15 April 2011

Insults and emergencies

Should a person who has been hired by a state-sector agency and who has been publicly criticised for his performance of his duties be free to sue for defamation independently of his employer? This is one question arising from the comments about one of ACC's clinical staff, as reported.
I'm not supplying a link to the blog in which a woman makes comments about the clinician, for obvious reasons. But, if you read it, I think you'd agree that the doctor has cause to feel offended. (The blog-posting had not been removed when I looked this morning). I'll leave it to lawyers (and possibly even the courts) to decide whether the blog-post constitutes defamation. But the comments are so personally targetted at the clinician concerned that he could well seek some kind of remedy. A blog is a public document, after all.
My next question, though, would be whether the courts are the right place for taking action, in this instance. The author of this controversial blog-post is an ACC sexual abuse claimant, and claimants with such sensitive claims have had reason to be offended by ACC's changes in policies for their assessment in the recent past.
As a physician, the good doctor has to ask himself whether he is following the precept 'above all do no harm' by serving legal papers on the woman. Surely there must be a better way to resolve the matter, perhaps by mediation. Both parties could be more reasonable.

My second issue today is about the emergency powers conferred by Parliament to the executive under the Canterbury Earthquake Recovery Act. The previous Act (passed in a single day after the September quake) was, in my opinion, justifiably criticised by lawyers and by the Law Society which said that certain provisions were "potentially at odds with maintenance of the principles of the rule of law."
The new Act is an improvement on the first one, but it still doesn't completely remove the causes for concern that were raised earlier.
On the positive side, the new Act allows for the publication of plans and strategies, for greater oversight of the Minister's decisions, and for some limited community consultation. It is clear that consultation (let alone litigation) can't be allowed to go on for too long and to hold up the recovery and rebuilding process. But I am not yet convinced that the Minister has justified the 'necessity' of the powers granted to him as proportionate to the needs of the post-disaster situation. There is still wiggle room for the Minister to go too far in suspending laws, while remaining unaccountable before any court for his decisions.
Ultimately, the Minister and the government will be accountable for their actions on election-day, so there's an incentive to get the recovery process working well and designing a new Christchurch that meets the people's needs. But, in the meantime, for all we know they could be planning for a huge and ugly inner-city shopping mall to meet those needs. And they could also 'ride rough-shod' (to use the PM's subtle expression) over the local needs of those Labour-voting residents in the eastern suburbs.


Post a Comment

<< Home