Double impunity

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.

19 thoughts on “Double impunity

  1. And today we have…

    Paula Bennett discovers that Stephen Colbert’s “truthiness” does away with the need to actually do any research before imposing draconian new measures on a large segment of the population. Any decent media would have a field day with a ministerial admission that she doesn’t need any evidence to enact a policy, but in this country this spiteful and vindictive woman simply gets away with it.

  2. It’s not an either/or proposition. The media follow the opposition’s lead on matters like this. To an extent they need to, because taking a hard line against a minister when the official inquiry (weak though it might be) has come back saying the matter is closed seems partisan.


  3. I find it interesting that John Key and John Banks can flaunt themselves in front of the media, then demand the privacy of their words while the cameras roll with their consent less mere metres away, under threat of police action.

    The distinction between that episode and Paula Bennett escapes me other than to say that Bennett’s invasion of privacy was far more egregious.

  4. Mrs Bennet should of done what has being done for years and get the reporters to ask the complainants permission to release their details to enable a balanced story. Its the threat that her and other ministers said on the news last night they would do it again instead of the proper way reminds me of a dark veil that once grew in europe that began with people nopt being ableto speak out. And yes i agree with the comments the media is useless at reseaching important points along with the labour party

  5. @martin #6: At best, Minister Bennett fits what Chris Hayes describes as an out-of-touch meritocratic-turned-plutocratic elite, in his latest book Twilight of the Elites.

    At worst, Bennett fits at least the following traits as defined by Umberto Eco:

    3. The cult of action for action’s sake
    4. Disagreement is treason
    5. Fear of difference
    6. Aappeal to a frustrated middle class
    10. Contempt for the weak
    14. Newspeak

  6. Well said, Lew.

    Back in April you wrote here:

    “The past four months have been what another lot of military jargon would refer to as “target-rich”, and Labour largely refused to take advantage of it.”

    Back then you (like most of us, I would guess) suggested that we needed a little more patience – after all, Shearer was new and the summer cricket pitches had not yet sprouted rugby goalposts.

    Now we’ve had another four months, the targets have kept coming, and yesterday’s was only the latest (and one of the easiest). Labour continue to fail, badly.

    Along with Labour MPs, we should not absolve Labour “loyalists”, who are too willing to blame others (the media, or left-wing critics of Labour) rather than face up to the glaringly obvious. It is a failure of leadership, and it is not resolved by a quick stand-up and garbled sound bite in the corridors of Parliament.

    Another four months will bring us to the end of the year. By then, Labour MPs will have changed their dismal performance, or changed their leader. My money’s on the latter.

  7. Hmm, how long will it be before anyone receiving any money whatsoever from the government will have their privacy breached should they be bold enough to challenge an uncaring government and it’s bureaucracy?

    A whif of fascism I think.

  8. What next, if the Opposition can’t or won’t act? Wear black triangle badges in protest? Set up tent cities outside Parliament or a certain house somewhere in Waitakere or Parnell?

  9. Hi Ken, i definitely got that whiff from my tv yesterday, i was quite surprised by it as ive never seen anything like that here before, ive seen arrogance but this was different- the way they all spoke shortly and with ease about doing it again

  10. Hi, Martin,
    we live in interesting times, some on the Right say what’s going on is acceptable, others there are uneasy, but mute, just as their predecessors were under Muldoon, who I think actually had a heart, and cared about the Kiwi Battler. Never voted for him, though. The Right could not give a toss presently. The Labour party are really just National-lite. That is part of the reason why they are so feeble in opposition. And of course, democracy is best served by a strong opposition. The Nats know they can get away with virtually anything. And they do. Just like in Europe pre WW2. Cheers.

  11. Hi Ken im quite on the right and i deteste this. I agree about opposition too and i also very much blame the media, ive seen John Key develop the tiniest but noticable look of pleasure when he realises the media dont have a clue at all about asking him the proper questions to put him on the spot. Its as though prior to the ridiculous questioning being posed you can see him waiting nervously for the obvious question that will get him. The massive problem now is he has gotten quite rightly assured that they wont come

  12. “The media follow the opposition’s lead on matters like this. To an extent they need to, because taking a hard line against a minister when the official inquiry (weak though it might be) has come back saying the matter is closed seems partisan.”

    Have I misread your position? The media should make the appearance of non-partisanship a higher priority than, say, “speaking truth to power”?

  13. Pete, nah — the media have covered the situation, its facts and context, and statements from either side, and generally reported the news. But their job generally is not to turn an issue like this into a crusade — that’s the opposition’s job. One motivated editor or columnist may do so, but — like with the “DEMOCARCY UNDER ATTACK” thing with the Herald re the EFA there’s a risk attached to doing so, and they can hardly be blamed for not making a big deal out of a partisan issue that partisans can’t really organise itself in behind.


  14. DeepRed, what next? I really don’t know, but I do trust that nature won’t permit such a vacuum to remain for long.


  15. Sammy, my sense is that if the summer recess is Shearer’s watershed. If nothing changes between now and then, the narrative going into the break will be “a year in and still useless”, or perhaps more pointedly “into his fifth 90-day trial period”.

    Elections aside, the period immediately after the summer break is when the big agenda-setting moves get made in NZ politics, and the danger is that if Shearer doesn’t give people a reason to pay attention, they just might not notice him coming back. He failed badly at this task in early 2012, and as they say, once is understandable, but twice looks careless.


  16. Lew, I agree with your opinions relating to Labour’s programme of appeasement, but disagree with your point that the media’s ‘job generally is not to turn an issue like this into a crusade’.
    News items especially on TV these days seem to be larded with shallow editorialising, more often than not, from my observation. The problem I observe is that the said editorialising is usually puddle deep. I assert with respect that it IS the job of media to cry foul when governments abuse their power and/or undermine the rights of citizens through action or neglect.If it takes crusading to address instances of government malevolence or opposition ineptitude, then so be it.

  17. K, I don’t dispute that the media has a responsibility to do this, but theirs is not the primary responsibility, and if the parliamentary opposition (whose responsibility it is) aren’t prepared to fight for it, why should the media do so on their behalf?

    Of course, Labour haven’t been entirely lax in the tactical sense — they try. But the trouble is that over the past 5 years and more they’ve played themselves into a position where they risk being seen as “soft on bludging” or “obsessed with trivialities” if they do. They’ve ceded the agenda, they lack cohesion, and because of all that they lack credibility with the media and the public. That all makes it hard.


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