The Ombudsman's finding that Derek Leask was badly treated by the State Services Commission is quite damning. It also matters for all of us concerned about the limits on governmental power in New Zealand.
After a long, long gestation - caused in large part by the State Services Commission's (hugely ironic, as we will see) demand for various rights of reply - the Office of the Ombudsman has finally released its report into the State Services Commission Inquiry into leaked MFAT documents. This report followed a complaint from Derek Leask, a career diplomat whom the State Services Commission Inquiry had fingered as being a ringleader of MFAT officials' alleged efforts to sabotage their minister's desired changes within the organisation.
The Ombudsman's response to his complaint is pretty much as damning a document as you can get. Here is how the author, Ron Paterson, summarises his various findings:
The findings in relation to Mr Leask in the Final Report exceeded the terms of reference for the inquiry;
Mr Leask was not given fair notice prior to the interview phase of the inquiry that his conduct (apart from any possible culpability for the leaks in question) would be examined;
insufficient material was provided to Mr Leask in advance of the Final Report about the applicable standards against which his behaviour was being measured;
in several respects Mr Leask was not treated fairly, in accordance with the principles of natural justice;
the evidence relied upon by the inquiry did not reasonably support some of the criticisms made about Mr Leask in the Final Report and some highly relevant evidence was not properly addressed the manner in which the evidence was portrayed in the Final Report did not fairly represent Mr Leask’s actions;
the manner in which Mr Leask’s actions were addressed in the Final Report was disproportionate when compared with the comments made about the actions of other MFAT staff, including a number of [same level] managers;
the publication of the Final Report, in a manner that identified Mr Leask and contained unfair criticisms of him, was unjust; and
the Commissioner’s public statement about Mr Leask on 12 December 2013 was unreasonable.
At the end of this list, it seems quicker to ask what went right with the State Services Commission's inquiry process than was wrong with it. Because it's a fairly comprehensive list of failures from go to woah - as Greg Robbins tweeted yesterday, "In other words, the inquiry failed just about everything you learn in 2nd year public law." Which raises the question, just why did Ms Rebstock and Mr Rennie let things go so pear-shaped?
Now, I need to make clear at the outset that what follows is no more than my personal opinion based only on an interpretation of the Ombudsman's report and background news coverage from a few years ago. It should thus only be taken as seriously as one man's reckons written on the internet deserves. But the story really seems to start in 2009 with John Allen's appointment, driven by the desires of the Minister Murray McCully, to be a "new broom" sweeping in change at MFAT. As Fran O'Sullivan wrote at the time:
What the Ministers have in mind is a huge shakeup that will see some embassies closed so more resources can be directed towards expanding a larger NZ Inc presence within New Zealand's vital trading partners.
It seems fair to say that Allen's (and McCully's) change programme was not universally accepted by the ministry staff. Part of this may have been on principle as the idea was Murray McCully's, because ... well ... he's Murray McCully and no-one likes him. Part of it may have been due to a feeling that the reforms were plain wrongheaded and bad for the foreign service/country. Part of it may have been due to dislike of "outsiders" messing with "how things are done" within a department that is (tbbh) a bit of a bastion of hidebound formalism.
So by 2012 a fairly determined resistance to the changes had manifested inside MFAT, with overt lobbying and pressure by staff members opposing Allen's (and McCully's) proposals. And at the same time, but as it turned out quite independently, information began leaking out to Phil Goff both about the planned changes and the troubles occurring inside the department. Goff then used this information with gay abandon to embarrass the Government in the House and the media. So I have no doubt that awkward questions began being asked by Ministers of the State Services Commission as to why exactly the public service, which is meant to serve the government of the day in a non-partisan and neutral fashion, instead seemed to be acting as its own advocate at best and and arm of the opposition at worst.
At this point the State Services Commission inquiry to find out who was leaking to Phil Goff was announced and Paula Rebstock was brought in to run it. Formally, she was tasked with tracking down whoever was the leaker and anyone who was facilitating those leaks. But in practice it appears she took on a role of head kicker and name taker amongst MFAT staff who had not been behaving in a properly "public servantish" way, with the goal of finding some Admirals to hang pour encourager les autres. The Ombudsman has now found that not only did that aim exceed Ms Rebstock's mandate, but she didn't go about achieving it very well. She didn't tell those she was investigating what they were being investigated for, what sort of behaviour was not considered acceptable by them, nor give them a proper chance to respond to criticisms of their actions. Then, to make matters even worse, she wrongly found that two MFAT diplomats - Derek Leask and Nigel Fyfe - had committed various misdeeds and highlighted these despite their role in resisting the changes being no different to those of other similarly placed diplomats. Here's a little sample of why the Ombudsman thought that Ms Rebstock's conclusions on these matters were not just debatable, but flat out wrong:
192. Ms Rebstock subsequently said at interview that the finding that the actions Mr Leask took were motivated by his personal interest, came across 'strongly¹ in her interviews with him. I have since carefully reviewed the transcripts of the interviews to find the source of that evidence. However, I have been unable to locate any material in the interview transcripts that supports such an interpretation of Mr Leask¹s motivations.
193. [The State Services Commission] made the general comment that ‘body language and other cues¹ are ‘highly relevant¹ in assessing the evidence of interviewees. However, the interview with Mr Leask was via telephone, so it is unlikely that his body language or non-verbal cues could have contributed to any assessment of his responses.
Nevertheless, following the report's completion, and despite being told that it contained various significant flaws, the State Services Commission (with Mr Rennie at its head) chose to publish it and then make a public statement suggesting (again wrongly) that the two diplomats had been responsible for the leaks to Phil Goff. Which no doubt served as the desired cautionary example for other public servants contemplating similar acts of disloyalty, while satisfying any Ministers concerned with how the public servants at MFAT had been carrying on that appropriate consequences would vest on such miscreants. But it came at the cost of trashing the reputations of two senior MFAT diplomats who, while not named in the report, were quickly and publicly identified.
Which is what brought Mr Leask to the Ombudsman's office and the rest, as they say, is history. What we don't yet know, however, is the response that the report's recommendations will receive. Early indications do not look that promising for Mr Leask. Despite the Ombudsman recommending that the State Services Commission "offer Mr Leask a public apology for the deficiencies identified in the inquiry and the publication of the Final Report, insofar as it relates to him", the State Services Commissioner Ian Rennie (who himself comes in for quite some criticism in the report) so far has only said sorry for falsely accusing Mr Leask of being a leaker. In regards any other response, he only will say that:
The Ombudsman has recommended [The State Services Commission] make three types of redress for the issues he identified, involving financial compensation and a public apology.
“The Ombudsman’s recommendations provide a pragmatic way for both parties to move forward,” he said “The issues here took place some years ago and I hope that we can now quickly reach a resolution”.
“Discussions on potential redress with Mr Leask are ongoing and therefore no further comment is appropriate at this time,”
What is more, in his statement Mr Rennie continues to take issue with the Ombudsman's findings, noting that; “I don’t agree with all elements of the Ombudsman’s findings, in particular that in making findings relating to Mr Leask the investigation was outside its Terms of Reference.” He also completely ignores the fact that the Ombudsman concluded Ms Rebstock was flat out wrong in her conclusions about Mr Leask's behaviour. That the State Services Commission vigorously opposed the Ombudsman even asking that question may or may not be relevant to this silence.
A reluctance to accept (or, at least, apparent desire to minimise) the Ombudsman's findings then stretches up into the ministerial level. As reported yesterday:
McCully said the Ombudsman's review criticised the steps taken in assessing the responsibility of particular individuals for "some very unprofessional behaviour" - but did not dispute that those behaviours occurred.
"My statement, made at the time of the release of the Rebstock report, referred to unprofessional and disreputable conduct but did not name any individuals. My statement was undoubtedly correct."
Meanwhile John Key, who hadn't actually read the Ombudsman's report, still has faith in Ms (now Dame) Rebstock's capabilities despite the litany of apparent failures identified by the Ombudsman:
"She's made one mistake but she's done a lot of work for the Government over a very, very long period of time.
"I think on balance we'd say clearly people need to take some learnings [sic] from it but I don't think that's terminal in terms of her capacity to do work with the Government."
So, somewhat ironically, the net effect of a damning report on the performance of those involved in a process set up to examine whether public servants are doing their jobs properly would appear to be ... nothing. The people who carried out (and screwed up) the process face no apparent consequences for doing so - Mr Rennie was stepping down from the Commissioner's role anyway, Dame Rebstock keeps her various governmental sinecures - while the person injured by their failures will have to fight on for any recompense for his expenses and lost opportunities.
Which ought to be a bit concerning for anyone interested in limited government and protection of the individual. New Zealand's system centralises a lot of power in our governmental agencies, with very few mechanisms for calling misuse of that power to account. The Ombudsman's role has long been considered one of the most important - while not legally binding, the findings of and recommendations from the office's reports are accorded a considerable degree of mana. That stems from the office's basic purpose, to be an independent watchdog over public power that isn't just interested in whether it is lawfully exercised (like the courts are), but whether it is fairly used.
So if the Ombudsman's wholesale condemnation of the treatment of a senior public servant - someone with status, resources and a measure of clout - can be (in effect) binned, then what hope can less-powerful individuals have that the Ombudsman will be able to give them some form of redress against wrongful (by which I mean wrong) actions of government? And if not the Ombudsman, then who?