Bennett must become "explicit"
To retain some sort of credibility the Senior Ministers have to do something before Bennett brings them all down. She's going to have to be disciplined - either the hard way - via resignation - or the easy way - a mea culpa and a self-administered wrist-slapping where they can retain some control. Either way they have to immediately "clarify," to use their language, the Cabinet Manual. Because at the moment the 2001 version I have says thus on the issue of Bennett's "public leak" incident:
LITIGATION INVOLVING MINISTERS
MINISTER AS A DEFENDANT
Proceedings concerning the exercise of ministerial powers
2.78 Ministers may be named as defendants in court proceedings, almost always in relation to the exercise of their ministerial powers. Most commonly, the proceedings will be by way of judicial review, which generally involves a legal challenge to the way in which a particular (usually statutory) power has been exercised. Judicial review proceedings against Ministers are discussed in more depth in paragraphs 2.109 – 2.114.
Proceedings against a Minister personally
2.79 On occasion, however, Ministers may also be sued for acts done while a Minister but which have a more “personal” aspect. For example, a Minister may be sued in defamation arising from the contents of a particular speech or other public statement. Alternatively, proceedings may be instituted alleging that a Minister has acted dishonestly or in bad faith. The extent to which a Minister will be personally liable will depend upon the law relating to the particular matter.
Indemnity – proceedings concerning the exercise of ministerial powers
2.80 Because a Minister would not be at risk of judicial review proceedings at all if it were not for his or her official position, it is a convention of government that Ministers should be indemnified by the Crown for any actions taken against them for things done or decisions made in the course of their ministerial duties. The indemnity will cover the cost of defending the proceedings, and any costs or damages awarded against the Minister (except in exceptional cases – see paragraph 2.95). This convention applies whether the Minister is a member of a current or previous government. References to Ministers in this section should therefore be taken as including former Ministers.
Indemnity – proceedings against a Minister personally
2.81 By their very nature, cases against a Minister personally raise issues about whether the Minister has acted so far beyond the scope of his or her authority that he or she should not be indemnified by the Crown in relation to the proceedings. There is no absolute legal right to indemnity by the Crown just because a Minister was acting as a Minister in doing, or refraining from doing, the act that is the subject of the claim.
2.82 Where a Minister is sued or threatened with legal action personally and it is uncertain whether he or she should be indemnified, the normal arrangement is to seek Cabinet’s agreement in advance – where the conditions below are applicable – to meet the expenses of legal representation. The question of indemnity on costs and damages will be held over until judgment has been given (see paragraphs 2.94 – 2.96).
So, one of the victims will have to threaten to sue Bennett personally to force the issue to Cabinet. Is that why Paula has been so generous lately towards the women concerned? The whole bloody government is going to have to wear this drama if they don't get her out and the rule 'clarified' - to use their terms.
Labour's all over this. If they can get one of them to sue over this the Cabinet are going to have to discuss it and if they agree to indemnify Bennett they are all, therefore, standing by her actions and the standard that sets. Bennett has admitted to "playing political football" with them FFS. On live TV. The only ones supporting this action are a very tiny minority of the rabble and a few fringe spin merchants.
Bill English was trying to be a prick in the House about it this afternoon and hold the new line on the other side of Bennett's no man's land she has made them wade into. It was a half-hearted defence. I'm seeing a lot of daylight here. The team is letting her play her own game thinking they won't get hurt if it all goes wrong.
A Minister admitting her scenarios as a high enough test to raid confidential and personal departmental files of her avowed political enemies and distribute them to the media for publication - and the whole lot teetering on some preposterous notion of "implied consent" - is a test that will fail. The test cannot be a weak test either, it must be a high test because of the personal nature of the information. And that it is unquestionable. And a reasonable person would never think it right that personal information in this case would ever be consented to by the parties concerned to be released publicly.
The Minister knew that it was unreasonable to believe that the parties concerned would consent to the release of the material. She released it because she knew it would not gain consent. That is bad faith on many levels.
She does not have a leg to stand on - and to mix metaphors - she's up to her eyeballs in it. She's "taking umbrage on their behalf" to use yet another utterly inappropriate turn of phrase employed by the Minister on Campbell live last night. She's the one who retaliated personally and overstepped the mark and caused this grief for them. She treads a path that will inevitably lead to others having to get involved. It could get messy. No one wants that. They can't risk letting Paula Bennett's bubble-gum popping in the background noise of politics dictate the tempo. She's offered a sword up for herself in the way of full and total responsibility and she just very well may be asked to fall on it.
If Bennett had applied some common sense this may never have occurred: What would happen if someone did that at Baycorp? Or any private sector agency? They would be disciplined at the very least. Rebuked. Stood down. Given some quiet time. They wouldn't be let loose to make up their own policy on sensitive information would they? Would the boss of Baycorp let some associate manager person go and access someone's file without telling anyone and then have it published through the media all in aid of some petty bloody squabble? And then would the boss of Baycorp let them go on prime time TV night after night proclaiming that the new policy at Baycorp is if you say anything bad about us you'll splash it all over the Sundays. It is hugely damaging to the integrity of the system - the whole state system of databases.
It must fail Peter Dunne's test as Revenue Minister - he can't say what Bennett has said in regard tax files. He can't. He cannot apply that standard because that is just anarchy, not order - not the rule of law. For a Minister to do that. It would fail the common sense test of the country's permanent IRD Minister. It must. It has to.
And I'm not even up to Tariana Turia having to resign her associate position under Bennett in order to speak out. She's under immense pressure. It stands to reason that what Turia's evil overlord can do with the WINZ system so can she, right. Right. Right? Now are the Tory's so happy? Pita Sharples has got associate Corrections, can he go through people's criminal or prison records...? Rodney Hide with his portfolio of local Government - if he wanted to upend any pesky Councillor he might reveal all his noise control and parking records, RMA proceedings... the possibilities are endless unless it moves to "explicit." It's just one word they have to put in front of "consent" at the appropriate point. It's a clarification - to use their way of speaking. It will be a timely clarification.
If you are not onside with the ruling party, or parties, then its next stop front page of the Herald with whatever they can dig up. - That can't be the rule of John Key's government. That is unfair, it is unprofessional, it is damaging to the person whose confidentiality is breached and it is damaging systemically for the Crown and its method of governance. It undermines the credibility of every agency of the Crown that must report to a Minister. Something must be done to restore confidence - sooner the better.