Submission: Civil Aviation Bill

About the New Zealand Council for Civil Liberties

1. The New Zealand Council for Civil Liberties is a voluntary, not-for-profit organization which advocates to promote human rights and maintain civil liberties.

2. We wish to make an oral submission before the Committee.

Summary of Recommendations

3. The Council opposes the secrecy provisions in the Bill, clauses 199 and 456 as unjustifiable limitations of our right to information and our freedom to impart that information to others, and recommends they be removed from the Bill.

Introduction

4. The Council believes that open government is good in and of itself, in addition to being good for democracy, and that it is an essential component to defending and enlarging civil liberties. Open government has three components: access to information, public participation in policy development, law making, and public administration, and accountability. These involve seeking information, receiving it, and imparting information to others, which are guaranteed by section 14 of the New Zealand Bill of Rights Act 1990 (NZBORA):

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

5. A key part of implementing this right in Aotearoa New Zealand is the Official Information Act 1982, the purposes of which are to increase the availability of official information so that people can participate in decision-making and hold ministers and officials to account.

6. Aotearoa New Zealand has been a member of the Open Government Partnership (OGP) since 2013. Access to Information, public participation, and accountability are core values of the OGP to which every member country agrees upon joining the partnership. As this Bill’s secrecy provisions work against those key areas, the Council believes those clauses to be contrary to government policy, as well as undermining people’s rights.

Clause 199

7. Clause 199 of the Bill gives the Minister the power to suppress “the publication or communication of all or any information, document, and evidence which is given to, or obtained by the Ministry” under this subpart of the Bill, which concerns applications for an international air carriage authorisation. Although this is a temporary power, applying until 20 working days after a decision is made or an application is withdrawn, it is wide-ranging, as it applies not just to participants in the proceedings and officials, but also to the public and media. There are criminal penalties, with fines up to $7,500 for individuals and $25,000 for others.

8. This goes beyond simply exempting information from the Official Information Act 1982 (OIA), and enables the Minister to issue a gagging order that also binds the media (amongst others).

Is the power necessary?

9. The existing Civil Aviation Act 1990 does not contain a similar power.  Nor do any of the supporting documents cite any instance where it would have been useful.

10. Clause 199 clearly limits our right to freedom of expression from NZBORA section 14.  Paragraphs 26-30 of the Attorney General’s NZBORA Section 7 Compliance report (section 7 report) purport to justify this limitation: 

“26. This restriction prima facie limits the freedom of expression of parties to these decisions.

27. However, we consider this restriction can be justified in terms of s 5 of the Bill of Rights Act.

28. Restricting the publication or disclosure of sensitive commercial information in the course of decision making serves the important objective of providing decision makers with the opportunity to make decisions free from external influence or pressure.

29. The information that may be restricted is only that which the Minister considers would prejudice decision making on the application, and the information is subject to the Official Information Act 1982 following the expiry of the restriction.

30. For these reasons we consider that any limits within the Bill on the right to freedom of expression caused either by required or restricted speech are justified in terms of s 5 of the Bill of Rights Act.”

11. Paragraph 26 incorrectly states that Clause 199 only applies to the parties of the agreement.  Possibly this error stems from the report being done on an earlier draft, as clause 199 is referred to as clause 197 in the report.

12. Paragraph 28 purports to provide the benefit which would justify the limitation of NZBORA section 14. The Council does not believe paragraph 28 describes a benefit at all. Active participation before decisions are made is a fundamental element of democracy.  And regardless of Parliament’s desire to appear to support democracy, decisions made in secret are worse than decisions made openly. 

13. The report’s assessment hinges on the argument in paragraph 29 that it’s okay to do something wrong if it’s only being done wrong for a limited period. We reject this argument.

14. Te Tiriti o Waitangi binds the crown to co-governance. Co-governance can not possibly occur if the matter being governed is hidden by censorship.  Therefore, the Council believes if clause 199 was ever used it would be a treaty violation.

15. Until now media suppression powers have been reserved for the courts to protect the rights of victims and defendants. Unlike court suppression orders, clause 199 has neither noble calling nor harm reduction justification; it applies solely to commercial contracts. This information is already protected by OIA section 9(2)(b)(ii). However, in the OIA withholding must be balanced against the public interest in release. This bill contains no equivalent balances. 

16. Previous legislation which has censored the press has required judicial intervention. The Council firmly believes in the value of checks and balances, and in the wisdom of the judiciary.

Clause 456

17. Section 4(a) of the OIA states the purpose of:

​​to increase progressively the availability of official information to the people of New Zealand in order—

(i) to enable their more effective participation in the making and administration of laws and policies; and

(ii) to promote the accountability of Ministers of the Crown and officials,—

and thereby to enhance respect for the law and to promote the good government of New Zealand:

18. Clause 456 prohibits the Civil Aviation Authority (CAA) from publishing or disclosing information except in the limited circumstances that it specifies. These circumstances do not include release in response to a request under the Official Information Act.

19. The clause has broad application. It applies to any information or documents obtained when the CAA performs or exercises any function, duty, or power under civil aviation legislation. This includes providing advice to its Minister and other agencies, regulation of the civil aviation system, and management of the Aviation Security Service. 

20. The CAA may suggest that clause 456(2)(d)(i) permits that information may be disclosed for the purpose of performing functions or duties imposed under ‘any other Act’. It may also point to clause 456(2)(d)(v), which says that information may be disclosed if ‘required or authorised by law’.

21. However, the Ombudsman’s interpretations of similarly drafted clauses in other legislation indicates that, as drafted, this provision would trigger refusals of OIA requests under section 18(c)(i) of that Act, as being ‘contrary to the provisions of a specified enactment’. As such, this clause gives the CAA its own Official Secrets Act – a piece of legislation repealed by the OIA in 1982.

22. The OIA has sufficient withholding grounds to protect information that the CAA may be concerned about being made public. What this clause signals is that the CAA trusts neither the OIA’s legal framework of balancing public interests in openness and other issues , nor the Ombudsman’s judgment as to where the balance lies in an particular case.

23. The Council recommends the removal of clause 456 from the Bill altogether. If the Committee does not wish to protect the public’s right to information in this way, it should at least recommend adding a subsection (4) stating:

(4) Nothing in this section limits any obligations under the Official Information Act 1982 or the Privacy Act 2020.