Off to the Holiday Inn this morning for the breakfast announcement of the Cameron Task Force’s recommendations. I fear yet more securities law reform though I expect  some if it will be defensible, unlike the stupidities piled on stupidity of the last 10 years. 

10 years of change and expansion have nearly all been substitutes for determined and efffective enforcement of existing and longstanding law against dishonesty in its various forms. The dumb investment adviser regime is probably the worst. A few simple changes to the Secret Commissions Act, a bit of steel in the Securities Commission, a few dollars to the right places in the Police or the Serious Fraud Office, a few high profile low-life advisers in prison and 80% of the problem would have been fixed at 10% of the cost ot the scores of millions now being wasted on the new regime. Better still it would avoid the collateral damage to financial literacy now inevitable as New Zealanders learn to their astonishment that the law makes it illegal for most of their fellow New Zealanders who know the most about money and investing to even respond to questions about matters financial in social conversation, let alone give advice, even if it is free. Dumb, dumb, dumb.

All in charge have preferred to wail about inadequate powers and to offer ever more misleading promises of "protection" and "confidence" if only their rules were "strengthened" and expanded.

Instead of tackling the lawyer bog that has put the courts out of contemplation for remedying commercial wrongs of all stripes (the scummy pond of securities law is only one corner of this morass)  they’ve twiddled and reviewed and investigated and flown in experts from other failure countries, and rustled through the their boxes of excuses. Then they’ve poured out massive new books of rules – anything rather than ensure the simple enforcement of the ones they already had.

I’ll eat what I fear will be the inevitable danishes, hoping for the best but fearing an intellectual dog’s breakfast.

Five years ago a gallery journalist put his professional duty above friendship to report that I (then an MP) was one of a group who upset an avalanche risk manager at a skifield. We handed the manager a written waiver of responsibility and liability when we decided to ski out to our cars ahead of bad weather despite a risk on one section of the route out.

My admiration for his professional dedication was rueful. Now I can demonstrate an equalising regard for my profession's respect for the truth, the whole truth and nothing but the truth, albeit adopting journalism's comfort with hearsay plus a little mercy on the details.

This doyen of journalism has upheld its finest traditions by getting himself banned  from his Club. It will not allow him to darken its doors for three months. As he was restrained on the details of my discussion with the South Island ski club official, I'll leave him to explain the circumstances of his temporary blacklisting by the Cosmopolitan Club of Raetihi.

 Victims will  get the right to tell convicted criminals what they think of them. They will be able to express their views on sentencing. They will get at least the same rights as the convict’s families. We’ll get there some time next year, 8 years after my amendments for those purposes to the Victims Rights Act 2002 failed to get the support of other parties.

But we’ll get there only through the courage, and dignity of people like Gordene Tuhoro, featured on Close Up tonight. She and the other determined victims will prevail. Because many more like her are prepared to risk arrest in reclaiming the victim’s right to assert power over the convict, to oblige the  convict to listen to their disdain, instead of gratifying the convict with a fresh recital the suffering inflicted. This campaign by the Sensible Sentencing Trust is only starting. Garth McVicar does not have to seek out volunteers. They seek him out for guidance. 

There are some serious hurdles. Tonight’s TV illustrated the issues superbly. The Justice Minister dealt clearly and well with Gordene’s challenge and Mike Hosking’s questions. Here is one vital exchange after Gordene explained what she’d been told to omit:

Hosking – Simon, why dont you just have a simple rule…that says you can say whatever you like as long as its got nothing to do with sentencing or libelling the person?

Minister – Well I think  that’s the territory we’re in, trying to redefine the boundaries Mike. One of the things I guess that I’m concerned about Mike is that at the moment you have to make a request to the Court just to read the statement. What we’re proposing in the document thats out there at the moment is that victims have a right to make an impact statement.

Hosking – This seems too complicated. Why don’t you as Minister, you as government, "Say whatever you want as long as its not illegal, say whatever you want, get stuck into the mongrels." Let them have their say, what’s the problem?

Minister – Well that’s precisely,  the freedom of expression that you’ve just outlined Mike, is precisely  what’s proposed in [the consultation] document".

Trouble is the consultation document proposes nothing of the sort. Note how carefully its scope is limited (pages 33 to 39 of the pdf):

"Freedom about what victims may say in a VIS

"Some victims believe they should have more freedom about what they may say in a VIS.  Having more freedom in what they say in a VIS would enable victims to feel more involved in the justice system, and ensure that they have had the opportunity to fully voice their views about the offending.

"The purpose of the VIS is to inform the Judge about the effect of the offence on the victim.  The Judge uses this information along with the submissions of counsel and the pre-sentence report provided by the Department of Corrections to decide on an offender’s sentence.  Providing information unrelated to the purpose of the VIS risks undermining its object and may slow down the Judge’s decision-making. 

"We therefore propose that guidelines be developed for all the agencies or persons who assist victims in preparing a VIS.  These guidelines will ensure that victims may more freely express themselves in a manner that is consistent with the purpose of the VIS.

 "Preliminary proposal 13 –

"We seek your views on the proposal to develop guidelines that will ensure victims may more freely express themselves in a VIS, in a manner that is consistent with the purpose of the VIS."  

The words underlined make it very clear. The paper shows no intention whatsoever to allow victims to do more than recite their misery. It shows the opposite – an intention to change nothing at all in this area.

I suspect Minister Power has been misled. The justice anointed are cunning. It takes careful reading to catch them. The Minister has to cover the whole of the Justice and Commerce portfolios. He’s probably stretched too thin to read such reports looking for the weasel words. I’m told by Parliamentary staff there is now no-one in Parliament who reads the stuff the Justice officials produce closely enough the way I did to catch them out in the fine print.

 In the unlikely event that  the Justice Minister does not insist on his policy as described to Mike Hosking, despite his current advisers, the Courts will pay the price. They’ll have to endure many more confrontations with victims.  Decent judges have to apply the law the way it is written. They’ll be forced to add to the pain and anger of determined victims and leave the Courts facing growing outrage, until the law is made simple and clear, until it respects victims at least as much as it panders to criminals and their families.

 For the kinds of issues on which the Minister will need submissions see my previous post on this topic.

I still can not work out how serious is the conspiracy to fight the sceptics revealed in Climategate.

The Telegraph columnist Christopher Booker says it is the worst scientific scandalof a generation. The TimesOnLine records that key source data has been dumped but it is still hard to know how much more sinister this is than the normal range of partisan behaviour to be expected (though deplored) in any community of intellectual workers passionate about what they do.

But now there is a much more interesting fear to luxuriate in. The Economist reports that the IEA has not only shifted position in the Peak Oil debate. It has made a "new and striking claim" that puts a date estimate for reaching Peak Oil. "The output of conventional oil will peak in 2020 if oil demand grows on a business-as-usual basis.”

Radio Live reminded me yesterday of my 1976 attempt to live on a commune in China when they iasked me about meeting Rewi Alley. He has been voted one of China’s top ten international friends according to China Radio International.

You can hear the interview at the end of this audio clip and the beginning of the next.

Bathed in news that is all about problems and conflict, I sometimes consciously oblige myself to look at the  upside of down stories. I was reminded to do so at last evening’s Marsden School prizegiving – probably my last as I have retired from that Board.

It was worth being there just to see and hear Maria English deliver a superb Head Girl speech. In my experience few girls’ school prize-givings (and speeches) are not cloying to male tastes. Maria did not eschew sentiment, she ended in tears, but that just added power to the speech, showing that her sentiment was not saccharine. But for me the most memorable feature was her effortless use of self-deprecating humour, the confidence to "take the piss".

I’d hate to have been obliged to deliver a speech last night, to be compared with her. Google her name to see what Bill English’s polymath daughter has done.

But Principal Jenny Williams outlined her intention to introduce courses using the Positive Psychology principles of Martin Seligman. Lucky school. People who want to understand the appeal of John Key should read Seligman’s "Learned Optimism".

So reminded by Jenny I reviewed the rest of the day. Here are a couple of yesterday’s good news happenings:

– The manslaughter trial of policeman Clinton Hall in Auckland was reassuring despite the surprising acquittal and the hung jury on other charges. It is good to live in a country where the cops prosecute one of their own for the kind of private beating that in many countries people would wearily expect as normal cop behaviour. And even more comforting was the dignified reaction of the victim’s family reported in today’s Herald. To be as disappointed as  them but not bitter takes character.

-The failure of Wanganui Mayor Michael Laws’ disgusting local Bill. Introduced last month, the Wanganui District Council (Port and Harbour) Bill sought  to confiscate the perpetually renewable lease of the local Port company, with compensation if any to be at the whim of the Council. It retrospectively removed River City Port Ltd’s access to Courts to clarify their rights.  Though it is a shame that National has still not distanced tthe Party publicly from the Bill (Laws claimed that he had their support) the practical outcome is pleasing.

I’ve put considerable professional time into securing that defeat.

Officially the reading of the Bill has been deferred to 17 February, presumably  face-saving for Laws. The real nature of what has happened can be seen despite Laws magnificent dry ice emission on the WDC website. it is back to the drawing board.

Next time around he will not have the assistance of surprise. His council’s mismanagement of the endowment fund supposed to pay for port works will have been exposed, and the media will be more sceptical of his lies about RCP’s willingness to invest, RCP’s safety performance and who is responsible for the state of the Port.

Brilliant animation to promote reading.

Congratulations NZ Book Council, Colenso BBDO and Andersen M Studio.

Yesterday’s Supreme Court direction for a Court of Appeal rehearing of  the Saxmere case SC 64/2007 is a victory for Sue Grey and a serious embarassment for the New Zealand Courts.  But we may be thankful in the end that this serious embarassment has occurred relatively early in the life of this unfortunate court.

Sue Grey courageously persisted in her argument that Bill Wilson J should have recused himself because of the risk of an apparent bias toward the side argued before him by his friend and business associate Alan Galbraith QC. Her argument was rejected at several levels but accepted after the Supreme Court reconsidered things when Wilson revealed that he was effectively carrrying financing costs for some of their joint investment, that would fall to Galbraith’s account in certain circumstances.

I do not know Wilson J well, but I doubt that his tardy and progressive disclosure of his financial relationship with Galbraith QC had more to it than irritation at the idea that his judgment would be biased by the relationship, and a view that the argument was opportunistic. However his authority will take some time to recover after the reluctant disclosure has led the Court into an embarassing reversal.

The upside for the rest of us is that it may lead to changes to address the worst risks created by Margaret Wilson’s pig-headed refusal to  improve her Bill that ended our access to the Privy Council in London. In her determination to complete the "de-colonisation" of  New Zealand, she dismissed submissions (and my arguments) pointing out the glaringly obvious risk –  cases where there would not be enough judges without worrying links or previous connections to constitute a patently neutral court.

NBR has followed this case closely. They sought my opinion on a curious provision recommended by my Select Committee which required the Chief Justice’s consent to a judge holding "office" other than that of judge. It made me think. 

Anxious outsiders could develop resistant suspicions of bias should I appear as lawyer before one of our higher courts. I think I have five former partners among judges who sit at senior levels. Others are friends. One is a co-investor in a forestry investment partnership with me. I do not believe that any of those judges would corruptly prefer me or my clients because of those relationships.

They might be more inclined to trust me, because they would know from experience that I do not lie, but that would be of less significance than their confidence in counsel they see frequently.  But there are highly charged cases where suspicions could be unassuageable. For example in our little pool there would be few senior counsel who have not appeared for or against a bank, or the government. How does one satisfy lay critics in a case involving the interests of banks or the government that such connections do not lead to long term preferences? The best reassurance in sport and the law, that local loyalties will not be influential,  is by using international referees.

New Zealand’s pool of good judges is too small to avoid such risks. But we had the incredible inheritance of free access to neutral judges in the jurisdiction of choice for people free to choose where to get the world’s best judging.

Until Clark and Wilson and their sycophants chose to dump it.

They lied about the advantages. Even then we could see that it would cost at least $8m per year, compared with next to nothing. And that was before the decision to spend $60m+ (I can’t bear to look up the latest figures) on the "mosque in a maimai" home for the new Court nearing completion on Lambton Quay.

Some urged that the court have more judges, so that there would be more chance of putting together a panel of five without awkwardness.

Others urged that provision be made to co-opt Australian judges or other judges from high quality jurisdictions. Ms Wilson and other abolition supporters described those proposals as evidence of our colonial cringe and lack of patriotic pride.

I think the real reason for their resistance was fear that it would attract more attention to the costs, and that attempts to set up reciprocal arrangements for the exchange of judges might result in unwanted assessments of the relative depth of talent in our judicial pool.

Whatever the case, Attorney General Chris Finlayson now has good reason to re-open the topic.

I predict prompt approaches to Australia, to discuss getting temporary appointments of top Australian judges when too may of ours are conflicted out. Better still might be arrangements to allow cases to be shifted and heard entirely by a patently independent court whenever circumstances make it hard to be sure  of no local bias, or perhaps where the parties agree that international refs would be better.

Let the people choose and may the best courts win.

As the GFC spread panic last year the demand for New Zealand $100 notes shot up. The Reserve Bank happily printed them –  seignorage (the income on the value received in exchange for almost costless bits of paper) is valuable. But weirdly most of them are still out there – they have not come back to be exchanged for interest bearing deposits.

This curiousity was revealed in an aside by Grant Spencer, Deputy Governor of the Reserve Bank on Wednesday evening while addressing the 20th birthday celebration of Paymark. I’m a director and proud of the company that ‘switches’ 75% of New Zealand’s eftpos transactions. He congratulated the people concerned 20 years ago, when our bankers had the foresight to set up New Zealand’s unique collaborative switch model which has given us the highest proportion of cashless retail transactions in the world, with world-leading reliability and security.

Grant explained that as a reserve banker his satisfaction was tempered by the loss of potential seignorage as eftpos made cash less necessary, then noted the silver lining to the financial panic cloud as the Reserve Bank printing presses sped up.

I thought I’d look into it further. The Reserve Bank website provides the figures. They’re not small bickies. The total value of  $50 and $100 notes outstanding as at the last Wednesdays of March 2007 and March 2009 increased by $393,65m. The amount in $50 notes went up $186.82m or 30.54% while the amount in $100 notes went up $206.83m or 14.65%. The amounts in the notes generally used in wallets and pockets scarcely moved.

So where are all those notes? Are our wealthy wallowing like Scrooge McDuck in their counting houses? Are they plumping the mattresses of the Belgian dentists who for years have allowed us to spend more than we earn? Are they padding the tatame of  wizened Japanese grandmothers? Or are they being shredded for rats nests in the walls and under the floors of our own tinny houses and P kitchens?

Perhaps it is  just coincidence  that demand shot up as people began worrying that any bank could fail. But why have they not come back through the banking system?

Mediawatch on Radio New Zealand this morning gave good coverage (and acknowledgments) to Cactus Kate’s expose of the ABN stable’s unwillingness to budget for defamation defence.

But they are all still appealing to the ideals of noble journalism and the altruism of media owners to defend the role of the media and free speech. They will never be enough to counter the serious threat to free speech now represented by the toxic mix of sound defamation principles with nice but stupid rules on cost awards in the procedural swamp of our courts.

Even an outright win in a defamation case leaves the publisher deeply in the red. That is because dopey judges over 4 decades have left all litigants in New Zealand (other than those on legal aid) facing discouraging costs for even the most simple cases. They mean that winners don’t win. At best they’ll get an award of perhaps half the real costs. To add to the risk there’s little willingness to require dodgy plaintiffs to post security for payment of costs awarded against them.

And that is for trials that end. There is no upside from the  preparatory spending forced on an innocent defendant, if the plaintiff has the wit to drop the case before trial. So many of them can expect the gagging writ to do the trick – the defendant will fold and settle at an early stage top avoid huge wasted time and costs.

Our expectations of courage from publishers developed in times when a routine win could result in serious reimbursement of costs, and when the whole process took perhaps one quarter of the time a case would take today.

Tim Pankhurst and the Media Freedom Committee of the Commonwealth Press Union should be finding an MP to sponsor some new directions to the judges. They’d spend their time more productively targeting the cause than defending or bewailing the symptoms. I tried to interest them in this a few years ago after we’d successfully resisted Margaret Wilson’s attempt to revive criminal libel in electoral law.

I suspect that there is a place for an offense of criminal libel, but far more urgent is a reform along the lines I urged  in posts here and here.