New Zealand Law Society - MSD defends false names in legal documents – but is it fair to do so?

MSD defends false names in legal documents – but is it fair to do so?

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The Ministry of Social Development has defended its use of pseudonyms in sensitive legal documents.

But a professor of law says its use of pseudonyms is a grey area of law with a number of legal interpretations.

An interlocutory decision of the New Zealand Social Security Appeal Authority, in an appeal against a decision of a Benefits Review Committee, has rejected the decision to use false names.

“We dismiss the Chief Executive’s application to withhold the identity of members of the Benefits Review Committees. For the reasons set out, we do not consider we can, or should, make such an order,” the decision notes.

The chief executive of the MSD, Brendan Boyle, has defended his department’s move, which he says is in order to keep staff safe.

“The health and safety of my staff is absolutely critical. That is why we use pseudonyms for staff in the Remote Client Unit,” he says.

The unit works with the most volatile clients, to the extent that MSD staff do not meet with them face-to-face.

“Pseudonyms protect Unit staff and on occasion members of the Benefit Review Committee from being identified and potentially placed at greater risk of harassment, threats or even violence, both within and outside of their work environment,” Mr Boyle adds.

He says the Department is now considering its legal position in relation to the Authority’s decision.

Attacks on WINZ staff

MSD figures show that, in the 2016 calendar year, there were 443 serious Work and Income NZ incidents, and a further 25 critical incidents. There were a dozen assaults against WINZ staff in the same period.

RNZ News reports that MSD has argued the practice was justified in light of two Work and Income staff in Ashburton being murdered in 2014 and the ministry being convicted of health and safety charges as a result. The broadcaster says the staff with false names were on the ministry's Benefit Review Committee, which hears complaints from beneficiaries.

Professor of Criminal Law at the Auckland University of Technology (AUT) Warren Brookbanks says using pseudonyms in legal documents is a complex area.

“It potentially involves issues of public law, media law, criminal law. I guess the critical question is what the document is being used for. It is not uncommon for court judgments to be anonymised in order to protect victims, especially in the area of criminal sexual assault prosecutions and in the Youth Court jurisdiction,” Professor Brookbanks told LawPoints.

“In the mental health jurisdiction decisions of the Mental Health Review Tribunal are always anonymised to protect the interests of patients. In the criminal area, a case may refer to a defendant as “X” or “Y” versus the Police etc. This is common form.

“However, it becomes more complex when a document, for example, like an affidavit which is sworn on oath, is filed in a fictitious name, which seems to be something quite different to simply anonymising it. Does that amount to deliberately misleading the court, for which a person could be held to be in contempt of court?

“Another possibility that occurs to me is whether using a false name on a document, especially where that is done with an intent to mislead a tribunal, amounts to fabricating evidence, which is a crime under the Crimes Act 1961.”

The State Services Commissioner Peter Hughes says he fully supports Mr Boyle in his efforts to keep his staff safe, saying they should not have to face threats and abuse.

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