There is nothing constitutionally improper in a Chief Justice speaking publicly outside her Court on matters of vital concern to the administration of justice. In the UK, from where we draw our conventions, senior judges have been much more prone to lecturing the government recently.

But nothing is costless. The courts and justice will pay the price in disrespect if the judges are not obviously being wise, and confining their comments to matters on which they are expert. Stray into political partisanship, or even criticise politicians even-handedly, and judges can expect to be treated like politicians.

In the UK there is open hostility between the government and the judiciary, as a once revered criminal justice system decays. It helped deliver some of the lowest crime rates and most free and civil societies in the world. Now the average UK citizen is at substantially greater risk of burglary and violence than US citizens. And our figures are worse.

Our Chief Justice quite properly complains that there are not enough probation officers to run community based sentences. She should speak out about the Executive’s failure to deliver psychological and drug and alcohol treatment  ordered by the courts.

There is nothing wrong in hand-wringing over the increase in prison musters. Our serious violent crime rate is a proper matter for court anguish. But genuine leaders only indulge in hand wringing when they have some necessary but unpalatable solutions to impose.

Our charming and intelligent Chief Justice has raised those matters, but her only ‘solution’ is for the state to declare surrender to criminals, more ‘interventions’ and ‘fences at the top of the cliff’. Her poorly researched speech offers nothing that was not heard ad nauseum in 1960’s idealistic party meetings and university common rooms (and parroted by me in my days as a member of the Prisoners Aid and Rehabilitation Society).

Instead of looking for evidence of what works she’s endorsed the maudlin sentiment of Shirley Smith, another kind and well-meaning but dotty lawyer.

There is good evidence on what works, from countries which have dramatically cut their crime rates. Foremost among them are speed and certainty of consequence. The evidence is clear. The only thing likely to alter our trajectory to having the longest sentences and the highest crime rates is well founded knowledge among those tempted to offend that crime will not pay. Criminals are gambers. Offer them uncertainty, and they’ll back themselves to win the lottery. So the CJ’s speech is lamentably damaging.

She has her own stables to clean, when on her watch the average delay to trial has doubled, the average length of defended trials has more than doubled, the number of judges has tripled over the last 30 years, and the cost of justice is putting it out of reach of all but the rich and those who qualify for legal aid.

The convention that politicians reinforce public respect for the courts was recently strengthened. In a sorry piece of Parliamentary self mutilation the Privileges Committee succumbed to the temptation to slap Heather Roy on the hand. Parliamentarians strenthened their self-tied gags on commenting in Parliament on matters before the courts.

Revisiting that stupidity might be one good outcome of this sad episode.

I can understand why our friend Seddon Bennington carried on into a storm. The Kime Hut plateau would be a glorious and  eerie experience the morning after a midwinter blizzard. Even the huts become paradisical when you reach them in a blizzard.

And I can understand how it might dawn too late even on an experienced tramper that a blizzard on those tops is beyond all previous experience. In fine weather the hut is a pleasant ramble from the bush edge.

As a first year student I had a taste, in a VUW Tramping Club southern crossing party led by an excellent trip leader, an older student who has since made his career in outdoor experience work. I’d encouraged a Malaysian friend to come along, his first experience of the NZ bush.

Nearly four hours after leaving the hut (Vosseller I seem to recall) around 10 of us were standing scared and shivering in the lee of a knob above a steep snow covered drop-off, trying to regain confidence in our leader. The wind screamed past, ice particles tenderised exposed skin and our parka hoods rattled and battered at our faces with so much noise we could scarcely hear each other. Some in the party were whimpering involuntarily just crouched with their backs to the wind.

To the credit of my Malaysian friend he stayed mute in his misery while the decisions were made.

The problem was that we’d just recognised the chocolate wrapping in the snow at our feet as the debris of our first rest-stop an hour or so after leaving the hut.

Plainly we’d come in an unplanned circle around the upper slopes of Hector, instead of  getting to the shelter of the bush on the other side.

Though he was not sure, no one knew any better than our leader where we were, so in the end we followed him again. We had to crawl in places, grabbing at the ice to stop being blown off.

Second time lucky. The hut was too damp and cold to heat up with its open fire, but still a paradise down in the trees out of the wind.

RIP Seddon.

Faced with a choice of films this week I was surprised by a friend’s flat rejection of Sacha Baron-Cohen’s Bruno. He wasn’t interested in snobs laughing at ordinary peoples’ good manners.

He hadn’t seen Toby Young’s review in the Spectator, but his suspicion were supported by it.   "Funny as Bruno undoubtedly is, Baron-Cohen’s film is fundamentally dishonest" – makes it not a must see for me.

Curiously I have yet to hear the view of any friend who has seen it.

Am I the only one sick of seeing "smart’ added to the mundane descriptions of  otherwise flimsy devices, schemes and rules.

I know, I know, it can be just a shorthand way of saying they have chips and computer driven interactivity with the owner or the environment.

But the word has also been appropriated by the Emperors who want to slide stuff past us hoping that no one will dare question something called ‘smart’ becaue it must be soo fashionable.

For ‘smart’ you can often substitute unproven, over-complicated, bad value for money or even fraudulent.

Smartmeters, smart-cars – OK. ,

Smart-phones, smart-pay systems, smart cards – Possibly.

But smart tariffs, smart accounts, and smart growth – Smart-arse.

This morning I was delayed walking to work around Wellington waterfront at the bridge by the Boatshed.

A small seal was lazily barrel-rolling its way under the bridge into the lagoon. A couple of families watched entranced, and one young Chinese tourist asked me if it was an eel.

A hundred yards further on, the tuis now living in Frank Kitts park were singing their usual choking song. They’re just opposite the rocks where the little blue penguins come ashore to screech and scrap unseen as I walk home the other way after dusk.

They’re also only 50m from the Len Lye water whirler fountain, around which a stingray can be seen cruising some evenings and mornings (though come to think of it, I have not seen him/her since I saw one being hauled in on a hand line a month or so ago).

Whatever else has happened to the environment, Wellington harbour is cleaner and more beautiful and apparently full of life than at any time since I arrived here nearly 40 years ago.  

Bernard Madoff has a ‘prison consultant’ to help on where he should serve his 150 year sentence.

It is not clear from the report (thanks Nikki Pender for the link) whether the consultant has a direct influence on the outcome, or just helps counsel to know where to ask for, and where not.

What an inspiration for New Zealand. Why leave the private sector to profit when the state could run the service itself? Presumably insiders know better than anyone which prisons are the shockers, and which are not. Perhaps the advisory service could be offered by the prison unions. There are two, so there’d be healthy competition.

Judith Collins could cut the process short by auctioning placements. That could defray new prison building costs.

Prisoners can influence where they go now. They can get to a Maori immersion unit by acquiring a deep interest in culture, or a faith-based unit by a conversion experience, to to Te Piriti by expressing willingness to undergo sex predator therapy.

Perhaps if Minister Collins’ department moves fast enough prisoners with means could order and pay for the container of their choice now. When they leave it could bear a plaque with their name, like family pews in some old churches, and Embassy Theatre seats.

It could be moved as the sponsor advances his criminal career. There could be a hitch though when the prison/parole/court cycle rreaches its zenith –  the most serious prison, Paremoremo, is not set up for containers.

Nevertheless, caring fathers could still provide for their sons and even mokopuna, with a family container reserved against the day. 

Here’s the heresy foreshadowed last week.

I’m inclining toward the need for a new publicly funded agency to remedy failure in the marketplace of ideas.

I say inclining, because it would unavoidably legitimise something I detest – taxpayer funded partisan public propganda on political issues. The Families Commission is currently at it. Children’s Commissioner Cindy Kiro seemed to do little else.

My worry is that our debate depends on adversarial dynamics. We assume that various sides of issues will get an airing because parties need to debate anything supported by competitors to maintain their separate identities, and to stay in front of their supporters. That assumption is now dead wrong.

Democratic debate is  shrivelled by political professionalism. Most politicians are  either professionals, or their mouths are controlled by professionals. Many have never had other interests or jobs. They’re steeped in the rules of political management.

So they’re too professional to touch ‘toxic’ issues. Adversarial processes of democracy do not ensure that unpalatable hard choice issues are thoroughly debated.  Things we would rather not think about are left untouched, for fear of taint.

Insiders know that  most swing voters are marginal voters. Most marginal voters know hardly anything about public affairs. They’re not interested. Whether they vote is almost accidental. They do not listen to arguments because they know so little or they find them upsetting. They feel that people should be nicer to each other. They turn off from people who argue ‘endlessly’ on things scarcely understood.

And it is those voters who make the difference, not the people who care passionately.

As advertisers know well, products sell and develop brand loyalty on image or aura. Consistency is needed to strengthen a good aura. And being associated with bad news and unpleasant issues is bad for the aura. Truth and importance come nowhere ranked against the need to avoid association with unpleasantness or uncertainty.

So we get large areas of important public discourse where politicians of every stripe will simply not be found.

The Broadcasting Act tells radio and television to worship balance. So it is hard for them to cover issues if their official Punch n Judy characters have ducked behind the curtain. Though they can say that one side or the other has declined to participate, there is none of the conflict tension they need if they can’t find spokespeople even to frame an issue.

Politicians have created specialist agencies to do some of that. It is probably an element in the enthusiasm for the creation of a New Zealand arm of Australia’s highly regarded Productivity Commission. Things that contribute to low productivity are often sacred cows, and asking whether those cows should go to the works is rarely palatable.

Maybe a need for unpalatable comment was behind some support for the creation of the Families Commission and the Children’s Commissioner. If so the capture of those bodies by the dreary anointed is a warning.

An Office of Devil’s Advocacy could need a very robust constitution to preserve it from its mealy-mouthed enemies.

From time to time I’ll list issues that would profit from frank and unpopular advocacy.

My post last Thursday promised a heresy the next day. My apologies to those disappointed to find nothing since then.

I”d expected to do it by Blackberry, but that link was inserting different fonts and print sizes at random, and I’ve been away from a PC.

The heresy will follow, but I must mention an email National Radio’s Jim Mora received but did not read to his Thursday afternoon listeners last Thursday – I think because he is a gentleman and always respectful to his Panel, at least on air.

That was the first time I’ve been face to face in his Auckland studio.  My usual experience, sitting alone in a darkened Wellington studio responding to voices in your headphones was left to fellow guest Richard Griffin.

I enjoy Richard’s company but had no idea he was the other Panel guest till I turned up at the Auckland studio.

It may have been a good thing that we were not together in Wellington. Jim might have lost control. We can both talk without stopping, and despite friendship Richard and I can always find things on which to disagree.  Occasionally he has to bow to the memory of his father, a left wing activist. I think Richard’s father might have been one of those rare beasts in New Zealand – a card carrying Communist.

That would have interested at least one listener. As best I can remember her email went along the following lines

"So your guests are Stephen Franks and Richard Griffin. Was Genghis Khan otherwise engaged"

Teasing out our leftist temptations might have been a more interesting topic than our confused references to Bach’s establishment of ‘equal temperament’ that took up the first quarter of the Panel’s hour .

I want small government. But I want a new government agency.

In my view the last unequivocally great agency to be created was the Office of the Ombudsmen.

Since then its been a steep downhill slide. We got a Commerce Commission, Commissioner for the Environment, Telecommunications Commissioner, Electricity Commission, Securities Commission, Retirement Commissioner, Human Rights Commission, Privacy Commissioner,  Children’s Commissioner and Families Commission (listed in order of value to man and beast).

I could be persuaded that some of them should exist as specialised investigation and enforcement agencies (like the Serious Fraud Office) but many of their functions would be better performed by the courts applying law of general application. And some of them never would be missed – indeed we’d all benefit if the bossy people attracted to them were obliged to find more useful work. 

The trouble with Commissions is that they tempt Parliament to breach the rule of law. Some Commissions make up law as they go so that we can not know the law in advance. They get wide discretionary powers to make codes and allow exemptions. Often their rules are outrageously vague. If they applied equally to all (another requirement of the rule of law) anyone could enforce them. Instead Parliament allows these low quality laws to be applied only by their pet Commissioners. The theory is that making it up unpredictably is OK in the hands of their well meaning anointed (like themselves)  Commissioners.

But of course power corrupts, and busybodies showing their superior virtue by thinking up new rules for the good of others can be as oppressive as any tyrant.

So why do I want a new offical body?

I’ll explain tomorrow.

On a quick run through the report it is very much as expected.

Eddie Jury J has had another opporunity to set out his idealised reconstruction of Maori ‘law’ and his mystical conception of a nation state governed by the anointed from two races in eternal cultural competition and practical negotiation with each other over the application of power.

He of course recognises that the Court of Appeal’s Ngati Apa view of the the common law rights Maori inherited with the British law they signed up to under the Treaty would never get Maori a fraction of what his mystical view would offer. So he invents a new set of customary rights which have apparently been under subterranean evolution for 160 years.

He also recognises that even the most naive pakeha politicians and commentators will sense that there is little future for a country engrossed in endless hui over the scope of rights inherited by ethnicity.

So he wraps it all in mystifying abstraction and says lets set out on ‘conversation’.

What else did the government expect when they accepted the Maori Party request for such a partisan inquiry.