NZ Council for Civil Liberties

Submission: Fast-track Approvals Bill

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About the New Zealand Council for Civil Liberties

  1. The New Zealand Council for Civil Liberties (‘the Council’) is a voluntary, not-for-profit, organisation which advocates to promote human rights and maintain civil liberties.
  1. We wish to make an oral submission to the Committee.

Summary

  1. The Fast-track Approvals Bill states that its purpose is to speed up the “decision-making process that facilitates the delivery of infrastructure and development projects with significant regional or national benefits.”
  1. The Council believes that in a democracy significant infrastructure and development projects require opportunities for public participation if they are to have legitimacy. This is what the National government committed New Zealand to in 1992, when it signed the Declaration [PDF] at the Rio Earth Summit. No government has subsequently repudiated this commitment, but this bill removes those participation opportunities for projects that meet its criteria, and is therefore undemocratic and contrary to our international commitments, thereby harming our country’s reputation and credibility in future negotiations.
  1. From a civil liberties perspective, the aspect of the bill that concerns us most is the secrecy clause, clause 29. As drafted, it ousts the Official Information Act 1982 (the OIA). The Council recommends that clause 29(4) be removed from the bill. Alternatively, it must be amended by adding a new sub-clause 29(5) that states “Nothing in this section limits the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987.”

Background: Open Government

Political parties’ commitments to open government

  1. Prior to the 2023 general election representatives of all the political parties now in Parliament were asked about their support for open government. All parties responded positively, with ACT stating that it:

“is concerned at the erosion of the Official Information Act in recent years, with a culture of secrecy and impunity becoming apparent in the public service and ministers’ offices. The long-standing review by the Ministry of Justice needs to be accelerated and the OIA given teeth.

  1. New Zealand First and the National Party also stated their support for open government, with the National Party expressing its pride in taking New Zealand into the international Open Government Partnership.1Parliamentary parties express support for the OGP, Transparency International, 4 October 2023. https://www.transparency.org.nz/blog/parliamentary-parties-express-support-for-the-ogp
  1. The Council welcomes the commitment of all our political parties to open government, and is therefore deeply concerned by a bill that is contrary to the commitments made before the election. At a time when trust in political parties, their leaders and our entire democratic system is falling, going back on commitments to open government cannot do anything except make the situation worse.2New Zealand broken and in decline – new survey, Newsroom, 18 April 2024. https://newsroom.co.nz/2024/04/18/new-zealand-broken-and-in-decline-kiwis-say/ We do not believe MPs of any party wish to do this.

New Zealand’s Official Information Act is a reaction to development secrecy

  1. New Zealand’s progress on open government over the last four decades started in response to public anger over the secrecy of the Muldoon government’s ‘Think Big’ projects.
  1. This is made clear in the second paragraph of the Danks Committee’s report that led to the OIA being passed in 1982:3Towards Open Government: General Report, Committee on Official Information, 1980. Page 5. https://www.ombudsman.parliament.nz/resources/towards-open-government-danks-report

There is a growing desire in various sections of the community for fuller information about the policies and activities of the Government. And there is a growing recognition by the Government itself of the need to take the public into its confidence, especially when making decisions that affect large numbers of people. These developments are partly due to the changing climate of opinion throughout the Western world, but they arise also from the changing role of government in New Zealand. For example, the large-scale development of natural resources is involving the Government even more deeply in the life of the people, and increasing the need for public understanding and co-operation.

[emphasis added]
  1. In other words, clause 29 of the bill, by not permitting disclosure under the Official Information Act of information about the projects proposed for fast-track approval, is taking us back into the dark days of Muldoon and the secrecy of the Official Secrets Act 1951.

New Zealand’s international commitment to openness and public participation on environmental issues

  1. In 1992, New Zealand’s National Party government, along with many other countries, participated in the Rio Earth Summit. The Summit concluded with a Declaration that New Zealand signed up to.4United Nations Conference on Environment and Development, Rio de Janeiro, Brazil, 3-14 June 1992, https://www.un.org/en/conferences/environment/rio1992
  1. Principle 10 of the Declaration states:

Environmental issues are best handled with participation of all concerned citizens, at the relevant level. At the national level, each individual shall have appropriate access to information concerning the environment that is held by public authorities, including information on hazardous materials and activities in their communities, and the opportunity to participate in decision-making processes. States shall facilitate and encourage public awareness and participation by making information widely available. Effective access to judicial and administrative proceedings, including redress and remedy, shall be provided.

  1. The policy commitment made at the Summit has not been repudiated by any New Zealand government and the Ministry for the Environment confirmed it was still government policy in 2022.
  1. The Council, and other organisations, continue to advocate for New Zealand to sign up to the UN’s Aarhus Convention, which implements Principle 10 of the Rio Declaration and strengthens people’s rights to participation, access to information, and access to justice on environmental issues.5Submission: Open Government Action Plan, NZCCL, 8 August 2021. https://nzccl.org.nz/submission-open-government-action-plan/ . The Aarhus Convention can be found here: https://unece.org/environment-policy/public-participation/aarhus-convention/introduction

International and domestic human rights law

  1. All of our political parties would say that, in addition to their commitment to open government, they are committed to freedom of expression.
  1. Our right to freedom of expression is deeply connected to open government and our right to information, both in international human rights law, the New Zealand Bill of Rights Act 1990 and the Official Information Act 1982.
  1. The right to freedom of expression is recognised in international law through Article 19 of the Universal Declaration of Human Rights (UDHR) 1948 and Article 19 of the International Covenant on Civil and Political Rights (the ICCPR) 1966. Article 19(2) of the ICCPR states that:6Universal Declaration of Human Rights, United Nations, 1948. https://www.un.org/en/about-us/universal-declaration-of-human-rights International Covenant on Civil and Political Rights, United Nations, 1966. https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

  1. The United Nations’ Human Rights Committee has said that Article 19 of the ICCPR

embraces a right of access to information held by public bodies. Such information includes records held by a public body, regardless of the form in which the information is stored, its source and the date of production.7Human Rights Committee (102nd session, Geneva, 11-29 July 2011) General comment No. 34: Article 19: Freedoms of opinion and expression. CCPR/C/GC/34 https://www2.ohchr.org/english/bodies/hrc/docs/gc34.pdf

  1. The Committee continued that this meant that,

States parties should make every effort to ensure easy, prompt, effective and practical access to such information. States parties should also enact the necessary procedures, whereby one may gain access to information, such as by means of freedom of information legislation.

  1. The Committee also stated that any restrictions on the right to information set out in Article 19(2) should be limited to those permitted under Article 19(3).
  1. In New Zealand, the ICCPR is given effect through the New Zealand Bill of Rights Act 1990. Section 14 of the Act guarantee the right of people to seek, receive, and impart information in the same language as the Covenant:

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.

  1. To be consistent with international law therefore, any interpretation of section 14 of the NZ Bill of Rights Act must view it as encompassing the public’s right to access information held by public bodies, and that any restriction on this right requires an analysis to determine whether the restriction constitutes a “justified limitation” in terms of section 5 of the Act.
  1. This is not just the Council’s interpretation of the connection between international human rights law, the NZ Bill of Rights Act and our rights under the Official Information Act. In his submission on the Civil Aviation Bill in 2021, the Ombudsman told MPs that:8Ombudsman submission to the Transport and Infrastructure Committee on the Civil Aviation Bill, 26 November 2021. Footnotes omitted. https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/53SCTI_EVI_115765_TI2218/chief-ombudsman

Successive Ombudsmen have considered draft legislation containing clauses which seek to oust, suspend or otherwise limit the application of the OIA, and have consistently observed:

  • The courts have long recognised the OIA as being ‘constitutional’ in nature. In addition, the OIA is one of the vehicles by which New Zealanders may exercise their fundamental freedom to seek and receive information, as enshrined in section 14 of the New Zealand Bill of Rights Act 1990. It follows that the application of the OIA, as a constitutional measure which reflects fundamental freedoms, should not be curtailed lightly.

…

  • Where it is proposed that Parliament legislate for a specific class of information to be exempt from the application of the OIA, there ought to be a substantive and principled justification, with express consideration of the impact on the constitutional right to information. This is particularly relevant where, as is the case here, there already appears to be grounds within the OIA capable of protecting the relevant interests.

In circumstances where the OIA already appears to protect the interests identified within the Bill as warranting protection, there does not seem to be a sufficient justification from creating an exemption, even a limited and time-bound one, from the OIA regime. The Chief Ombudsman therefore would suggest removing clause 199 from the Bill.

  1. In other words, the OIA creates mechanisms to give practical effect to part of the state’s obligations under Article 19 of the Covenant and section 14 of the Act, and clauses that oust the OIA need to be justified under section 5 of the NZ Bill of Rights Act.
  1. No such justification has been included in the Attorney-General’s Bill of Rights Act Compliance Report on this Bill.9Consistency with the New Zealand Bill of Rights Act 1990: Fast-track Approvals Bill, Hon Paul Goldsmith, Acting Attorney-General, 1 March 2024. https://www.justice.govt.nz/assets/Documents/Publications/20240313-Fast-track-Approvals-Bill.pdf This is a significant, albeit consistent, failing of all governments conducting Bill of Rights Act vetting of bills, and is something the Council is currently engaging with the Ministry of Justice about.10Secrecy clauses that override the Official Information Act: Submission to the Ministry of Justice on Commitment 7 of New Zealand’s 2023-24 Open Government Partnership National Action Plan, NZCCL, 17 March 2024. https://nzccl.org.nz/secrecy-clauses-that-override-the-official-information-act/
  1. The Ombudsman has also published guidance for departments on when to engage with him on law reform proposals. In relation to the OIA and LGOIMA, the Ombudsman says this:11Guidance on when to engage the Ombudsman in law reform proposals, Office of the Ombudsman, 18 August 2022. https://www.ombudsman.parliament.nz/resources/guidance-when-engage-ombudsman-law-reform-proposals

If changes to the OIA/LGOIMA, exemptions from the OIA/LGOIMA, or the establishment of alternative official information regimes are under consideration, the Ombudsman should be consulted. The Ombudsman’s view is that the OIA and LGOIMA should apply as broadly as possible as a general regime guiding official information practices across the public sector. The courts have long recognised the OIA as being ‘constitutional’ in nature.12Commissioner of Police v Ombudsman [1988] 1 NZLR 385 In addition, the OIA is one of the vehicles by which New Zealanders may exercise their fundamental freedom to seek and receive information, as enshrined in section 14 of the New Zealand Bill of Rights Act 1990. It follows that the application of the OIA, as a constitutional measure which reflects fundamental freedoms, should only be curtailed where there is clear justification.

  1. As the Ombudsman also points out in that guidance, the Cabinet Manual states (in paragraph 7.45 of the 2023 edition) that, “Officers of Parliament should be consulted in their areas of interest as appropriate”. Has the Ombudsman been consulted in the course of this provision being developed? Members of the Committee should ask about this, as well as what the Ombudsman thinks about the effects of clause 29.

Clause 29

  1. Clause 29 of the bill is a provision that departs from our right to information under section 14 of the NZ Bill of Rights Act.
  1. The clause is framed as a provision that empowers agencies to share information with others who are performing or exercising their functions, duties or powers under the bill – clause 29(1) – and with regulatory agencies in 29(3).
  1. However, this is coupled with a requirement in 29(4) that a person or agency that receives information under “must not disclose the information to any other person or organisation” except under the specified circumstances.
  1. Clause 29(4)(e) states that one of the specified circumstances is when

(e)    the disclosure is required by another [sic] legislation

  1. The Council does not believe that the OIA requires the disclosure of information as the OIA is a mechanism for weighing competing public interests in disclosure and non-disclosure.13The only information ‘required’ to be disclosed by the OIA is the Directory of Official Information, published by the Ministry of Justice in accordance with section 20. Therefore clause 29(4)(e) does not permit the disclosure of information in response to an OIA request.

The Council recommends that clause 29(4) is deleted from the bill. The OIA provides more than adequate protection for circumstances when it is not in the public interest for a minister or department to disclose information.

  1. We set out our reasoning for this interpretation of the clause below.
  1. In a 2014 response to an OIA complaint about the Environmental Protection Authority’s refusal to disclose the number of emissions units surrendered by a company, the then Deputy Ombudsman told the requester that:14This 2014 opinion from the Deputy Ombudsman is unpublished by the Office of the Ombudsman, but was reproduced by the complainant on the FYI website: https://fyi.org.nz/request/emission_units_surrendered_by_no#comment-181

I am not persuaded that the OIA is an Act that provides for the disclosure of information in s 99(2)(a) of the Climate Change Response Act. The OIA confers a right to request official information and requires that such requests be processed in accordance with its provisions, but those provisions do not provide for the disclosure of information under the CCRA (or any other Act that imposes restrictions on the availability of official information). Instead, section 52(3)(b)(i) of the OIA provides that nothing in that Act derogates from any provision which is contained in any other Act which imposes a prohibition or restriction in relation to the availability of official information. Section 99 is such a section.Accordingly, the OIA does not override the restrictions imposed by section 99 of the CCRA and it would be contrary to that section for the requested information to be made available to you. Consequently, section 18(c)(1) of the OIA provides a reason to refuse your request on that basis.

[emphasis added]
  1. In his July 2019 submission to the select committee on the secrecy clause in the Climate Change Response (Zero Carbon) Amendment Bill, the current Chief Ombudsman referred to this statement by the Deputy Ombudsman, and stated:15Climate Change Response (Zero Carbon) Amendment Bill, Office of the Ombudsman, 15 July 2019. https://www.parliament.nz/en/pb/sc/submissions-and-advice/document/52SCEN_EVI_87861_EN13260/office-of-the-ombudsman

7.  I reserve my position as to whether I agree with that [2014] interpretation. However, in my view, it is essential to remove any potential ambiguity, and confirm that the presumption of availability in the OIA is intended to apply to all information held by the Commission.

8.  That does not mean that information will necessarily be released when it is requested under the OIA. The Act provides good reason for withholding where the release of official information would be damaging to the overall public interest. It simply means that, except where there are conclusive reasons for withholding requested information, the harm in release will need to be weighed against the public interest in disclosure—rather than relying on a very broad confidentiality provision.

9.   I therefore support an amendment to permit disclosure ‘as provided under this Act or any other Act, including the Official Information Act 1982’.

[emphasis added]
  1. The Chief Ombudsman went on to cite section 66G of the Reserve Bank of New Zealand Act 1989, which states:

66G     Confidentiality of information or documents

(1)   This section applies to information or documents supplied or disclosed to, or obtained by, the Bank for the purposes of, or in connection with, the exercise of powers conferred by this Part.

(2)   The Bank, any officer or employee of the Bank, or a person appointed under section 66E(2) must not publish or disclose any information or documents to which this section applies except—

    (a)   with the consent of the person to whom the information relates or of the person to whom the information is confidential; or

    (b)   to the extent that the information is available to the public under any Act, including the Official Information Act 1982, or is otherwise publicly available; …

[emphasis added]
  1. Since the Chief Ombudsman (and predecessors) have said that the OIA does not “provide for” the disclosure of information, it is very unlikely the Ombudsman would agree that the OIA “requires” it. Unless the Ombudsman says that the OIA “requires” disclosure, then clause 29(4) of the bill effectively ousts the public’s right to information under the OIA. Even then, we think the law should state this plainly to avoid misinterpretation by agencies in future, or a change of interpretation by a future Ombudsman.
  1. The withholding grounds in the OIA provide more than adequate protection for information held by public authorities, so clause 29(4) is superfluous.
  1. If the government is unwilling to accept the removal of clause 29(4) then the clause must be amended by adding a new sub-clause 29(5) that states “Nothing in this section limits the Official Information Act 1982 or the Local Government Official Information and Meetings Act 1987.”

Conclusion

  1. While it is plain that the intent of the bill is to remove public participation from the planning process for major projects, clause 29 will also function to undermine the other fundamental purpose of the OIA: “to promote the accountability of Ministers of the Crown and officials”. The likelihood of post-decision disclosure to facilitate accountability is key to discouraging corruption, so without amendment, clause 29 will create circumstances allowing corruption to flourish.
  1. Going down this slippery and undemocratic slope may have been started by the previous government’s COVID-19 Recovery (Fast-track Consenting) Act 2020, but this bill worsens the situation. As a radical measure it is likely to provoke a radical response, and the Council anticipates that these responses may also trample peoples’ rights underfoot.
  1. This bill must be amended to either remove clause 29(4), or amended to make clear that it does not override people’s rights to information that are guaranteed both domestically in New Zealand’s Bill of Rights Act 1990 and the OIA, but also by the country’s ratification of the International Covenant on Civil and Political Rights.
  1. Denying people’s rights to participate in environmental decision-making, and denying them the information they need in order to participate meaningfully, is a clear contravention of the commitments that New Zealand’s National Party government made at the 1992 Rio Earth Summit when it signed up to Principle 10 of the Rio Declaration. It is also contrary to the country’s obligations under the ICCPR. The impacts of this legislation on the country’s credibility in future international negotiations are obvious.
  1. In conclusion, the Council believes the bill is a dangerous attack on our democratic rights and civil liberties and will not only create circumstances for corruption to flourish but damage New Zealand’s reputation and credibility overseas. The Council therefore opposes the bill and does not think it should proceed.