28 February 2024

The New Zealand Council for Civil Liberties (NZCCL) is disturbed by the Ministry of Justice’s strange and secretive approach to open government and the Official Information Act, and is calling on it to consult the public on its proposals regarding the drafting of laws that oust the OIA, rather than five civil society organisations.

“This secretive consultation on secrecy clauses highlights the Ministry of Justice’s strange failure to understand that since the OIA is a law that provides rights to all of us, the public as a whole should be consulted whenever work is done that affects its operation and our rights. Consultation with only a few cherry-picked organisations is not only completely inappropriate for an Open Government Partnership commitment, but also likely to mean the Ministry doesn’t hear from individual experts and other organisations it didn’t favour,” says NZCCL Deputy chairperson Andrew Ecclestone.

“The Ministry’s bizarre thinking about who will be interested in laws that affect our right to information, and its conflict of interest regarding administration of the OIA, also demonstrate why it would be completely improper for the Ministry to conduct the review of the OIA that the National-led Government has committed itself to,” added Mr Ecclestone.

On 23 February the Ministry of Justice (MOJ) initiated a 3 week long consultation on improving scrutiny of proposed laws that exempt information or agencies from the OIA. But the only non-government organisations being consulted besides the Council are:

• The Taxpayers Union
• Environment and Conservation Organisations of NZ
• Transparency International NZ
• Trust Democracy

By not consulting the public, the MOJ options on how proposed laws containing secrecy provisions should be scrutinised excludes the following:

• The Law Commission
• The Law Society
• The Media Freedom Committee of the News Publishers’ Association
• The Public Service Association
• Amnesty International NZ
• Members of Parliament and officials in the Office of the Clerk
• Interested members of the public, including practising lawyers, academics, and all those who submitted to the Ministry’s 2019 consultation on the need for a review of the OIA.

The Council further notes that the MOJ project plan for the commitment indicates it does not intend any later public consultation or even ‘targeted engagement’ with those interested in how proposed legislation is developed. This seems to be inconsistent with DPMC guidance on public engagement. It also highlights the last government’s error in rejecting Trust Democracy’s proposal for an Open Government Action Plan commitment to develop all-of-government minimum standards for public consultation.

The MOJ’s strangely limited consultation follows the Council’s 2021 advice to the Minister for Public Services (Chris Hipkins) on the large number of laws containing provisions overriding the OIA. Instead of following the Council’s suggestion that all such clauses should be reviewed, and unjustifiable secrecy clauses repealed or amended, the Labour government adopted a weak commitment in its Open Government Action Plan merely to improve scrutiny of future proposals to weaken the public’s right to information.

In a 5 December 2023 meeting to provide a report on progress with Action Plan commitments, the MOJ advised it would only be conducting ‘targeted engagement’. At that meeting the Council’s Deputy Chair, Andrew Ecclestone, urged the Ministry to consult the public as whole, reminding the Ministry that a limited approach would be out of step not only with the ethos of the Open Government Partnership but also the DPMC guidance on public engagement. The Council highlights that an unpublished consultation of cherry-picked organisations is also out of step with the OIA itself, which states that its purpose is to ‘increase progressively the availability of official information to the people of New Zealand to enable their more effective participation in the making and administration of laws and policies.’

The Ministry said at the meeting it would consider the Council’s advice that the public should be consulted, but has now gone ahead with its unpublicised and limited consultation.

To overcome the Ministry’s secretive approach, the Council has published the consultation document on its website and has written directly to some individuals and organisations it thinks the Ministry should be consulting.

“It is sad and strange that more than 40 years after the OIA was passed, the Ministry of Justice still fails to grasp that government secrecy generates more work and distrust than openness. The Ministry’s failure to be open regarding work on an open government commitment and the OIA itself reinforces why any review of the OIA must be conducted by independent experts, not the Ministry,” said Mr Ecclestone.