Thursday, September 27, 2018

Not just unlawful, but a crime

Yesterday the High Court released its decision in Chief Executive of the Ministry of Social Development v L, ruling that MSD's practice of its Benefit Review Committee using false names and signatures was unequivocally unlawful. It was a pretty obvious case: the practice breaches the right to natural justice, in that it prevents people from challenging the potential biases of those judging their cases. Natural justice being absolutely fundamental to the legal system, such a breach would require a very explicit statutory authorisation, showing that Parliament really, really meant for it to happen. No such statutory authorisation exists, so case closed. But in ruling that the practice was unlawful, the court has also done something else: exposed the members of those committees and MSD chief executive Brendan Boyle to criminal prosecution.

Why? Because as we learned a few months ago in the police shakedown of Assignment4U, a document "of which the whole or any material part purports to be made by any person who did not make it, or by a fictitious person" is a "false document". Knowingly making a false document with the intent that it be acted on as genuine is forgery and carries a penalty of 3 years imprisonment. Using it, knowing it to be forged, is using forged documents, and carries a penalty of ten years in jail.

The members of the Benefit Review Committees who falsified their names created false documents. They did so knowingly, as part of an official MSD policy, and with the intention that they be acted on by MSD and the beneficiaries appealing to the Committee as genuine. They then acted on those documents, which they knew to be false, to deny people benefits, or caused other MSD staff and the Social Security Appeal Authority to do the same. They appear to have committed the crimes of forgery and using false documents, and should be prosecuted for it.

The fact that the policy was official does not help them - public servants enjoy immunity for their good faith actions only for civil claims, not criminal ones. All it does is make other people, the people who set and oversaw that policy, parties to their crimes. And arguably it puts MSD Chief Executive Brendan Boyle, who ignored repeated rulings from the Social Security Appeal Authority that the practice was illegal, and violated a personal undertaking that it would cease, squarely in the crosshairs. He appears to have directed this policy, and he needs to be held accountable for it.

Forgery and using false documents are serious criminal offences. Will the perpetrators of these crimes be held accountable, or is WINZ above the law?