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
The most interesting thing I’ve seen over the last week was the beekeepers’ requeening and splitting of hives on my farm. They put fresh queens in to rejuvenate poor hives. The hives which have lost their mojo are dull and quiet and have not made much honey.I was safely suited up in white gauze. Some of the beekeepers were working with bare hands, simply flicking the sting out when an angry bee ignored the smell of smoke blown over their hands.
They take the lid off the hive, pull out each frame in turn and hunt for the queen. There are scores if not hundreds of bees scurrying over each frame and they have to pick out one bee which is a few millimetres longer.
If her offspring are too black and hostile they quickly squash her between their fingers, then put in a fresh new warm yellow queen. She’s locked in a plastic box with a sugar candy door. By the time she has eaten her way out the bees have got used to her smell, and will not kill her. She becomes their new queen.
People have always seen parallels between bees and peoples. It can be taken too far. The queen’s mate (and his friends) all die as soon as he’s done the job. Hopefully that’s a bit severe, even for our rampant feminists.
I hope we stay more like the deer that are also warming up on the farm for their raunchy party season next month. There the herd is rejuvenated by bellowing tournaments where the smartest and the scariest get to hog the most hinds.
Chief Family Court Judge Peter Boshier did something yesterday for public respect for the judiciary, but not his prospects for retirement honours.
Saying the following cuts across the justice establishment’s efforts to soften us up for even softer sentencing:
“Twelve-year-olds, many of whom are committing quite heavy crimes, need to be more accountable than the present system is able to make them,” he said.
“What concerns me about the present situation is that for every 12-year-old criminal there is a victim. It’s the victim I am more concerned about.
“I believe we have to look for ways of making victims feel the system is more accountable and more potent. How exactly we do that is a matter for others but I definitely think the present system needs to be changed because it’s too difficult at the moment to make child offenders accountable.”
Despite my applause, Judge Boshier’s perhaps unwitting endorsement of Ron Mark MP’s current bill, again raises concern about politicisation of the judiciary.
There should be a convention providing a recognised process for eliciting the views of judges collectively on bills that they will have to implement, where their experience is especially pertinent. It should let us know the range and weight of judicial opinion, but perhaps not the opinions of individual judges.
We must restore the law that defends self-defenders (See Self Defence Law above)
New Zealand prosecutors have lost touch with reality.
When gunshop owner Greg Carvell’s machete wielding attacker was sentenced, the judge took the extraordinary step of deploring the police charges against Carvell. Despite this, it appears that Greg’s trial will proceed in June.
The notes (above) were first prepared after my presentation on 1 June 2005 to the Law and Order Select Committee of Parliament, in support of amendments I moved to the Arms Amendment Bill (no 3), designed to restore some of the legal protections available to people who defended themselves, their families or their properties from criminal violence.
The original presentation notes have been supplemented with some of the questions asked by committee members.
In the result, the election intervened, the number of ACT MPs dropped from 9 to 2 and I was not one of the two. I have not been in Parliament to shepherd the Bill.
The Select Committee’s report back date has been postponed to 27 March 2007. That means it is not too late to try to ensure that Parliament gets the truth, though there is no indication of any intent to reopen submissions on the Bill.
Self Defence Law
I made parole reform a key objective of my time in Parliament. Much research found no robust evidence that it works for any of its claimed purposes, and it may not even save prison costs.
It is likely to increase the propensity to reoffend, by pandering to criminals’ high preference for risk. As gamblers, they respond addictively to risk propositions that offer chances of high pay-offs with an uncertain price. Parole is added in to their warped assessment of the low odds of being caught, convicted and sentenced to a meaningful sentence. Parole, unenforced parole conditions, the Parole Board’s dopey respect for unlikely undertakings, and the failure to punish parole breaches all tell criminals that the justice system is run by mugs. Research shows that criminals have exceptionally high self esteem. They back themselves to beat the mugs.
I also found persistent public misconceptions about parole. It is not an essential tool for inducing reasonable behaviour in prison. The law permits the Board to look only at the safety of the public. It is not a good behaviour remission, nor a reward for remorse. The Board do not hear from prison guards.
Only a small percentage of criminals who breach the trust that was once the key feature of parole are ever recalled, and even fewer serve much of the rest of their sentence. They become eligible for fresh release almost immediately.
The remedies are straightforward. President Clinton’s astonishingly successful criminal justice reforms in 1996 show the way:
- End all early release parole. Courts above all should be truthful and sentencing must be certain;
- All repeat and violent offenders should be on post release supervision for a stipulated period, including alcohol prohibition, family support and work conditions if relevant.
- Strict monitoring during post sentence supervision must show that the system is serious(random checks).
Pending the abolition of early release parole:
- Restore its status as a privilege not a right;
- Board must be satisfied of genuine remorse;
- Board must take account of victim feelings, of community expectations of a price to be paid for crime, and of the effect of any release on judicial control of sentencing. The 2002 law prevents the Board from recognising these factors;
- No appeals against denial of parole – it is a privilege;
- No legal aid to support parole applications – it is a privilege;
- Police and Corrections should regain immediate power to return parolees to custody on discovery of any breach of terms;
- Court involvement on breach only to hear parolee challenges to the recall reasons, or claims that the breach is trivial, or should otherwise be excused;
- Parole offences should automatically be treated as serious of their class for sentencing purposes, because it is a breach of trust, and shows the absence of remorse;
- Publication of full and accurate statistics on parole offending.
There should be no apologies for the reforms. The effect will be to keep the worst of our criminals locked up for much longer, and for some of them the change will mean they stay in prison for life, just as the judge has said they should.
The short term increase in taxpayer cost will be:
- offset by the reduction in the numbers of prisoners led into their offending pattern by the correct judgment that the system is easily suckered by feeble excuses, and rarely enforces the court ordered price for crime
- justified by the huge reduction in the private costs borne by victims, those who live in fear, people paying for insurance and security precautions.
I get sick of apologists saying the Board is merely doing what the law tells them to do. The Board know that their conditions are largely meaningless, and even if they were not, Corrections do not enforce them. They will have heard from the disgusted experienced probation officers who contacted me, saying they do not even report many breaches for fear of being bogged in legal procedure. They can look at the evidence of Corrections incompetence and defeat given to the Court in the Bell victim’s lawsuit, thrown out only because of longstanding Crown immunity.
The Parole Board could just accept responsibility and refuse any more doubtful paroles until they know the system has integrity. Employers or building owners would not escape an OSH or Building Act prosecution for repeated injuries from a simply avoidable hazard by saying that it was someone else’s job to warn the victims, when they know the warners only work part time, and often dont bother. A judge would quickly tell them it was their job to assess the risks they create in the world as they know it to be, not the way it theoretically ought to be.
The abolition of parole will be worth the taxpayer cost if it results in just one of many changes we can expect, for example if careful parents again let their children walk to and from school, as our parents and grandparents did when serious crime was less than 10% of current levels.
Frank Haden (David Farrar)
With Frank Haden off his keyboard I fear extinction in this remnant of Gondwana of a species that was once the symbol of media freedom, and its justification.
Warren Berryman’s funeral first set me worrying about losing this vital part of our intellectual ecology. Among the mourners were many journalists. None seemed likely to fill his shoes, though many had the requisite expertise. A number, foremost Jenni McManus who was there of course, had the qualities. But there is a flavour difference in Jenni and almost all of the other contenders.
As a select group they have technical proficiency, wide knowledge, courage, unpredictability, and zeal. Some retain the transcendant committment to the values of journalism as the profession there to tell the story, irrespective of personal views and costs.
But I will risk saying it. With Frank falling silent whose work will carry the distinctive flavour of testosterone bellicosity?
We need public tournaments. We need the testing and learning that emerges for the rest of us from the struggles of those who value combat for its own sake. We need the civilised sheathing of swords that can be a feature of male jousting, as they enjoy the company of their adversaries afterwards. I venture that it is rare for women.
The crusaders for truth, our print jounalism defenders against political correctness, are now almost all women. Rosemary McLeod, Fran O’Sullivan, Deborah Coddington and a following generation of younger women are vital, but I think we lose something important when we do not have as well deeply experienced, cynical but impassioned old male campaigners.
Trevor Mallard is right. His stadium push did encounter a dismaying lack of vision. Auckland should have been easily able to afford and build the stadium if indeed it was a better scheme. It is stupid to waste $400m on a site that can’t be more than a glorified suburban footy ground, if instead Auckland could have created a Collosseum, a focal point for a city desperately in need of one. The Minister should feel despair at the power of the naysayers, the miserable whingers who look only for obstacles and reasons not to do things.
But he too should direct his frustration where it can do something constructive – against his drippy colleagues, the people who have empowered the whingers. You’ve created this culture Trevor. You gave us the constitutional barbarity of local government shackled only by law requiring “consultation” (dominated by the drones who have nothing better than politics to do with their time), the RMA’s nimby’s charter, which has half a million Aucklanders sitting in traffic jams every day, and poisons neighbour against neighbour (by tempting them to interfere with any plan to change the status quo next door).
You’ve been caught by your own trap Mr Mallard. If you had been raging about ERMA or the new Buildings law, or OSH liabilities or employment law that frightens small businesspeople out of giving risky looking employees a go, if your frustration was about the Auckland infrastructure paralysis, I would not have thought it so funny when the guy on the plane from Auckland referred to you as ‘Marcos’. The sudden focus on a stadium reminded him of his years in Manila, when the Marcos pair used their dictator powers to fast-track art gallery,theatre and stadium projects while the power flickered out every day and traffic jams blighted the lives of the millions who would never go to an art gallery.
Right sentiments Trevor, wrong target.
“Its left us stumped really” – the response of Stephen King, founder of the Waipoua Forest Trust, when asked by Sean Plunkett on Morning Report this morning why vandals had cut down iconic kauri.
Business should ignore the call to ban "no win no pay" agreements by lawyers acting for claimant employees. Contingent fee arrangements can be the only assurance of justice for poor people who have been wronged. There is a simple principled solution to target "no win no pay" lawyers who foment unmeritorious grievance litigation.
Full costs against the loser would do it. If beleaugured employers knew that they were not guaranteed to lose (in time and costs) even if the claim proves spurious, they would not pay the legal standover artists just to get rid of the claim. That principle should apply in all areas. Justice is not done when the person in the wrong can leave the innocent defendant gravely out of pocket.
Pusillanimous NZ judges have thoroughly eroded that ancient principle. NZ is halfway toward the US position where losers don't pay the winner's costs. US law allows lawyers to blackmail settlements out of hapless defendants.
There are better ways to stop crooks and dud workers from abusing employment law. The first would be to end the idiocy that puts the ritual intracies of dismissal process above the merits. Another would simply restore respect for the adult human right to agree on your own terms of employment and to enforce them. For example, the ban on probationary periods deprives the unpromising employee of a fundamental human right – to ask for a chance to try-out for a probationary period. The anxious small employer's freedom of association is negated when she can not stipulate for a trial perod.
New Zealand's employment lawyers profit from a disgraceful system. The best way to limit their extractions would be to dump the laws they exploit.
Michael Chaney, President of the Business Council of Australia last week remarked on Australia’s new appetite for business risk. That national self confidence now strikes kiwi visitors. Chaney linked it to superannuation savings.
Given the sorry contrast with New Zealand, and legitimate worries about ‘Working for Families’ deliberate fostering of welfare dependence, our next election will surely star arguments about exactly how, not whether, to copy Australia’s compulsory superannuation.
National should be careful lest it is forced to eat criticisms of Kiwisaver. I’ll wager that Kiwisaver becomes the base for compulsory personal savings accounts, even if only in cargo cult imitation.
Here are extracts from Chaney’s reflections:
”A SIGNIFICANT change is occurring in Australia…
Instead of being risk-averse and inward-looking, we
are more accepting of risk and more confident we can meet the challenges of
competition. Rather than waiting for others to provide, Australians see
themselves shaping their present and future…
I can’t help feeling that an important factor has been the dramatic shift to
the Australian as shareholder. Twenty years ago, when the Australian economy
was really struggling, it would have been hard to believe that in 2006 more
Australians would own shares directly and indirectly than in any other
country except the US, where the number is comparable, at more than 50 per
cent.
Every morning, millions of Australians turn on the television or radio to
listen to the latest market reports…
It all reflects a growing understanding and appreciation of
what it actually takes to achieve success and prosperity…
It’s also embedding a mind-set in which confidence and security in ourselves
and our place in the world has become a quintessential part of the Australian character”.
Despite New Zealanders’ lack of that owner confidence I see signs of promise here too. Instead of routine tall poppy slashing there has been a striking absence of nastiness about the sudden wealth of our young business heroes. Setting aside worries about offshore control of Trade Me, Cafe L’Affare, Kathmandu, 42 Below etc. the tone has been almost universally congratulatory. On radio talk-back “good on yer mate” has displaced the mean-spirited anti-rich envy of a few years ago. Could it be that New Zealanders are ready to end the reign of envy-driven politics?
Last Thursday evening (26 October) I attended the Government launch of another shipful of worthies in defence of the Establishment’s failed “no fault” criminal justice ideology. The Ministers of Justice and Corrections left no doubt about the role they see for the group. It is “Christians to our Rescue”. Under the chairmanship of Sir Paul Reeves the “Rethinking Crime and Punishment” project is to repel the “punishment brigade”. Well-meaning Christians recruited for the task include the Salvation Army, Kim Workman’s Prison Fellowship, and the Rt Rev Dr Anthony Dancer for the Anglicans. I wonder if the PM knows that Greg Fleming of the dreaded Maxim Institute is there. I saw no Brethren (whether exclusive or not).
Of course, according to the Ministers, it will explore more effective “interventions” for criminals, and ways of reducing their “poor decision making” and “inappropriate responses”. Strangely nobody mentioned good or evil, or even right and wrong. The project will discuss ways to avoid more “locking up”. It will have money to hand out.
Garth McVicar of Sensible Sentencing should not expect any. He has probably done more for the ignored victims of New Zealand’s foulest crimes than anyone else, but he was mentioned only in mockery. Ministers offered the obligatory acknowledgement of “serious problems” but not the slightest indication that they might have any personal responsibility. Any smelly doubts that might have lurked in the minds of the gathering were well sluiced with self-congratulation for “programmes” and “efforts” and “projects” with impeccably good intent.
I contrast the bombast of that smug gathering with the sincere lament for our lost innocence from the well-known British prison psychiatrist, Theodore Dalrymple. He recently toured New Zealand with a series of thought-provoking lectures and interviews. His impressions of New Zealand appeared this week in Hawkes Bay Today – EXPERT’S VIEW ON CRIME: Casual reaction to criminal brutality
.
I helped organise some of his meetings, including a debate with Sue Bradford MP. The civility and humour in that event delighted both her supporters and those drawn by Dalrymple’s wonderful esays in the Spectator and in numerous books. His answers to questions revealed a pragmatic conservative, not the “free market” idologue Sue had expected.
I particularly enjoyed another chance to dine with him. He is amusing and easily amused. His heartfelt anguish about criminal justice policy is not the preferred contemplation of a natural grouch. He is persistently gloomy on that topic solely because there is so much to be gloomy about.
Our opinionators decided long ago that the complete failure of left liberal theory ( “if we could just be nice enough for long enough to criminals they would be nice back to us”) should go unremarked. They try to shun as “rednecks” those who would connect mounting vile crime to the idiotic policies of the last thirty years. Respectable intellectuals are supposed to be passionate about the evil of those who might damage an urban tree, or try to replace an “iconic” building. If instead you worry about Police figures for last year showing that around 4500 more New Zealanders were bashed, raped or robbed, than the year before, you will be held altogether too gloomy and boring.
Dalrymple found no reason to turn Pollyanna in New Zealand. We are unhappily similar to Britain, having crashed from ranking among the most safe and civil societies in the world to being at the bottom of the Western class.
I believe all is not lost. We could turn the trend around quickly. The remarkable low crime figures for New Zealand and Britain up until two generations ago were not mysterious, any more than the transformation of Singapore from a high crime society to a low crime society in one generation. The recent successes of President’s Clinton’s criminal and welfare reforms in the US stunned only the defeatist intellectuals, and the criminologists and other experts of the liberal establishment..
It simply requires a consistent message from every relevant institution (Courts, Police, welfare, prisons and probation service) that says crime is not trivial, it is not condoned, the law will mean exactly what it says, and that crime will cost the criminal much more than it is worth.
EXPERT’S VIEW ON CRIME: Casual reaction to criminal brutality
Hawke’s Bay Today – Hawke’s Bay,New Zealand
But even if I had not been invited to New Zealand by the Sensible Sentencing Trust, I would have been alerted by reading the daily press to the existence of a …
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