Toothless Official Information Act needs overhaul and constitutional backing

 

Democracy around the world is under threat, and New Zealand is not immune. Here, government attitudes to official information are hampering democratic debate and accountability, writes Sir Geoffrey Palmer.

Throughout the western world, democracy is facing challenging times. People are trusting politicians and political processes less than they used to. Brexit and Donald Trump are symptoms.

New Zealand is not immune to these trends.

We may be relatively free of corruption, but our democracy is not as robust as it could be.

Democracy and democratic processes involve much more than elections. They also involve ongoing dialogue and discussion between the governors and the governed.

Here, New Zealand is falling short. We are a democracy, but we are not a deliberative democracy. The public has few opportunities for deep involvement in political decision-making – at best, they are consulted, often after the government has already made up its mind.

The result is alienation from and cynicism about political processes. Voter turnout declines from election to election. Many eligible voters cannot see the point.

One important reason for this alienation is lack of information.

Public opinion is one of the most important checks on government power, but only if people know what is going on.

In New Zealand, the media is becoming less interested in politics and government. It rarely reports in depth on parliamentary debates or lawmaking, even though these things deeply affect New Zealanders’ lives.

The government, with its control of the policy and legislative agenda and its substantial team of Beehive spin doctors, has considerable influence over the political news agenda.

And one of the most important safeguards of open government, the Official Information Act, is outdated and increasingly toothless.

The Official Information Act was brought in because a well informed public can better participate in the democratic process; because secrecy is an impediment to government accountability; and because better information produces better government and greater public buy-in to political decisions.

Those principles remain sound but they are being imperfectly executed.

With some ministers, the act tends to lack support and acceptance. Some simply evade its requirements.

Some public servants do not like the act either.

In a little reported development, the international lobby group Reporters Without Borders downgraded New Zealand’s press freedom ranking this year because of government practices of delaying and charging for OIA responses. The Act was being implemented in a way that “obstructs the work of journalists”.

The act is showing signs of its age and it is in serious need of refreshment.

The OIA has been reviewed twice by the Law Commission (with reports in 1997 and2012) and once by the Office of the Ombudsman (reported in 2015).

The Law Commission’s more recent report made 137 recommendations for wide-ranging reforms, including extension of the act to cover much of parliament’s work, and the creation of a new statutory oversight office to ensure the Act was being properly implemented.

Nothing has happened.

There has been clear political resistance by successive governments to making changes and freeing up further the release of information. Yet a strengthened Act would increase protection against corruption and questionable decision-making in both central and local government.

The conclusion to be reached after more than 35 years of the law in action is that the present policy settings are inadequate and do not serve the interests of transparency in government as well as they should.

Despite the fact that New Zealand has had the Official Information Act since 1982, it is still often difficult to get information about public affairs in a timely fashion.

In my view, changes are needed.

Redrafting the whole act is essential if real progress is to be made in improving access to official information. The Law Commission has done the work, and the Act needs to be reconstructed.

Like much New Zealand legislation the act should be conscientiously enforced.

The Ombudsmen have the function of recommending disclosure after complaints. The performance of the office has been spotty and somewhat soft in this regard, although it has improved recently.

There needs to be a greater commitment to openness and the act needs to have teeth that it presently lacks.

In A Constitution for Aotearoa New Zealand, Dr Andrew Butler and I propose to make openness and transparency a constitutional requirement. We are seeking feedbackon that proposal.

A powerful commitment to greater openness of government information in a written codified and judicially enforceable constitution would be a safeguard worth having.

It would be a strong nudge to the executive government not to game the act. And to improve it.

Nothing could be more important in strengthening our fragile democracy and protecting the people against corruption and misuse of state power.

 

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