Submission: List of Issues Prior to Reporting for Aotearoa New Zealand’s 2025 Review under the International Covenant on Civil and Political Rights

January 26, 2025

New Zealand is a signatory to, and has ratified, the International Covenant on Civil and Political Rights. This is a cornerstone of international human rights law. It lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.

Every State has their performance in meeting these obligations reviewed from time to time by the United Nations’ Human Rights Committee, based in Geneva, Switzerland. This year, it is the turn of Aotearoa New Zealand to be reviewed again (the last time was in 2015-2017), along with a number of other countries. The first stage of the review is when the Human Rights Committee asks people to write to it, telling them what issues relating to the Covenant they think the Committee should ask the government of New Zealand about.

The Council responded to this opportunity, as did a number of other civil society groups and law firms. These submissions have been published by the Human Rights Committee.

Submitted on 6 January 2025

About the New Zealand Council for Civil Liberties

Founded in 1952, 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.

The Council enjoys the flexibility of not having defined what we mean by Human Rights. Of the nine core human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) has been the Council’s primary focus. Since the Council successfully campaigned to have the ICCPR legislated in Aotearoa New Zealand as the New Zealand Bill of Rights Act (BORA) in 1990, our focus has been on defending BORA.¹

In addition to our day to day advocacy on civil liberties and human rights issues, we collaborate periodically with other non-government organisations on issues of mutual interest. We appear before Parliamentary committees to advocate on BORA issues in relation to proposed legislation roughly a dozen times a year.

This submission by the Council focuses on a limited number of articles in the ICCPR that have been of particular concern to us in recent years.

We are happy to respond to queries from the Human Rights Committee (the Committee).

Freedom of Information: Article 19

ICCPR article 19 is enacted as section 14 of BORA. The Council has concerns about New Zealand’s adherence to the requirements of article 19 in relation to freedom of information – people’s right to seek and receive information held by state agencies.

New Zealand’s freedom of information laws are in several statutes:

This submission mainly concerns the Official Information Act 1982 (the OIA), although many of the issues that apply to that law also apply to the Local Government Official Information and Meetings Act 1987 (the LGOIMA).

Unjustified restrictions on freedom of information

In 2011 the Human Rights Committee stated that article 19 meant, inter alia, that:²

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.

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).

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.

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:³

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 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 in new legislation that oust or limit the right to seek, receive and impart information under the OIA need to be justified under section 5 of the NZ Bill of Rights Act.

Unfortunately, the Attorneys-General under successive governments have consistently failed to address BORA section 14 and article 19 compliance in the reports on new legislative proposals that they are required to produce under section 7 of BORA.

The absence of BORA reports on clauses that override the rights in the OIA means that it is harder for Cabinet ministers, members of parliament, the media and the public to scrutinise proposals for secrecy, and to assess whether they genuinely address a gap in the protection against disclosure sometimes needed for official information, or if they are unneeded as existing withholding grounds adequately do the job. The Council’s suspicion is that secrecy clauses are added to legislation unnecessarily, to placate vested interests that have lobbied government to ‘provide certainty’ by avoiding an Ombudsman potentially deciding (on appeal) that the public interest favours disclosure.

In late 2021, the Council provided research on these secrecy clauses to the then Minister for Public Services.⁴ We identified that more than 70 such clauses were on the statute book, and that since the 2017 government took office, more than 25 further clauses had been enacted that restricted the right to information. The number of such clauses has continued to grow.⁵ For example, in 2022, part five of the Data and Statistics Act removed all data held by Statistics New Zealand from the scope of the Official Information Act, contrary to the urging of the Council and the Ombudsman. The Act does not provide for independent review of any decision by the Government Statistician to refuse access to a dataset.

The Council’s briefing to the Minister in 2021 resulted in a commitment to be included in New Zealand’s 4th National Action Plan as a member of the Open Government Partnership. The commitment’s ‘Ambition’ was to “To strengthen the guidance and procedures agencies must follow in relation to the scrutiny of new legislative clauses that propose to override the disclosure requirements of the Official Information Act 1982 in relation to certain information.”⁶

The quality of the work by the Ministry of Justice on this commitment was very poor. In spite of the constitutional and human rights nature of the OIA, the Ministry did not publish its consultation document on scrutinising proposals for secrecy clauses. Instead it sent it only to five civil society organisations with a comment period of three weeks.⁷ The Council has published its response to the Ministry’s consultation on its website and we encourage the Committee to read it.⁸

Following publication of the Ministry’s analysis of the submissions it received, in which it reiterated its commitment to produce strengthened guidance and procedures, the Ministry has now published a single page letter from an official to officials in other departments.⁹ No mention is made of the New Zealand commitment to article 19 ICCPR implemented in section 14 of BORA, and we have no reason to believe that future proposals for legislation that will interfere with the right to seek information under the OIA will be analysed through the lens of BORA justification.¹⁰

The Ministry’s response to our submission included a refusal to adopt our proposal that it maintain a public database of the provisions that override the OIA. The government’s failure to take seriously the monitoring of measures that limit Article 19 rights to information means that there are no authoritative sources for how badly this right is being abused. The Council’s research finds that our right to freedom of information is being overridden by secrecy clauses in new legislation an average of more than three times a year.

We would like the Committee to ask New Zealand the following questions:
- Does New Zealand accept that the Official Information Act (and LGOIMA and the Access to Court Documents rules) implement a key aspect of Article 19 ICCPR?
- If so, why do New Zealand governments not fulfil their section 7 BORA duties and analyse proposals for clauses that will override the rights in the OIA (and related legislation on access to information) for their compatibility with section 14 of BORA and whether the proposal is necessary, justified and proportionate?
- What monitoring and information gathering takes place to track legislation and legislative proposals to interfere with the right to information held by state agencies provided for by section 14 BORA and Article 19 ICCPR?

Lack of public interest override for some exceptions

The OIA (and LGOIMA) contain, like all freedom of information laws, exceptions to the right to information held by agencies within the scope of the law.

Some of these exceptions (‘withholding grounds’) require that in order for ‘good reason’ to exist to depart from the principle of availability set out in section 5 of the OIA, the agency must not only show that a specific withholding ground applies, but also that the public interest in disclosure does not outweigh that in withholding (see sections 9(1) and 9(2) of the OIA, and sections 7(1) and 7(2) of LGOIMA).

However other exceptions (set out in section 6 of the OIA and section 6 of LGOIMA) do not contain a requirement that the agency show that the public interest in withholding outweighs that in disclosure.

We would like the Committee to ask New Zealand when it intends to bring its freedom of information law into compliance with international standards, so that all reasons for withholding information are subject to a public interest override.

Absence of ‘sunset clauses’ for withheld information

It is good practice in freedom of information laws for the legislation to contain time limits on how long some information may be withheld.¹¹ Sometimes these limits are articulated in the public records or archives laws of a country, and in other cases they are set out in the freedom of information law itself. (See, for example, Part VI of the UK’s Freedom of Information Act 2000.)

New Zealand’s OIA and LGOIMA do not contain any such time limits.

We would like the Committee to ask New Zealand when it intends to bring its freedom of information law into compliance with international standards, so that reasons for withholding information – other than about a natural person – lapse after a period of 20 years.

Limitations to the scope of New Zealand’s freedom of information laws

While New Zealand has imperfect freedom of information laws applying to central and local government organisations, with separate rules on access to court documents, there are significant omissions to the scope of organisations caught by the Official Information Act.

The legislature is not covered by the OIA, in spite of this being an expected evolution of the scope of the law by the committee of experts that drafted the OIA in 1980, as well as the recommendation of two separate Law Commission reviews in 1997 and 2012.¹² A bill to amend the institutions and funding of the legislature, the Parliament Bill, is currently being considered by members of parliament. Despite the previous recommendations, the bill does not contain provisions to bring parliamentary institutions (the office of the Clerk, the office of the Speaker, the Parliamentary Service, the Parliamentary Commission, the Parliamentary Corporation) within the scope of the OIA. This is clearly not an accidental oversight, but is likely to result from the proposals for the legislation being developed in secret, over several years, without any public consultation on the scope and nature of the proposals the bill should contain. The Council has published its submission to the relevant select committee considering the Parliament Bill.¹³

Other omissions in coverage of the freedom of information legislation also need addressing. Although one Officer of Parliament, the Parliamentary Commissioner for the Environment, is within the scope of the OIA, neither the Ombudsman nor the Controller and Auditor-General are. The Law Commission recommended in 2012 that these omissions be rectified, stating: “It does not send a satisfactory message if the Ombudsmen, the authority charged with holding other agencies to account under the OIA, are themselves completely exempt from it. We thus recommend that subject to the exceptions we discuss below, the Ombudsmen should be subject to the OIA.” The Law Commission went on, in Recommendation R122 to state:¹⁴

The Offices of Parliament (the Ombudsmen, the Office of the Controller and Auditor-General and the Parliamentary Commissioner for the Environment) should be subject to the OIA by inclusion in Schedule 1. Information relating to any audit, assurance work, inquiry or investigation undertaken by an Office of Parliament should be excluded from the definition of “official information” in section 2 of the OIA.

The Law Commission similarly recommended that the Parliamentary Counsel Office – the agency which drafts government legislation – also be brought within the scope of the OIA.¹⁵

The Council also believes that the Inspector General of Intelligence and Security and the Independent Police Conduct Authority should be brought within the scope of the OIA. The 2023 legislation that created the Inspector-General of Defence ensured that office was added to the Ombudsman’s jurisdiction – and therefore within the scope of the OIA – so there is no good reason for these other two key oversight agencies to remain outside the OIA.

The Council would like the Committee to ask New Zealand when it intends to bring its freedom of information law into compliance with international standards, so that all publicly controlled or majority public-funded organisations are brought within the scope of the OIA or LGOIMA.

The Council would also like the Committee to ask New Zealand when the Ministry of Justice intends to act on Recommendation R121 in its 2012 review of the official information legislation and “convene a working group, including representatives from central and local government, to examine the schedules to the OIA and LGOIMA to eliminate anomalies and bring within coverage organisations with such a relationship to central or local government that they should properly be included.”¹⁶

Interference with privacy: Article 17

ICCPR article 17 is enacted as section 21 of BORA.

Since the last report by Aotearoa New Zealand to the OHCHR under the ICCPR in 2016, there has been a steady erosion of privacy rights by legislation. According to the Attorney General, a politician and member of the cabinet with an inherent bias toward supporting legislation, there have been eight bills introduced since 2015 which are “incompatible with a free and democratic society” in regards to section 21 of BORA:

A number of primary Acts have all been revised, and none for the better:
- Search and Surveillance Act 2012
- Privacy Act 2020
- Data and Statistics Act 2022

In addition to those acts, the Council has publicly opposed erosion of privacy rights through expansion of search powers on numerous occasions:

In 2024 the New Zealand government effectively disestablished (shut down) the office of the Government Chief Privacy Officer.¹⁷ It also cut the funding to Statistics New Zealand, the department that hosts the Government Chief Data Steward, by 7.5 percent.¹⁸ At a time when ever more measures are being enacted that infringe the privacy of people in Aotearoa New Zealand, to deliberately reduce the capability and capacity of sources of expert advice on privacy seems perverse.

We would like the Committee to ask New Zealand to explain the decision to reduce expert capability for providing advice on privacy issues and what steps it will be taking to repeal measures that undermine article 17.

Access to justice: Article 14

ICCPR article 14 is enacted as section 24 of BORA.

The Council’s concerns in relation to article 14 fall into two categories: funding of the court system, access to a jury trial and access to legal aid; and the oversight and accountability of the police.

Funding, Jury Trials, Access to Legal Aid

Since well before the last report to the OHCHR under the ICCPR in 2016, Aotearoa New Zealand has failed to invest in its court system and judiciary. Our court buildings are aging and crumbling. Our Chief Justice, in their 2023 Memorandum to the incoming Attorney General, asked for fifty new judges, to keep pace with an increased workload stemming largely from population increases. Parliament responded by adding one judge, and by adding a series of new, confusing, bills sure to add work to the courts.

The inevitable outcome of this underinvestment falls upon people in Aotearoa. When we reported in 2010, anyone charged with an offence with a potential imprisonment of 3 months could ask for a jury trial. In 2013 we increased that to 2 years. There is currently work underway to change it to 7 years.¹⁹

The Council believes the Committee will be deeply concerned with ordinary people’s ability to get a fair trial. There have been a series of changes to Legal Aid, all of which have reduced access to Justice.²⁰ ²¹ ²² ²³

We ask the Committee to ask New Zealand to explain:
- why the courts continue to see their funding decrease when waiting times for trials continue to increase;
- how fiscal decisions can be a legitimate driver of restricting people’s right to a trial by a jury of their peers; and
- how the changes to legal aid are compatible with article 9.

Oversight of Police

It is the Council’s opinion that there is no meaningful oversight and accountability of the Police in New Zealand. The Independent Police Conduct Authority (IPCA) serves primarily as a mechanism to deter effective oversight, rather than to provide it.

First, the IPCA fails to be effective as its Act prevents it from being a mechanism to uphold human rights. According to section 12 of the Independent Police Conduct Authority Act, the IPCA may only determine if the Police followed their procedures. It may not determine if those procedures are lawful or compliant with our Human Rights commitments.²⁴

Second, the Police are free to ignore the IPCA’s reports and recommendations, and more often than not do not implement them. People are being killed by the Police in Aotearoa, in circumstances which the IPCA, even with their myopic standards, are ruling to have been inappropriate. When neither the officers involved nor the Police as an agency are being held accountable, the description “extrajudicial killings” seems appropriate.

We ask the Committee to ask New Zealand to explain how it is compliant with the ICCPR if the Police, who ought to be the agency most concerned with upholding Human Rights, are not bound to respect Human Rights, and are free to ignore the rulings of the Independent Police Conduct Authority.

1
The New Zealand Bill of Rights Act 1990 can be accessed at: https://legislation.govt.nz/act/public/1990/0109/latest/whole.html
2
Human 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
3
Ombudsman 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
4
Open Government – Briefing to Minister Hipkins, part one: Secrecy Clauses, December 2021: https://nzccl.org.nz/open-government-briefing-to-minister-part-one-secrecy-clauses/
5
A spreadsheet to track the proposed and enacted secrecy clauses can be accessed here: https://docs.google.com/spreadsheets/d/1VCah9StYMX1hmQ3wvNLhWW5TzSlsBrVdk2nNPs5oAlU/edit?usp=sharing
6
New Zealand’s Fourth National Action Plan, NZ Government, 2022. Commitment 7. https://ogp.org.nz/new-zealands-fourth-national-action-plan-2023-2024?e63=78-theme-three-access-to-and-usability-of-public-information
7
Govt’s shadowy work on secrecy clauses criticised, Newsroom, 8 March 2024. https://newsroom.co.nz/2024/03/08/govts-shadowy-work-on-secrecy-clauses-criticised/
8
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/
9
Summary of submissions received, and Letter from Deputy Secretary Policy Ministry of Justice of 12 December 2024, Ministry of Justice, 2024. https://ogp.org.nz/latest-news/commitment-7-ministry-of-justice-consultation
10
Government’s ‘abject failure’ on secrecy clauses, Newsroom, 18 December 2024. https://newsroom.co.nz/2024/12/18/govts-abject-failure-on-secrecy-clauses/
11
There are good reasons for continuing to withhold some information, such as personal information about a natural person.
12
The Public’s Right to Know: Review of the Official Information Legislation, Law Commission, report 125, June 2012. Recommendations R124-R129, pages 346-47. https://www.lawcom.govt.nz/our-work/official-information-act-1982-and-local-government-official-information-act-1987/tab/report
13
Submission: Parliament Bill, New Zealand Council for Civil Liberties, 8 November 2024. https://nzccl.org.nz/submission-parliament-bill/
14
The Public’s Right to Know: Review of the Official Information Legislation, Law Commission, report 125, June 2012. Page 340. https://www.lawcom.govt.nz/our-work/official-information-act-1982-and-local-government-official-information-act-1987/tab/report
15
Ibid, recommendation R123, page 341.
16
Ibid, recommendation R121, page 338.
17
Internal Affairs job cuts will lead to more Kiwis being scammed online, union says, Radio New Zealand, 19 June 2024. https://www.rnz.co.nz/news/national/519992/internal-affairs-job-cuts-will-lead-to-more-kiwis-being-scammed-online-union-says Note that while the job title of Government Chief Privacy Officer technically exists, the post is held by the General Manager Agency Partnerships and Capability. See About Internal Affairs, Department of Internal Affairs: https://www.dia.govt.nz/About-Internal-Affairs—Department-structure—Business-units and the LinkedIn post by the former Government Chief Privacy Officer, confirming the disestablishment of her role and team: https://www.linkedin.com/posts/katrine-evans-4779761a_today-was-my-last-day-as-the-government-chief-activity-7212024517567635456-aq5r/
18
Stats NZ scraps survey gathering key child poverty data, Newsroom, 4 April 2024. https://newsroom.co.nz/2024/04/04/stats-nz-scraps-survey-gathering-key-child-poverty-data/
19
Consultation: Public views sought on improving jury trial timeliness, Ministry of Justice, 2024. https://www.justice.govt.nz/about/news-and-media/news/public-views-sought-on-improving-jury-trial-timeliness/
20
Legal aid funding limits creating ‘justice gap’, The Press, 19 July 2014. https://www.stuff.co.nz/national/10285613/Legal-aid-funding-limits-creating-justice-gap
21
Minding the gap – interviews with Steven Zindel and staff on legal aid in NZ, Thomson Reuters, 27 January 2017. https://insight.thomsonreuters.co.nz/legal/posts/minding-the-gap-interviews-with-steven-zindel-and-staff-on-legal-aid-in-nz
22
Justice being denied as legal aid system teeters on brink of collapse, New Zealand Herald, 17 May 2022. https://www.nzherald.co.nz/nz/justice-being-denied-as-legal-aid-system-teeters-on-brink-of-collapse/VULHZMP6ZH63ZFJRDKF3N2WCEY/
23
Access to justice impacted by proposed repeal of sentencing report funding, New Zealand Law Society, February 2024. https://www.lawsociety.org.nz/news/newsroom/advocacy-in-action/access-to-justice-impacted-by-proposed-repeal-of-sentencing-report-funding/
24
Foreign observers will need to be reminded that not only does Aotearoa lack an entrenched written constitution, but that BORA section 4 establishes that other Acts are free to override BORA.

Submission: List of Issues Prior to Reporting for Aotearoa New Zealand’s 2025 Review under the International Covenant on Civil and Political Rights

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