I’ve been thinking about the ETS again, after reading that the Iceland volcano was pouring greenhouse gases into the sky in amounts that dwarf the increases we are trying to forestall.  I asked  MP Cam Calder  how they were answering ACT's challenge – "Why is National not dumping the ETS?

I'd seen Phil O'Reilly's support, which must have taken courage given the unhappiness of some of his members.

Cam has now forwarded Nick Smith’s latest speech on the topic.  It makes superbly the  case for doing what he is doing.

But I can't link to Nick Smith's speech for you. It was delivered to a Hamilton National Party conference on 16 May. It does not appear among his speeches on Parliamentary sites.

The speech answers, in my opinion conclusively,  the question – 'Why is National going ahead with the ETS?'.

I'd surmised that Nick might find it hard to put together enough Parliamentary votes to change the law, for the present. I knew of the absolute determination of Bill English and his colleagues not to repeat their 1990s superannuation surcharge mistake (reneging on an express election promise).

But sticking with the ETS cost increase for NZ business was still puzzling in view of the Australian stall.

Now I have cogent justifications.

 There is an argument Nick does not mention. I think it is sensible to get used to higher priced oil. We buy much of it from people who don’t much like us (or our friends at least).  It comes a long way from a very volatile part of the world.  It is prudent strategically to reduce exposure to potential animus, or at least to experiment with ways in which we could substitute fast if forced to.

National's statements leave them free not to extend the ETS to agriculture generally in 2012.

In my opinion  we could see the ETS convert at least partially to a tax in 2012, with some diversion of the proceeds away from forestry.  They may go toward research into energy efficiency and ag emission reduction.

That is not based on inside information. Just the logic of our needs.

Bouquet to new High Court Judge Rebecca Ellis. The Court of Appeal has rejected Eb (Mr Asia) Leary's appeal against her first high profile decision, that the Learys should not have name suppression in a case where there was (inadmissable) evidence suggesting Leary was up to his old tricks.

Now lets also see the list of 81 dupes who gave Leary the character references which in 2007 persuaded the High Court to overturn the 5 person Law Practitioners' Disciplinary Tribunal refusal to re-admit Leary to the law profession. They are said to have included a retired High Court Judge, 6 District Court judges, and 15 QCs.

There should be a simple rule. If you are defrocked from the law for being bent, go and find other things to do with your qualification and talents after you've served your time or paid your fine. It should be automatic, not as a punishment, but as a clear message about the standards of probity required for the profession that relies above all on honesty. Over 50% of law graduates live fulfilling lives without ever being in the profession.  

Publicity of unwisdom should also be routine. Listing the referees would be helpful to the rest of us. Many of them will have been prompted by their need for conspicuous compassion, and we'll forgive them for being victims of Leary's plausibility, but there should still be the  sanction of exposure for stupid personal endorsements. Without a downside to being wrong, what discourages the careless lending of one's own reputation to others.

The law profession is infested with people who mistake (as wisdom) compassion that is costless to them, Soich's reinstatement in 1991  was similarily fashonable. I have no reason to think that she is anything but the competent and effective professional advertised on her website. One does excuse youthful mistakes. But her skills could just as easily employed in one of the millions of useful and remunerative jobs outside a profession in which unquestioned honesty is crucial. 

Her readmission is a constant reminder of our low standards, the inability of lawyers to apply in their own affairs the fundamental element of effective law, certainty, consistency, predictability, and assessment by reference to practical decision effects, not  professions of noble intention.

Over the next few months a new cohort of young lawyers will hear fine sentiments about their responsibilities from the judges who admit them to the bar. I hope the Leary case reminds judges to be equally sure of their purpose when the next Leary fronts up seeking to overturn a refusal to readmit them.

The Supreme Court has upheld an employer's right to use contractors to do the work striking workers would otherwise have done.  The relevant parts of section 97 of the Employment Relations Act read (specially defined terms in blue):

Thanks to the Law Society Bulletin for highlighting the Times OnLine report on UK judges empathy with citizens facing the Dickensian legal system constructed over the last 30 years.

Read and weep lawyers, because exhortation is no solution, and part of the reason for the mudslide of statute is the need Parliamentarians discern to leave minimal ambiguity for judges to exploit with unpredictable discretion.

The Minister of Justice has lots of low-hanging fruit in his sector, if he chooses to hunt for chances to end pointless state spending. Justice Clifford has just polished for him a small but juicy plum – deciding that prisoners are entitled to legal aid for their parole hearings.

In 2007, in its dying days, Labour changed the Parole Act to say that parole was a privilege, not a right. The change, to section 28 reads:

" In deciding whether or not to release an offender on parole, the Board must bear in mind that the offender has no entitlement to be released on parole and, in particular, that neither the offender's eligibility for release on parole nor anything else in this Act or any other enactment confers such an entitlement.”

I regarded that as a small personal victory, having pushed fruitlessly for such a statement as an MP, and then having ensured that it was one of Sensible Sentencing's objectives.

But the justice insiders still had their hands on the pen, and they made sure the change was cosmetic only. They changed nothing else in the Act to give that declaration meaning. It is therefore an orphan curiousity in the Act, a cynical response to growing public awareness of the hypocrisy in justice insider rhetoric about parole.

There is no evidence that parole achieves any of its claimed objectives, other than to maintain the deceit in our courts, as judges hand down sentences the justice anointed know will mean little. The real sentence is not decided in open court. It is decided by the well meaning wallies on Parole Board panels.

Now the Hon Simon Power has an opportunity to give the provision meaning, and nip a new legal industry in the bud, by explicitly banning legal aid for lawyers instructed by criminals to get their right to release (oops – privilege).

Justice Clifford cited the new right to legal aid for lawyers representing victims as support for the view that criminals should also get it.

There is a clear distinction. The victims are usually there trying to ensure that the court's decision is upheld and that justice gained is not denied by the administrative granting of privilege to overturn court ordered sentence. They face the weight of the justice anointeds' delight in showing their "compassion", knowing the price will rarely visit them in their leafy suburbs and secure apartment blocks.

The criminal need only show he's not unmistakeably dangerous to get the privilege. The system starts on his side because letting him out will free up space. Hard to see that justice demands that the rest of us pay for lawyers to argue for a privilege  under a system pre-loaded to give it out.

Anxiety about inequality is a reason to support lawyer involvement in cases. But not necessarily routinely, and certainly not on the state payroll. If that is your concern there are myriad more deserving areas for lawyer involvement. For example, people fighting relegation on hospital waiting lists are far more likely to have compelling cases and clean hands. But even there I suspect the net costs/benefit from lawyerising the process would be negative. There is no case at all for requiring the state to pay.

So roll back smartly this week's extension of legal aid for prisoners.

The Hon Simon Power last night confirmed to INFINZ, the anticipated decision to roll together the Securities Commission with some of the functions of the Companies Office, MED , the Government Actuary, and the NZX.

An underwhelming speech. It did not address many of the Capital Market Development Task Force recommendations on which the government said in February it would have a discussion paper by the end of April. Let's hope that the delay is evidence of hard practical thinking, and determination to get the detail right, even if the timetable slips a little.

It is not as if the new structures have an urgent job. Market failures create caution. Most risks of stupid investment disappear for years after a bull market ends. So the new body will look successful even if it can not really claim the credit for a likely decade of low loss investing, until irrational enthusiasm holds sway again.

Announcements of intention to change the carpets and curtains and to demolish or move internal walls of regulatory structures work well politically:

• They look like decisive action – people can actually see something changing.
• They allow the postponement of the real decisions, on what the remodel should actually do that is different from now;
• They give a grace period, while people wait to see if it works. The politician is not held responsible for failures at least while it is obviously finding its feet; and
• They distract from the past. It seems churlish to keep asking about past failure once something is definitely changing.

There is sensible stuff on Kiwisaver though unadventurous.

But most of the stuff on the FMA is the political equivalent of corporate changes of letterhead and livery, until proved otherwise. Sometimes it signifies a genuine transformation. More often it is instead of genuine change. We won't know till we see the detail.

Whether "institutional architecture" changes are a net benefit usually depends on the quality of the people variously attracted, newly empowered, and dispensed with, by the changes. Calling in the architects gives the necessary excuse for bypassing unfair dismissal law, so there is room to make necessary change. But that does not mean it will be in the right direction, nor that the benefits will outweigh the costs of disruption. Good people can be driven away if the portents look bad.

Room for optimism is limited by:

• the Minister's advisers included rhetorical stuff instead of substance in several areas. For example, the  line " on too many occasions in finance company collapses we heard of investors' money falling to the floor through the cracks between regulators" is a good one, but it's hard to think of many such cracks. I'm not aware of any jurisdiction reasons for the failure of the worthies on the Securities Commission to take more interest in self-dealing finance company directors, and the vanishing restrictions in Trust Deeds on self dealing. What stopped them issuing warnings and commenting publicly, even if they rightly had no power to prohibit?
• some dumb Labour government decisions confirmed last night, in particular forging ahead with the breathtakingly stupid financial advisor regime when the Minister should be calling halt if government rhetoric about quality regulation and productivity means a thing;
• the expanded responsibility of the FMA for the content of NZX listing (conduct) rules. NZX already has a desperately low rate of recruitment of new companies. Few astute advisers can recommend listing to an Exchange where the rules (Aussie style continuous disclosure for example as opposed to our previous US derived model) are so potentially damaging to business and threatening to decent directors. Regulators and politicians have incentives to 'gold plate' rules. They're  unlikely to "relax" silly rules if some disappointed investor in the future could say on National news "if you had had not removed [x] rule I would not have lost", even if the interests of investors and issuers overall would be enhanced. Regulators know they will not be held responsible for gradual decline, or get credit for gradual growth, but they will suffer for any high profile disappointment.

The owner of the securities auction house has the best incentive to balance the rules at the point where they serve both the issuers, and those who trade. Politicians and regulators should then ruthlessly enforce the integrity of the auction house's application of the rules. That does not require that they determine what those rules say.

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Sir Geoffrey Palmer has practised for long enough to go through a full cycle of political correctness. He ran into PC hostility for his recent heretical pondering on practical compromise of our anti-whaling posturing, and our knee-jerk rejection of US naval visits. What he actually said was mild. But few would know exactly what he said, because the hostile coverage was in the juvenile style of much NZ political debate (one step up from “Mum – Geoffrey’s talking dirty, he said poos and bum”)

Now he is sticking his head out more dangerously. He’s crusading against some sacred beliefs of the liberals of his generation.  For them, on most social questions, the only answer was get the law out of the way – let it all hang out. Whether they knew it or not they were primitive Rousseau followers “If we stop repressing natural instincts  our innate goodness will have a chance to shine through.”

Translated into liquor law, we thought that if we dumped sale restrictions and ensured that liquor was available everywhere, a natural part of meals, of relaxation, of entertainment, we would emerge from our binge drinking dark past to become civilised little Frenchmen and women, enjoying our neighbourhood cafes and picnics.

Some of that has emerged. But the picture from the Law Commission’s interim report suggests we have evolved more in the direction of Russia than France. Incidentally last week I saw public drunkenness in France, liquor outlets all have signs warning people under 18 that they will not be able to buy alcohol, and they are worried about their liver cirrhosis figures.

But despite apparent recantation of earlier Rousseau inclinations, the media release foreshadowing Law Commission Report R114  “Alcohol in our Lives: Curbing the Harm” suggests that Sir Geoffrey has not changed enough of his spots.

The report seems unlikely to move away from the preoccupation with sale restrictions. Countries where drunk public aggression is rare, despite widespread availability of alcohol, show that that intrusive restrictions may not be necessary, as long as something else is present – a climate of personal responsibity. And what is such a climate associated with? Effective and pervasive social and legal sanctions at the personal level for low level criminal behaviour. That can of course include offensive drunkenness.

Instead of focussing on the behaviour we do not want, the new Report seems to continue the targeting of  alcohol and those who sell it.

In my view we will get no material change, whether toward a more European civility, or otherwise, without a return to treating actors as responsible for what they do, without allowing them to blame alcohol, or the person who supplied them.

I value Sir Geoffrey’s vigour. I hope the report stacks up analytically. We need the bluntness and drive he has brought to the debate whatever his recommendations. But in my view they will not advance us at all for so long as the law is besotted with the conduct of suppliers, and fails to deter, and to incapacitate and to punish boorish, threatening, vandalistic, behaviour whenever and wherever it occurs, whether alcohol is involved or not.

The report will apparently recommend “Increasing personal responsibility for unacceptable or harmful behaviours induced by alcohol, including a civil cost recovery rigime for those picked up by the police when grossly intoxicated”.

Good!  But if this is the only nod toward reinstating the personal responsibility law that prevailed before the “reforms” of my generation, and the effective police powers that went with them, Sir Geoffrey’s vigour could go sadly unrewarded. We will not get the cultural change he wants.

Anyone out there able to say what is likely to happen to the person (presumably a Police prosecutor somewhere) who made the stupid decision to prosecute the Southland bus driver for "assault" of a kid he stopped from persecuting a girl on his bus.

Is there a formal or informal system that over time ensures that stupid prosecutors get moved to positions that risk less damage to public trust in the Police?

On Kiwiblog's post on this story the Graeme Edgeler and FE Smith have both offered their usual valuable comments.

But the case is so bizarre it cries out for an insider to tell us how such things happen.

What a horrible last vision to take to bed from TV One news – bug eyed Bob Harvey demanding new powers to make people obey his orders to stay away from the beach. "What the hell is going on when people are telling [officials] 'we're doing what we like?'".

What's going on Bob is adults exercising their rights as adults, to choose for themselves whether to take a risk that does not harm others. 'We're doing what we like' is exactly what people in free countries can tell pompous twits.  What justification is there for ordering them away? The only life they risk is their own. As adults they're entitled to eat themselves to death, to drink themselves to death, to ride motor bikes, to climb mountains, to refuse to take their medicine or to reject life-saving operations, to sell their houses and gamble away what they should save for their old age.

Why should Bob Harvey be entitled to stop them choosing to look at a rare freak of nature? If nanny does not want ordinary people to  ignore warnings she should stop crying wolf. From long experience most official warnings are likely to be tremulous twittering.

For months there's been a sign on a pathway near my house warning of closure because of 'serious danger' after part of it slumped. The sign was there so long that the feet tramping up the bank and around the sign made their own fresh track on their way to walk perfectly safely across the narrowed section of pathway above the slip.

As long as the tsunami rubberneckers and surfers accept that the rest of us are not obliged to risk our lives or assets rescuing them (as surfers do anyway), I respect their independence and their contempt for the nannyish bosses who now want to rule us all (in our own good of course).

Besides – there will be times when the warnings are justified. We must leave room for Darwinian selection.

David Farrar's link to my post no 2 on this topic drew my attention to his equally sobering figures posted on 2 February.

But what I'd most like to know from David is whether he's hearing the same kind of government realism I'm detecting, about the (short) long term future of our ETS, at least as it may affect agriculture and forestry.

There are some fascinating dynamics in a situation where an expensive law may, or may not, be suspended or repealed. Could New Zealand's apparent carbon performance get a short term boost as people wait to cut trees till after it goes, or will that be more than countered by those for whom the reduced likelihood of credits from sequestration makes it easier to clear unprofitable post-1990 planting now?