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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
The DomPost’s massive coverage of Sir Ed’s life is just right. It is a celebration, not a maudlin pretence of sorrow.
What a relief.
On waking to H Clark on radio claiming to be “shocked” by our “profound loss” I feared that my country might be heading into the hysteria of mutually induced grief, like the Lady Di aftermath for Britain. The day came right when I heard John Banks saying his life was “not lost, but a cause for celebration” , and then retrieved the DomPost from the garden.
To be fair to H Clark, she found safer ground when she identified Sir Edmund’s essence as “modesty” and “humility in greatness”.
His passing will of course be a sorrow to those close to him, but the public ceremonies will only truly honour him if they reflect on what has been lost, or is being lost, when the men of his generation slip away, as we all must eventually.
That generation’s modesty was more than shuffling humility. Their modesty had in it a wholesome pride – pride in stoic understatement, in the stiff upper lip we’re now supposed to mock.
Their values were generated by demanding parents and schools, untroubled by worries about injuring self esteem, and in taking risks our young are denied by pervasive nanny laws and attitudes. Imagine the “authorities” condemnation today if a climber came adrift in the kind of practice young Edmund put himself through. Cycling alone from Blenheim to the base of Tapeunuku, climbing it and cycling back, without rest and all in gear less specilalised than today’s requisites for an hour at the gym.
I hear that the Hon William McLeod (Bill) Wilson QC has been promoted to be one of the six judges of the Supreme Court. If true that is welcome news, and a good appointment by the Attorney General, though the anxious rumours that the Hon Margaret Wilson or Sir Geoffrey Palmer were about to fill the slot always seemed far-fetched to me.
Bill Wilson presents as practical and down to earth. And that is how he is judged by clients and those who know him closely.
He had very wide experience before his appointment directly to the Court of Appeal earlier this year. He’s taken cases and given opinions and conducted inquiries into so many arcane corners he could tell many non-lawyer experts things they do not know about matters they think are their mystery alone.
I understand he has no reason to be humble about his intellect , yet he is.
He should be a steady influence on the Supreme Court, looking for commonsense decisions, though the history of Supreme Court appointments around the world says – do not be surprised by anything.
On the other appointment said to have been made – the replacement for Bill Wilson on the Court of Appeal, inside opinion will be more reserved or mixed. Also a very decent well liked man, and very well read, High Court Judge Baragwanath’s elevation to be one of the six permanent judges of the Court of Appeal will ensure more attention to his literary flourishes and sincere goodwill. But the workhorse judges carrying the burden of keeping sensible judgments flowing out of that court may be discreetly anxious.
Wearing a PC heart on his sleeve may have been career enhancing recently, but any indulgence in emotional judging at appeal court level tends to confuse and complicate the law.
Let’s hope that Justice Bill Wilson will not surprise, and that the hopes for Justice Baragwanath are justified.
Has the Solicitor General a secret interest in not convicting any “terrorists”?
My last post on this topic urged the Government lawyers to fight, only when the defendants raise it, the argument that the Fairfax pre-trial publicity prevents a fair trial. Now he must presumably argue their case. How will his lawyers argue to the contrary when the Arms Act charges are heard.
Can he later argue that the publicity is not prejudicial when his prosecution of Fairfax presumably depends on that view? Or has he got other ways of alleging ‘contempt’?
Before anyone raises my own inconsistency, I resiled in the 2 December post from my earlier acceptance of the inevitability of prosecution, on considering the bigger picture.
PS Kiwiblog now has a good comment string on this topic
| It is hard to imagine a more eloquent editorial than the following from Hawkes Bay Today:
“Cabinet Minister Trevor Mallard had a day from hell yesterday. He was convicted of fighting in a public place and then forced to make a humiliating apology to a public servant he had accused under Parliamentary privilege of incompetence.
Also yesterday, Mr Mallard, along with his 62 colleagues, voted to turn the Electoral Finance Bill into law.
It is ironic, but not surprising, that Mr Mallard should be judged more harshly for a bit of old-fashioned thuggery than for his enthusiasm for the bill, whose success made the day far blacker.
Many readers, listeners and viewers must have found the interminable debate throughout the bill’s stages tiresome, its detail arcane and its effects remote. |
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| The Electoral Finance bill has been a bit like the risk of an early death for the committed smoker: It happens only to other people.But it is no less a self-deception because no one can be immune to the new law’s effects. Even if we are happy to pay for Labour’s Christmas present to itself, which means taxpayers will keep it and its supporters in power; even if we are prepared to believe a weird religious group is more of a threat to democracy than hypocrites who legislate for personal gain, some must gag, surely (and literally) on the law’s intention to make it much harder to oppose the Government by regulating political debate. It’s a victory for shroud-waving, paranoia, envy and deceit. It gives power to the parties and to hell with the people. It says that if you can’t win by fair means, then make the foul lawful.
It has all been a telling illustration of how immune politicians can become to adverse public opinion that they can treat those to whom they should be answerable with such arrogance.
Having none themselves, they fail to recognise principles in others and scorn any who raise a voice in dissent as being driven by greed and self interest. By their definition it is not possible to defend democracy or to be capable of moral rectitude without agreeing implicitly with their own political ambitions.
Lest we forget? The Government and its fellow travellers are banking on it.
They deserve nothing more than to be proven wrong next year by voters keen to repay their contempt in spades.” |
This advertisement Electoral Finance Act will run in Wellington’s Capital Times weekly giveaway arts newspaper over the next two or three days.
It is a set of “postcards”. It was prompted by planning to be National’s candidate for Wellington Central. I realised that the $20,000 limit for the whole of election year would let me post one postcard to each elector, once, and one more to half of them, in the whole year.
For practical purposes that prevents communication directly with electors. Accordingly my communication will be have to be through the media filter.
Perhaps for this one election that filter will not be hostile. The New Zealand Herald’s stand against the Electoral Finance Bill is promising. But it is absolutely wrong that electors should be forced to rely on the fairness and adequacy of journalists. None of us wants the election skewed or decided by a few journalists.
The risk now will be that instead of canning this terrible law, its authors will try to fix this consequence by amendments to direct and limit media coverage, and to force uncensored publication of their propaganda. Control of the media would be a logical extension of their rhetoric against the EB and against paid advertising.
I’m encouraging people to join the party of their choice…hopefully National so that we can toss out this arrogant government. But I defend anyone’s right to vote and join whatever group appeals most. New Zealand need parties to have more members.
National, which once had over 10% of the population, is still by far the largest so it has thousands of “normal” people. But many parties are now homes primarily to the kinds of weirdos who like the idea of telling others how to live their lives, especially others who would never listen to them in real life. They get their revenge on normal people. Because sensible people have ceased to join these parties, the weirdos choose who is elected to make the rules for us all.
National is an increasingly active party. Do join as every member will count. If you are in Wellington Central that’s even better as it will help me with selection. Go to www.national.org.nz and click on Get Involved/Support National or go directly to Join National
The Parole Board has just released a legally defensible, but morally wrong decision to let Peter McNamara out on parole after Christmas. Previously they made a morally correct but illogical decision to turn down his application for home detention. They kept him in prison for a 1989 rape until now, when he’s served a bit over 2 years 6 months of the 7-year sentence.
The issue was whether they could take into account the outrageousness of gutting a 7 year sentence, to refuse to release him, when he is not a threat to anyone in the community. They faced an impossible task. The government tried to write the law to obscure what they were telling the Board, but the original intention was clear -“it’s not your business to worry about justice, you must let them out if you feel they are not a risk. If that makes a mockery of sentencing, and insults the victims, that’s not your problem”.
Select Committee changes confounded that simplicity. For example the Board is told to consider the interests of victims, but Labour and the Greens would not allow those interests to be defined or give them equal weight with the instruction to release. I do not apologise for the resulting confusion.
The Board is bound by the Court of Appeal’s decision in Reid et al v New Zealand Parole Board (CA 247/05) …“although considerations of general deterrence are relevant when setting the nominal sentence and minimum periods of imprisonment and in determining whether to grant leave to apply for home detention, they are not relevant when the Parole Board is considering applications for release on parole or home detention”.
In the decision on home detention the Board raised something called ‘personal deterrence’ and the victim’s views, and even the public concern for victims expressed in the 92% Withers petition for tougher sentencing to justify holding a man that nobody thinks will offend again.They were morally right, but the reasoning was crap.Now their reasoning is better but the outcome is wrong.
There are arguments to get around the Court of Appeal decision. They could have said “we are not letting you out because it would make a mockery of justice. If people believe that court-ordered sentences are nonsense, they will feel that crime does pay, that honesty is not the best policy, that only mugs obey the law. That loss of confidence in justice, in the basic fairness of the law is very dangerous to everyone in the community.”
They could have set it out like this (for appeal proofing purposes) ” we are not trying to deter bad people, we are trying to reassure good people – to reassure them that it is worth assisting the Police, that it is correct to teach your children that crime will not pay, to show that the long arm of the law will ensure the price of crime is paid”.
They could have had good academic support. The safety of the community is dictated by the crime rate, not individual release decisions. And there is strong evidence that the crime rate is most affected by what people believe is the prevailing norm. If it is generally not done to break the rules – few do. People on the crime margin are sensitive to what appears to be the prevailing climate. They should be the preoccupation of the system. Every element should be driven by its influence on those who could offend but do not (in low crime societies), or can and do (in high crime societies). Our religious forebears might have expressed it simply – the system should focus on those in temptation, not those who’ve made the decision to be bad.
Instead ours is all focussed on those who have offended, and the vain task of turning them around once they have crossed the threshold. The international evidence says it is a waste of time.
“Broken windows” is the shorthand name for the theory which underlay New York’s dramatic crime turn-around. The police stopped concentrating on serious crime. Instead they enforced all the small laws (like those against shoplifting and begging, and leaping the turnstiles in subways, even jaywalking and littering. They insisted that graffiti be cleaned up immediately because it sent the message that rules do not apply. The result, in short order, was to cut every category of serious crime by more than 70% and the murder rate by 80% (in some years parts of provincial New Zealand now have a higher murder rate).
Even if they could not step outside the NZ establishment orthodoxy enough to raise those arguments I would have respected the Parole Board much more if they’d simply said to the government in the decision- “Change the unjust law. We are going to find every way we can not to apply it the way you want. We are sick of carrying the can for your dishonest criminal statutes. We will not tell the victim who is comforted by a 7 year sentence that sentencing is a calculated lie, a charade to be undone by parole” .
There is nothing unprecedented in a court or judicial body telling the poor litigants not to blame them when a law does not work, and asking Parliament to fix it.
I have often excused the Parole Board for sad cases because the law is bad. But I’ve been too charitable. They’ve never called for reform.
At the Graeme Burton enquiry they should have said ” We are ashamed of ourselves. There have been too many Graeme Burtons. We have not spoken out about the impossible law we are applying. From now on we will”.
In this McNamara decision they initially told a few insiders who can understand the code- “this law is hopeless, and we are now going to ignore it”. Now I would not let them out of the dock.
I hope this is appealed.
Every few months the Broadcasting ‘Standards Authority comes out with decisions to remind us of the danger they represent to our freedom of speech. A twice convicted drunk driver was “humiliated” by being filmed as she left court, and running away from the camera, then named.
So? In more civilized times the main sanction discouraging offending was shame.
More importantly, if humiliation is now verboten, how would any of the great campaigns of the enlightenment have got off the ground. An indispensable weapon of those who fought for freedom of speech was mockery, and exposure of hypocrisy and ignorance, indeed humiliation.
This body’s powers must be cut, urgently.
I hear that William Bell, the RSA murderer, has been seriously injured in a prison attack, apparently out of resentment at special treatment he was getting (as the longest stay prisoner).
Prison violence is deplorable. Many will feel glad Bell is hurt though though not all will admit it. That satisfaction is dangerous to the rule of law. Nevertheless I admit to sharing it, sadly, because official justice will never be done in his case. It will not exact for the victims’ families the balancing price they are owed, anywhere near the suffering he caused.
The fact that the attack succeeded is equally worrying.
Our once adequate prison system is now a disgrace. As the recent Graeme Burton inquest showed, monsters have intimidated management in prisons. Well meaning politicians have set the monsters free, by trying to eliminate over-officious or abusive prison guarding.
When prison officers lost their prompt disciplinary discretions, when every disciplinary matter can be appealed, or forced into review a power vacuum becomes inevitable. Criminals simply do not respect what appears to be wimpishness. Predictably the vacuum has been filled – by the most powerful and vicious criminals.
Uncontrollable prisons are among many gifts to New Zealand of lawyer-fools. Babbling ‘natural justice’ and ‘accountability’ and ‘protection’ they impose hindsight liabilities on decisionmakers everywhere. In practice the lawyers are seizing power from the people on the spot who have to live with the consequences.
They’re still busy neutering true accountability in schools, places of employment, and everywhere else they can inject their procedural grit.
“But MPs in those parties have to accept that they are hitch-hikers. They must laugh at the leader’s jokes, and skip in step with him, even if the leader can’t skip, or changes step without warning”.
I should have anticipated resentment (like that of Lindsay Mitchell) to my shorthand for concern about sycophancy in parties that hang off a leader’s seat. It was not a coded insult, so clearly explanation is needed.
It was not aimed at ACT, though I worried when ACT changed its policy in 2005 to focus on a seat, rather than just the party vote. As it turned out the decision saved ACT in Parliament. But there is a cost.
I watched from close range the travails of MPs in “leader’s coat-tail parties” over two terms.
I remember, for example, Ron Mark smacking himself on the head beside me after he and Peter Brown had done a tradesmanlike job throughout a long afternoon, articulating a coherent position on some Bill. At around 5pm (when the Parliamentary radio broadcast audience is augmented by commuter drivers) Winston swept in. He absorbed the debate for a few quiet minutes (without a word of enquiry to his troops). He launched a crackling speech, full of quotable derision for the idiots on the wrong side of the debate. Then he swept out.
“Silly me” said Ron facetiously. “I must have forgotten. Today is Thursday. Thursday’s the day we support the government”.
Winston had just demolished the position Ron had supported all afternoon.
That kind of highhandedness is open to a “party” leader who controls his followers by the veto he holds over who can hang off his seat. From what I heard from my Green MP colleagues they suffered the same from Anderton in the previous Parliament.
Gordon Copeland has experienced it at the hands of Peter Dunne (think anti-smacking bill), with Dunne not needing to worry about the policies dear to the parties and party voters lured into his spider’s embrace, election after election.
Sure, MPs in all parties must endure in silence contradictions and mistakes from their leaders. Cabinet solidarity no doubt offers that trying experience daily. Without that discipline a party could never govern. The people rightly worry about electing people who can not sort out who is in charge.
Absorbing vicarious crap with grace is an experience not confined to politics. Every good lawyer will have had to change step without warning, to do the best one can for a client whose mouth and mind are competing to sink him. Even when the client is blaming the inevitable debacle on his ‘idiot lawyer’, client confidentiality means that all one can do is grit the teeth and think of the consoling invoice.
But there is a healthy constraint on the leaders of real Parliamentary parties. They lead by consent. If they lose the confidence of a bare majority of their team, or test their tolerance too far, they’ll be sacked. Accordingly, there are strong natural disciplines on any temptation they might have to change step without warning. Without needing conscious thought, they will minimise the times when they cause their team to say “our mistake” for looking out of step with the leader.
I did not set out to hurt the faith of decent ACT people in their leader. That faith will no doubt strengthen as National sensibly holds close to the centre, leaving ACT plenty of ideological space for dry economics and libertarian social policies.
But without trying I can think of recent public examples of curiously idiosyncratic ACT voting. For example, I have not been able to understand the ACT vote on the EFB companion Bill that legitimised Labour use of Parliamentary funds for electioneering in the next election. It may represent high principle, or it may be a symptom of “Leader’s coat-tails party” syndrome.
Rodney Hide’s first reading speech purported to explain but left me baffled.
Many will no doubt feel that it is worth risking personal high-handedness to support a ‘leader’s coat-tail’ party. Such parties were made possible by the odd electoral design decision to allow them as exceptions to the minimum 5% party vote requirement for MMP representation.
I think it was a mistake.
I welcome the prospect of independence in Parliament offered by personal seats. But to give their holders the power to hang pet parties off those seats has been expensive. The 5% minimum was meant to prevent the Italian pattern emerging, where party fractionalisation added to the paralysis and unsavoury horse-trading associated with coalition building where many small groups are each given veto power by the need to get a 50% voting agreement.
Some fragmentation makes MMP work. H Clark has had the wit and good fortune to be able to trade potential support among the Maori Party, the Greens and NZ First. That may in turn have been possible because three way oligopolies are unstable (do not facilitate monopoly conduct -why the Commerce Commission wants to keep The Warehouse out of the hands of either of the two big supermarket chains).
If there had been only two contenders instead of three it would have been easier for the two to gang up on the government and set the agenda.
The gaming possibilities after the next election must have the minor parties salivating. For me, had I felt able to stay as an ACT member after the last election, the prospects of Ministerial office would have been greater. Experience here and overseas has seen minor party MPs with a disproportionate share of Ministerial posts.
PS
I hope there was some sound reason for the curious position of ACT on the companion bill. I understand that Rodney has shown what he can contribute to the House, with outstanding recent speeches on the EFB.
Trivial Pursuit’s birth and infancy could never happen lawfully in modern New Zealand.
As just described on Radio New Zealand, two journalists designed the board on the back of a beer mat; they spent their savings, then multiple $1000 investments begged from friends and acquaintances (highly likely to be illegal), then amounts screwed out of creditors by offering shares in lieu of payment (definitely unlawful). The year their artist was obliged to accept shares (1982) 20,000 sets sold at around $50 each without fully covering costs. By 1984 it had taken off and 20m sets were sold.
All who kept their shares were rich.
To do the same thing lawfully in New Zealand today (bank funding being unlikely because the odds of success were so low) they would have needed between $50 – $100k for lawyers and accountants before raising a dollar toward the dies and marketing materials the investors want to pay for.
My colleagues at Chapman Tripp and I have a dream – to write an opt-out code for SME capital raising that walks right past the idiotic rules that so frustrate would be business developers.
We would not abolish the monstrous edifice that is securities law. That would absorb too much wasted political energy. Too many well meaning folk have invested too much in creating it to admit that it has no verifiable net value. Too many people make their living out of ‘protection payments’ guiding businesses through its unreasoning complexities.
So our code would have an obsessional focus on ensuring harsh practical penalties for dishonesty (knowing deception) and informed consent to risk. Otherwise it would codify procedures ordinary decent people follow when they’re given free choice, not what theoreticians think they should do.
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