The Commerce Commission has rightly trumpeted the success of its case against a timber treatment cartel with a total of $7.5m in fines and cost orders. Nufarm was one of the guilty, though it eventually cooperated. Nufarm executives were fined personally.

Nufarm is one of NZ’s major success stories. Kerry Hoggard should get much of the credit. He took it from being a small NZ fertiliser company to an Australian listed company that attracted a $3bn Chinese takeover late last year. By that time NZ sales were 3% of its total.

Yet Mr Hoggard lost his NZ reputation 8 years ago, for insider trading in the shares of Fletcher Challenge, which he chaired. The Commerce Commission success shows that around that time some Nufarm executives were also busy colluding to break the Commerce Act. 

A cop friend is not surprised. “People at the top set the tone. Don’t believe in ‘out of character’.  If we could arrest for bad company we wouldn’t need much more”.

When it became clear there had been insider trading, but Fletcher Challenge was not going to do more than sack Mr Hoggard, we (Catharine (my wife) and Roger Kerr (as Fletcher Challenge shareholders) with me running the case) sued him. The eventual settlement endowed the Business Integrity Trust.

I’ll never forget the sadness at the settlement negotiations, where a talented man was shamed, though I was not sure whether it was shame for the conduct, or shame for being caught.

I’ve tried to understand why a man with his wealth and reputation would do what he did for $57k profit.

It seemed that he regarded insider trading law as just another area for calculated risk. He was right that obeying the law has been made optional. But if he still drew lines between those he broke and those he did not, he drew them in the wrong place.

Over my time as a lawyer I’ve seen that amorality mushroom, matched only by the un-ending boom in jobs for compliance officers. The algal bloom of regulation means that being consistently law-abiding is no longer an option, but choosing which rules not to break is a vital judgement.  I felt sorry for minister David Parker a couple of years ago. The company law rules he broke (the opinion which “cleared” him was rubbish) are broken by most companies.

Breaking some laws will break you, whereas breaking others carries no moral obloquoy. For example drunken driving is now widely accepted to be bad. But speeding (in good conditions) or failing to wear your seat belt are seen as misdemeanours, not evils.

The first category should leave you ashamed. For the second you need only accept the penalty with a good grace.

Not long ago a decent person would have had a reasonable chance of living up to a vow to be law-abiding. That is now fanciful. So people evolve their own morality, deciding what laws they’ll respect when the police aren’t watching.

There are now hundreds of thousands of pages of law that people need feel no shame about breaking. Some of it is just political deception, deliberately written not to be enforceable (like the Victims Rights Act), or with the hope that it will not be enforced much (the anti-smacking law). Much more is written in vague aspirational terms with no clear boundaries. There is so much, or it is so complex only a lawyer could know it, and you can’t afford the lawyers. Or it conflicts – like where directors are liable to creditors and shareholders if they leave in charge a dud manager they don’t trust, but employment law says you can’t sack until you’ve warned and counselled and offered retraining etc. Even a stand-down is constructive dismissal.

A flood of new law with no real connection to morality is breeding thousands of young Hoggards. 

Mr Hoggard spent a lifetime taking calculated risks. More paid off than not. Fortunately most of his were about products and marketing and financing. We need thousands more with his willingness and cool judgment. But sadly, more and more of those risk decisions must be about the law, instead of about competitors and products and projects.

When sensible honest people have to accept they’ll break the law or go broke on compliance expense, they have to punt on not being caught. Just as with fishing though, enough are caught to make lawyers indispensable for any who can afford them, who’ve got too much to lose if they’re caught. That makes lawyers rich. And so they breed. 

Our future would be much brighter if we were valuing and breeding salespeople, engineers, scientists, and risk-welcoming investors and entrepreneurs.

Australian fears of greenhouse warming are naturally pumped by drought, and Ross Garnaut’s report has made them much more anxious about their reliance on using (and exporting) fossil fuels. Though they too will be affected if ‘green mile’ food boycotts take off in major markets, that has been secondary concern.

An item on news.com.au last Thursday colourfully highlighted another risk.

“An overseas trip might become a once-in-a-lifetime experience rather than an annual event,”  said Dr Patrick Moriarty of Monash University’s Department of Mechanical and Aerospace Engineering. The report seemed to show the usual academic lust to force people from private to public transport but did not indicate whether rationing us into one trip per lifetime will be by permit, or by price (where the once in a lifetime figure becomes an average).

The academics’ paper to be published in Energy Policy might deal with such details.

If Islam wins Huntington’s culture wars at least there’ll be no debate about where to take that trip. The grand tour will have to include Mecca.

For decades investment in tourism (companies like THL) has never lived up to promise. But think of the property value carnage in our holiday commute centres like Queenstown if the Sam Neills were rationed into one visit in a lifetime to their fly-in homes.

To see how badly we’ve been affected by union domination of education policy have a look for comparison at this description from the Spectator of where Sweden has reached. 

A sample

“Yet there is one part of the Swedish system which is too openly capitalist even for the Tories: allowing schools to make a profit. In the Prime Minister’s Office in Stockholm’s old town, Mikael Sandström, a state secretary for the Moderate party administration, explains why the Tories are wrong. ‘If you’re a not-for-profit school, then the longer the waiting list the better,’ he says. ‘It’s a lot of trouble to expand, so they don’t. Also, profit-making schools have been shown to have less social segregation.’ And then he says something one would be surprised to hear in the White House, let alone the Rosenbad in Stockholm. ‘The question for me is whether we should abolish non-profit-making schools,’ Sandström says. I am not at all sure he was joking.”

Up early this morning carbo-loading with my brother-in -law. We head for the Karapoti Classic shortly. The forecast rain has yet to arrive, so should I screw off the steel mud studs I put on my cycle shoes last night?

Preparation for the Karapoti is some way from last Wednesday’s cycle experience. I joined the alleged thousand at the Wellington City bike-to-work day breakfast in Civic Square. The highlight for me was not the bagel (each time I have one I remember why I rarely do). It was the chance to ride the recumbent three-wheeler of a guy who comes from Petone each day.

He built it from a kitset imported from Holland, at a total cost of around $4500. It was very comfortable, though I’m not sure about the dignity. It looks very like a grown-up pedal car. He says he can average 35kph into the wind, and over 40kph without. The best feature was the storage space, enough for satchels, computers and other gear that mean I usually walk or bus to work rather than biking.

I was puzzled by Bryan Pepperell photographing me in it, until I found the green ribbons trailiing from the mirror on the off side, and a Reuters journalist hissed “what are you doing at a Green rally. Cycling’s reserved for us”.

PS Sunday morning -The Karapoti rain held off till nearly through. Just to be at the race is a celebration of life (and for my age category of fitness fending off feebleness for another year). My best time yet (3 hrs, 48 minutes 24 seconds) made me 488th rider home (just in the first half) but let 28 people ahead of me in the age 50-59 category.

As a school board member almost continuously for nineteen years (over two schools) I take education ideology seriously. Nowhere has the left had greater success. The waste of talent has not been only among the students. I’ve watched a generation of dedicated and determined teachers treading water in a bog of intellectual mush.

Britain’s Labour government has been trying to crawl out of that bog for some years. The NZBR draws attention to the Australian reports  that Rudd’s team have also broken ranks with their dreary teaching union colleagues.

The ALP’s education policy paper, dated November 18, for which Gillard as Education Minister will be responsible for implementing, provides further evidence of the resilience of Howard’s conservative social agenda. Under the heading Greater Accountability, the ALP policy promises – as did Brendan Nelson when he was education minister – to have report cards in plain English, where students are graded A to E and the word fail returns to the classroom.

In contrast to the present lowest common denominator literacy and numeracy testing, in which students are assessed only in terms of a minimum standard, Labor also promises to measure student performance in terms of levels of proficiency; one would hope similar to the US, where national tests are measured in terms of basic, proficient and advanced.

Holding schools accountable for performance is another initiative that signals a change to the ALP’s view of education. Instead of measuring how successful the education system is in terms of money spent, the focus is on learning outcomes and how best to identify and turn around underperforming schools.

Although it is not going as far as the league tables introduced under the Blair government in Britain, the Rudd Government intends to make school performance data publicly available, allowing parents to identify successful and underperforming schools. During the primary years, a minimum of five hours of mathematics is in; spell checks are out; spelling is in; self-expression is out; learning correct grammar, punctuation and syntax is in. The ALP policy paper is happy to state: “Sustained attention to the basics should be evident throughout a student’s entire schooling career, but particularly in the early years and primary school.”

Are there any NZ Labour politicians who’d dare that?

This Herald story raises the question – who advises the Commission? The politics of the adviser could make all the difference. Because with law so badly framed an agile adviser can construct a respectable argument to justify virtually any desired outcome.

And the story reminds me of the storm that will break on both the Commission, and the Chief Electoral Officer later this year. They’ll be asked to rule on ads and plans and articles and performances by candidates who fairly expect that they should be able to find out in advance whether their attempts to communicate with their fellow citizens could mean time in prison.

Candidates’ lawyers will say ” I’m sorry I can only guess – prosecution could be a matter of official whim, and conviction could depend on the judge’s feeling on the day”.

The agencies should be preparing. They’ll need more staff. I’m sure they’re working up guidelines. But they can’t imagine the variants they’ll be asked to rule on. They need a way to encourage people to approach them early and frankly.

They could kill two birds with one stone with a system of  “no action” letters. Such a letter says, in essence, “We can not tell you what the law is, and we can not stop action by third parties, but we can assure that we will not take enforcement action against you if you act in the way you have outlined to us, and you have told us the whole truth about it”

The SEC in the US uses them to ameliorate the unfairness of similarly vague and arbitrary rules (like, what is “unacceptable conduct”?).

To work properly the Police would need to be part of the system, because they are the enforcers at the request of the specialist agencies. The NZ Labour Party seem to have a standing “no action” letter from the the Police for electoral law offences, so extending the same comfort to  others should be no big ask.

Of course the Commission and the Chief Electoral Officer may need legal advice to tell them whether they have the power to bind themselves not to take action. Which takes us back to where we started. Who advises them? If it is the same Solicitor General’s office lawyer who told Parliament that the law does not infringe NZBORA, who knows what the advice might be.

The NSW government moved years ago to make life mean life in the worst cases. And they mean it, even for cases not covered by that law. Their  latest move to oppose parole for triple murderer Cribb is consistent with their policy for evil offenders.

O for the day when we have a government with similar determination to uphold the courts’ promise of justice to victims.

Thanks to Whale Oil  and Lindsay Mitchell for alerting me to former Alliance MP Liz Gordon’s frothing in Saturday’s (Christchurch) Press. I’d offer the link but as it may be necessary to deter lying with expense to the liar, I will not add to her readership. A retraction should have been published today.

It is uncanny how people project their own vices on others. I guess she assumed a secret coalition behind John Boscawen and me, because that is how her circles work.  The openness of free speech supporters is so foreign to L Gordon that she has not noticed DPF’s donor list, nor Michael Horton’s registration as a third party for the coming election.

I do regret that some of her allegations are incorrect. I’d love to lead a coalition to eject the Labour Party – just not one invented by her.

Under this heading Thomas Sowell reviews a book that could be Trevor Louden’s complete demoliton of Poneke’s cheap attack on him. I mentioned a few weeks ago the blog debate when Louden pointed out that today’s Labour socialists have more in common with National Socialism than any right wing party.

I guess we accept the risk of caricature but I didn’t suspect Stuff’s photographer to be a frustrated cartoonist.

If this was an advert the Advertising Standards Board might condemn the DomPost for being unnecesssarily hurtful to my beautiful wife Catharine.  They’ve done sillier things.

Then we’d have to do a Minto, and say “thanks but no thanks – we believe in freedom of expression even when it is in bad taste”.