Media release: Open Government – Sham consultation on yet another weak plan
The New Zealand Council for Civil Liberties today condemned the government for yet another in a series of weak National Action Plans produced as a member of the international Open Government Partnership (the OGP). 1The Open Government Partnership was launched in 2011. New Zealand joined in late 2013 and has produced 3 weak Action Plans so far, independently assessed as delivering ‘marginal’ improvement to open government. See www.ogp.org.nz. The independent assessments can be found here: https://www.opengovpartnership.org/members/new-zealand/
New Zealand pays $250,000 per year to be a member of the Open Government Partnership. But after four failed efforts to produce Action Plans that provide real benefits to the public from greater openness, the Council concludes that the New Zealand government is like a person who pays for their gym membership, but then wonders why their fitness doesn’t improve when they don’t actually do any exercise at the gym.
Unambitious Plan
In March 2020, the Minister for the Public Service, Chris Hipkins, told officials that he wanted a “much more ambitious plan” than the last one.2The 20 March 2020 briefing, with Minister Hipkins’ comments on page 2: https://www.publicservice.govt.nz/assets/DirectoryFile/Report-Open-Government-Partnership-Update.pdf
In spite of the Minister’s instruction to officials, the ‘draft’ Action Plan launched today for 2 weeks of public consultation is yet another weak action plan stuffed full of pre-existing or already planned programmes of work by government departments.3The draft 4th National Action Plan can be accessed here: https://ogp.org.nz/new-zealands-plan/fourth-national-action-plan/
Only two of the eight commitments in the plan are pieces of work that would not have taken place without civil society input, and one of these is so weak as to be a joke.
Sham consultation
The ‘draft’ Plan was approved by Cabinet on Monday 21 November. Based on the experience of previous Action Plans, the Council has no confidence that any substantive improvements will be made to the plan as a result of this 2 week consultation.4The consultation runs from 25 November to 9 December 2022. Similar previous consultations, required by the OGP’s rules, have not resulted in new commitments being added, only minor tidying up of wording and punctuation.
Ministerial failures of leadership
Two failures by Ministers to inject ambition into the country’s Action Plan stand out.
First, Ministers have rejected civil society calls for exploration of the implications of New Zealand signing up to the UN Convention on access to information, rights to participation and access to justice on environmental matters (the Aarhus Convention).
Condemning Ministers’ timidity, the Council’s deputy chair, Andrew Ecclestone, said “A government that is not even open to exploring the possibility of strengthening the public’s rights on environmental issues when we are faced with a climate crisis, chronic freshwater pollution and major challenges on biodiversity is not a government that can be taken seriously on open government. Any claims that it wants the public and civil society to help with environmental issues should be viewed with scorn.”
Mr Ecclestone highlighted the fact that in the two year ‘co-creation’ of the Plan, Ministry for the Environment officials refused to meet with the civil society groups to discuss the possibility of a commitment to co-produce a National Interest Assessment of the benefits and implications that would flow from signing up to the Aarhus Convention. Instead, officials provided wholly inaccurate and misleading advice to Ministers after the commitment development period. The Council concludes that the Ministry for the Environment has acted in bad faith. Does the Public Service Commissioner, Peter Hughes, think the Ministry for the Environment acted with the ‘spirit of service’, or that its chief executive was complying with his legal obligation to ‘foster a culture of open government’?5Section 13 of the Public Service Act requires public service leaders to ensure their departments act “with a spirit of service to the community”. Section 12(1)(d) requires chief executives to ‘foster a culture of open government’.
Second, Ministers rejected the proposal for a formal review of existing secrecy clauses that override the Official Information Act. Responding to an NZCCL briefing sent to him in December 2021 which highlighted that more than 80 such clauses are on the statute book, with more than 20 added by the government since October 2017, Minister Hipkins said that he “hadn’t realised how widespread this practice has become.”6The December 2021 briefing to the Minister can be found here: https://nzccl.org.nz/open-government-briefing-to-minister-part-one-secrecy-clauses/ The Minister’s response was provided by officials in an email on 19 July 2022.
In spite of this, commitment 7 in the Action Plan will not lead to any work to review these clauses and make recommendations for their repeal or amendment. Instead the Ministry of Justice – which also failed to participate in Action Plan development – will review its guidance to officials.
Council Deputy Chair Andrew Ecclestone said, “This commitment, from a government whose former Minister for Open Government promised it would be ‘the most open and transparent government ever’ is pathetic. No official secrecy that this government and its predecessors have enacted will be removed. This week alone, the government has introduced a new bill weakening our rights under the Local Government Official Information and Meetings Act. When will its promotion of official secrecy stop?”
Analysis of the Action Plan commitments
| # | What the commitment will do | Analysis |
| 1 | Community engagement tool | Tools for officials; would have happened anyway. Relevant TKM officials didn’t discuss with CSOs, and rejected CSO proposals for strengthening. |
| 2 | Research deliberative processes | Tools for officials; would have happened anyway. Relevant TKM officials didn’t discuss with CSOs and rejected CSO proposals for strengthening. |
| 3 | Multi-channel approach for public services | A new piece of work, responding to the Citizens Advice Bureau advocacy on this topic |
| 4 | National Counter Fraud strategy | Tools for officials. Would have happened anyway as SFO already funded for this work. |
| 5 | Transparency of beneficial ownership | Limited public access to beneficial ownership info, would have happened anyway, MBIE officials didn’t discuss with CSOs and rejected CSO proposals for strengthening. |
| 6 | Transparency of government procurement | Limited public access to procurement data. A pre-existing MBIE work programme. CSOs proposals for strengthening were rejected. |
| 7 | Scrutiny of proposed new secrecy clauses overriding the OIA | Tools for officials only. Refused to have a programme to review and then repeal or amend the 80+ official secrecy provisions. MOJ officials didn’t discuss it with CSOs. |
| 8 | Implement Review of Government Algorithms | Tools for officials, would have happened anyway, Stats NZ officials rejected CSO proposals for strengthening. |
- 1The Open Government Partnership was launched in 2011. New Zealand joined in late 2013 and has produced 3 weak Action Plans so far, independently assessed as delivering ‘marginal’ improvement to open government. See www.ogp.org.nz. The independent assessments can be found here: https://www.opengovpartnership.org/members/new-zealand/
- 2The 20 March 2020 briefing, with Minister Hipkins’ comments on page 2: https://www.publicservice.govt.nz/assets/DirectoryFile/Report-Open-Government-Partnership-Update.pdf
- 3The draft 4th National Action Plan can be accessed here: https://ogp.org.nz/new-zealands-plan/fourth-national-action-plan/
- 4The consultation runs from 25 November to 9 December 2022.
- 5Section 13 of the Public Service Act requires public service leaders to ensure their departments act “with a spirit of service to the community”. Section 12(1)(d) requires chief executives to ‘foster a culture of open government’.
- 6The December 2021 briefing to the Minister can be found here: https://nzccl.org.nz/open-government-briefing-to-minister-part-one-secrecy-clauses/ The Minister’s response was provided by officials in an email on 19 July 2022.