Skip to Content »

Welcome

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

Two good judgments for our times

  • May 6th, 2020

Everyone will have heard about the welcome judgment of Walker J on 4 May in Christiansen v DG of Health. But it is still worth reading. Just to see an instance of judicial protection against callous exploitation of special emergency power. 

It is chilling too, being reminded of the credulity of the world’s chattering classes, deeply impressed by political exhortations to be kind. The respondent Director General has almost every day recently recited the “be kind” mantra of the PM, his de facto Minister. But clearly from the facts disclosed in the case the Ministry has treated the instruction for what it has proved to be – an empty political slogan. The Ministry seems to have been under neither constitutionally intended democratic supervision, nor confident and diligent political leadership. A competent Minister at the top would have intervened to apply the experience of a career outside politics. A half way competent and well lead Ministerial staff (including the office of the Prime Minister) would have recognised the signs of high-handed indifference in the correspondence. They would have invited a Prime Minister with  intellectual confidence to inject  common sense to what was plainly a bureaucratic lockstep. And that is before anyone even talks about “kindness”. 

We’ve elected politicians without enough prior life tests and career leadership experience  to exercise democratic control. Without authoritative experienced oversight, some official cultures will inevitably become immune to their own convenient cruelty. “Be kind” means nothing without the leadership diligence that makes it practical, everyday, and integrated among all the other demands of hard decision-making. 

Cases like this should encourage judges to intervene more in official second-guessing. I’m aware of the risks of judicial activism. But rubber stamp judging would be a worse danger.

I will blog separately on the just concluded High Court hearing of COLFO v The Minister of Police, where the court heard about Police engagement in lawmaking, and Ministerial exercise of dangerously wide powers conferred by Parliament in a state of high emergency excitement.  

But for another warming example of good judging to make the law straightforward, read Electrix Ltd v The Fletcher Construction Company Ltd (no 2) [2020] NZHC 918. This judgment by Matthew Palmer J was delivered today (6 May). 

Despite being long, it reaches an admirably simple conclusion. It applies and clarifies a rule that is precisely what I think business people would expect. 

I’d summarise it to a client as – “If you can’t agree a contract, but start work nevertheless and carry on while trying to agree, if you don’t reach agreement the courts will enforce what they decide would have been the fair price. “

The judgment applies the law of contract and the law of “quantum meruit” to a dispute between a head contractor and an electrical subcontractor.  The summary at the beginning of the judgment read:

Large construction projects benefit from a head contractor and electrical subcontractor concluding a contract and formulating the detailed design for electrical works before undertaking them. That did not happen in the Christchurch Justice and Emergency Services Precinct project. In October 2014, the Fletcher Construction Company Ltd confirmed Electrix Ltd as its preferred electrical sub-contractor. Fletcher Construction requested and Electrix provided electrical services work. Fletcher Construction paid Electrix $21.6 million (GST excl) for the work, on the basis of successive letters of intent. But the parties never managed to agree formally on a contract and never completed the detailed design of the electrical works. The electrical works suffered from poor management, delays, disruption and constant time pressure. Now, Electrix sues Fletcher Construction for some $7 million plus interest. Fletcher Construction counterclaims, saying it paid Electrix some $7 million too much, whether there was a contract or not. The proceeding was the subject of a four-week trial in October 2019.

 

I find there was no contract between Electrix and Fletcher Construction. The parties did not intend to be immediately bound by essential terms at any point. They expected they would be able to reach agreement on a contract, but they never did. Yet Electrix provided the electrical works services requested by Fletcher Construction. Fletcher Construction must pay the reasonable cost of the services, the “amount deserved” or “quantum meruit”. The New Zealand law of non-contractual quantum meruit is not exclusively tethered to the doctrine of unjust enrichment. Its objectives are not confined only to dispossessing those unjustly enriched but can extend to providing redress for those who have been unjustly impoverished. The market value of the services that could have been used to undertake the works is relevant. But the reasonable cost of the services actually provided is the better starting point, reflecting the market value of the particular inputs used in the provision of those services at the relevant time and in the relevant circumstances. I rely primarily on the evidence of Electrix’s expert witness, Mrs Catherine Williams. I find Fletcher Construction must pay Electrix $7,473,207 (GST excl) plus simple interest of five per cent per annum.”

I think the judgment shows the benefits judging with deep understanding of economics and incentives, as well as the basic purpose of common law judging. That is not to “be kind” or to rearrange outcomes to conform to your virtuous assessment of what the parties ought to have agreed. That can often be close to what they deserve, and when there is no contract the parties have effectively invited the court to decide on what each deserves.

But the key and most difficult job of judges is not to decide who ought to win from the  unfortunates before them.  it is to extract and apply general principles that allow other people, in future,  to understand from the precedent, how the law will treat them in similar circumstances. 

Is voluntary reduction of Councillor pay prohibited?

  • April 23rd, 2020


Politik has a fair summary of the convenient fallacy cited to protect Councillors from pressure to share the pain.


COUNCILS STILL HAVE TO PAY SALARIES
Local Government New Zealand says the Remuneration Authority should be left to set fair pay levels for local government elected members, and given the appropriate tools to do so to reflect the challenging economic circumstances imposed by the COIVD-19 emergency.
This comes as many elected members across the sector have sought to take a pay cut to reduce the burden on ratepayers, but have been prevented from doing so because this is not an option available under the Remuneration Act 1977. The Act empowers the Remuneration Authority to set zero salary increases in times of economic hardship, but it does not have the ability to allow elected members to volunteer for a pay cut. Councillors have gotten around this by making contributions to charities, but this does not reduce salary costs on councils or ratepayers.”

The untruth is not Politik’s fault. The Remuneration Authority has been a happy collaborator with local government in propagating this defence of the status quo – convenient superior orders – ” don’t blame us – the law gives us no choice”. 

Clause 12 of Schedule 7 of the Local Government Act 2002 looks conclusive at first sight.

12 Payments  –
If a determination is made, a local authority must make payment to the person concerned in accordance with the conditions of the determination.

 

But the Remuneration Authority Act 1977 and Schedule 7 of the Local Government Act 2002, actually give the Authority power to authorise voluntary reductions. Arguably they could prescribe for involuntary reductions, though not retrospectively. I think that the better interpretation would prevent them making involuntary reductions before 30 June 2020.  

The Remuneration Authority could amend its current detemination so that it says in effect that people can take up to the maximum in a “range”under Cl 6(3) (a) (iii) and (c) , to enable them to take less for a period or indefinitely.

That could be fair to ratepayers under cl 7(1) (c)(ii).

Read the relevant provisions below (omitting irrelevant paragraphs). The key words are in red text

Remuneration of members

6 Remuneration Authority to determine remuneration

(1) The Remuneration Authority must determine the remuneration, allowances, and expenses payable to—

(a) mayors, deputy mayors, chairpersons, deputy chairpersons, and members of local authorities:
(b) …

(3) The Remuneration Authority may do 1 or more of the following things under subclause (1) or (2):

(a) fix—
(i) scales of salaries:
(ii) …
(iii) ranges of remuneration:
(iv) different forms of remuneration:
(b) prescribe—
(i) rules for the application of those scales, ranges, or different forms of remuneration:
(ii)…

(c) differentiate—

(i) …
(ii) between persons occupying equivalent positions in the same local authorities, community boards, or local boards:
(d) make determinations that apply to individuals, or groups, occupying equivalent positions:

(4)

(5) The Remuneration Authority may issue separate determinations, at different times, for the different positions listed in subclauses (1) and (2).

(6) Clause 7A applies to determinations made under this clause.

7 Mandatory criteria for Remuneration Authority

(1) In determining remuneration under clause 6, the Remuneration Authority must have regard to the need to—

(a) minimise the potential for certain types of remuneration to distort the behaviour of the persons listed in clause 6(1) in relation to their positions as listed in clause 6(1); and
(b) achieve and maintain fair relativity with the levels of remuneration received elsewhere; and
(c) be fair both—
(i) to the persons whose remuneration is being determined; and
(ii) to ratepayers; and
(d) attract and retain competent persons.
7A Matters applying to determinations

(1) The Remuneration Authority may make a determination before or after the date on which the determination is to come into force.

(2) However, a determination must not come into force earlier than the expiry date of the determination that it supersedes.

(3) A determination must specify the date on which it expires.

(4) Despite the expiry of a determination, it continues in force to the extent that it is not superseded by another determination.

(5) The Remuneration Authority may amend a determination while it is in force.

(6) Despite subclause (5), the Remuneration Authority may amend the expiry date of a determination only if the Authority is satisfied that in all the circumstances there are particular and special reasons that justify a period of less than the term originally set.

If it appears that local authority remuneration is unfair, and higher in relativity with pay actually being “received” in the post Covid world (outside local government) for jobs of similar security, the Authority could consider it has a duty to amend the current determination. 

They must take into account the relative job security of local government employment (suddenly a much more important factor).  Let’s hope they will also consider the normal consequences in the private sector of demonstrated complacency, incumbent indifference to the ‘customer’, exposure of inadequate qualifications and inability to exercise practical leadership in a crisis. 

 

Minister of Health gets it right – with MTB trip

  • April 2nd, 2020

Someone has already updated David Clark’s Wiki profile with the following:
COVID 19
During the Covid 19 pandemic of 2020 where the NZ Government was recommending all non essential personnel maintain a lockdown Clark, Health Minister at the time, drove 2 kilometers to go for a 6 kilometers mountain bike ride.
This was specifically against the policy his Government has been promoting while the whole country was in lock down and resulted in everyone just doing whatever they felt like” . 

I think the outcome will be the opposite. Though he will deserve all the opprobrium he gets for hypocrisy, the best outcome should be a more healthy resistance by our amateur government to Police abuses of power, and restoration of the proper focus for the lock down. 

The PM announced the lockdown details over a week ago with a proper explanation of its anti-contagion purposes. She approved a questioner’s approach to getting out for exercise, provided safe separation and hygiene protocols were observed. But later the Police took  a very different approach, and the PM then meekly fell into line. To be fair to the Police, they had an excuse. The Cabinet position appears to have been confused and contradictory.

If there was not unresolved internal dissent, the outcome is more discreditable – that they simply did not realise what they were doing. As well as the original sensible ‘safe activity is permitted’ theme, Cabinet announcements have also been consistent with the progressive left line in social regulation – that it is better to spread readily avoidable cost across all NZers, by confining them all, whether or not they could safely continue their work under protocols working in Singapore, Taiwan, Sth Korea and Sweden, because that is preferred to “singling out” and imposing deterrent penalties on those ignore the justifiable restrictions. Our recent governments, both Labour and National have been determined not to be seen requiring personal responsibility on young people, ferals and other anti-social “communities”. 

That cast iron aversion to enforcing personal responsibility is baked in to our law in numerous areas. The recent Police huffing and puffing on self isolation does not persuade anyone familiar with our justice system’s bottomless willingness to accept feeble excuses, and to avoid certain consequences for clearly defined wrongs.

Instead we cast around for convenient class enemies to make vicariously liable for the faults of the ‘disadvantaged and never-responsible’ clients for the politics of conspicuous compassion. Take, for example, our ludicrously misnamed “drinking age” of 18. No one under 18 faces a penalty for drinking. Our Police told Sir Geoffrey Palmer when he was redesigning liquor law that penalising drunkenness would be too hard. So instead our law is consumed by punishing supermarket and dairy owners, and other  ‘suppliers’. That pattern is now found throughout our law.

But the outcome from needlessly nuking hundreds of thousands of jobs might precipitate a reset. I hope David Clark’s commonsense decision to ignore foolish restrictions will hasten that day. The  contagion  needs a massive consensus adherence to effective hygiene and separation protocols. They could have been promulgated with advertising as sophisticated as our anti drink driving advertisements, with saturation coverage.  Then ruthlessly enforced by Police, alongside resuscitated social sanctions. The emergency law change powers should have been used to suspend the grotesque interference of the Privacy Act (and its idealogue Commissioner). To revive shame as the front line sanction for immoral lack of care for community safety. Shame (whakaama) is the mechanism at the cultural heart of nearly all successful systems for control of anti-social behaviour. Our lawyer/political elite decided 3 decades ago, with secret Youth justice, name suppression, Clean Slate law, and the so-called Human Rights Review Tribunal, that only they should be trusted to know about anti-social reputations, and  to allocate community disfavour. 

ACT’s  Free Press email newsletter explained on 30 March why David Clark is now right. He should acknowledge hypocrisy, but insist that the government take the incident as a wake up. The Leader of the Opposition, Simon Bridges, chairing the watch dog Parliamentary Committee that is supervising the government’s use of its dangerous powers,  should help David Clark and all of us. He could get his committee to assist the government to return to safer ground. Together the Opposition and the government should walk the Police back from their outrageous assertions of  powers that have next to nothing to do with contagion mechanisms. 

Here is the key part of David Seymour’s penetrating summary on 30 March. It is particularly pertinent on the closure day for the Listener, North and South, and undoubtedly thousands of other businesses that will be of much less interest to journalists. 

What Is Safe Versus What Is Essential

The Government has taken the view that in order to function under the lockdown, something must be deemed essential. We view this as a mistake. If the objective is to stop the spread of COVID-19, then the test should be whether something can be done safely, not whether it is essential. Moving to a test of safety rather than necessity would be a much better way of fighting the virus while salvaging businesses.

“‘Essential’ Compromises ‘Safety’

The Government rightly says it is essential to have food available. Once food is available in an area, no other activity is permissible. But making people travel further to visit a smaller number of bigger and busier stores undermines our goal of reducing the spread of the virus. Supermarkets have remained open because they are essential but they have only undertaken safety mechanisms more recently. Under a safety approach, only food stores with safe processes would be allowed to open, but all stores with such processes would equally be able to open.

Infantilising Us

‘Essential’ is a conditional term. It can’t stand alone. It only makes sense if you complete the sentence. “Doing X is essential… if your goal is Y.” By deciding what is essential, the Government is deciding your goals. It erases freedom at the most basic level. The Government will decide what you need, and by extension what you want. Instead of the objective test ‘can this be done in a way that is safe’ we are facing a subjective test ‘does the Government think you need this.’ This level of government power is not sustainable.

Breakdown Of The Rule of Law

Subjectivity leads to absurdities and a breakdown of the rule of law. The Government has decided that eating halal meat is a goal important enough to justify opening some butcheries. Driving to the beach for a walk or a picnic is not. Which one is safer? More worryingly, the Government has decided weekly papers are not essential but dailies are. The Government now has arbitrary ability to threaten media. This is an outrage but the other media are not sticking together.

Police Overreach

One consequence of Government deciding what you should want is Police overreach. The Police Commissioner’s Rambo routine of euphemistic threats to the public – ‘you might have to visit our place’ – is a major misstep. He is trying to demand respect instead of earning it. Anecdotal reports are that frontline officers, facing a time of great uncertainty, are following suit. The Police risk alienating all New Zealanders the same way they have alienated licensed firearms owners over the past year. We need community policing, not community intimidation.”

Why practical Police will not use a gun register

  • December 10th, 2019

I’m often asked why licensed firearms owners like me are so worried about the government’s phase 2 gun law changes, even if we supported the original announcement to ban semi-automatics.

The registry is just one part of abandoning our world-envied mutual trust basis of cooperation between police and citizen. Police HQ want the register despite having starved and mis-managed the arms registry we’ve had for 30 years for pistols and MSSAs. They let it become notoriously unreliable despite having all the powers they needed to ensure it functioned pretty much as the registry they now want to make universal.

But I don’t blame them for that dereliction. The existing registry was just not useful enough to justify much expense. Registry uselessness was most dramatically shown in Canada’s abandonment of their registry after spending more than C$1bn on it.

The logic of uselessness is not complicated (from Canadian experience):

  1. What is its purpose? – so Police can know whether a person or premises have dangerous firearms when they must approach them
  2. How does it work? – they look up the name or address on the register
  3. Will they do that? – sometimes, if they have time to prepare
  4. Will they rely on what they find? – No, because of:
    1. The number of firearms not on the register
    2. No way to be confident that firearms are in the recorded location
    3. The imprudence of relying on a person or place as not having firearms.
  5. If operational police in Canada came to see it as useless, what will be different here? – Nothing in the Police analysis or explanations show how it will not be similarly useless. No prudent cop will rely on a system that can’t tell if a person or premises has an unregistered firearm.
  6. Is there any way of achieving completeness and full knowledge of firearm whereabouts? –
    1. Not with any currently economic technologies;
    2. Not with widespread resistance to registration compliance
    3. Not if the “buy-back” has left or driven uncounted thousands of firearms into the black market or grey ownership
    4. Not unless customs can be sure that smuggling can’t supply more unregistered firearms
  7. How do we know if there are many guns circulating unlawfully (not held by LFOs) – by looking at black market prices. They tell us:
    1. There must be a ready supply.
    2. Prices are high enough to make smuggling profitable, but
    3. Sadly not out of reach of criminals.
  8. So – the proposed register will:
    1. Be near useless,
    2. Be very expensive to Police and firearms owners
    3. Be a permanent irritant in relationships between Police and communities with which they need mutual respect
    4. Constantly suffer Police diversion of resources to more useful  crime-fighting spending,
    5. Have sacrificed our high mutual respect and public trust model of discouraging firearm offending, to poison police/firearms user relations for no gain;
    6. Import US style partisan divisions on an issue where we had been gracefully strong.

Above all, the phase 2 Bill is political grandstanding. It takes deliberately offensive steps against rural and shooting sports people (and indirectly our military) to posture before the world commentariat. Almost nothing in the phase 2 Bill combats terrorist threats. It is cynical opportunism, designed to serve as a political peg for partisan speeches – to blame innocent firearms users for the murderer’s evil.

The murderer’s suppressed writing says he chose his relatively inefficient mode of murder (firearms instead of bombs) precisely to stir up the politically motivated suppression of firearms users that has resulted. His theory was the governments would eventually provoke revolt from ordinary people.

Revolt will not happen. Instead decent people who are routinely patronized, bullied or mistrusted will just cease to cooperate with Police (and sadly they’ll also trust each other less). We will cease to feel responsible for the community loyalties that have been our pride and protection in the past.

Firearms law changes – Royal Commission

  • November 13th, 2019

I am not surprised the Royal Commission into the Mosque attacks needs an extension of its report date. In April I posted on its terms of reference.  There is a great need for careful reflective investigation independent of a Police force that has become nakedly engaged in political advocacy.

The Commission’s work is vital – we should all want an evidence based disciplined report. How a free society deals with the terrorism threat is serious everywhere. If the Commission can give us a report that counters current political temptations to whip up the fever, it should have all the time it needs.

Many societies have been blighted, and ultimately undone, by leadership willing to exploit tragedies and panics and attacks, to distract their people. Among the oldest political tricks is to foment hatreds of minorities, to promote fears of ‘the enemy within’.

All societies are vulnerable to such unprincipled tactics. Here is a fascinating NYT account of how vulnerable the US was to that 100 years ago. Eventually Oliver Wendell Holmes was brave judge enough to reverse himself on the Supreme Court. He realized how important free speech was to dealing with that dangerous political climate.

The extension of the Royal Commission reporting date is an opportunity for MPs with courage – perhaps NZ First. Better still would be Labour MPs  taking steps to reserve judgment on the current Arms Legislation Amendment Bill until the Royal Commission has reported. Parliament needs to ‘breath through its nose”. It must suspend the cynical Police campaign that emerged in April. It is generating the ugly flower that has never before found fertile soil here – to root in antipathies over firearms law that so disfigure US partisan politics.

Prime Minister Ardern showed a superb sense of what was needed for the Muslim members of our society immediately after the attacks. She recreated grounds for trust. Sadly the need to be seen to do more was then hijacked with a pre-prepared Police strategy to arm themselves and to marginalize licensed firearms owners, transferring to them the fear and anger rightly felt toward Tarrant.

We have long been regarded as one of the lucky countries for our firearms regulation. We have very low rates of firearms crime, co-existing with high levels of lawful firearms ownership. Our good fortune has been recognized at international arms control meetings.

But in the April panic we got new firearms law while leaving criminal firearms owners essentially untouched.  Since then, the Coalition has doubled down, with slogans to be enacted in a fresh Bill. It will arm police unnecessarily with draconian powers. We are well on the way to poisoning the mutual trust and respect values that have distinguished our firearms community relations with Police.

If the Royal Commission finds that the best guard against radicalising is more trust, and more respect – what the PM showed immediately after Tarrant’s infamous action, it could be too late. No government will reverse its mistakes immediately. Especially if they have been trumpeted as an achievement internationally.

David Seymour puts it well in a statement immediately after the announcement on the extraordinary extension of the Commission’s report date.

Our client COLFO has also asked MPs to show at least enough respect for the Royal Commission’s careful work to delay legislating until the Commission lessons are available.  From what we have seen of the submissions to the Commission and on the Arms Legislation Bill, the latter does actually nothing that would have materially impeded Tarrant. Instead it vilifies lawful firearms owners. It is a diversion from reforming the Police practices that might even have enabled him.

The current timetable for the Arms Legislation Bill is itself a disgrace

  • Most submitters have been insulted with MPs being allowed only a single question,
  • official briefing papers have great gaps on costs, and establishing connections between provisions sought, and mass murder risks;
  • briefings have involved obvious self pleading by the Police faction which has silenced the ordinary front line officers who have tried to maintain the traditional relationships with licensed firearms owners
  • MPs who suspect that Police might have good reason to be ashamed of what the Royal Commission will report have not been given enough time to pursue their suspicions, and
  • the speed in legislating seems designed solely for political grandstanding in March, not for setting NZ up to defend its values and its reputation with the benefit of the Royal Commission report.

We have had an international reputation as being like Switzerland and Iceland – a high trust society with mutual respect between law abiding firearms users, and Police. We are seeing a cynical attempt to give NZ the kind of toxic permanent debate over firearms law that discredits politics in the US – for partisan advantage.

 

 

Continuing devaluation of Massey on your CV

  • November 12th, 2019

Massey University yesterday announced its *free speech* policy and rules. As expected they are an Orwellian joke. Massey Council has doubled down on its mission to function as a college of woke theology.

David Seymour MP summarises some of the “arguments”.

The chilling thing is that the Massey Council feel confident of getting away with it. In a healthy academic culture, staff and students would not allow themselves, and the future value of the qualifications and experience on their CVs, to be governed by such feeble pap.  They should be ensuring the rapid removal of  bosses unfit for academic discourse. The claim to gagging powers is so poorly disguised.

We’ve seen a few rare indications of dissent from the Massey faculty. But externally at least, no sign of solidarity or willingness to organize effective resistance. So, an absence of student defense of its enlightenment inheritance might be confirmation of the snowflake generation’s unsuitability for leadership, but they are being educated by an effete establishment generation.

Following is a version of what has become the leading form of re-commitment to free speech by US academic institutions. It is promoted by an influential body (Foundation for Individual Rights in Education) usually called FIRE.  Chicago University made a statement notable for its unapologetic defense of freedom of thought and speech. The following draft customizes that version for New Zealand

Because [INSTITUTION] is committed to free and open inquiry in all matters, it guarantees all members of the [INSTITUTION] community the broadest possible latitude to speak, write, listen, challenge, and learn. Except insofar as limitations on that freedom are necessary to the functioning of [INSTITUTION], [INSTITUTION] fully respects and supports the freedom of all members of the [INSTITUTION] community “to discuss any problem that presents itself.”

Of course, the ideas of different members of the [INSTITUTION] community will often and quite naturally conflict. But it is not the proper role of [INSTITUTION] to attempt to shield individuals from ideas and opinions they find unwelcome, disagreeable, or even deeply offensive. Although [INSTITUTION] greatly values civility, and although all members of the [INSTITUTION] community share in the responsibility for maintaining a climate of mutual respect, concerns about civility and mutual respect can never be used as a justification for closing off discussion of ideas, however offensive or disagreeable those ideas may be to some members of our community.

The freedom to debate and discuss the merits of competing ideas does not, of course, mean that individuals may say whatever they wish, wherever they wish. [INSTITUTION] may restrict expression that violates the law, that falsely defames a specific individual, that constitutes a genuine threat or harassment, that unjustifiably invades substantial privacy or confidentiality interests, or that is otherwise directly incompatible with the functioning of [INSTITUTION]. In addition, [INSTITUTION] may reasonably regulate the time, place, and manner of expression to ensure that it does not disrupt the ordinary activities of  [INSTITUTION]. But these are narrow exceptions to the general principle of freedom of expression, and it is vitally important that these exceptions never be used in a manner that is inconsistent with [INSTITUTION]’s commitment to a completely free and open discussion of ideas.

In summary, [INSTITUTION]’s fundamental commitment is to the principle that debate or deliberation may not be suppressed because the ideas put forth are thought by some or even by most members of the [INSTITUTION] community to be offensive, unwise, immoral, or wrong-headed. It is for the individual members of the [INSTITUTION] community, not for [INSTITUTION] as an institution, to make those judgments for themselves, and to act on those judgments not by seeking to suppress speech, but by openly and vigorously contesting the ideas that they oppose. Indeed, fostering the ability of members of the [INSTITUTION] community to engage in such debate and deliberation in an effective and responsible manner is an essential part of [INSTITUTION]’s educational mission.

As a corollary to [INSTITUTION]’s commitment to protect and promote free expression, members of the [INSTITUTION] community must also act in conformity with the principle of free expression. Although members of the [INSTITUTION] community are free to criticize and contest the views expressed on campus, and to criticize and contest speakers who are invited to express their views on campus, they may not obstruct or otherwise interfere with the freedom of others to express views they reject or even loathe. To this end, [INSTITUTION] has a solemn responsibility not only to promote a lively and fearless freedom of debate and deliberation, but also to protect that freedom when others attempt to restrict it.

This resolution is adapted and excerpted from the “Report of the Committee on Freedom of Expression” at the University of Chicago. The original report is available in full here

Why I support Climate Change investment

  • October 17th, 2019

An article in Forbes magazine reports on George Shultz recounting how Ronald Reagan gained a consensus to support the Montreal Protocol to combat the fluorocarbons that were thought to be creating the hole in the ozone layer. He refers to the problem of persuading people who felt there was too much uncertainty in the science.

“And then he [Reagan] did something that nobody ever does anymore,” Shultz said. “He went to the scientists who didn’t agree and put his arm around them and said, ‘We respect you, but you do agree that if it happens it’s a catastrophe, so let’s take out an insurance policy.’”

For 20 years I’ve used the same analogy in trying to counsel people who trap themselves into claiming more confidence in the “denialist” case than they can possibly justify, just because they can’t stomach the religious fervour and anti-human callousness of many climate campaigners.

I see precautionary investment against climate change as equivalent in political decision-making, to expenditure on defence. Both require spending for highly uncertain benefit. No one can know whether we genuinely have an enemy who will attack. No one can know if our precautions will be effective. Hopefully the investment will be untested. We can’t know until afterwards whether it is wasted. Yet it is rational to try, because the catastrophe could be so overwhelming if the risk matures without resilience or mitigation precautions.

But such investment remains foolish if it is unlikely reduce CO2 levels materially, or to improve New Zealand’s ability to cope if change happens nevertheless. Given NZ’s inability to affect the first, an insurance investment should focus primarily on resilience. The Zero Carbon Bill does neither. So my government is wasting the elite political consensus that ‘something must be done”. Instead they’re conspicuously trumpeting their “belief” in climate change, and their intentions to act. If the law is enforced it will likely increase emissions overseas, and not influence foreign governments to mitigate the risk, who can affect the outcome.

I’m reminded of the Manchu Empire’s last few decades. They raised money to buy a modern military, like Japan’s, to defend against  European gunboats. Then spent much of it on vast marble additions to the Summer Palace, monuments to the glory of the Emperor. It included artistic versions of military assets, to persuade the gods to defeat the Europeans with the Empire’s outdated technology .

We’re being lead by that religious impulse to renounce treasures as a bargain with the gods. NZ government posturing offers up our first born (agriculture) on the altars of sacrifice.

The anti-dairying climate change moves seem designed to be maximum “hair shirt” as well as useless in reducing world carbon emissions. The proponents may judge effectiveness by the volume of complaint from the productive section of our society. They just ‘know’ what they command must be virtuous, because the unworthy are complaining. Our child rulers genuinely believe that they are showing moral leadership (to a world that will not even bother to scoff, so irrelevant are we). They are, of course, reassured by attention from the Colberts of the entertainment elite.

Effete Manchu officials demonstrated their piety by suppressing the advisers and merchant classes who called for realistic responses to European technology and aggression. That is a common reaction in failing societies. As Spain lost its dominance in Europe, the Inquisition was sustained. The Spanish ruling classes consoled themselves with ever more rigorous insistence on cultural orthodoxy.

And so we have in NZ a closing of ranks against climate “denialism”. Our elite hunts for heretics. We should instead respect those who are suspicious of compulsory ‘scientific consensus’ but ask them to join in working out what is likely to be most efficient (given we are going to spend on ‘insurance’ anyway).

It is wicked to take steps just for expansive show. The Zero Carbon Bill approach will actually increase world CO2 emissions, just not here.  So we are posturing to an indifferent global class, impoverishing ourselves (reducing resilience) and achieving as much against climate change as the Summer Palace did for the Qing dynasty and China.

Secret ballot, secrecy of donations

  • October 14th, 2019

In Wellington the defeat of a sitting Labour Mayor has produced shock ripples. They’d be waves but even the most anti-car leftie will have friends and associates furious about the incompetence of local government on transport matters.  Lester managed to get himself on the target list by a recent dumb surrender to a Green ban on necessary new infrastructure, which he tried foolishly to paint as the opposite. So he is a deserving though non-atoning sacrifice.

But grief emerges in other ways. One theme has been to attribute the Foster success to ‘big money’ – in this case from the Sir Peter Jackson camp. It could fire up yet another attempt to get coerced (rate or taxpayer) funding for elections and to ban private campaigns. Or it could emerge as a campaign for more disclosure of campaign donations.

Last week I was politely canvassed by Stuff, with the following questions

1. Have you had a direct donation to any Mayoral campaign? If so, how much?
2. Have you donated any items to any fundraiser for any mayoral candidate?
3. Have you made any ‘in-kind’ non-cash donation to any Mayoral campaign (e.g. advertising space)? If so which candidate did you donate to and approximately what value was the donation.
4. Have you bought any items at any of these quiz night/fundraiser auctions?

As it happens I had donated a few hundred dollars to a local authority election campaign, but not to a Mayoral campaign. But I would not have answered the questions anyway. What follows is essentially my response (lightly edited for clarity)

Hi Dileep

I have been impressed by the resource Stuff has been pouring into local government affairs recently. I understand the media need to find angles that respond to peoples’ interest in the personal.

I think privacy on donations is just as important as the secrecy of the ballot, for the same reasons. The secret ballot came in because of experience of political power being used vindictively, or to teach people lessons about what happens to those known to have not supported successful oligarchs.

When I was an MP, the Justice and Electoral Select Committee (of which I was Deputy Chair) once discussed frankly, just what money sums we thought would genuinely buy influence on a party’s manifesto promises, or subsequent policy decisions in Parliament. We had a range of views, but from recollection none of us thought the threshold would be below $15k. We thought that $10k would be far too small to “buy” influence that would be material.

[I thought that in most parties something like $30k would generate unusual respect for the donor, but not a policy pen in Labour or National]

On the other hand I know from that kind of discussion with colleagues from other parties, and my own experience, that assistance during or for a campaign, does predispose one to giving time to subsequent approaches from the helper. It is simple courtesy – they’ve helped you, at the least you owe them the respect of listening to their views and concerns. That does not mean that you will act in accordance with their views. Often it just means that you will take the trouble to explain your position, if you can, instead of just ignoring or politely deflecting similar ommunication from others.

There is always too much coming to an MP to deal with at length anyway. And you become inured to getting voter advice that is unsolicited, often ill-mannered and imperious. Sometimes you ignore a correspondent (or person button-holing you or even your family in the supermarket) though you think they are dead right, because there is some political problem that means you are just accepting a situation where you can’t alter course.  [You appear to them to be ignoring them. The real reason (as I suspect Sir Peter Jackson will find) is that there is no answer that can satisfy them.]

In my experience and view, donations are pretty much the same as any other assistance. They are no more, and no less influential than loyal help distributing leaflets, or holding a cottage meeting, or sticking up for you during an awkward controversy, or organising something else in your campaign, or providing vitally useful info on an opponent.

I was probably more financially independent than most, so I doubt that any level of donation would have been compelling for me – but I support rules for disclosure of over say $10k. [I think the hygiene benefits outweigh the discouragement that it represents to donations.]

But I consider the clamour to force disclosure further below a genuine influence threshold to be wrong-headed.

Even many small donors will feel that their decisions to help are just as private to them, as is how they vote. For exactly the same reasons. And if small donors are discouraged, that makes parties more dependent on large donations from those who do not care about disclosure.

If indeed disclosure law is enforced. All over the world enforcement of election funding law is fraught with scandal and fears of corruption.  The authorities are often unwilling to tackle tough customers. NZ First, for example, has never been required to refund the amounts that became part of a scandalous disclosure nearly a decade ago.

I’m opposed to forcing more disclosure of small donations because it cannot be the end.  It will logically and eventually lead to clamour for disclosure of many more kinds of helpful connection. Why would activists who deliver pamphlets and fix bill-boards have to be subjected to the kind of flaming that is now the left’s natural response to people who oppose them. And vice versa when the right decide that the left’s conduct is the new normal for politics.

And we already have a problem that people with good careers and lives to lead do not want to be political candidates, while there are far too many failures  infesting public office, as the best jobs they could ever hold.

The greater the interest in prurient detail of private lives (family, sexual etc) and in financial matters that do not involve genuine conflicts of interest, the less likely it is that we will have great competition among seriously competent people to lead our democratic organs.

So I find contemptible the common treatment of funding and business connections as if they are improper influences, while office holders and candidates dependant on unrepresentative groups of malcontents are not. Too many of our councillors across NZ now crawl for election nomination, and then endorsement to hang on to their useless passenger appointments, to movements and organisations that primarily appeal to hostility to change. They harvest envy. They create micro tribes or communities based mostly on shared passion about who and what they hate.

Because these front groups for denouncing sinners claim virtuous intentions, they rarely have close examination of their fruits, their connections and their lack of integrity.

So [Stuff] I choose not to answer any of your questions, on the basis that they are prompted by sentiments that are ultimately hostile to the secret ballot. They are also inimical to judging politicians and candidates for what they do, and can do. Please focus your well-meant work instead on to the office-holders and candidates who we should be exposing – those who have never achieved outside politics, those who are useless or worse, and achieve power simply because of the tribes they claim, and which endorse them.

Lost voters, lost good candidates for democratic leadership

  • October 10th, 2019

Stuff might have killed dead one theory about the reason for decay in democratic local government. The theory is that it’s a result of losing too much informed professional journalist coverage of local issues. The theory blames the internet’s destruction of the newspaper business model.

Over the past fortnight Stuff has invested in day after day of feature length in-depth coverage of Wellington local government issues. So if our voter turnout proves to be as small as currently feared, you could conclude that Stuff has tested and killed the theory that local politics just needs more dedicated media attention.

Is that a fair conclusion?

I’m testing it on myself. I found I kept postponing completing the voting paper, because the experience was so depressing last election.  I feared I’d be unable to find enough candidates about whom I know enough to cast votes worth exercising.

And so it happened. I completed my voting paper on the last possible mailing date, still feeling that it was irresponsible. I should not be choosing among candidates of whom I’ve never heard, on the basis of a couple of hundred words of banal self serving puffery.

So if others feel like that and there is a super low turn out, it may be evidence of reassuring voter wisdom. We may at least be aware that ignorant votes are wrong, and should be worthless.  I didn’t have even the barest minimum knowledge to vote responsibly on more than two or three candidates in each category.  Yet I commit hours each day to public affairs.

So I argue that non-voting is probably the honest thing for most of us. Of course few people can know personally the candidates in any election. We rely on party brands, and the assessments that seep through to us from people we think know more than us. But at local authority level that has broken down. People who would have been opinion leaders are no longer paying attention. Or if they are, they’re no longer telling us.

People have often bewailed the supposedly malign influence of parties in local government. National stopped its formal local authority activism decades ago. Labour has sacrificed much of its endorsement power by supporting too many incompetents for “diversity” reasons, and in Wellington recently, by enabling Green loons to condemn us to years more of transport chaos.

But without responsible and representative parties to vet and choose candidates, or trusted news media to review and judge them for us, we are helpless. We now have neither. So it has become a lie that voting is important. In current circumstances it is throwing blank dice into a dark barrel. No one should have to fear that their vote is rewarding the nauseating untested and unchallenged banalities that pass for campaign promises.

Yet there will be demands for crisis measures to promote voting in elections.

This is not a new problem. I’ve always considered that elite wailing over low voter turnout is just frustrated vanity. They are always calling for more to be done to pump up the turn-out. David Farrar is just one of the in-crowd on this issue. His advocacy of on-line voting is as unthinking as the rest. Why do they think high turn-out is so obviously a GOOD THING?

The reasoning seems to me to be not much deeper than normal elite vanity – the conviction that what absorbs us should absorb everyone:

  • “The proles MUST pay more attention to us and others like us. We know so much about politics. What we think and say and do is SOOO important. “
  • “They would surely take more interest if only the ghastly irreverent people were not distracting them with sport and other nonsense”
  • “Lets spend heaps advertising where the proles are, on buses, on TV. Elections are so important it doesn’t matter whether there’s evidence that any of it works. “
  • “Interrupt them, so they’re forced to pay attention – badger them with adverts in their argot. Better yet, translate our slogans into languages used by nearly no voters, then post them out to every householder, or plaster them where almost none of those ethnicities are. It will show how inclusive we are, our commitment to shop-window diversity though every thought that discomforts us is “hate speech'”
  • “I know – it must be too hard to post letters, and certainly to turn out to vote – lets make sure they can do it on their phones, between Instagram and Twitter. Who cares about voting fraud – there’s tonnes of it already with postal voting”. And finally
  • “Nothing is working – Lets make voting compulsory. They have a duty to act as if they are interested in what we, their betters, do. At least then no-one will be able to tell that they ignore us, or find our electioneering demeaning or utterly irrelevant

Now back to Stuff. Why did its coverage not inform me enough to vote? Its intention was commendable.  But I just could not force myself to read more than a few paragraph in each issue, however important the topic.  Have I become too frivolous?

Or is it not my fault? Reflecting, I can’t recall Stuff telling me much penetrating on local politicians over the past year. Mostly they reported blindingly predictable and worthy comments. In a generational shift, journalism seems rarely to ask the awkward, hard but necessary questions in the real world of resources that have to be rationed. In the real world for every spend, something or someone must miss out.  I never see the question pressed against the loons “isn’t what you are saying just worthy blather – what are you going to sacrifice to pay for that – who and what will suffer?”

Why is there so much respectful avoidance of attributing personal responsibility? Have I just forgotten some well informed and telling anecdotes. Were there articles naming and skewering the dopey passengers infesting local government, the bob-each-way ditherers, the liars, the voluble empty vessels who  have never built anything, or learned to lead, to face hard decisions where some must lose and some must gain.

Have I missed the “news” coverage.  I want to know who are the vital members of Council, the impatient and often disliked ones who get decisions made, who will take risks to ensure that vague good intentions don’t wash us all into frustrated poverty. I want to learn about which ones are so stupid other Councillors don’t bother to listen to them. Our media are not telling us.

So – I’ll stay undecided on what is most responsible for low voter turnout, though I defend it as comforting in the circumstances.  And kudos to Stuff which has tried to remedy the coverage gap this month. I doubt that incompetent democratic leadership and voter apathy or despair are just because journalists have stopped exposing them.

I think that more to blame is Parliament’s imposing participatory democracy on local government in the Local Government Act 2002. Representative democracy can attract true, experienced leaders. Participatory democracy is too attractive to losers with little better to do than listening to each other and lawyers and weirdos and malcontents.

More on that theory after we know what has been elected this time.

  • Post election comment – I should have acknowledged the coverage of former Porirua Mayor Tana’s difficulties in keeping clearly in mind the difference between public money, and private expenses. Well done Dompost, and well done Porirua voters

 

Guest post on UK Supreme Court prorogue decision

  • October 2nd, 2019

I was surprised, like most lawyers I suspect, that the UK Supreme Court decision was unanimous.  A few recent days in London soaking up the fevered writings of UK journalists left no doubt that judges steeped in London establishment sentiment would be tempted to consider it God’s work to throw a spanner in Boris Johnson’s spokes if they could.

But I assumed that at least some would affirm the approach of the High Court below, with the traditional caution about entanglement in matters that should be resolved politically. For centuries such judicial restraint that has helped keep UK courts and judges somewhat insulated from waves of popular dissatisfaction with politics and politicians.

But instead the SC judges unanimously decided in a way that may include or subject them, at least for the immediate future, to the current wave of democratic disdain for leadership institutions and for leaders generally.

I have been too busy to write a considered analysis of the decision. To me the judges clearly established that a decision to intervene is not revolutionary. Their distinction is orthodox, between a Parliamentary action and that of the Executive (Crown), and the prorogue request is not that of Parliament.  But they failed to show why it was necessary or wise to exercise that power to intervene .

Instead they show legal hubris. Political actors are constantly obliged to make decisions with inadequate information, where there may be no good outcome, and they are juggling between bad and worse. Judges are permitted to ignore the unproven and the speculative. Political leaders cannot. The Supreme Court ignores the reasons for constitutional conventions such as the convention reserving treaty making powers to the Executive, and blithely assumes an over-riding value in Parliamentary “supervision” of the Executive. This is risible, coming after three years of conspicuous Crown/Executive confusion and paralysis induced or at least compounded by  incoherent Parliamentary “supervision”.

But the decision deserves more than my simple ‘real-politik’ observation.

I asked Bernard Robertson, formerly Editor of the New Zealand Law Journal, what he made of the judgment. He now reports on cases in the NZ Supreme Court.

Here is his response. All that follows is his:

The media coverage of the UKSC judgment has been quite misleading:

a) nowhere does the judgment say that BoJo misled the Queen. In fact nothing is known of what he said to the Queen, as is usual.

b) nowhere does the judgment say that BoJo’s purpose was to prevent debate over Brexit. It says that that was the effect.

c) the judgment turns on a very narrow point concerning the evidence that was put before it.

The Court’s argument goes like this:

  1. The decision to prorogue is justiciable – ie not a purely political matter the courts cannot go into (at [52]).
  2. The standard that should be applied is (at [50]):

A decision to prorogue Parliament (or to advise the monarch to prorogue Parliament) will be unlawful if the prorogation has the effect of frustrating or preventing, without reasonable justification, the ability of Parliament to carry out its constitutional functions as a legislature and as the body responsible for the supervision of the executive. In such a situation, the court will intervene if the effect is sufficiently serious to justify such an exceptional course.”

Did the prorogation have that effect? “The answer is that of course it did. This was not a normal prorogation in the run-up to a Queen’s Speech. It prevented Parliament from carrying out its constitutional role for five out of a possible eight weeks between the end of the summer recess and exit day on the 31st October. Parliament might have decided to go into recess for the party conferences during some of that period but, given the extraordinary situation in which the United Kingdom finds itself, its members might have thought that parliamentary scrutiny of government activity in the run-up to exit day was more important and declined to do so, or at least they might have curtailed the normal conference season recess because of that. Even if they had agreed to go into recess for the usual three-week period, they would still have been able to perform their function of holding the government to account. Prorogation means that they cannot do that.” (at [56]).

“It is impossible for us to conclude, on the evidence which has been put before us, that there was any reason – let alone a good reason – to advise Her Majesty to prorogue Parliament for five weeks, from 9th or 12th September until 14th October. We cannot speculate, in the absence of further evidence, upon what such reasons might have been. It follows that the decision was unlawful.” (at [61])

Bernard’s commentary:

  1. Justiciability. This decision might not be surprising given the tendencies of courts in recent decades. But four out of seven judges in the Courts below had considered that the decision was not justiciable, including an English High Court bench composed of three heads of division who are also members of the Court of Appeal. One can argue the toss about this and there is room to argue that the Supreme Court dealt with some of the counter-arguments in a conclusory way without much reasoning. But the key point is that the Prime Minister ran his case on the basis that the decision was not justiciable and that meant that he put in no evidence as to the merits of the particular decision. This becomes significant below.
  2. There was also an argument that prorogation is a “proceeding in Parliament” and therefore immune from judicial questioning under s 9 of the Bill of Rights 1689. The UKSC decides for quite technical reasons that prorogation is not a proceeding in Parliament. It certainly seems right that the decision by the PM to advise prorogation is not a proceeding in Parliament.
  3. The standard: the Court describes this as a standard which can be applied. It does seem rather full of evaluative terms however. There seems plenty of room for legal advisers to give conflicting advice on all but the most extreme sets of facts. There also seems to be an unstated assumption that Parliament sitting more or less continually except for recesses is an unmitigated Good Thing. There is not a moment’s consideration of any counter-argument.
  4. The counter-argument is summed up in American Judge Gideon Tucker’s famous comment “No man’s life, liberty or property are safe while the legislature is in session”. Or as Mel Gibson’s part in The Patriot puts it: “An elected legislature can trample a man’s rights as easily as a king can”. In Switzerland the legislature is scheduled to sit just twelve weeks each year and extensions or special sittings can only be called for for specified reasons. Many US State constitutions restrict the number of days the State legislature can sit each year for this reason.
  5. Here, the issue is more than a suspicion that the Remainers in Parliament are using parliamentary processes deliberately to undermine the government’s negotiating position with the EU. The main point under 1 and 2, however, is that this is undoubtedly new law. The issue had never arisen in Court before and there were good reasons to think that the courts would decide that the matter was non-justiciable. The PM can justifiably feel that the goal-posts have been moved.
  6. Did the prorogation have the effect referred to? The Court stresses that this was not normal circumstances. But that cuts both ways. The evidence was that the PM considered the number of sitting days before 31 October and considered that there was plenty of time for the House to debate Brexit especially bearing in mind that until there is a Queen’s Speech there is nothing else for the House to do. So the situation is abnormal in that latter respect as well. The prorogation was to be for five weeks out of the intervening eight but three of those weeks would have been taken as recess anyway for the party conferences. The Court speculates that MPs might have decided not to have the conferences but this is just that – speculation. The situation is also abnormal in the sense that the Fixed Term Elections Act has had the effect that Parliament can vote down every proposal the government makes but without moving a motion of no confidence which would precipitate an election.
  7. The evidence: the Court did not make a positive finding that there was no good reason for the lengthy prorogation; it said only that it had not been presented with any evidence of a good reason. Courts can only make decisions on the evidence put before them by the parties. The internal memos written in 10 Downing Street are focused on calculating the number of sitting days rather than on explaining what the purpose of the prorogation was. The PM produced no affidavits on that topic in the High Court. Neither he nor the other memo writers understood at the time that they had to record a good reason for prorogation. Now they know, they will simply write good reasons into their policy documents. In fact, as some of the less histrionic commentators pointed out, legally speaking the PM could prorogue again, doing it better this time. But that is not something the media or public would understand.

General comment: the decision is far narrower than the media make out and in the end focuses on process rather than the substantive decision. I must say that given the marginal nature of some of the issues mentioned above, I am surprised that the decision was unanimous.

Post-script: I have already heard one commentator on the BBC asking “who are these judges? How do they get appointed?”. The spectre of American style confirmation hearings and of media attention to judges’ track records is one very good reason why courts have kept well clear of political issues. Let us hope that the UK Supreme Court has not opened Pandora’s Box.

 

Next Page »