Who do the courts think they are protecting when they suppress the names of a former MP (or indeed anyone) charged with fraud?

If the big name suppressed has anyone worth calling friend or family, they’ll be told by the accused anyway. If the courts think they are protecting the big name from neighbours or others they know , surely it merely delays the inevitable. Those who know them are the only ones whose opinion can really affect the fallen big-shot for the short period before the news either leaks or it must come out anyway.

If it is only  the rest of us who are to remain in the dark, what benefit does that provide that can be weighed against the damage done by these gags to public confidence in equal justice and in the courts.

And for how long will Winkelman J’s secret decision in the Tuhoe terrrorist case remain secret since Vince Siemer’s posting of it, as reported by Jock Anderson in NBR’s subscriber only section?

The Capital Gains Tax ghoul is stirring. John Key’s waving of the cross on Monday has evidently not reassured the congregation. The National Business Review online edition posts that the  Tax Working Group has reported on capital gains tax. The post has the congregation looking out their  rosary beads and hunting for the garlic.

Critics are scratching to express their horror (no doubt before reading the report). They’ve settled on the description of the authors as ‘academics’. I’m sure Dr David White will enjoy some of their choice fulminating against academics he’s stirred up.

Plainly Bill English is fostering intellectual integrity in Wellington. I understand he’s had to emphasize to officials that Labour has gone. He wants to resurrect traditions of strong and independent advice, not  propaganda to support conclusions pre-limited by dogma.

From what the Tax Group is producing they’ve taken him at his word. "Give me the pros and cons, and tell me what you think, not what you think I want to hear. Leave us to deal with the politics. You give the advice without fear or favour."

I’m looking forward to reading the Judge’s notes on sentencing Clayton Weatherston.

I thought of her predicament last Friday evening as I sat among urbane and decent  men (mostly men) listening to the Hon Dr Michael Bassett deliver the 2009 Ralph Hanan speech. This year’s annual celebration of the National Party’s liberal inheritance at the Wellington Club heard Dr Bassett’s  summation of Hanan’s greatest Parliamentary acheivement – the 1961 Parliamentary conscience vote that ended here the hanging of murderers until dead.  Michael assumed, correctly judging from the respectful murmurs, that his audience agreed that an unalloyed good thing was done nearly 50 years ago by the National Minister of Justice.

Ralph Hanan put it out of Judith Potter J’s power to satisfy intuitive wisdom with Weatherston’s sentence. 

True justice may require  a death penalty.  Without it there is a hole in our promise of justice that may be unfillable. Yet as I sat among those satisfied diners, I knew that I would vote against a return of the death penalty, at least for the forseeable future – precisely because of the strength of sentiment there and elsewhere.

But first the explanation of the hole in our heart.

The belief that a price that equalises is the essence of justice lies deep in most cultures, including our own historically.  ‘An eye for an eye, a tooth for a tooth" comes from Deuteronomy in the Bible, but it is far more universal as the first codification of measured justice in place of even more primal vendetta/blood feud. The Babylonian Code of Hammurabi required a strong form of ‘mirror justice’. The Koran offers an elegant conjunction of that justice with the possibility of mercy, and victim rehabilitation (through restored power). The Koran gives victims an exclusive right to dispense with simple retributive sentencing.  The Chinese considered that the heavens remained in disharmony while a wrong-doer remained better off than his victim as a result of ,or in spite of, his crime.

The conviction that justice without equality of suffering is not justice may run deeper than such ‘recent’ religions.. Evolutionary psychology suggests that the need to make sure that "cheats dont’ prosper" may be ‘hardwired’ into us. Justice must "balance the scales".  Game theory too supports that finding. ‘Tit for tat’ strategies are the most stable decision models for maximising cooperation (over ruthless self-interest) and thus overall returns in repeat play prisoners’ dilemma experiments. And for most cultures there are many ways of expressing that need to feel that evil has been made profitless – utu or revenge, "paying the price",  "getting even", or "levelling".

Plainly it is not possible to assure the families of murder victims that the scales will be levelled, when their loved one is gone forever, while the murderer is fed, kept warm and usually safe in his bed and will be out agaiin in time to marry, produce for his parents the grandchildren the victims will never get, and bludge a living for the rest of his life off his fellow citizens if he chooses.

This imbalance can not be camouflaged. It is a hole at the heart of our system. Because fear of the strong murdering the weak is our primal fear. Unpunished it renders false the State’s promise that crime wont pay. That promise is the consideration for taking the private right of retribution.  Obvious unwillingness to deliver may fatally sabotage all State "trust us" efforts  to assure citizens that they can give up violence themsleves.

Take a sample of educated mistrust of our justice system in the comments on David Farrar’s moving post on the Weatherston sentencing. Given the environment effect (Broken Windows) on propensities to commit crime, and mistrust’s effect on community willingness to support Police in containing crime, such mistrust may be exacting a very high price indeed.

But I said would not vote to restore the death penalty? 

Because there are times when partial justice is more prudent than full justice. Since Ralph Hanan got the  parliamentary support to abolish the death penalty partial justice for murder has been more prudent than true justice..

Why?

Because we live in a democracy, and a significant number of New Zealanders have been persuaded to mistrust, indeed to be repelled by, the instinct  that would match innocent life against evil life. They feel that the State can claim higher mindedness if it "does not descend to the murderer’s level"

And though I do not agree with them, I would vote against reinstating the death penalty because they are sincere, and there are enough of them to ensure that we would be consumed in fighting ourselves over the issue when there are so many more useful criminal justice reforms to do in the meantime, while that generation grows old.

Not supporting reinstatement has the side benefit of relief from responsibility for an inevitable dreadful mistake of justice – when an innocent is convicted. But that is a cop-out. Leadership requires us to accept that many decisions will cost the lives of others. The Parole Board live with it all the time, seemingly without wounding the consciences of the anointed who regard opposition to parole as nasty.

But I would not support reinstatement of the death penalty because in a democracy there are times when the majority accepts high costs to avoid grave affront to a  minority. Pragmatically, other priorities in reform of criminal justice will be more valuable. A sufficient consensus can be achieved for them, and they will give us much more crime reducing bang for our buck than a massive identity politics battle with ourselves.

Too many trials could be undermined if the normal consequence for murder was death. Most juries would contain one or more people who would rather subvert the trial with a not guilty verdict, than feel part of a process they would characterise as the state being no better than the murderer. We would have anti-death penalty  judges feeling justified in  twisting the law beyond recognition to avoid giving that sentence. We could have witnesses and police conniving on lesser charges, to ensure prompt progress toward conviction for something, rather than seeing murder trials bogged down in controversy and spurious appeals nevertheless given grave consideration by senior judges.

This pragmatism will be pilloried by those who are outraged by the moral superiority claimed by the liberal anointed. The anointed despise their fellow citizens’ intuitive demand for a penalty that matches the crime. In their ‘compassion’ they unintentionally cheapen the victim’s life. Their feelgood is at the expense of the victims’ families – they donate other families’ entitlement to true justice. Victims judge the community’s  value of their lost loved one by that refusal to restore traditional equality.

Those conditions will endure until a critical mass of our anointed are willing to re-examine their beliefs, or pass on. Perhaps some will ask whether there might not be a connection between a murder rate over 15 times higher now than when Ralph Hanan achieved his goal. But most will go to their graves convinced that what they believed in their youth remains true.

Interestingly, 10 years ago Phil Goff gave an Auckland District Law Society gathering a very similar message. He said he had no personal objection to the death penalty.

People who like the Green Parrot should love the Messines Restaurant in Featherston. It is part of the RSA, and by the process of time more genuine than the Parrot..

Tipped off about it a few months ago, we now time coming back from the farm to get there for dinner.

I love the remnant New Zealand kids who defy the prune faces, and clucking of our official ‘no-risks’ culture.  They do what the most vital kids of every generation have done – test their daring with feats that could kill them if they go wrong.    

While working in Hamilton a few weeks ago I was delighted to wake to Jonathon Carver of the Mormon Few  headlined in the Waikato Times for riding the concrete arches of Fairfield Bridge over the Waikato. Predictably they also found someone to threaten prosecution immediately.

"Waikato road policing manager, Inspector Leo Tooman, took a dim view of the stunt, and considered it dangerous and foolish, and a risk to the safety of other road users."

Now Mr Carver has been charged. I hope he defends the charge, if only to force the officials out to squash lingering insubordination or signs of animal spirits to show themselves in all their sourness. I wonder what ‘output class’ this charge satisfies in the Police budget. It clearly is not related to violence or assaults on children or any of the other claimed priorities for prosecution resource..

The prune faces have not yet been able to kill deeply traditional means of testing oneself, such as climbing mountains, or hunting on one’s own.

No doubt they’re on the way. They’ll start with ‘reasonable restrictions’ such as prohibiting trips when the Police have issued no go weather warnings (in order to protect the safety of staff who might be called out on search and rescue" no doubt). Then it will move to banning climbing without top ropes. Banning hunting without having passed the requisite NZQA validated safety course can not be far off.

There’s nothing outlandish about this. Many other activities of less inherent risk are now heavily regulated, and consequently more expensive. Think motor racing, where race offcials now have such onerous duties that only the rich can afford it. No wonder boy racing is such a buzz. There are two forms of excitement – the speed itself, and the risk of prosecution.

It is not in the same league but I suppose I should have been alarmed when my daughter  and 11 other girls got a van to take on the Undie 500 to Dunedin.  Instead I was excited for her. I feared the Undie 500 had been crushed by Police and University threats. Of course the Police should charge rioters. But they should also understand that the risk of being charged is part of what attracts the riot in their safety sanitized world, just as it may be encouraging kids to drink till drunk and many other self harming activities.

 As a guest on RNZ’s Afternoons programme yesterday I may have put Jim Mora in an awkward position as I criticised a National programme morning item. I was spurred by Nine to Noon’s first item yesterday to ‘soapbox’ on a matter on which I’ve been brooding for some time.

We New Zealanders are now not just excusing (and uselessly counselling) post traumatic stress disorder. We’re inciting and rewarding it.

Katherine Ryan interviewed Jason Hall about "the whole traumatic experience of living next door to the House of Horrors in Wainoni Rd" Christchurch where the bodies of two women were discovered. While that interview might be a classic of the genre it’s wallowing is certainly not confined to Katherine Ryan.

Yesterday’s effort was just the spur to let loose. I fear that a nationwide media consensus is rapidly losing us our cultural inheritance of stoicism and resilience. 

My generation opened the tear valves with  permission to "let it out’ instead of ‘bottling it up’. Some time ago that crystallised into an expectation of extravagant declarations of grief. That in turn is morphing into suspicion if a victim lacks signs of apparent struggle with overwhelming shock. I fear it is about to become a cultural necessity to  caterwaul, with ancillary political and official demonstrations of whole-of-community envelopment in "sharing the loss".

For the media the trend has been irresistible, starting as permission to exploit sad events with syrupy sympathy. Performing journalists quickly coped with the necessity to pretend a maudlin sharing of grief . Now it may be out of control, with subtle hostility to people who decline to demean themselves, or to pretend despair they do not feel, .

We are increasingly a nation of cry-babies. And most of the crying is probably authentic. Because research suggests we have powerful feedback loops to ensure that we feel genuine. What may begin as mere conformity with percieved norms becomes our reality.

So, for example, there seems to be evidence that people who are expected to be stoic, and are surrounded by others who act in that way, may even feel pain less, and be less disabled by it. And vice versa.

It seemed to me that  Katherine Ryan wound Mr Hall up. This may be unfair, because Rahui Katene, the Maori Party MP may have done all the winding up that Mr Hall needed. Nevertheless Ms Ryan’s lovely warm and most caring voice created an expectation he naturally filled, appearing to plead for guidance and financial help and sympathy from the state for his awful victim’s fate.

It consisted in being the next door neighbour of the murder house. Mercifully we got snatches of the sound of kids playing cheerfully in the midst of Katherine’s extraction of the tale of the Hall family’s devastation.

Whoever’s to blame I’ve had enough of this moaning. Where will it end when the Police are being urged to pander with "resources" to this kind of self pity and superstition. The Mayor of Christchurch too is in on the act.

With such encouragement I do not blame Mr Hall. I’m sure he was just responding as people generally do, to cues they get from "authority figures’ as to how they are expected to behave, and thus to feel. Our welfare system boosts it, with advertising and substantial effort to make sure people "get what they are entitled to" even if left alone they’d retain the dignity of sorting things out themselves.

We’re in a self reinforcing cycle of degradation, with the media ‘reporting’ [expecting] woe and despair and helplessness. People will oblige. Who wants to seem an oddball, looking callous or emotionless? It worked very badly for Azaria Chamberlain’s mother. 

O for the dignity of the stiff upper lip. 

And leave the murder house alone. Lets recapture our secular tradition with an official rejection of the animist superstition that would treat it as haunted or soiled beyond use.

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Ruth Richardson’s Reserve Bank Act and Don Brash’s reign as Governor made New Zealand world leaders in banking regulation. Others came to learn from the then breath-taking simplicity of our three principles:

• How to give independence to a central bank.
• How to give it a clear and non-conflicting mission (in our case integrity in the value of money) and
• How banks can survive without a state guarantee.

Many followed our lead on the first two. Few followed our refusal to guarantee deposits. Commentators wondered whether we’d sustain it in a crisis. Now we know – we didn’t.

To their credit Labour Ministers did not buckle to heavy political tempation to rescue investors as finance companies folded. But finallly, during last year’s election campaign under the spectre of world financial collapse Clark and Cullen introduced the crude guarantee that was supposed to expire in October 2010. .

Now Bill English has refined it in the Retail Deposit Guarantee Act passed this week. It tells retail investors with banks and finance companies they may have an extra year of state guarantee.

But it will cost the banks and finance companies more than now, so that if they can wean themselves from it they could make more money. Perhaps they can be forced by cost into living without the guarantee. And if they’ve expressly rejected the guarantee, perhaps there will be some credibility to future government warnings against expecting a rescue. 

The new law does not deal with the guarantee of wholesale deposits. Nevertheless it is establishing conditions for laborious reduction of the state rescue ‘moral hazard’ that is currently supporting and distorting banks all around the world. Clearly they can now expect taxpayer rescue no matter how imprudent they are. They’re too big to fail.

So we may be quietly regaining world attention to the quality of our  banking regulation, despite having most of our banks under greater regulatory influence from outside.

This week’s leader in The Economist,  highlights the importance of such policies.

"Some guarantees are still plainly needed now, but a firm deadline of, say, five years for the final expiry of the governments’ various crisis-induced pledges should be set globally. With the world economy in better shape, this looks more realistic than it did six months ago. But even then the implicit assumption will linger that banks will always be bailed out. This is the core problem. There are two possible responses to it: regulate banks to try to make them safer, and attempt to limit the implicit guarantee. Both approaches are now needed’"

Under the heading "Lord of the ratios" last week’s Economist (3 September) drew attention to the NZ Reserve Bank’s renewed thought leadership. They reported on the requirment for a "core funding ratio" focussed on liquidity.  The Economist conclusion is slightly dismissive "there is a limit to how far a funding ratio can go. Forcing too much liquidity on banks stifles credit. And in a genuine crisis, central banks will still need to step in".  But this week’s editorial shows the importanc of the current work.

There has been little mainstream media recognition of the significance of the current work. Check out the Reserve Bank Q and A for detail. Interest.co.nz has covered it. You’ll not find much elsewhere – they’re too busy worrying whether Bill English’s family housing will cost $30k  or $40k.

Getting banking regulation right could be millions of times more valuable to taxpayers.

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I’ve renewed my membership of Forest and Bird every year since 1974.  In 1996 I shut up more than half of my farmland for regeneration of native bush. I love trees.

But I despair when I hear the green idiots claim we’ll get more trees by telling people that if they let a tree grow on their land that part  will become public reserve. For that is what the currrent law does, in effect. The proposed reform does not go far enough.

Most tree control provisions in local planning schemes effectively nationalise the tree and the land on which it grows a few years after planting, when it reaches a size that other people might enjoy.  Without compensation you lose control of the tree and the land on which it grows, for the benefit of people who like to look at it.

The result? Wise folklore that says "dont plant trees". Certainly dont let anything grow to the expropriation point.

I would love to have planted native trees on our coastal land. In fact we did plant hundreds of native shrubs. They were largely killed by frost. When it came time to replace that failure we succeeded with mostly exotic species, especially flowering gums because they feed birds.

We’re lucky the natives did not grow. Because local planning rules "protect" native vegetation. We can’t afford the risk that if we grow natives we might not be allowed to clear building sites. Even if allowed we could have to pay $000s in RMA proceedings fighting neighbours or dopey Council "environmental advisers" for permission to deal with our own trees.

Only the environment loses when idiots who delight in bossing others around can disguise their nastiness as concern for trees.

Maori TV is fixed in my head for the hunting programme on Thursdays but I forgot to watch the Kadeer programme last night as I meant to. Unfortunately there appears to be no podcast of it.

I wish I’d seen it. It sounds to me as if Maori TV did exactly what a good broadcaster should do – that is show the Chinese Government propaganda as well the expose. 

I ‘m happy to be left to firm my own opinion without the station taking sides, given its praiseworthy decision to help fund the expose in the first place. 

What a contrast with the attitude of TV 3 to the other side of the "Let us Spray" story it spiced up by avoiding disclosure of facts inconvenient to its shock/horror thesis.

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I’m shortly to address a couple of conferences on governance issues. And several weeks ago I heard an inspiring presentation that gives me the confidence to broach a topic I’ve not dealt with publicly before.

I’ve long held heretical views on several cherished principles. In the late 1990’s I helped the NZ Securities Commission to oppose IOSCO efforts to make compliance with Governance Codes a matter of law all around the world, and helped steer the NZ IOD to similar scepticism while I was a Councillor.

This was not because I thought most of them were wrong, or unhelpful. But I was suspicious that some of the principles would be misused to cow directors and to divert them into ritual compliance when bold decision was needed. I feared that formal procedure would crowd out the enforcement of basic laws requiring honesty and performance of fiduciary duties.

I’d been worried about the alleged distinction between governance and management ever since I watched some companies crawl out of the post 1987 rubble to stand tall again only because brave and determined directors (usually chairmen) ignored the supposed rule that directors should not interfere in operational matters. They just got stuck in and fixed whatever needed fixing. Other boards stayed at the lofty strategic level, avoiding embroilment in management while their companies withered and died. Sometimes they knew little of the real state of the company till the end.  A dominating CEO can block grass roots bad news.

For my first 10 years in company law I doubt that the word “governance” had ever been uttered in my presence. Around the end of the eighties it crept in. Staff of government agencies about to be corporatized were reassured that governance conventions would muzzle their new boards, as the old reporting lines up the bureaucracy were shortened.

Given that company law had always referred to the companies being under the management of the directors, and directors were liable if they failed to manage, this stuff was new to me. But I could see the sense in exaggerating  the strength of the alleged convention if it dscouraged directors from interfering. I’d heard a respected senior Chairman explaining once that his people would only be as responsible as he made them feel – “You don’t have a dog and bark too”.

The early 90s developed this industry into a full blown frenzy.  As Tomorrow’s Schools brought power from the Ministry and the regional Education Boards down to local communities only “Your Charter and Treaty Principles” paid consultants better  than governance.

Principals and teachers panicked at the thought of parents using powers previously exercised by administrative superiors and inspectors. The guidelines for preserving managment motivation and responsibility became doctrine, establishing “no cross” lines. Unfortunately they can keep Board members too uninformed to present a serious challenge to all but the most incompetent principals. Neutered Boards should have been moving poor principals on just as managers are in other workplaces, every few years other than for exceptional leaders who might justify up to 15 years..

These new governance doctrines were reinforced when Governance theory suddenly became respectable in the UK. Sir Adrian Cadbury reported in 1992 on financial corporate governance. In 1994 Mervyn King reported on similar issues for South Africa. Over the next 6 years Cadbury and his committee members worked up material from various worry reports on the performance of the shareholders’ whistle blowers, into a 1998 report that became a full blown code for directors. At the same time IOSCO was trying to get international committment to making the principles in these codes compulsory.

I’m proud to say that the NZ Securities Commission asked to see more evidence that the principles, sensible as they seemed, were empirically proven to generate better outcomes for companies and their shareholders. That tradition has been maintained. To give credit where it is due, under Chair Jane Diplock, the Securities Commission’s recommendations on Corporate Governance recognised the absence of research evidence behind some of the recommended principles. They conducted a good consultation process and their report was careful not to claim more authority for their recommendations than they’d earned. They have remained advisory, not mandatory.

And so we have been spared some of the  mindless material that disfigures annual reports from the UK and Australia. Sadly, not all.

Our law is now full of busybody notions of what shareholders should have asked for from directors but did not.

Shareholders, even in small private companies are now effectively prevented (by director liabilities) from appointing a board that is there only for two purposes – to sack a CEO and find a new one when that becomes necessary, and to blow the whistle on obvious looting or foolishness. Instead they must create a trail of evident busyness, in their own defence. It is now too dangerous to be a sleeping director, paid next to nothing and expected to wake up and bark only when the there are smoke or burglars about.

Yet that could be the most efficient model for many companies, and be the best allocation of risk and reward, using the talents and above all the instincts of senior retired people without unfair risk to them. As director and senior management exposures rise, so does the pay needed to gain and keep them. If shareholders are to get the benefit of the risky decisions that pay off, while being handed by the courts an option to revisit those that do not pay off, by recovering from directors, then directors will need compensation for the asymetry. That will have to come off the returns for risk that previously went to shareholders.

So I went with some scepticism to a presentation on Corporate Governance at the British High Commission Residency, sponsored by NZ UK Link.

Andrew Kakabadse, Professor at Cranfield University School of Management was fascinating. He is currently doing a major world study of boardroom leadership, effectiveness and governance practice. A number of governments are participating, with the survey comparing Ministers of State (including British) with directors and executives. He has a £2 million research grant .

There are some clear results already. This study is simply adding to his existing data, according to him the result of surveying 12,500 organisations in 19 countries, with 900 boards surveyed in depth.

He says his findings have been unwelcome to the establishment in the UK. Interestingly it is not because they challenge old boy networks. Indeed some of them would reinforce old boy values. The findings are unpopular because they do not reinforce fashionable dogma. Some tenets of popular Governance Codes have little correlation with the success of organisations.

The quality of the chair matters above all. While there is an enormous diversity of types of successful board, nominal diversity within a board is not correlated with success.

Quality can come from in house appointments, with an executive chair, or from outside. Age helps, as does experience in business and as a director. Having worked under a good mentor helps.

But the key requirements are high intelligence, the ability to set boundaries (of responsibility, behaviours and to draw difficult distinctions) courage, diplomacy or ability to influence, and humility (to value and elicit challenging contributions).

Social intimacy is important. Dinners and other social time together help people to know and therefore to trust each other. Without that trust it is harder to raise hard questions in ways that leave relationships intact.

Boards need members who are independent challengers of orthodoxy, but they stay useful only if they learn how to be more than gadflies.

But most of all he emphasized that good Boards come down to the personal qualities of the people on them, and in particular how they are led, and that success is not correlated with the promulgation and observance of codes and formal governance policies.