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SSC Apologises for handling of Rebstock Investigation

Press Statement
Derek Leask 7 December 2016

State Services Commission Apologises for its Handling of the Rebstock Investigation

Former New Zealand High Commissioner in London Derek Leask welcomes the formal decision by the State Services Commission (SSC) to accept the Ombudsman’s findings and recommendations on the SSC’s flawed 2012-13 Inquiry into the leaking of MFAT papers.

Derek Leask has accepted the apology made on behalf of the Government by the new Public Service head, Peter Hughes. He is also pleased that legal costs are being refunded and compensation paid for the significant reputational harm done to him and to former colleague and current Deputy Secretary of Justice, Nigel Fyfe, over four years.

He confirmed that he was fully satisfied with the overall settlement reached with the State Services Commission including the confidential element related to costs and reputational harm.

Mr Leask says “The important break-through is that the SSC, the body that leads and oversees the public sector, has now repudiated the Rebstock Inquiry’s findings and has publicly taken responsibility for its own very poor and sometimes unlawful behaviour over an extended period.”

For Derek Leask the Ombudsman’s June 2016 report went a long way towards restoring his own reputation and that of Nigel Fyfe. “Our vindication is now complete with the apology, the retractions, and the redress announced by the State Services Commissioner.”

“I am sure today’s announcement will also help to restore the reputation of the State Services Commission as leader of the New Zealand public service.”

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After a 43 year career with the Ministry of Foreign Affairs, Derek Leask said he was proud of the public service he had worked in – not least for its professionalism and its independence and for its support for justice, the law, human rights and constitutional principles.

Mr Leask said that right from the start it was plain the SSC Inquiry into MFAT was off the rails and the Ombudsman’s report showed this. It found that the SSC investigation was unfair, that its findings were wrong, and that the publication of the report was unjust. Many commentators were concerned not just that the Inquiry had become a witch hunt but that it was used in a way that diverted attention away from the fact that the leak of the Cabinet papers was almost certainly from within the SSC itself.

“Over four years I faced serious misuse by the SSC of the powers of the public service. The longer it went on the more I was determined that those responsible had to be held to account. This sort of behaviour, right at the top of the New Zealand public service, had to be exposed. That is why I went to the Ombudsman and why I did not let up until I had this apology.”

Derek Leask said “Today’s formal SSC response invalidates the inappropriate and self-serving comments made by former State Services Commissioner Iain Rennie when the Ombudsman’s report was released in June 2016. The status and importance of the Ombudsman’s findings has now been properly recognised.”

Derek Leask expressed his thanks to all who had supported him and Nigel Fyfe through difficult times. This includes family, friends, colleagues and many senior legal, academic, public service and political professionals concerned about the integrity of our public service. They had been dismayed by the unfair SSC Investigation, by its flawed and unbalanced findings, by Iain Rennie’s decision to publish, by the serious breach of the Privacy Act, by his unfortunate statement in June this year which challenged or downplayed a number of the Ombudsman’s findings, by the clear breaches of natural justice and legal principle, and by the SSC’s failure to deal with obvious conflicts of interest. And they will be pleased that steps have now been taken by the SSC to deal properly with these matters and to recognise properly the status and role of the Ombudsman.

Derek Leask said that he and Nigel Fyfe fully endorsed the Commissioner’s separate statement of conduct expectations in the Public Service also released today.

Background

The State Services Commissioner Peter Hughes today:

• Apologised without reservation for the handling of the SSC investigation, for its findings and for its publication;

• Formally withdrew the criticisms and accusations made against Derek Leask and Nigel Fyfe;

• Recognised the harm done to Leask and Fyfe and their families;

• Announced that a confidential settlement had been reached and compensation would be paid to cover reputational damage and also legal and other costs.

• Announced that the Rebstock report on the SSC website will have material about Leask and Fyfe removed.

• Noted that his statement today constituted the State Services Commission’s formal response to the Ombudsman’s report.

This relates to an inquiry done by the SSC in 2012-2013, led by Paula Rebstock, which investigated the leaking of cabinet papers and other material related to a change process in the Ministry of Foreign Affairs and Trade. The Ombudsman later found that this investigation, and its report, were seriously flawed. He found that the Investigation’s comments about Derek Leask were outside its terms of reference and that in any event the criticisms of Derek Leask did not stand up to scrutiny. The Ombudsman found that Derek Leask had been treated unfairly, unreasonably and unjustly.

A breach of the Privacy Act occurred with the SSC’s publication in December 2013 of the Report of its MFAT Investigation. Derek Leask had earlier provided a statement seeking numerous corrections to the report [corrections that have subsequently been shown to be valid]. Under Principle 7 of the Privacy Act the State Services Commissioner was obliged to consider the corrections suggested. He was also obliged to publish Derek Leask’s statement of corrections alongside the SSC Report as Derek Leask had requested. The State Services Commissioner refused to do this, wrongly claiming that the Act did not apply in this situation. He declared in the same letter that he intended to go ahead and publish. On 3 March 2015 the Privacy Commission issued a certificate stating that the SSC had indeed been in breach of Privacy Principle 7 of the Privacy Act. It is a most serious matter that the SSC – supposedly a leader in ensuring the public sector’s adherence to privacy principles – should have put itself in breach of the Act.


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