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Unfranked #44

  • December 9th, 2005

This “Unfranked #44”

1. notes the extraordinary luck of the two ACT MPs in taking two out of the three bills drawn in yesterday ‘s ballot for member ‘s bills; then

2. links two unrelated events:

(a) Sir Geoffrey Palmer ‘s appointment as president of the dispirited Law Commission.; and

(b) my return this week to legal practice with my old law firm, Chapman Tripp.

Another Treaty Principles Bill

One of the ACT bills drawn in the ballot was the Richard Prebble draft to define the principles of the Treaty (described in Unfranked # 34, ). Parliament gets another chance to debate its hypocrisy in stuffing into legislation phrases with no agreed meaning.

Public Law: PC Claptrap, or Silver Bullet?

There ‘s no causal connection between (a) and (b), but I hope they seem linked in hindsight, because I want to fill part of the legal services gap Sir Geoffrey will leave.

Sadly for everyone except lawyers, the mushrooming Wellington bureaucracy and minority government make it a great time to become a regulatory lawyer in Wellington. Government is stuffed with bossy boots. They ‘re egged on by a generation of lawyers churned out to think that the rule of law means the rule of lawyers. The lawyer on last night ‘s Close Up, urging the transfer to lawyers of all teacher and school disciplinary processes, was typical.

Public law enthusiasts tend to be politically correct. They don ‘t recognise the gloating in their advertising, but they ‘ve been insinuating law into every corner of New Zealand life. That seeping legalisation is why political correctness matters. It is not just a passing silliness when ordinary peoples ‘ commonsense is stifled by law.

So people in business, the people who make things and construct and take risks, can ‘t afford not to have their own lawyers to beat off the lawyers for those who merely take, and consume, or judge and punish risks that do not pan out.

I spent the last 6 years doing my best to prune new laws. Now I can help individuals and companies to cope with what we could not fix. Woolly thinking leaves loopholes in such law. Using these loopholes is better than whining.

There is also positive value in skilful and energetic public law practice. Sir Geoffrey specialised in early contact with officials, punchy explanations, and well drafted alternatives to head off foolish rules and decisions. His Labour connections helped but it is not hard to open doors in Wellington. What counts is the value of your information once inside the door. Even as an ACT MP I mostly found open-mindedness. Politicians and officials welcome the help they can get from a practical combination of business law and Parliamentary experience.

I can deplore the growing need for this kind of law practice, but it helps nobody to refuse to work in it. It would be like refusing to build prisons because you ‘d rather crime shrank.

I’ve come back to Chapman Tripp because that firm offers the best platform for the kind of work I want to do. Partners like Jack Hodder, David Cochrane, and Frank McLaughlin have discreetly run an extraordinarily successful public law practice for years. Here I can get back to advising company boards and executives, with the added Parliamentary experience of the constitution in action.

Sir Geoffrey started his “public law ” private practice at Chapman Tripp, before founding the firm of Chen and Palmer.

Law Commission Revival: Good or Bad? Sir Geoffrey should be able to revive the Law Commission. He created it in 1985 and now has the chance to rescue it. For people alarmed about the PC lawyerisation of New Zealand, this may seem a serious threat. I am, however, optimistic, despite the worrying aspects of Sir Geoffrey ‘s record.

The Law Commission was born in 1985 during his famous quango hunt. He vowed as Attorney General to strangle useless quasi autonomous national government organisations (see Unfranked 3/6/05 ). Professional full time Law Reform Commissions were then fashionable internationally. Every era is convinced that their ‘modern age ‘ is more difficult and complex than any before. Palmer made political capital out of the presumption that any law older than say 20 years must need an expert rewrite.

While Palmer held Lange ‘s government together the new Commission had real power. “Superlawyer ” was the media label for Commissioner Prof (now Sir) Ken Keith because the government used him so often to second guess others ‘ legal work. He was farewelled last week from the Supreme Court to the International Court of Justice. Chapman Tripp ‘s Jack Hodder was there for first five good years. With Sian Elias (now Dame and Chief Justice) he was largely responsible for the acclaimed Companies Act 1993 among other projects.

Those golden early days ended. The “Yes Minister ” skills of officials stonewalled or dumbed down Commission draft Bills. Some plainly PC appointments lowered the mana of the Commission. The Commission joined in the nauseating recitations of submission to the Treaty, when a quality research body might have objected until it could say what that meant. Government shelving of reports gave the Commission a less than 50% strike rate ( see 005.pdf ). As Sir Geoffrey said that strike rate was probably not high enough to justify its cost. He also said in 2000 it lacked expertise in policy and economic analysis.

Sir Geoffrey will be determined to match Sir Ken Keith ‘s record. Assuming he is allowed to find new members who fall outside the sisterhood ‘s quotas, he could pleasantly surprise business people. An eagerness to ensure rigour in analysis, and a shrewd choice of priorities might outweigh an urge to cure the problems of too much law with more law. For example he shares my strong concerns about the constitutional and practical dangers of the Privacy Act.

Business people should see both risks and the opportunities. Let me know if you have any candidate issues we should nominate to the Commission for a quick review. Start with a clean slate and do not miss the chance to push for reform.

I ‘m looking forward to hearing from people we can help.

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