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Thursday, July 30, 2009

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.

17 Comments:

At 31/7/09 7:08 am, Anonymous Gosman said...

Who has lost credibility here and in whose eyes?

Some people might not like what Bennett did and she might in the end get a slap on the wrist from the Privacy commissioner but I think certain people are being a little too precious about the whole incident.

This is not the end of democracy as we know it. It isn't even the start of some Big Government bully boy tactics every time someone makes a complaint or expresses a negative opinion about some policy.

There are processes in place which mean any breach of privacy should be investigated, as it is in this case. On top of all this there are people like you Tim, who will make damn sure that they get their opinions about how they feel about any abuse of privacy by Government.

That said, this is politics after all and it is a dirty business at times. I still think this whole thing has involvement of the Labour party behind the scenes. Regardless of this is the fact that one of the people involved in this situation is not exactly an angel and has allowed herself to be used in the past for political purposes.

Bennett is playing to an entirely different audience than the Chardoney Socialist set and Permanent Revolutionaries that have expressed such outrage at her actions. Whether you wish to demonise them as the ignorant, unwashed masses, in a democracy their views still matter. I would suggest that Bennett's actions are playing well with this constituency, judging by comments on boards such as Trade me.

I know you might not think it is a defence to say 'Well Labour did this as well' but it does raise the question over Labours faux horror at what has happened. I know they are an Opposition struggling to get traction but the shameless way they are attacking Bennett while studiously ignoring their own record in this area is rather distasteful in my opionion. But then again I am not their natural constituency either so what would I know?

 
At 31/7/09 8:13 am, Blogger Bomber said...

Who has lost credibility here and in whose eyes?
You have Gosman by defending this abuse of power.

Some people might not like what Bennett did and she might in the end get a slap on the wrist from the Privacy commissioner but I think certain people are being a little too precious about the whole incident.
Which shows how easily led people are - the Government CAN NOT misuse information against their political enemies in this manner Gosman, something you seem incapable of understanding.

This is not the end of democracy as we know it. It isn't even the start of some Big Government bully boy tactics every time someone makes a complaint or expresses a negative opinion about some policy.
Are you stupid? That's exactly what happened,

There are processes in place which mean any breach of privacy should be investigated, as it is in this case. On top of all this there are people like you Tim, who will make damn sure that they get their opinions about how they feel about any abuse of privacy by Government.
Oh so if there is a law to catch the person after the event, no probs with breaching the law? Let's see how that stands up to scrutiny shall we?

That said, this is politics after all and it is a dirty business at times. I still think this whole thing has involvement of the Labour party behind the scenes. Regardless of this is the fact that one of the people involved in this situation is not exactly an angel and has allowed herself to be used in the past for political purposes.
Let me get this straight, because you 'believe' the Labour Party are behind it, that justify's breaching privacy rules and the cabinet handbook to simply release private information without consent by the Government? Nice to see where you stand on equal rights under the law Gosman, they don't count if you suspect the Labour Party are involved!

Bennett is playing to an entirely different audience than the Chardoney Socialist set and Permanent Revolutionaries that have expressed such outrage at her actions.
So because Bennett is playing to rednecks, that doesn't mean she has to follow the law????

Whether you wish to demonise them as the ignorant, unwashed masses,
The way you demonised those concerned with power of the state as Chardoney Socialists and Permanent Revolutionaries Gosman?

 
At 31/7/09 8:13 am, Blogger Bomber said...

in a democracy their views still matter.
Are you drunk? Because the majority want to kill solo mums, we should do that because that's the majority?

I would suggest that Bennett's actions are playing well with this constituency, judging by comments on boards such as Trade me.
She is playing to rednecks and abusing state power by over riding the privacy laws and cabinet manuel, nice to see you throw those right out the window to justify your position, that really says a lot about you Gosman.

I know you might not think it is a defence to say 'Well Labour did this as well' but it does raise the question over Labours faux horror at what has happened.
No it doesn't excuse National in any way shape or form, could you just give us links to the exact examples where the Labour party released personal details directly to the media about beneficaries details after those beneficaries complained about policy please Gosman?

I know they are an Opposition struggling to get traction but the shameless way they are attacking Bennett while studiously ignoring their own record in this area is rather distasteful in my opionion.
Oh Gosy, your fake outrage at Labour for a none specified example of them doing the same is just a joke mate. You used to be better than this, justifying the unjustifiable isn't your best strength.

But then again I am not their natural costituency either so what would I know?
And here you miss the point, it's not a Labour/National thing you moron, it is the state breaching all protocols of power based on the assumption that beneficaries are somehow beneath legal protection. You have just attempted to justify a caste system of legal rights in NZ pointing to the baying rednecks screaming for solo mother blood as proof that it's okay to do.

Ugly Gosman, very ugly.

 
At 31/7/09 9:03 am, Anonymous Nom d said...

I can't believe how some on the right are trying to defend this and reading through the first poster's attempt to justify this clear breach by the Minister is an insight.

 
At 31/7/09 9:07 am, Anonymous Anonymous said...

Bomber.

By attacking you publicly, Gosman has implicitly abrogated his right to privacy.

Could you please post Gosmans isp address, and his name, if available.

All for the purposes of rounding out the debate.

Gosman, I am sure you have no concerns of bomber releasing your private information to us?

I mean, you're not a hypocrite are you?

 
At 31/7/09 9:08 am, Anonymous Curious George said...

Nom d,

What are your views on members of the Labour party doing similar things when in government?

Should they have resigned?

 
At 31/7/09 9:31 am, Blogger Bomber said...

could you just give us links to the exact examples where the Labour party released personal details directly to the media about beneficaries details after those beneficaries complained about policy please curious g?

 
At 31/7/09 9:48 am, Anonymous Curious George said...

Are you saying that this never happened then Bomber?

 
At 31/7/09 10:03 am, Blogger Bomber said...

Could you just give us links to the exact examples where the Labour party released personal details directly to the media about beneficaries details after those beneficaries complained about policy please curious g?

And note I want to see the exact same situation please Curious G, you are comparing them so it should be pretty easy to prove it.

 
At 31/7/09 10:03 am, Anonymous Anonymous said...

Uh, Curious George.

You said it happened, therefore the onus is on you to prove it.

 
At 31/7/09 1:37 pm, Anonymous Anonymous said...

One way to think of this is that when a police staff member has accessed private files for their own use (not even for publication) and have been caught, that person has lost their job.

Bennett has not only accessed the files (or had someone on her staff do it) but has RELEASED the information to the MEDIA.

Regardless of the politics, surely anyone can see that what Paula has done is illegal and she needs to be disciplined. Why is this not clear??

The information that was released by Labour regarding one of these women was released WITH HER PERMISSION, therefore has NO relevance to this current situation WHATSOEVER.

Sorry for shouting

NS

 
At 31/7/09 2:15 pm, Anonymous Gosman said...

The way this story is playing out is that Bennett and by extension the National party will get an increase in support whereas the Labour Party just looks like it supports people who abuse the system in attempting to get more money from the state for doing nothing.

You might think that is wrong and terrible but that is just politics. You can jump up and down all you want in your smug sanctimonious manner but it won't change much.

 
At 31/7/09 2:56 pm, Anonymous Gosman said...

"Anonymous Anonymous said...

Bomber.

By attacking you publicly, Gosman has implicitly abrogated his right to privacy.


...Gosman, I am sure you have no concerns of bomber releasing your private information to us?"

Actually I have no problem with that although why you think I have attacked Mr Bradbury is unclear as I have not addressed him directly at all.

Would you be able to point out where I have mentioned him by name here and where I have attacked him?

 
At 31/7/09 3:25 pm, Anonymous aj said...

waitng on Curious G....

....twiddling fingers.....

 
At 31/7/09 3:33 pm, Blogger Bomber said...

The way this story is playing out is that Bennett and by extension the National party will get an increase in support whereas the Labour Party just looks like it supports people who abuse the system in attempting to get more money from the state for doing nothing.

You might think that is wrong and terrible but that is just politics. You can jump up and down all you want in your smug sanctimonious manner but it won't change much.

And I think that sums your born to rule mentality up very well Gosman, you see it as just a game of politics and because your side bent the rules so wht hu - the Minsiter has set a deadly precedent and you just grin? I have the capacity to attack the left for calls they make that are wrong, you lack that capacity, as long as National can get away with it, it's just politics.

Ugly Gosman, very ugly.

 
At 31/7/09 5:26 pm, Anonymous Anonymous said...

Actually I have no problem with that although why you think I have attacked Mr Bradbury is unclear as I have not addressed him directly at all.

Gosman, you have attacked bomber in exactly the same way as the two solo mothers attacked the National policy of scrapping the TIA.

So, to show us you aren't a hypocrite, stop using a nome de plume and use your real name.

All in the name of balancing out the story of course.

Oh and bomber, if gosman refuses to use his real name, publish his isp details.

He has implicitly allowed you to do so, don't forget.

 
At 31/7/09 7:44 pm, Anonymous Aj said...

Curious G.

Full of shit. In fact, lies.

 

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