The Jones and Liu report

The Auditor-General has reported their findings into the decision by Shane Jones to grant Bill Liu citizenship against official advice. This is a matter of discretion for the Minister so it never has been about whether the decision was legal.

Here are some extracts from the report:

Mr Barker acted properly in deciding that he could not make the citizenship decision for Mr Liu, but we do not consider it was wise for him to have signed the letter – at least in that form. We appreciate that the letter was one of many pieces of correspondence that a Minister has to deal with in the course of a busy week, and that it related to procedure rather than any substantive decision. Nonetheless, it created an impression that Mr Barker would be taking a personal interest in Mr Liu’s file. 

Mr Barker would have been better either to amend the letter to make clear that he would not be personally involved in the file or to arrange for someone else to sign the letter.

It is worth noting that signing a letter on an issue regarding someone you had a personal connection with, was sufficient grounds for Nick Smith to resign as a Minister. Of course Barker was defeated at the 2008 election.

Mr Jones had significant concerns about the advice he was given, but did not take steps to clarify that advice with other officials. He also knew that both the New Zealand Police and Immigration New Zealand were still actively investigating Mr Liu, but did not consult those agencies before making his decision. In keeping with his usual approach for ministerial decisions, he wanted to make a final decision.

A serious mistake.

He did not record the reasons for his decision, and Mr Liu’s advisers were notified of his decision before the Department was notifed.

That is appalling. Liu got told before the Department was even told! This shows he had special access.

This effectively deprived officials of an opportunity they might otherwise have had to correct the misunderstandings on which Mr Jones’ decision was based.

I still can’t believe he told Liu before he told his own department.

One recommendation is:

We recommend that the Department of Internal Affairs and the Minister record the reasons for any significant decisions they make on citizenship applications, particularly when the decision involves a departure from normal policy or procedure. 

Recording the reasons for decisions is important to ensure transparency. It also provides an important protection if  concerns are raised that the decision has been made for an improper purpose. 

This has always been my major criticism of Jones. If you are going to go against a recommendation, a semi-competent Minister should do a file note and state why.

Now Jones did produce a three page file note to the Auditor-General. But because it was not attached to the official files, and not recorded in any official way, it is impossible to know if the file note was written at the time, or written some time later after the story blew up. The fact that the DIA official involved states the file note is inaccurate in parts damages the credibility of this claimed file note. The whole purpose of a file note is to attach it to the file.

We recommend that a Minister considering making a citizenship decision against the advice of officials should explain their reasons, and give officials the opportunity to respond, before finalising the decision. 

Although ultimately the decision is for the Minister to make, this additional step would give officials the opportunity to confirm that the proposed decision is within the terms of the Citizenship Act 1977 and is not based on any misunderstanding of relevant policies or the facts.

And it goes without saying don’t tell the mate of your mate before you tell your own officials.

Some interesting stuff also on the Cunliffe decision:

The advice provided to Mr Cunliffe by officials, in particular the advice provided by the senior legal adviser in August 2007, conveyed, in reasonably strong terms, that it was open for the Minister to revoke Mr Liu’s residency. We were told that Immigration does not usually provide advice that strongly advocates that the Minister should make a particular decision. The strongly worded advice on this occasion was not common.

In other words, it was not a marginal call in the eyes of the Department.

In our view, this decision was made in an appropriate way. It represented a sensible way in which the difficult decisions arising from unproven allegations could be addressed. The reasons for the Minister’s decision were made clear, and were formally recorded on the file in the way that was understood. 

Also, although the Department’s effective recommendation was not being followed, the decision-making process shows that Mr Cunliffe addressed the issues with considerable thought and care. There was no evidence of favouritism or that the Minister made the decision for improper reasons.

And this is the key difference between Cunliffe and Jones. Cunliffe documented his decision. This sounds a minor thing, but as the AG says is very important. When there is no reason given, and the person is a donor to your political party, then how can we know it was not because Dover told his mate Shane that this guy was a donor and they should look after him?

The detailed conclusions around the decision are:

We acknowledge that Mr Jones gave considerable thought to Mr Liu’s application, and that, in his view, it was important to make a decision reasonably promptly. 

However, in our view, he made his decision too hastily and without ensuring that he had a full understanding of all the relevant information. In particular, Mr Jones either did not understand or did not accept the Department’s advice that neither section 8 nor section 9 of the Citizenship Act were applicable.

A Minister who made decisions based either on ignorance or refusal to listen.

In our view, given that he knew there were ongoing investigations by Immigration and the New Zealand Police, he should also have consulted them before making his decision, as the Investigator’s note of the first meeting suggested he was intending to do.

Absolutely.

We also consider that Mr Jones should have recorded his reasons for authorising the grant of citizenship. He was making a decision against the Department’s recommendation, and the basis for his decision and reasons for departing from normal policy would not have been obvious from the papers. Indeed, on the face of the decision-making papers, it was not even clear under which section of the Citizenship Act he had authorised the grant.

Shane Jones is incredibly talented, but also notoriously lazy and sloppy. He has the potential to make a significant contribution to NZ Politics, and may get that opportunity to do so again as a frontbencher for Labour. But to succeed, he is going to have to make sure there is never a repeat of a situation like this.