Comment

Comment: Tomorrow the country’s top public servant fronts up at the Royal Commission into abuse in state care. Aaron Smale argues that an odd attempt to warn off a blogger from criticism of the social development ministry shows how raw the nerves are at the highest levels in Wellington

Sometimes Wellington moves in mysterious ways.

I was recently phoned by blogger Martyn ‘Bomber’ Bradbury with a query. He’d been getting some heat from the press secretary of Public Services Commission boss Peter Hughes. But it wasn’t Bomber’s own words that were getting him unwelcome attention. It was words I’d written and Bradbury had directly quoted that were stirring up concern in the office of the country’s top bureaucrat.

I don’t know Bradbury and I think I might have read a sum total of one of his blogs after stumbling on it through some Google detour. Blogs and content in that genre are not a section of the media ecosystem that I have spent any time dwelling in, although they do have their audience and that’s fine.

However, Bradbury has picked up on the coverage I’ve done on the abuse of children in state custody and quoted verbatim from some of my stories. And it was these quotes that caught the attention of Hughes’ press secretary Grahame Armstrong, and presumably Hughes himself. He seemed particularly agitated by the reporting of an incident I’ve mentioned several times over the past couple of years. I even wrote an entire column on it – the use of private investigators by government departments to try and discredit victims of state abuse taking a civil case to court. Specifically, I focused my attention on MSD during the period that Peter Hughes was in charge.

Bradbury was at first slightly panicked by these emails from the office of the most powerful individual in the public service. He read the tone of the emails as a veiled threat and was worried he might have some kind of legal exposure. But then he was perplexed. If it was a problem that he was quoting from my stories then why were my stories still online? Was there some corrected version that he’d missed? So Bradbury did the obvious thing and called me and asked – have I had any pushback on my stories that mention this issue?

The answer is a resounding no. I haven’t heard a squeak.

Bradbury passed on the emails he’d received from Armstrong to me. In one Armstrong quotes a sentence from one of Bradbury’s blogs that originated in my reporting. In that reporting I wrote: “Hughes was in charge when MSD used private investigators to try to dig dirt on victims and witnesses in a test case on state abuse that went to court.”

Armstrong then comments on this paragraph: “This is incorrect. As I pointed out in April, some claims had already been filed in the High Court. Preparations for one case (the White case), which went to trial in 2007, began in 1999, before Mr Hughes was appointed chief executive. To assist with the preparations for the White case, private investigators were engaged by Crown Law – not MSD – to locate and approach witnesses.”

Let’s unpack this and see if it was incorrect or Armstrong is splitting hairs, leaving out details and generally throwing up distractions. First, the preparation for the trial took years. Just because it started before Hughes was appointed chief executive, doesn’t mean he wasn’t involved. To say the private investigators were engaged by Crown Law, not MSD, is disingenuous at best.

Armstrong is trying to suggest that MSD’s role in the use of private investigators was minimal to non-existent and had nothing to do with Peter Hughes. This is risible, as the report from the State Services Commission (now called the Public Services Commission) on private investigators shows. The report found that: “In February 2007, MSD raised a concern about the reputational risk for the organisation if MSD staff knew that a private investigator was interviewing them. It was suggested that the investigator be presented as part of the litigation team, rather than as a private investigator.”

So staff at MSD were being interviewed by private investigators without their knowledge, while management had full knowledge of their role and what they were there for, but kept it from their staff to protect MSD’s reputation. So who suggested this? It must have been someone high up in MSD’s management. 

This quote from the report strongly suggests that the private investigators were brought into discussions with MSD staff on false pretenses. That can’t be laid at the door of Crown Law.

Armstrong’s email to Bradbury continues, paraphrasing the same report: “The Inquiry found Crown Law breached the Public Service Code of Conduct by providing broad instructions to a private investigator. MSD was found in breach at the lower-end, given Crown Law had the primary responsibility to manage the case. The Inquiry did not see anything to indicate that senior managers at MSD knew about or directed the potential use of surveillance or a covert approach.”

Again, Armstrong is trying to minimise Hughes’ involvement by saying MSD wasn’t aware what the private investigators were up to. But just because MSD wasn’t sitting in the car with them when they were using surveillance on victims doesn’t mean MSD didn’t bear some responsibility. That’s the whole point of getting someone else to do that work – plausible deniability. Crown Law might have been technically the ones formally engaging the PIs but it was being briefed by MSD. It had to be – it was MSD’s liability that was at question. And just because MSD’s breach of the code of conduct was at the lower-end doesn’t absolve the person in charge, who was Hughes. MSD was still in breach.

The way Armstrong has gone about it is also strange. To try to say it was all Crown Law’s fault and therefore the reporting is wrong ignores the fact that Crown Law was representing MSD because MSD was ultimately responsible for the historic abuse.

Hughes as chief executive of MSD wrote a letter to the victim after the trial offering an apology. So Hughes was essentially admitting MSD was in some way responsible for what happened to the victim. It was a hugely significant trial that threatened to set a precedent that could have left MSD on the hook for hundreds of millions. For Armstrong to try to imply Hughes was not involved would be to say he was in dereliction of his duties as chief executive of MSD.

Further, MSD, which included Hughes, and Crown Law had information showing one of the alleged perpetrators of the abuse had previous convictions for sexually abusing children. Despite knowing this, the authorities decided to find some way to discredit the victim and other witnesses using methods that broke the public service code of conduct. And that was done at the cost of $90,000 to the taxpayer. This is nearly four times the ex gratia payment the victim received, not to mention the legal and court costs.

As the victim later said in evidence at the Royal Commission: “For me, amongst all the terrible things I was put through, the use of the private investigator was disgusting and unforgivable.” I’ve interviewed this victim and I witnessed how deeply distressed he was by this.

What got me interested in this story in the first place was that I’d specifically asked in 2016 if MSD or Crown Law had used private investigators in their preparation for the White trial. I was told by MSD in an official statement that it didn’t, which proved to be utterly false. So there’s been a pattern of obfuscation and denial on this from the start and Armstrong’s emails to Bradbury are a continuation of this. MSD has always known that the use of private investigators was a reputational risk. 

If the stories Bradbury quoted are so wrong and potentially defamatory, why did Hughes’ press secretary not contact the sources of those stories – Stuff, Newsroom and myself – and ask for them to be corrected? Why was he trying to worry a blogger into pulling his content when the apparently offending part of that content originated somewhere else and had a far bigger audience there? Is it because those original sources have a whole lot more journalistic experience and resources?

Why is it so inconvenient right now?

My guess, and it’s only a guess, is that the Oranga Tamariki Oversight Bill was just being rammed through Parliament. Without digging into the detail (see here if you’re interested), the bill has been slammed by more than 400 submissions, many of them from people and organisations with decades of experience in child protection and advocacy. Many of those, like the submission from VOYCE, are put together by people who were wards of the state as children. Every political party except Labour has come out against it. The government is carrying on anyway.

From previous reporting I’ve done it appears to me that the Labour politicians have been captured by bureaucrats – there has been advice proffered by both the Public Service Commission and MSD. And Hughes was previously the head of MSD and is now the boss at Public Service Commission. The redress scheme that came under heavy criticism at the Royal Commission was set up under his watch. 

A number of people have pointed out the law does very little to protect children but it will protect the institutions that have been failing for so long.

While it was fast-tracked despite opposition, there are calls from the Royal Commission on Abuse in Care  to implement legislative changes that would have far more teeth. Those calls are also being ignored by the Government.

Earlier this year I interviewed the Minister for Social Development, Carmel Sepuloni, about the oversight bill. At least I tried to.

I asked if she’d read the redress report from the Royal Commission. From her stammering reply it seemed she had neither read it nor did she know what I was talking about. The redress report was focused on how the state had failed to address the abuse of children in the state’s custody. It is the Commission’s first significant report and was delivered as early as possible so the government could implement its recommendations sooner rather than later. Instead, it seems that the government is doing everything it can to skirt around it. The recommendations pose the very real possibility of accountability for the public service in the future, but only if they are implemented in legislation. So far that isn’t happening and it has to be asked why.

The report has a section on redress and in that section it talks about oversight. This is why I asked Sepuloni about it – here was a Royal Commission giving some clear guidance on the very subject the bill was supposed to be addressing: oversight. And yet she knew nothing of it. When I asked repeatedly why these recommendations were not being implemented she eventually hung up.

The Royal Commission’s recommendations that she didn’t want to talk about stated: it should be legislated that children in state custody should be free from abuse; and secondly, if the state did not uphold this legal obligation the government should be legally liable.

Those two recommendations are both simple and significant. But so far the Government has given no indication that it will implement them.

If these recommendations were implemented it would do two things that have never happened before. Up until now the state has used all manner of legal technicalities – statute of limitations, ACC, etc – to avoid this kind of accountability. These recommendations show the Royal Commission identified this lack of accountability and wants it changed.

I spoke to Emily Keddell from Otago University for a story on Oranga Tamariki for North & South (shameless self-promotion – it’s now on the stands). She made a telling remark that “risk to institutions is conflated with risk to children”. The oversight bill and those promoting it claimed they were protecting children. But a number of critics say the new law will protect institutions.

Hughes’ office’s attempt to shut down media coverage of his past involvement is in some ways an odd curiosity. But it has to be seen in the context of the Government’s response to state abuse victims and that new law. This incident, trivial in many respects, shows a pattern of behaviour of protecting the institutions and officials.

It’s not Bradbury’s credibility that’s in question on this occasion. Nor do I think my credibility is at stake – I stand by the reporting and so do the editors who published it. One of the pieces where I mention the incident that Hughes’ man seems so agitated about won the Best Investigation at last year’s media awards.

Hughes is due to appear before the Royal Commission’s hearing into public accountability on Friday. It would be interesting to hear what he has to say, under oath, on his knowledge and involvement in the use of private investigators when he was the boss at MSD.