Welcome
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
Allegations in politics frequently say more about the ‘alligators’ than about their targets. Labour people perceive complicated conspiracies because they live in a conspiratorial culture. The Rt Hon Winston Peters spews out accusations of corruption and sinister foreign influences, which may highlight his own temptations.
For a vignette here’s Winston’s riposte to the Campaign for Change’s challenge to him to debate MMP (given that MMP gifted him the power to decide who ruled in two out of five elections -and to reserve baubles of office for himself). Jordan Williams, the spokesperson for Campaign for Change, is normally one of my employees. He’s had unpaid leave to work for the campaign for several months:
“PRESS RELEASE
Rt. Hon Winston Peters Leader NZ First
October 30th 2011
‘Vote for Sanity’
Jordan Williams needs media recognition. Without it this pimple on the face of the body politic returns to oblivion. A brief minute of glory.
How many such people have we seen? Here today, gone tomorrow. He and his twenty innocent supporters for elitism have got to be a secret plant by supporters of MMP. Surely this cannot be the best that foreign money, poking its greedy nose in to domestic politics, can do. “
I admire Winston’s style – nothing namby-pamby from Winston. But even if venality is not a susceptibility he’s surely reached self parody in lining up “foreign money” and “greed” to disparage those urging a vote for a free option on a referendum to replace MMP. Free options seem to me to be a no-brainer.
As for the foreign money – I’ll be chagrined if Jordan Williams is hiding cash flows from Monaco or any other places Winston seems to know so much about. We suspended Jordan for the duration, because the Campaign for Change could not afford to engage my firm for his time.
I should ask Mr Peters for more detail, then review that decision.
The claim that ‘no one is irreplaceable’ may be comforting or humbling. But it is not true. There are people whose leadership contribution is unique.
To me “great man” theories of history are a better explanation of the unpredictably differing fates of peoples, organisations and causes, than “inexorable march“ theories. ‘Tide of history’ theories seem to me to be largely fatalism dressed in smug hindsight.
Others may step into the shoes of great men and women, and perform admirably, but that does not mean that without them we would have got what they gave us. We can’t know what the world would have been like without Steve Jobs, or Bill Gates or Hitler or Napoleon or Martin Luther but there is nothing inexorable about progress or failure and decay. I was stunned to learn on an archeological tour in Turkey just how much Roman knowledge was lost completely when illiterate warriors over-ran Rome and Byzantium. The Romans had invented concrete, for example. That knowledge was lost for more than a millennium and had to be reinvented.
In Roger Kerr we’ve lost a leader who shaped public debate in New Zealand with unique persistence.
I sometimes disagreed with him, but was always grateful for his tireless work. He never ceased to press for integrity in policy, against privilege. He had genuine ambition for New Zealand to be the best. He had courage and grace under constant fire.
Many who were too timid, or too anxious about their careers to support him when he was vilified nevertheless privately acknowledged his value and honoured that courage.
Roger Kerr gave New Zealand a “think tank”. Leaving a prominent role at Treasury to become the Executive Director of the New Zealand Business Round Table, he made it into a privately funded public service organisation. It began as a typical peak body, representing the interests of powerful chief executives and a forum for them to network and to express their collective views on matters affecting their businesses.
Roger Kerr made it unique in the English speaking world – for its relative indifference to the short term self interest of its members, and for a compensating dedication to the long term interests of New Zealand as he saw them. He helped to persuade chief executives to see that they shared those collective interests. He required a discipline in their advocacy, starting by distilling first principles. When there was no proper research he would contract for it, asking what would be most consistent with long term prosperity, resilience, and freedom for New Zealanders.
The NZBRT became one of the few institutions in New Zealand commissioning social and economic policy research wholly independent of government, and independent of group think and academic pressures for conformity. Check the publication list on the NZBRT website. NZBRT think pieces came to define the views of intelligent and forward thinking business at critical periods of our recent history. Essential reforms in New Zealand were made immeasurably easier by the relative absence of intractable opposition from vested business interests.
Roger Kerr’s executive leadership of the NZBRT drew from business leaders a regular contribution to public affairs that would otherwise have been sporadic. The NZBRT’s published work has often defined debate. It provided an intellectual framework for reforms that saved New Zealand from its Argentina trajectory two decades ago, including the Employment Contracts Act. Even research that did not result in desired government policy changes could make it intellectually discreditable to change in more foolish directions.
NZBRT sponsorship of leading international speakers and Roger Kerr’s eminence in the world of ideas attracted beneficial attention to New Zealand. He lead high quality people to spend time on issues important to New Zealand despite our small size and potential irrelevance. Roger was part of New Zealand’s clout in the world.
Roger Kerr worked all hours given him. His prodigious output went far outside the traditional interests of a business lobby group. New Zealand could count on him insisting that we address unfashionable issues with rigour, a vital function in a small, timorous society.
He was always courteous in debate, and plainly respectful even to those who reviled him. I’ll miss his persistence, courage, humour, optimism and irrepressibility.
He is irreplaceable.
Should elections be decided on competing policies, on manifesto promises, or should they be a popularity contest between leaders? Could Phil Goff (or the wise PR man Mike Hutcheson, reported to be advising the Labour Party) lift this election from the swamp of beauty parade banality, by forcing National to discuss at least some of the important issues facing the country? Labour may be making a virtue of necessity because Goff can't beat Key in a popularity contest, but if they do better than expected could it be good for New Zealand as well? Would that encourage Stephen Joyce and whoever emerges as Labour's strategist for the next election to develop a manifesto of more substance, instead of the likely sick-making tangles of platitudes?
Yes to all those questions except the first.
Astonishing myself, after about 5 years in Parliament I concluded that 'personality politics' is much more important than policy politics. At its best, if the media are doing their job properly to expose the person behind the spin it is the difference between choosing employees on references and character on the one hand, and qualifications and resume presentation on the other.
This is particularly important in an age when ideology is confused. The deciding voters ( the mostly uninterested and poorly informed swingers in the middle) are largely unable to comprehend the costs and trade-offs in competing policies anyway. But as humans with life experience they retain sound instincts for assessing character. Hypocrisy meters are acute. But it does depend on the media doing their work diligently. I want gossip. I want tittle tattle and scandal. We need the unauthorised versions. Helen Clark revealed more of herself in the unscripted fury at John Campbell's impertinent questions over Corngate in 2005 than anything else.
In 2008 I posted on a discussion with Prof Gary Hawke during my campaign for Wellington Central.
"The people are right to be more interested in revealing gossip than serious policy pronouncements, because many politicians shuck policies like clothes. Think "closing the gaps", "returning to the top half of the OECD" and the biggest of them all, (not that I'm complaining) a Labour PM from the left signing a free trade deal, flanked by union leaders, in a country with notorious labour standards whose manufacturers are demolishing ours.
Few policies thought to be vital during an election are nearly as important as the unexpected shocks met when governing. They must be dealt with on the basis of character and predisposition, in the absence of party debate. No one, including Bush would have thought of running on a policy to respond to a 9/11 event. The policies commentators now cite as defining achievements of the Labour goverment – prostitution liberalisation, anti-smacking law – were never seen on a manifesto.
I’m willing now to defend the relevance of ‘gossip [what the targets always call 'muck-raking' in elections, though I try to play the ball not the man myself. Wishart's work is at least as important to the health of our political system as the more 'elevated' commentators, whether or not he gets some interpretation wrong. Though Nicky Hager's "Hollow Men" to me seems blatantly hypocritical, not just naive, he at least thinks important the question voters should be asking of the leading people in all parties – "are you honest, do you routinely lie to save yourself"? – yet the BSA punishd TV3 for eliciting Helen Clark's responses to Campbell on Corngate. Would the people have re-elected Clark or Peters if they'd been more focused on the character questions underlying Hager's strategy?
With a more informed focus on character would they have re-elected the woman who was to lead the Labour Party into [changing electoral law to try to validate her electoral fraud in 2005]*, and to support New Zealand's first convicted corrupt MP (Philip Field)? Would they have elected Peters, whose dishonesty was unmasked despite Michael Cullen's attepmpts to shelter him from Parliamentary proceedings, by the determination of Phil Kitchin, with Owen Glenn and Sir Robert Jones?
The intuitive focus of the people on illustrative stories instead of policy can be more penetrating than the preoccupations of the intelligentsia – as long as the media are prepared to expose inconsistencies in 'stories'.
That is why I am deeply suspicious of Labour's announced intentions to try to bring our newspapers (and bloggers) to heel by combining the Press Council and the lickspittle BSA. The Left's opportunist attacks on the Murdoch media for hacking could leave us with the worst of all possible worlds – electoral beauty contests where no one is allowed to film before the make-up, or to go without invitation behind the vapid spin to the judges' questions.
*Thanks Graeme Edgeler for correcting my reference to 2008
Reports on Rio Tinto plans to sell off smelters will focus New Zealanders on the power price contract again.
The NBR report assumed that the Tiwai point smelter (and its tied power station – Manapouri) were government initiatives. That may be a wide-spread misconeption, perhaps a tribute to the power of former National PM Muldoon's populist campaign against Comalco when he caused New Zealand to renege on its long term smelter power contract.
The smelter and power station were not legacies of think big. The smelter and Manapouri were the brainchild of the smelter company engineers. The government became involved only because the power station was in a National Park.
The government insisted that the company underwrite the finance for the power project in return for a long term fixed price contract for the power, which otherwise would have been surplus to NZ requirements at that time.
Muldoon's contribution was confined to unilaterally reneging on the power contract many years later. Among other consequences of that down the track was that the NZ government was obliged to carry the risk of think big's Synfuels plant and NZ Steel. That is because their sponsors decided that Muldoon's actions made NZ third world in terms of investment risk – so they would not put plants here hostage to NZ Government willingness to renege on contracts.
Muldoon may have gained a few hundred million on the power price. The cost to New Zealand was over $5bn lost when the think big risks matured. The sponsors had initially expected to own and carry the risks of the projects, but laid them off to us after studying Comalco's experience.
On 11 May this year I predicted that shipowners would soon get tired of effete Western navy handwringing and take the obvious step of hiring real defenders for their ships.
"The world's navies have been emasculated by their on-board lawyers (or those over-ruling the commanders on the spot from safe offices far away) in the fight against Somali pirates. Soon we will see shipowners engaging genuine private defenders. They'll sink pirate attackers and leave them to drown. The defenders will then melt away.
There will be widespread official connivance to allow the appearance of continuing observance of the foolish international law and conventions that have created the opportunity for the pirates."
The Economist reports it now as a movement well underway.
"In recruiting armed security men, some shipowners have defied the laws of the countries where their vessels are registered. But governments, unable to provide the naval cover the shipowners want, are one by one legalising the practice. Spain, one of the earliest to let its fishing-boats carry armed guards, said on September 27th that they would now be allowed to use machineguns and other heavy weapons against the pirates’ AK-47s."
I don't expect any early move from our government to approve such practical measures. The pantywaists who've dominated New Zealand foreign policy for decades would regard the interests of kiwi seamen and yacht owners, and retired kiwi SAS personnel who might like to be useful in protection work, as subordinate to their need to stay respectable with their corrupt and cynical mates at the United Nations. The Mercenary Activities (Prohibition) Act 2004 exposes New Zealanders involved to up to 14 years imprisonment.
I spoke strongly against the passage of that Act.
Its only relevant exclusion is probably not applicable while the official international line remains hostile. Our courts would be likely to hold that international conventions make the kind of self-defence described unlawful. Accordingly Kiwis on pirate privateer duty could not benefit from:
" A person is not a mercenary within the meaning of subsection (1)(a) or subsection (1)(b) if he or she is taking part in—
…
d) domestic policing duties or other lawful activities of a similar kind involving the protection of individuals or property".
What emotional reserves will New Zealanders have when we are struck by genuine disaster? Today's DomPost headline reports as "disaster" a non-fatal ship stranding with a fuel oil spill. So flatulent has our public discourse become over any loss that the hyperbole may go unremarked. Or worse – New Zealanders may think this is genuinely as bad as things can get..
Language is debased by claims that our "worst maritime disaster" is a few hundred tonnes of fuel oil in the sea. It seems to be based on the likely fate of some sea birds, and the unpleasantness of months or years of oily cow pats on beautiful beaches. Those deposits were familiar on some beaches, including Paekak, when I was a child. Apparently they came as ships cleaned their oil bunkers at sea in preparation for refuelling in Wellington. We burned them in beach fires, or left them to go hard and scarcely distinguishable from stones.
If the Rena is "disaster" of the worst kind, what about the Wahine, or the other sinkings that have taken hundreds of lives around our coasts? What about the milliions of seabirds killed by the El Nino/La Nina cycle of feast and famine every decade? What about beautiful beaches ruined by uncontrolled erosion, or the blocking of the normal replenishment cycle as tamed rivers no longer discharge their annual flood shingle. What about the economic costs of the lost ship and cargo. Sure, they are probably insured, but insurance just spreads losses – it does not mean we do not eventually pay.
What language resilience will have have when White Island explodes again, or some other volcanic venting kills kilotons of marine life, releasing shiploads of mercury and sulphuric acid and arsenic and other pollutants into the atmosphere and the sea.
I might have ignored today's DomPost if it had not come on top of yesterday's Herald headlines talking of Piri Weepu's "tragedy". What was it?
His grandfather had died, full of years and with every reason to be proud of his family. Where is the "tragedy" in such a death. We must all die. If we are fortunate we die with family, mourned and missed. But that is not tragedy.
Could not some media lead in the rehabilitation of that spurned inheritance – the stiff upper lip. For the sake of dignity alone, but more importantly so that we leave ourselves some language with which to convey and share feelings in the face of genuine catastrophe.
PS NBR is on to the job. Thank you Nevil Gibson
Dr Don Brash is making ACT serve as MMP's architects wanted small parties to serve. It does not have many lines on the media chooks feedback sheets. They rank politicians only on how well they stick to their calculated lines and strategies, but let's look at what he is actually saying. There has been more of substance from him than all the rest put together over the past week.
On Friday he made an important speech on our disastrous Fiji policy – the first New Zealand politician to say what our European and US allies have been muttering for years, that Australia and New Zealand have between them completely cocked up in forcing Bainamarama to open his arms to China, and bullying the Pacific Forum nations into resentful silence with their objections.
In raising the long overdue issues of self defence, and the illegal attempts by the Police (abetted by judges) to nullify the self defence provisions of the Crimes Act, ACT is once again insisting that politicians face domestic hot potato topics.
The strategist/disciplinarians in major parties work tirelessly to gag their MPs on issues where their parties cannot gain more votes than they lose. They make them into "conscience issues" to limit damage to party brands. They reinforce the "pol sci" specialist journalists' and academics' notion that it is illegitimate or immoral to breach consensus on certain topics that are important but controversial. Opposing racist law, and reflecting the legitimate views of the majority on criminal justice matters fall into that category.
MMP has some high costs. It does, for example, allow minority parties to hold the balance of power. The compensation should be that the small parties, best exemplified by the Green Party and Act, can stand outside that consensus.
On criminal justice Dr Brash's musings yesterday were entirely within Act's longstanding principles. I made self defence a high priority as Act Justice Spokesman. Since then nothing has changed in the Police attitude, at least as far as they have officially acknowledged, though I thought there might have been some thaw in their determination to maintain their monopoly on permitted violence. The law does need some crucial changes. I drafted a number.
Well done Don, even though I think your position on dope is not well considered, and politically costly..
,
An IMF Finance and Development report this month will raise the spirits of the Spirit Level believers. Berg and Ostry outline research that suggests:
"…equality appears to be an important ingredient in promoting and sustaining growth. The difference between countries that can sustain rapid growth for many years or even decades and the many others that see growth spurts fade quickly may be the level of inequality. Countries may find that improving equality may also improve efficiency, understood as more sustainable long-run growth"
The report leaves the research finding open to the same objection that undermines the Spirit Level case – that measures of income inequality may be picking up the factor that makes the difference, but it is not income inequality. The thesis of the IMF research paper is that income inequality is associated with lack of sustained growth in ways that suggest it is causal.
But the report does not effectively exclude the possibility that Income inequality is, along with many other undesirable correlates of poverty and of less successful societies, not a cause but a symptom. Income inequality measured by the Gini coefficient may be capturing the outcome of a constellation of underlying factors that lead to slower growth, less social cohesion, more crime, lower health performance, and greater income inequality.
Sir Paul Callaghan in his recent Victoria University Chancellor's lecture was brutally blunt about what he saw as the cause of New Zealand's Gini coefficient embarrassment (increasing income inequality) – education of our distribution tail that left them useless. So could research on spirit level claims pick up such explanations?
The report says:
"We compare the risk that the spell will end in a given year with the values of these variables in previous years—at the beginning of the spell or the previous year—to minimize the risk of reverse causality. In the face of the usual difficulties involved in disentangling cause and effect, and the risk that we have been unable to find good measures of important variables, the results we report below should nonetheless be interpreted only as empirical regularities (“stylized facts”).
But it is not clear to me that such steps will detect reverse causality, if income inequality is largely a reflection of deep inequalities in the value of the people in a society to each other.
A society with a large proportion of people "who never would be missed" being carried economically and in other ways by more skilled or trustworthy neighbours is likely to be under stress. In a world of global trade, if the low value people in an economy can offer less (in skills, reliability, etc) to their neighbours than people in trading partners where earnings are generally lower, the low rated people in the first society have nowhere to go but down in status, relative incomes and sense of worth. Political action can attempt to reverse or disguise the trend, but over time it is inexorable unless the low value people can be upskilled and acquire 'values' that restore their relative worth to others. A society that cannot expect its 'tail' of low acheivers to be economically valuable must suffer the handicaps of serious tension.
Trickle down theory may be just vain faith if it is suposed to work in a society in which there is a critical mass of people who cannot or will not be able to take advantage of the improvements in communication, technology, market demand for employment etc that normally come with increased wealth at higher levels. If there are simply too many not likely to keep pace in personal development with the least common denominator class of a trade partner country, they will not be employed or valued.
The real world values scarcity, not the human value of each individual. Those in any society with internationally valued skills may maintain the potential for international relativity in incomes. But if their local political system obliges them to carry their local tail, they do not enjoy the surplus of their skill level. They might rationally accept that if it is seen as temporary. If the surplus is clearly being used to improve the human capital of the tail that might be enough to mitigate the flight of the internationally valuable people. But if instead the surplus is simply taken to sustain the tail , or even to reinforce the unsuccessful values that have delivered its members their position of negative value, the society must be unstable. Emigration pressure will be a serious handicap.
The world is cruelly indifferent to our preference that it deliver respect and the rewards of labour and power equally to all. Markets reward scarcity. Non-market systems of distribution tend to reward power. Either way those who do not have much to offer that their neighbours want or need will eventually get less. Their fellow citizens with choice exercise it to change the politics, or they go where they can retain more of the surplus they can create. Both are debilitating.
Simple really. So why does the left defend our welfare and education status quo that is delivering us such a proportion of people who cannot offer enough to their communities for anyone to want to pay them for what they do? How can any person of honour defend institutions that have delivered the opposite of what was so fervently hoped by its well meaning designers?
This report in the US magazine Foreign Policy is an easily readable rebuttal of the claims of the locavores – those who think that rejecting food from outside their locality is somehow good for the environment.
The most eyecatching examples are of the energy efficiency of eating New Zealand lamb and milk products for Europeans. British local lamb uses four times more energy to reach the British table than New Zealand, and milk products two times.
Graeme Edgeler objects to my comments on the Supreme Court's treatment of the Urewera evidence obtained by filming from land without the permission of the landowner, suggesting that the Court was doing only what the Evidence Act requires.
Section 30 of the Act sets out the test as follows:
"30 Improperly obtained evidence
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a) the defendant [or, if applicable, a co-defendant] against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a) the i portance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence:
(d) the seriousness of the offence with which the defendant is charged:
(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h) whether there was any urgency in obtaining the improperly obtained evidence.
(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety."
If the charges relate to behaviour that is as serious as has been rumoured (and as serious as Tame Iti once threatened me with in TVNZ's green room) then how could the Supreme Court find it appropriate to toss out material evidence because the Police committed trespass to get it?
Why should the police have not instead been treated as trespassers and made to pay the price the courts often charge other trespassers – that is no price. The Supreme Court plainly have no idea of their subordinate courts' pitiful response to trespassing.
Two trespassers on my property with firearms were, unusually, charged by the Police (I think because they foolishly claimed to be police when caught). The Police warned that the judge could make it all a waste of time but nevertheless went to all the trouble to prove the elements of the offence (including getting me to provide evidence of title). The Court then did just what Police wearily expected – discharging without conviction because of the effect of conviction on the offenders. They forfeited the firearm recovered. Being an old .303 that would not have troubled them much.
[update] The Government is moving to limit the effect of the Supreme Court's judgment. What a shame for us all that for so long there have been suppressed judgments floating among the justice insiders but not available publicly to give citizens enough information to understand the issues.
Graeme's comment below reminds me of the extended discussion on this topic after I blogged in 2008 on the exclusion of improperly obtained evidence.
Graeme asks what the court response should be. I think they should rarely exclude evidence that would help to the court to know the truth. But they should assert ( or request) an express power to initiate proceedings against enforcement agents shown to have misconducted themselves in gathering evidence. They should also have the power to order compensation to those injured by any such misconduct.
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