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Photo: Rebekah Parsons-King, Radio NZ
Photo: Rebekah Parsons-King, Radio NZ

PoliticsMay 16, 2019

Everything you need to know about the report into beneficiary fraud investigations

Photo: Rebekah Parsons-King, Radio NZ
Photo: Rebekah Parsons-King, Radio NZ

A report into the Ministry of Social Development (MSD) revealed that the means of investigating benefit fraud, in particular, the relationship statuses of beneficiaries, infringed on their right to privacy. The Spinoff explains what the investigation is all about, and why it matters.

Why was there an investigation?

In 2018 the Privacy Commissioner heard concerns about the way the MSD gathered information about beneficiaries when conducting fraud investigations, thus sparking an investigation into their current practices.

These investigations usually centred around allegations that a person receiving a domestic purposes benefit was in a relationship, particularly a marriage, in which case a benefit could be decreased or taken away entirely.

The MSD Code of Conduct was amended in 2012, and according to the MSD, these changes meant investigators could go straight to third-party agencies to collect information about beneficiaries, without asking them first. The report said sometimes people were unaware they were even being investigated.

What is the practise and when did it emerge?

Before 2012 the MSD was, in most cases, required to ask beneficiaries for information directly, but the Privacy Commissioner’s report says in 2012 the MSD’s fraud investigation staff were told they could go straight to third parties.

This meant that investigators could collect highly sensitive information including text messages, domestic violence records and banking records.

The Privacy Commissioner says this may not be legal, which is inherently a big deal. Breaking the law to prove someone else is breaking the law is… not legal, whether you’re a government agency or not.

How do private text messages help in these investigations?

It’s not entirely clear, and Viv Rickard, the MSD’s deputy chief executive for service delivery, told Morning Report the texts and private communications were used in conjunction with other evidence to build a case that someone was in an undeclared relationship.

Clearly, unless people are in the habit of texting each other confirming their relationship status and home address, texts are quite a shaky piece of evidence to prove that a beneficiary is living with their partner.

In one case a woman was presented with intimate photos of herself she’d sent to a partner, during a meeting with MSD staff. Privacy Commissioner John Edwards condemned this tactic in an interview on RNZ’s Morning Report, saying it was an ‘extraordinary’ incident.

“That kind of content normally is regulated by an independent judicial officer with a warrant, these are just letters of demand sent out by MSD investigators.”

MSD accessed some people’s intimate texts and images. Photo: Getty Images

Are there other downsides of going straight to third parties?

Apart from the general downside of treating beneficiaries like they have less rights to privacy than other citizens, the report also said sometimes the MSD uses police reports of domestic violence to figure out whether a beneficiary is in a relationship.

“Using that as potential evidence that they were in a relationship is pretty disturbing. The message that it sends to women who we really hope would reach out for help in those situations is pretty confronting,” said Edwards.

It’s a move that could potentially discourage victims of domestic violence from reporting their cases to police, for fear of having their benefit reduced or taken away.

How many cases have been investigated in this way?

The report says MSD has kept poor records and there are inconsistencies in reports between fraud teams, making it hard to establish just how many investigations have been going straight to third parties for evidence.

The 2012 changes to the Code said bypassing of beneficiaries could only happen in cases deemed ‘high risk’, but this poor record keeping means it’s impossible to know whether this was being adhered to.

What has the Privacy commission recommended as a result of the report?

There are five recommendations. These include a comprehensive and immediate review of the investigation Code, and accurate record keeping introduced.

The report also says all fraud investigation teams must undertake new training and guidance around natural justice and procedural fairness obligations, Bill of Rights obligations and privacy awareness.

What has the MSD said about the report?

Rickard said he accepted the recommendations made in the report, but did not believe that the ministry had been acting outside of the law.

“We act under legislation that allows us to go and get the information, which is very clear… Under the legislation we have at the moment, we are allowed to collect information from third parties, so we’re acting within the law.”

The MSD has suspended all requests to telecommunications companies and police following the report’s release, and say their Code of conduct will be reviewed, as per the Privacy Commissioner’s recommendation.

However, Rickard also addressed the use of domestic violence reports in investigations, saying he didn’t like the practice.

“I don’t like the sound of us going to police seeking information about family violence because those people are already victims and we don’t want to make things worse.”

How long has the MSD been doing this?

The report points to the likelihood that since 2012, some investigations have been conducted in this manner.

Green Party spokesperson on Human Rights, Golriz Ghahraman, said in a statement that the behaviour emerged under National’s leadership, and is inexcusable.

“A State Services Commission report last year showed that a culture of surveillance and intrusion into people’s private lines had emerged under the last Government and this needs to stop, permanently.

“MSD’s culture of enforcement and intrusive inquiry shows that we need to put the heart back into our social support system and support people to thrive rather than intruding in their private lives.”

Is there a cultural problem in the MSD?

Morning Report’s Susie Ferguson put this question to Rickard, but he didn’t answer.

Keep going!
A volunteer pretends to have got caught driving while on drugs in in Melbourne. Photo by Mark Dadswell/Getty Images
A volunteer pretends to have got caught driving while on drugs in in Melbourne. Photo by Mark Dadswell/Getty Images

PoliticsMay 16, 2019

The paradoxes of drug testing

A volunteer pretends to have got caught driving while on drugs in in Melbourne. Photo by Mark Dadswell/Getty Images
A volunteer pretends to have got caught driving while on drugs in in Melbourne. Photo by Mark Dadswell/Getty Images

As the referendum approaches and the road toll rises, the government is under pressure to deal with drug testing, but it’s more complicated than it first appears, writes Don Rowe.

The government has announced a public consultation on drugged driver testing following rising road tolls, an impending referendum, and intense pressure from an opposition desperate to portray the coalition as inept on the issue. It all focuses attention to the gordian knot of how to actually test for substances like marijuana, synthetics and prescription medication.

In an encouraging move for reform advocates, the discussion document, released yesterday by associate minister of transport Julie Anne Genter and minister of police Stuart Nash, openly acknowledges there is no “clear linear relationship” between the presence of a drug and potential impairment. But while Nash assured media in Wellington government had an obligation to give police the tools they need, there is currently no magic bullet for detecting intoxication, as Chlöe Swarbrick said on Q&A Monday.

“We currently don’t have the perfect technological solution,” the Green MP said. “What we do have is old-school impairment testing.”

The NZ Drug Foundation’s Ross Bell said the science backs Swarbrick’s position. The most effective way to find out if someone is high, Bell says, is as simple as making them walk in a straight line. But the issue has become a public battleground, with National attempting to take the moral high ground by voicing support for grieving families who have called for legislation bill mandating random roadside drug testing.   

Last week, bereaved parents delivered a petition to parliament demanding the government institute testing nationwide. The petition was received by Nick Smith, who was later declined leave to table a bill proposing roadside testing, and eventually named and suspended after accusing speaker Trevor Mallard of being soft on drugs. Smith’s position is also supported by the AA, which reports 95% of their members in favour.

Logan Porteous, who lost three family members in a 2018 drug-driving crash in Waverly said it was “unacceptable” that ministers were sitting on proposals for roadside testing “when more than 70 lives a year are lost to drugged drivers.”

But Porteous’ figures are complicated by the crucial inability of most drug testing methods to distinguish between the presence of drugs and actual impairment. As stated repeatedly in the media this week, 71 people were killed on our roads after using drugs. This is literally true, but as Professor Thomas Lumley, Professor of Biostatistics at the University of Auckland told The Spinoff last year, the AA report where that number first appeared was only looking at the number of times that drugs appear in Police’s Crash Analysis System Reports.

“But for something to appear on there, the police only need to have decided that it’s possibly a contributing cause,” Lumley said. “If they test and find drugs, they’re going to be relatively unlikely to conclude that it didn’t contribute.”

“It makes a better headline, it could be true, but there’s not much support for it in that data, and there’s no straightforward way to say if those crashes were caused by drugs.”

NGOs and academics say there are similar problems with the accuracy of saliva testing, a testing method advocated by Simon Bridges, who declined for the three years as transport minister to instigate a regime.

Dr Fiona Hutton, senior lecturer at the school of social and cultural studies at Victoria University said it was encouraging the government were focused on impairment, but pointed to the detectable life of compounds like THC, saying she hoped any legislation would consider the length of time cannabinoids linger in the body.

“Roadside testing must not fall into the trap that workplace testing has, and make sure that drivers who are drug tested at the roadside are actually those who are impaired,” she said.

Nick Smith has said repeatedly National believes the technology is ready to make that distinction, pointing to Victoria in Australia which has instituted the tests. But Bell said they’ve proven to be expensive and inefficient, with concerning amounts of both false negatives and false positives. Thomas Lumley agreed, saying roadside point-and-shoot tests for impairment like an alcohol breathalyzer just don’t exist for some substances.

“For some of these drugs there just isn’t a good test for impairment that you can do biochemically,” said Lumley last year. “Heavy cannabis users may not be impaired despite it being in their body. The point of testing drivers is to find impaired drivers, not to find people who smoke cannabis.”

For now, experts say the best option is to stick with what we have, because the impairment testing described by Swarbrick isn’t as janky as it seems. Bell said the issue is not with accuracy, where studies have shown up to 95% confidence in results, but overall police confidence and competency – a tangible challenge, and a solvable one.

“The problem is we don’t train enough cops. The cops that are trained are great, they are extremely accurate, but sometimes they don’t do it often enough to feel confident. So you have this issue where the police themselves back saliva testing because they feel like the impairment test is too much of a potential hassle.

“They’d rather have technology, but wouldn’t we all?”

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