“A Kick Back Against Government Intolerance” – an Interview with Nicky Hager


Nicky Hager tells Toby Manhire’s The Spinoff about his case in the High Court, Dirty Politics a year on, and his next book – “one of the most important projects that I could imagine”.

Nicky Hager has been back in headlines lately after court documents revealed, among other things, that Westpac had provided his transaction statements to police without requiring any production order or other court authorisation. The bank has since said it will change its policy.

The court documents relate to action taken by Hager challenging the legality of a police raid on his home in October last year – which is understood to be coming any day now. The raid formed part of an investigation into the hacking of blogger Cameron Slater’s emails and other internet correspondence by an individual known simply as Rawshark, who provided the materials to Hager.

The documents formed the basis of Hager’s Dirty Politics, published in August 2014, shortly before that most extraordinary election.

After a packed session on Sunday morning at the excellent Tauranga Arts Festival discussing Dirty Politics and all that with Bryan Gould, I collared Hager for a quick chat in the sun outside the Pacific Crystal Palace tent.

Nicky Hager and Mandy Hager with Toby Manhire in Tauranga. Photo: Sandra Simpson


The Spinoff: How have you felt watching the response to the police/Westpac story, a lineup of supporters ranging from Seymour Hersh and Edward Snowden through to Matthew Hooton and Rodney Hide?

Nicky Hager: I was obviously heartened to have people on my side. I think it was such an outrageous part of the police actions against me that there were some unlikely supporters. It could be some were imagining what would happen if their bank records were able to be in the police hands.

And it’s an outlier. The most important issues, much more important issues, were about the police raiding my house and going after sources, not just seeing my bank data. And I’m not sure all those people would support me on protecting my sources and that’s the one that really matters.

What will happen next with the judicial review?

In the very near future, I think, there will be a decision coming out which is about my case but is really about journalism in New Zealand. Like all countries, we are experiencing a new intolerance to whistleblowers and people who provide leaked information. So this court case is happening at a really critical time for whether or not people who collect that information feel safe and whether or not people who provide that information feel safe.

I’m hopeful we’re going to have a decision which is a sort of kick back against the current intolerance from the government.

It’s over a year now since Dirty Politics, and to some degree at least it feels as though things have gone back to business as usual. Do you accept that, and if so is it because people didn’t grasp the detail or because they grasped the detail but don’t care?

I’ve had a bigger reaction nationwide from people who care about this, more than anything I have ever written, so I have no doubt about that.

The Minister of Justice who had to resign because of the book has not come back, the main dirty tricks person in the prime minister’s office [Jason Ede], who had to leave the job because of this, has not come back. When people say everything has gone back to normal, they’re possibly not realising how much did change, and what they’re perhaps really meaning is the Prime Minister, who was in many ways at the centre of the distasteful politics, has so far survived it.

None of us knows really how politics works. He’s survived at the moment by not answering the question and then not answering the question again and then refusing to answer the question again – relying on the lack of attention span of the media. He may get away with that, but I actually think that one is still playing itself out.

I think that when people say John Key got away with the book, and never had to answer the question – and of course he has got away with not having to answer the question so far – I think they’re not being optimistic enough. I think we may still see in the long run it will be seen to have bitten him badly and he hasn’t got away with it.

Do you think then that the way people do politics has changed as a result of the book?

I wrote a book about one area of politics, and there is absolutely no doubt that things have changed quite a lot. For example, at the time I wrote that book, quite a considerable number of journalists and news organisations were in extremely unhealthy relationships with this rightwing attack blogger, who was acting as a tool of various commercial interests and also of the prime minister’s office, for covert attacks on their opponents.

Most of those journalists have stopped doing that. Many of those media organisations have more or less apologised publicly for getting caught up in it. If one book can do that, I’m really happy with it, and that’s not the only change at all.

Do you read the Whaleoil blog?

No. I’ve spent a year and a half recommending to people that they don’t dignify it by looking at it, because it is not a genuine source of news and analysis. It’s a political tactic: to smear and discourage and hurt people, and so I don’t believe that I want to go there.

But there’s also a personal side to it. A strange side of politics is that if you do critical work, your opponents, people who don’t like what you write, often deal with it by personal attacks. In the anonymous world of social media, people feel unrestrained in their personal attacks. So I believe, I advocate this: I think in anyone who is in a position like me needs to look after their own peace of mind and mental health and not read those anonymous comments.

I will take anybody’s legitimate, public, owned criticism and I’ll think about it, but anonymous comments are the worst of people, and I don’t need to let them into my head. So I don’t go to the Whaleoil site, and I don’t go to many of those places where I’m just going to hear, you know, anonymous tigers behind their keyboards saying ridiculous things about me.

The Dirty Politics fallout must have soaked up a lot of your time. Have you been able to start work on anything else?

Yes I have. When I write a book or do a big project I always hope I can kind of weed the garden and get started on the next thing straight away. That’s not the way it works. In fact, part of writing books is you have the responsibility to go out and talk and talk and talk and talk, because talking is part of the way the book is disseminated. So I’ve done that. And I’ve had what I always call the “retaliation phase”, which in this case was the raid on my house and different things, which took some time.

But because I’ve been through this before I was determined that it would not take over my life. So I’ve had one of the most important projects that I could imagine in my life ticking away and going through the early processes of working towards eventually getting it together.

So I’ve had a very satisfying sense of progress right through all the other things so far.

Is that project thematically linked to The Hollow Men and Dirty Politics or something altogether different?

It’s always much better for me not to pre-publicise my work, particularly because until I’ve actually got it together, and cracked it, and feel confident enough to put it before the public, I never want to say, you know –

How far through the process are you?

I’ve got quite a long way and I’ve got quite a long way to go.

What’s the title?

Of course I’m not going to say what the title is.

I’ve actually got a draft title. To give you an answer on something which wasn’t intended to get an answer: I believe that when you write a book is half the job of the effectiveness of the book, and the power of the book. If you look around the world at which books work and which don’t, the title is far more influential than people give it credit for.

Really, even when I am in the research phase, and meeting confidential contacts, all that phase of the project – which may not even become a book yet – I’m already regularly wondering what the title of that book might be.

TPPA signing likely to be in New Zealand


The official signing ceremony for the Trans Pacific Partnership trade deal is likely to will place in New Zealand next year but at Trade Minister level only.

Had it been elevated to leader level, US President Barack Obama would be coming to New Zealand, as he indicated he would like to do before his term is up in January 2017.

Mr Obama chaired a meeting of leaders and trade ministers of the 12 TPP countries on the sidelines of Manila including Prime Minister John Key and Trade Minister Tim Groser.

One of the debates inside the closed meetings was when to allow new countries to join.

“I think it is fair to say there is a range of views,” Mr Key told reporters afterwards.

“Some leaders are very much of the view that it is a foundation stone from which new entrants should be allowed to join so long as they meet the standard.

“Others took the view that maybe we should let it settle down a little bit first.

“But I would have thought if you can meet the standard, myself, I cant see why you wouldn’t let other people in.”

Asked whether the US was one of countries that wanted to let things settle down before considering new entrants, Mr Key said he thought the US was open-minded about it.

Trade Ministers are going to work on a proposed protocol for new entrants.

Several countries have already indicated an interest in joining including Indonesia, the Philippines and South Korea.

Mr Key said Mr Obama turned to him next after he had spoken which was a sign the US saw New Zealand as having “pushed the process and New Zealand being a leader in trade.”

The ceremony would showcase New Zealand as the place where the biggest free trade agreement was signed since the Uruguay round of the World Trade Organisation.

The deal cannot be signed before February 3 which is the end of the US Congress 90-day review period of the deal.

Mr Obama made a few opening comments to the meeting in public and said he wanted to ensure it was enacted as swiftly as possible.

“Obviously execution is critical after we have arrived at the text and I just want to once again commend all the leaders here for their extraordinary leadership .

“This is not easy to do. The politics of any trade agreement are difficult.

“The fact that everybody here stepped up and made some hard decisions that are going to pay off for decades to come I think is a testimony to the vision that was reflected.”

Earlier yesterday, Mr Key has a bilateral meeting with Chinese President at Xi Jinping’s hotel – and trade was on the agenda too.

They talked about possible negotiations to upgrade the 2008 New Zealand China Free Trade Agreement – its first with a western country.

But the upgrade, in the wake of other deals, is not an absolute certainty.

“We are as confident as we can be on the basis of the discussions we have had so far it is going to happen. But for an upgrade of the FTA to happen, we have to formally launch that process and work our way through that.”

New Zealand was very keen to do that and China has acknowledged it would make sense to occur.

“At this stage the officials in China haven’t formally ticked that off but the Preisdent’s comments were forward-leaning so I would have thought we are going to make progress there. That is my sense of it but you just cant guarantee when that process starts.” …

Health professionals welcome NZ climate target legal challenge 


Health professionals are welcoming a Waikato law student’s legal challenge of the NZ Government’s weak target for reducing climate emissions.

Sarah Thomson is suing the Government, claiming NZ’s greenhouse gas emissions targets were arrived at illegally, and that the pledge NZ will take to the upcoming international negotiations in Paris is “unreasonable and irrational”.

Earlier this year many health professionals and organisations – representing doctors, nurses, and public health professionals – submitted on NZ’s post-2020 climate target. Their submissions called for ambitious targets that would protect and promote the health of New Zealanders. They included the NZ Medical Association and the NZ Nurses Organisation, representing over 50,000 professionals.

But the consultation process made it clear that the health gains from climate action and the human health costs of inaction were being ignored. The emissions reduction target eventually submitted by New Zealand – an 11 percent reduction on 1990 levels by 2030 – has been widely condemned as grossly inadequate.

“New Zealand’s target is much lower than what scientists say is needed from countries to avoid dangerous levels of climate change that will be catastrophic to human health,” says Dr Rhys Jones, co-convenor of OraTaiao: The NZ Climate and Health Council. “Yet well-planned action to reduce climate-damaging emissions could immediately improve our health and wellbeing.”

Dr Jones says it is unfair that poor countries, who have contributed the least to this emergency, are being affected first and worst. In our own region, the Council is particularly concerned about the impacts on Māori and Pacific peoples in New Zealand, and on the health of people in Pacific Island nations. “New Zealand’s pathetic climate target shows contempt for the innocent peoples of low-lying Pacific Island states. Global warming will drive people from their land and result in profound adverse health effects. It is a particularly nasty betrayal by New Zealand – which of all countries should speak up and support the interests of Pacific Nations.”

“As health professionals, we have a duty to promote and protect the health of patients and populations. This government’s inaction in the face of urgently needed emissions reduction represents a clear threat to the health of New Zealanders and our Pacific neighbours. We support real steps to reduce climate change, including legal action, for a healthy future,” says Dr Jones.


Media Spokesperson: Dr Rhys Jones, Ph. 021 411 743
Dr Rhys Jones (Ngāti Kahungunu) (rg.jones@auckland.ac.nz) is a Public Health Physician and Senior Lecturer at the University of Auckland, and Co-convenor of OraTaiao: The New Zealand Climate Climate and Health Council.


OraTaiao: The New Zealand Climate and Health Council are health professionals concerned with climate change as a serious public health threat. They also promote the positive health gains that can be achieved through action to address climate change. See: www.orataiao.org.nz

News item: ‘Sarah vs the State: Government’s climate targets ‘illegal, unreasonable, irrational’’, http://www.nzgeographic.co.nz/atlarge/sarah-vs-the-state

About Climate Change and Health
See NZ specific climate-health information in the NZ Medial Journal paper:
‘Health and equity impacts of climate change in Aotearoa-New Zealand, and health gains from climate action’.

Health threats globally and for NZ include illness and injury from heat waves and extreme weather events, changing patterns of infectious diseases, and wider impacts from loss of livelihoods, food and water shortages, migration, and conflict.
Well-planned action to reduce climate-damaging emissions could improve health and wellbeing. Examples include rapid moves to more walking, cycling and public transport will cut transport emissions, reduce air pollution, and boost physical activity – impacting obesity, heart disease, cancer, diabetes, and respiratory disease.

MfE Summary of Submissions on NZ’s Climate Change Target (includes 30 submissions from health professionals and health professional organisations)

Key Submissions by Health Organisations:
• The NZ Medical Association
• The NZ Nurses Organisation
• The NZ College of Public Health Medicine submission and supplement
• The Public Health Association
• OraTaiao: The NZ Climate and Health Council
• Pacific public health professionals
• The Department of Preventive and Social Medicine at the University of Otago

Government sued for “unreasonable and irrational” emissions target

A Waikato law student is suing the government over its climate change policy, claiming its greenhouse gas emissions targets were arrived at illegally, and that the low emissions reduction pledge it will make in the upcoming UN climate conference in Paris in December is “unreasonable and irrational”.

Thursday, 12 November 2015 06:49

Sarah vs the State: Government’s climate targets ‘illegal, unreasonable, irrational’

Sarah Thomson
Sarah ThomsonPeter Drury / New Zealand Geographic

A Waikato law student is suing the government over its climate change policy, claiming its greenhouse gas emissions targets were arrived at illegally, and that the low emissions reduction pledge it will make in the upcoming UN climate conference in Paris in December is “unreasonable and irrational”.

In June this year, a court in the Hague found that the Dutch government had been negligent in its climate-change policies, and forced it to adopt more ambitious greenhouse gas reduction targets on behalf of its citizens.* The decision was the first time a court has ordered a government to take more stringent climate action, and the first case globally in which a State has been found liable for failure to adequately mitigate climate change.

Could such a legal case succeed in New Zealand?

We are about to find out. Today, 24-year-old Hamilton law student Sarah Thomson filed papers in the High Court in Wellington requesting a judicial review of aspects of the government’s climate change policy.

Specifically, Thomson is challenging the legality and reasonableness of the government’s domestic greenhouse gas emissions targets and its Intended Nationally Determined Contribution (INDC)—the amount it commits to reduce emissions—to be tabled at the UN climate meeting in Paris.

She claims that the Minister for Climate Change Issues has not followed the process stipulated by the Climate Change Response Act 2002 in setting emissions reduction targets, and that the government’s INDC fails to take into account relevant matters concerning the dire impacts of climate change. New Zealand’s proposed contribution—an 11 percent reduction on 1990 levels by 2030—is claimed to be, in legal terminology, “unreasonable and irrational”.

Under the Climate Change Response Act, the minister is required to review the government’s emissions reduction target whenever the IPCC (Intergovernmental Panel on Climate Change) releases a new report, to ensure that the target aligns with the current scientific consensus on mitigating what the IPCC calls the “irreversible and dangerous impacts” of climate change. Thomson says there is no evidence that such a review was carried out after the IPPC’s latest report was released in 2014. If that turns out to be the case, she says, then the minister acted unlawfully.

The second prong of the review concerns the INDC that the government will present at Paris. Thomson contends that the 11 percent reduction target is inadequate in light of what climate scientists say is needed to prevent global temperatures exceeding the internationally agreed 2-degree maximum rise.

“I am asking the court to require the minister to set targets that are consistent with what the scientific consensus says needs to be done to avoid the disastrous consequences of climate change,” she says.


Thomson, who sat her final LLB exams a week ago, is by no means a seasoned climate campaigner. Although she grew up in an outdoors-loving, conservation-minded family (her father is involved in predator control and biodiversity restoration in sanctuaries such as the Maungatautari ecological “island” in the Waikato) she admits that until recently her awareness of the threats of global warming didn’t extend much beyond the fact that it would be unfortunate if the ice caps melted and polar bears went extinct.

“I was a bit naïve,” she told me. “I didn’t realise how bad things really are, and how seriously people are going to be affected. I felt I had to do something.”

She joined a group which was door-knocking in Hamilton to collect signatures for a climate-change petition. Then she listened to a talk given by Mary Robinson, the former prime minister of Ireland, in which she spoke about climate change as a human rights issue that was bearing down on our Pacific neighbours such as Tuvalu and Kiribati.

“People have the right to challenge the government’s decisions. I have that right, and so does everyone else. Climate change will affect everyone in New Zealand, so it’s to everyone’s benefit that this case be heard.”

But it was seeing the tepid commitment to global emissions reductions that the New Zealand government is taking to the Paris climate meeting in a little over two weeks’ time that raised her ire and prompted her to act.

“I looked at the summary of submissions [that people had made on the INDC target] and I was shocked,” she said. “Despite the insanely short time frame—people had less than a month to make a comment—the government still got more than 15,000 submissions, and almost all said of them we need more ambitious goals, around a 40 percent cut in emissions, and a substantial plan of action to meet those targets. But in the end the government came up with a feeble INDC.”

Thomson is not alone in criticising New Zealand’s INDC pledge. International climate analyst Climate Action Tracker described the 11 percent target as “inadequate,” and said New Zealand was far from doing its “fair share” on climate action.

“If most other countries were to follow New Zealand’s approach,” it wrote, “global warming would exceed 3–4°C, a world that would see oceans acidifying, coral reefs dissolving, sea levels rising rapidly, and more than 40 percent species extinction.”

Moreover, the organisation predicted that in 10 years New Zealand’s per capita greenhouse gas emissions would exceed those of the United States, the world’s most profligate per capita emitter.

But rather than simply complain about the inadequacy of New Zealand’s contribution to global climate action, Thomson has decided to test that contention in court. “This is our chance to be heard and to use the legal system to do that,” she said.

Underlying the action is the conviction that if a government acknowledges the severity of the threats posed by climate change in international forums, it cannot then choose a domestic path of action that underplays that severity—for example, by favouring economic goals over environmental obligations.

I asked Thomson how she felt about taking on the government over its climate policy.

“It’s an opportunity to create change,” she said. “Voting every three years isn’t enough. People have the right to challenge the government’s decisions. I have that right, and so does everyone else. Climate change will affect everyone in New Zealand, so it’s to everyone’s benefit that this case be heard. So I believe this is not only a legitimate action to take, but an essential one.”

She said she hoped the case would increase climate awareness ahead of the Paris climate meeting. “Compared with the flag referendum, there hasn’t been a lot of media on the INDC targets, and this will be a chance for a lot more people to hear about that and take part in that conversation, and hopefully stand up and voice their concerns about lack of government action.”

Kennedy Warne — New Zealand Geographic


* The New Zealand case differs significantly from its Dutch predecessor. Dutch law has several features that are not analogous to the New Zealand legal system. The Dutch case focused on the government’s duty of care towards its citizens and a concept called “hazardous negligence.” Neither principle exists directly in New Zealand law. Moreover, the Dutch constitution specifically requires the authorities “to keep the country habitable and to protect and improve the environment.”

Writing on the website of Wellington legal think tank Deconstructing Paris, Matthew Soar noted that New Zealand does not have an equivalent of the Dutch tort of hazardous (state) negligence. Nor does New Zealand have an equivalent constitutional article that prescribes a duty of care in relation to a habitable environment.

Of special interest in the Dutch court decision is the judges’ dismissal of arguments based on the small size of Holland’s greenhouse gas emissions (around 0.5 percent of global emissions) compared to those of other countries—an excuse for inaction that is also made by politicians in this country (New Zealand’s emissions are around 0.2 percent of the global total.)

“The state should not hide behind the argument that the solution to the global climate problem does not depend solely on Dutch efforts,” the judges’ ruling said. “Any reduction of emissions contributes to the prevention of dangerous climate change and as a developed country the Netherlands should take the lead in this.”

The same has been said for many years in New Zealand—that we should be leaders, not followers, in tackling our country’s low per-country but high per-capita emissions (we rank 11th in the world in per-capita emissions)—but those urgings have fallen on deaf government ears.



TPPA National Day of Action: 14 November

TPP dont sign

From Its Our Future:

While negotiators were able to complete a text in Atlanta, the deal won’t be signed until mid-February at the earliest. Saturday 14 November is another Nationwide Day of Action to stop the TPPA, and we need a huge turnout of people to send a simple message that even this government can understand: DON’T SIGN!

 With such a poor deal on the table, that shouldn’t seem too difficult a decision. The Government’s rosiest predictions on tariff cuts – a miserable $259 million a year by 2047 – are nothing compared to the influence that foreign investors will get over our public policy decision-making if this deal will goes through.

What we need now is for people to grab their flags and placards, join their local rallies this Saturday 14 November, and send a strong message to the Government saying DON’T SIGN this toxic deal.


Kerikeri – 2:30pm at Kerikeri Library

Auckland – 1:00pm at Myers Park

Hamilton – 1:00pm by Cock and Bull Te Rapa

Tauranga – 11:00am at Red Square

Rotorua – 1:00pm, at the Village Green – Corner of Whakaue St and Memorial Drive

Gisborne – 12.30pm, at Elgin Shops

Palmerston North – 1:00pm, The Square

Wellington – 1pm at Midland Park

Nelson – 11am at 1903 Square – near the church steps

Christchurch – 2pm, Cathedral Square

Little River – 1pm, Craft Station

Timaru – 1pm, Bay Hill Piazza

Dunedin – 11am at the Railway Station

Invercargill – 1.30pm – 3pm, Invercargill Library Meeting Room, TPPA Public Meeting

Groser’s ‘blanket approach’ in turning down TPPA OIA not lawful


By Jonathan Undersell (courtesy stuff.co.nz)

Oct. 13 (BusinessDesk) – Trade Minister Tim Groser had no lawful basis to withhold information about the Trans-Pacific Partnership agreement requested under the Official Information Act made by Jane Kelsey, a high-profile opponent of the trade deal.

Justice David Collins quashed Groser’s decision on six of the seven categories of documents requested by Kelsey and directed the minister to reconsider her request, according to his judgment in the High Court at Wellington. Kelsey was joined by Consumer NZ, Ngati Kahungunu, Oxfam NZ, Greenpeace, the Association of Salaried Medical Specialists, the NZ Nurses Association and the NZ Tertiary Education Union in the claim for a declaratory judgment on the reach of the OIA.

“When the minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the act for withholding official information,” Collins said in his judgment. “Instead, the minister adopted a ‘blanket approach’ to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the act.” The court heard that about 30,000 documents were relevant to the OIA request.

“When the minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the act,” the judgment says.

Groser and New Zealand’s chief negotiator for the TPPA agreement David Walker both said in affidavits to the court that New Zealand stood to get huge gains from the trade deal, which accounted for about 45 percent of the nation’s total trade and would deliver free-trade agreements with two of the world’s three largest economies.

Walker cited a study that suggested the TPPA would increase New Zealand’s exports by US$4.1 billion by 2025 and on the need for confidentiality said it would have been “impossible for our negotiators to secure the best outcome for New Zealand if we publicly declared our detailed mandates to our negotiating partners in advance of negotiations.”

Kelsey argued in her affidavit that the TPPA had extended “into areas of public policy that have little or no relationship to traditional forms of trade, and … impinge on the regulatory autonomy of domestic governments, Parliament’s authority and te tino rangatiratanga of iwi, Māori under the Treaty of Waitangi.”

The release of documents was “essential to a functioning democracy”, she said. Kelsey had written to the minister after her request was turned down, telling Groser that the general reasons he gave didn’t include “the grounds in support of those reasons”. She subsequently, on March 6, made a complaint to the Chief Ombudsman, which investigated the complaint including meeting MFAT’s Walker and viewing 21 documents that fell within the scope of Kelsey’s request.

The Chief Ombudsman, in her final report released on July 29, endorsed the minister’s decision not to release documents other than in two categories – a list of all documents tabled by New Zealand in the TPPA talks and a cost-benefit analysis of the agreement – for which she deferred her final decision.

Kelsey and her fellow applicants subsequently applied for the judicial review.

Justice Collins ruled that he didn’t need to issue the declarations sought by the applicants because his orders and judgment “appropriately vindicate Professor Kelsey’s rights under the act”, the orders reinforce to the minister and other decision-makers the importance of discharging their responsibilities under the OIA.

And he ruled there was merit in allowing the applicants to be granted leave for any supplementary or consequential orders, given the Chief Ombusdman was still considering her decision on two categories of documents, but he set a six-month deadline. The applicants had succeeded in their primary cause of action but had only limited success in relation to their other grounds for judicial review, he said, adding that they were entitled to costs.

Kelsey said in a statement that it was “cold comfort that the minister will have to revisit the request, using a proper process and interpretation of the rules, after the negotiations have already concluded.”

Groser’s “unlawful approach in circumventing the Official Information Act appears to have achieved its goal,” she said. “Nevertheless, the minister should now release at least some documents that can help inform the debate on the TPPA.”

The court’s decision also had longer-term precedent value, she said.

Kelsey also said that there were “equally serious questions about the Chief Ombudsman’s failure to hold the minister to account.”

“The Chief Ombudsman is meant to be a check on executive power, not to legitimise its unlawful practices,” she said.

Attorney-General says human rights consideration fundamental

Chris Finlayson

09 October 2015 – By Sasha Borissenko

Parliament should always consider human rights and the enhancement of human rights in its decision making process, rather than a post de facto consideration, as it currently stands, Attorney-General Christopher Finlayson says.

Mr Finlayson spoke on Section 7 of the Bill of Rights: 7 Years Reflection, when opening The Business of Managing Corruption conference hosted by Transparency International New Zealand and held at Wellington’s Te Papa on 7 October 2015.

Mr Finlayson addressed an audience of lawyers, business people and government officials on the importance of the New Zealand Bill of Rights during the law-making process.

Under section 7 of the New Zealand Bill of Rights Act 1990 (NZBORA), the Attorney-General is required to report to Parliament where a bill appears to be inconsistent with the rights and freedoms afforded under the Act.

“It’s good to stand back and see how the system actually operates. Everyone here will understand that the Attorney-General is a minister of the Crown but also a law officer and the functions are quite distinct. [I have to] scrutinise legislation if it’s inconsistent or raises questions. It’s not surprising, therefore, that it is impossible for an Attorney-General to be a Minister of Justice.”

Former Minister of Justice Simon Power had once criticised Mr Finlayson for being “too independent from the executive”.

The Attorney-General is not subject to direction by caucus and is required to action section 7 reports according to their independent judgement, Mr Finlayson said.

“[Actioning section 7 reports] is very much my duty and I take that responsibility very seriously.”

The Maori Purposes Bill 2015 was recently subject to debate where questions regarding family status discrimination were raised in the instance that trustee beneficiaries might benefit differently according to whether they are blood descendants as opposed to adopted family members and spouses.

Irrespective of Mr Finlayson’s conclusions, he felt uncomfortable that NZBORA does not have supreme law status, which is the only way forward, he said.

Parliament should always consider human rights and enhancing human rights in their decision making process, rather than a post de facto consideration, as it currently stands.

He applauded former Attorney-General Margaret Wilson for waiving privilege in favour of publishing NZBORA section 7 orders in an effort to encourage greater consideration being made to NZBORA during the policy making process.

Section 7 reports have been most prevalent when bills have been issued under urgency. Rushed legislation makes for “crummy laws”, he said.

“We don’t have nearly as much urgency as we used to. The reality of the matter is if we rush things we stuff things up … There’s a lot to be said for slowing things down. [In other words] the longest way round is the shortest way long.”

Since 1990, 68 bills have been subject to section 7, five of which were issued this year, he said.


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