most.
Over the years, I’ve heard nothing to suggest that the National Party’s candidate was other than an honourable and decent man. The Hon. Chris Finlayson is the 8th ranked Cabinet minister, minister responsible for the intelligence services, and Attorney-General. He appoints our judges. And as he described himself tonight, he is “the first law officer in the land”. You’d imagine he’d be at the forefront of defending the integrity of our democratic system and its institutions. But not based on his performance tonight.
The format of the meeting allowed questions from the floor. Each question had to be addressed to one particular candidate, but each other candidate also had a chance to answer. On almost all the questions, almost all the candidates took the opportunity to answer. But not on one question.
I got up and asked a question of Chris Finlayson, explicitly noting that I was not asking him as a minister responsible for the intelligence services (where I would have expected a fob-off) but as a senior National Party figure. My question ran roughly as follows:
“Mr Finlayson, last week one of the world’s leading newspapers, the Financial Times gave considerable prominence to a story about a New Zealand MP. That MP had been a member of the Chinese communist party, and part of the Chinese intelligence services. He never disclosed that past to the public when he stood for Parliament, and has never taken the opportunity to denounce the evils of the Chinese regime. Can you comment on why it is appropriate for such a person to be in our Parliament? And could you also comment on the new paper by Professor Anne-Marie Brady raising concerns about the extent of China’s attempts to exert political influence in New Zealand, and about the close ties of various senior National Party figures with Chinese interests?”
The question was greeted not with embarrassed silence, but with pretty vigorous applause from the floor.
Finlayson – our Attorney-General, first law officer of the land, senior National Party minister – got up, briefly. His answer ran roughly as follows:
“That was a Newsroom article, timed to damage the man politically. I’m not going to respond to any of the allegations that have been made about/against him. I think it is disgraceful that a whole class of people have been singled out for racial abuse. As for Professor Brady, I don’t think she likes any foreigners at all.”
And as I shouted back “the claim was about one man”, our Attorney-General sat down. He’d simply refused to answer, or even address, the question, at any level other than suggesting that anyone raising these quite serious issues was a racist or a xenophobe. Starting, presumably, with the Asia editor of the Financial Times, Jamil Anderlini a Kuwaiti-born Italian-American New Zealander who has spent more than a decade reporting from Beijing (and now is based in Hong Kong) through to Professor Brady, with all the other serious media outlets and China-focused commentators overseas who have reported the concerns in-between? It was preposterous. Plus, one couldn’t help thinking that he knew he was weak ground. After all, if there was a clear, simple, authoritative and compelling explanation, presumably he’d have given it.
I hold the Attorney-General – first law officer of the land – to a considerably higher standard than other local candidates. And the specific question was actually about a National Party MP, National Party selection choices, and the ties of National Party figures to Chinese business and political interests.
And, as I said, on every other question this evening, all the other candidates rushed to the microphone to have their say, on everything from apprentices to housing to guidance counsellors. But not one of the others said a word on the Chinese government politicial influence seeking in New Zealand, or specifically on Jian Yang’s position. Not the Labour candidate – deputy mayor of Wellington, and sure to become a member of Parliament on Saturday. Not the quite highly ranked, and apparently very able, Greens candidate. Not the TOP candidate, or the Conservative candidate. Strangely, not even the New Zealand First candidate, who was presumably unaware that his party had taken a stand, both on Yang, and on the more general issues Professor Brady has raised about the activities in New Zealand of the Chinese government. Not a word, from a single one of them.

As it happens, there was someone in the room who knew Professor Brady; in fact, this woman had done her masters thesis under Brady’s guidance. Noting that Finlayson had tried to claim that Professor Brady didn’t like any foreigners, she proceeded to point out that not only was Brady fluent in Mandarin, but that her husband was Chinese. Cue to guffaws and applause, and a rather grudging apology by the Attorney-General for his specific claims about one of our leading experts on China and its international activities.

The Attorney General makes stuff up.

It was a shameful performance all round. The candidates can congratulate themselves all they like on the bonhomie of the campaign, but when not one of them will even address a serious question, raising concerns themselves raised by serious international publications and respected experts – and Brady’s paper has been linked to and report quite widely, it rather gives the game away. As Professor Brady put it in her paper, the fear of giving any offence to the government of the People’s Republic of China – a brutal and aggressive dictatorship – seems to have been raised to a defining feature of New Zealand politics, and not just by National.

We saw it on display tonight, nowhere more so than in the despicable performance by our Attorney-General and first law officer. How safe is our democracy, our values and freedoms, our laws, in such hands?

I’m reminded of his recent unfounded claim that Labour’s water tax proposals were a Crown claim to own water and would therefore hand water rights to Maori.  The Minister in charge of the SIS seems to have a thing against clear law and property rights. He replaced the Foreshore and Seabed Act with a deliberately murky Marine and Coastal Areas Act. It repudiates Crown ownership. It states explicitly that no one owns the nation’s marine areas. But somewhat duplicitously that Act then claims for the Crown many of the powers that an honest lawyer recognises immediately as owner rights.

I think it would be absurd, but some day some conspiracy theorist might think there is a connection between Finlayson’s disdain for property rights and his defence of Communist penetration. A future historian may find that less unbelievable than our elite’s disloyalty, even hatred of those who warn of the kind of threat that is the  fabric of history.

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 ‘narrative’ 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 ‘discourse’.

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’s 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.

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