In the reflective mood engendered in the run up to our national day (ANZAC Day because sermons drive us out to play on Waitangi Day) Brian Edwards urges the replacement of God Save New Zealand as our national anthem.

It is usually rendered as a supplicating dirge, whatever the merits of some verses. Judging by what people my generation belt out voluntarily when called on to sing overseas, 10 Guitars, or Pokarekareana, are more our national songs.

But Brian, while you are treading on national sensitivities, why not take on a more urgent campaign.

The kiwi is a disastrous national bird. Why identify with such a hopeless symbol?.

It snuffles around apologetically in the shadows, eating worms, freezing at sounds and movement, so defenseless it cedes to most animals half its size. It has so little spine and spirit it's chosen to occupy the humble evolutionary slot of half blind rodents (voles, hedgehogs etc) instead of maintaining and using the glorious inheritance that gave birds their marvellous break – the ability to FLY.  It can't survive predators the rest of the bird world has learned to cope with.

It is a dreary colour. Only its freaky fat shape generates any interest.
Few ever see it or hear it, outside guarded havens where it lives at the whim of its patrons in fragile and artificial security. Even there it is so boring that it only gets visitors for the reasons that our most pretentious artists get support – because enough people are so afraid to trust their own common sense that they pretend to like what the pseud establishment says they should like.

In the kiwi-arium all must approach with a reverential hush, in dim light. I suspect that many visitors are like me – they never actually see a kiwi. After long enough peering at shadows and insignificant movement, sick of having others say "over there, can't you see it",  sick of the dark when outside all is bright and cheerful, many must  pretend to see a kiwi just so they can leave.

So Brian – why don't you lead a debate with more practical benefit and more chance of success. The kiwi is a perfect fit to an anthem sung as an ingratiating whine, and now seems to go on for ever since we must sing it in two languages we do not understand. But start with the easier project first. Let's worry about the anthem replacement, and the flag replacement after we've dealt with the bird.

There is surely embarassment and long-brewed frustration among us all, waiting for the signal. Rightly lead the campaign to dump the loser kiwi should explode into an overnight national consensus, like a Lindauer cork.

Lets become keas. The kea can cope and has, with  species from more competitive environments. It can see off dogs. It welcomes and is curious about strangers, instead of hiding from them.
It has turned potential adversity to advantage. For example it learnt to find the fat around the kidneys of the squatters' sheep.
It has a glorious flash of underwing colour hiding under its suitably modest New Zealander exterior. If you've ever seen them in a blizzard, you'll know they pass the stoicism test for NZ identity and role modelling. They do things purely for fun, like lining up on the ridgeline to slide in turns down a steep hut roof, so they pass the sport lover test.

And like us, they choose to live in places of great natural beauty, presumably for the scenery and the lifestyle, though there are far more convivial, soft and prosperous places to live.

Lets have the kea, and forget about that loser kiwi. 

 The time might be right, since I got away live after suggesting on Jim Mora's show on National Radio last week that the kakapo might be more surely saved from extinction if the right to breed it for sale was auctioned by DoC

The attention to the Chaston sentencing for murdering Vanessa Pickering may draw out Justice Minister Simon Power's promised reform of the law governing victim impact statements.

I posted in 2009 on his officials' weaselly discussion paper. Before that I'd outlined the simple reforms  that would turn this victim statement mechanism from an own goal for the justice system, into a useful step.  The victims' long march could be about to cross a river.

For convenience, here is what the Minister should announce. Measure what he says against this;

1. Allow victims to express opinions on the same matters that the convicts’ family are permitted to comment on. That would allow them to tell the court what they think the penalty should be, and to ask for leniency, for severity, or for any particular kind of sentence.
2. Tell the court what they believe to be the truth about any hurtful claims raised by the defence or other defence conduct during the trial.
3. Just remove the restrictions on what victims can say, subject to defamation law (with the judge able to limit the usual privilege for court reporting so that it will not protect reporting of unfairly damaging victim claims or allegations about matters not dealt with in the court proceedings)
4. Allow the court to limit the time for an oral statement (given the endless patience of the courts for dopey defence claims and cross-examination, it should be up to 30 minutes, say 3000 words);
5. Allow the court to limit the number of victims who can present oral statements in any trial ( repetition and grandstanding would be limited if it is ordinarily confined to say 3 people);
6. Allow the court a discretion to stop and to confine to writing a victim who degrades the proceedings with repetitive foul language or other uninformative abuse, going beyond what it is reasonable to expect of victims having regard to their need and right to denounce the convict and the release of emotion after the long passivity of the trial.

Among other reforms that should ensure that victims are free:

• To argue that the sentence be increased to reflect any lack of remorse or indifference to compounding the hurt shown in the defence conduct of the case. This should have been the change after the Weatherston case, instead of ending the defence of provocation;
• To ask the court to order specific reparation or compensation;
• To draw attention to any disgraceful conduct and attitude during the trial of the convict’s family and supporters, when the court considers any submissions from them on sentence.

I knew Vanessa Pickering. She was in the group of kids from a neighbour's farm, shy, and agile on a horse.

So there was special pathos for me in hearing her mother Rachel this morning tell Marcus Lush how she worked from day one of Chaston's trial for murdering Vanessa, toward her few minutes of formal recognition – the reading of her victim impact statement.

I wish I'd interrupted to say something to Rachel, before Marcus turned to me for comment on Phil Goff's disgraceful  victim impact statement law, and how it obliges or allows the prosecutor to censor what the victims want to say.

I explained, as I have so often before (here and here, for example)  that section 17 of the Victims' Rights Act doesn't allow victims to do more than say how badly the crime has managed to hurt them. Instead of the conclusion of the trial celebrating the triumph of the innocent over the wicked, the re-empowering of the victim, it is turned into a fresh humiliation in front of the criminal, a reminder that the victim is a passive witness, at best. The  trial is focussed on the criminal and his interests. It emphasizes the control of the state and its justice insiders, including over the victim and her legitimate expectation of vindication, retribution and reinstatement to equality with the offender.

The trial tightly controls the victims, lest they revolt at the weak mimicry of justice the state now delivers, and seek genuine justice themselves. So scared are the justice insiders that they will not even risk harsh words from the victims.

And so Rachel was forced to endure the conversion of her apt words "slaughter" and "torture" into "attack" and other milk and honey official language.

I applaud the brave victims who know enough and are confident enough to cast aside their censored statements and to tell the court and the criminal exactly what they want to say.

And if any judge dares to criticise me as a lawyer, for encouraging transgression of the law, I'll ask them to explain why the entire judiciary, from the top down, collude to break the law Parliament passed while I was there which included the following:

Sentencing Act 2002, section 8

(c) "must impose the maximum penalty prescribed for the offence if the offending is within the most serious of the cases for which that penalty is prescriberd, unless circumstatnces relating to the offender make that inappropriate: and

(c) must impose a penalty near to the maximum prescribed for the offence if the offending is near to the most serious of cases for which that penalty is prescribed, unless circumstances relating to that offender make that inappropriate"

The severity distribution of sentences since those provisions were passed shows a collective decision by the judges to pretend that the law is something entirely different. Almost no maximum sentences are given. It does not matter how heinous the offence.

I like and respect French J.  I have to assume she is merely applying the judges' illegitimate "tariff" in giving Chaston a non-parole period of only 20 years, then relying on his preventive detention to do justice by keeping him in. For murder, of course there is the nominal lie of a life sentence, so the non-parole period is the real sentence.

When Phil Goff as Minister of Justice pushed through the Sentencing Act, he said that 17 years was to be the new starting point for murder with aggravating circumstances. It is set out in section 104 of the Act. We've since then had a few sentences around thirty years (after the dopey Court of Appeal has done its ritual reductions) but  when Chaston, with 71 previous convictions gets only 20 years just how bad will you have to be to get the new sentence of no parole from a murder sentence (section 86G(2A)) ?

The Economist says that raising the pension age is inevitable.

The consensus on the unsustainability of pensions as we baby boomers have known them is becoming unmistakable.

Last week saw the release of a Treasury paper, coninciding with a survey by The Economist, met by John Key reviving his pledge to block pension reform.

 Does John Key have a strategy on pensions? Is he going to cling to a foolish assurance for so long that he acheives the unthinkable and gets virtually the entire nation united in a demand to raise the age of 'retirement" simply out of exasperation at his obduracy.

Is it possible that he is playing poker with Labour, calculating that they will have to start demanding that he gets out of the way of reform, to differentiate from National, or to stir up dissension within National, or to show that Labour can be responsible economic managers?

Then he can spring the trap, reluctantly concede, and accept being thrown into his Brer Rabbit bramble bush.

There must be some cunning plan. Please. 

What a tonic to hear that Bill English is not joining in the fashionable abandonment of ambition to catch up with Australia. Even better to have him see competing with Australia, even in regulation, as necessary, desirable and realistic.

I don’t know if he went on to explain how it is good for both countries. But it is enough to know that he does not share the defeatist assumption that we must ape the Aussies to be allowed to tag along.

Now for this realism to be applied to pushing through some seriously sensible competitive advantage. Start by repealing the new Financial Advisor regime.

The Economist has profiled Australia as the beneficiary of an extraordinary resources commodity boom.

"Commodity booms have come and gone in Australia’s history but no boom this strong has lasted this long."

 The article mentions the Chilean wisdom in salting away surpluses during historical windfall periods.

"Australia could bring some relief to squeezed exporters by saving, not spending, the proceeds of the boom. That would reduce the inflationary pressure at home, resulting in lower interest rates and a cheaper exchange rate. Households are doing their bit, saving 9.7% of their disposable income compared with less than zero in 2004. The government is also tightening its belt, albeit more gingerly. Having run a budget deficit of 4.4% of GDP in the last fiscal year, it expects a surplus in the fiscal year ending on June 30th 2013, including the proceeds from a mining tax.

Should it tighten its belt faster? In Chile a fiscal law obliges the government to run budget surpluses whenever the economy is at full employment and the copper price is above its long-run equilibrium, as estimated by an independent panel. A similar rule in Australia would imply a budget surplus of 2% this year…". Chile’s government adds to a “stabilisation fund” in fat years, and withdraws from it in lean."

The sting for us is a note saying

"Over the coming weeks, The Economist will profile several economies at the centre of wider global trends. The first is Australia, a bellwether for other rich commodity exporters such as Norway, where the terms of trade have improved by 38% since 2004, Canada and New Zealand"

International agencies like the OECD give their evaluative reports to governments ahead of release so they can get their spinners spinning.  Our government may have to wait for publication to react to an Economist report. Wanna bet on whether we'll be an example to admire?

Julia Gillard gave the inaugural Whitlam Institute Gough Whitlam Oration in Sydney, following the devastation of NSW Labour. 

"Strengthening Labor requires us to be crystal clear about our sense of purpose. 
It is periodically fashionable for there to be outbreaks of existential angst in the Labor Party where the cry goes up ‘we don’t know what we stand for’.  Even if Labor isn’t raising the cry, media commentators raise it for us with never ending predictions of our imminent demise.
 
Let me say to you tonight, I am deeply intolerant of this bunkum.
 
I am absolutely clear what Labor stands for, what we aspire to achieve, what our culture is and our role as a party of government.
 
The historic mission of our political party is to ensure the fair distribution of opportunity. From the moment of our inception our mission has been to enable the son of the labourer, the daughter of the cleaner, to have access to same the opportunities in life as the son of the millionaire, the daughter of the lawyer.
 
Creating opportunity and enabling social mobility has required different policies in every age. We have moved beyond the days of big government and big welfare, to opportunity through education and inclusion through participation.
 
But at every stage in our history fair access to opportunity has been our historic mission.
 
And we have always acknowledged that access to opportunity comes with obligations to seize that opportunity. To work hard, to set your alarm clocks early, to ensure your children are in school. We are the party of work not welfare, that’s why we respect the efforts of the brickie and look with a jaundiced eye at the lifestyle of the socialite.
 
The Labor culture values effort more than status.
 
It prizes the great Australian tradition of informality and rejects the sort of snobbishness and obsequiousness that infect other societies."

Those were the values that drove my youthful support for Labour and my misplaced endorsement of Rowling against Muldoon. Those were the values of the Labour of Savage and Fraser.

The current NZ Labour Party is the party of status entitlements. It spent its last 9 years in office creating laws and allocating offices and privileges according to status,  in distinction to individual merit or deserts. Status categories included age, race, gender and sexual preference, as well as deemed "disadvantage".

Can Goff in opposition point to anyone in his team working on recapturing its founding values? Instead they are assisting National to cement status in as the foundation for entitlements and inherited privilege. Labour was feeble on the Marine and Coastal Act. They've colluded to protect failing schools and teachers from the kind of exposure the Australian Labor Party has used to shake up education. They consistenly defend welfare bludgers and a criminal justice system that eliminates the greatest social constraint on crime – namely shame.

I heard Goff 10 days ago claim to a Chamber of Commerce audience that the worst social  tragedy was the half of Maori young people leaving school to no work. No one in the audience thought to remind him of his recent vote against the only proven remedy for that – ensuring that employers could employ for what they are worth until they've acquired and demonstrated work ready skills – i.e. youth rates. To be fair I wonder whether that hesitation was because of National's shameful vote on the same matter.

I see no one doing the thinking that Frank Field offered the UK Labour Party. There is no equivalent to Blair. NZ Labour shows none of the vigour even a febrile Australian Labour shows. There is no sign here, even without Clark's dominating presence, of the kind of debate that blesses Australian Labor courtesy of its formally recognised left and right factions. New Zealand Labour lost its right faction to ACT, and has never regrown the severed limb.

New Zealand suffers for that. Only with herculean and damaging effort can the Right reform welfare and labour law, or education and health. Genuine reform in those areas should be for the left, so that  the parasites of the entitlement industry who have nested there have no place to hide when reform comes.

When the  Right has to do it the political dynamic allows the parasites to think they have political support, even if it is grudging, and for reasons of opposition only. It is time for a genuine Labour right to resurface. Has Shane Jones served his penitential time yet?

I wonder how many others woken at 5 am today in Wellington reached for their smartphones to find reporting that might explain it.

Nothing on DomPost, Stuff, RadioNZ, Radiolive, or Newstalk. There rarely is, promptly, on local stuff.

Having heard Bernadette Courtney’s bags of opportunity speech at a Chamber of Commerce lunch last week this was the first time I went to the Dompost site first. Nothing really different from Stuff. Won’t bother again.

Is there some local focused blog or news exchange I am missing? Must it be twitter, perhaps hanging off David Farrar’s precocity? ,

Last week the Law and Economics Association of NZ (LEANZ) held a "sell-out" seminar evening in Wellington.  The topic – Partial Privatisation of SOEs"

Phil Barry the principal speaker, corrected myths about the outcomes of privatisation. The audience noticeably sat up when he was introduced as an adviser of Toll Holdings on its NZ Rail deal with Dr Cullen. Phil was unequivocal – privatisation added effciency and value, and foreign participation improved the figures

I spoke on the implications for directors, officials and ministers of retaining a Crown shareholding. My presentation notes will be found on the LEANZ website.

I think the capacity audience was a tribute to professionals' eager anticipation of advisory and other roles in partial privatisation.

Curiously no questioner pursued the aspect that I think is the most interesting – how a democracy handles fears that the family silver is not only up for sale, but it might go to foreigners. 

The government, sensibly, is thinking about the detail, though they'd rather leave detailed work until after the election, lest they be accused of prejudging the election. Voters will decide if the government has a mandate.  I doubt that the government will get  through the election without explaining how they'll ensure that privatisation and patriotism can co-exist.

So what is the issue, and what kind of steps would protect a vendor government from voter fears?

The government has been urged to look at the model of Singapore's holding company, Temasek.  It looks attractive as do many things Singapore has achieved. But most of them could require more courage than our current politics throws up.

There is respectable NZ precedent for limits on share parcel size, so buyers cannot accumulate controlling stakes (the current NZX for example). For many years Air NZ had sharehlding caps, and also a two class share capital. Only New Zealand 'residents' could own the controlling class.

We may not get to the bottom of this until we've had the debate that lies underneath the worries of many New Zealanders – that is whether we should be concerned about foreign control. The LEANZ session did not get into that.

Long term, open borders for investment are better for us, if we are rich enough ourselves to invest elsewhere. In my experience, however, even well informed voters can be anxious about control passing to foreigners. Those unpersuaded of the benefits of open markets will regard sale to foreigners as a form of treachery.

I don't think any current politician in a democracy could harangue that worry away. I argued at the seminar that share transfer restrictions, though opposed by many with religious fervour, are almost universal in the constitutions of private companies where the shareholders have a free choice. They presumably know that restrictions are considered, authoritatively, to diminish share sale values. There must be some compensating value to shareholders who support such provisions.

With a near universal fear of foreign ownership we should consider whether that too is a revealed preference, showing a voter instinct that may be sound. Assuming that control will pass overseas is a symptom of decline. The long term solution should be greater productivity, not ownership restrictions, but perhaps people know intuitively that greater productivity as a solution is intangible. It is easily sacrificed to the current votes secured by transfer payments. In the meantime voters will react viscerally against leaders who appear indifferent to the transactions that evidence national decline and allow control to depart.

The government must show very early that it is patriotic if the process of privatisation is to be sustainable politically. As humans we are primed to be suspicious of “them” (i.e. not “us”). Many of our customs and skills are designed to enable us to distinguish them from us speedily, including things as basic as speaking accent. A government that tells people to ignore such deep instincts will not long be entrusted with power.  At best governments can corral and channel or steer such instincts within constructive boundaries.

Secondly, there is good reason to consider whether our competition law and other mechanisms for limiting collusive exploitation will be enough if we naively allow control to fall into the hands of “not us” who are indifferent to us. There could be a big difference, for example, in control from an American or other English speaking country company with competition law experience and traditions, and deep patterns of rule of law observance, and control from countries without that, like China. People will sense that no competition law would protect us, for example, if dominance of an industry fell into the hands of Chinese companies whose governance is opaque. Would we ever know if they planned collusion overseas? How would we know if they were instructed by their government or banks to collude?

The Australian FIRB distinguishes openly between applications from different nations

In my practice years ago I became familiar with many kinds of control restriction. I drafted many. They included:
a) Golden shares;
b)  Share classes , some of which can only be held by locals;
c) Share classes with weighted voting (the common European pattern up until recently)
d) Share parcel size (control) caps and maximum shareholding limits;
e) Board composition restrictions.

Others could serve dual purposes such as:
a) Free carry interests for the state (as in the oil industry on investment in exploration)
b) Special transparency rules to give assurance on accounting;
c) Special tax regimes, for example a capital gains tax on super profits;
d) Thin capitalisation rules and other constraints on structure;
e) Distribution restrictions (if they exist – thinking of the popular view that NZ Rail was looted by FR and Wisconsin).

My experience of control protection devices is empirical. I'd like to know more of the research data of the kind Phil Barry presented, enabling calculation of the likely relative market value impacts of the range of control limiting devices. 
 

Stuff has a story about insurance technicalities.

I'm waiting for the investigative story into the risks the government is running that the EQC's reinsurers, and many other insurers have been let off the hook by the Lords of Emergency's arrogant demolitions.

Most policies make payment conditional on the insurer getting an opportunity to verify the extent of damage, and its cause. When building owners are not even notified, or given a chance to mitigate loss by removing items of value, who could blame an insurer or reinsurer for relying on such terms, or indeed pointing out that the cause of loss (or an indeterminable part of it, is not necessarily an insured event, but instead the act of a civil authority or government,

The government is going the right way about ensuring that NZ will not get the cash flows we have been paying our premiums for, and relying on to fund rebuilding. Will the government stump up to fill the gap?

See also Eric Crampton on the arrogance of the authorities.