The chief executive of the Ministry of Social Development has been referred to the Solicitor-General after his agency repeatedly broke a statutory order not to use false names and signatures in legal documents.
The ministry has been using pseudonyms when dealing with some beneficiaries, an unlawful practice labelled "repugnant to the most fundamental concept of justice" in a stinging tribunal ruling released this week.
The ruling, from the little-known Social Security Appeals Authority, revealed despite warnings - and a 2016 undertaking from chief executive Brendan Boyle that the practice of using false names during benefit review hearings would stop - it had not.
Boyle was found to have filed a further seven documents containing fake names and signatures since he was told not to, the authority said, which it absolutely condemned.
"It is difficult to imagine a more effective way of undermining public confidence in the independence of this Authority, than for it to acquiesce to the Chief Executive's conduct of these appeals," the authority said.
"Without notice the Chief Executive's delegates issued statutory decisions with false names and signatures. Other delegates of the Chief Executive then presented them as genuine documents to the Authority. This activity occurred in breach of the Chief
Executive's personal undertaking to this Authority that such behaviour would not occur."
How it happened
The authority's judgment arose in the case of a beneficiary who was arguing against seven decisions made by the Ministry of Social Development (MSD) not to give her particular benefits.
Those decisions were made by the ministry's internal review body, named the Benefit Review Committee (BRC), which is comprised of a chair and two ministry staff.
Unhappy with the BRC, the woman had appealed to the relative tribunal, the Social Security Appeals Authority, last year.
During the course of the appeal to the authority, it was discovered the BRC had been using fake names and signatures on the official versions of their decisions, which it said was to protect the identities of committee members.
The ministry argued the woman was one of a small number of clients on its "Remote Client Unit", considered to be a risk to staff, and therefore had to be dealt with more carefully.
The discovery was made because a ministry manager, George Van Ooyen, had emailed a memo "in confidence" to the authority arguing why the client was a risk, and why the names should be kept secret.
The authority was immediately concerned. It set out its reasons in its appeal:
Firstly, it said, keeping decision-makers' names from those subject to their judgments was a breach of natural justice.
"In New Zealand's open justice system, the most serious crime is prosecuted by prosecutors whose identity is not hidden, members of juries who do not have their identities concealed hear cases, and judges do not have their identities hidden either," the authority said.
"The concept of "faceless" decision-makers in a statutory process of independent review is repugnant to the most fundamental concept of justice."
Without being identified, there was no way to ensure the members of the committee were not biased, or if they were fit to be on the committee. It therefore undermined the integrity of the process, and the justice system, it said.
Secondly, this was not the first time the ministry had been told not to use fake names, the authority said.
In a different case in 2015, the authority ruled that using fake names deprived appellants of their rights to natural justice. To rectify the issue, the ministry convened another BRC for that person.
However it then went on to use false names again, prompting the authority to issue a minute in which it accused the chief executive of "deliberately disregarding" its decision.
Following that incident, in June 2016, the chief executive said the continued use of false names was a mistake. He accepted he was under a statutory compulsion to carry out the authority's decisions, and unreservedly apologised.
Yet, said the authority, after that at least two more decisions in the woman's case were made where fake names were used.
The chief executive went on to file seven more documents with fake names between September 8, 2016 and February 3, 2017, treating all as genuine.
"The use of false names and signatures in statutory decisions is very concerning in itself, and is aggravated because it occurred in breach of the Chief Executive's personal undertaking to this Authority," it said.
Thirdly, it said it was of concern that the use of false names and signatures commenced only after a critical Benefits Review Committee Decision.
"A first BRC decision found that staff in the Remote Client Unit had apparently deliberately omitted key information relating to the appellant's circumstances; and that could have led to a wrong and unfair conclusion," the decision said.
It did not elaborate as to why that was concerning.
Lastly, it said, the behaviour of the manager Van Ooyen in trying to communicate secretly communicate with the Authority, so as to disparage the appellant was unacceptable.
The ministry's response
In response, the ministry argued that it was justified in withholding the names to protect its staff.
It said two staff had been murdered during their work at Ashburton on September 1, 2014; and the Ministry was convicted of offences relating to its failure to provide a safe work environment.
The woman was a risk and had previous convictions from threatening to kill, it said.
However the authority said while the woman communicated with an aggressive tone and used crude language, the police had said she was harmless.
While she was convicted of threatening to kill, no penalty was imposed. She did not pose an imminent risk, the authority said.
Therefore, the chief executive's justification for claiming anonymity lacked substance, it said.
"In our view, there is an absolute prohibition on statutory decisions-makers, in the absence of express statutory authority, remaining anonymous. There is simply not enough weight in concerns expressed relating to the appellant."
It said it could not accept that the chief executive had filed documents that contained false information.
Information he provided had to be open to scrutiny, and the system demanded that the executive act with absolute honesty and that it never attempts to mislead when dealing with a judicial decision-maker, it said.
"He must now disclose the full extent of what is false. He must also verify the integrity of the whole record he has provided in his conduct of this appeal," it said.
It dismissed the appeal to withhold the identity of members of the BRC, and said the appellant could have ten days to find legal representation to take the next step in her case.
It also ordered the decision be sent to the Solicitor-General in her capacity as a Law Officer, given its findings.
The woman's lawyer, Tony Ellis said the judgment was "extraordinary".
"I've never seen one like it that I can think of," he said. He said it was unclear why the Authority wanted the Solicitor-General to look at the case, but it might be with the view he was in contempt of court.
"It might be worse than that and he has committed an office such as fraud, or forgery or conspiring to pervert the course of justice," Ellis said.
He said he was "totally taken aback" when he found out the committee was concealing its members' names.
"I didn't think that kind of thing could happen in a civilised place like New Zealand," he said. "It's like 1984. What's next? And entire faceless ministry?"
Ellis said the only other place he knew of such practices was in Peru, where judges wore hoods or sat behind screens to protect their identities from terrorists - a practice ruled unlawful by the United Nations.
Constitutional law expert Andrew Geddis said there was no way the ministry could claim ignorance, as it had been told it was unlawful to use fake names and kept doing it.
"It shows a disturbingly cavalier attitude towards the legal responsibilities and duties of a chief executive," he said.
"The Crown should never act unlawfully in its litigation. Whether or not an offence was committed is beyond the point. When engaged in litigation it has a duty to abide by the law and deliberately ignoring legal obligations is a serious failure to follow basic principles."
The Ministry's chief executive said this afternoon that the ministry was considering its legal position in relation to the decision.
He said the health and safety of his staff was absolutely critical.
"That is why we use pseudonyms for staff in the Remote Client Unit," he said.
The Remote Client Unit worked with its most volatile clients, to the extent that its people did not meet with them face to face. They were a tiny group of our clients, around 80 clients out of a total of 1.1m.
"Pseudonyms protect them from being identified and potentially placed at greater risk of harassment, threats or even violence, both within and outside of their work environment," Boyle said.
"We take the Authority's interlocutory decision extremely seriously, given the issues raised, and our commitment to ensuring the safety of our staff."
September 1, 2014:
Two staff members in the Ministry of Social Development are murdered while working in the Ministry's office at Ashburton.
October 13, 2014:
Ministry's file notes about the woman at the centre of the current case say she is "on active charges of threatening to kill Ministry staff ...".
November 26, 2015:
Benefits Review Committee issues a critical decision in the woman's case, saying ministry staff had deliberately omitted key information from their report.
December 18, 2015:
The Social Security Appeal Authority rules (in another case) that the names of Benefits Review Committee members must be disclosed
March 4, 2016:
Members of two Benefits Review Committees issued and signed decisions in the woman's case using false names and signatures
April 1 and 29, 2016:
Members of two respective Benefits Review Committees issue and sign decisions using false names and signatures, also relating to the same case
June 9, 2016:
The Authority requires a personal explanation from the Chief Executive of the Ministry of Social Development for his apparent failure to comply with its direction in the previous false names case. The Chief Executive said the failure to disclose the names of those sitting on that previous Benefits Review Committee was an error.
June 17, 2016:
Members of a Benefits Review Committee again issue and sign a decision using false names and signatures
Between September 8, 2016 and February 3, 2017:
The Chief Executive files his statutory report for seven appeals where he does not disclose the Benefits Review Committee decisions, uses false names and signatures
March 1, 2017:
Ministry manager George Van Ooyen sends his memorandum to the Authority disclosing to it, for the first time, that Benefits Review Committee decisions in the woman's case contained false names and signatures
March 8, 2017:
The Authority issues a memo saying it is concerned about the use of fake names in the woman's case and orders the Chief Executive to appear before it
September 15, 2107:
Authority issues the decision declining a request for the BRC to use fake names and refers its decision to the Solicitor-General.