As a firm specialising where business and government, and the constitution intersect we often have media requests for comment.

Often we're too busy, but this one caught me yesterday – We want to do an article looking at businesses' rights, versus people's opposition.

[Can you] give me a few lines about … whether it's fair the public come down so harsh on business who are following council rules, and just trying to make a buck.

I was reminded of the businessman I'd heard on RNZ on Monday explaining his decision to drop his dastardly application for a liquor store near a primary school.  It seemed not to occur to the pious interviewr to ask how a liquor store would suborn primary children banned by law from its portals. So I replied to the request as follows. 

 Businesses do not (and should not) have rights that are greater or lesser than the rights of the people who want their services and work in them or own them. People who frame the issues as a contest between a “neighbourhood” and a business  know nothing of the history of our rights, and what made us free and most other people in the world subject to the whims of the strongest or most assertive or most numerous in a ‘neighbourhood. Priests, princes and other intolerant rulers have always clung to power and found cover for imprisoning or impoverishing  or suppressing their opponents by claiming to act on the will of the majority.

 Typically they have liked to characterise themselves as protecting their people from scheming or greedy or immoral or unprincipled organisations. 120 years ago in New Zealand it was the Salvation Army under attack by local authorities, whipped up by the outrage of established (Anglican, Catholic) churchmen and publicans. So we had by-laws banning brass bands and singing in public, to stop the Sallies from gathering. 

 So what marks free societies is the protection of unpopular minorities from the will of the majority.

 I suspect those fighting having a porn and sex store nearby are doing what they can because they can’t fight what pours in from the internet and on public broadcasting.  The majority voters have supported governments that say those activities are legal.

 Similarly with drinking. In countries that are effective against youth drunkenness it is illegal for under-age people to drink, and public drunkenness is punished. That was also New Zealand law until 1980. Now of course we wail and demand tougher law, always against the suppliers. We have had no one publicly arguing for restoration of the kind of law that worked here, and still works in most overseas countries, where the kids who drink against the law are punished directly, and drunks are locked up.

So I scoff at the righteous claims of neighbourhoods against liquor retailing. None of them ever seem to push for direct responsibility. They’d rather rail against the agent.  It seems deep hypocrisy for people who drink to say effectively that only supermarkets can take the profits from selling liquor. The only certain effect of no-go neighbourhoods is to push up the value of the local existing stores that have the rationed privilege of selling liquor.

 To sum up, the rights of a business are actually the rights of its customers. It will not exist without those who want to use it.  So the question is not business rights vs peoples’ opposition. It is when and how we will restrict each other’s freedoms, and how far we go down that slippery slope in small and hypocritical ways before we’ve lost the clarity of the principle.

The Law Commission proposals are easily read, thoughtful, bold and constructive. They show the benefit of ‘outsider’ thinking as well as insider expertise.

They miss, nevertheless,  the most simple reform of all. 

Any system (however carefully prescribed) will be gamed and the mechanisms “abused” if there are no cost risks for such misuse.

Judges should be obliged, after guilt is established but not otherwise, to consider whether the trial tactics have included pointless or ultimately unmerited exercises of rights we cherish to guard against false conviction. Abuse could include unnecessarily cruel cross-examination, tactical delay, pleading not guilty where guilt was obvious,  blackening the victim without good reason etc.

All such conduct would be treated as evidence of lack of remorse. The sentence should always be substantially greater in the absence of remorse.

The current lack of any cost to offenders for abusing defence rights was driven home to me after observing trials in France.  Discussions with my German law student interns had previously alerted me to the powerful effect of sanctions for  pointless appeals in keeping their appeal rates at a fraction of ours.  

This is not radical. I started in a general practice in 1974 with work that included minor court cases. There was general expectation that offending the judge with a stupid defence could risk a payback in sentencing.  I understand that there are still occasions on which judges warn counsel that their tactics could be counter-productive, and of course  the appeal courts approve taking into account the timing of a guilty plea on sentencing.  It is time to make this deterrent more general, more stringent, absolutely explicit, and unapologetic. 

Such a resuscitation of a natural corrective would follow the basic rule for most reform. First get the incentives right.

The right incentives will make up for inevitable deficiencies in detailed procedure, however carefully crafted. Such a change could and should be immediate. The judges could probably do it without a law change but it would be better required by statute. It would have a salutary influence across both the current and any modified system.

This is not a new theme for this blog. See here and here (but look for F E Smith's useful cautions to me in the comments on both).

Brian McDonnell, an academic who must be brave given the consequences in his world for taking academic freedom at face value,  dares to question Tariana Turia's claim that Section 9 of State-Owned Enterprise Act 1986 created a "pathway to nationhood", that formed a "prescription for a relationship which is central to our constitution", which is an "exquisite blueprint for a nation in which kawanatanga and rangatiratanga sit alongside each other". Rather bold claims for a section that says nothing more portentous than "Nothing in this Act shall permit the Crown to act in a manner that is inconsistent with the principles of the Treaty of Waitangi."

I heard from the author of the section, her Majesty's loyal Prime Minister at the time, what he thought the section meant. It is remote from the meanings promptly invented by the court and  now forming the core creed of the Treatafarian religion ( Mr McDonnell's colourful description of his colleagues' faith).

The section was a simple expedient, a fleeting appeasement expected to get the government through an awkwardness. Not up there with Chamberlain-at-Munich standards of more recent abandonments of colour blind law treating all citizens alike, because the Labour Ministers who agreed to it did not know what the courts would do with it. They thought they were offering legally empty symbolic assurance to unsophisticated Maori. The Tainui leaders, they thought, just needed comfort that existing law would not be covertly avoided by transfer of ownership of assets to the SOEs.

My law firm drafted the SOE Act and the section. But I do not breach any professional confidences in explaining what her Majesty's loyal Ministers actually intended. I heard it from them in other capacities, first as a company director and later as an MP.

I was a member of  the Establishment Board of Coal Corporation of NZ (now Solid Energy). We had a breakdown in the negotiation of the transfer values for our books. It reached impasse because we were determined to have an asset cushion against insolvency in case the business took longer than expected to turn around. Treasury had told us what debt we would owe. So the book values would determine the level of shareholder funds and thus potentially our ability to uphold promises made to our employees that we would stick to the cost cutting rationalisation announced, and would not be forced into more redundancies. Recall that all this was not long after the Thatcher showdown with the miners in the UK that ended in the closing of most UK pits.

Our transfer value turned on whether Tainui claims to an interest in the mines should be provisioned in the financial statements. David Lange decided to break the impasse. Invited to his office he told us that the Tainui claims were baseless. He said their leaders were reneging on their deal with him. He denounced them for claiming that section 9 entitled them to rights in the coal mines. 

David Lange insisted that the section was just a reminder that the Crown would remain responsible for redress whether or not the subject assets were no longer in Crown hands. The meeting with Lange was late at night.. Immediately after he left us, his Head of Department (of Prime Minister and Cabinet) came into the room and asked us to help him note what Lange had told us. He said Lange had entertained the Tainui leaders and reached the agreement on section 9 without officials who could have recorded what was actually said.  This was not hard to accept. He met us too without officials. We took it that John Henderson had been excluded from the meeting with us deliberately.

Whatever the truth behind Lange’s fury, members of the Labour Cabinet at the time claim that Sir Geoffrey Palmer told them section 9 would not have legal importance. He said it was symbolic because it did no more than state what the law was anyway. That might have been true but for the unwise  reference in section 9 to the then non-existent ‘principles’.

On the application of Tainui,  ‘Judges who would be kings’  seized the invitation to invent some principles. The elastic ‘partnership’ that emerged put paid to the naïve hope that section 9 was just declaratory. This mythical partnership bore little resemblance to any kind of partnership previously familiar to lawyers, but the word served the court’s purpose. As a term of political rhetoric it justified a flood of subsequent invention, and has proved so attractive that we now see “partnerships” springing up everywhere. Even our recent free trade agreements with other countries are now called “partnership agreements”. If the BNZ is your banker they claim to be in partnership with you. As a lawyer I long to find a case for a client enforcing long established partnership duties on BNZ to trump boring old banking law.

David Lange's derisive comment about the partnership fiction has been reported elsewhere so he must have repeated it a number of times. he gave a version to a small group outside a Law Society Triennial conference when he was supposed to be chairing a  session at which Lord Cooke was the main speaker. He explained that he could not stand to stay and listen, because "I may not be an expert in Victorian history, but I do not believe for one minute that Victoria thought she was entering into partnership with 100 thumbprints"  . 

Jim Bolger later secured Lord Cooke’s appointment to the UK House of Lords to limit his scope for doing more constitutional damage in New Zealand.

 Thanks to Muriel Newman who prompted me to record this for a contributed piece in NZCPR.com.

The Law Commission’s paper recommending a more inquisitorial criminal trial procedure is commendable. I expected to be disturbed by it, especially after the introduction raised whiffs of the last Law Commission effort in the area, which wanted to change courts from being forbidding places into places where the offender, his whanau and supporters could feel at home.
I’m all for offenders feeling disempowered and ill at ease. The more awe the better. I was also concerned that this review grew out of efforts to increase conviction rates for sexual offending, and the paper offers as a reason for dispensing with the right to jury trials in sex cases, that jurors came to them with “myths and prejudices” that prove resistant to judges’ instructions. That seemed like code for elite dislike of the ordinary values of the community.

So it was reassuring to find that the main focus is on helping victims to feel less alienated and disempowered, not offenders, and that the proposals throughout are respectful of the purposes of rules evolved to protect innocents from unjustified conviction.

The proposal to formalise a more inquisitorial role for judges is sound. For example it would let the judge ask questions first, leaving it to counsel for the parrties to follow, filling gaps. I have previously argued for ending the so-called right to silence within the constraints now proposed by the Commission.

The Commission asks whether its proposals should apply only to sexual violence offences. I would protect against witch trials for sexual offences by insisting that the reforms apply equally across all kinds of offending.

But mainly I’m grateful to the Commission for drawing my attention to a paper by former judge Robert Fisher QC. It says what I’ve wanted to hear some litigation insider say for years.

To non-lawyers it may seem obvious. But to court lawyers it must be sacrilege judged by how they have allowed their processes to evolve. The upcoming daily shame for the courts and the Supreme Court in particular, of the Urewera trial more than four years after the arrests, is all that the government needs to justify drastic reform.

Here is the core reason why the courts have been unable to cleanse themselves. Non-lawyers can scan only, you already know this stuff.
“28. At the heart of our present dilemma is the ideal justice fallacy. The fallacy is the touching assumption that ideal justice is both attainable and every persons right. It tends to be assumed that justice is an absolute which justifies the full panoply of court procedures regardless of the magnitude and nature of the dispute. Greeted with indignation are suggestions that certain disputes do not warrant legal representation, formal pleadings, full discovery, the right to join third parties, the right to cross-examine, more time to prepare, endless amendments to pleadings, another adjournment, unlimited witnesses, and submissions unlimited by page or time.[22] Appellate courts, too, can sometimes be guilty of prolonging an endless search for substantive justice without overt balancing against the competing values of expedition, economy and finality.
29. There are in fact two bitter pills to swallow. One is that ideal justice is unattainable by any system run by humans. The notion that by devoting sufficient resources to the task we could achieve ideal justice is, like Father Christmas, a myth. Who is to say whether the resources devoted to investigating the Kennedy assassination or the death of Princess Diana produced the ultimate answer. Even dedicating the entire New Zealand police force to the investigation of one testamentary promises claim for a decade would give us only an approximation of the true facts. And even if the facts could be ascertained, and the top one hundred jurists in the country sat on the case for another decade, the justice of the resultant decision would lie in the eye of the beholder. The best we can hope for in any system of litigation is that it will produce results which most people would say is right most of the time.

30. The other pill is that even if ideal justice were attainable through adequate resources, we could not afford it. We can no more afford optimum justice than we can afford optimum medical care or optimum education. Like doctors and teachers, we have to use a finite resource to best advantage. Selections must be made. A heart operation warrants much time and money. A common cold does not. In the legal world we have to devote to each dispute a sum of money, and an amount of time, that is reasonable having regard to the magnitude of the sums or issues at stake. Some cases warrant a procedural Rolls Royce. Others will have to make do with a Lada, and still others a bicycle.

31. There is nothing new in this. The classic procedural bicycle is the Disputes Tribunal referred to earlier. In the interests of economy it excludes legal representation, pleadings, interlocutory procedures, traditional trial procedures and painstaking research into the law. In varying degrees, this acceptance of a relatively humble level of procedure is repeated in most statutory tribunals and specialist courts. The problem is that there is little or no provision for it when a civil dispute comes before our courts of general jurisdiction. When they go there, everyone rides in a Rolls Royce whether they asked for one or not. And if they can not afford a Rolls Royce, they are left on the roadside. The state offers no alternatives.

32. Nor is legal expense the only thing which must be kept proportionate to the sum or issue at stake. Equally important is expedition. The importance that parties place upon expedition is illustrated by the permanent reliance often placed upon interim decisions. A substantial proportion of intellectual property and commercial disputes go no further an interim injunction. The losing party elects to accept the provisional decision and move on. To an even greater extent the same is true of provisional adjudications under the Construction Contracts Act 2002. What this tells us is that in a surprisingly high proportion of cases a relatively cursory examination of the merits will be sufficient for the parties purposes.

33. Many will object that curtailing procedures and truncating trials would be contrary to natural justice. Natural justice is a core element in common law systems. We would never want to turn our back on it. But the full bells and whistles of traditional court procedure are not a dictate of natural justice. The fundamentals of natural justice are absence of bias, opportunity to present ones case, and opportunity to respond to adverse material. So long as these are observed, the form which natural justice takes in any particular case is responsive to the context and requirements of that case.[23] Natural justice does not demand the Rolls Royce we presently provide in our courts of general jurisdiction.

34. Everything comes at a price. Where cost and speed is not an issue, full civil litigation in the High Court, with its unqualified access to interlocutory procedures, an open-ended trial, and rights of appeal, will continue to provide the most thorough and skilled examination of a dispute. But in many cases probably the vast majority it would be in the interests of the parties to accept a less thorough means of resolving their dispute.

35. So in making changes the most pressing need is for supervised proportionality. We need a process for ensuring that the nature and sophistication of the procedures to be applied to any given dispute will be commensurate with the issues and sums at stake. We need cost/stake proportionality”

I cannot better Scoop's obituary.

What Lloyd had that is in most short supply, was courage with sensitivity.  He could demand unselfish committment from us because he lead that way. But it was not mulish or pious altruism. He had the balance to keep hold of his string of secular successes, so that in turn he retained the power and capacity to continue to lead.

I saw him learning as an adviser when Omnicorp was crashing. I benefitted from his practical support as an ACT MP.  I wish we could have repaid him with more public willingness to take risks on matters like the flag, and the Wellywood sign. How pathetic was the negative energy that went into blocking that.

I wish I could see more young totara emerging to replace those lost to Wellington recently. Perhaps they are there but they are too young for me to recognise? People like Chris Parkin, Dierdre Tarrant, Ian Cassells, Gareth and Jo Morgan,(apologies to all  if this embarrasses) we have still,  but Lloyd's death after Sir Ron Trotter and Roger Kerr leaves for me gaps in the canopy that seem far from being filled.

The Waitangi Tribunal claims announced by the New Zealand Maori Council are unapologetically a hold-up. They have little apparent legal merit. But on form to date I predict a reasonable chance they will succeed for what they are – a legal mugging to lever free SOE shares out of an easy-touch government.

Legal proceedings are frequently purely tactical. Even meritless claims can work well to gain time, and to give the appearance of justification for procedural coercion.

Courts are so slow and so complex and unpredictable (with a Supreme Court anxious to make its mark on history) that a hold-up demand can work brilliantly. Maori claimants know they are in practice exempt from the damages for an improper injunction that inhibit vexatious litigation for everyone else.

 A tactical demand, however unfair, gives Maori the time under the spotlight needed to get a government to pay rather than fight. Maori have little or no early downside. There is no one to call them to account if they crank up the political heat with fanciful explanations of their legal position. The seabed and foreshore experience makes this a no-brainer. A foolish (though very narrow and cautious) Ngati Apa court decision that a Maori claim had enough in it to merit more investigation was turned by agitation into political conviction of a settled right.

 Dr Cullen eventually pared it back to give certainty, but a gullible National government, looking vainly to detach the race vote from the left, eventually gave Maori more than Ngati Apa could ever have delivered had it worked its way through the courts.

 Spreading outrageous expectations among Maori works in the short term for the political leaders on both sides. For Maori leaders it is all they need do for race-driven votes – be seen sticking it to ‘the man’. And it allows pakeha political targets to justify any pay-off as a small price to avoid race tension.  

 But the seabed and foreshore debacle was not the first. It was the natural outcome of earlier experience.

 How could Maori not try the seabed and foreshore scam in light of their stunning 2004 success with an even more spurious claim, for 20% of new aquaculture territory. The aquaculture claim was a plain breach of the 1992 comprehensive fisheries settlement. But once the other side to repeat deals has shown itself to be a sucker, the leaders of the beneficiary side leadership cant’ stop collecting the protection money. Mulcting a sucker ends only when the sucker revolts or runs out of capacity.

 I don’t blame Maori for trying. Anyone leading a group (union, party, sports team, racial group) whose members can see cheques just waiting to be collected from a frightened and foolish benefactor will soon be dumped if they do not pick up the cheques. Especially if the person who is being robbed persuades himself each time, loudly and publicly, that it was not really robbery, it was because he is such a caring and decent person that it was his own idea.

 But out of interest, what are the legal merits of the claims? Subject to seeing more than the media statements, my analysis is that if they have any legal merit at all it will be for immaterial amounts, because:

a)     Treaty claims are for property rights;

b)    The only property rights important to the generators are for land, use of water in hydro generation, and geothermal steam;

c)     The land issues are well provided for by the memorialisation provisions in the SOE Act. No law change is needed and section 9 is irrelevant.

d)    Water has never been considered a ‘pan-Maori’ matter. If any common law or customary rights exist at all they will be for specific neighbouring iwi;

e)     The main generation rivers and lakes are well covered by full and final settlements with the relevant iwi

f)     If those iwi support this fresh claim they will be reneging on those deals, but it is more likely they will fear the implications of a pan Maori claim (claimants from elsewhere horning in on their iwi property);

g)    There will be some generation water not covered by signed deals (the Rangitaiki, perhaps Waikaremoana) but it is insignificant to the shared ownership process;

h)     Settled law makes geothermal resources Crown property, but the owners of the land on top have effectively secured part of the value by their ability to hold up access. Iwi are now constructive and well rewarded participants on that well-trodden path. Those iwi will fear that a pan-Maori NZMC claim could muscle in on their landowners’ cooperation value.

To sum up, it is a try-on but with enough prospect of success to be a sensible step for Maori as part of an overall strategy to exploit a government that has been weak in the area. they would have been encouraged by Mr Key's eagerness to find an "elegant solution".

It is likely to be defeated as much by iwi anxiety about pan-Maori ambitions as by any legal laughability in the claims.

ACCORDING TO CONVENTIONAL criminological wisdom, crime can be significantly lowered only by eliminating its “root causes”: poverty, inequality, and racism. Policing, in this view, can only respond to crime after the fact by making an arrest; preventing crime from occurring in the first place lies in the domain of economic and welfare policy. What makes New York such a powerful natural experiment is that it is, in all respects but one, Zimring shows, nearly the same city as it was in 1990, when its homicide rate was five times higher. The previously assumed drivers of crime—poverty, income inequality, drug use—have not diminished; and family breakdown—conservatives’ preferred root cause—has worsened. 

Heather MacDonald's book review in The New Republic is the most crisp and important summary of the NY criminal justice triumph I’ve seen. It is only a review but it sets out the key elements.

 I can confirm too some of the reviewer’s criticisms. I spent a morning sitting in on a CompStat. I had three days in NY meeting people from Commissioner Kelly’s office, the Mayor’s office and the City Courts. The reviewer is right from what I saw to rebut Zimring’s claim that enforcing laws against graffiti, public drinking, and begging were not important. I saw a determination to apply the Broken Windows policing revolution (to cut serious crime first enforce the small rules rigorously. Set a pattern of expectation that people will be law abiding (Frank Q Wilson’s emphasis on the importance potential offenders place on working out the norms,  “how people behave around here”) and make  a climate in which offenders feel that crime will not pay .

The only element of the reform I saw not touched on in the review is the contribution of the NY  courts. They cooperated. Justice became much more swift and certain. They provided 24 hour a day sittings to get rid of delays and backlogs. Instead of declining to sentence because Rikers Island city  jail complex was full, they sentenced anyway and left it to the prison authorities to handle the consequences. When I was there a prison system designed for 14000 had over 20000 prisoners. The drop in crime has cured that. The muster is now generally comfortably below the design capacity. But as stressful as it must have been for all concerned, I’m sure if we asked the thousands of offenders who were saved from being murdered had the lawlessness of the 1990’s continued, the hardships of the peak imprisonment period were a small price to pay.

So the Courts helped the NY police to avoid the NZ Police revolving door frustration, as arrested offenders are released on bail or with pitiful sentences to carry on hurting and intimidating.

 It is interesting that Commissioner Bratton is not quite replicating his New York success in Los Angeles, though there is a great improvement. I visited LA and met City officials and youth justice and court people in 2008. They were pessimistic about getting to where they should be, because in California the jails were under County and State control (not city) and the Courts too could not be steered to cooperate. So offenders were being let out as fast as they could catch them and the Policing reform message was muffled.

 The most stunning thing to me when I became ACT’s Justice spokesman in 1999 was the intellectual poverty of the local criminal justice establishment. My first Christmas I got the Parliamentary library to assemble for me a catch-up  reading list in criminal justice, because my legal career had been in commercial and public law.

The reading was deeply unsatisfying . The European and NZ authors essentially cited each other's opinions or less than rigorous "research"  with as little exposure as possible to contrary views. There was a bit more radicalism (actually only objectivity) from Australia, but the officials and academics here were united in a self congratulatory consensus that froze out alternative views as “redneck” .

 They tried to ignore New Zealand’s 35 year trajectory from being one of the safest countries in the world to being probably worse than the US for many crime risks ordinary citizens face (the notable exception being murder, but US murder was highly concentrated in the 7 biggest police districts, and was a phenomenon of drug lord turf battles especially during the crack cocaine peak). One year I noticed a peak in the Central Police district homicide figures (Wanganui, Manawatu, Hawkes Bay) and had a statistician friend check for me – that district did indeed have a higher murder rate than New York.

 Officials even contrived to have New Zealand withdraw from participation in the most authoritative international survey of comparative crime exposure (the 4 yearly International Crime Victimisation Survey conducted by the Dutch Government for the then 17 participating countries). I am satisfied that it was because they did not want the embarrassment of an authoritative measure of their failure. Thankfully we reinstated our participation in the last one, but few took any notice of the results.

 The New Zealand establishment  measure of success or failure was not in crime rates (risks of crime against innocents), but the recidivism rate, or the imprisonment rate. Prison is deemed a failure because it does not reform so criminals return, usually promptly. But rehabilitation has only ever been one of four objectives of punishment, and it is universally recognised to be the least achievable whatever the “treatment”. In New Zealand still the official ideology is that criminal process is for therapy for offenders, not justice as most cultures have always known it – balancing the wrong and making sure that the law abiding are not mugs for being so. When justice is therapeutic, for the offender – and not primarily driven by the justice rights of victims, or the protection rights of the law abiding, it is easy to justify the NZ failed experiment.

And even in the US, where the inconvenient success of Clinton’s 1996 Federal reforms was starting in the early 2000s to mug the academic establishment it was hard to find objective scholarly work.

 Here in NZ the US experience has always been too distasteful to be a topic worthy of respectable academic interest, other than by Canterbury’s Greg Newbold, who is largely was shunned by the rest of the NZ justice establishment. I think it is mainly a reflection of the conventional elitist repugnance for the US. That is despite it being a wonderful laboratory  for comparisons, with 50 states and 30000 police forces and multiple prisons and rehabilitation authorities all trying different approaches.

Zimring’s call to his fellow establishment criminologists is the equivalent in that world of Gorbachev admitting that the Soviet experiment had failed and calling it quits. Do we now have a Minister of Justice who will call time on the failures here?

She'll have to endure a gale of "expert" hostility, often playing the woman and not the ball, but she will be vindicated if she prevails. I've been studying (and posting) on these matters for many years now. The research current is running in only one direction.

PS 7/2/12 DPF linked to this and to the review. The substantial comment thread has many informative observations, particularly from David Garrett and F E Smith. David's note on my acting for murderer William Rufus Junior Marsh was wrong in one respect. My junior assistance (to Warwick Flaus) was on offences that preceded Marsh's first homicide. Warwick and I both regretted the work that may have helped cement his (correct) view that the law was toothless by leaving him at liberty after his early arrests for assault. 

National is lucky that Mayor Bob and his greedy side-kick are taking the flak that could have been heading the way of all authority in light of the paralysis created by 'we know best' authority. I doubt that Mayor Bob, and Christchurch Council are much worse than most other territorial authorities in New Zealand.

It is just that the earthquake has crystallised all and exposed what is wrong with local government , under a combination of stresses that left no room to hide. Since 2002 when it was granted 'general competence' (power constrained only by the requirements to consult – generally with whingers who love weilding power over their neighbours, or have nothing better to do) local government has taken on all the powers of a parent. 

The decentralised initiative that made countries rich, which protected property rights and individual freedoms (and responsibilities and liabilities) is never more valuable than in the face of overwhelmingly complex problems. At such a time central planners, terrified of hindsight criticism and armed with the excuse of the  'precautionary principle' can stifle everyone but the most determined or the most powerful. They can never know enough at once to liberate the energy waiting to burst out from ordinary people in reconstruction and fresh starts.

So everyone is made dependent waiting for permissions and certainty that rarely comes.

There is no evidence that National thinks its own principles matter here, so they are lucky  they have Marryatt to distract everyone with a demonstration of arrogant privilege.

I posted in December on the first public speculation that central government might displace the Christchurch Council, having previously taken control of ECan.  I'd heard in August of desperation messages from senior Christchurch to Wellington about the leaderless red tape loopiness.

It seems that Sir Kerry Marshall is not the 'review authority' contemplated by s254 of the Local Government Act but he might morph into one.  

He has the experience to knock heads together. But will he have the vision to point to the real problem? That is  – a mission statement and powers for local government that suck it into such huge interference with citizens that it will always attract bossy  incompetents. It will always drive to despair the can-do successful businessmen and farmers who once dominated Council service for only nominal payment.  

Nick Smith's release says:

"The role of the Crown Observer will be to rebuild good professional relationships between the Mayor, Councillors and staff and to provide guidance on how they can effectively govern at this challenging time.

"The Crown Observer will help the Council address widely-held concerns that its decision making and governance roles are becoming dysfunctional. 

 "These failings cannot be left to undermine the valuable recovery work the Council is doing.  I hope that by working with the Crown Observer, the Council will make any consideration of further Government intervention in the Council unnecessary,"

Good luck Sir Kerry, and Dr Smith

 Writing the post on email Christmas cards reminded me how many piously urged me to “take care” this "festive season". Yuck and yuck. 

The 'festive season' stuff might be excused as an artifact of card templates from the US, where it is presumably vital not to offend non-Christians. But I'm less charitable to those who've enlisted as safety sergeants in the inane army of nannies.

I did not waste time trying to persuade my colleagues to it, but I wish a Franks & Ogilvie card had commanded “Dont’ take care!"

We don’t need more warnings about the ordinary risks of life. The whole bloody establishment is busy pretending extreme loving concern for everyone. In reality they are enjoying the excuse to  issue orders without the restraint that until recently left adults largely free to decide what risks they chose to run. With a few exceptions (such as drug use) freedom to choose your own risk preference applied generally as long as you were not hazarding others.

What point is there in carefully avoiding risk? We have only one life and at the end we all die, those who’ve taken all the care in the world, and those who take none. So let’s make that one life as full of “life”, as intense, as possible.

Risk is intensity. Innovation is risk. Change to the status quo is risk. Risk adds adrenaline. Little is more satisfying than risk survived, from the 2 year old who has just wobbled across from one chair handhold to the next to the 80 year old whose letter to the paper sticks it to someone in power.

Risk is fuel for the optimistic. For the pessimistic and the timid risk prohibitions are the precautionary cords with which you bind your optimistic neighbours, revenge for their sunny boldness having made you look meagre.  Risk aversion is the tool of womens' revenge against the scary experimentation of men.

We need both the right and the encouragment for other people to take risks. Not risks at the expense of others. Risks at their own expense. Because it benefits us all to have a culture that respects those who put their own comfort and safety behind other values.

The Health and Safety in Employment Act orders bosses (major and minor) to foster timidity. It excused and justified those who were inclined that way, and inclined to micro-manage how others choose to work. It promotes hierarchical organisations with minimal lower level autonomy  because only all encompassing "systems" (read orders) will save the boss from liability.

Now that culture has extended deep into the organisations on which we rely to attract and reward and use the young who crave risk and chances to display courage. We crush the spirit of those who need hazard to the advantage of the rest of us.

When the Police won't let ambulance staff rescue a dying shopkeeper for fear that his attackers might still be around, when mine workers are prohibited from going straight after their mates before the methane levels climb again, and when Joe Bennett is ordered to leave his perfectly sound home in case a rock hits it – we are all diminishd.

Risk seekers will find other ways to express it – perhaps as boy racers, as thugs looking for fights, or in abusing dangerous drugs. How much better for all if instead that challenge remained widely available in ordinary honoured employment.

We should laud, not discourage the altruism of the foolhardy rescue. It should once again be a  defence to liability, that a volunteer has displayed a value that transcends his own safety. Values like duty to others, pride in family, curiousity, chivalry, thirst for adventure, loyalty to friends or colleagues or comrades, determination not to let bullies or criminals prosper should all trump "taking care" in most circumstances.  Those values gave us the privileged position we've enjoyed, at the top of the world heap (including being in the top 10% of consumers) for over 5 generations.

We've lived off the benefit of  our grandparents' boldness and the respect they engndered for altruistic courage. . They honoured it for its own sake.

They'd have been disgusted with their heirs' culture, ours.

So don’t urge anyone to take care, unless it is care for others.

John Key has managed to project his sunny optimism to many of us, despite a rough couple of years. Much of the western world has not been so lucky. Lets use that advantage. This year – don't take care!

I looked forward to seeing Margaret Thatcher at the movies last night after days of camping in rain. The film is disappointing but worth seeing nevertheless for those who:

• like to be awed by Meryl Streep's range and power to channel our speculations about famous women;
• will draw inspiration from recalling  the apparent powerlessness of her contemporary politicians to arrest Britain's humiliating collapse into poverty and her successful battles to reverse  it;
• will enjoy imagining the impotent rage of the tribal haters on the left as they realise that audiences will not be lead to share that hatred by a film much more interested in one politician's sacrifices of relationships than their political mythologies.

It was disappointing to me as a waste of stupendous talent and opportunity to reflect on the challenges, temptations and opportunities of genuine leadership. It gallops through the events that I wanted to see explored (the day to day mechanics of overcoming class snobbery and  defeatism to reinject vigour into the unfashionable virtues that had made Britain great)  and wastes endless time on the incipient Alzheimers of a lonely old lady.  The camera lingering on Streep's old age geisha mask makeup never let me lose awareness that it was Streep, and not Margaret Thatcher. The film doesn't allow Streep the acheivement of Helen Mirren in  "The Queen"..

I  could have seen lots more of young Margaret Roberts the Grocer's daughter becoming the Secretary for Education, and calming (or stifling) the fears of her colleagues during the successful years. The film does not take Margaret's advice to focus on doing rather than feeling, and so loses both.