Sacked Auditor-General won't get compensation

Former Auditor-General Martin Matthews will not be compensated for losing his job in 2017 even though the parliamentary committee reviewing his case has recognised the many flaws identified in the sacking process.

Matthews had petitioned the Officers of Parliament select committee for compensation, a resolution for regret by Parliament, and a report from the Ministry of Justice on ways to prevent a repeat incident involving one of the major constitutional watch-dog roles in New Zealand's government.

Martin Matthews. Still / Herald Focus

His backers, including come of the country's constitutional experts, believed the committee that sacked Matthews was badly advised by the solicitor-general on the very limited grounds for removing an auditor-general. They also argued the process – rushed in the lead-up to the 2017 general election - had been procedurally unfair, in that Matthews was not given the chance to defend his position.

But the select committee, chaired by Speaker Trevor Mallard, has resolved not to reopen the case. It has recommended changes, suggested during the petition process, that the removal of any independent parliamentary office holder should only be made with the support of any independent adviser.

"We do not think that the evidence supports a relitigation of the decisions of the previous committee, and as such are unable to support Mr Matthews's request for an apology, reimbursement, compensation or damages," the committee said in its six-page report.

"We accept that the processes undertaken by the Officers of Parliament committees in both the 51st and present Parliaments are unusual. As a result, we recommend that the government review the empowering legislation for all Officers of Parliament."

Inquiry held

The committee's predecessor body had appointed Matthews as Auditor-General in late 2016, only to initiate – at Matthews's request – an inquiry into his appointment six months later. He had been chief executive of the Ministry of Transport when senior staffer Joanne Harris stole more than $700,000 from taxpayers over three years.

Harris's sentencing in early 2017 showed that rules at the ministry hadn't been followed and some staff had tried to raise concerns with Matthews about her activities. A review by Maarten Wevers – much of it disputed by Matthews – found he had not acted early enough and suggested he had downplayed what he had known of the frauds, and his earlier inaction, when he was interviewed for his later role.

After considering Matthews' 83-page rebuttal of Wevers's report, the committee on Aug. 2, 2017 told Matthews he had lost the confidence of Parliament and should resign. If he didn't, the committee would report to Parliament the next day recommending his removal.

Under the Public Audit Act 2001, an Auditor-General, or his or her deputy, can only be removed from the role for disability affecting the performance of their duties, bankruptcy, neglect of duty, or misconduct.

Similar rules are in place for the removal of High Court judges. But in their case an investigation by an independent panel must precede any vote by Parliament for removal.

Crown Law advice wrong

In March, former Supreme Court judge and a former Law Commission president Kenneth Keith said the Crown Law Office advice that a loss of confidence was sufficient grounds for removal was simply wrong and would have applied equally to other key office holders, such as the Ombudsman, the Parliamentary Commissioner for the Environment or the heads of the security services.

In today's report, the committee acknowledged the need for those office-holders to remain independent of the executive government of the day. But it noted that they were not independent of the House of Representatives.

"It is, ultimately, for the House of Representatives to decide what circumstances meet the grounds for suspension or removal."

Keith and former Prime Minister Geoffrey Palmer had argued that that would open the door for removal from office on political grounds.

The predecessor committee and the solicitor-general took the view that "disability" under the Public Audit Act could include a situation where the office-holder was unable to be effective due to a loss of confidence by Parliament.

In today's report, the committee said any review of the empowering legislation could include reconsideration of the term "disability" and how its meaning may have evolved since 1993.

"It may be that alternative wording is preferable to better describe the grounds on which an Officer of Parliament should be suspended or removed from office.

"Additionally, if a future Officers of Parliament Committee is considering circumstances that could lead to the committee recommending the suspension or removal of an Officer of Parliament we think it should decide exactly what steps it will take to ensure it meets its natural justice obligations as well as engaging the help of an independent expert to provide advice on process."

Not only had Matthews sought the review of his appointment, he had also agreed to Wevers's appointment for the review, and had pledged to stand or fall by the findings.

Ironically, NZ First member Clayton Mitchell today expressed a minority view and a "grave disquiet" that the committee had not properly considered the miscarriage of justice Matthews had suffered.

Throughout the petition, Matthews' backers had been highly critical of the role NZ First leader Winston Peters had played in his removal.

(BusinessDesk)