Aaron Smale unpicks the significance of this week’s report into the state’s use of private investigators against citizens.

The findings of a report into the state’s use of private investigators have bitten the State Services Commissioner Peter Hughes squarely on the backside.

I wrote previously that Hughes’ call for an inquiry into government department use of private investigators was not only ironic but hypocritical. This was based on the fact he was chief executive of the Ministry of Social Development during a period when that ministry was using private investigators to snoop on victims of sexual and physical abuse in state care.

At the time the inquiry was called I was sceptical that these actions would come under scrutiny by the inquiry. To my surprise they did.

The inquiry got wind of MSD’s actions and decided to have a look, although it had limited time – and extensions had to be made to the deadline to accommodate a witness who was a victim of state abuse (it’s worth noting here that MSD is only one of a number of government ministries that have been caught out in this inquiry).

Despite its limitations, the inquiry’s findings were damming.

To quote:“MSD was in breach of the Code of Conduct, although at the lower end of the scale, given that Crown Law had primary responsibility to manage the litigation and direct the private investigators.”

This breach happened on Hughes’ watch at MSD. The private investigators were trying to dig dirt on victims of state abuse. Although Crown Law was fingered in this statement, it was acting on instructions from its client, ie. MSD. There’s no way, given the money spent and the risks of liability involved, that Hughes could not have known about this and tacitly approved of it at the very least.

This opens up all sorts of questions about Crown Law, not least over the current Solicitor General Una Jagose QC (previous solicitors general have a few questions to answer too), who has been involved while working at Crown Law in defending credible allegations of sexual and physical abuse of children.

If credible allegations of serious crimes against children are put before Crown Law involving employees of state agencies, what would taxpayers expect them to do – investigate those allegations and prosecute offenders or defend them?

Crown Law decided long ago it would defend them, using all technical defences, however immoral. This is exactly what happened in the White case, a test case that went through the court in 2007.

The claimants in the case alleged they were abused in the care of the state and this was the cause of later problems in adulthood. The Crown won the case due to the statute of limitations although the judge found the allegations of one of the claimants had happened.

The case posed a major risk of financial liability to the Crown by setting a precedent.

I’ve spoken to one of the claimants in the White trial and read the transcript – and the way Crown lawyers questioned him was despicable.

This underlying litigation strategy, which was signed off by the Attorney General at the time Michael Cullen and the cabinet, is likely to be one reason why Crown Law believed it was justified in cutting ethical corners. Not only that, Cullen was specifically briefed by Crown Law on its use of private investigators ahead of the White trial.

The argument that public servants didn’t know they were breaking a code of conduct is far too generous. Crown Law has highly-paid lawyers whose job it is to know the rules (other government departments also have in-house legal counsel – did they leave their moral compass at home that day?) But when questioned they have conveniently hidden behind legal privilege.

If Hughes put a noose around his own neck by calling for the inquiry, his own words in response to the inquiry serve to tighten the pressure.

Hughes said: “It is never acceptable to gather information about people or groups for the sole purpose of managing reputational risk to an agency.”

And yet that’s effectively what MSD and Crown Law were doing when they defended the White case in court while Hughes was in charge. Beyond the reputational risk, there was the substantial financial risk.

It is also what MSD and Crown Law have been doing for the past 20 years in their response to serious and multiple allegations of serious abuse against children. This started with the Lake Alice civil case and the legal strategy that grew out of that continues to this day. Hughes played a central role in implementing that strategy, as did Una Jagose. They continue to play significant roles in the response of the Crown.

Again, Hughes, in response to the report, scrags himself with his own words: “Government agencies need to be clear about why the activity is necessary, transparent about the kind of activity the agency undertakes, ensure rigorous and independent oversight, and have in place a fair and effective complaints or review process.”

It’s hard to believe Hughes can keep a straight face when he uses the word “transparent”. That is the very opposite of what this report found the public service was doing and it is the antithesis of my experience in investigating the Crown’s handling of state abuse.

One example will suffice.

At the risk of repeating myself, MSD lied. When I was working on my first story on the state abuse saga, I was told by credible sources that MSD and Crown Law had used private investigators to snoop on victims of state abuse in the run up to a legal test case. These individuals had been sexually and physically abused when they were in the care of the state.

I double-checked this by asking MSD whether the ministry or Crown Law had used private investigators to gather information about state abuse claimants.

Lee Harris-Royal, Acting Manager of Public Affairs for MSD, replied to my question. She point-blank denied such a thing had occurred.

“Neither the Ministry nor Crown Law have used private investigators for the purposes of privately investigating claimants,” she told me on November 29, 2016. This was a reiteration of an earlier denial.

The report from SSC shows those denials to be dead wrong. MSD/Crown Law spent $90,000 on private investigators to snoop on state abuse victims, something it was claimed never happened.

I’m not aware of a clause in the Official Information Act that provides for lying to the media to cover someone’s backside or preserve an institution’s reputation. Will those involved in crafting that response be held accountable. It was a serious question and the reply would not have been signed off without high level approval. Transparent indeed.

As an aside, MSD used private investigators in two other legal cases besides the White trial, but it refuses to reveal what those cases are.

A major part of the problem with MSD and Crown Law is that there is no independent oversight or institution that a citizen can complain to. This was pointed out by Judge Carolyn Henwood in her numerous comments on state abuse – it’s all handled in-house. Police have a measure of independent oversight, as does the health sector. MSD doesn’t. Neither does Crown Law.

One of Hughes’ statements has just increased the pressure on himself: “I have also referred these matters to the Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions for consideration.”

MSD and Crown Law would have been desperately hoping their actions in recent years were excluded from scrutiny by the Royal Commission. While there were multiple inputs and submissions into the Commission’s terms of reference, Crown Law and MSD were involved in giving the minister and cabinet advice.

So when a cut-off date of 1999 persisted into the final terms of reference, it was hard to see why that was there other than to protect those who were involved in the Crown’s response over the past 20 years. Although there is discretion for the commission to look into actions after that date, the date should never have been included in the first place. No-one in government, particularly Jacinda Ardern and Tracey Martin, has ever adequately explained why it was included and their decision has now been shown up for the nonsense it is.

But now that date is irrelevant. The White trial, and the legal strategy that underpinned it, is squarely in the Commission’s sights. Once it starts investigating the White case, I predict it will open a Pandora’s box of highly questionable behaviour, if not blatantly immoral and potentially illegal, on the part of Crown Law.

And to add to the delicious irony, who should be the Royal Commission’s legal counsel but Simon Mount QC – the co-author of the inquiry into private investigators.

Mount will now take all he has learned in that inquiry into the far more powerful forum of a Royal Commission. He cannot suddenly un-know what he discovered in this inquiry. His curiosity must now surely be piqued and he is likely to advise the Commission on some of the troubling findings he has already made and further lines of inquiry to pursue.

The Royal Commission is set up as an independent body. It can compel witnesses and subpoena documents. It has the powers of a court. Lying and dodging and believing you’re above scrutiny or the law won’t be an option.

If Hughes and Jagose were worried about the Royal Commission before, now they have every reason to believe that their jobs and reputations are directly under scrutiny.

There’s also the small matter of the government ministers who were signing off the policies and strategies that led to this behaviour. As I was writing this, Helen Clark was denouncing the use of private investigators on Twitter. She failed to mention it was happening on her watch. A case of the magnitude of the White trial – where allegations of sexual and other abuse of children in the care of the state, a case where the Crown was at risk of monumental liability – would have definitely been flagged under the no surprises policy. Ditto Lake Alice.

Hughes may now have set himself up but there are a number of others who may find the gallows of public scrutiny troubling.

Aaron Smale is Newsroom's Māori Issues Editor. Twitter: @ikon_media

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