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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

Come on Mount Victoria

  • July 14th, 2008

The Mount Victoria struggle to keep its community centre, Crossways, is inspiring but now desperate. Cathy and I went to a fundraising Victorian-themed dinner on Saturday night.

It was warm and friendly.  Mt Vic-based Paula Hunt Dance Academy entertained, and good food was sponsored by local cafes, Strawberry Fare, One Red Dog, Deluxe Cafe, Kai in the City, Kosmos Greek Taverna and coffee from Caffe L’affare.  Just as a community event should be. 

The old house did what it has done for the 30 years Cathy and I have lived here, providing a haven for neighbours to meet, whether they come in pairs or singly or in groups. We watched the Springboks win companionably upstairs on a big screen lent by another Mount Victoria resident for all the 2008 matches.  

A huge sense of community brings Mount Victoria together but it may be too late for this house.

For Cathy and me, it was nostalgic. Cathy and other mothers (nearly all) catered  regular Friday night cafe sessions at Crossways, raising money for Clyde Quay kindergarten 20 years ago.  Fathers did dishes. It was many of the same neighbours and friends of those days putting on the meal on Saturday to find money to keep the building as a community centre. 

The committee doing the fundraising has done a fantastic job – they filled the Paramount last week for a showing of "Lovely Rita" by Mt Vic filmaker, Gaylene Preston.  They’ve raised $75,000 from residents, been offered an $250,000 interest free loan and a low interest mortgage from Kiwibank.  The Wellington City Council turned down a proposal for a $250,000 grant to help their offer of $1.2 million to the Presbyterian Church, which wants to sell the building to pay for renovations to St Andrews on the Terrace.  The building is now on the open market.

The Wellington City Council does not support the local bid.  I understand that they worry about high maintenance on the building, support purpose-built large community centres rather than small local ones, think that "poorer" suburbs deserve community centres more, feel that Mt Victoria residents have lots of cafes nearby for meeting and there are alternatives in the vacant Bandoliers Clubrooms on the Town Belt and in the rooms under the Band Rotunda in Oriental Bay.

Yet the building is in good condition, a wonderful centre for a very dense suburb of people in houses on small sections.  For my children, the sense of community in the local suburb was important.  They went to different primary schools  and yet our son walked to Wellington College on his first day with his old friend, Joseph, from the next street.  They’d played together in the sandpit at Clyde Quay kindergarten and then met every Friday at the fundraising meals at Crossways. 

For inner city suburbs, community is sometimes difficult as there are so many choices.  Cafes help but are not the same as a community centre.    The council talk of "community" all the time but where are they when it is under threat?  The Bandoliers might be great for a creche but it is isolated and recent  rules mean a lot of money will have to go into bringing it up to required standards.  My guess is that the local creche will close.

So come on Mount Victoria!  Lobby your councillors. Ian McKinnon, Iona Pannett and Stephanie Cook from Lambton Ward with Andy Foster, Celia Wade-Brown and Brian Pepperell supported the proposed grant.  The other councillors voted against it.  Convince those you know that community is important everywhere for Wellingtonians.  Especially when it is there already.  Just as important as one-off events that bring visitors to the city’s hotels.  Make this continue to be a fantastic city to live in as well as visit.

 

 

First class government service

  • July 12th, 2008

Among the pleasures of company law practice has been two decades of ever-improving service from our Companies Office. Their website has got steadily easier to use, many more things can be done on line, and charges have been substantially reduced.

Those responsible should be nominated for NBR Business Hall of Fame.

I was reminded this week of that sustained superb performance by an attempt to search a client company’s details on the UK’s Companies House register.

Here’s what came up each time –

"Access to the service is closed

Companies House is available from Monday to Saturday 07:00 – 12 Midnight UK Time

We are interested in your feedback on the availability of our on line services. Please click here to fill in our survey.

Return to Homepage"

Eventually I managed to coincide with a time when they were operating. Negligible detail is obtainable without payment.

Out of curiousity I went to the feedback page on their operating hours. It asks for ticks on boxes to indicate extra opening hours desired.

What on earth is stopping their computers from answering queries 24/7?

My firm’s company search expert  asked them some time ago. Their answer – "we need time to do back-up".

How do they stay an international financial centre?

 

Bernard Hickey fortnight

  • July 12th, 2008

To understand why informed business is gagging for the end of this government, you could do no better than review Bernard Hickey’s last fortnight.

Start on 27 June with a report from an appalled consultant on Government agency inefficiency.

Move to 30 June with Bernard’s comment on the Auditor-general’s despair at defence procurement systems.

On 2 July a piece on SPARC, essentially backgrounding National’s sports policy (announced on 30 June). The title says it – "I’d jump for joy too if I was paid $100k to give away money". I do not accept that a high proportion of people with high salaries is prima facie wrong. In my experience it is often better to hire a few expensive expereinced genuine experts than floors full of wannabes. But he’s right to be asking for explanation. 

On 2 July "the kafkaeque madness of Tiaho School", on the frustrations of dealing with the country’s worst led bureacracy.

10 July came back to SPARC with "The money pit that is the Mission-On website".

If he had blogged on the ANZ economists’ report on the low quality of government’s "investment" in growth he’d have the whole fortnight’s catalogue.

Labour have blown the opportunities presented by  the best terms of trade of my working lifetime on hiring people to stop the rest of us from exercising initiative.

Kudos for Key

  • July 10th, 2008

Today’s Transtasman news letter has uncharacteristically unequivocal praise for John Key:

Key is one of the few National leaders who has been able, through his own personality, to inspire a loyalty in Caucus which in turn has created its own discipline. In other election years when an Opposition senses it has become the Govt-in-waiting there is a jockeying for position among the more ambitious and snide comments about colleagues. Key may be untried, but he knows how to run a team, and get the best out of them, an essential quality for any aspiring PM.

Lawyers, the deception of a Court, and judicial spite

  • July 10th, 2008

On 25 June after reading Phil Kitichin’s first story on the background to the killing of  Debbie Ashton I wrote to my local District Law Society. The letter is set out below because it contains the relevant law society rules, though the Ashtons’ direct complaint will have superseded my suggestion of an inquiry.

I did not then know of the complicating factor – that the offender was under a witness protection scheme. If I had known that I’d have found the question much harder, and probably would not have written. The lawyer concerned has my sympathy now, for a very difficult position.

Without the suppression orders much of the attention to this case would have been over days ago. Yet in what appears to be been no more than silly spite, the judge who finally lifted the suppression order delayed its effect till 9-30 am yesterday, apparently thinking to punish the DomPost by denying it the chance to lead with what it had helped to uncover.

My (superseded) letter was as follows:

"Dear Mr Clarke
As a member of the Society I ask that it investigate the background to the statement in today’s DomPost (page A7) that an offender mislead a judge with a different name from the name under which his criminal records would be kept. The statement says:
“[Police, Probation and] his lawyer..all knew he had already lost his licence and was again appearing for offending while on parole. They all knew he had previous convictions and that he was going to use a different name in the court.
The judge knew none of that. The man was treated as a first offender..”
 
From what is said it appears that the lawyer connived at least in misleading the court. If so that breaches the ethical principle that underlies the Rules, and probably the words. For convenience the relevant Rules appear to be:
 
“In the interests of the administration of justice, the overriding duty of a practitioner acting in litigation is to the court or the tribunal concerned. Subject to this, the practitioner has a duty to act in the best interests of the client.
Commentary
(1) A practitioner must never deceive or mislead the court or the tribunal.
(2)
(3)
(4) The practitioner has an obligation when conducting a case to put all relevant authorities known to the practitioner, whether decided cases or statutory provisions, before the court – whether they support the practitioner’s case or not.
(5) If a point of law which affects the case is discovered by the practitioner some time after the hearing but before the decision has been given, the practitioner has a duty to bring it to the attention of the court and to provide a copy of the reference to the practitioner acting for the other party or parties in the matter.
6) See also Practice Note [1968] NZLR 608 regarding the correct procedure as to submitting further information to the court after the conclusion of the hearing.
….
Rule 8.01B
A practitioner shall not knowingly fail to discover a relevant document.
Commentary
(1) Practitioners are reminded that the duty to discover relevant documents is a continuing one up to and including the time of judgment.
[Rule 8.01B was adopted by Council resolution on 31 October 2003 and came into force on 1 January 2004. Refer also Rules 1.08, 2.03(1)(ii).] “
 
I ask that the Society not wait passively. If it is necessary for you to assert jurisdiction I will lodge a formal complaint, though I do not know the name of the practitioner (the suppression orders are themselves scandalous since our courts and justice system are supposed to be open so that we can all have confidence in its integrity).
 
Public confidence in  the integrity of our criminal justice is  collapsing. We lawyers have both a duty and substantial interest as citizens and for our careers to try to reverse that.
 
It is possible that the otherwise inexplicable conduct reported of the Police and the Probation Service is the result of corroding cynicism. Maybe they think it is just practical to collude to prevent the courts from applying the law as it is written because the government does not want to build more prisons.
 
But even if that is the case the Society should stand behind the judges’ right to decide sentences with the benefit of the whole truth and nothing but the truth.
 
Please make sure that our profession is clearly seen as not approving of justice as a  deceptive charade, a game of tactics.  Parole has already made liars of  sentencing judges, when the victims did not appreciate the effect of parole rights.
 
To counter the view that we are part of the pattern of deception we as a profession should  be especially energetic to underscore the lawyers’ duty of candour to the courts.
 
Regards
 
Stephen Franks"
 

 

 

Who can fix it if you’re fat, or disliked, or you’ve wasted your money?

  • July 10th, 2008

Read  the whole of UK Tory Party leader David Cameron’s "broken society" speech. Then look at the intelligentsia’s variously surprised, suspicious, cynical, or bitter reactions (for example the commentary in the Guardian, the Mirror, the local Glaswegian paper, the leader of the Liberal Democrats ).

Cameron is saying the solutions require personal responsibility. But the reactions show where he could legitimately lay much of the blame for the breakdown in belief in personal responsibility. The intelligentsia reacts furiously to questioning of their faith. They’ve spent the 60 years since the second world war desperately peddling collective fault as a substitute for personal responsibility.

This is a major strategic move. Instead of backing off ,Cameron has followed up with more.

Could he be heading in the direction explored years ago under Jim Bolger then Jenny Shipley? Remember the draft Code of Social and Family Responsibility? It included trying to maintain a healthy lifestyle. The effort wilted under withering attack as a "Nanny State" measure from one  H Clark. She added that Shipley "wants to busy herself with what goes on in the homes of the nation in areas which families regard as their own responsibility". Need anything more be said?

Here are some of Cameron’s key passages:

"We talk about people being ‘at risk of obesity’ instead of talking about people who eat too much and take too little exercise. Of course circumstances – where you are born, your neighbourhood, your school, and the choices your parents make – have a huge impact. But social problems are often the consequences of the choices that people make."

"We as a society have been far too sensitive. In order to avoid injury to people’s feelings, in order to avoid appearing judgemental, we have failed to say what needs to be said. We have seen a decades-long erosion of responsibility, of social virtue, of self-discipline, respect for others, deferring gratification instead of instant prettification

"Instead we prefer a moral neutrality, a refusal to make judgements about what is good and bad behaviour, right and wrong behaviour. Bad, good, right, wrong: these are words that our political system and our public sector scarcely use any more."

"There is a danger of becoming quite literally a de-moralised society, where nobody will tell the truth about what is good and bad, right and wrong. That is why children are growing up without boundaries, thinking they can do as they please, and why no adult will intervene to stop them – including often their parents."

Labour fury is predictable, but what about some of the other typical reactions:

Nick Clegg, the Liberal Democrat leader, lambasted the Tory leader for "debasing" arguments about social problems.

Unison, the public sector union, said: "People who work in the public sector spend their daily lives looking after people, caring for the sick, teaching kids and making sure our streets are clean and safe. They are not helped at all by such silly comments by someone who ought to know better."

I bet most of Unison’s members, who actually face the demoralised, would have endorsed  Cameron’s commnets.

‘Women and children first’

  • July 8th, 2008

When I was growing up ‘women and children first’ was the axiomatic rule of modern chivalry. The rule encapsulated our care for the vulnerable and the community duty of the strong.

Only a carefully reinforced spirit of self sacrifice can make the strongest ensure the weakest are safe before they use their strength to save themselves.

We celebrated cases of our strong putting the vulnerable first as the marker between the morality we shared as a society drawn from Britain, and the ‘dog eat dog’ morality of the peoples we felt sorry for. They clearly had less reason for self respect.

Reading today about the boom in sales of stab-proof vests and body armour in Britain I was reminded of something almost missed a few years ago when Labour brought in the Arms Amendment Bill No 3. This Bill is languishing in Select Committee, I hope because Labour is now too ashamed to progress it.

For it will make it unlawful for people ouside our State apparatus to have body armour.

That’s right – not only may you not defend yourself effectively, you may not even protect yourself passively, on the remote possibility that your body armour could be used by a wicked person to defeat the bullets of our (un-armed) Police.

We’re now a society that tells its strongest to hide while vulnerable civilians find out whether murderous robbers are still about. That is enough of a reversal of morality. The left, which spent so much time scoffing at the supposed selfishness of the capitalists has now told the strongest workers to look after themselves first. Women and children come second.

One British manufacturer mentioned teachers as their big growth market. A vicious generation showing  their contempt for law with thousands of stabbings, is cause for panic. Would they say teachers can wear armour but not the children who are at greater risk?

Events show daily that the strongest can not possibly protect the innocent everywhere in a stretched out land, unless the innocent  are called on to help as they did routinely until 30 years ago. The only justification for abolishing ‘women and children first’ has been  shown to be false. We’ve now got the results of the experiment. Several decades of the strong first making themselves safe they could better ensure the safety of those they’re sworn to protect.

Sadly is seems it’s just encouraged the wicked to see themselves as more staunch than the  cops

‘Women and children’ (and liquor store and bank and service station employers) must not be prohibited from getting the same protections without which the strong and the brave will not venture out.

 

 

Wellington employment law

  • July 7th, 2008

The PM is now screeching over National’s 90 new employee probationary period, though it’s shorter than international norms.

It will be interesting to see if Annette King and other Wellington Labour candidates join in the screeching. King was once on the less irrational right wing of Labour. She’ll know how much damage the lack of a probationary period has caused to potentially risky employees.

She’ll also know of the dangers to Wellington if Labour’s own announced employment law changes proceed. If contracting and temporary or casual work by New Zealanders is stifled, that vibrant Wellington creative sector will sputter. But the business model will continue, with a change.  Instead of contracts to locals, more contracts will go offshore.

Bangalore will be grateful to the spiteful fools about to lose power in New Zealand.

Indeed, so vulnerable is Wellington’s contractor driven economy, Annette King should consider doing a Hawkins.

George Hawkins has tabled member’s bills to give his electorate special laws (such as on graffiti and glue sniffing). They’ve embodied policies that conflict head on with the direction of 9 years Labour ideology. They also conflict with 40 years of concentrated effort to eliminate local differences in our criminal law. Only the West Coast managed to protect its different rules (and only because Police had to accept that they’d be ineffective if they ignored local custom).

King could now move to exempt Wellington from her colleagues’ pending law to destroy contracting.

She was once an ideological soul-mate of Hawkins (see Bassett’s new book for the background). Hawkins independence has worked for him. It could save King’s reputation.

Employment law policy difference

  • July 7th, 2008

National’s optional 90 day probationary period for new employment is sensible. It would have been surprising if National had not re-committed to it after a strenuous attempt to get Wayne Mapp’s Bill passed, but the policy timing is welcome none-the-less.

Hopefully the Maori Party will support it this time. The people they claim to speak for have more th gain than any one else from reduced employer anxiety about being stuck with a dud if they risk giving an unpromising prospect a go.

 

Policies or Character?

  • July 1st, 2008

 This post sets out an email exchange (edited) after a neighbourhood meeting last week. These meetings used to be called "cottage meetings". Supporters volunteer their homes to give neighbours and friends an hour or two to get to know candidates face to face. Hot debate can emerge.

At this particular meeting a sceptic was pressing for specific National policy on matters not familiar to me. Another guest intervened with the view that the last thing citizens should be doing is falling into the trap of encouraging political parties to develop detailed policies. I supported one of his reasons with some personal experience,

Here’s what followed –

Stephen,

That was a very enjoyable evening on Monday.

I was interested in your experience that the predominant attitude at select committees, if the media is absent, is "what would be good for New Zealand?" It is certainly my experience over more than 25 years now that virtually all ministers genuinely seek to serve the community. Some are more successful than others, but I’d add that nearly all leave office better ministers than when they started.

Part of the reason for this is that in office, ministers realize that policy development is a professional activity of which political activism is only a part. It takes time and effort to define feasible alternatives, and to evaluate them using the preferences which emerge from the political process (which may not be those of the policy analyst).

That was what I meant when I said that the last thing I want is politicians and enthusiasts making policy.

It is also relevant to your efforts to ensure that public servants in Wellington Central can expect to feel valued by a National-led government.

It is also true that one of the clearest conclusions of psephology is that electorates respond to their evaluations of leading politicians more than to policy statements. This has been true since polling started; if we had polls earlier, we’d probably find that the great issues of the nineteenth century – Irish Home Rule in Britain, or slavery in the US – determined election results far less than we usually assume.

It is the media that preserves the myth [that parties should be judged by the volume of policy], anxious to maintain its own role as arbiter of policy proposals. It is also the media that keep us thinking that elections are about government rather than the composition of parliament.

I was glad to see you hold your ground against pressure to line up against wind-farms or for incentives for business (by which the questioner really meant subsidies). I hope your political colleagues will do the same (to all lobbyists, even those who seek commitments to objectives I favour).

We need to think about what should be revived from the 1980s. What we are most missing is the conscious effort in the 1980s to get things right and then explore how they could be made acceptable.

There were errors – New Zealanders want more collective activity than was assumed. I think this is true even of educational policy, including the bits in which I was involved. I think you would be unwise to put a great deal of weight on private schools; I suggest you think about what we want through "public education"; I expect less emphasis on public ownership to evolve naturally. (What is ‘public" about the "public transport" which generates favourable responses in the electorate?)

Your themes of risk-taking, and making an impact on crime through ensuring that a price is exacted without descending to being exclusively punitive are a good basis on which to appeal to the electorate. I suggest you might like to add reviving "investment" as requiring above all active monitoring to ensure that returns justify the initial sacrifice – the business community but also many others are disillusioned with treating investment as equivalent to "expenditure on an objective I like, at the expense of somebody else."….

Best wishes

I went back with the following (with examples since edited in) –

Gary

Thanks for taking the time to follow up.

I’ve never heard any public advocacy of the position that policy should not be the first priority of a political party.

I’ve only come myself to accept over the last 5 years that assessing character is the much more important task for voters in an election. The people are right to be more interested in revealing gossip than serious policy pronouncements, because many politicians shuck policies like clothes. [Think "closing the gaps", "returning to the top half of the OECD" and the biggest of them all, (not that I’m complaining) a Labour PM from the left signing a free trade deal, flanked by union leaders, in a country with notorious labour standards whose manufacturers are demolishing ours.]

Few policies thought to be vital during an election are nearly as important as the unexpected shocks met when governing. They must be dealt with on the basis of character and predisposition, in the absence of party debate. [No one, including Bush would have thought of running on a policy to respond to a 9/11 event. The policies commentators now cite as defining achievements of the Labour goverment – law for civil unions, prostitution liberalisation, anti-smacking law – were never seen on a manifesto].

I’m willing now to defend the relevance of ‘gossip [what the targets always call ‘muck-raking’ in elections, though I try to play the ball not the man myself. Wishart’s work is at least as important to the health of our political system as the more ‘elevated’ commentators, whether or not he gets some interpretation wrong. Though Nicky Hager’s latest work to me seems blatantly hypocritical, not just naive, he at least thinks important the question voters should be asking of the leading people in all parties – "are you honest, do you routinely lie to save yourself"? Clark’s reactions to John Campbell’s interviews over ‘Corngate’ were the most valuable information voters got during the 2005 election – yet the BSA punishd TV3 for eliciting them. Would the people have re-elected Clark or Peters if they’d been more focused on the questions underlying Hager’s strategy?]

I suspect the intuitive focus of the people on illustrative stories [instead of policy] could be more penetrating than the preoccupations of the intelligentsia, [as long as the media are prepared to expose inconsistencies in ‘stories’ – a recent (trivial) example being the American couple used as a typical kiwi family for the recent Labour flyer].

Would you object if I posted some of your comment on my blog. I’d like to see if there’s a reaction. It’ll be attributed if you agree, or otherwise just as the comment of a wise professor who’d attended a ‘cottage’ meeting.

Regards etc

My correspondent came back –

Stephen

 I was vaguely aware of the psephology results from the Michigan studies which occurred while I was at Oxford in the 1960s, but was still startled by a lecture by Ralph Brooks – who you might remember from your student days – when he claimed that floating voters were less well informed about policy choices than voters who always supported the same party.

I nevertheless was still suitably humbled when I admired John Hewson’s [unsuccessful Aus liberal party leader] "Fightback" document for its honesty and transparency (although I did not necessarily agree with all its content) only for Donald Stokes, then at Princeton but the major figure in the Michigan studies, to say that it showed Hewson knew no political science and would be a long suicide note. He was right.

Yes, you can use what I wrote – what you choose – and attribute it.

Gary.

 I thank you sincerely Professor Gary Hawke.

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