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Friday, 31 July 2009

The State is Not Above the Law: Bennett and the Beneficiaries

In their haste to jump to the aspect of the Paula Bennett and the beneficiaries story that best supports their political view, most commentators seem to be missing the fact that Paula Bennett, government Minister, arguably broke the law when she reached into her department's records and made public the precise amounts of welfare each of her political opponents were in receipt of.

The issue is not a question of did/would Labour have done the same thing? (this is the tu quoque flaw of reasoning - two wrongs do not make a right) It is also not relevant whether the law itself is a stupid law or whether a right to privacy exists or not and it most certainly is not appropriate to simply focus on whether her doing this was relevant to the debate or the broader issues around welfare. These all miss the point which is that the state is not above the law.

This concept can be seen in the Bible, in our legal system it goes back to the Magna Carta and can be found in constitutional documents around the world. Anyone who loves freedom and democracy must object when the state acts as if the law does not apply to itself. Can any of us decide to set aside the law when it does not suit, when we want to win a debate?

The state passed the Privacy Act. In doing this they imposed this law on all of us including themselves - see section 5 of the Privacy Act:
5 Act to bind the Crown
This Act binds the Crown.
Further one of the contractual promises the state makes to every beneficiary on their welfare system is that they will not release private information. If they don't like their own laws, then they can repeal them before acting in conflict with them. If they do not want to be bound by their contractual promises then they should not enter them or they should lawfully end them before acting in conflict with them.

It is about getting our priorities straight, our foundations correct.

I am fairly libertarian. I don't support state funded welfare, I do not believe in a right to welfare. I think the parent that walks from the relationship should pay for their own kids and the person they left holding the baby - not the rest of us. I happen to think that in this debate the information Paula Bennett released was relevant to the debate. I am also not sure what I think of the Privacy Act; I do believe that property can be non-tangible such as original ideas, personal information and so on, however, I am not convinced that the Privacy Act is a reasonable limitation on the right to free expression, the right to seek, receive and impart information (and the right not to).

But all this is irrelevant.

I will not approve of an act that amounts to a state minister acting as if she is above the law no matter how much this might suit my politics and I find it reprehensible that the government are not intending to reprimand her. I find it equally reprehensible that so many bloggers and commentators are willing to turn a blind eye to this abuse of power and in fact enable the government to get away with acting as if it is above the law by focusing on how Bennett's actions benefit their own causes.

What About the Poor? Sustenance Rights Examined
What About the Poor? More on Sustenance Rights


  1. I will be watching this case with interest.  While I do not share your views on welfare in general I think it is good that the public knows how much some beneficiaries get in the hand.  I do not believe in compulsory ACC.  However, people have a right to claim ACC.  If they feel they have not been dealt with fairly they should be able to go public without fear that anything on their file can go public. 

    Maybe there should be a law change.  If someone is very selective in what they release a department head could be allowed to say I have looked at the file and the person has been very selective.  They have not told the full story.  But until there is a law change Ministers should obey the law.  It would be most interesting to see if Bennett broke the law.

  2. That was the point I was trying to get accross; no matter what your views on welfare or the use of taxes we should all be united in our contempt for a Minister acting above the law and this apparently being sanctioned by the government, many in the media and half the blogosphere.

    Once we acknowledge this point, that the state is not above the law, then we can progress further into the other issues and debates on this issue (and at that point we may part ways) but ignoring this point, as many are doing, is not ok. I am glad some people can see this!

  3. The question is whether the information disclosed by the Minister is in fact private, i.e. personal information. Private information wouild be the type of illness or disability or particular family circumstances of a beneficiary. I don't believe the information released is private, it is public information.  The money beneficiaries are entitled to is readily available if one cares to look. Beneficiaries are no different than MPs Judges and ther public figures whose salaries and benefits are disclosed.  They are paid by the taxpayer and the taxpayer is entitled to know how much they receive.

  4. Madeleine,

    Can you clarify what legal recourse is presently available to a Government which is being criticised on false grounds? (I'm not saying that is necessarily the case in this instance, by the way, before someone accuses you of hosting defamatory content.)

  5. A government has the same legal recourse to such criticims as any legal entity (a state not being above its citizens and all). A legal entity can be defamed; however, unlike defamation of an individual, an entity must show pecuniary loss has either occurred or is very likely to occur as a result of the defamatory statements. This requirement makes it extremely difficult for a government to succeed at defamation as its income source is compulsorily acquired.

    To compensate for this though the state has other powers such as a much louder voice than you or I possess by which it can proclaim its innocence. There are also avenues available to it such as commissions of inquiry which can examine the evidence.

  6. Mark, a lot of things are public information but for most people it would not be easy to access.  Can you tell me how much a couple with three children would receive in Auckland?  
    Paula Bennett could have asked officials to make an estimate of the level of benefit those complaining were getting but it was wrong for her to release the exact figure.  More important than being wrong is that it was likely illegal.

  7. Chuck Bird asks: "Can you tell me how much a couple with three children would receive in Auckland?"

    No, but I can find out.  There are tables available which lists all the benefits a person may receive.  The exact figure is more difficult to obtain as it would depend on the rent the beneficiary is paying, family size and other sources of income.   However because it is difficult to obtain the exact figure it does not mean it is unlawful to disclose the exact figure.  The point is the amount of money a beneficiary receives is not private information.

  8. "<span style="">However because it is difficult to obtain the exact figure it does not mean it is unlawful to disclose the exact figure."</span>

    Mark that is the issue.  Was what Bennet done illegal?  I think to be sure we will have to wait for a ruling from the Privacy Commission.

  9. Sounds like the Government is caught between a rock and a hard place, then. Even if the Crown could sue for defamation on grounds of damaged reputation - and, according to you, it can't because it's not a natural person - I can't see that turning out favourably from a political perspective; people would complain about the expense to the taxpayer (I guess the Crown would end up paying for the prosecution, and probably a fair whack of the defence through Legal Aid) and the potential or actual use of the Courts to muzzle opposition (Singapore style).

    For cost-related reasons, also, I can hardly see a Commission of Inquiry being established to look into the claims of a couple of citizens with relatively little influence. Can Commissions of Inquiry investigate matters covered by the Privacy Act, anyway, or would officials called before the Commission plead a statutory duty of non-disclosure?

    I confess I'm not sure what you mean about the Government having louder channels through which to proclaim its innocence. In this instance, the only way the Government could establish its "innocence" would be to prove that its scrapping of certain allowances wouldn't cause significant hardship to the women concerned - and the only way to do that would be to make their income and non-discretionary spending public knowledge. Which, according to you, the Crown was prohibited from doing by the Privacy Act. If the problem is the legality of the words themselves, and not the volume they're delivered at, giving the speaker a megaphone doesn't help all that much.

    I don't, however, mean to say that gives the Crown an excuse to break the law. But maybe it's worth Parliament looking at a way for the Crown to deal in a cheap and effective manner with false claims about Government policy.

  10. It's not her private information, is it?

    If the beneficiary was being paid to actually do something (e.g. like a government contractor) then there would be no expectation of privacy regarding the amount she is being paid.

  11. Madeleine,

    I agree with you.

    That a Government Minister holds herself above the law is very disturbing.  But then, this is not without precedent.  Look at the Abortion Supervisory Committee, as an example.

  12. If the Privacy Commission hears this dispute and Paula Bennett abides by their decision then Paula Bennett is not above the law.

    It's the same process anyone else would have to go through.

  13. You're right, which is why the first point I made in the whole debate was to question the release of the information by the minister, before looking into what was recieved. Iif a person goes onto the internet  and discloses the amount they pay in rent, their accommodation supplement, their disability allowance, their phone number, how many kids they have, when they had them and to whom, and a few other details,  half the information is in the public areana anyway. The dpb amount is a standard figure

  14. I still find the action unsettling, and I was trying to work out why.  I think it boils down to this:

    Bennett asked her staff to dig up every fact she could about these people, and they did so quite easily.

    She then looked at the information available SPECIFIC TO THESE PEOPLE and made a decision on what to reveal to sink their argument. 

    We can argue if what she revealed was legal or not, but I think many people miss the significance of the actual action.

    That's a fair amount of power, and it's pretty much one sided.  I'm not even sure the information she provided is relevant to the debate about the value of helping train unemployed people.  Irrespective of benefits received (providing they are received legally), a compelling case can be made to support the government's position on the cut backs without resorting to this form of debate.

    I happen to think that the current benefit system is bad.  and I think many people abuse the system, and it's tough on people that are working in low income jobs.  However, there are people that genuinely need government support, and in the absence of a better system, this is what we have.  Any opportunity to discuss welfare benefits rationally was lost as this event turned out to be more about beneficiary bashing than anything else.

    Furthermore, the information released was accepted and widely broadcast quickly and efficiently.  Were we even sure it was accurate information?  It probably was this time around, but I make the point that the bulk of the public were happy to think that these people had lied by ommission etc, but have not stopped to consider the government is just as capable of playing the same game.

    In the end, it's perhaps merely dissapointing than a fatal blow to democracy, because the reality is the government has so many legal avenues to effect the same result, it will do little to plug this gap.  Bennett could have released this information in Parliament under privilege, leaked it via staff to a friendly reporter, talked generally aboutb current DPB benefits or cunningly forced the people to reveal the information themselves.  Ultimately, the point is she can request any amount of information on citizens, obtain it easily, and then decide how best to use it, and everyone thinks that's all OK when the issue was about policy, not terrorism or treason.


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