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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

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.

 

Royal Commission of Inquiry into the Christchurch attack

  • April 11th, 2019

I cannot fault the government’s choice of Judge to chair this Commission. Sir William Young has all that we could hope for in a Commission intended to reassure us that the establishment is genuinely trying to learn from a shocking event. He has earned respect from deep experience, broad interests and imagination, humanity, and common sense. With some courage he has resisted group think on legal fashions.

He was the obvious choice to lead and transform our seriously disappointing Supreme Court. Perhaps he turned the Chief Justice-ship down.

But the Commission’s work could be compromised from the start. A glaring omission from the terms of reference is any requirement for a careful, honest, politically non-partisan examination of what turned the loner into a killer.  The Commission should outline key ways that ordinary people can play their essential part in defeating the “radicalization” that may have produced him. It should be able to show us what we are up against in countering the temptations to others for similar villainy.

I do not see a suitable term of reference in the following:’

The Commission will look at:

  • The individual’s activities before the attack, including:
  • Relevant information from his time in Australia;
  • His arrival and residence in New Zealand;
  • His travel within New Zealand, and internationally;
  • How he obtained a gun licence, weapons and ammunition;
  • His use of social media and other online media; 
  • His connections with others, whether in New Zealand or internationally; 
  • What relevant state sector agencies knew about this individual and his activities before this attack; what actions (if any) they took in light of that knowledge; and whether there were any additional measures that the agencies could have taken to prevent the attack;
  • Whether there were any impediments to relevant state sector agencies gathering or sharing information relevant to the attack, or acting upon such information, including legislative impediments, and
  • Whether there was any inappropriate concentration or priority setting of counter terrorism resources by relevant state sector agencies prior to this attack.

This is all about the admin. It does not ask the “why?” and the “how do we eliminate the appeal of this type of nihilism or anarchy?”

Already the event has been appropriated for political ends – for example by those who have long wanted to vilify and suppress “hate speech” (beliefs and views they don’t like).

The history of terrorism, over hundreds of years, shows the relative failures of  official suppression measures (police, surveillance, lists of forbidden organisations, use of informers and other state apparatus). Countries that have relied mainly on  force and policing have  created recruitment conditions for permanent violence (albeit low level if the policing is effective).

Countries with our inherited freedoms instead became unfruitful soil for terrorism. Trusted leaders confidently informed and engaged a trusted citizenry. The mass of people trusted that political processes would work, according to the ground rules, even if they bitterly mistrusted some groups in their midst. They may have disagreed profoundly on some things, but they united against violent politics. In our countries terrorism became largely “unthinkable”.

Extremism has an undeniable appeal to idealists. It sometimes has intellectual seduction. In high trust countries those temptations are directly confronted. In genuine free speech societies people were  equipped by frank public debate, bold literature, evocative theatre, and traditions of intense religious and academic disputation, to refute arguments, to expose, exclude and isolate would be killers, and to suck any honour or drama out of their  status. They were not told the obvious lie “we are one” or that they must respect those whose values or culture they detested. But they got the message from every quarter – we will all unite against you if you try violence.

To do that now in New Zealand, to understand and to denounce and mock and neutralize  the killer’s melodrama we need to know that our leaders are not taking advantage of  our ignorance. We need to know that they are not exploiting the situation to seize more power for their own causes.

A trusted Royal Commission should therefore have been charged expressly with fully exposing the killer’s political motives, particularly the parts which could entice other unhappy young men to similar views. It should have been asked to explain how best to rebut and to discredit them.

And those motives, or at least the killer’s own grandiose view of them are set out in clear, painful detail in the now hidden manifesto.

It is faulty logic to think that because the killer found it physically easy to prepare and carry out his “mission” here, if we only make the same mission harder we will prevent a recurrence.  Generals fighting their last war. Dedicated terrorists/anarchists, willing to die or spend life in prison to advance their political agenda, have always found a way, be it arson, bomb, gun, vehicle, plane, poison etc.  Even in highly militarised police states.  Focusing solely on his particular “ways and means” – preparations, materials and communications – gives ample opportunity to advance current political agendas, but may do little to make anyone safer.

There is good research to show that guns are not the most deadly terrorist tool. Bombs are more effective. Yet already the NZ public have been diverted (as it is clear the terrorist intended) into debate over gun licencing as if the law change would have affected his ability to achieve his ends. His manifesto shows his awareness that explosives would normally be used but he chose guns to generate just the government reaction we have seen.

I do not believe that the Chief Censor’s decision to suppress the manifesto was a conspiracy to allow a free run for the politically opportunist gun law move. But it will most certainly be fuelling conspiracy and “outsider” views among the types that were never going to respect the gag.

The aim of terrorists/anarchists is to provoke Government overreaction, of precisely the sort NZ may be moving towards, to raise the consciousness of their chosen “oppressed”.  Sometimes they succeed in that (anarchists, communists, ISIS), sometimes the “oppressed” aren’t interested and they fail (Manson family, Red Army Faction).  But the unfortunate truth may be that there is no reliable method of preventing or protecting against these low frequency attacks whilst their political motivations remain unexamined and unanswered.

If political motivations are not examined carefully and honestly, the Royal Commission may bog us all down in crying over spilt administrative milk, hind sight wisdom and opportunities to settle political scores.

 

NZ’s right to bear arms? Firearms as a Treaty taonga.

  • April 4th, 2019

When the Treaty was signed, pu and tupara (muskets and double barreled shotguns) were among the most valuable of all taonga under Article 2 (if it really does go beyond the real property interests listed as the New Zealand courts say). Article 2 assured the chiefs and all the ordinary people of New Zealand that they would have undisturbed exclusive use and possession of their taonga.

So if relations between Police and (rural) Maori break down, it is inevitable that some Maori will assert a Treaty right to be free from confiscation and possibly even licensing for firearms. Urban judges from leafy suburbs will look for some sophistry to reject that claim both in law, and morally. But they should not underestimate the power of a strong view that authority is wrong allied to a wide belief in historical right. We have seen that repeatedly. Myth becomes political reality when enough people believe the myth.

The Arms Act 1860 exempted Maori. I have not researched the history, but I suspect that reflected both practical common sense on enforcement, and recognition of a Treaty assurance of Maori rights to retain pu and tupara. Under the so-called right of development in Treaty jurisprudence, that would now extend to whatever is the modern equivalents (in relative effectiveness to other weapons?)

I raised this possibility in my last minute submission to the Select Committee. I imagine there will have been many, judging from the latency on the Parliamentary website template for submissions.

Irrespective of the strength of the possible treaty argument, a heavy handed law change that rural people see as unreasonable could have a high price.

I have been a hunter for 50 years. I have a large rural property. I know hundreds of fire-arms users. I was unconcerned by a move against genuine MSSAs and large capacity magazines. But the Bill goes much further.

Parliament will be largely unaware of the level of informal borrowing and use of firearms in rural communities, particularly among Maori, that occurs with indifference to current law let alone what is in the Bill.

I can attest from personal knowledge to the degree of non-compliance with law on registration of vehicles, and driver licencing. There is similar non-compliance with gun owner licence requirements.

I believe that the Police wisely avoid interfering where they feel there is likely to be no harm done. And with positive relationships, unless forced to act, they get cooperation and information from families that would be at risk if there was vigorous inspection or enforcement.

But Police will have little alternative but to enforce the new law, though thousands of gun owners could decide to ignore it, or worse, to hide their guns, or to offer them to relatives or others who will be willing to ignore the law change. Those firearms will become invisible, whereas at present, the Police can expect reasonable frankness about them.

A general problem when censorious children are elected to govern

I see this issue as yet another where the urban ‘woke’ have utterly tin ears.

New Zealand has avoided many irreconcilable political fights over competing values. Now an ignorant generation are looking for ways to anger their opponents by deliberately kicking  sleeping dogs. Wise politicians pick no unnecessary fights that focus people on differences instead of on values they share.

Gun law has not been a tribal political issue here. My Select Committee 17 years ago reached a cross party consensus. But it is a badging issue in the US. So our “progressives” start the same chants to ape their US betters. They want to stick it to gun owners to show who is in charge – to anger “deplorables”. Whether the changes have any connection to a problem or a solution is immaterial to them. It is not so much ‘virtue signalling’ as IFF – identifying friend from foe.

From the same impulse they are trashing our 50 year old tacit deal  on abortion (‘we’ll pretend we have a law against abortion and leave the issue alone, if you too pretend the same”).

They look for any issue they can to stick the coercive state’s fat finger up the nose  of Christians – while excusing the ghastliness of Islamism, again to ape their US models.

They ended charter schools out of similar vindictiveness, thereby ensuring that whatever Hipkins does now in education will be reversed when he loses power.

And on free speech and so called non-binary gender and many other ‘me too’ (in its original sense) progressive causes their language, their solutions and their reasons are entirely derivative.

A consolation is that they are cementing their distance from the ordinary working people they have long scorned but claimed as the objects of their sanctimonious “altruism”.

What is going on at the FMA? {updated 11 April}

  • April 4th, 2019

My former firm, Chapman Tripp have reported briefly on what appears to be an open and shut insider trading case.

The criminal charges filed against Mark Talbot by the FMA in October 2017 have now been aired in the Auckland High Court, with a guilty plea on one charge. The New Zealand Herald has reported that a broader settlement was reached, although FMA has yet to confirm details.

When will we know why the FMA settled? [10 April – the FMA has announced a settlement with further payment that appears to me to impose a sensible cost for the conduct][

Sam Hurley’s Herald report offers detail that is even more puzzling.

Talbot was VMob’s virtual CFO. He knew of a valuable pending contract before it was announced to the market and procured an associated company to buy a million shares. He communicated with the Chairman of the company about more share purchases without disclosing the purchase made, and appeared to accept the Chairman’s proper and inevitable advice against it.

It is astonishing that a partner of Deloitte had such little self respect and concern about his ethical reputation to even raise the possibility of purchase in the circumstances, let alone conceal an existing purchase. So why has the FMA dropped insider trading charges, leaving only a charge of failure to comply with ownership disclosure law?

Almost as disquieting is the Herald report quotation of an email from the Chairman, referring to lawyer Sean Joyce, a VMob director.

It reads:

“I have discussed with Sean Joyce [VMob director and a securities lawyer] the requests you both have made to purchase shares while the price is low,” the email read.

“While technically, the purchase window is still open until the end of August, you are both insiders and aware of the potential large deal with McDonald’s in Japan. Given this deal has the potential to close within a couple of weeks, neither Sean nor I consider it is wise for you to purchase VMob shares until the outcome of the McDonald’s Japan deal is determined and (if successful) announced to the market.”

I hope that the word “both” I have bolded does not mean that Mr Joyce was also seeking clearance to buy.

[I’m told he did not] The “both” was Mr Talbot and some other party. What kind of ethics climate would allow Talbotto even think of approaching the Chair to seek clearance?

[ 10 April – The FMA has now partially explained what moved it drop insider trading charges? It is unfortunate that they were not ready to announce it at the same time as the useful court reporting of the nominee disclosure law breach]

I’m reminded of the bizarre conduct by the Securities Commission in not pursuing the Chair of Fletcher Challenge for open and shut insider trading in the 90s. It was left to me and Roger Kerr of the NZ Business Roundtable to take private proceedings, in disgust.

The Securities Commission tried actively to impede us. We had to get a court order against the Commission, to get access to the evidence they had. We were lucky to have Forrie Miller J as the commonsense judge. Eventually the defendant settled. It cost him over $700k for his $50k profit.

I have always been puzzled by the law change that followed, where the Ministry of Justice promoted an amendment to remove the power of private pursuit for insider trading, at the expense of the company. That possibility was included in the law at my urging, precisely because I knew that regulators are so easily deflected, especially with high profile defendants.

Our case fully reimbursed the company for its legal expenses as well, though we found the company’s lawyers to be of little help. The best help came from an upright company secretary, who was disgusted that his ethical standards might be damaged by connection to the Chair and the company, and the weak Securities Commission.

Later I had an even more shocking experience at the hands of the Securities Commission. The Chairperson of the Commission ensured that the Commission declined to investigate an insider trading complaint about someone who appeared to be a friend of the Prime Minister at the time. The trader appeared to have been tipped off about the Air NZ government rescue. Instead the Chairperson abused me for asking the Commission to intervene, and impugned the integrity of the market participant who was trying to blow the whistle.

Beware any market that relies on official energy and integrity to uphold commercial morality. The countries with long term general honesty in markets tend to have affordable, readily pursued private litigation against wrong-doers as a vital prophylactic and disinfectant.

 

Great Michelle Duff journalism on MOH surrender to witchcraft

  • February 24th, 2019

Ten years ago I recorded my dismay about the risks to women’s health in New Zealand after maternity services were surrendered to the coven calling itself the College of Midwives. It arose from my time as a lawyer involved in drafting contracts when the financial power was moved from doctors to midwives. The decision was made politically so it is too melodramatic to say I felt responsibility for what had happened,
But because the risks have matured pretty much as the worried doctors warned, I have been distressed by how long the perpetrators have been allowed to enjoy their privileges, unexposed. The doctors warned that the price would be paid in the health of women and babies.

So Michelle Duff’s expose of what appears to be disgraceful collusion between the Ministry of Health and the so-called College of Midwives, reassures me that at least some of my Dompost subscription is still going to a real  journalist.

As Kiwiblog says – MoH heads should roll for what Michelle has exposed. And the College should cease to have any role other than that of union. It should be investigated by the Commerce Commission just as opthalmologists were, for anti-competitive collusion at the cost of patients. The law has changed recently to remove a safe harbor previously enjoyed by business associations with more than 50 members.

Further, lets use the money and impetus that we might have used in copying the Aussie Royal Commission into banking. Our regulators assure us that our bankers are not the problem found in Australia where banker self interest buried honesty and duties to customers who trusted them. What about instead getting an open independent investigation into the MOH and College relationship and their subordination of mother and baby health to their common ideology.

If assured that something worthwhile could happen, we might get former obstetricians and GPs to shine a light into the dark and superstitious stable kept by the College of Midwives.

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