Listening to the Chief Coroner on Radio New Zealand describe his delegation's visit to the Pike River families last December reminded me of my disappointment in not remaining in Parliament for the Select Committee hearings on the Coroners Act 2006.

It was hard to work out what the Coroner was going to add to all the other 'resources' applied to that disaster. After all there is to be a highly resourced  official inquiry into the causes. It seemed he felt useful as another source of official sympathy and advice on legalities.

The Bill was introduced before the 2005 election and passed in 2006. I thought it seriously flawed, with powers that would confirm Coroners as routinely pontificating whiners over spilt milk, instead of being confined to their valuable role as rare but vital backstop reassurers that deadly foul play or official non-feasance will likely be uncovered.

Their loss of independence from the government in becoming full time sackable employees, was the first concern for me.

My fears have been borne out.

They love issuing clarion calls for new laws and regulations. They seem to feel no embarrassment at being without the benefit of the research on costs, unintended consequences and benefits required for any disciplined policy making. They seem rarely, if ever, troubled by notions such as liberty and personal choice.

Mr Ian Smith's pious views this week on quad bike safety have thankfully drawn official rebuttal. 

But the sad thing is that ignorant Coroner whining is now so commonplace that it is losing its impact. My concern is that they will have become politically entirely ignorable when next we have a genuine scandal on which their whistle blowing could be vital.

Many in the the US are arguing over whether venomous polititical language of Sarah Palin and other Tea Partiers might have prompted a madman's shooting of US Congresswoman Gabrielle Giffords.

Whether or not there is a direct connection will not be determined by debate. But I share the dislike of vitriolic descriptions of Obama and his colleagues. I too deplore language that normalises ascribing evil or treasonous motives to Democrats in government.

I fear there is a connection between the venom in public conversation and the paralysis that is preventing the US from tackling its chronic deficit and other sypmptoms of speedy national decline. The language however is not the problem – it is a symptom of the problem (though there is probably a feedback loop).

The problem is the evolution of politics as "tribalism", the division of the polity into Montagues and Capulets, with all the 'no holds barred' enmities that eat up societies absorbed in exploring and highlighting their differences instead of what they share.

"Tribal" loyalties have always been a grave risk for democracies where voting is along racial or tribal or religious lines. Such  democracies may only survive, let alone thrive, if they can elevate common nationalism, preferably with a genuine external enemy, or keep political supremacy out of the hands of 'genuine' representatives of the majority and in the hands of a 'philosopher king' elite or with a growing and increasingly wealthy middle class whose interests transcend the tribal distinctions.

The left tried for a century to turn class differences into a robust tribal voting affiliation but the vertical economic mobility engendered by Anglo capitalism undermined them throughout that century.  That experience may have lead us to think there is something inevitable in the cleansing and unifying tendencies of democracy. We see as anomalous the ballot box success of Hitler in Weimar Germany, of Peronism in Argentina, of many other unpleasant regimes (Venezuela, Pakistan, indeed much of the democratic world). Perhaps the US is showing us now how fragile is that confidence.

Graduate demococracy depends on putting what we share, our common objectives and values, above those we do not share.  It requires committment to the view that the ends do not justify the means.  No matter how strongly one feels about the purposes and the values of one's democratic foes, there are strategies and responses that are unthinkable. Obviously we may not kill or incarcerate opponents in order to prevail.

But that is not enough as a bottom line. There must also be a common consensus to ensure that foes can not triumph  by corrupting and misusing other coercive powers. It may be enough for bad currency to drive out good if politicians can persistently succeed by lying about their opponents. 

I wonder how long a healthy democracy can last if there are too few willing to defend values that are even less absolute than that. Ideally we would see our political competitors as fellow citizens, less than family but more  than just other humans. We would have good reason to assume that they justify being treated as we would want them to treat us, as indeed honourable, probably misguided but nevertheless worthy of our respect in office, and of our charity when needed.

I'm reminded of a conversation last August in California with a Stanford political science professor. Jack N Rakove is an expert in the debate over the tussle between the strict constructionists on the US Supreme Court and the judicial activists. He won a Puliitzer Prize in 1997 for "Original Meanings: Politics and Ideas in the Making of the Constitution".

I enjoy Fox News. I told Jack I like the penetration engendered by its relative absence of political correctness. His reaction confimed that I was dealing with a tribal liberal. So I asked a question that I've been meaning to ask for many months. "Why do US intellectuals now rarely write about the US government, or US government policy. Instead they write about the acts of the  "Clinton Administration" or the "Bush Administration" or the "Obama Administration". I asked him if I was correct to see this as a conscious or subconscious distancing of the writers from their own government, the intellectuals' version of deniability.

The conversation drew in other Stanford people at the barbeque.  One thought it was necessary to distance oneself as an American from the actions of their governments , because they had been so profoundly wrong for so long. I asked if there was anything left of the tradition of bipartisanship on foreign affairs (contention within but unity to foreigners). Another said Bush had made that impossible.

When I mentioned  that the Fox guests' hostility to Obama seemed to me no more unpleasant than the ritual contempt for the Bushes that poured out of liberal organs, and that our narrow and unpleasant broadcasters could always find US intellectuals to vent bile toward the Bushes, the conversation became stilted. Jack Rakove ventured the view that this partisanship was not new, that perhaps there had always been a US scholarship convention of referring to their own government as the [President] Administration.

I think not. I do not recall it is the normal way scholars referred to foreign actions of the government of the Roosevelt era, or the Eisenhower or Johnson or Kennedy era. I think it became more of a habit to them as they tried to distance themselves from the democratic majority opinion during the presidencies of Nixon and Reagan.

Further, I fear that we in New Zealand suffer from the same underlying sickness, comprehensively masked at present because we have a decent and intelligent leader in John Key. His influence makes it hard to prosper politically at present with overblown rhetoric and nasty lies.

We should remember how much mileage Winston Peters gets, and how natural it seemed only a few years ago to have a leader who characterised her opponent (Brash) as "cancerous" and insulted the US President, and whipped up a political pogrom against the Brethren, and perverted electoral law to excuse the diversion of $800k of public money then changed the law to knobble 'third party" campaigning against her.

We are lucky indeed that those in National who would have responded in kind were fewer and much less influential than Key's key people.  Who in Labour can we count on for that committment when the cycle next turns?

The headline is the outcome of Transparency International's Global  Corruption Barometer Survey. 1300 locals were interviewed by Colmar Brunton for that result in the headline. So over 40 of them say they have paid a bribe recently or know that someone in their family has.

More importantly, if it is true, some of our most important institutions are regularly taking bribes.

TI's website is hard to navigate but I've made my way through the report.

The Police, the State Services Commission, the Ministers of Police, Justice and the Attorney-General should have an action plan now, starting with asking Colmar Brunton (with their client's consent) for enough explanation to understand the results reported on 9 December. 

If the result is robust, there should be an emergency plan to run stings, to change systems, and to put up some tents to house the people who should shortly be in prison.

I do not believe the report.

In all my career in the law, and in Parliament I've never been offered, or been asked for a bribe. I've only heard about such conduct at second or third hand, and then it was extraordinary.

But I may be living in a bubble. With the Maori Party likely to hold the balance of power, and the likelihood that National will allow Winston Peters back in Parliament next year there could be a major shift in official priorities. A Peters party and the Maori party are and will be tolerant of corruption (they excuse it and defend corrupt people).

We should be strengthening all the systems now, to do what we can to retain both the reality and the reputation of being a corruption free country.

What do you think of the key questions?

Have you or anyone in your household had contact with any of the following 9 institutions.

Education system

Judiciary

Medical services

Police

Registry & permit services (civil registry for birth, marriage, licenses, permits)

Utilities (telephone, electricity, water, etc.)

Tax revenue

Land services (buying, selling, inheriting, renting)

Customs

The next question was

Have you or anyone in your household paid a bribe in the last 12 months.

 Followed by:

   If you paid a bribe in the past 12 months, which of the following applied to the LAST bribe paid: (Single answer)

The bribe was paid to speed things up

The bribe was paid to avoid a problem with the authorities

The bribe was paid to receive a service entitled to

Did not pay a bribe in the past 12 months

Cannot remember

Don’t know   

I must ask David Farrar for his assessment of the survey.

Oxford Professor  Nicola Lacey's lecture last evening began promisingly.

Billed as"The Politics of Punishment"  she delivered the Women in Law Committee's 2010  Shirley Smith Lecture.

She outlined the thesis of one of her books ( I missed the name but I think it must be The Prisoners' Dilemma: Political Economy and Punishment in Contemporary Democracies – CUP 2008).

Her thesis is that proportional representation, as the electoral system  of what she called the "coordinated market economies" (i.e.Western Europe) supports the persistent dominance of left wing parties. Right wing parties can only interrupt this dominance intermittently. As a system of "negotiated" power sharing between the representatives of sectoral or socio-economic groups, PR sustains "settled" control by experts (criminologists, judges and lawyers) over criminal justice, buffering them against the ignorant demands of voters who would otherwise force politicians into an unwilling "race to the toughest"

In "coordinated' democracies even during unfortunate interludes of right leaning (synonymous to her with ignorant, harsh, un-progressive policies) electoral success, the right leaning parties are obliged by proportional representation to negotiate with smaller parties who can protect the settled consensus on penal policy.

She appeared to think that the answer to crime was unquestionable – more income equalising transfers would tackle its causes.

So far so good – all very much in worthy homage to Shirley Smith and consciously consistent with the constitutionally controversial comments of of our Chief Justice in last year's poorly researched and trite lecture in the series. 

Why then did I say a trite lecture began promisingly?

Because she acknowledged that reality in the form of New Zealand  had made a rude noise about her theory. It had forced her to look at the "remarkable" influence of the Sensible Sentencing Trust.

We had now had proportional representation for 14 years, and the left wing predominance it favours. Yet our penal policy had become less "stable". To Prof Lacey the nasty "Westminster adversarialism" and responsiveness to the will of the people that characterised the "individualistic (cf "coordinated") liberal market economies" (I think she means English speaking) and their "majoritarian democracies" had proved far more persistent than the theory would have predicted.

But she was made of stern stuff. Reality might be threatening a mugging (cf Irving Kristol's famous description of a neo-conservative as a liberal mugged by reality) but she was more than up to sending reality packing.

The sainted Ms Clark's government had plainly been forced to compromise their better natures and their intelligence to put through the major 2002 crinimal justice law changes. They'd had to preside over a sustained shift of control of criminal justice from the experts to "our old friend the so-called Sensible Sentencing Trust". 

There were many observations that would have repaid investigation. I'm sure she'd be a fascinating dinner conversationalist. But sadly she is from the European tradition of scholarship, the tradition that makes social 'science' an oxymoron.

What a pity these well intentioned people who want to honour Shirley Smith do not foster more genuine enquiry, and challenge to their bewildered preconceptions. It would have been great to hear such an intelligent woman defend her life work against intelligent challenge.

She was not especially time constrained, but there was no mention of the real dilemmas in penal policy – the significance of serious crime rates in explaining changes in imprisonment rates, the extraordinary success of the US in making its people much safer from crime (and safer than UK citizens). There were a couple of obligatory sneers at the US, and brief homage to New Zealand's dopey family group conferencing system but no apparent awareness of the awful trend of our youth crime, and the sorry comparison with trends in much of  the US.

It is youth crime trends that determine future serious crime and imprisonment rates.

You can hear Prof Lacey in a love-in with Chris Laidlaw on Radio New Zealand this Sunday.

Peter Marshall was the only senior police officer to retain any credit with the year 2000 Parliamentary Committee that investigated the policing of the visit of the President of China in 1999.

The Committee inquiry was prompted by Labour Government expectation that it would find evidence that  Jenny Shipley (by then Leader of the Opposition) had ordered the Police to keep 'free Tibet' protestors blocks away from the President. As things turned out she was not discredited.

The main outcome for me (and Wayne Mapp and other MPs who sat on that committee) was sad worry about integrity at senior levels in the Police.

Evidence from the protestors conflicted directly with Police evidence. As I recall it the lowest point came after protestors supplied video evidence. It included incontrovertible footage of Police in Auckland keeping protestors a block away from where the Police had previously told us they were permitted to assemble, including by use of a bus.

Senior Police officers from Auckland were summoned to explain the discrepancies.  Incredibly they persisted with their earlier story, until Peter Marshall broke with what seemed to be a pre-agreed strategy and acknowledged that the video was showing what actually happened.

It seemed to us on the committee that he paid an immediate price with his colleagues, so I'm delighted to see the current appointment as a fitting affirmation of success.

The government must be desperate to get their Marine and Coastal Area Bill through.

My written submission went in on Friday at the last possible time.  I was called on Monday and asked to appear at the earliest possible occasion.  So I'll be before the Maori Affairs Select Committee this evening at 5-30 pm.

I'm not looking forward to this duty. I've spoken to some deeply unimpressed submitters from yesterday. The Chairman's prickly response to John Boscawen's reasonable protest yesterday does not bode well.

Sending a Bill of major constitutional significance to that Committee contrasts badly with Dr Cullen's establishment of a Special Committee, including Parliamentary heavyweights, to consider his Foreshore and Seabed Bill. 

The result was vastly improved legislation. It benefitted from National's intense political challenge, the earnest work of United Future, and the need to ensure that NZ First could support it.

Unfortunately, from what I heard of yesterday's contributions, Labour are not performing the duties of an Opposition. They are not defending their own record and testing the government lines. Perhaps that will change as the MPs warm up to their task. It is hardly fair to expect them to be across the issues in submissions they can not have seen until Monday midday at the soonest.

I fear, however, that we are back in the political state suffered from mid 1980 to 2003, when the major parties colluded to ensure that ordinary New Zealander's concerns about racist law were stifled, and never debated in Parliament without snide references to "red neckery". Dr Brashes Orewa speech blew that cosy consensus open. Have the establishment parties now drawn the curtains closed again?

If so I forsee them being re-opened by Winston Peters. He could swing from them back into Parliament.  

Back to this evening. The competence and strength of each committee changes with personnel so I will not prejudge the perspicacity or pertinacity of the current members of the Maori Affairs Committee who I do not know. But  I was substituted to sit on that committee  several times during my time in Parliament. Not only was it ineffably light weight in effort, the members formed a discourteous cross-party club, happy to dismiss outside views as not needing discussion. I was grateful to Georgina Te HeuHeu for intervening to prevent them spending more time attacking me one morning for questioning a department boss than they did questioning him.

I'll wait for the inquiry to decide whether the delay in entering the Pike River Coal Mine is justified. But there is already a significant warning for the Police and the Government in the widespread mistrust of their official statements. Officials are now suspected of institutional cowardice whether or not it is justified.

I felt sorry for the spokesmen I heard on radio yesterday morning. They're infected with the bloated jargon disease (people are' resources', the army robot is "defence assets" etc). After years of daily hosings with pompous head office circumlocution they must lose self awareness of how dopey it sounds and how easy it is to mistrust. Those of us outside the public service who still speak old English run our internal translation programme, but the message is overlaid with the flashing  "bullshit warning, bullshit warning".

My sympathy for the spokesmen got strained when they went into directly defensive self-praise of each others' efforts. O for the New Zealand of my father's generation, where praise of yourself and your efforts was something you left strictly for others, and where stoic understatement was the only code to translate.

 The NZ Herald comments page "Are you happy with the authorities' handling of the Pike Rive blast" (currently 22 pages) seethes with mistrust of Police leadership. It reflects the conversations I'm now hearing.  Whether or not justified in this case, that propensity to mistrust should be of very serious concern to the government.

We'll know whether or not the present caution is justified when the presently unknown is known. But it has seeped into public consciousness that the Police do not value heroism. 

Respect for heroism, an evident willingness to sacrifice oneself for others, even foolishly, may be a pre-requisite for  trust in leadership. Certainly Sir Robert Peel, founder of modern policing thought so.

Time for Police Minister Judith Collins to reinstate respect for heroism into the law governing the Police. This does not mean that they must carelessly risk their lives. But every officer must know that if they volunteer to risk their lives they will be honoured, not described as mugs and disciplined.

The law must also restore the ancient liberty that allows individuals to choose to be noble for others even if it seems foolish. The Police should have no right to prevent any of us from exercising a fully informed choice to risk our own lives for another.

A society that has lost the will to prevent suicide, and allows mountain climbing and motorcycle racing and over-eating and drinking and other risky personal choices should never have given the Police the power or the duty to prohibit self sacrifice for more noble purposes.

Would New Zealanders learn more or get better judgments from a Supreme Court that was not only open to the public but could be watched on line, perhaps live or in podcasts?

I suspect not, based on my experience of television camera effects on the quality of deliberations in Parliamentary Select Committee. Serious debate, frankness, willingness to explore others' points of view all disappeared until the camera left as all involved postured to get the 15 second clip that might bolster their particular brand.

Camera coverage appears to offer an unchallengeably fair and accurate report.  Constituents see what is actually said, as it is said. But editing can create a completely misleading impression. Fragments may lose all context without losing the appearance of accuracy.

Of course print media can also misquote out of context. But there is a protection. Readers know they are relying on the fairness of the reporter and editor. Accordingly those wielding the pen seem to  accept more responsibility to convey context.

That discipline seems to be reduced where the camera does the reporting, and it "does not lie".

Posturing for the camera should be less tempting to judges.  Tenure means they don't have to cultivate their following to keep their jobs, though vanity might be enough to induce unwanted camera consciousness. 

Still I am inclined toward the arguments of Wendy Kaminer in the Atlantic, commenting on the likely demise of a Bill to require televising of US Supreme Court proceedings. Perhaps broadcasting should be permitted on request, so long as no sequence is less than say 10 minutes unbroken (to protect against out of context editing).

This is unlikely to be a serious constitutional issue. I think there is enough protection of open justice in our Supreme Court if its hearings are open to public attendance, and to print media, and written submissions are available to search and it must publish its decisions.

The biggest contribution we could make to open justice would be to abolish name suppression, and to re-open all kinds of courts to public attendance and print reporting, including family and youth court proceedings.

Kudos to Simon Power for the courage to try slaughtering so many sacred cows at once. Sincere members of the profession will have horror predictions of injustice with much less provocation than this. But perhaps the very size of the package will get most of it through.  This is reform on the Roger Douglas model – all fronts at once, so that the opponents of some bits can still find something to applaud. The opposition can not concentrate its resources.

I've read only the Ministerial releases so far, so my reservations may yet prove to be unfounded, but it is disappointing that the expectations are still so meagre. With all this change, it is hard to feel things are being transformed if a High Court jury trial average time to completion is to drop less than 20% from the disgraceful 16 months to 13 months.

The criminal law industry should be deeply ashamed to think that is a radical acheivement. Why, for example, did it take more than two years to bring to trial Austin Hemming's murderer, Paul Leofa Brown, who had already killed before. There was absolutely no doubt about who did it, or the circumstances. The only question at the trial could have been – 'what's your excuse'.

Any common sense system would have given him perhaps an afternoon to answer that – say a month after the arrest. Who can possibly excuse a system that kept this trial hanging for more than two years.

The Bill is complex. It does lots of sensible things. But there will be force in some of the objections. I regret the loss of the right to elect trial by jury for small but important charges on matters of principle, where judges cannot be trusted to reflect the common conscience.

I think for example, of the Hair trial, many years ago, where the cast of the musical were acquitted on charges arising from their nudity on stage, because the jury decided it was time to send a message that time was up for a ridiculous law. That was properly for them to decide, not for the Police.

I fear for the people who sensibly use a weapon to scare off home invaders. Even though plenty of people have been viciously attacked in their homes, judges still sanctimoniously condemn them for "taking the law into their own hands". Juries, on the other hand, rarely convict in those cases.

I wish that the Government had tried a more simple remedy first – just order the judges, with matrix sentencing if necessary, to ensure each sentence reflects the costs a convicted offender has put us all to, if they were needless or offensive. For example, stupid not guilty pleas or requests for jury trials (especially those changed at the last minute – like the plea of Paul Leofa Brown) should earn a substantial increase in penalty. In reality it is no different in outcome from the current more offensive practice of giving a discount for an early guilty plea.

That is offensive to victims. Guilt and remorse should be the norm. Their absence should be penalised – instead of rewarding what is often false regret.

If only the judges had not allowed the law to become so constipated that we have to applaud this current Bill.

Following exposure to 'Inside Job' I want to know more about how the Australian government plans to cap banker pay.

The Herald reports the proposal, relating it to New Zealander Sir Ralph Norris' $20m pay for leading the CBA.

No politician will risk promoting the one thing that might actually change the  incentives enough to allow boards to do their job as they did when top boss pay was almost never more than 10 times the pay of shop floor workers.

Get rid of the law that requires the publication of executive salaries. Require full disclosure to shareholders of director remumeration (of all kinds, including the full value of options and retirement benefits) but end the compulsory publicity that pitches boards into the stupid ratchet competition of Hay relativity type salary rounds.

I blogged on this topic 18 months ago, when the Aussie salary cap proposal was mooted.

I can confirm, from experience in remuneration decisions on a number of boards, that rational calculation of what is necessary to attract and retain the right talent, is submerged by perceptions of both the candidates or executives, and the boards, of what it might be thought to say about them and their companies if they let themselves fall in the bottom half of the reported distribution.  What was referred to in 'Inside Story' as  the 'pissing competition' is unavoidable.

Try scrapping the silly rule before enacting even sillier rules. 

But there is a ratchet operating in politics too. It is far less risky to promote new law, even if it is to counteract recent silly law, than to propose repealing anything when people are baying for more rules.