Who do our elected politicians serve?

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New Zealand’s Minister for Justice Judith Collins has ignored much of the Law Commission’s proposed overhaul of the Official Information Act

As a gamekeeper, I don’t see myself setting mantraps for my former colleagues (although if they get caught red-handed I don’t have too many qualms about dobbing them in). I see the role as looking after the wildlife. And you, my friends, are the wildlife.

I hasten to add that I am not interested in looking after the wildlife in order that some rich bastard can swan in and knock it off. Stocks are so depleted that my mind is fully occupied with conservation and breeding programs. The hunting party can amuse itself with clay pigeons, which usually take the form of over-hyped, over-priced and under-researched digital projectiles.

The threats to the wildlife are commercial, social and political. In New Zealand last month we detected the spore of a creature well known as a menace to most species of media: the self-serving politician. It revealed itself in the government’s response to a well-founded and comprehensive review of the Official Information Act.

In 1982 both Australia and New Zealand passed legislation to guarantee that the news media – and society in general – had access to a diet of public information emanating from central government.

After 30 years the New Zealand Law Commission believed it was time to review the effectiveness of the Official Information Act and equivalent legislation covering local government. Unsurprisingly, it found that much had changed since the legislation was enacted and three decades of operation had revealed numerous shortcomings. It made 137 recommendations for change.

Tim Pankhurst canvassed the principal recommendations in the September (2012) issue of the PANPA Bulletin. He acknowledged Justice Minister Judith Collins’ stated commitment to openness and transparency while trying to cut red tape and streamline processes, but concluded by saying “… the test will be whether the Law Commission’s good intentions are still circumvented by belligerent departments and ministers with something to hide”.

He exhibited the traits present in all wildlife with a good survival rate – caution and suspicion – but under-estimated the speed of the attack and the quarter from which it would come.

‘Can politicians – particularly those in a unicameral parliamentary system like that of New Zealand – be entrusted with determining the nature and extent of checks on their own power?’

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The New Zealand government led by Prime Minister John Key instigated a much-needed review into the Official Information Act

It was launched by Ms Collins herself on behalf of the John Key-led coalition government on February 4 and represented a wide-ranging rejection of the most significant Law Commission recommendations.

  • “No” to a completely new Act that took account of technological and social change.
  • “No” to a new information agency or expanded role for the Office of the Ombudsman.
  • “No” to an amalgamation of the legislation covering central and local government.
  • “No” to coverage of the administrative functions of parliament and the offices of parliament (Ombudsman, Controller and Auditor-General, and the Commissioner for the Environment).
  • “No” to major reform.

It was a perverse response. While the government was unwilling to open its own house to public scrutiny, it was willing to allow that oversight of the administrative functions of the courts.

Why open one section of the constitutional estate to the public while claiming what former Law Commission president and Prime Minister Sir Geoffrey Palmer called “spurious” reasons for denying public access to any part of the stately home?

Likewise, the government was ready to accept tighter controls on financial and commercial information recommended by the Law Commission while rejecting significant measures to make other information more accessible.

The opposition Labour Party did itself no credit by backing the government stand rejecting the Law Commission’s parliamentary recommendations, cloaking its desire for ongoing secrecy in support for “proactive release” of information that leaves the decision to disclose entirely in the hands of parliament and its officials.

The Law Commission’s report sought to give substance to generalisations in the legislation that had allowed bureaucrats and politicians to circumvent the presumption of transparency that was embodied in the original act.

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The government has ignored much of the Law Commission’s proposed overhaul of the Official Information Act which Sir Geoffrey Palmer says is driven by MP’s self-interest.

It wanted clarity over such presumptions and more explicit instructions relating to matters such as the maximum time in which to respond to requests. However, it is all too clear that the rocks behind which elected representatives and state servants can hide are seen as extremely useful obstructions. Sir Geoffrey Palmer accurately summed up the response when he said it was driven by MP’s self-interest.

So the government’s response gives rise to a broader question: Can politicians – particularly those in a unicameral parliamentary system like that of New Zealand – be entrusted with determining the nature and extent of checks on their own power?

Those in power, even if they mean to resist it, are subject to the seductive influence of political self-interest. Those in opposition hope one day to be in power and have the same advantages of those they seek to replace. Constitutional safeguards go only so far and the only real defence is to ensure that such displays of self-interest become politically inexpedient.

Former New Zealand Prime Minister Helen Clark once wished (aloud) that I would “stop banging on” about a particular controversy. This is an issue where, for the sake of a healthy democracy, newspapers must keep banging on until self-interest carries greater political risks than change.

Dr Gavin Ellis is an Auckland media researcher and former editor-in-chief of the New Zealand Herald.

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