ROGER PARTRIDGE: Why Burying Beats Exposure: A structural flaw in New Zealand’s public service architecture

When serious allegations threaten an institution’s reputation or its leader’s credibility, the temptation to bury them may be overwhelming. In New Zealand’s public institutions, a structural flaw makes this suppression not just tempting but rational.

Andrew Coster proved this. He failed to investigate serious allegations against Deputy Commissioner Jevon McSkimming, failed to disclose critical information during appointment processes, and attempted to influence investigation timelines. The Independent Police Conduct Authority found serious failures that undermined Police integrity.

Politicians expressed shock. But Coster’s conduct was the predictable output of a system that makes suppression safer than disclosure. It reveals a fundamental gap in New Zealand law that ensures the pattern will recur.

In 2020, Coster promoted McSkimming to Deputy Commissioner. Shortly after, he learned of the affair and ongoing complaints, but failed to ask proper questions.

By 2023, Coster was in a bind. Opposition MPs had branded him “Cuddles Coster.” With National campaigning on law and order, his position was precarious. McSkimming was now applying for statutory Deputy Commissioner through a Public Service Commission process where Coster sat on the selection panel. McSkimming was “his man.” Coster’s credibility was tied to McSkimming’s success.

Full disclosure meant admitting he had known of allegations about McSkimming for three years and done nothing. Ignoring the complaints offered something different: avoiding scandal, preserving institutional reputation, and managing the situation quietly.

The mathematics were brutal but simple. The system does not require bad intent; it rewards protection and penalises transparency.

Many assume that covering up allegations of misconduct is already a crime. In the UK and much of the Commonwealth, it probably would be. Those jurisdictions have long maintained criminal offences for “misconduct in public office” (MIPO) – wilfully breaching duty or abusing public trust. This creates an accountability framework. The UK offence carries up to life imprisonment.

However, New Zealand abolished the MIPO offence when the Crimes Act was enacted in 1961. Instead of a broad duty-of-office standard, we adopted narrow corruption provisions requiring proof of bribes or explicit deceit.

What remains are narrow offences such as conspiring to defeat justice or attempting to pervert the course of justice. But those generally only apply once an investigation is underway or clearly in contemplation. They struggle to reach senior officials who suppress complaints before any investigation begins – which is where most institutional burying occurs. New Zealand’s decision to abolish misconduct in public office left an accountability hole that has never been filled. The worst outcome for burying serious allegations is early retirement with full entitlements.

Dame Margaret Bazley’s 2007 inquiry documented the protection of senior officers and dismissal of complainants. Eighteen years of monitoring and cultural reform followed. None of it worked because none of it changed the incentives for senior officials who bury problems.

Both episodes reveal a problem of public-service architecture. Until criminal prosecution becomes a real risk at the top, protection remains the rational choice.

Indeed, the incentives extend beyond avoidance of consequences. Aaron Smale’s reporting on senior officials’ response to evidence of abuse in state care revealed active rewards for suppression.

As Tony Burton’s 2024 report for The New Zealand Initiative, Demystifying the State, puts it: “what is striking is how career enhancing it was to protect departments at the expense of victims of state child abuse. State lawyers have become judges, department chief executives have received state honours, and Peter Hughes, whose Ministry of Social Development hired private investigators to harass the relatives of people reporting abuse, was made head of the public service.”

The equation is simple: exposure creates institutional risk. Protection brings reward.

The IPCA has recommended structural reforms: independent charging decisions by senior counsel, enhanced oversight powers, a designated integrity Deputy Commissioner. The government is moving on related reforms through the Public Service Amendment Bill, requiring chief executives to notify the Commissioner before misconduct investigations. These are valuable transparency measures.

However, they address who makes decisions and who must be notified, rather than what happens when senior officials bury complaints.

The UK is currently replacing its centuries-old common law MIPO offence with more precisely defined statutory crimes. Whether those reforms strike the right balance remains to be seen. The point is they are maintaining the principle that senior officials can be criminally liable for serious failures of duty – a principle New Zealand unfortunately abandoned.

Defining the threshold for liability requires care. The original common law offence was notoriously vague. “Wilfully neglecting or misconducting oneself” gave little guidance on what conduct crossed the line. That vagueness was precisely why New Zealand abolished it.

But the current gap is untenable. Institutional cover-ups are low-detection activities conducted behind closed doors. The principled response is simple: penalties severe enough to make the expected cost of omission prohibitive.

No doubt many public servants resist our system’s perverse incentives, choosing transparency over self-protection. But a system that relies on individual virtue rather than structural accountability is designed to fail. Those who do the right thing deserve an architecture that punishes those who do not.

The objection is predictable: officials will become too cautious. The response: they should be cautious about burying serious complaints.

Until the cost of cover-up exceeds the cost of exposure, the architecture will produce the same outcome. Different names. Same incentives. Same rational choice. Same result.

This column was first published in the NZ Herald on 20 November 2025. It was sourced from Roger Partridge's substack Plain Thinking