Stephen Franks

Something to go to today since the weather is rubbish

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Could be an interesting meeting this weekend for Aucklanders concerned about the council’s racist Unitary Plan, and trashing of property rights.

Remember when Shane Jones called a stupid digging instrument for corrupt extraction of RMA ransom payments a spade earlier this year.

Of course Labour did not pick up his mere when he left, because it did not fit with the identity politics that was all they had left. Bob Jones seems to have been the next public figure to risk tackling this issue (link). He reminded everyone that thousands of properties were newly vulnerable to iwi discovery of taniwha or other spirits and cultural needs that might need placating with koha.

A group called Democracy Action have called a public meeting in opposition to the Proposed Auckland Unitary Plan.

The Plan kowtows to iwi elite and forces the rest of us to pay in cultural impact assessment fees, and lip service to so called spiritual and cultural values (taniwha) just to do things like replacing a window or putting in a pool.  Read more »

Group to take on Len Brown’s taniwha

A group calling themselves Democracy Action has got into gear to take on Len Brown’s requirements for you to go and get a certificate that no Taniwha exist before you make minor alternations to your house (the PC term is “Cultural Impact Assessment”).

Sir Bob Jones wrote about his experience with Cultural Impact Assessments a few weeks back:
Recently, a shop tenancy changed in a modern 17-storey Auckland CBD office building owned by my company. The previous tenant had blocked off some of its window which we now intended putting back to the conventional shop front.

At this stage, sit down with a stiff drink and accept my assurance I’m not making this up.

For we were then informed by a planner my Auckland office uses for council dealings (which can be laborious) that under the new council rules, changes to a building’s appearance require resource consent and we would be subject to penalty if we simply put back the window.

If that’s not outrageously absurd enough, things then became truly Kafkaesque and illustrate why the Government, against ill-considered opposition parties’ objections, wishes to tone down the Resource Management Act.

For we were then told that under the new Draft Unitary Plan, not yet enacted, our building being within 50 metres of a designated Maori heritage site, we needed RMA approval (for a new shop window, for God’s sake), this instantly forthcoming at a cost of $4500 plus the approval of 13 iwi.

The council refused to advise the addresses of these iwi outfits, yet added that without their consent, we can’t put back the window.

According to the DA website: Read more »

Franks on engaging social media

Stephen Franks has written a LONG (but very considered) piece on why not only should lawyers not be afraid from engaging with social media, but arguably they are ethically obliged to, where using effective channels to get a message out there is in the interest of a client.
It’s a bit of a read, but for anyone interested in the media, politics and the law, it is an essential read.

A public voice for clients, and for views of what the law should be, does not shun effective platforms.

We have in the past, do now, and will in the future, write, publish, talk about and promote causes and interests in any medium that seems to us likely to be effective. Of course that includes social media. I have my own blog. I comment on the blog posts of others. Frequently the participation is on issues where I or the firm have a view, and our participation is a pro bono attempt to add expert correction or advice to the public discussion. Sometimes participation promotes the firm. Sometimes it is expressly to advance a client’s cause.

Like most people, we are probably more effective and more energetic on issues where our views coincide with those of the client. With their approval we’ll use as many channels as is practicable to ensure that the client position is communicated to the people who should have the information. We are public advocates. We do not eschew any lawful form of communication.

He then turns to the irony of the NBR reporting asking about using a media resource that calls on accountability and causes some offence.     Read more »

Protect that Child and ignore the wombles

The Sensible Sentencing Trust has launched a campaign about name suppression and flown Derryn Hinch over to speak about the travesty that is name suppression.

I may have been convicted and in the process changed the law, but the law changed put through by Simon Power were small and more interested in stopping people like me rather than actually tightening up on suppression orders.

Derryn Hinch has gone to jail for opposing suppression orders.

Derryn Hinch wants to be able to turn on his mobile phone and see the names of all sex offenders in the neighbourhood.

The outspoken Taranaki-born broadcaster, who now leads a campaign for a public sex offenders register in Australia, has come home to launch a pre-election campaign by the Sensible Sentencing Trust to get a similar register in New Zealand.

He will take part in a trust-organised debate tomorrow against liberals Dr Gwenda Willis and Kim Workman.

Kim Workman is one of those wombles who means well but is a hopeless crim hugger that the media uses all the time to promote their crim hugging stance.

Stephen Franks gives him a right good ticking off in his latest blog post.

On Sunday afternoon I’ll be in Auckland to chair a public discussion of  the secrecy that justice insiders defend so tenaciously. Derryn Hinch is the main speaker. He’s endured prison to stand up for open courts and freedom of speech.

Doing my homework, I’ve been reminded of the intellectual blindness engendered by the beliefs of well meaning people.  Kim Workman is a good man. He writes thoughtfully on his blog “Smart on Crime”. The post prompted by the absurd discharge of the Maori prince is worth reading by anyone who needs to understand the criminal justice establishment. They need to feel morally superior (compassion is their claim) over the rest of us, but they acknowledge the need also for research on their side.

So how do they end up so far from reality? This well written piece shows us. The reasoning is respectable so far as it goes, but it stops well before it gets anywhere near the main issues. It misses the same point as is missed by the justice insiders generally.

It measures everything according to its potential to redeem the offender. Redemption is worth trying if it does not prejudice more necessary purposes. But the fate of particular offenders is trivial, when the proper measure of a justice system, indeed any social mechanism for inculcating and upholding norm observance, is the extent of offending overall. Recidivism rates may affect offending rates, but they are much less important than rates of recruitment to offending.

Most serial offenders and hardened criminals will never be redeemed. I’d like to see Kim Workman offer to take in some of these scum into his own home if he thinks they can be redeemed.

I suspect he’d baulk at that suggestion.

Almost all cultures rely heavily on reputation mechanisms to discourage the establishment of such patterns. They commonly involve exacting a price over the long term from individuals, their families, and communities that harbour them. They also commonly provide well recognised paths to discharge the shame burden, to demonstrate remorse. As Kim Workman acknowledges, Maori norm enforcement relied heavily on whakaama – shame. What he does not go on to acknowledge was the extent to which shame mechanisms need practical impacts and ‘stigmatization’. They depend on tangible consequences to shameful behaviour. Whakaama (shame) becomes irrelevant and toothless when it is separated from the consequences, when the forgiveness carrots are poured out in sackloads without any sticks of  ritual humiliation, group responsibility and formulaic depredaton (muru and utu)..

But well meaning ‘sickly white liberals’ (in Winston Peters’ memorable words) have gutted our law of its links with reputation sanctions. They’ve left the law struggling ineffectually to rely on formal punishments alone.

So Mr Workman, when you deplore the powerful trend toward more severity in punishments, when you rail against the lack of recognition of the truth that speed and certainty of consequence are much more important than severity in deterrence, take a look at your own responsibility. You’ve helped eliminate from our law the most powerful and speedy social sanctions of all at the critical time (in application to young people).

Rethinking Justice applauds the secrecy of our youth courts. You defend our disgraceful name suppression law. You supported the Clean Slate law. And in your blog you whine about the ordinary peoples’ rejection of the expert demand that criminal justice policy be left to experts. You exemplify the establishment’s comprehensive rejection of the reputation based natural social sanctions.

You genuinely believe you have research and reason on your side, but it is fatally limited. Your post on Paki takes the shame analysis no further than the effect of shame on rehabilitation prospects. Shame may inhibit rehabilitation for offenders outside a community with high social cohesion (i.e. where the social sanctions are presumably severe, and scope for collective redemptive support). But where is the consciousness of its importance to offending rates?

Read more »

Stephen Franks on Labour’s Liu Legal problems

Stephen Franks has highlighted Labour’s little legal problems with the Donghua Liu revelations.

Since the link between Donghua Liu and David Cunliffe surfaced early this week there has been widespread speculation that Labour breached the law in failing to declare two campaign donations made by Mr Liu in 2007.

Though Labour maintains it has no records, the Herald has reported that in 2007 Mr Liu contributed $15,000 for a book signed by Helen Clark, and an unknown amount of money for a bottle of wine.

Under the current law, a candidate donation can include:

“where goods or services are provided by a candidate under a contract or arrangement at a value that is more than their reasonable market value, the amount of the difference between that value and the reasonable market value of those goods or services.”

Corresponding terms govern party donations. Assuming the second donation was for more than $1500, they would capture both of Mr Liu’s transactions. The candidate or responsible party agent who knowingly failed to report them could face up to two years imprisonment (section 207I of the Electoral Act 1993).

But until 19 December 2007 the law governing donations was different. Until then the Electoral Act 1993 defined ‘donation’ to include goods or services provided to the party at an undervalue, but did not expressly capture a sale at an overvalue.

This loophole was partly closed by the Electoral Finance Act 2007 but untl then it was arguably legal not to report the alleged Liu donations if they were provided by way of auction price.

The fact that the law was changed to capture the second transaction increases the strength of the case that parliament realised there was a legal loophole under the old provision.

Read more »

Taking property by deceit

Stephen Franks blogs about The Historic Places Trust being able to literally take your property on the basis of some weasel words in the legislation.

It deserves wider attention, and so I re-post it in full.

I’ve been around the law and politics for some time. Legislation is moulded by politics. Some politicians insist on obscure language to disguise the real effect of law, to delay opponents realising how far it goes. I understand that. We live in a democracy. Democracies need politicians who act to minimise the number who want to vote them out. So a law-writing  hand may get  an irresistible urge to obfuscate .

Until recently we had some protection from Parliamentary Counsel. There was a convention supporting some gate-keeper role in rejecting such deceit, but it seems that semi-constitutional filter has gone.

There are less cynical and offensive ways to deceive the public, but deceptively written law is becoming “normal”. Few lawyers in Parliament have the background to detect it, which may have something to do with selections for identity group ‘reflection’ instead of established merit.

The increase may also be because the deceitful hand is not necessarily that of  the politician.  Officials with an agenda their elected masters won’t like have the time to hide their obfuscations deep in dense language. Politicians may not work out what they are voting for until too late.

A Bill well through the Parliamentary process ‘updating’ the Historic Places Trust legislation is a classic example. The 1993 Act over-rode property rights, but only for the unfortunates who happen to own really old places, The replacement Bill turns that limited exception into general contempt for the property rights. Now they are to be confiscated from pretty much anyone with property that “Heritage New Zealand Pouhere Taonga” finds appealing. The Board can declare a place to be category 1 or 2 protected (economically seized for practical purposes) if they are satisfied of its “significance or value in relation to” any one or more of its:

  • ‘Technical accomplishment, value, or design’;
  • ‘Symbolic or commemorative value’;
  • ‘Community association’;
  • ‘Public esteem’;
  • ‘Potential for public education’;
  • ‘Importance to tangata whenua’;
  • ‘Extent to which it forms part of a wider 
cultural area’.

Observe that none of those need have anything to do with history.   Read more »

Stephen Franks on the outrageous claims of corruption by the opposition and media

Stephen Franks provides a thoughtful response to the outrageous claims of opposition MPs under parliamentary privilege of corruption by Judith Collins.

I note that they dare not repeat those claims outside of the protection of parliamentary privilege.

Political journalists continue to give credibility to the Oravida beat-up. I’ve not heard anyone I know, outside the ‘beltway’ set, who share their faux indignation. Perhaps aspects yet to be revealed will vindicate the accusers. But on what has been disclosed so far, those alleging corruption disgrace themselves.

We come from an era, widely regarded as our most incorruptible, when all manner of goods were marked with the Royal crest, and the words “By appointment to HM the Queen”. Approval as suppliers to the Crown was overtly advertised, for the benefit of the supplier. I recall no concern that it was a corrupt practice.

Nor is there any objective argument that Ms Collins advocacy for any dairy interests in China or elsewhere, has been inimical to the interests of New Zealand. The allegations of corruption are the single element most likely to reduce the barriers to corruption. When it is acceptable to equate such innocuous behaviour with corruption, we lose the capacity to distinguish, and ‘everybody does it’ becomes a more likely excuse for genuine corruption at other levels

If there was some indication of covert payments then it might run. But most of us know that there is implicit personal endorsement, even if it is unwanted, in most engagements of powerful people.  Read more »

Election stuff up bigger than originally thought

The election booklet farce is bigger than originally thought…it is highly possible, with a postal ballot, that the omissions from the booklets may well have affected results.

I know that when I voted, the day the papers arrived, that I checked more than a few candidates to see if they were pinkos or lurkers hiding their pinko attitudes.

The scale of the local election booklet botch-up appears more widespread than first feared, a Wellington law firm says.

Franks & Ogilvie is representing a client who is offering rewards of up to $1500 to people finding the highest number of booklets containing errors.  Read more »

Stephen Franks provides some free advice

Stephen Franks has blogged some free advice for Transfield subbies currently feeling the pinch with the slow payments of Transfield

I’m not sure how successful trying to strong-arm Transfield like this would be, but at the very least it should provide some protection.

[H]ere’s the advice if you are a subbie to Transfield. It may be worth more than you are paying for it.

First – demand information from them to the satisfaction of your accountants to establish the current solvency of the company which is actually paying you (probably a New Zealand subsidiary).

Second – don’t restart work for the scumbags till you’ve been paid everything due.

Third – record in writing to them that you will only work for them while there are no arrears, whatsoever.

Fourth – stick to that policy.  Read more »

Some sensible thoughts on Syria

Stephen Franks blogs about a discussion in his office over Syria, especially over the Onion satire piece about Syria.

[The Onion is ] Funny as usual.

However, jokes aside, I think it buys into a misunderstanding about what is going on there.  The pieces just don’t fit the public narrative. Although, I must acknowledge “John’s Law” –  those who think it is a conspiracy don’t understand the power of the plain old  f—   up.

I don’t agree with the portrayal of Assad as in the least insane.  Only a few years ago he was being feted (and, ahem,  wined and dined)  by pretty much everyone as a practical reformer, trying to bring Syria out from under his fathers murderous shadow (remember, his father had a whole town liquidated to quell a rebellion).  Acts of horror abound in the Middle East, where strength and lack of pity are virtues.  Read more »