Welcome
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
Some friends are exercised by the Police use of an LAV armoured vehicle in the Molenaar siege, without the Prime Minister's authorisation under section 9 (5) of the Defence Act 1990. They're worried that a brief blog debate was scarcely echoed in MSM.
They're doing the lawyerly thing, chasing process breaches. That is an admirable preoccupation for lawyers if the rule of law is to be upheld. But I think they're chasing rabbits when there are foxes about,
The real question is whether the changes to the law in 1990 were sensible. To me they were not. The PM's consent requirement does not guard against the risks in routine military involvement in domestic policing. But it could delay sensible use of the threat of overwhelming force, by making it seem too big a deal politically.
In my opinion Geoffrey Palmer denuded our law when the Riot Act was repealed. Every state needs to have, and to be able to demonstrate that it has, both the capacity and the willingness to crush decisively direct armed challenges to its power to keep the peace.
The restrictions on deployment of military in support of civil authority are old. They were fuelled by Parliamentary fear that they would tempt the Crown to abuse prerogative powers. The military were pledged to serve the Crown and Executive without question, whereas the Police are pledged to be independent servants of the law (the Courts).
Fears of Crown perversion of the military to suppress the citizenry should be reduced now that the military have accepted emasculation by their own lawyers, with rules of engagement that expose officers and men to hindsight judgment on vague tests.
The temptation for the Crown to usurp Parliament is also much less strong, if only because Parliament is relatively toothless in competition with the Executive anyway, so why bother.
The question of Court control is more pertinent, but I see nothing sinister in principle in military assistance under Police command.
More compelling to me is to think of what will evolve if there was a serious restriction on the Police calling on the military for help in a Molenaar situation. Ordinary citizens will be most impatient with the idea that our hundreds of millions worth of armoured vehicles should sit idle while Police and civilians could needlessly die. The public rightly will not tolerate the notion that the Police could be paralysed by a determined armed challenge.
The political and Police response would be inevitable – build a Police military level capability. How is that better than rare Police use of military people and equipment?
I’m seeking approval to copy here a couple of smart responses through Facebook to my swine flu post yesterday,
In the meantime the Chapman Tripp HR Manager has promulgated a scary list of rules on dealing with flu suspects.
Strangely the list still omits a campaign I thought we’d see weeks ago. Nor is this obvious rule on the Ministry’s Q and A web page.
How about a consensus for the duration:
to stop shaking hands; and
not to hongi (rub noses)!
Why has this not been addressed in any official worry stuff? I’ve tried to remember for a couple of days not to stick my hand out, but it is pretty ingrained. I’ll certainly not be offended now though if my hand is ignored.
Would it be easier if instead we all took up the hongi ( we’ve adopted "Kia ora" widely ) so the whole country gets this flu over with early?
All too rarely an official announcement earns memory space for its common touch.
Today’s release from Director of Public Health Mark Jacobs, qualifies. He urges people not to spread their flu germs, because:
"The influenza virus spreads very easily – via droplets in the air when a person coughs or sneezes and doesn’t cover it up. The germs can live on hard surfaces for 48 hours. has that quality."
Then follows the gem of simplicity:
“… cover up your coughs and sneezes with a tissue. Put it in a bin straight away. If you don’t have a tissue handy, bend your arm and sneeze into your elbow to stop germs spreading through the air. Wash and dry your hands thoroughly, particularly after coughing or sneezing. It’s also important to stay away from sick people…and if you’re sick, stay at home".
This announcement is to me a model of how officials should communicate with the rest of us. But don’t bother looking for it on the Ministry’s website. I got a copy of the release, but I can’t find it to link to on their latest releases page, or the swine flu page. Indeed the swine flu pages are months out of date.
In 1992 I spent several magical months at the University of Chicago Law School. I vaguely intended to write up while there my theory of the source of premiums on a takeover.
In the result that project could not compete with interesting workshops, lunches and lectures to attend. Among those met over lunch was Frank Easterbrook, a Reagan appointed Federal Circuit Judge. He’d shortly before published a book (with Fischel) on Corporate Law, and he remained an active teacher,
He was immediately sceptical of my theory – that the size of the premium would positively correlate with the inadequacy in enforcement of law against controlling shareholder looting – i.e. that it could be a reflection of the weakness or strength of a jurisdiction’s fiduciary principles). I was discouraged, till he called a week later and suggested meeting at 7pm to go over it again.
We spent an hour and a half. I was amazed that a nationally renowned academic and judge would give that kind of time to a deservedly unknown lawyer (not even a published academic) from New Zealand. In the result he was encouraging, but I needed to find an economics researcher to test the theory empirically. That killed the project for the time being, and I’ve moved on to other interests in law.
But I’ve sporadically checked up on Easterbrook’s judicial career.
Now he’s cited to balance a criticism of Obama Supreme Court nominee Sonia Sotomayor. One of her judgments, said to show her ‘liberal’ (left) orientation, held that the 2nd amendment right to bear arms did not necessarily trump restrictive State gun law even though it defeats Federal law. It turns out that she shares that opinion with Frank Easterbrook. Frank decided that it would be judicial activism for his level of court to extend the Federal law position to the States. If it is to be done it must be by the Supreme Court.
As the question seems now to be headed to the Supreme Court, Sotomayor could get the chance to answer it.
I’m not surprised if juries are becoming less constrained by protocols. Some jurors probably turn off to anything they’re told after their initial briefing when they are empanelled.
As a lawyer I’ll never be allowed to see it from the inside, but a friend told me of his shock at PC aspects* of the process (*see the update below).
He was first penned in with a mass of prospects who’d answered the summons to jury duty. They eyed each other, comparing notes on the best ways to provoke a challenge to escape without being caught in a trial. Some had chosen dodgy clothing. Others put their faith in goofy postures or mannerisms.
Off-hand staff then switched on a video outlining the role, and left (for a fag he suspects). The patronising video spooled through, first in English, then Maori, then Samoan, then Tongan, and he thinks other languages.
There was no one to answer the legitimate question of one disgruntled prospect – "why would someone who can’t understand enough English to hear these instructions be allowed to decide on guilt or innocence in a trial conducted in English".
The video carried on, completing two full rotations before the bored staff returned to switch it off.
PC idiocy at work does not encourage people to think that the rules matter.
[Update – Another friend has given more background. He says the video actually tells people in lots of languages to make themselves known to staff if they have trouble understanding English. That sounds sensible, not PC. It would be good to have a recent authoritative report.]
I helped Richard Prebble write the private letter in which he warned Helen Clark of the allegations of underage sex by a Dover Samuels "relative". Richard emphasized its confidentiality. We did not mention it to anyone, including any in our caucus.
The letter suggested that she get someone independent to investigate the circumstances. So I bitterly remember how the TV cameras turned up in our offices the following day and followed us around without telling us why, before Clark launched her attack on us in the House, as "muckrakers". Even though some members of the Press Gallery knew (as they later admitted) that Clark’s office released the letter, I remember the entire gallery choosing to make our "targeting of Dover" the story. Six months of voter Siberia followed for us, including from some of our own ACT members.
I remember the media studiously ignoring Labour’s breaches of Electoral Law before the 2005 election. On 5 September 2005 I called several journalists who knew that I did not make things up to background the following release –
"ACT Justice spokesman Stephen Franks has written to the Auditor General seeking an investigation of the use of parliamentary funds for Labour’s red election pledge card.
The card bears the parliamentary crest to be used only on parliamentary material, not political election propaganda.
“If Labour has paid for this card, despite the use of the crest, it would be a minor matter. But at the Brooklyn community election meeting last night, Marion Hobbs defended her party’s use of taxpayer’s funds.
“She told me and the meeting that it was paid for from Helen Clark’s leader’s fund and that was alright because the parliamentary leader’s fund was meant for that sort of thing. She compared it to an MP’s electorate office.
“The leader’s fund is subject to the rules against election propaganda.
“Is this yet another rule that Helen Clark has decided does not apply to her,” Mr Franks said."
It took the Auditor General’s report months later to force any coverage.
What’s the connection between these two old pieces of history and the Worth affair?
John Key sacks a Minister who fails to live up to required standards – as soon as that is evident, and without demanding a Police investigation or conviction first. Think of the contrast with Clark’s corrupt protection of Field, Benson Pope, Peters.
Yet the media immediately parrot Goff’s rather desperate counter-attack, that John Key took too long. The media story is all about John’s difficulties.
National has to accept governing in spite of the media. They need to connect with the 80% of New Zealanders who mystify the media, those who do not want to be told how to rear their children, who see through the fog of in-group snobbery that suffuses NZ political journalism.
The media are largely Labour’s. They’re incapable of objectivity. It is not calculated low ethics or un-professional standards. Most have a poor knowledge of history. They simply do not know how much they do not know.Though they earnestly believe they’re unbiased, in fact they fall in with Goff’s strategies with the eagerness with which they played their assigned roles for Clark.
National strategies should plan on by-passing the media to connect directly with voters as far as that can be acheived.
Obama is doing it now, for different reasons (he has an adoring media) but to by-pass the Democrat Party dinosaurs. He can’t be beholden to them, because they suffer much the same disconnect from mainstream US voters.
National needs to crank up its internet communication capacity urgently.
"No surprises in this evening’s TV ONE coverage. The QC showed the common court lawyer belief that costs are irrelevant when “justice” is at stake. To him it was imperative to retry Bain simply because otherwise serious offences would go unresolved. He showed no apparent recognition that the evidence has now been trawled, the battle lines are drawn.
Why would a new jury change any minds? Those convinced of Bain’s guilt will not change if a jury is persuaded now to feel that it can not be proved beyond reasonable doubt. Those who already feel the evidence did not meet that standard will be similarly unmoved by another $10m spent rummaging through stale evidence and rickety memories.
Bain has served most of his sentence. By the time he is reconvicted it will have virtually expired. The Crown is not obliged to compensate him. He has not asked for a new trial to clear his name.
This sleeping dog should be left to lie. It has been rolling in ordure. Nobody will want it near them, whatever they may think from a distance."
I followed up twice on 28 April and 2 May this year. Long before that I’d tried to persuade a Solicitor General and an Attorney General to apply more cost/benefit assessment in old cases, where the limitation period should probably preclude a trial anyway.
Instead they’ve wasted money and exposed many dedicated police to deep disappointment, by purporting to serve the interests of justice when they’re really displaying only self importance in the justice establishment.
In April I mentioned " the Elliotts, who lost their daughter Sophie to her murdering economics lecturer in 17 months ago, still have not had the closure of a trial. Police who should have been free for that case have been tied up in the Bain folly. …
Many justice insiders believe that what they do is sacred. They are sincere,and it is important. But they are not challenged as they should be [by demanding that they prioritise]."
The Bain retrial was a scandalous mis-prioritisation. If resources were unlimited perhaps it could be justified. In my opinion Bain probably did it. But at this distance ‘reasonable doubt’ is the prudent conclusion.
There are many wrongs that go unremedied. While current criminal trials are held years after the event the use of scarce resources for another crack at Bain was inexcusable.
NZ Parliamentarians congratulating themselves for not being in a British style swamp should thank Rodney Hide. He was loathed in Parliament when I arrived in 1999, for his dogged pursuit of MP rorts. He’d broken the cosy club rules. Nevertheless he did create a climate of caution and forced Johnathon Hunt in particular onto the defensive.
That does not mean Hunt as Speaker was vigilant against fraud and corruption. I’ll never forget him declining to investigate after we found out that Donna Awatere had tried to sell her vote to Bill Birch in exchange for money to the Pipi Trust. Hunt said the complaint had not been raised soon enough.
In this area we owe nothing to our media. Being programmed by their idealogy to associate the Right with privilege, they never understood or reported the ACT party’s consistent targetting of unearned privileges, so unlike the UK media now, they simply did not follow up stories of Labour sleaze, and usually turned our exposes into attacks on our alleged "muck-raking.
For example, they dropped the story of Marian Hobbs and Phillida Bunkle’s claims for out of Wellington housing allowances as soon as Labour’s investigator suggested the rules were confusing, and gladly reported that "finding" as "clearing" them. They did not seek out other cases.
It took a mammoth effort to get Winston Peters exposed, for which Phil Kitchin and Audrey Young deserve credit, but years earlier other journalists did not follow up on our own "cash for questions" scandal over fisheries, in stark contrast to the determination of the UK press.
That brings me to the serious attack on free speech now sponsored by the Charles Chauvel chaired privileges committee. Their recommendation would tighten the prohibition on mentioning matters before the courts. It would play into the hands of ruthless people like Peters. His abuse of defamation law should have resulted in the opposite recommendation.
There is no reason for Parliament to allow the courts and the lawyers additional respect. The Courts should have instead been told to clean their stables before Parliament allows them any more power to stifle free speech.
In the face of ballooning trial times, out of control cost, huge delays, the failure to create effective sanctions against abusive exploitation of process, the witless use of name suppression, the arrogant gagging of media on matters of public (intenet) knowledge in a pretended concern for the integrity of trials, the absence of disincentive to gagging writs, the committee has put one of our few free speech safety valves at risk.
This post was corrected after Phil Kitchin pointed out words that left him and Audrey Young in the category of journalists from which I intended honourable exclusion
I’m committed elsewhere otherwise I’d be curious enough to go to David Farrars’ brilliantly advertised meeting (booked out) on this topic next Wednesday.
I wonder what they’ll make of the "theology" Obama is said to represent. Have a look at the links in this article from a theology blog.
The budget may warm me. Our home was built in 1897 and it’s largely uninsulated.
But I’m curious about the argument that insulating homes will eventually save money on healthcare. For a start, prolonging life does not generally save money. We consume more health care the longer we live. And most of our lifelong health care expenditure is in the last few years of life, especially when we die old when everything is falling to bits.
No – we save lives and try to keep people healthy because of the golden rule ("do unto others as you would be done by") in spite of the extra cost of extending life. It is kind to keep people healthy if we can, at least for those (most of us) who like life.
I’m also suspicious of claims that no insulation causes ill-health on its own. I’ve been meaning to study the research. Are we sure it is not more convenient than careful?
I’ve always preferred a warm bed in a crisp room. It’s hard to accept that on its own air temperature in homes could so strongly influence health outcomes.
We’ve evolved over thousands of years with massive diurnal air temperature changes. We’ve had thousands of years of cold nights, protected only by our ability to wrap up in furs and to cook our hands and faces before fitful fires.
Are we sure that the health research cited to show cold houses as a cause of sickness is not just shadowing house quality correlations, like social class, income, diet, race susceptibility to asthma or other conditions known to be triggered by cold air. How robust is the evidence that old cold houses made warmer with insulation will not stay just as ‘unhealthy’ because of dampness or poor air exchange (no windows open once there is warmth to try to keep) or indoor pollution (tobacco smoke, formaldehydes or allergens).
What is the evidence that when our cold houses cost less to keep warm we’ll use less electricity? We might just wear fewer clothes inside and burn through the same or more energy. Has the behavioural response to insulating been established?
I should not speculate like this without checking the research, but perhaps someone else will save me the time.
Trouble is there are too many Green policies based on well-meant intuitions about how people should act, not how they do.
Perhaps the subsidy will not be wasted if most people like living in a warm fug. But what if it makes us sicker?. I’m suspicious of the health effect of the new subsidy for "clean heat’ installations. When they just move air within houses to me they look like next decade’s health research scare in waiting. I’m particularly unexcited by systems that suck in attic air ( with fine glass fibres from the new insulation) and blow it into the bedroom.
I prefer my air fresh, even if it is "dangerously" cool.
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