Posted on 23:18, August 15th, 2012 by Lew
Social Development Minister Paula Bennett has been said by the Director of the Office of Human Rights Proceedings, Robert Hesketh, to have breached the privacy of Natasha Fuller by making private information about her public in 2009.
Bennett does not accept Hesketh’s “opinion”; in a letter released by Hesketh she expressly states that “I do not believe I have breached privacy.” Moreover, she goes on to explain that she still considers such a strategy — of releasing private, confidential information about a member of the public to make a political point — to be perfectly legitimate.
And, really, why the hell wouldn’t she? It worked. Not only has she not been found to have done anything wrong, but she has suffered no consequences for those actions. No sort of reprimand has been issued, nor obeisances levied. Hesketh’s “opinion” — with which the minister is free to disagree upon no grounds whatsoever — is not in any way binding, and as such, has exactly as little value as mine. All soft speech and no big stick. It has taken three years and change to get to the point where the massed battalions of our much-vaunted system of civil liberties have been able to issue nothing more robust than a statement that the situation has been resolved “to the satisfaction of all parties”, apparently notwithstanding the stark disagreement between the positions of Hesketh and Bennett.
In a political environment where ministers are required by their leader to employ whatever means they can get away with to achieve their KPIs, we can’t really blame Bennett for doing so. She has proven extremely adept at this sort of machine politics, running decoy lines when other, less-adept, ministers find themselves in trouble — the most recent example of which having also emerged today: that there really was no clamour from employers to drug-test beneficiaries. So we can’s blame Bennett; she’s just following the incentives. Similarly, we can’t blame John Key — after all, his ministers are getting results, and his polling is holding up, so he’s just following the incentives as well. I do not know their mandate, but we may be able to lay a certain amount of blame at the feet of bureaucrats like Robert Hesketh. However, given Bennett’s and Key’s demonstrated ruthlessness, perhaps such a supine position is understandable. Had he caused too much trouble his office might have been gone by lunchtime, or redeployed to some higher-priority task like finding technical justifications for Special Tactics Group action against Kim Dotcom.
But regulatory or statutory means are weak when it comes to punishing ministers for their misdeeds. Since procedural decisions governing what action could and would be taken against a minister in such as case are themselves determined by ministers, the Iron Law comes into play: Unless forced, a Cabinet will never implement measures that might seriously constrain it. The main function of regulatory recourse, then, is not to impose actual, “hard” strictures on members of the executive, but to provide their opponents with opportunities to attack them, either on political or ideological grounds, or on grounds of character or competence. These are “soft” constraints on behaviour, in that they are normative rather than objective, and they rely on tactical factors and on a high degree of competence and tenacity — as well as measures of opportunism and ruthlessness — on the part of opposition politicians. Impunity that arises from hard constraints as I’ve discussed here, and as Pablo has written about previously, is unfortunate but understandable; the lack of soft constraints is less so. Bennett has not suffered any consequences of her actions because she has not been made to suffer them by the only group that might viably do so: the New Zealand Labour Party.* So I return to an argument I’ve made before: the government gets away with all this is because the opposition lets it. In this case, Bennett took a calculated risk and released information in a way that nonpartisan experts consider to be obviously unethical and an abuse of her position. She didn’t even calculate it very hard — she took no official or expert advice before releasing Natasha Fuller’s private information, she just knew she could get away with it. Not only did Paula Bennett enjoy the ordinary sort of impunity that comes from being a minister of the crown, she also knew that she enjoyed the double impunity of being virtually unopposed at the political level.
She had good grounds to know this. The Labour party, even as far back as mid-2009, had been so dysfunctional and so ineffective for so long that it could hardly come as a surprise. How many times, over the past five years, have Labour supporters seen some egregious outrage from the government and thought, “this time — surely even this lot can’t screw things up! If they can’t make the government pay for this, they don’t deserve to win!” I know I have written these sentiments many times, and spoken them aloud countless more.
And yet they keep failing. As long as they keep failing, these outrages will still happen. Even if not for its own sake, Labour owes the people of New Zealand a duty of competence that it is not currently fulfilling.
PS: Given this result and Bennett’s refusal to rule out such actions in the future, here’s a handy thing that Anita wrote at the time, expressly forbidding Bennett or anyone else from releasing our, or your, information for such purposes.
* But what of the Greens? I hear you ask. And fair enough — the Greens have in many ways been doing a better job of being a functional opposition than Labour have. But the Greens cannot apply direct zero-sum electoral pressure on National — they cannot hope for parity, and they cannot threaten the Treasury benches. The Greens are important as a source of pressure on Labour, but only Labour can pressure National.