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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

Digging for victory

  • July 14th, 2008

Harrod’s boss, New Zealander James McArthur is profiled on the DomPost’s front page this morning.

His mother, Thorndon artist Piera McArthur, is proud of him. "He’s had some amazing jobs" she says..

I’m sure she would not have been thinking of the job I recall.

James was a superb student navvy helping me excavate a basement under our first house. He turned up from Student Job Search and was blistered by the end of the first day. Over the next several months he was the one constant as a succession of his friends came, couldn’t take the pace, and did not come again.

I thought of him at a recent election meeting when a worried parent complained that her children did not bother to work when they could, because their interest free student loans did not worry them as they did her.

[Disclaimer – James’ sister Brigid, a partner at my firm – Chapman Tripp, had no prior knowledge of this praise for her brother]

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.

 

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