Comment

An ironic case of foxes and henhouses

The Government’s spooks and snoops have obviously been getting a bit cocky. But the announcement to investigate their use by government departments is highly ironic.

Because the guy calling the inquiry, State Services Commissioner Peter Hughes, was in charge of MSD when it was using private investigators. Particularly in court cases where the state was on the hook for serious liability. Like, say, when children in state care have been raped.

Hughes was the boss at MSD when the Crown defended the White case in 2007. The civil case was about many things but it was essentially a test case about the Crown’s liability for abuse of children in state welfare institutions. Crown Law and MSD chucked millions of dollars at defending it because they knew if they lost there were thousands of other victims they’d be paying out substantial damages to. 

The Crown won on statute of limitations, although the judge accepted the allegations of sexual abuse by one of the main plaintiffs. This judgment set the precedent the Crown wanted and allowed the state to pay negligible amounts to claimants on terms that suited the Crown’s budget. If victims don’t like what they are offered, their only option is to go through the invasive interrogation of a QC acting for the Crown in a court, with little to no chance of winning. Despite a Royal Commission of Inquiry that’s still their only option.

The case received no media coverage, probably because of heavy suppression orders. But there were all sorts of details that didn’t appear in the proceedings. 

Both a witness and the main complainant believe they were the target of private investigators. One witness says he confronted an individual parked outside his house in a cul-de-sac, asking if he was a private investigator. The individual agreed he was, then drove off. The witness also had reason to believe his house had been broken into while he was attending his mother’s funeral, although nothing was stolen. MSD denies instructing private investigators to surveil witnesses. 

The cocky, arrogant tone of the private investigators is a sign of a deeper problem. It indicates they believed they could act with impunity.

The main complainant, who the court gave the pseudonym Earl White, had private investigators approach his family trying to dig dirt on him. 

When I was investigating the state’s response to victims of state welfare abuse in 2016 I asked MSD if it, or Crown Law, had used private investigators. Their answer – no, they had not. “Neither the Ministry (MSD) nor Crown Law have used private investigators for the purposes of privately investigating claimants.” At the time I suspected this wasn’t true, but I couldn’t prove it. So that paragraph in the story was cut.

That story gained significant traction and has resulted in a Royal Commission of Inquiry.

More recently journalist Mike Wesley-Smith, who I have worked with on The Nation, asked MSD again – had they used private investigators. This time they came back with a different answer to the one they had given me. Yes, they had. “The Crown occasionally uses private investigators … for court cases. The White case is one of those cases.” Crown Law was acting on MSD’s behalf. Earl White was the pseudonym of that claimant. But there are two other court cases where they admitted they had used private investigators. They won’t reveal what those cases were.

There is a pattern here. People who have been shafted by the state and challenge it are then further victimised by the state using private investigators and other tactics. The Crown’s objective is always about limiting its own liability, regardless if this causes further harm to the lives of a citizen of New Zealand. Instead of representing the people of New Zealand it is attacking them. Public service indeed.

Hughes calling for an inquiry about the behaviour of private investigators is disingenuous. He gives the appearance of a wide-ranging inquiry but is light on detail. And for very good reason. He is talking in vague terms about misuse, but how does he define that? Will he explore and expose the use of private investigators in the state abuse saga? Probably not, because he was in charge of MSD during a critical period of that issue. I asked for his interactions with Crown Law and the Minister, Paula Bennett, on the state abuse issued over a year ago. I’m still waiting.   

The strutting roosters aren’t the problem, although they are foul. It’s the foxes watching over the henhouse who are now trying to distract from their own behaviour by saying, with apparent earnestness, 'Hey, look over there'.

There is another strand to this story. The same witness that believes his house was broken into, also filed a claim against MSD for abuse he’d suffered while a state ward at Epuni Boys Home. This was virtually dismissed by Crown Law, at least initially, in a letter, the tone of which can only be described as hostile. 

That was until media reports led to the perpetrator being convicted for abuse of the claimant and two other victims. It turns out the perpetrator had previous convictions for sexually abusing children, including when he worked at Epuni. Prior to this he was also caught abusing a child when he worked at a welfare home in Hamilton, but then he was allowed to move on to Epuni.

MSD backed down, paid out and Peter Hughes apologised in writing. But the Crown lawyer who had initially dismissed the claim was not so forthcoming. That lawyer’s name? Una Jagose, once acting-director of GCSB and now Solicitor General and QC. 

The call for an inquiry looks all very prim and proper. But the inquiry will be instructed in such a way that it doesn’t turn up any damming conclusions about those calling for it. MSD and Crown Law have even tried this with the Royal Commission. For some inexplicable reason they were allowed to shape the draft terms of reference, even though they are the ones being investigated. In the draft there’s a cut-off date of 1999 for the scope of the inquiry. 1999 was when Helen Clark’s government started developing a litigation strategy, which included the White case, that was focused on the needs of the state not the victims. The current staff of Crown Law, MSD and the current Labour government for that matter don’t want the actions of the Clark government, and the bureaucrats who served it, exposed to the scrutiny of a Royal Commission.

Here’s what I’d like to know and what media should be asking – have Hughes and Jagose ever been involved in cases where private investigators and spies have been used against New Zealand citizens? If so, what were those cases? Were they involved in cases where New Zealanders had a genuine grievance against the state? Like earthquake claims or individuals who suffered sexual abuse while they were children in the custody of the state.

The cocky, arrogant tone of the private investigators is a sign of a deeper problem. It indicates they believed they could act with impunity. It’s likely they gained that impression from the people who were hiring them and working with them. Some of those people are now at the top of the tree. 

The strutting roosters aren’t the problem, although they are foul. It’s the foxes watching over the henhouse who are now trying to distract from their own behaviour by saying, with apparent earnestness, 'Hey, look over there'.

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