Beneficiaries and Privacy Commissioner on MSD investigation breaches

Newshub Nation interviewed beneficiaries who had been investigated by MSD, and then Privacy Commissioner John Edwards on the breaches of law and what MSD will do now.

On Newshub Nation: Emma Jolliff interviews Privacy Commissioner John Edwards

Jolliff: The Privacy Commissioner says MSD’s powers to investigate have been taken too far. I asked him how serious the breaches have been.

Edwards: That’s hard to rank them because everything is so contextual. I was really troubled by the breadth of the ministry’s data collection in these cases, particularly of text message content. In most law enforcement contexts, you wouldn’t be able to get that information without a warrant issued by some judicial officer — that means an independent person has to look at the case that you’re making for getting access to it, they have to decide whether what you’re seeking is proportionate to the need, and then issue the instruction. These are just demands issued by some clerk or bureaucrat or investigator without adequate checks and balances, in my view. And especially given the sensitive nature of that information, in ranks pretty highly.

In simple terms, how do you see that MSD has breached the law?

By simply ignoring the statutory requirement to seek the information from the beneficiary first, unless doing that would prejudice the maintenance of the law. That’s the headline story. Beneath that, there are a number of instances in which I think the ministry has just lost track of the kind of developing jurisprudence that governs these things. Getting 10 years worth of banking records to investigate one year worth of benefit entitlement us just completely disproportionate. We’ve got to keep recalibrating those enforcement techniques against what we know is legally acceptable in terms of the Bill of Rights Act, you know — the right to be free from unreasonable search and seizure.

Do you see that MSD has accepted that its breached the law?

I’m happy that the ministry has accepte my report. I’m happy that the Chief Executive has assured me that they are going to implement all the recommendations, and they have conceded that the actions that they’ve taken have been unlawful.

MSD justified its collection of personal information about beneficiaries from third parties by saying clients wouldn’t volunteer information, and it was just quicker to go to the third parties. What do you say to that?

Well, that’s not the law, and it also presupposes that the only reason you notify the beneficiary first is to get access to the information. I mean, a beneficiary probably can’t delivery up 10 years of banking information, but what it does do is it informs them that those inquiries are being made. It gives them the opportunity to exercise some autonomy over that.

Could MSD identify any cases where evidence tampering occurred because a client was approached before a third party?

Not as far as I’m aware.

The Privacy Commissioner’s office expressed concerns to MSD about collection of information as far back as 1998, yet they carried on with the practice. This just suggests that they are disregarding the requests of your office, doesn’t it?

Back in 1998 the reference in our report was to the inadequacy of the record-keeping in the ministry because one of the things that was difficult in our investigation is that they simply didn’t have good records. They couldn’t tell us how many times they were issuing these notices, how many times they were going to a beneficiary first. We would ask, and we would get one set of records, then we’d get a completely different version.

So it hasn’t improved despite your requests?

No, it hasn’t improved, and it needs to. And that’s one of our recommendations, and I’m pleased that the ministry have said that they’re going to implement that. We need to have nationally consistent reporting of how these tools are used.

How important is that, and why is that?

Well, it’s really important, and, again, this is about the integrity of the public service. Everybody recognises that beneficiaries have some duties to the ministry, to the government, in terms of their eligibility. The ministry also has duties to act within the law and to demonstrate that it’s acting proportionally. If it is not complying with its obligations, how can it, with any moral authority, expect anyone else to?

Your report also found the MSD had issued notices under Section 11, stating that they’d been approved by the Privacy Commissioner. Was the misleading?

Well, utterly. It was wrong. It was misleading. I’m not able to speculate on the origins of that. I would very much doubt somebody intended to mislead, but they’ve got the wrong end of the stick. We’ve called them out on it, and, to their credit, they withdrew those.

So does this suggest that the Privacy Commission needs greater powers, do you feel?

I have made a call for greater powers, but in fact, when it comes to my monitoring of government agencies, I think that the authority that we have is sufficient. I mean, you will come back to the ministry, as the Nation — as TV3 — in 12 months, and say, ‘Look, tell us what you’ve done to implement the Privacy Commissioner’s recommendations.’ And if they haven’t, then you’ll hold them to account. That, I think, is really important.

You shouldn’t really want to rely on the fourth estate to do that, though. You should have your own powers, shouldn’t you?

Well, you have a role. Other members of parliament and advocacy groups in the community have a role. They will all hold them to account. I was very pleased to see the Minister reacting to our report, and saying, ‘Well, actually it’s great that the ministry have said that they accept the recommendations, that they’re going to implement them, but I think we need to have another look at the legislative underpinnings of this, and see whether there needs to be a law change.’ That’s really positive as well.

Some legal experts have suggested that beneficiaries could take legal action against MSD under the Bill of Rights. Would you agree that that is an avenue that they could pursue, and should they be entitled to compensation?

Certainly if somebody felt that they had experienced significant humiliation or significant injury to feelings because of breaches of the Privacy Act, they could bring a complain to my office. Now, because of the numbers involved in this mismanagement by the ministry over many years, I’m recommending that if somebody does feel that they might’ve been caught up with this, they first direct their inquiry to the Ministry of Social Development.

Can you remind us what those numbers were because you said that was something difficult to ascertain as well?

Starting point — about 15,000 cases.

MSD’s committed to ceasing their blanket policy, as you say, in approaching third parties for information, reviewing the code of conduct, having their investigative practices independently assessed. Does that go far enough?

Look, I think that goes a long way. What we need to do here is to restore the integrity of the system, so that people who are receiving benefits know that they have duties, know that they will be treated fairly and according to the law.

What concerns were raised by private sector agencies like the telcos over the information that they felt they were being compelled to provide?

Those industry groups have felt really uncomfortable about this. They provide services to customers, and they don’t feel like they should be snooping around in their private lives, but when they receive one of these notices from the ministry, they are under a legal obligation to comply.

Have these people, these 15,000 or so, been denied a fundamental human right?

Well, everybody has the right to avoid arbitrary interferences with their liberty and their privacy. So, in some cases, yes, they will have.

Transcript from Newshub Nation/Able/Scoop

Bridges still supports benefit sanctions ‘to motivate to work’

Beneficiary sanctions remain a point of difference between National and the government.


Turei game changer

Metiria Turei has changed the election campaign game, possibly substantially. But it’s not possible to tell what the end result will be as coverage and opinions evolve.

In his NBR column yesterday Matthew Hooton claimed:

“Private pollsters reported the initial response …was a loss to both the Greens and Labour and a gain to NZ First.”

“But her story has since changed from being about feeding her children to having fun, earning the condemnation of her political rivals. That criticism has led to a recovery for the Greens at the expense of Labour.”

If accurate that means a gain for NZ First, a loss then recovery for Greens, and a double whammy for Labour. The way many are writing off Labour now they are a hopeless case.

But I expect reaction to Turei’s game changer to keep changing, possibly right up to the election. Greens seem to be committed to pushing it as hard as they can, but opponents will no doubt push the negatives hard through the campaign.

ODT sums up the current situation (and doubts) in Game-changer or game over?

This was not a personal indiscretion, or a one-off mistake that could be put down to the innocence of youth, however. It involved active lying over a period of years in order to get taxpayer money to which she was not entitled. Ms Turei was studying law at the time. She should have known better. There was also an amnesty for beneficiaries at the time (although she said she was unaware of that). The fraud may have helped her and her child live more comfortably, but did others miss out because of her actions?

Ms Turei is now advocating for others who are breaking the law when it comes to their benefit entitlements. MPs are not above the law, even if they do make the laws, and they should not condone or promote illegal activity.

As well as advocating for law breaking – something both Andrew Little and Jacinda Ardern have been critical of – Green policy is to boost benefits and ask no questions about circumstances like flatmates and work and living with partners that can currently affect benefits.

Tracey Watkins in  Extreme politics, minor party style:

The Greens want to lift benefits by 20 per cent while scrapping all sanctions, including penalties for women who fail to reveal the name of their child’s father, or sole parents who want to begin a long-term relationship. For a period of up to three years sole parents could even continue to claim the DPB while living with a working – or even wealthy – partner.

In other words, they will prevent further rorting/law breaking by effectively allowing just about anything. This is troubling.

But on the other side of the argument from the ODT:

However, Ms Turei is making a valid point —  that current benefits are not enough to adequately live on. By sharing her own story she has brought the issue into the spotlight.

The issue of poverty in New Zealand deserves more serious scrutiny. New Zealanders should feel uncomfortable about it and the desperate measures people are being driven to. It seems we have become immune to the reports.

Yet we should be appalled at the fact hundreds of thousands of children are living in poverty, that families are  sleeping in cars, tents, garages and other sub-standard accommodation because they cannot find or afford housing in our supposedly “rock star economy”.

We should be appalled there are many who turn to dangerous substances and reckless behaviour because that is the only “high” point in their lives. We should be querying what part poverty and desperation play in crime — and in punishment.

Are we too hard on our most vulnerable and too easy on those already at the top? Have we got the balance right in our supposedly egalitarian society?

Ms Turei’s disclosure has changed the conversation around these issues — as it should.

This is something we as a society should have a good think and debate about, and then decide whether we can find a better balance.

I think we can and should do better. I think that there’s quite a bit of similar sentiment amongst the public – but it only goes so far.

I think there could be a lot of support for providing more help for those who are struggling in New Zealand.

But I suspect that many will have a problem with giving people substantially more money with no responsibility required to try and help themselves.

However debate on this isn’t going to happen effectively during a highly charged election campaign.

However, she has made an error of judgement. Now on a handsome salary of $175,000 as a party leader, she should have offered to pay back her illegitimate takings from the State at the same time she made her declaration. Not doing so has called into question her integrity, even as she tried to be transparent about her previous transgressions and raise awareness of poverty in New Zealand.

That hypocrisy may come back to haunt her if the Work and Income investigation draws out. However, her actions could yet energise a marginalised  sector of the community to vote for change. Move over Winston Peters, this could yet prove to be New Zealand’s Trump/Brexit gamechanger.

Or not. We simply can’t know at this stage what the voters as a whole will decide in a bit over a month. Polls may give us a hint but there could easily be shifts in how people see this issue right up until September 23.

Turei has changed the campaign game, but it’s too soon to tell where the goalposts are, who is heading for them, and who might score an own goal.


Droughts and farmers versus beneficiaries

As areas of New Zealand declared drought zones in social media there’s been a growing number of comparisons made between assisting farmers compared to not assisting low paid workers and beneficiaries.

Martin Bradbury at The Daily Blog: How the hardship of farmers and beneficiaries differ

Don’t you love how when farmers face hardship the Government can’t rush fast enough to their aid with drought welfare, yet when the poor face hardship the Government responds with drug testing, contraception for solo mothers and 40 hours forced labour in a private prison.

Helen Kelly at The Standard: We’re all beneficiaries now

The recognition of the need to provide income support to farmers during this drought period is illustrative.  It illustrates the importance of having a comprehensive social protection system that steps in when things go wrong including the weather as in this case.   It illustrates the benefit of Farm Owners of having a union that the Government supports and is prepared to fund to provide much needed services such as co-ordination, animal welfare advice and counselling.

Solo mums are a bit like these farmers.  They are working but not earning and need community support to do that.  For them, they now have to attend job preparation courses and look for work.  They can be drug tested, boot camped and have their benefits cut if they don’t answer the phone when WINZ rings them about something. 

Scott Yorke at Imperator Fish (satire): Bennett announces drought relief get-tough measures

Ms Bennett accepted that there was no evidence of widespread abuse of the scheme by farmers.

But she insisted that the new rules were necessary to keep farmers on the straight and narrow. 

“Struggling farmers who are doing their best to manage and who are looking to find alternative work have nothing to fear,” said Bennett. “These rules are about helping to break the cycle of farmer dependency. Some of this dependency is inter-generational. We can’t afford as a nation to have hundreds of farmers begging for help each and every time a drought is declared.

“It doesn’t matter whether you’re a farmer or a solo mother,” said Ms Bennett. “If you want a handout from this government then the same rules apply.”

Robyn Norrison New Zealand Labour Party Facebook:

As a side note the farmers moan cause they have no feed for their animals and the govt pays them compensation, what about all the low paid families out there that are having trouble feeding their children where is the govt then, making things worse for them.

Mickysavage at The Standard:

There is a certain irony that farmers, who have a reputation for denying that climate change is occurring and opposing provision of social welfare for members of our community who need it should now be seeking a benefit because of a drought that is undeniably a symptom of global warming.

(micky, a one season adverse weather event in parts of one small country in the world is not “undeniably a symptom of global warming”.)

Comments on blogs follow similar themes of “poor beneficiaries” and “undeserving farmers”.

Low paid families already get government assistance continually through benefits, Working For Families, accommodation allowances, doctors subsidies etc etc. (some farmers may also qualify for some of these).

Some are questioning that farmers facing extreme short term difficulties are getting state assistance.

And they want people who are already getting state assistance, sometimes long term, to get more assistance.

It’s financially tough for people on low wages and benefits.

But it’s hard to compare assistance programmes for farmers who are having short term one off problems due to an abnormal weather event, and a mother who some say should have the freedom to choose the DPB for twenty years without question. Or a worker who receives Working For Families tax credits year after year without question.

And I find it highly offensive to make sweeping statements like “… farmers, who have a reputation for… …opposing provision of social welfare for members of our community”.

Also offensive is the “farmers make money so are bad and deserve any kick in the guts they get” attitudes alongside “poor beneficiaries deserve more and more and more”.

This is just blind bias or ideological pissy politicking.

I acknowledge that it’s only short term tough for farmers – but this means with short tyerm assistance they will be back to earning money and paying taxes again soon.

And I know that being stuck on a benefit without being able to find a job is tough, often for longer than a season of dry weather. And solo mothers and families on low wages can experience long term tough.

But that doesn’t justify denying any other state assistance from anyone else.

Farmers who go broke may become beneficiaries.

We are all a part of our state, we are all due some level of state assistance when justified, and we have to understand there will always need to be tough decisions made about the level and length of state assistance provided.

Dealing with dud beneficiaries

Karl du Fresne blogs about David Shearer’s rooftop dole bludger:

Labour leader David Shearer was pilloried in the left-wing blogosphere for making a speech in which he made it clear he disapproved of people claiming a benefit when they were fit to work.

Yet his attitude is entirely in line with the views of the Labour politicians who created the social welfare system in the 1930s. They were harshly intolerant of welfare “loafers”. The colourful public works minister Bob Semple, a former union leader, is said to have once thundered in biblical tones: “He who shall not work, neither shall he eat.”

That Mr Shearer was condemned within his own party shows how the entitlement mindset has distorted attitudes to the point where dependency on the taxpayer is viewed as a valid lifestyle choice.

Dim-Post discusses this and disagrees with the government approach to reduce job avoidance in The Big Lie:

National doesn’t want to intervene in the economy and create jobs – for a variety of reasons, some ideological, some related to their own hubris: they’ve been convinced for four years now that the economy is about to experience ‘robust growth’, due to the sheer awesomeness of John Key being in power.

Bennett’s welfare reform is an interim response; a very successful propaganda campaign designed to distract the public from National’s jaw-dropping policy failures by pretending that the people most affected by the economic downturn are actually its causes.

Which brings us back to David Shearer and his roof-painting sickness beneficiary: it would be nice if the leader of the opposition didn’t help the government out when they’re waging a dishonest scaremongering campaign to try and conceal their own impotence.

If National – or Labour, or whoever – can get unemployment back down to 3% then they can crack down on benefit fraud and drug test beneficiaries and suspend payments to dole-bludgers with outstanding arrest warrants as much as they like  (although they probably won’t bother because all those measures will cost far more money than they ever save.)

Until then, the only welfare reform I want to hear about is job creation.

I agree that job creation is important – but not so much Government creating jobs, I agree with Natikonal’s theory of creating good economic conditions that enable businesses to create jobs.

But this ‘don’t worry about “dole-bludgers” and druggies until the unemployment rate comes down is nonsense. Danyl seems to be saying that job avoidance at 6% unemployment is ok but at 3% it isn’t is odd. What about 5%? 4%?

What if unemployment fluctuates above and below 3%? Can beneficiaries keep switching between work readiness and avoidance?

When the world economy finally regains strength the out of work force needs to be ready to step into newly created jobs.Trying to get  beneficiaries to suddenly acquire a work ethic and work readiness is stupid. Preparing them now makes far more sense.

Even if unemployment deteriorates those on the dole should be ready and willing to work. Just because the economy is in an extended slump doesn’t justify active avoidance of work.

I know for a fact that even now there would be more people employed if there was more willingness to work. And if they had realistic expectations about what sort of work they are suitable for.