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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
Dr Rod Carr on Morning Report this morning fighting for his university reminds me of yesterday's lunch with the Canterbury Alumni Association. Cathy is the alumnus, not me, but any excuse for a free lunch (on Cathy).
The lunch gathering heard two beautiful women background the the writing of their book, Goodbye Sarajevo. As an author promotion it worked – now I will have to buy the book. But it also worked for Canterbury University.
The two authors more than repaid the alumni association favour of arranging their audience, with the fervour of their gratitude to the university, and to New Zealand.
They highlighted the shock of a familiar civilised normality suddenly disintegrating to a mediaeval siege, with an average 300 shells per day landing in their city for the long years of the siege. I asked them whether that experience, and then being in Christchurch when it disintegrated had led them to a permanent sense of impermanence, that normality is fragile.
They disagreed with the premise of the question. Instead, they believe that no one should assume a 'normality'. The world will always shift unexpectedly so one should just look forward, determined to make the best of whatever circumstances throw up.
They were also refreshingly uncomplicated in answering questions about the geo-politics of the Balkan war. They were deeply grateful to Bill Clinton for his decisive intervention, brushing over dithering Europe, and the pusillanimous UN. They were scathing about "peacekeeping" when there is no peace, and an arms embargo that just meant their oppressors had a free run.
Watching the notorious cringe-making clip of David Cunliffe's stump speech I felt sorry for him. There are so many rituals one must observe to be safe from media slaughter as a politician. One must ooze caring. Unctuous cliches help. There is so much pretense that over time politicians lose their internal sensitivity to humbug. The internal compass that tells you when you've crossed the line loses calibration.
David's bro-speak is on that continuum, just a little further along from Helen Clark's special Labour party meeting whining kiwi accent, that she never had in State Dinner speeches with foreigners, for example.
I could not do most of that. The ritual pieties of politics stuck in my throat. I respect words. I despise myself when I find myself using them carelessly, even if they are just empty social exahanges, like "hows it going?" when I have little desire to know.
Even as a politician I was never able to use pieties – the florid ums and ahs of convention – like "drive safely" or "have a good day" or "how's your day been" or "god willing" or "thank God". I'd have made a poor Muslim if "Allah be praised" had to be on the tape.
And so I could never bring myself to to iinvoke the sanctified "kiwi mums and dads" or "kiwi families" or "kiwi battlers" or "mum and dad investors" or any of the other horrible cliched terms that make politicians so easy to parody.
Kiwiblog has a scoop. It alleges that non-compliance with the Incorporated Societies Act may have made Winston's candidacy invalid under his party's rules.
I do not have time to reach any concluded opinion on that matter now. There may be plenty of lawyers looking at the issues next week.
Irrespective of the legality of the candidacy in terms of their constitution I doubt that Mr Peters will want any close scrutiny of his list selection process. An absurdly undefined provision of Electoral law requires that the process be democratic.
It will be interesting to learn the details of NZ First's democratic process.
Two weeks ago I predicted a simple, nasty last week in the election campaign. I expected Labour to lead it, with Mana and New Zealand First joining in like dogs at a tethered goat. I thought it might prove irresistible to the Turei/Delahunty red strand of green even if it did not fit Russel Norman’s new-model constructive Green strategy.
I expected the campaign to exploit one of the oldest themes in politics, probably the most persistently successful tactic for gaining power, but one of the least successful as measured by the prosperity and happiness of the countries where it is the dominant strategy.
The most powerful political strategies align with universal fears and temptations. All would-be leaders must offer certain protections. They must be thought capable of defending us from outsiders. They must be thought loyal, without allegiances or interests that could lead them to sell us out, and they must be able to enforce our consensus rules, particulalry those defining fairness and what is cheating or criminal.
Inciting an "inequality" pogrom taps into all those needs. Targetting the "filthy rich" has played well for would be demagogues throughout history. Zero sum economics seems to be deeply intutitive – so for the masses there is simple commonsense in blaming wide poverty on the greed of a few. The rich are not perhaps quite as good as a genuine external enemy to unite your followers in overlooking your failings, but they are always around. And if, like Labour, you've been responsible for some of the worst policy wrong turns a country can make (socialist control of production, welfare without regard to virtue, the criminal justice theory that if we are just nice enough for long enough to criminals they will give up preying on people who don't hit back) you need some distracting scapegoats. That need is becoming more acute as voters fear that the Left's instincts could be degrading our civilisation. So Labour need to foster an enemy within to stay in the game. If the masses can be stirred into believing that poverty is because the rich are greedy, a soak-the-rich party gets a free pass through property rights, equality before law and so many other of the institutions which protect the long hard route to prosperity.
John Key should have been a perfect target. A rich former money market trader who holidays in Hawai, is Jewish, and naturally has friends who are rich, seems god-given to the Left's strategists.
Labour's campaign video set the scene, with Damian O'Connor's characterisation of trickle down economics as piss down. Labour candidates felt their way round the theme for weeks, trying out the words. Grant Robertson played well here in Wellington describing himself as in spirit an Occupy protester. Labour's polite billboard "make sure that not just the better off are better off" was accompanied by platform speech references to fat cats, bankers, greed, speculators, and the rich. Labour's capital gains tax policy, and GST relief fitted envy as the principal theme.
But in the end class warfare did not fire. It played well to the party faithful, an important audience for Labour apparatchiks preparing for the inevitable post-election power struggle, but they found it was not working well enough with the critical swing voters. Instead they had to fall back on the primitive (but necessary) patriotism theme that fuels our apprehension about asset sales.
The decision to focus on asset sales, leaving inequality as a subordinate theme, reportedly disappointed some Labour warriors. Goff was helped by the Green's shift to the middle. Sue Bradford has not been there to suck up Labour loyalists. Voting for a racist Mana party to get Sue is a much bigger stretch. And there has been plenty of warning to Labour that class war still has limited appeal in New Zealand. John Key has withstood pressure from within his own party defending policies designed to neutralise the class war weapon. It has worked. Attacks on the fat cat PM have bombed with the target voters, the ordinary punters the Left believe should be theirs but secretly despise because they are not much interested in politics. The inequality campaign has not damaged John Key any more than the "H Fee" that was supposed to be Helen Clark's ' neutron bomb' at the last election and Labour's pitiful attacks on philanthropist Americans' alleged connections with National in the 2005 election.
It will be interesting to see if Labour turns perversely hard left in the next few weeks. Envy or inequality rhetoric will work for hopefuls in party blood-letting. It pays to have shown that you have no heretical tendencies in civil war. The party could even promote the people who are most closely identified with the attitudes and dogma that have lost them the election.
Party insiders learn slowly from voter thumpings. I know this from experience. The hardline ACT faithful were absolutely determined to stick state asset sales down the gullet of the gagging voters, and judged potential leaders according to their willingness to say that is what they would do.
Thank you Forrie Millar J for your commonsense and decency in discharging without conviction the poor mother whose child drowned after being left with her 12 year old, 11 year old, and 5 year old by the pool for a few minutes.
What possible interest can the state have in adding to the misery of a mother and family who have lost a child in those circumstances.
I'm concerned too for all the kids who are now over-mothered and never have the chances my generation had to play in ponds and pools and creeks from toddlerhood . The price we pay for the safety fetish is enormous.
Not that they will care, but Water Safety New Zealand will never get any favour from me. Their priggish support for the Police bringing of the charges is equally callous.
If only there was a party, or just one politician, standing in this election on a platform of confining the Police and the criminal law to pursuing and punishing people deliberately breaking the law. If they could do that satisfactorily there might be some excuse for pouring resources into hunting the victims of accidental harm, but they are not.
Our litigation specialist at Franks & Ogilvie, Nikki Pender, reminds me that in our 2008 election the Labour and National campaign virtually ignored the GFC unfolding at the same time. The election night balloons had hardly burst before the incoming Government was faced with circumstances markedly different from those forecast in Treasury’s Pre-election Economic and Fiscal Update (“PREFU”).
Track to another election campaign and we find politicians again being allowed by the New Zealand public to run blithe campaigns in the looming shadow of GFC Redux, as if it was not there. But this time the PREFU has that shadow very much in frame. Still the election lollies keep pouring out, though the PREFU would suggest we should be worrying whether there will be enough for the rent and groceries. Why, Nikki asked in notes that I've converted to this post, is the New Zealand media not hounding all parties with balloon puncturing questions?
I have no real explanation. Nor can I explain the constrast between the straightfaced reporting of ludicrous tax and spending offers (especially by the Maori and Mana Parties) in comparison with the sustained mockery of Don Brash, leader of the only party which has consistently called for New Zealand to live within its means, lead by the man who produced the 2025 Task Force report on things we have to do to increase productivity.
Both National and Labour costings claim to be based on the main forecasts in Treasury’s 2011 PREFU. Yet the PREFU indicates that the short term outlook is likely to be far less rosy than projected; or to use Treasury-speak, “the risks to our main forecasts are skewed to the downside”. According to Treasury figures the “downside” would mean that NZ’s nominal GDP, cumulated over the five years to June 2016, is likely to be $35 billion lower than the assumptions on which the politicians are basing their election promises..
But that’s not the worst of it. Even Treasury’s more pessimistic scenario assumed that Europe would be able to “manage the region’s debt issues and stabilise financial markets”. In other words, as NZ Herald political editor John Armstrong pithily observed after the PREFU was released, “we are in the cactus if things really turn to custard in Europe and the United States”.
Two weeks later, and Europe is looking increasingly custard-like. The Greek tragedy iswill struggle for audience attention now that Italy’s cost of borrowing has climbed above the 7% assumed point of no return without bail-out assistance. Silvio Berlusconi may or may not resign; Greek politicians can hardly agree on a new Prime Minister, let alone on the more critical issues; and Angela Merkel is reportedly considering an exit strategy from the euro.
Yesterday, a blogger on The Economist website Finito reflected on the dismal outlook:
I have been examining and re-examining the situation, trying to find the potential happy ending. It isn't there. The euro zone is in a death spiral. Markets are abandoning the periphery, including Italy, which is the world's eighth largest economy and third largest bond market. This is triggering margin calls and leading banks to pull credit from the European market. This, in turn, is damaging the European economy, which is already being squeezed by the austerity programmes adopted in every large euro-zone economy. A weakening economy will damage revenues, undermining efforts at fiscal consolidation, further driving away investors and potentially triggering more austerity. The cycle will continue until something breaks. Eventually, one economy or another will face a true bank run and severe capital flight and will be forced to adopt capital controls. At that point, it will effectively be out of the euro area. What happens next isn't clear, but it's unlikely to be pretty.
How will this affect New Zealand? Apparently not enough for the parties to alter their campaign course or their budgets. No party has pulled any announced policy in light of this week’s developments.Yesterday Labour promised $75m worth of laptops to students over the next four years and National continued to splash asset sales cash about before it is banked. As in 2008, it seems that New Zealanders have decided to enjoy a campaign in a parallel Pollyanna universe.
I can understand why John Key and Bill English must remain optimistic. Jeremiahs do not win elections, especially if their competitors seem to have confined their economic education to Greek textbooks. But when the election is over how will they defend themselves from allegations of wilful blindness in running on a manifesto based on a set of unequivocally outdated assumptions? The truth may be that they feel forced to compete in Pollyanna land because no competitor was willing to demand realism. But a broken Labour Party will not carry much of the weight of unfulfillable election promises. This time National will not be able to claim “unexpected circumstances".. If Europe is indeed at the beginning of Christiane Lagarde's dark decade it will look all too foreseeable with the hindsight of a few months.
Labour lit its sparklers as it opened this campaign. They earned respect. Despite jibes that they were making a virtue out of necessity in vowing to campaign on policy, not personality, they lead with a couple of genuimely courageous announcements (capital gains tax and increasing the superannuation age).
But since then despite John Key's prominence, National has been the genuine policy campaigner.Their welfare, RMA and employment announcements are solid claims for a reform mandate in the event of a National victory.
In contrast, Labour's policy descriptions are baffling fizzers, catherine wheels on the lawn, spurting sparks in fits and starts but perhaps no longer alight. Their welfare policy (borrow more to reduce incentives to work, abandon all Michael Cullen strove for with Working for Families) , on top of their reactionary employment law promises (kick more kids out of jobs and onto welfare, reverse the probationary period encouragement to employers, back to national awards) and their criminal justice policy (end three strikes) and education (capitulate to teacher union hostility to measurable standards) are memorable mainly for the narrowness of the classes they might appeal to.
This is sad for New Zealand, because we desperately need more ideas leadership from the left. We need New Zealand versions of Hawke, Keating, Mark Latham. We need a Tony Blair in Labour to reform the schools that are producing our dreadful tail of illiterates. Labour needs a Frank Field, or at least the recognition of the validity of a left and right faction debate as in Australia.
It seems the clean-out after this election might be needed to liberate that kind of open-mindedness in Labour. Or perhaps it will be an interparty debate, between Labour and an energised, environmentally focussed less red Green Party..
It is not that the right does not know what needs to be done in Education and Welfare. It is just that it is much harder for Tories to reform in the social sectors, and more costly for the country – their efforts immediately trigger "class war" or "culture war". The opposition left parties can become the focus of implacable resistance, and a damaging mythology of noble defence.
Serious reform is best done by the party which the sector would usually expect to defend their special interests, as Roger Douglas did in dismantling import licensing and other restrictions that were the result of an alliance between unions and favoured businessmen. The defensive sector will pick itself up best when it knows it is futile to expect rescue.
That problem means that Tories may be more successful than the left in dealing with major failures in business law, or taxation or defence or economic policy.
It took Clinton in the US to reach across party lines to adopt Republican policy on welfare and crime, to then preside over their astonishing and sustained turn-around in crime and welfare dependency rates. Healthcare is a business matter, so it is not surprising that Obama has bogged down.
So the dreariness of Labour's policy "fireworks" so far is depressing, but perhaps it provides a silver lining for some, like John Pagani, who may see it as helpful for Labour to at least have another three years out of the limelight in which to work out how they will genuinely reform the welfare monster. None with any knowledge of Labour movement history would think that Peter Fraser or any other of the early heroes would defend what it has become.
There is still time for this campaign to become a contest of ideas more than personality, but it is getting very hard to see much contest with the party (National) putting up the challenge to the reactionaries (labour).
I join Greg King QC in being appalled by National's announcement of "civil detention orders". A critical principle of our criminal justice system is that the state can only lock you up for what you are proven to have done, in proceedings conducted independently to ensure that the state does not abuse that power.
Because of the risk of abuse, we generally accept the risk summed up in the aphorism, "better that ten guilty men go free than that one innocent be convicted".
I've fought for law changes to restore sentences that mean what they say, and the end to playway justice, but never at the expense of the principles that protect us from punishment at the whim of our rulers. Calling a detention power a "civil order" is Orwellian. Where was our Attorney General while this policy was being hatched?
I can't find the policy detail on National's website, so I'm still hoping it has been misdescribed. But from what has been reported it sounds like a sinister extension of the left/green "precautionary principle".
Worse, it comes from a government that claims to be responding to risk, but coolly rejects the most simple steps to reduce the predictable innocent injuries and deaths that follow the release on parole of most young serious violent offenders. Over 80% reoffend, most within a short period. Every such offense is a preventable offense, for which those responsible for the parole system should be held to account, just as employers are held to account for predictable work injury.
The cynicism of this civil detention policy is even more marked when compared with the government's refusal to countenance a much more principled way to protect the public – ending concurrent sentencing and restoring cumulative sentencing.
Most serious convicted criminals probably serve no time for most of their crimes, because they are commonly tried for multiple offences, but serve only one sentence, for the most serious.
This policy is coming allegely to keep people like Malcolm Chaston (killer of Vanessa Pickering) out of circulation when their sentences end. Yet Vanessa's mother Rachel tells me that when she consented to meet Chaston on some mad "restorative justice" initiative, she did not recognise him.
At taxpayer expense he has had his distinctive face tattoos removed. What on earth is the government doing, removing the kind of distinctive markings most likely to warn people to avoid him. If anything they should be looking at ways to make a distinctive brand or warning a routine part of the sentence for irredeemable predators, not giving them the privilege of hiding their own past from their next victims.
Maybe, but not on the evidence of his comment about the Hon Judith Collins.
Cameron Slater and David Farrar jumped on the Hon David Cunliffe's throw-away insult to Judith Collins as an instance of the nastiness that just leaks out of Labour, despite them all being on best behaviour for the election.
I agree about the left tendency to nasty personal attacks. From experience their proportion of primarily nasty people is much higher than the right's but to me the offence taken at David's over the top "insult" is PC nonsense. The left deserve the trouble, because they are the quickest to manufacture offence out of misinterpreted humour.
But I can't agree that the comment alone justifies the conclusion about David Cunliffe. I worry about anything that entrenches hypersensitivity and diminishes the likelihood of jokes to lighten the election load.
Mr Cunliffe no doubt now regrets leaving himself open to the kind of faux outrage that is par for the course when a joke can be placed into one of the verboten modern sin categories. There will be sustained media interest in anything that hypersensitivity can treat as racism or sexism, for example. But not agism it seems from the media open season on Don Brash.
In this case the "insult" was so plainly untrue that it is simple hyperbole. If the Hon Judith Collins was one of Parliament's genuine gargoyles, if she was known to be goofy or socially unappealing, then there might have been room to argue that Cunlirffe's description was genuinely cruel.
But she is neither. I've never found her to be anything but attractive and pleasant – business like – but pleasant. So to me David's "insult" was a mistake and possibly revealing, but foolish more than nasty.
I did not blog post on the election last week because I found the campaign too nauseating. I did not want such depressing reflection. Not, I think, because I'm missing another contest after fighting four elections over 12 years. I'm so not missing that overwhelming commitment. And nor is it because the political tournament is a let down after the Rugby World Cup. Other friends offered that as their reason for disengagement earlier in the week. Sean Plunket captured that sentiment in yesterday's DomPost opinion piece.
I think the sentiment was widely shared. I owe this post's heading to a Tuesday lunch companion who thought the RWC should have ended on the Saturday of the election so that he could miss all the election propaganda.
Halfway through the first National/Labour leaders' TV debate I had to read something frivolous to fight off the urge to join the nearly 50% of the audience who switched channels or put a brick through the screen before the end. I forced myself to listen to National Radio's minor party leaders' debate but it was too dire to remember.
But things are looking up. Guyon Espiner tested Bill English and David Cunliffe well on Q & A this morning. The Press Key /Goff debate in Christchurch seems to have turned the corner. Reassuring to me was the mystification of foreign friends at the kind of politics that can have the Prime Ministerial candidates on the front page of the capital's newspaper competing for "blokeyness" (judged on questions like how they share navigation with their wives). We are so lucky to have so little dividing us that we need to try to distinguish on such familiar grounds..
So what was so nauseating at the start of the week?
I'm upset about the trend of democracy as it is practiced by the masters of the focus group and the opinion poll. The election is reported like an elongated cricket test. Journalists do not investigate or interview to be able to tell us who is being misleading, or who is right and who wrong in their conflicting claims. Yet many of the contested statements could be readily checked and either verified or shown to be false. The blow-by-blow reporting and the opinion pieces are nearly all about who could be winning tactically, who will bat tomorrow and who is being seen by the pundits to get runs on the board.
I did not bluntly negate Pete Hodgkin's extraordinary claim on National Radio with me on Friday ( that Phil Goff had beaten John Key in this week's campaigning). Declaration of a stage victory for Phil seemed absurd enough not to need rebuttal but it was more that I did not want to join in just scoring the game. There were substantive differences to review but of course we did not get on to substance.
Still it is not really the reporting that is upsetting, though it may contribute to the nausea. My revulsion is at seeing Phil Goff and other people I know to be patriotic and intelligent New Zealanders trapped into pretending that they believe in dopey policies (like vandalising our efficient GST with piecemeal exemptions) and dopey arguments (like claiming significance to lost dividend streams on SOE shares sold, without admitting that they may be less than the interest cost savings from borrowing avoided with the proceeds of sale). David Cunliffe pretending that increasing the minimum wage and opposing restoration of a youth wage will have only a "marginal" effect on unemployment is as sick-making as watching Bill English having to pretend that John Key's dedication to the current superannuation policy is statesmanlike.
Labour (and National) are trapped into many policy and debate positions that you and I may correctly believe to be stupid. But the Leaders are not talking to us. The major parties must now ruthlessly focus on their conversations with the swing voters in the middle. Only their votes matter. And not many of those voters know enough of public affairs to be worth talking to for long or in any depth about matters fiscal, or indeed any other complexity. Elections are won and lost on whether the causes espoused and the arguments used – as boiled down to the 10-15 words on each point that might get through the media filter to nationwide TV – will make the Leader look like a nice non-scary, familiar and safe person to the 10-15% of voters who swing to vague sentiment.
I was not surprised to read in a Herald report yesterday morning of the vox pop interview with a woman who will vote for John Key and thinks he leads the Labour Party. Many of the swing voters would pay less attention to policy and politics than most New Zealanders would pay to World Wide (WWE) Wrestling. Both are now similarly staged.
And it is not only the major parties which have to ignore how they come across to the majority. Yesterday's clips of the horrible Hone Party launch were a reminder that most political speech is addressed to someone else, and it should be judged that way.
The campaign is reviving my fears that after 150 years of wide suffrage, democracy is showing signs of having run its course in some of the countries that cradled it. It may remain the best system we can contemplate, but it is a demanding system of government. In countries with people too feckless (bought off by patronage or other state bread and circuses or welfare) or too divided (by race, religion, class or otherwise) or too corrupt or too lazy to sustain a critical public (media) consensus on minimum politician quality it may not reverse decline. I worry that it might be becoming just too hard for 'professionally managed' election processes to throw up governments capable of leading citizens into the increasingly hard decisions facing the West.
This is not a question of "immaturity". It may be the opposite – the unavoidable result of being five or six generations into uninterrupted prosperity and civil peace and security. Too may of us may have no appreciation of what is needed to sustain vital principles. It could be related to the quality of education, or the standards of journalism, or constitutional safeguards against election bribery of people with their own money, but they too are more likely to be symptoms more than causes. People who talk about New Zealand as a young country forget that we are the fourth longest standing democracy in the world.
My revulsion is from watching and listening to smart well-meaning men and women betraying their intelligence in demeaning debate, offering policies and justifications they know to be nonsense, or even worse, bad for their country, because of how they are forced to engage under the dynamics of elections in lazy democracies like ours. It is shared across the english speaking world.
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