I've recently had reason to research some of the law and conventions around Cabinet appointments. There's been plenty of innovation since we adopted MMP. 

We have Ministers who are not part of the Government, Ministers not bound by collective responsibility but no MInisters outside Parliament.

The last is a reflection of what we think as a core element of the Westminster system – that the Executive draws its authority from being the faction in the legislature that has the numbers to call the lawmaking shots. Being able to appoint a Minister who is not an MP is thought of as a characteristic of US style administrations, where the separation of powers divides the executive from the legislature.

The UK PM has just announced the appointment as a MInister of the current Chairman of HSBC. He'll get a seat in the Lords, so strictly he will be a Parliamentarian. Peter Mandelson was the last Minister similarly parachuted into both the Lords and his Ministerial warrant.

But it underscores a flexibility that we do not have in our Constitution.

Section 6 of our Constitution Act 1986 requires that Ministers of the Crown be members of Parliament.

At last – TV 3 is going behind the symptoms and getting to the causes of Canterbury's woes.

Did Mayor Parker engineer the earthquakes?

What a mercy that we're yet spared any Green theory that somehow links our earthquakes to carbon emissions or some other human wickedness of prosperity, and so far no kaumatua telling us its all a message from an upset taniwha.

Not many will be pleased to know that lawyers are among the first back up to speed in Christchurch. Many might prefer our industry to have a permanent crimp in output. But I congratulate my old firm for having its Christchurch branch back up to speed within two days. Stuff has the report:

"Jo Appleyard, a partner with Chapman Tripp said the legal firm had temporarily relocated to the All Seasons hotel in Papanui Road from the PricewaterhouseCoopers tower.

The 35 Christchurch Chapman Tripp staff had the help of group technical staff hooked into the Wellington and Auckland offices to enable them to continue with normal legal work before an eventual move back to Armagh Street."

What a pity there is so much political and official dithering over getting kids back to school. What could be better for the kids, their parents and laying down patterns of resilience than:

• to get back into a familiar routine as soon as possible. Competence in a routine is comforting. There is more recovery and avoidance of "trauma" when people have tasks they can control than when they have time to wallow in self-pity and to worry about the enormity of what lies ahead.
• kids should see competent adults carrying on unperturbed, overcoming difficulties. 

The decision lies, as it should, with each school individually. Principals and boards will no doubt get advice on safety issues, but I hope they balance the risks of further accidents or disease from school attendance against the counterfactuals – like:

• the risks for many of the kids in homes that will stay unrepaired and probably uninspected for longer than public buildings;
• the hazards they'll explore if they are wandering the city bored and unsupervised;
• the problems for parents trying to re-establish their own working normalcies if they have to look after kids who should be at school;
• the message of passivity and lack of initiative inherent in kids seeing adults stumped by non-problems or lack of central 'permission' to problem solve, when most schools patently have facilities that can be used, even if some parts are deficient. 

I wish there was more evidence of the 'sector' standing up to the central and local government nannies. They revel in issuing orders and "responding" to "helplessness" and "needs". I fear we are getting ever further away from the example we saw in the Thai peoples' immediate back to normal response to the tsunami.

Yes! Yes! Yes! there is nothing to add, nothing to take away from today's perfect Rosemary McLeod column in the Sunday Star Times.

She skewers those who are steadily removing from our cities the light colourful scented plants that evolved in company with bees, those who tell us we must prefer the damp enclosing gloom of native rainforest to the airy understory characteristic of forests that need to drop their leaves to survive winter.

She deplores the official reverence for pohutukawa – and dares to prefer human uses, like a view or drains that stay unblocked, ahead of pohutukawa. 

I love pohutukawa. I've planted and nurtured a number in various places. I'm glad Wellington streets have them. But it is refreshing to see Rosemary's subversive identification of pohutukawa with the oppression of those who have "ethnic spirals tattooed up their arms and loudly deplor[e] all non-native plant species, as if this will make them dinkum tangata whenua instead of just posers."

For true heresy try this:

"The only native plant I've knowingly acquired is a white clematis, just starting to flower, which smells pretty good, too. The plant police haven't made it here yet. They'd love it to be planted in flaxes, the dull kelp of dry land, because "that's what would have been here naturally". Oh yes, and manuka scrub would have been here too, I dare say, and bare, stony earth, and tufty things like upturned scrubbing brushes, and I expect the wind howled overhead, and the seagulls squawked, and the tuatara gamboled and the moa warbled.

But I say it's no bad thing that the country's orchards are just now seas of pink and white blossom, that daffodils and jonquils are sprinting out of the earth, and that magnolias everywhere are magnificent, or that I battle against nature to have something to put in vases. So you can stick your boring flaxes – and especially your nasty pohutukawa – right up your plant police jumpers. I won't be having them".

As I read that I thought of Irene Van Dyk's husband and his contractor, who cleared some manuka and gorse without all the necessary permissions. Van Dyk was fined $15k and the contractor more. Remember that our law is now incapable of stopping a drunk killer driver from accumulating 17 convictions for driving while disqualified, yet it will spend thousands targetting decent people for clearing the scrub on their own land.

Colin James in the DomPost today reminds us that the government agreed with the Maori Party to conduct a constitutional review. Colin says that the terms of reference will be released shortly.

But the article looks as if might have been chopped short by a sub-editor. I took particular note because of the cryptic reference to  ACT in the following: 

"The Institute of Policy Studies (IPS) and Centre for Public Law are running a conference next week, 10 years after an IPS conference in 2000 which ACT tried to wreck. The IPS is also leading a state sector project on Treaty issues after historical grievances are settled."

I'm curious because I think he is referring to the hui mentioned in my post several months ago. I might have been the only member of the ACT caucus at that hui. I didn't realise I'd left anything like that impression. The conclusion leaves much to follow up.

The article properly identifies Rodney Hide's current contributions to constitutional evolution, in local government, on regulatory restraint, and on the racism in the DRIP (Declaration of the Rights of Indigenous Peoples).  I've no doubt he will be influential standing up both for property rights and against race privilege as the Marine and Coastal Area Bill is released.

Every so often I get sucked back into reading 'climate change' arguments. I bought Gareth Morgan's book as a patriotic duty – when an intelligent New Zealander pays for me to get an objective account then I owe it to him to see what he thought.

Since then I've left the stuff pretty much alone. Unless you're prepared to learn the science, you'll usually be in the hands of the talented and persuasive folk whose articles you last read.

I'm sure there is a human influence on climate. I do not know whether it outweighs natural cycles. I do not know whether getting warmer is good or bad overall, though I rather like the world I know so I start with a preference against change. I do know that the richer we are the more scope we have to adopt technologies that minimise damage to the physical world without sacrificing things that no democratic leader will be able to persuade us to sacrifice.

The risks may justify sensible preventative measures. They are almost certain not to be the hair shirt policies on which the world is planning to waste $trillions. Our ETS  is possibly one of those, though it may be the least we can do under political constraints without incurring the geopolitical costs of simply repudiating the obligations we signed up to many years ago.

A friend recently sucked me back into this by sending what she considered to be a challenging web article. I could not open it. Instead of taking that as a piece of good luck, foolishly I sent her a short optimistic piece by Matt Ridley from the Huffington Post. She responded with a Monbiot article. I've followed up on some of the latter's links.  Then I came across a 2 July Telegraph piece by Bjorn Lomborg.

Cathy and I spent a happy couple of days escorting Bjorn Lomborg to dive the Poor Knights and white water raft during a New Zealand visit. I prefer his company to that of the gloomy Green party priests who deal with their personal demons by trying to inflict the modern equivalent of ecclesiastical rule on us all.

Lomborg believes that climate change is a risk. He urges precautions. But he wants them to be intelligent.

His Telegraph article reports on Copenhagen Consensus Centre research into the costs and benefits of current European energy policy:

"Using the conventional estimate that one ton of carbon dioxide is likely to cause about $7 (£4.50) of damage, [researcher Richard Tol] found that the total benefit of the EU policy was just £5.7 billion. In other words, every euro spent is likely to generate just three cents' worth of benefits. [Lomborg's] research shows that by the end of this century, the EU's approach will reduce temperature rises by approximately 0.05C – almost too small to measure."

That's my fill of climate change argument for this year. I do not want any more:

a)  because none of it can be conclusive to a layperson;

b)  because the physical world I know best is so much better and healthier than when I was young so my personal experience fits better with Ridley's optimism;

c)  because I prefer optimism to pessimism. It is less wearing. Optimists are more fun to have around. When there is uncertainty about which is most merited, why not choose the one that is more pleasant?

d)  because there is nothing I can do in my personal use of resources that will make a blind bit of difference to the physical world even if the pessimists are right, whereas

e)  there is much that I can do about the social world that might have some practical influence for good as well as equip us with more wealth with which to play our part in improving the physical world when the time comes.

Over the next few days we'll hear much on Sir Ron's contribution. I'll listen with none of  the reservations one often has about eulogies for people you know from working with them and for them, in strife and in success.

When I opposed the abolition of knighthoods and celebrated their restoration it was Ron I thought of as the embodiment of our version of nobility. It was him I had in mind when arguing that having a title that elevated some of us as models for all, was worth it despite knowing that some undeserving imposters would also benefit.

I do not recall a client who was more worth working for, or more fun to dine with, or more magnanimous in success or more decent in adversity.

Receiving a Yellow Page fax scam this morning prompted me to check out Internet NZ's new orb service. It is for online crime and the NetSafe providers probably see fax scams as belonging to the steam age.

I hoped that Orb might offer a download of a simple one button click to send off a spam message to Orb. Apparently not yet.

The Yellow Page scam has agreement in the fine print to pay to a UK company $159 per month for two years, payable yearly in advance. The fine print allows for the resulting debt to be assigned. I imagine it will be assigned to some NZ company that will then set about formal enforcement proceedings, but will agree to drop the enforcement for a compromise sum.

It will be interesting to see what scumbag lawyer (if any) will work for the perpetrators of this scam. Perhaps they will use experienced debt collectors without lawyer assistance.

Chapman Tripp have two crisp public comments for directors. The first applauds Judge Jan Doogue's refreshingly unequivocal decision in the Feltex case, though noting some chinks that could undermine its precedent power. 

The second Chapman Tripp comment reminds directors of new risks down the line, if public enforcement of directors duties codified into the Companies Act is not confined to directors who have been bad or reckless, and not merely foolish or careless.

On the comfort to draw from the Feltex decision Chapman Tripp say:

"We consider that, on balance, the judgment should be a source of considerable reassurance for New Zealand directors.  While directors must always give appropriate consideration to material placed before them, they are entitled to trust those advising them, so long as such trust is warranted and there are no reasons to suspect that it may be misplaced."

I'm less sanguine, for two reasons:

a) the fact that the Companies Office used its powers and our money to prosecute a case where there was no evidence of impropriety should worry everyone. Many laws now stipulate for strict liability in unfairly broad terms. People have reassured each other that they should not worry. because the authorities would only use them against people who deserved it. The Feltex case (and probably the Nufarm case) say – wake up!

b) look carefully at the qualifications at the end of Chapman Tripp's assessment – "so long as such trust is warranted and there are no reasons to suspect that it may be misplaced."  

They no doubt seem reasonable to lawyers, sitting in comfortable hindsight. But most business decisions are made  under uncertainty.  One simply does not know whether "such trust is warranted". If you do know then the decision is a no brainer – indeed it justifies the challenge of the Shareholders Association Chairman cited by Chapman Tripp – "that begs the question of why directors have to be paid so well for exercising their judgement”. Instead most business decisions are necessarily judgments which balance the cost and practicality of getting better information against the costs and losses from delay, including  loss of opportunity. 

In practice there are also frequently "reasons to suspect that [the trust] may be misplaced". A director works with the material given. One often has "reason to suspect" that the people on whom one is relying are less than optimum. Some will be learning on the job, and making the mistakes that we all must make. Others will be known to be out of their depth, but retained because they are the devil we know, and in a tight labour market they are better than no one. Some may even be being "managed out" because labour law says they can not be dismissed. So the "no reason to suspect" qualification phrase  in the Chapman Tripp assessment is weasel words.

Using them is excusable – they are drawn from the sanctimonious phrasing of section 138 of the Companies Act. But they are dangerous until they are recast, or bold judges like Jan Doogue find a way to make them mean something like "no reason to conclude, after balancing the relevant risks and costs and benefits as they then appeared to the director, that it was imprudent to rely on those advising them".

It is rare that one has "no reason" to suspect possible unreliability. The usual case is that there is some reason, but it is outweighed by much more reason to rely, and to act on that reliance, knowing that sometimes it will be misplaced.  That is the risk shareholders want the directors to weigh and to take on their behalf.

To answer the question of the Chairman of the Shareholders Association – if shareholders want the upside of good faith judgment when it proves right and want the blood of directors when that same good faith judgment proves to have been unwarranted, then the shareholders will find that the directors will demand a goodly part of the return that the shareholders are expecting. If directors pick up the downside risk for shareholders they will want the return to justify it.

The emails are mysterious in one respect – it seems that much of the early discussion between Jim Farmer QC and Sir Edmund Thomas preceded a thorough understanding of the facts. Astonishingly it seems Jim Farmer may not have seen the relevant company indebtedness documentation and accounts at any time covered by the correspondence. Nor did he seem to think until very late that it could be necessary to know exactly what his client and the other eminent people involved had actually said to each other or to the court.

It is possible that Ted Thomas was unduly agitated by a premature and overheated account from Farmer. Perhaps Jim Farmer's evolving views on how he should advise his friend Alan Galbraith will be excused as a necessary retracing of steps as more of the basic information became clear. 

Nevertheless it is easy to understand Thomas'  mounting alarm and estrangement from Farmer after Farmer decides that it is not up to him (or Alan Galbraith QC or Colin Carruthers QC) to take steps to cleanse the Court even if Cheif Justice Dame Sian Elias remains indecisive.

Thomas was entitled to expect that Farmer would not have consulted him without knowing most of the relevant facts.