Serious questions raised over leak inquiry

20:07, Dec 17 2013

The investigation by Paula Rebstock into the leaking of Cabinet papers on the restructuring of foreign affairs has caused deep unease in the public service, writes former top diplomat Neil Walter.

Last week saw the release of a report on a long-running investigation into the leak of three Cabinet papers relating to the restructuring of the Ministry of Foreign Affairs and Trade.

There are serious questions about the conduct of the investigation, the content of the report and State Services Commissioner Iain Rennie's response to it.

While the views expressed in this article are my own, they reflect a widespread and deep unease around many past and present members of the public service about how this matter has been handled.

No-one would have a problem with the decision to launch a formal investigation into the leak of the three Cabinet papers along the lines proposed in the initial terms of reference.

As has been reported, the investigation was unable to come up with any conclusive proof but found that the likely source of the Cabinet papers leak was a State Services Commission employee.


I am, however, bemused by the decision to expand the investigating team's mandate and concerned at the unfairness of the comments made in the report about the two former diplomats - and other unnamed senior MFAT officers - who now stand accused of inappropriate and unprofessional conduct.

Also to be considered are the implications for the way New Zealand's public service is to be run. A recent report issued by Transparency International emphasised the importance of open discussion and challenge in the public service and expressed concern at the erosion of the proud tradition whereby New Zealand's public servants give the Government impartial and professional advice based on the national interest - ie tell ministers what they should hear rather than what they want to hear.

On the question of fairness, the process followed by the investigating team has been heavily criticised by two leading Queen's Counsel representing the targeted individuals.

It is known that a third Queen's Counsel shares these views. One Queen's Counsel advised his client that the setting up and conduct of the investigation was in his view "flawed and unjust". The other described the report as "seriously unreliable, unjust and in error on many matters". This should be of concern to the state services commissioner.

Nothing in the report supports the view that the actions of the two targeted senior MFAT staff were politically motivated or would have encouraged anyone to believe that it was acceptable to leak information and documents. Certainly there were leaks into the public domain of ministry papers with an in-house classification - apparently from management as well as staff. But neither Derek Leask nor Nigel Fyfe ever went public with their concerns about the plan to reinvent the Ministry of Foreign Affairs and Trade.

The investigating team's report contains no assessment of the merits or otherwise of the ministry's "new business model" and other change proposals.

Yet the new approach represented an untested and fundamental change in the way the ministry had traditionally - and, by all accounts, very effectively - operated. It drew strong criticism from past and present ministers (including current Foreign Affairs Minister Murray McCully, Winston Peters and Phil Goff) as well as senior members of New Zealand's diplomatic service, the business community and the general public.

Five previous secretaries of foreign affairs and trade felt sufficiently concerned about the proposal to dismantle New Zealand's career foreign service that they made representations to the State Services Commissioner.

Finally the Government stepped in and directed that the proposals be heavily modified, recognising that the changes would have been damaging to New Zealand's national interests and its ability to deliver on the Government's foreign policy and trade objectives.

Neither does the report have much to say about the way in which the proposed changes were managed. Although a formal process of consultation was established, the senior leadership team did not seem particularly disposed to listen to staff concerns. Yet a tradition of open debate and robust discussion of both policy and capacity issues has served the ministry - and the public service - well over the years.

The investigating team was charged with assessing the environment in which the ministry was operating during this period. It failed to do so.

At the time the changes were signalled, morale in the ministry was at an all-time low. Budget cuts were being imposed and restructuring had already begun. Staff turnover was at an historically high level. Staff engagement scores were worryingly low. And political appointments to head of mission positions overseas were running at an all-time high.

The standards against which the actions of Mr Leask and Mr Fyfe are measured in the report are not grounded in the provisions of the employment documents that governed them. Connections between the detailed accounts of private email exchanges and the report's findings seem to be missing.

The questioning of the loyalty and integrity of the two targeted MFAT officers is underpinned neither by evidence nor by closely reasoned analysis. At no stage did either Mr Leask or Mr Fyfe act in a manner that might call into question the political impartiality of the public service.

The report overlooks the tradition whereby heads of mission in particular and senior public servants in general talk frankly with ministers.

Ministers have always wanted to discuss issues - including capacity and resourcing issues as well as policy matters - with senior public servants in an open and free manner. Mr McCully confirmed in a radio interview last week that he had expected and encouraged heads of mission around the world to discuss the "new business model" with him - and that this had been helpful to him in forming his views. His remarks since the publication of the report do him no credit.

It is particularly regrettable that the criticisms of the two targeted officers should be the subject of a publicly released report. (The state services commissioner obviously knew, or if he didn't he should have known, that the identities of the two officers would become apparent as soon as the report came out.)

If indeed there were instances of behaviour "contrary to the standards expected of public servants", then it was the right and responsibility of MFAT's chief executive, John Allen, to take action in accordance with normal agency processes. If evidence of inappropriate behaviour came to light in the course of the investigation, then the appropriate course of action was for the investigating team or State Services Commission to refer it to the chief executive for his action.

Both Mr Leask and Mr Fyfe had long and distinguished careers in New Zealand's foreign service. They held senior positions in the ministry and represented New Zealand effectively and well as heads of mission abroad.

A large number of people would willingly testify to their commitment, integrity and loyalty and would feel that they were right to challenge and speak out against - though, I repeat, not publicly - a change process which in their view posed a threat to New Zealand's national interests and would seriously damage the ministry's ability to continue promoting and protecting the country's security, foreign relations and external economic interests.

Neil Walter, a former diplomat, was chief executive of the Ministry of Foreign Affairs and Trade from 1999 to 2002. Since his retirement he has held a number of senior governance positions in the public sector.

The Dominion Post