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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

Criminal Procedure (Reform and Modernisation) Bill

  • November 15th, 2010

Kudos to Simon Power for the courage to try slaughtering so many sacred cows at once. Sincere members of the profession will have horror predictions of injustice with much less provocation than this. But perhaps the very size of the package will get most of it through.  This is reform on the Roger Douglas model – all fronts at once, so that the opponents of some bits can still find something to applaud. The opposition can not concentrate its resources.

I've read only the Ministerial releases so far, so my reservations may yet prove to be unfounded, but it is disappointing that the expectations are still so meagre. With all this change, it is hard to feel things are being transformed if a High Court jury trial average time to completion is to drop less than 20% from the disgraceful 16 months to 13 months.

The criminal law industry should be deeply ashamed to think that is a radical acheivement. Why, for example, did it take more than two years to bring to trial Austin Hemming's murderer, Paul Leofa Brown, who had already killed before. There was absolutely no doubt about who did it, or the circumstances. The only question at the trial could have been – 'what's your excuse'.

Any common sense system would have given him perhaps an afternoon to answer that – say a month after the arrest. Who can possibly excuse a system that kept this trial hanging for more than two years.

The Bill is complex. It does lots of sensible things. But there will be force in some of the objections. I regret the loss of the right to elect trial by jury for small but important charges on matters of principle, where judges cannot be trusted to reflect the common conscience.

I think for example, of the Hair trial, many years ago, where the cast of the musical were acquitted on charges arising from their nudity on stage, because the jury decided it was time to send a message that time was up for a ridiculous law. That was properly for them to decide, not for the Police.

I fear for the people who sensibly use a weapon to scare off home invaders. Even though plenty of people have been viciously attacked in their homes, judges still sanctimoniously condemn them for "taking the law into their own hands". Juries, on the other hand, rarely convict in those cases.

I wish that the Government had tried a more simple remedy first – just order the judges, with matrix sentencing if necessary, to ensure each sentence reflects the costs a convicted offender has put us all to, if they were needless or offensive. For example, stupid not guilty pleas or requests for jury trials (especially those changed at the last minute – like the plea of Paul Leofa Brown) should earn a substantial increase in penalty. In reality it is no different in outcome from the current more offensive practice of giving a discount for an early guilty plea.

That is offensive to victims. Guilt and remorse should be the norm. Their absence should be penalised – instead of rewarding what is often false regret.

If only the judges had not allowed the law to become so constipated that we have to applaud this current Bill.

Capping bankers’ pay

  • November 10th, 2010

Following exposure to 'Inside Job' I want to know more about how the Australian government plans to cap banker pay.

The Herald reports the proposal, relating it to New Zealander Sir Ralph Norris' $20m pay for leading the CBA.

No politician will risk promoting the one thing that might actually change the  incentives enough to allow boards to do their job as they did when top boss pay was almost never more than 10 times the pay of shop floor workers.

Get rid of the law that requires the publication of executive salaries. Require full disclosure to shareholders of director remumeration (of all kinds, including the full value of options and retirement benefits) but end the compulsory publicity that pitches boards into the stupid ratchet competition of Hay relativity type salary rounds.

I blogged on this topic 18 months ago, when the Aussie salary cap proposal was mooted.

I can confirm, from experience in remuneration decisions on a number of boards, that rational calculation of what is necessary to attract and retain the right talent, is submerged by perceptions of both the candidates or executives, and the boards, of what it might be thought to say about them and their companies if they let themselves fall in the bottom half of the reported distribution.  What was referred to in 'Inside Story' as  the 'pissing competition' is unavoidable.

Try scrapping the silly rule before enacting even sillier rules. 

But there is a ratchet operating in politics too. It is far less risky to promote new law, even if it is to counteract recent silly law, than to propose repealing anything when people are baying for more rules.

Inside Job

  • November 9th, 2010

I've just come home from UnionAid's fundraiser screening of Inside Job

The film is a superb model of angry polemic. It could have been even more if it had just acknowledged more of the complexity – like silly regulation's role in expanding the sub-prime mortgage pool, and the part played by political and citizen desire to keep the cash flowing, despite US citizens knowing that they were collectively spending more than they were earning, for many years.

The film railed against increasing inequality, and managed to convey the impression that living standards had declined for all but the super-rich. In fact the building boom that has come to an end has been fuelled by an enormous increase in the expectations of all citizens of the space they need to live in. Relative decline is not absolute decline.

But key questions are correctly raised by the film. Why do the excess returns extracted by investment bankers not get competed away? There are thousands of competitors for their places, and their superior wisdom has not much to show for when so few of them could call the end of the musical chairs they were playing. Why did the government bailout designers not recover more of the obscene bonuses as a condition of rescue? Why have so few prosecutions begun?

Alan Bollard's commentary at the end was a drawcard. He managed to keep it inconsequential. I wish he had reminded the audience smugly goggling at US cupidity and foolishness in allowing the bankers to put them into such debt peril, that we are supporting a government that is borrowing $200m per week, with no practical plans to get into net credit.

Paul Henry the Fox?

  • October 16th, 2010

  When the howl went up over Henry's question to John Key about Anand Satyanand's successor on Jim Mora's Panel I defended Henry's right to ask the question. Several people I respect emailed their dismay to me.

I've thought more about this after considering Wallace Chapman's admirable piece on the issues, and the comments it attracted.

Classical liberals may prefer to make themselves colour (gender/religion) blind, but we cannot require the people, or our public speakers, to work at or to share that selected blindness. It is our law and the state that must treat all as equal before the law, giving favour to none.

Now the state is under the control of people busy peddling race obscurantism – the notions of inherited relations with land and spirits, inherited specialness. Those who have supported a state sponsored search for “national identity” can scarcely complain when this is translated by ordinary people into seeing merit in promoting as our symbolic leader someone who seems to them closer than others to embodying whatever that identity is.

It is hypocrisy to bawl at Paul Henry for highlighting the dissonance in appointing people on the basis of the 'statements' thus made about 'diversity', then pretending that representativeness does not matter.

Any Wellington leadership for the precious actors?

  • September 29th, 2010

I'm surprised to have seen nothing from any of Wellington's Mayoral candidates, or Wellington MPs, on the risks in  allowing unions to end one of the few reasons why we've had a film industry here. "Mexicans with cellphones" is a dated description of what cheap labour offers, but if that is all that stands between work in the industry and no work, there will be plenty who would rather be Mexican.

The Minister of Finance will have mixed views. If the 'creatives' manage to drive away big budget production he'll see much less wasted on the subsidies that have made our film industry of dubious financial value to the country as a whole. But for Wellington the departure of the industry will be an unmitigated loss.

'Creatives' are notoriously foolish in political matters. There is a long history around the world of driving their own jobs away  with suicidal industrial claims. Perhaps the industry self selects for people prone to over-estimating their own importance and underestimating the supply of alternatives – people willing to do as asked by those who pay the bills.

Great left turn

  • September 29th, 2010

I'm glad to have lived long enough to see a Minister of Transport courageous enough to risk returning us to left turn priority – for me the intuitively correct position.

I was overseas decades ago when New Zealand went right. I've never been confident at intersections since, one of those who just waits to see who will take the initiative and go. I politely wave other drivers to go, not because I am genuinely more patient, but simply because I can never be confident that I know who should go.

It does not help that I do not immediately know left from right. I know what side of the road I should be on, but have to imagine myself at the piano to be sure of which is my left hand and which is my right.

Leave the Games blame where it belongs

  • September 26th, 2010

How embarrassing to be a New Zealander, watching our media search for New Zealanders to include in the blame for India's shame.

If only today's Q & A had spent more constructively the time it wasted on trying to extract a mea culpa from a New Zealand official. The usual media line on relationships with peoples who have been colonised deplores any hint of 'judgment' or being patronising. Officials who fail to "understand" the excuses for failure (including the cultural 'necessity' for bribery and nepotism) are held to be nasty relics of imperial arrogance. Yet what can be more arrogant than blaming sports officials for failing to supervise as for children, the performance of a government in one of the world's most powerful countries, a nuclear armed nation with a prickly pride and some of the world's leading businesses.

Of course in reality we know that India has been hobbling itself for generations with socialist governments, but exactly how were our officials supposed to command Delhi to do better?

I wish Q & A had found one or two penetrating non-pc observers of India.  What makes India's democracy so venal and its love of red tape such a drag on its hard working and intelligent business people?  To what extent should businesses share the blame? Or does the blame rest with the Indian intelligentsia, which (like here) perpetuates hostility to the values that create wealth, through dead minds in the commanding heights of education (the failed inheritance of the London School of Economics)? Is it simply that there is a tipping point of Chris Trotters and Matt McCartens and Finlay Mcdonalds, which no amount of business competence can outweigh?

Or are there aspects of the business culture that contribute to the licence bad politicians exploit? Some of the great modern Indian literature (but also modern Chinese literature – see my 'reviews') remains more hostile to business success than to political corruption, explaining both as attributable to the same moral ooze. Does India demonstrate the results of persistent suspicion of business that becomes self-fulfilling? If people are taught to expect venality and corruption from business people does that make it more inevitable?

What are the conditions that make corruption so hard to combat in India? Why do such appalling failures persist alongside such extraordinary talent? Is there something about being Indian that makes them collectively a soft touch for bombastic, oily, lying politicians?

I do not know whether there was scientific polling behind it, but the received wisdom among politicians in New Zealand was that our Indian population were incorrigibly left voters, despite many of them being small business people. I had some wonderful support from New Zealand Indians, but they warned how few of their community were likely to vote anything other than Labour.

On the other side, the political folk wisdom is that the Chinese community would vote National or ACT almost whatever we did, if they voted. The issue was said to be persuading them to vote.

China too is corrupt. But it does not manifest itself in such fatalistic incompetence. Why not?

These issues could be important to us, and not only because of immigration. Is there an effect of persistent film, literature and news expectation of corruption, failure and cupidity that ultimately drives out virtue?

Maudlin regret as earthquake risks come down

  • September 22nd, 2010

Thank goodness the sad people at the Historic Places Trust were not able to interfere in the planned demolition of three of Wellington's thousands of earthquake risk buildings. And spare a thought for the people who will be killed by those trustees and their dopey supporters in the next earthquake,  by impeding the replacement of such buildings.

 

The  three Willis Street ones to come down are no doubt dangerous. They were cramped, and a waste of some of the most valuable space in the country.

 

There is no reason to think that people liked to be in or near them. The shops in them had become sad reminders of a poorer age, and their owners could not make enough out of them to justify the space they occupied.

 

Chews Lane across the road is an example of how much more pleasant and usable new buildings can be in that area.

 

This is no loss of heritage. It is an affirmation of it. The heritage I value in my country is the heritage of faith in the future, of willingness to welcome and try the new, the confidence that Napier property owners showed (without the palsied Council hand to steer them which Christchurch owners now suffer) as they demolished the failed buildings after their quake and rebuilt entirely in the then latest mode, which we so much appreciate now.

 

There was nothing to commend those Willis St buildings except that they had been there a long time. I want to live in the kind of country my forebears came to , that expected to improve its circumstances at each cycle of replacement, instead of what we now have, a country of maudlin nostalgia, dominated by politicians who feel obliged to pander to the matriarchal precautionary principle (better to do nothing than run a risk that the unknown could be dangerous).

 

The sadness in this case is that elected officers are facing election by constituencies of nannies, so some will have to pretend (or in the case of the drips among them actually feel) some kind of ‘grief’ at their inability to interfere further with the overdue decisions of the owners of those buildings to make better use of land served so expensively by our transport network.

Low value votes in local body election

  • September 19th, 2010

We had a family voting session this evening. Between us we could just about muster enough personal knowledge of candidates to get through the Council voting with confidence, but even drawing heavily on the candidate profile booklet I feel cheapened by the few votes cast for DHB and Regional Council candidates.

There is no reliable media coverage of the performance of individuals on those bodies. One only hears accidentally about who are the passengers on those bodies, or even the nutters.

There is something deeply wrong with a system that pretends there is value in votes cast for or against people of whom one has never heard, or if you have heard, of whom you have no recollection whether it was favourably or otherwise. Yet I suspect that I would be among those most likely to know or to have heard of candidates.

The money spent on encouraging low grade votes in local authority elections is even more wasted than money spent for the purpose in central government elections.

We are lucky nevertheless in Wellington's Lambton Ward. There are enough high calibre candidates to cast at least three votes without regret. Ian McKinnon was obvious, and John Bishop and Adam Cunningham have both impressed me in candidate presentations. I know John and believe he would make a good councillor. I've heard similar praise for Adam.

If they had not been there I might even have cast a vote for Iona Pannett, just as a thank you for sticking up for dog owners. But the risk of impoverishing ourselves with nutty Green sentiment for  trains ('light rail') ruled it out.

Newspapers not dead yet

  • September 14th, 2010

Last evening I heard Guillermo Altares, Editor of "El Pais", Spain's newspaper of record.  Espousing free speech it has become the world's greatest Spanish language newspaper though it was only born after Franco's death in 1976.

I expected insights into Spain's future, and the contrasts between the Anglo-sphere (in language terms) and the Hispanic.

Instead the whole address was about preserving the values of journalism in a world where people do not want to pay for news. He believes in the social importance of newspapers ('a people talking with themselves').

Altares' address might have been delivered by Pamela Stirling (Editor of the Listener) or any of a number of New Zealand journalist friends I've heard reflecting on their industry. Their world view is overshadowed by anxiety about whether the craft of journalism remains financially viable.

Altares acknowledged that he had no particular insights. He referred to a 2007 address by New York Times Editor Bill Keller – "Not Dead Yet".

"At places where editors and publishers gather, the mood these days is funereal. Editors ask one another, "How are you?" in that sober tone one employs with friends who have just emerged from rehab or a messy divorce."

I'm grateful for the prompting to look up Keller's address, though on following it up I was surprised to see just how much of Altares' views came straight from Keller. 

Though he claims to be optimistic, Altares' address boiled down to a declaration of adherence to Keller's faith, expressed as: 

"For all of the woes besetting our business, I believe with all my heart that newspapers – whether they are distributed to your doorstep, your laptop, your iPhone or a chip implanted in your cerebral cortex – will be around for a long time. Newspapers, including at least a few very good newspapers, will survive, simply put, because of that basic law of market economics: supply and demand. The supply of what we produce is sadly diminishing. And the demand has never been greater."

I think they are right. But the survival may be only after a new generation of journalists have supplanted the current ones. En masse their minds are too narrow.

I think Keller underestimates the extent to which 'mainstream' citizens turn away from 'serious' MSM journalism because of its implicit bias against their views and values. The success of Fox in the face of elite hostility, and the near universal scorn it attracts from lumpen journalists has a message. Instead of scorn it should be attracting intelligent analysis.

My market survey of one says that a Fox NZ would find a similar market here. I find myself listening to Sport radio, or Classic Hits or anything other than Radio New Zealand's whining predictability over a weekend. I have little interest in what I turn to, but at least it spares me the dreary conformity of the 'public service' alternative.

Have I become frivolous and escapist? Or is my indifference to another harangue about caring for failed people and states and causes and the environment the same sensation that leads people under 30 to do without news and commentary at all, other than as they find it on the web?

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