Doing the right thing

Today the right thing was done for two individuals by public officials who were not forced into doing so. Let's just take a moment to savour an occasion when things worked the way they should.

Back in June I wrote a post about the Ombudsman's pretty damning report on the State Services Commission (SSC) Inquiry into leaked MFAT documents, and in particular the way that this Inquiry treated a MFAT employee, Mr Derek Leask. I then wrote another post a couple of days later, in which I took to task the immediate responses (and Paula Bennett's response in particular) to the Ombudsman's report. Then everything went very quiet and I wondered what, if anything, was going on.

Well, today we found out. The head of the SSC - Peter Hughes - has just announced a formal settlement package with Mr Leask (and another ex-MFAT employee, Mr Fyfe). This package does everything that the Ombudsman recommended, which is An Indubitably Good Thing. So, for once, this is a happy post.

Before getting to today's announcement and why it matters, a necessarily brief recap of the issue. The Government was upset that someone in MFAT was leaking information about its reforms of that department to Phil Goff. The SSC decided to have an inquiry into that matter. Paula Rebstock was brought in to run the inquiry and produced a report that didn't just address the leaking issue, but also made some pretty damning comments about the behaviour of some MFAT employees who disagreed with the reform measures. One of those criticised, Mr Leask, complained to the Ombudsman about those comments and the way the inquiry was run. The Ombudsman then produced a report that not only said that Ms Rebstock's inquiry had been badly handled, but that it reached substantively wrong conclusions on the evidence before it. He then recommended a bunch of steps be taken to put things right.

At first, it looked like both the Government and the SSC were resistant to accepting those recommendations. Not only did they downplay the seriousness of the Ombudsman's findings, but they contested whether some of these were in fact correct. However, in July a new head (Peter Hughes) came in to the SSC, and it appears that he had a more - how shall we say this - objective assessment of the issue. And so today the following package of steps were announced.

  • Mr Hughes, on behalf of the SSC, has publicly and formally apologised for the way that the Rebstock Inquiry was run and the flaws in its final report. He also has accepted the Ombudsman's report in its entirety, in contrast to his predecessor (Ian Rennie) who sought to dispute various aspects of the Ombudsman's findings.  
  • The SSC has formally withdrawn the criticisms of, and accusations against, Mr Leask and Mr Fyfe in the Rebstock Inquiry report. The official version of that report held by the SSC has now been severely cut back. All the comments and findings about Mr Leask and Mr Fyfe have been redacted.
  • Compensation has been paid to both Mr Leask and Mr Fyfe for the harm caused to their reputations.  Mr Leask's legal costs also have been met.  The exact amount of this monetary settlement remains confidentially, but I suspect it is reasonably substantial (given the length of time that this matter has dragged on, and the fact that ministerial approval had to be obtained for the payment).
  • The SSC has also apologised for a significant breach of the Privacy Act 

Why is this worthy of some celebration? Well, first of all, it was the right thing to do as a substantive matter. After reading the Ombudsman's report, it is clear that Mr Leask and Mr Fyfe were treated very badly. If the Government - not ministers here, but the public service - treats an individual badly, it ought to try and put things right. Now it has done so ... as much as it is possible to do so, anyway.

Second, by accepting and acting on the Ombudsman's recommendations in full, the SSC has emphasised the importance of this office as a constitutional watchdog. Remember, the Ombudsman cannot force agencies to do anything. Rather, the value of its reports and subsequent recommendations lie in their persuasiveness and a sense that they ought to be respected. And as a watchdog that doesn't just look at legal niceties, but rather can examine the basic fairness of government decisions, it is really important that this "ought" carries real normative weight. When the Ombudsman says that someone hasn't been treated fairly, we want government agencies to listen, learn and act to put the matter right ... because if they don't, then where else can we go?

So it would have been a terrible precedent had the SSC - the leading organisation in New Zealand's public service - effectively refused to listen to the Ombudsman and ignored its recommendations. That would have sent a message to all public servants and government agencies that you really don't need to respect this body. And such a message would have been constitutionally terrible as it undermines the value and worth of one of the most important avenues for complaint that we, as individual citizens, possess.

So today marks a good day not just for Mr Leask and Mr Fyfe, who finally get some substantive justice publicly done. It's also a good day for our system of government. Things worked the way that they are supposed to. Public officials did the right thing without being forced to do so by formal court order, but rather because they accepted that they had done wrong. In a 2016 that has been, to put it mildly, somewhat mad, that fact is one worth noting and quietly celebrating.