I Fought the Law
Written By: – Date published: 8:28 pm, April 28th, 2015 – 148 comments
Categories: Ethics, human rights, john key, law, Minister for International Embarrassment, national, uncategorized – Tags: Appropriate Behaviour; sexism; sexual harassment, DIrty John, justice
There have been quite a few questions raised about the legal and political implications of the Prime Minister’s harassment of an Auckland cafe worker, Amanda Bailey. Former National Party MP Marilyn Waring aced it when she said “I’m getting tired of it being called anything but illegal”.
So, I thought it would be useful to look at the areas of the law that potentially impact on the matter, from the factual to the fanciful. Hopefully I’ve covered all the bases; readers can always add to the list if I’ve missed any legal options. For the avoidance of doubt, this does not mean that the author or the Standard are definitively saying that John Key or others involved are guilty of any specific crime or have breached any Act. That is something for the judicial system to determine, as legal processes roll out.
Firstly, the cafe.
The Prime Minister has admitted repeatedly physically touching the cafe worker. Amanda Bailey says that she asked him to stop and that he continued. She also told her manager, who tried to intervene. While obviously there is no direct employment relationship between Key and the staff member, as a client of the cafe, his behaviour impacts on her employment. Employment law expert Susan Hornsby-Geluk notes that workers have the right to work “without harassment from members of the public”. I think most of us kinda take that for granted in our jobs, but harassment is a constant issue in the hospo industry. Drunks obviously, but men drunk on power too, it appears.
All employers are required by the Health and Safety in Employment Act 1992 to ensure the safety of employees by taking all practicable steps to provide and maintain a safe working environment. If the cafe manager was aware and failed to stop the behaviour, Amanda Bailey probably also has an Employment Relations Act claim for unjustified disadvantage. That is, the employer has failed to take reasonable steps to protect her and this failure negatively impacted on her employment.
Further, if, as has been claimed, the employer deliberately allowed Bailey to talk to a journalist while she was under the impression the interview was for the cafe’s own PR purposes, it is entirely possible she has a claim under the ERA for breach of trust and/or disadvantage, and under the Privacy Act or the Human Rights Act for deception that compromised her privacy. Readers might recall the ‘Cake’ case from a few months ago. While not directly comparable in regard to the circumstances, it shows the result of an employer deliberately harming an employee’s work prospects and public standing can be substantial, both in terms of financial cost and reputational damage.
If I was advising the cafe owners, I’d say settle. Fast.
Secondly, The New Zealand Herald.
If it is true that the journalist concerned, Rachel Glucina, lied about her role (claiming to be doing her alternative job of PR, when she was actually intent on writing a story for the paper), then she may face disciplinary action from her employer and censure from both the Press Council and PRINZ, the peak body for PR professionals. There is also a chance that a Privacy Act/Human Rights Act claim could be taken against both the paper and Glucina.
The constantly changing story about whether the cafe worker was properly informed certainly suggests Granny was worried that an ethical line might have been crossed. If it’s proven that Glucina got the interview under false pretences, then it’s all rather embarrassing for the paper and its editor. If the Herald is anything like the Murdoch media, they’ll throw the ‘rogue’ journalist under a bus rather than admit any systemic failings. Systemic failings like hiring Glucina in the first place.
Lastly, the PM.
He has admitted the harassment. He could potentially be a witness in an ERA case. He is now facing a Human Rights Act claim, accused of sexual harassment by private prosecutor Graham McCready. Key could also be charged with multiple assaults. Quoted in the Herald, University of Auckland law professor Bill Hodge believes Mr Key could be investigated for common assault for “hostile touching”.
The testimony from the Police officers in Key’s Diplomatic Protection unit who witnessed the events will be fascinating. Kinda makes you wonder why they couldn’t spot what appear to be repeated assaults, but hey, given that they’re just glorified golf caddies, that’s probably too much to ask. McCready has also begun proceedings against the police for what appears to be dereliction of duty.
Obviously, if he is charged with assault, Key will have little option but to stand aside as Prime Minister. If he is convicted, there’s no way back. As the John Banks case showed, under the Electoral Act 1993, conviction of an offence that carries a potential two year or more prison sentence (even if it is not imposed) disqualifies the guilty person from being an MP . It might also make visiting the Hawaiian holiday home tricky; last time I heard US Customs weren’t big on letting violent crims into the country.
The same stand down scenario probably should apply if he faces ERA, Privacy Act or Human Rights Act cases, but I suspect Key would try and wriggle out of his moral obligations there, claiming they were less serious than criminal charges. Or that Labour did it too.
The Police could also decline to prosecute assault or harassment charges, taking the ‘not in the public interest line’, but given that some of their own sworn officers are witnesses to or even passive enablers of the repeated assaults, that would look mighty weak.
There is some possibility that actually being charged or sued will do Key a favour; the media will be reluctant to report on a case that is going before the courts. Dr Catherine Strong points out the downside of that msm caution, noting that this “would be disappointing because the overall issue needs to be aired and discussed by the public.”. Happily, I think the public will be discussing this for quite some time, whether or not Key’s charged. This one ain’t going away.
Whatever the legal outcomes, Key is likely to be spending the next few months, or even years, cleaning up this mess. For example, the John Banks case is still before the courts five years after the offence was committed. It hasn’t helped Banksie’s political career one little bit. Of course, the taxpayer will be paying for much of the legal advice Key will be getting. No doubt the Taxpayers Union will be keeping a close eye on the bill. Or not, as the case may be.
While Key has damned himself by saying he is NZ’s most casual Prime Minister, that doesn’t mean he doesn’t put the hours in. Being PM is a tough, demanding gig. Doing that job and fighting protracted legal battles to minimise the damage of things he has already admitted doing is going to hobble him. It’s one thing to defend accusations; another thing altogether defending accusations you’ve already admitted are true. Even if he grimly hangs on Key is now being openly laughed at. Not with, at. That’s gotta hurt. And the rest of his caucus knows that, well, weirdos don’t win elections.
No, I think the best thing for Key, and the National Party, is for him to resign and deal with the legal fallout as a private citizen. But he won’t want to do that because he knows, despite his desperate denial that there is a power imbalance in this matter, that if he doesn’t have the power that goes with being Prime Minister there’s every chance the judiciary might treat him just like any other middle aged man who admitted repeatedly playing with the hair of a young woman against her wishes.
And, well, I’m sure we would all agree it would be a terrific shame if Key missed out on a fourth term because he was serving a first term. But it’s possible, it’s possible.