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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

XYZ of the year

  • December 5th, 2011

Tis the season of anointing our eminent persons.

Auckland's Watercare Services has taken the accountants' prize for the top public sector annual report.

The Watercare award reminds me to try to find out what is going on in the waste and water industry . I understand that Watercare now feels big enough and strong enough (and presumably well enough connected) to weaken Water New Zealand, extending to limiting participation at the organisation's annual conference that may have affected even some of its consultants.

There may be a simple explanation, but I hope it is not just the monster enjoying flexing its muscles.

A couple of weeks ago I enjoyed the DomPost's Wellingtonian of the year dinner. I was mystified by the judge's decisions in some categories (and in previous years as recorded in the programme). Odd that Lloyd Morrison does not feature, but even more odd are some of the names that do.

On Wednesday I enjoyed the engineers' dinner. They are different from lawyers and accountants. To me the projects that made the finals were fascinating, but there were no detailed photographs or videos, and no explanations of the novel or outstanding elements. But much more memorable to me were the genetics on display.

Maybe the  influx of young Asian engineers now underway will change things, but from my observation at the dinner,  if your kids are short, fat, female and not red-headed, you might tell them the odds are against becoming top engineers.

I'm a little above average height for a male, but I was one of the shortest men in the banquet hall. The room was full of tall to really tall men, few fat. And the recipients of the individual awards seemed to be at least half gingas, or at least auburn. 

Fertile ground for some doctoral research, and then of course Human Rights Commission intervention.  Of course the explanation could be that engineering businesses send not their top people to these affairs, but those they can best spare for the evening. But that leaves the same problem. Why are they all tall. 

Goodbye Sarajevo and Canterbury University

  • December 2nd, 2011

Dr Rod Carr on Morning Report this morning fighting for his university reminds me of yesterday's lunch with the Canterbury Alumni Association. Cathy is the alumnus, not me, but any excuse for a free lunch (on Cathy).

The lunch gathering heard two beautiful women background the the writing of their book, Goodbye Sarajevo. As an author promotion it worked –  now I will have to buy the book. But it also worked for Canterbury University.

The two authors more than repaid the alumni association favour of arranging their audience, with the fervour of their gratitude to the university, and to New Zealand. 

They highlighted the shock of a familiar civilised normality suddenly disintegrating to a mediaeval siege, with an average 300 shells per day landing in their city for the long years of the siege. I asked them whether that experience, and then being in Christchurch when it disintegrated had led them to a permanent sense of impermanence, that normality is fragile.

They disagreed with the premise of the question. Instead, they believe that no one should assume a  'normality'. The world will always shift unexpectedly so one should just look forward, determined to make the best of whatever circumstances throw up.

They were also refreshingly uncomplicated in answering questions about the geo-politics of the Balkan war. They were deeply grateful to Bill Clinton for his decisive intervention, brushing over dithering Europe, and the pusillanimous UN. They were scathing about "peacekeeping" when there is no peace, and an arms embargo that just meant their oppressors had a free run.

Political pieties

  • December 1st, 2011

Watching the notorious cringe-making clip of David Cunliffe's stump speech I felt sorry for him. There are so many rituals one must observe to be safe from media slaughter as a politician. One must ooze caring. Unctuous cliches help. There is so much pretense that over time politicians lose their internal sensitivity to humbug. The internal compass that tells you when you've crossed the line loses calibration.

David's bro-speak is on that continuum, just a little further along from Helen Clark's special Labour party meeting whining kiwi accent, that she never had in State Dinner speeches with foreigners, for example.

I could not do most of that.  The ritual pieties of politics stuck in my throat. I respect words. I despise myself when I find myself using them carelessly, even if they are just empty social exahanges, like "hows it going?" when I have little desire to know.

Even as a politician I was never able to use  pieties – the florid ums and ahs of convention – like "drive safely" or "have a good day" or "how's your day been" or  "god willing" or "thank God". I'd have made a poor Muslim if "Allah be praised" had to be on the tape.

And so I could never bring myself to to iinvoke the sanctified "kiwi mums and dads" or "kiwi families" or "kiwi battlers" or "mum and dad investors" or any of the other horrible cliched terms that make politicians so easy to parody.

Is Peters’ candidacy illegal

  • November 25th, 2011

Kiwiblog has a scoop. It alleges that non-compliance with the Incorporated Societies Act may have made Winston's candidacy invalid under his party's rules.

I do not have time to reach any concluded opinion on that matter now. There may be plenty of lawyers looking at the issues next week.

Irrespective of the legality of the candidacy in terms of their constitution I doubt that Mr Peters will want any close scrutiny of his list selection process. An absurdly undefined provision of Electoral law requires that the process be democratic.

It will be interesting to learn the details of NZ First's democratic process.

Be grateful the week of loathing has not worked

  • November 25th, 2011

Two weeks ago I predicted a simple, nasty last week in the election campaign. I expected Labour to lead it, with Mana and New Zealand First joining in like dogs at a tethered goat. I thought it might prove irresistible to the Turei/Delahunty red strand of green even if it did not fit Russel Norman’s new-model constructive Green strategy.

I expected the campaign to exploit one of the oldest themes in politics, probably the most persistently successful tactic for gaining power, but one of the least successful as measured by the prosperity and happiness of the countries where it is the dominant strategy.

The most powerful political strategies align with universal fears and temptations. All would-be leaders must offer certain protections. They must be thought capable of defending us from outsiders. They must be thought loyal, without allegiances or interests that could lead them to sell us out, and they must be able to enforce our consensus rules, particulalry those defining fairness and what is cheating or criminal.

Inciting an "inequality" pogrom taps into all those needs. Targetting the "filthy rich" has played well for would be demagogues throughout history. Zero sum economics seems to be deeply intutitive – so for the masses there is simple commonsense in blaming wide poverty on the greed of a few. The rich are not perhaps quite as good as a genuine external enemy to unite your followers in overlooking your failings, but they are always around. And if, like Labour, you've been responsible for some of the worst policy wrong turns a country can make (socialist control of production, welfare without regard to virtue, the criminal justice theory that if we are just nice enough for long enough to criminals they will give up preying on people who don't hit back) you need some distracting scapegoats. That need is becoming more acute as voters fear that the Left's instincts could be degrading our civilisation. So Labour need to foster an enemy within to stay in the game.  If the masses can be stirred into believing that poverty is because the rich are greedy, a soak-the-rich party gets a free pass through property rights, equality before law and so many other of the institutions which protect the long hard route to prosperity.

 John Key should have been a perfect target. A rich  former money market trader who holidays in Hawai, is Jewish, and naturally has friends who are rich, seems god-given to the Left's strategists.  

 Labour's campaign video set the scene, with Damian O'Connor's characterisation of trickle down economics as piss down. Labour candidates felt their way round the theme for weeks, trying out the words. Grant Robertson played well here in Wellington describing himself as in spirit an Occupy protester.   Labour's polite billboard "make sure that not just the better off are better off" was accompanied by platform speech references to fat cats, bankers, greed, speculators, and the rich. Labour's capital gains tax policy, and GST relief fitted envy as the principal theme.

But in the end class warfare did not fire.  It played well to the party faithful, an important audience for Labour apparatchiks preparing for the inevitable post-election power struggle, but they found it was not working well enough with the critical swing voters. Instead they had to fall back on the primitive (but necessary) patriotism theme that fuels our apprehension about asset sales.

The decision to focus on asset sales, leaving inequality as a subordinate theme, reportedly disappointed some Labour warriors. Goff was helped by the Green's shift to the middle. Sue Bradford has not been there to suck up Labour loyalists. Voting for a racist Mana party to get Sue is a much bigger stretch. And there has been plenty of warning to Labour that class war still has limited appeal in New Zealand. John Key has withstood pressure from within his own party defending policies designed to neutralise the class war weapon. It has worked. Attacks on the fat cat PM have bombed with the target voters, the ordinary punters the Left believe should be theirs but secretly despise because they are not much interested in politics. The inequality campaign has not damaged John Key any more than the "H Fee" that was supposed to be Helen Clark's ' neutron bomb' at the last election and Labour's pitiful attacks on philanthropist Americans' alleged connections with National in the 2005 election.

It will be interesting to see if Labour turns perversely hard left in the next few weeks.  Envy or inequality rhetoric will work for hopefuls in party blood-letting.  It  pays to have shown that you have no heretical tendencies in civil war. The party could even promote the people who are most closely identified with the attitudes and dogma that have lost them the election.

Party insiders learn slowly from voter thumpings. I know this from experience. The hardline ACT faithful were absolutely determined to stick state asset sales down the gullet of the gagging voters, and judged potential leaders according to their willingness to say that is what they would do.  

What sort of sadistic monsters made the charging decision anyway

  • November 17th, 2011

Thank you Forrie Millar J for your commonsense and decency in discharging without conviction the poor mother whose child drowned after being  left with her 12 year old, 11 year old, and 5 year old by the pool for a few minutes.

What possible interest can the state have in adding to the misery of a mother and family who have lost a child in those circumstances.

I'm concerned too for all the kids who are now over-mothered and never have the chances my generation  had to play in ponds and pools and creeks from toddlerhood . The price we pay for the safety fetish is enormous.

Not that they will care, but Water Safety New Zealand  will never get any favour from me. Their priggish support for the Police bringing of the charges is equally callous.

If only there was a party, or just one politician, standing in this election on a platform of confining the Police and the criminal law to pursuing and punishing people deliberately breaking the law.  If they could do that satisfactorily there might be some excuse for pouring resources into hunting the victims of accidental harm, but they are not.

Can a ruling party run a responsible election campaign with irresponsible opponents?

  • November 11th, 2011

Our litigation specialist at Franks & Ogilvie, Nikki Pender, reminds me that in our 2008  election  the  Labour and National campaign virtually ignored the GFC unfolding at the same time.  The election night balloons had hardly burst before the incoming Government was faced with circumstances markedly different from those forecast in Treasury’s Pre-election Economic and Fiscal Update (“PREFU”).

Track to another election campaign and we find politicians again being allowed by the New Zealand public to run blithe campaigns in the looming shadow of GFC Redux, as if it was not there. But this time the PREFU has that shadow very much in frame. Still the election lollies keep pouring out, though the PREFU would suggest we should be worrying whether there will be enough for the rent and groceries. Why, Nikki asked in notes that I've converted to this post, is the New Zealand media not hounding all parties with balloon puncturing questions?

I have no real explanation. Nor can I explain the constrast between the straightfaced reporting  of ludicrous tax and spending offers (especially by the Maori and Mana Parties) in comparison with the sustained mockery of Don Brash, leader of the only party which has consistently called for New Zealand to live within its means, lead by the man who produced the 2025 Task Force report on things we have to do to increase productivity.

Both National and Labour costings claim to be based on the main forecasts in Treasury’s 2011 PREFU.  Yet the PREFU indicates that the short term outlook is likely to be far less rosy than projected; or to use Treasury-speak, “the risks to our main forecasts are skewed to the downside”.  According to Treasury figures the “downside” would mean that NZ’s nominal GDP, cumulated over the five years to June 2016, is likely to be $35 billion lower than the assumptions on which the politicians are basing their election promises..

But that’s not the worst of it.  Even Treasury’s more pessimistic scenario assumed that Europe would be able to “manage the region’s debt issues and stabilise financial markets”.  In other words, as NZ Herald political editor John Armstrong pithily observed after the PREFU was released, “we are in the cactus if things really turn to custard in Europe and the United States”. 

 Two weeks later, and Europe is looking increasingly custard-like.  The Greek tragedy iswill struggle for audience attention now that Italy’s cost of borrowing has climbed above the 7%  assumed point of no return without bail-out assistance. Silvio Berlusconi may or may not resign;  Greek politicians can hardly agree on a new Prime Minister, let alone on the more critical issues; and Angela Merkel is reportedly considering an exit strategy from the euro

 Yesterday, a blogger on The Economist website Finito reflected on the dismal outlook:

 I have been examining and re-examining the situation, trying to find the potential happy ending.  It isn't there.  The euro zone is in a death spiral.  Markets are abandoning the periphery, including Italy, which is the world's eighth largest economy and third largest bond market.  This is triggering margin calls and leading banks to pull credit from the European market.  This, in turn, is damaging the European economy, which is already being squeezed by the austerity programmes adopted in every large euro-zone economy.  A weakening economy will damage revenues, undermining efforts at fiscal consolidation, further driving away investors and potentially triggering more austerity. The cycle will continue until something breaks.  Eventually, one economy or another will face a true bank run and severe capital flight and will be forced to adopt capital controls.  At that point, it will effectively be out of the euro area.  What happens next isn't clear, but it's unlikely to be pretty.

 How will this affect New Zealand?  Apparently not enough for the parties to alter their campaign course or their budgets.  No party has pulled any announced policy in light of this week’s developments.Yesterday Labour promised $75m worth of laptops to students over the next four years and National continued to splash asset sales cash about before it is banked.  As in 2008, it seems that New Zealanders have decided to enjoy a campaign in a parallel Pollyanna universe. 

I can understand why John Key and Bill English must remain optimistic. Jeremiahs do not win elections, especially if their competitors seem to have confined their economic education to Greek textbooks.  But when the election is over how will they defend themselves from allegations of wilful blindness in running on a manifesto based on a set of unequivocally outdated assumptions?  The truth may be that they feel forced to compete in Pollyanna land because no competitor was willing to demand realism. But a broken Labour Party will not carry much of the weight of unfulfillable election promises. This time National will not be able to claim “unexpected circumstances"..  If Europe is indeed at the beginning of Christiane Lagarde's dark decade it will look all too foreseeable with the hindsight of  a few months.

Who’s running an election on “policy” not personality

  • November 9th, 2011

Labour lit its sparklers as it opened this campaign. They earned respect. Despite jibes that they were making a virtue out of necessity in vowing to campaign on policy, not personality,  they lead with a couple of genuimely courageous announcements (capital gains tax and increasing the superannuation age).

But since then despite John Key's prominence, National has been the genuine policy campaigner.Their welfare, RMA and employment announcements are solid claims for a reform mandate in the event of a National victory.

In contrast, Labour's policy descriptions are baffling fizzers, catherine wheels on the lawn, spurting sparks in fits and starts but perhaps no longer alight. Their welfare policy (borrow more to reduce incentives to work, abandon all Michael Cullen strove for with Working for Families) , on top of their reactionary employment law promises (kick more kids out of jobs and onto welfare, reverse the probationary period encouragement to employers, back to national awards) and their criminal justice policy (end three strikes) and education (capitulate to teacher union hostility to measurable standards) are memorable mainly for the narrowness of the classes they might appeal to.

This is sad for New Zealand, because we desperately need more ideas leadership from the left. We need New Zealand versions of Hawke, Keating, Mark Latham. We need a Tony Blair in Labour to reform the schools that are producing our dreadful tail of illiterates. Labour needs a Frank Field, or at least the recognition of the validity of a left  and right faction debate as in Australia.

It seems the clean-out after this election might be needed to liberate that kind of open-mindedness in Labour. Or perhaps it will be an interparty debate, between Labour and an energised, environmentally focussed less red Green Party..

It is not that the right does not know what needs to be done in Education and Welfare.  It is just that it is much harder for Tories to reform in the social sectors, and more costly for the country – their efforts immediately trigger "class war" or "culture war". The opposition left parties can become the focus of implacable resistance, and a damaging mythology of noble defence.

Serious reform is best done by the party which the sector would usually expect to defend their special interests, as Roger Douglas did in dismantling import licensing and other restrictions that were the result of an alliance between unions and favoured businessmen. The defensive sector will pick itself up best when it knows it is futile to expect rescue.

That problem means that Tories may be more successful than the left in dealing with major  failures in business law, or taxation or defence or economic policy.

It took Clinton in the US to reach across party lines to adopt Republican policy on welfare and crime, to then preside over their astonishing and sustained turn-around in  crime and welfare dependency rates. Healthcare is a business matter, so it is not surprising that Obama has bogged down.

So the dreariness of Labour's policy "fireworks" so far is depressing, but perhaps it provides a silver lining for some, like John Pagani, who may see it as helpful for Labour to at least have another three years out of the limelight in which to work out how they will genuinely reform the welfare monster. None with any knowledge of Labour movement history would think that Peter Fraser or any other of the early heroes would defend what it has become.

There is still time for this campaign to become a contest of ideas more than personality, but it is getting very hard to see much contest with the party (National) putting up the challenge to the reactionaries (labour).

Punish crime, not bad thoughts

  • November 8th, 2011

I join Greg King QC in being appalled by National's announcement of "civil detention orders". A critical principle of our criminal justice system is that the state can only lock you up for what you are proven to have done, in proceedings conducted independently to ensure that the state does not abuse that power.

Because of the risk of abuse, we generally accept the risk summed up in the aphorism, "better that ten guilty men go free than that one innocent be convicted".

I've fought for law changes to restore sentences that mean what they say, and the end to playway justice, but never at the expense of the principles that protect us from punishment at the whim of our rulers.  Calling a detention power a "civil order" is Orwellian. Where was our Attorney General while this policy was being hatched?

I can't find the policy detail on National's website, so I'm still hoping it has been misdescribed. But from what has been reported it sounds like a sinister extension of the left/green "precautionary principle".

Worse, it comes from a government that claims to be responding to risk, but coolly rejects the most simple steps to reduce the predictable innocent injuries and deaths that follow the release on parole of most young serious violent offenders. Over 80% reoffend, most within a short period. Every such offense is a preventable offense, for which those responsible for the parole system should be held to account, just as employers are held to account for predictable work injury.

The cynicism of this civil detention policy is even more marked when compared with the government's refusal to countenance  a much more principled way to protect the public – ending concurrent sentencing and restoring cumulative sentencing.

Most serious convicted criminals probably serve no time for most of their crimes, because they are commonly tried for multiple offences, but serve only one sentence, for the most serious. 

This policy is coming allegely to keep people like Malcolm Chaston (killer of Vanessa Pickering) out of circulation when their sentences end. Yet Vanessa's mother Rachel tells me that when she consented to meet Chaston on some mad "restorative justice" initiative, she did not recognise him.

At taxpayer expense he has had his distinctive face tattoos removed. What on earth is the government doing, removing the kind of distinctive markings most likely to warn people to avoid him. If anything they should be looking at ways to make a distinctive brand or warning a routine part of the sentence for irredeemable predators, not giving them the privilege of hiding their own past from their next victims.

Is David Cunliffe nasty?

  • November 6th, 2011

Maybe, but not on the evidence of his comment about the Hon Judith Collins.

Cameron Slater and David Farrar jumped on the Hon David Cunliffe's throw-away insult to Judith Collins as an instance of the nastiness that  just leaks out of Labour, despite them all being on best behaviour for the election.

I agree about the left tendency to nasty personal attacks. From experience their proportion of primarily nasty people is much higher than the right's but to me the offence taken at David's over the top "insult" is PC nonsense. The left deserve the trouble, because they are the quickest to manufacture offence out of misinterpreted humour.

But I can't agree that the comment alone justifies the conclusion about David Cunliffe. I worry about anything that entrenches hypersensitivity and diminishes the likelihood of jokes to lighten the election load.

Mr Cunliffe no doubt now regrets leaving himself open to the kind of faux outrage that is par for the course when a joke can be placed into one of the verboten modern sin categories. There will be sustained media interest in anything that hypersensitivity can treat as racism or sexism, for example. But not agism it seems from the media open season on Don Brash. 

In this case the "insult" was so plainly untrue that it is simple hyperbole. If the Hon Judith Collins was one of Parliament's genuine gargoyles, if she was known to be goofy or socially unappealing, then there might have been room to argue that Cunlirffe's description was genuinely cruel. 

But she is neither. I've never found her to be anything but attractive and pleasant – business like – but pleasant. So to me David's "insult" was a mistake and possibly revealing, but foolish more than nasty.

  

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