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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

I thought I’d never see – NYT on ability streaming in schools

  • June 10th, 2014

The New York Times reports studies that endorse streaming school classes by abilities. .

As summarised by NCPA, the article says:

"Empirical data has tended to show that students gain when they are grouped according to their skill level:

  • Last year, [Dartmouth College economics professor Bruce] Sacerdote and two fellow economists analyzed students at the U.S. Air Force Academy. They found that the students largely benefited from their peers, but those benefits disappeared when cadets of the highest and lowest abilities were grouped together.
  • In a 2009 paper, Sacerdote tracked Hurricane Katrina refugees across different schools, concluding that students with high abilities benefited the most from high-ability peers.
  • Examining primary schools in Kenya, another study found that all students — not just the best learners — benefited when they were grouped into different classrooms according to their abilities.
  • Analyzing data from one North Carolina county, researchers Caroline Hoxby and Gretchen Weingarth determined again that students benefited when they were surrounded with students of similar abilities.

I hhaven't tracked through all the links in the short NYT piece, but I wonder if the mechanism at work is similar to the mechanism that results in girls in girl's schools thriving away from the testosterone fuelled dominance of boys. Perhaps being made to feel too humble may permanently limit ambition and the confidence to try.

The NCPA summary goes on:

"The benefits of ability grouping, not just for the talented students but for all students, indicate that [current left and union endorsed plans to eliminate] gifted and talented programs could have serious, negative consequences for bright students from low income families". .

A halal blow for Whittakers?

  • May 29th, 2014

We have something to thank Muslim religiosity for. The Malaysian Health Ministry appears to have caught Cadbury out with pork traces in their chocolate.

What is wrong with Cadbury? It didn't work for them trying to pass off palm oil in their Dairy Milk, in New Zealand, the homeland of dairying.

But you'd think they could stick firmly to palm oil in Malaysia, the homeland of the palm oil industry.

And this story will be world-wide. It won't only be Muslims disgusted by the thought of pork in their chocolate. I don't want  lard in mine either.

I hope our national champions (and long ago one of my first clients) Whittakers temporarily suspend the gorgeous Nigella campaign to reassure us that they don't lard their chocolate, and leave Cadbury to explain itself as best it can.

Will Abano trigger an NZX rule reform?

  • May 23rd, 2014

Abano shareholders will meet on 13 June to consider a motion to sack their chairman, Trevor Janes

Whatever the outcome, the affair should trigger an overdue correction of a mistake in the NZX listing rules. I’ve heard suggestions the mistake happened “on my watch” so I’ve meant to write about it before now.

I disclose first that I have known the Chairman since my earliest days as a commercial lawyer. He was a demanding client. Most clients give instructions then go home while the wordsmithing continues into the night. Trevor would stay for as long as it took, so mistakes couldn’t get headway. He always paid more than lip service to getting things right.

So I see the attack on his performance as just a strategy to cloak a predatory attack on Abano.  The predators may see no prospect of cowing the Board while he is there.

But the extended tussle brings back into focus what should be a running embarrassment for NZX.

In March this year NZX issued a class waiver that related to Mr Janes. It benefits only ACC Directors. Essentially the waiver says that ACC Directors do not lose their listing rule categorisation as Independent Directors when sitting on the boards of other companies even if ACC is a substantial shareholder in those companies.

The specific waiver should never have been necessary. NZX should have reformed the Rule long ago, or extended the new waiver to all non conflicted investment fund substantial shareholders.  The rule acquired its current form in 2003. It was well intentioned but foolish.  The provision should have focussed on directors with real, standing, conflicts of interest, like trade investors, not substantial shareholders indiscriminately.

Restricting the powers of executive directors and directors appointed by trade investors is a simple way to reduce pressure for related party transactions. Trade investors often want the company to:

  1. Sell to them (or associates)  at an undervalue; or
  2. Buy at an overvalue; or
  3. Otherwise deliver collateral benefits at cost or risk to the company. ,

Substantial investors (such as ACC in the Abano case) which can only benefit from a company by way of dividend, or their exit price, are in the same position as the ordinary shareholders. Instead of putting them in the suspect category, the Rules should welcome them and their expert directors. When the badly framed rule was introduced there was good research suggesting that companies with directors appointed by substantial shareholders performed better than companies without such ‘non-independents’. Various explanations were offered:

  1. Greater independence from management and of the chair – who generally otherwise control director succession in widely held companies;
  2. The analytical background and resources they can call on;
  3. Their backers demand performance for tenure; whereas incumbency suffices for most directors in widely held companies.

In other words, by including nominees of major investment shareholders in the ‘suspect’ category of ‘non-independent’, the rule-makers inflicted own-goals on shareholders generally.

How did this misdirected rule get into the Listing Rules?

NZX was captured by its own shorthand.  NZSX personnel referred internally to non-conflicted directors as “independent”. NZX wanted more directors able to withstand pressure from executives and trade investors. So they simply declared that intention as a rule, requiring at least two independent directors.

Initially it was primitive. They did not bother with definitions – “every one knows what we mean” was the answer to my aghast enquiry.  Then when definition became unavoidable, it was again left to amateurs. They did not like the question “Independent of whom?” So sensibly they focussed the definition on conflicts of interest (albeit with a bad formulation that talks of “influence” without distinguishing between adverse and positive influence.)

The rule has never been fixed. When an associated rule was changed (increasing a trigger point to a 10% shareholding) to reduce interference with innocent conduct, the change was made to the wrong provision. It made dodgy behaviour less risky, and left untouched the poor drafting of the Independent Director rule.

The objective of the rule is sensible. It could be fixed quite simply. But rule administration has become ossified. Changes must be negotiated with the authorities, now that the rules are deemed subordinate legislation and not just private rules of contract. Many suspect that it is because lawyers have a financial interest in pointless complexity.  I think it is more that few lawyers ask about the underlying purpose of rules. And non lawyers are bemused by slogans. Who wants to question a slogan advocating ‘independence’?

I’ve long meant to say publically of this rule – ‘It wasn’t me!’

I’m sorry Trevor that it has taken misuse of a dud rule by contemptible people to spur me into recording this. Good luck when the vote is held.  A healthy market needs to show that unsubstantiated personal attacks will not work. Let’s hope the shareholder vote is decisive.

When you ban free speech, don’t expect financial literacy

  • May 22nd, 2014

The New Zealand government loves paying people to dig holes then paying others to fill them in again. Even better if both digging the holes and filling them in are confined to privileged licensees or government servants.

Economists measure this process as GDP. The left likes to see government being active. The punitive media perhaps like the thought of the enforcement spectacles as people dare to dig their own holes or fill them in without supervision. The licencees become passionate believers in the necessity for hole digging and filling.

Meanwhile ordinary people twist their ankles in potholes that emerge spontaneously, as they always have and always will. Others still disappear into deep traps dug by villains who operate with relative impunity because government money and attention is concentrated on infringers of regulations governing approved hole-diggers and fillers.

With all this busyness, no one remembers to ask whether deliberate hole digging and filling adds to the wealth, health or happiness of anyone not doing it. Perhaps even those who make their life work wonder at the end it if it was not a pointless way to spend your one life.

That is New Zealand's financial advisor and financial literacy regime.

Instead of promply imprisoning the most duplicitous abusers of the trust of their clients, and cranking up the penalties under the hundred year old Secret Commissions Act, we adopted an absurdly complicated regime that no investor would ever have wanted to pay for, if it had not been made punishable for an unlicensed person, however wise and experienced, to express views that might affect another's decision on investing or not.

Without a squeak from the useless folk in the human rights industry, and hardly a squeak from the media, those brave defenders of freedom of speech (because they were given a partial exemption) some of the most vital free speech a market economy can ever have was simply prohibited.

That dug the hole. Naturally the few thousand licensed advisors can't hope to maintain the kind of vigorous, spontaneous public discussion that is the only way for a nation to maintain financial sophistication at any level, let alone widespread "literacy". Even private warnings not to trust crooks and idiots who have lost your money, can be unlawful.

Now for the hole filling.

To fill the place of the now unlawful numberless thousands of timely but uncontrolled discussions and informal advice channels of free speech, the government has turned the Retirement Commissioner into the Commission for Financial Literacy and Retirement.  A few tireless folk paid to do what formerly was done by countless contributions.

And now, it appears, we have financial literacy levels substantially lower than those of the US, the people we like to think of as ill-educated rubes. And theirs is far lower than in northern Europe.

Alex Tabbarrok singled us out for special mention in this blog post commenting on recent research. Perhaps he is just tweaking the nose of Tyler Cowen, who enjoyed time with Treasury and the NZ Business Round Table, back when those institutions, with the Reserve Bank, competed with an independent Securities Commission to maintain a since-vanished intellectual integrity in our securities law.

If the CFLR had courage and intellect it would advise the government not to waste another cent on filling the literacy holes till free speech was restored. They'd need to urge also meaningful, promptly enforced penalties for fraudulent abuse of a  trusted advisor role.

When David Ross can appeal without expecting his non-parole sentence to be doubled, and his family can swan around Wellington in anything but rags, our enforcement is a joke.

 

Deceit (of Hawkes Bay Public) No 2 Bill

  • May 13th, 2014

On Friday I foreshadowed a proposal to promote legislation for deception even more breath-taking than the Heritage NZ Poutere Taonga Bill.

Hawkes Bay Today (supplemented by the fine print on a Council website) show that Parliament’s incompetence at reading its Bills, and the credulity of ratepayers and citizens is now taken so for granted, that a Bill is coming that has deceit as its only purpose..

One can understand, if not excuse, gilding the lily, or even burying abuses of power deep in words that still have some other real purpose.

But Hastings District Council is bringing a local Bill to Parliament that will have no useful purpose other than deceiving the citizens of Hawkes Bay about “ring fencing”. They are to be misled into thinking that they are legislatively protected against carrying the cost of Hastings’ huge debt if they amalgamate with Hastings.

They believe their own councils have been more prudent and they object to the feckless neighbour now planning to gobble the advantage of their self-restraint. .

The draft Bill says that Hastings debt can be secured only over land in the current Hastings District Council’s area for at least 6 years after the takeover.

But Simpson Grierson who drafted it, and the Council’s internal lawyers, and anyone with any experience of accounting, will know if they bother to read about it,  that it will have absolutely no practical limiting effect (unless the proposed new super-city Hawkes Bay goes broke in that period)  It will do nothing whatsoever to protect the other residents against rate rises because of the Hastings debt servicing burden.

Amounts taken from Hastings ratepayers to meet Hastings debt may be dedicated to interest or repayment, but as described the Bill will do nothing to protect the rest of the region from having to pick up other costs of Hastings, or against having to carry a 'disproportionate' share of the overall region costs.

I hope this marks the high (low) point of disdain for truth and transparency in legislation, and contempt for the intelligence of voters.

It must rank among the worst for insolent disregard for the cost of Parliamentary time. Minister Craig Foss has undertaken to introduce it. He might claim that convention obliges MPs to sponsor local Bills whether or not they agree with them. But he foolishly went further and claimed that it will “allow everyone to concentrate on the core issues around amalgamation as opposed to some of these issues which have distracted some people”.

The pigs of Animal Farm would have been impressed by a politician who could say that about a Bill that he should know has no purpose other than “distracting” voters (a euphemism for deceiving them). Or perhaps he took at face value what Hastings has been telling him?

 

Stopping theft by Heritage NZ Poutere Taonga

  • May 13th, 2014

I'm honoured to have New Zealand's Best Blog pick up my Friday evening post today. I add my congratulations, to Cam Slater and to the admirable MSM reps who acknowledged the energy, fearlessness, and compression with which he show us the both the value of freedom of speech, and the price necessarily paid (in tolerant holding of the nose).

But the reposting of that article (by Cam and NBR) reflects how serious are the breaches of principle in the Heritage NZ Poutere Taonga Bill.

It leaves an exposed flank for National. Labour could use it to show their economic development values. For example, David Parker could promote Labour amendments, to remove the new disincentives to outstanding architecture. He could be supported by Grant Robertson (Economic Development),  and Andrew Little (Justice) upholding integrity of property rights (principles Michael Cullen defended better than National just a few years ago).  They could be joined by Clayton Cosgrove, in his capacity as a Christchurch MP and spokesperson on Earthquake and Building matters.

Kennedy Graham, Constitutional Affairs spokesperson of the Green Party, could find good reasons to challenge this objectionable delivery of a power that is effectively a selective wealth tax of up to 100% without Parliamentary supervision, and no control over who benefits (if anyone).

I'd be happy to help with SOPs that could make the Bill less offensive.

Shane Jones' forthright rejection of the enormous new iwi consultation burden in the Auckland Unitary Plan began Labour's rebound in the polls, till he sank them again. . I think there is scope for similar championing of ordinary people's rights while the HNZPT Bill acquires similar notoriety.

Christchurch based MPs should trace closely what the Bill does with the Canterbury Earthquake Royal Commission’s plea for life safety to prevail over the freeze powers of the Heritage activists. Unbelievably, it does next to nothing to ensure the financial capacity to upgrade safety. It leaves the power with hose who just don’t like change, and don’t want to pay for blocking it and feel virtuous knowing their might be a few martyrs to their reverence for old things.

Cases like that of the dangerous Harcourt Building in Wellington, which no one wants to tenant, and which has a façade likely to fall on street users in an earthquake, could have been dealt with simply.

The Heritage Bill could have, for example included protections along all or any of the following lines:

  1. allow owners to strengthen, or replace (with a replica façade if necessary) in any way that best defrays the cost by improving usability,  if they can prove the genuineness of the safety risks. In other words a simple rule that safety outweighs the preferences of the heritage aesthetes, and that safety improvements need funding;
  2. Allow the Council and HPT heritage enthusiasts the right to stop owners renewing or upgrading their properties for safety (or efficiency and value) only if:
  • They take over and indemnify the owner for his Health and Safety exposures, including fines and imprisonment; or
  • Pay the owner the difference between what his land is worth with and without their restrictions; or
  • They do not exceed a cap in the cost of their effective expropriation of value from the owner.. For example, the law could protect owners from Heritage expropriation of more than say 20% of the value of the property without the Heritage order.
  1. Improve the incentives on the HPT Board, by giving them a semblance of the normal budget constraints that affect all other controllers of public resource.  For example they should know the cost they impose on the community. They should have to value the blight losses inflicted on owners and neighbourhoods, and publish the total  cost separately for each community, and nationally;
  2. Set caps on the impacts for communities so the HBT can’t act as if they alone in government have an unlimited budget of loss and cost they can inflict. Old towns where new investment is chancy anyway, need protection from outsiders who decide their pleasure as tourists outweighs the interests of people who live there. Oamaru may be an example where facades should be sufficient instead of a prohibitory tax, represented by taking property owners’ rights to respond to  the reduced satisfaction and safety of users of their sub-standard old buildings.

Of course all this is inferior to a straight-forward reinstatement of principle – if the state, through the Historic Places Trust, wants the community to take the value from an owner for its public benefits, then normal Public Works Act compensation rights should apply.

The biggest benefit of a reform that requires appreciation of the dynamic losses represented by heritage order and claim delays and expropriation , would probably be the enhanced prosperity of the communities which presently suffer blight. The tend not to see the impact on them because it hits the individual owner first. But their costs could be required to be calculated and published.

Communities derive benefits through land-owners’ improvement of land.. Communities should be able to calculate their preferences for the old, against, for example the loss of utilisation of infrastructure  from empty buildings and underutilised land and reduced rateable capacity, not to mention the overseas borrowing attributable to artificial property prices from restrictions on our supply of new buildings.

 

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Taking property by deceit (this is not a Treaty article)

  • May 9th, 2014

I’ve been around the law and politics for some time. Legislation is moulded by politics. Some politicians insist on obscure language to disguise the real effect of law, to delay opponents realising how far it goes. I understand that. We live in a democracy. Democracies need politicians who act to minimise the number who want to vote them out. So a law-writing  hand may get  an irresistible urge to obfuscate .

Until recently we had some protection from Parliamentary Counsel. There was a convention supporting some gate-keeper role in rejecting such deceit, but it seems that semi-constitutional filter has gone.

There are less cynical and offensive ways to deceive the public, but deceptively written law is becoming “normal”. Few lawyers in Parliament have the background to detect it, which may have something to do with selections for identity group ‘reflection’ instead of established merit.

The increase may also be because the deceitful hand is not necessarily that of  the politician.  Officials with an agenda their elected masters won’t like have the time to hide their obfuscations deep in dense language. Politicians may not work out what they are voting for until too late.

A Bill well through the Parliamentary process ‘updating’ the Historic Places Trust legislation is a classic example. The 1993 Act over-rode property rights, but only for the unfortunates who happen to own really old places, The replacement Bill turns that limited exception into general contempt for the property rights. Now they are to be confiscated from pretty much anyone with property that “Heritage New Zealand Pouhere Taonga” finds appealing. The Board can declare a place to be category 1 or 2 protected (economically seized for practical purposes) if they are satisfied of its “significance or value in relation to” any one or more of its:

  • ‘Technical accomplishment, value, or design’;
  • ‘Symbolic or commemorative value’;
  • ‘Community association’;
  • ‘Public esteem’;
  • ‘Potential for public education’;
  • ‘Importance to tangata whenua’;
  • ‘Extent to which it forms part of a wider …cultural area’.

Observe that none of those need have anything to do with history.

The ‘Heritage’ czars will be able to freeze your place  built last year, if they think the architecture (‘design’) is great. If some idiot has started calling your property or street iconic, look out, because it will show it has ‘public esteem’. If it was once used for something for which we’ve started to pretend reverence, like an RSA hall, or where Lorde was born, get ready to lose your property rights. A public clamour to turn it into a shrine of symbolic value, or of community association would satisfy Board.

None of this is accidental. At a conference 18 months ago I heard two Auckland architects assuring the audience that changes were coming to make sure that no one could disrespect their favourite works in the future, however new, because they could be protected as taonga. The audience murmured agreement that it was outrageous that really old taonga could be protected from its owners, but not new. Note to developers – never build anything  distinctive from now on, shun imaginative architects, don’t buy ‘landmark’ assets. Boring is good.

So how has this extension of powers drawn no public attention?

The word “historic” is still sprinkled liberally throughout the Bill. And the criteria above are in a list which retains the earlier concepts, including five out of eleven which still require connection with something old, like:

  • Association with events, persons or ideas of importance in NZ history;
  • Potential to provide knowledge of NZ history;
  • Identifying historic.

The removal of any necessary connection with history is achieved by sly new definitions in the fine print. Though the word historic is still used, it is now defined to cover also “cultural heritage” (not defined). The former requirement for age has largely gone, and it does not apply to the ‘cultural’ part.

Perhaps this does not matter too much you might think, because at least the Crown will pay owners for effectively nationalising their savings or land. That has always been the principle under the Public Works Act. And this is a bill from the National government which surely respects property rights. Indeed it is paying out hundreds of millions to Maori for previous generations’ disrespect.  Aren’t there some basic constitutional assumptions about not taking people’s property for public purposes without compensation?

Aha – the cunning drafters were up and at work well before you, and apparently before your representatives in Parliament. Sub-clauses (2) and (3) of clause 12 say:

“Nothing in this Act requires Heritage New Zealand Pouhere Taonga to negotiate or agree with any person to acquire any land or interest in land.

No interest in land may be regarded as having been taken or injuriously affected and no compensation is payable by reason only of any provision of this Act”

Yet even ACT and United Future (which a few years ago introduced a member’s bill to require respect for property rights in the NZ Bill of Rights Act) have been voting for this Bill. And so has the Maori Party which came into being because property rights guaranteed under article 2 of the Treaty were trashed.

So there we have it – a perfect example of deceptive drafting working perfectly, even on politicians who should know all about deceit, and be alive to being tricked into voting against principles they hold dear.

You might think that someone might have noticed what was happening, because the Minister has boasted of the extra protection inserted for property owners.  HNZPT must now “recognise the interests of an owner as far as those interest are known”. What does that mean? Next to nothing. There is no obligation even to find out what the owner's interests might be. But HNZPT need not worry. That provision appears immediately before the provisions saying no owner agreement is required and no compensation is payable. In my opinion a court will be obliged to find that 'recognition'  has no practical value. Maybe it will be  a plaque on the building  saying ‘with thanks to chump [insert name of owner]”.

I would have ended this post here, thinking I’d uncovered one of the finest examples of legislation as deceit..

But it is about to be topped by a doozy. I’ll explain that in a separate post in due course.

Before you go, however, there is often a sign when a Bill is deliberately unclear, like a nervous tic in a poor liar. Such Bills often include 'New Zealand' in the title, always gratuitously.Is that why the Historic Places Trust Act 1993 is to become the Heritage New Zealand Pouhere Taonga Act 2014?  Who else’s ‘Heritage’ or ‘Pouhere Taonga’ does Parliament think they might claim power to expropriate? The totally empty insertion of 'New Zealand' reminds me of various sententious lectures we practicing lawyers have had from lawyer MPs,  about plain English and simple comprehensible language. Compared with the crowd now elected to muddle our statutes, the fine print artists of website terms and conditions and log-in pages are amateurs.

Badly needed common sense from Supreme Court on Lombard directors

  • May 7th, 2014

The Supreme Court has earned some of its keep, in crisply reminding us of what was really in issue in the trial of the Lombard directors. In reversing the Court of Appeal decision that imprisonment was warranted, William Young J of the Supreme Court highlights the simple essence of the case, and reinforces some policy balance in the way such charges should be approached:

  • "the appellants honestly believed that the prospectus was true. They had taken their responsibilities seriously. Lombard had taken advice on the wording of the prospectus from external advisers. There were no related-party loans and the company was, at least in general, properly run"
  • "Overall, [the trial judge found them to be] honest men who took their responsibilities seriously but nonetheless, by reason of a misjudgement made in circumstances of pressure, were responsible for the issuing of a prospectus which was untrue as to liquidity".
  • Deterrent sentences should be reserved for knowing wrongdoers ("offending which is either calculated or involves the offender having departed from what he or she recognised were appropriate levels of carefulness").
  • Deterrence should not be for "people who have tried to perform their duties but, as a result of a misjudgement, have failed to do so"
  • "Punishments which are disproportionately severe may result in too much deterrence, for instance discouraging people from taking on directorships" not to mention inflicting on all investors the huge costs of layer upon layer of back-covering 'due diligence' and compliance ritual, and D & O insurance, none of which adds to the profits of any investor, and probably diminishes no losses. Absent dishonesty, losses in business generally flow from risks assumed in conditions of uncertainty, in the hope of returns commensurate with those risks. When losses ensue without dishonesty the criminal law should not come anywhere near.
  • Deterrent sentences (targetting future conduct) are wrong when dubsequent law changes will confine "criminal liability for false statements in prospectuses […] to those who have acted dishonestly or recklessly". In effect the Supreme Court judgment asks the Court of Appeal ' just what offences were you thinking of deterring, given that the Lombard directors would not be convicted under new law'.

It is all expressed in the customary polite language good courts use about each other. But I was particularly pleased to see the crisp correction of an embarrassing part of the Court of Appeal's talk-back radio style moralising. It particularly hurt at least one defendant who has shown a strong ethic of serving the public interest even to his own serious disadvantage.

The trial judge set out the truth, but it was ignored by the Court of Appeal, as the Supreme Court notes:

"it appears that the Court of Appeal may have treated as relevant the total losses suffered by investors in Lombard represented by the total amount owed as at 10 April 2008 of approximately $125 million less estimated recoveries of 15–22 cents in the dollar for secured investors."

That was ridiculous. Only $1.7m in new money came in as a result of offending conduct by the directors. Dobson J, the trial judge had pointed that out. What he did not explain was that the rest was effectively lost, as it was for nearly all finance companies, no matter how well run and honest they were,  from the time the GFC made mezzanine lending to property largely irrecoverable. When development timetables were abandoned in fear the land became unsaleable for anything near previous security values

The Supreme Court was not mislead "If a prospectus had either not been issued or, alternatively, had been issued in the [warning] terms proposed by the Judge, it is very likely that receivership would have soon followed. It is therefore far from clear that those who reinvested in the period 24 December 2007 to 2 April 2008 have necessarily suffered significant losses by reason of the prospectus having been issued in the terms that it was. For this reason, it is difficult to be confident that the actual losses caused by the appellants’ offending much exceeded the $1.7 million of new money which was invested during this period (less any recoveries which may be made).

This Supreme Court decision is the kind of cool correcting view we seek from a third level of appeal. The Court of Appeal has been reminded that they were wrong to reinterpret the facts to reach conclusions the trial judge rejected. It is not generally appropriate for an appeal court (which is not there to see the witnesses and does not see most of the written evidence) to decide that it has a better appreciation of the facts than the trial judge.

 

Auckland sensitivity on ethnicity

  • May 4th, 2014

Cam Slater comments on the Herald report of the withdrawal of an Auckland Council survey that appears to have been trying to find out what people think of the emergence of 'Chinatowns' and other concentrations of ethnicities in their city.

I wonder what decisions the Council expected to take with the advantage of such information? Ethnic quotas in the Unitary Plan to prevent such concentrations? Or to 'protect' and foster them?

I understand the reaction against even asking the questions. I was educated in an era when we expected the state to be colour-blind, with equal rights and treatment of all.

New Zealand signed the UN treaty to Eliminate all forms of Racial Discrimination when I was a teenager. Twenty years later our Parliament effectively abandoned it without much debate when it created race privileges under the impression (false) that it was implementing the Treaty of Waitangi.

But outside the Anglosphere, most people around the world remain less sensitive. See for example the lack of apology for the stereotypes in  one of Quora's top questions this morning:

What are the misconceptions Chinese people have about the US and the rest of the world?

  1. Westerners only care about themselves, and don't care about their families.
  2. Americans have no culture because they have no history.
  3. Europeans have culture, but their economies are lousy except for northern Europe
  4. Southern Europeans are lazy bums
  5. Americans pretend to be open, but in fact they don't say what they really think. They just pretend to. In comparison, Chinese are more straightforward.
  6. All non-Chinese cuisines taste terrible compared to Chinese food.
  7. Western parents let their kids run wild. As a result they are on drugs and are lazy bums.
  8. Why do western parents let their kids study liberal arts. Are they crazy? How will they make a living?
  9. Westerners are crazy to borrow money to buy junk they don't need.
  10. Among Americans, Jewish people are smartest and are most like Chinese. They work hard, enjoy good food and put pressure on their kids. None of this individualism nonsense.
  11. If your kids marry outside, it's best to marry a Jewish person. The rest are a mess…
  12. Americans just act without thinking. Chinese always think first.
  13. The Indians are a lot like Chinese but they dress funny and their food is strange. But they are smart and hardworking.
  The comments are worth a look.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Opposition’s fairies

  • May 2nd, 2014

I'm impressed by the politeness in the 19 reasons the BNZ's Tony Alexander offers for his view that it is unlikely we will see a property price collapse, and that it remains a good investment – but he says things without much euphemism in the 19th:

19. Members of the Opposition believe monetary fairies can make the exchange rate settle permanently
lower by forcing interest rate cuts and printing money while letting inflation therefore go up. Given the nonzero
possibility that such economically ignorant policies get introduced it is worth getting inflation protection
by investing more in property – not less.

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