The SIS dictated secret trial in Wellington

There was an unusual top secret trial in Wellington last week, where neither a Melbourne woman contesting the cancellation  of her New Zealand passport, nor her lawyer, nor any media, were allowed to attend the hearing.

Andrew Geddis at The Spinoff:  The bizarre case of the NZ court case hidden from public and media scrutiny

Something quite strange is happening at the High Court in Wellington this week. Journalists doing their regular rounds of that place’s pathos, bathos, high drama and human frailty came across a closed courtroom with nothing to say what was going on inside its doors, heightened security outside of them and strange “men in dark suits” lurking in the nearby halls.

Upon asking what was up – journalists are pesky like that – they were told they weren’t allowed to know before quickly being ushered away by court security officers. Which, of course, simply makes everyone that much more curious about what on earth could be going on.

The suspicions of at least some of us were confirmed when Justice Venning, the Chief High Court Judge, released a statement confirming the subject of the case.

The statement:


How do we know this? Because her case already has been before the High Court last year, when she sought to challenge the government’s claim that not only did her appeal have to be held in secret, but that neither she nor her lawyer were allowed to know the reasons why her passport had been cancelled.

Those reasons, said the government, constituted “classified security information”. And under the Passports Act 2002, it’s not just the public and press who can’t be in the courtroom to hear the content of such information. Neither can the person whose passport is cancelled, nor that person’s lawyer.

That does sound bizarrre.

So, here’s what is happening in the High Court in Wellington. A woman is asking to get her passport back after the government took it off her. She is doing so without knowing the evidence the government has for deciding she represents a security risk, without being able to be in the court to watch the case being argued, and without being able to have her own lawyer present to argue for her (although some unnamed “advocates” have been appointed to “assist with issues that have to be dealt with” in her absence).

And none of us can go in and watch the case. Nor can the media go in to watch it on our behalf.

Closed justice, in a country where open justice is supposed to be an important principle.

Matt Nippert at NZH:  Secret Wellington High Court national security hearing lambasted as ‘Kafkaesque’

A Wellington basement courtroom last week became the scene for what a Green MP called “Kafkaesque” and civil liberties advocates described as “security theatre performance”.

MP Golriz Gharaman, the Green Party spokesperson for security and intelligence issues, said the court’s acceptance of classified information in this one-sided fashion was unjust.

“The courts are asked to base their decision on so-called facts, presented by just one side. It’s Kafkaesque – you can’t answer the case against you, because you can’t know the case against you,” she said.

The woman’s passport was cancelled in May 2016, but the protocols to allow secret trials was signed after that, in January 2017.

The Herald can reveal the case concerns a Melbourne-based New Zealander who in May 2016 had her passport cancelled on national security grounds by then-Internal Affairs Minister Peter Dunne.

A copy of the protocol governing passport cases where courts are asked to consider evidence classified as secret… signed last January by then-attorney-general Chris Finlayson and chief justice Sian Elias, prescribes: The extensive use of “tamper-proof envelopes”; requirements for court staff to stand watch over locked cabinets during lunch breaks, and; a ban on the public, media and even those accused by such evidence – or their lawyers – from being present during its presentation.

The eight-page protocol also allows for the New Zealand Security Intelligence Service (SIS) to insist that hearings be relocated from a courtroom to any location or their choosing, or to require judges writing up their decision to only use a computer supplied by the intelligence.

Cate Brett, a spokesperson for the Courts, directed questions about the protocol to the relevant minister.

The processes and procedures adopted this week in Wellington were “required by law” and it was “not appropriate to a judge to comment on how a case is conducted”, she said.

Andrew Little, the minister responsible for the courts and the SIS, issued a statement backing the handling of the case.

“There’s a balance to be struck between the vital principal of open justice and the equally important need for national security to be maintained and I believe the current protocol achieves that balance,” he said.

The protocol was put in place before Little became Minister of Justice, but he believes it strikes the right balance. As leader of the Opposition Little was on the Intelligence and Security Committee sol may have been aware of the protocol when it was signed.

Dunne used powers available to him under the Passport Act to cancel the woman’s travel documents if he believed the passport holder was intending to take part in terrorism or the proliferation of weapons of mass destruction in a country other than New Zealand.

In earlier pre-trail rulings Justice Robert Dobson mulled the possibility of this classified information coming from agencies outside New Zealand.

The self-represented woman, whose identity is suppressed, is seeking a judicial review of Dunne’s decisions, but has faced a legal labyrinth over the protocols which requires her to challenge the Minister’s decision without being able to know why it was made.

In her absence the court has appointed special advocates – allowed to attend the secret closed hearings – to assist the court when considering the classified information.

The case is complex. The first scheduled date for a substantive hearing – in June 2017 – was abandoned and no new date has yet been set. An appeal lodged with the Court of Appeal by the women was then abandoned, and twice during the past year judgements have had to be amended and reissued.

Without a passport the woman must be stuck in Australia, unless they deport her to New Zealand. She presumably won’t be able to travel here without a passport, and wouldn’t be able to return to Australia.

Justice reform

Today’s ODT editorial looks at plans for justice reform – in particular, looking at ways to turn around the growth in prison population.

Justice Minister Andrew Little is embarking on a task which is sure to divide New Zealand, as most people have strong views on prisons, probation and sentences.

Mr Little, who is already developing into one of the Government’s most considered ministers, is proposing reform to the country’s criminal justice system and a rejection of “getting tough on crime”, a view long-held by many politicians and voters.

In the past, judges have been criticised for being too lenient  with  repeat offenders. Some of those on bail have gone on to commit horrific crimes even as they await trial. On those occasions public opinion swings behind law and order groups, calling on judges to impose the maximum sentences allowed. The calls for offenders to be denied bail to prevent them from reoffending grow louder.

Mr Little sees things differently and his vision has been  called the boldest political move in criminal justice since former justice minister Ralph Hannan convinced his National Party colleagues to abolish the death penalty in 1961.

There are many studies showing the benefits of a lower prison population, and not all of them are financial.

Mr Little says the rapid rise in prison numbers follows 30 years of public policy-making, and public discourse, that says New Zealand needs tougher sentences, more sentencing, more people serving longer sentences and the criminalising of more behaviour.

The major challenge is convincing the public what has been done for 30 years in criminal justice reform is not working. Violent offending is, in fact, increasing.

The pledge by Mr Little comes at a time when the Department of Corrections is facing major problems in housing the nearly 10,700 prisoners already incarcerated. There is room only for another 300.

Mr Little has taken on an admirable challenge by providing his vision for the justice system. He will need considerable strength to overcome the prejudicial views of a sceptical public.

‘ Tough on crime’, increasing the number of police officers and increasing sentences have been politically popular for some time, but they have not been notably successful.

I hope that Little includes a review of failed drug laws and considers alternatives to the current mess.

Greater protections under Bill of Rights

Cabinet today approved of greater protections under the New Zealand Bill of Rights:

Government to provide greater protection of rights under the NZ Bill of Rights Act 1990

Cabinet has approved, in principle, a move to amend the New Zealand Bill of Rights Act 1990 to provide a statutory power for the senior courts to make declarations of inconsistency under the Bill of Rights Act, and to require Parliament to respond.

Justice Minister Andrew Little and Attorney-General David Parker today welcomed the decision.

Andrew Little says, “Declarations of inconsistency can perform an important function by informing Parliament that the senior courts consider an Act of Parliament to be inconsistent with the fundamental human rights affirmed in the Bill of Rights Act.

“The Government supports the senior courts making declarations of inconsistency where there is a legislative power. As there is currently no explicit power in the Bill of Rights Act, amending the Act will allow for this.”

David Parker says: “Parliament occasionally passes laws inconsistent with the Bill Of Rights Act. Currently there is no established route for Parliament to revisit the issue.

“The change proposed is to amend the Act to confer an express power for the courts to make a declaration of inconsistency. That would trigger reconsideration of the issue by Parliament.”

The Courts would not be able to strike down statutory law and Parliament would retain its sovereignty. After reconsideration Parliament could amend, repeal or stick with the law as originally passed.

The Government will carry out further work to enable the change proposed, while protecting Parliament’s sovereignty.

Background information

New Zealand Bill of Rights Act 1990

The New Zealand Bill of Rights Act 1990 is one of the most important pieces of legislation in New Zealand for the promotion and protection of human rights. It sets out to affirm, protect and promote human rights and fundamental freedoms in New Zealand. It also affirms New Zealand’s obligations under the International Covenant on Civil and Political Rights.

What is a Declaration of Inconsistency?

A declaration of inconsistency is a formal statement, granted by a court as a remedy, that legislation is inconsistent with fundamental human rights protected by the Bill of Rights Act. The declaration informs the public and Parliament that in the court’s view, an Act is inconsistent with fundamental human rights. A declaration of inconsistency does not affect the validity of the Act or anything done lawfully under that Act. Currently, there is no explicit power in the Bill of Rights Act to issue declarations of inconsistency.

The matter of declarations of inconsistency has also been the subject of recent court proceedings. In 2015, in Taylor v Attorney-General, the High Court issued a declaration of inconsistency for the first time. This declaration was that a provision of the Electoral Act 1993 disqualifying all sentenced prisoners from registering to vote is inconsistent with voting rights affirmed by the Bill of Rights Act. The matter of whether the senior courts can issue such a declaration has reached the Supreme Court, which will hear an appeal in March 2018.

Previous consideration of Declarations of Inconsistency

In 2011, the Constitutional Advisory Panel was appointed to listen to and record New Zealander’s views on constitutional issues. As part of its consultation with the public, it considered amendments to the Bill of Rights Act. Its recommendations, released in 2013, included that the Government explore options for improving the effectiveness of the Bill of Rights Act such as giving the judiciary powers to assess legislation for consistency with the Bill of Rights Act.

Labour moves to legalise abortion

New Zeasland’s laws that cover abortion are a sham – they are effectively largely ignored, although they make women go through a demeaning process.

But they may soon be addressed by Parliament, something that’s long overdue. Past governments have chosen to sweep the sham under a big rug.

Newsroom: Labour moves to legalise abortion

Andrew Little surprised observers today when he revealed that a draft referral on reforming New Zealand’s abortion law had been circulated to New Zealand First and the Greens. Little said today that he received a letter from Prime Minister Jacinda Ardern after the coalition was formed directing him to begin the process of reforming the law. Once the two parties give feedback, the referral will be sent to the Law Commission to make a recommendation.

Abortion in New Zealand is a crime under the Crimes Act, although the Contraception, Sterilisation, and Abortion Act of 1977 allows a woman to have an abortion if she meets certain criteria and proves her need to two physicians.

Critics argue that the current legislation is out of date, inequitable, and the cause of unnecessary distress.

Currently, abortion can be granted on the grounds that the pregnancy is a risk to the physical or mental health of the mother; that there is a substantial risk the child will be seriously handicapped; that the pregnancy is a result of incest; or that the woman is deemed to be “severely subnormal”.

In 1980, a medication called RU-486 was developed allowing non-invasive medical abortions to take place for the first time. In 1987, France became the first country to legalise medical abortions.

Thirty years later New Zealand still has unfit for purpose law.

New Zealand’s law, written three years before RU-486 was developed, stipulates that abortion must take place in a clinic. This provision, intended to prevent dangerous back alley abortions, means that patients must travel to the clinic twice, simply to take a pill. For patients in rural areas, this can be a long and expensive exercise.

Dr Christine Roke, National Medical Advisor to Family Planning, said the added steps were a barrier to best practice.

“It adds time and it adds cost,” said Roke.

New Zealand is an outlier among OECD countries for the time it takes to get an abortion and the way abortions are provided to patients.

In New Zealand, a patient must be referred to two specialists to sign-off on the abortion. If one refuses, the woman may need to find a third specialist. The average time from referral to procedure is 25 days.

In New Zealand, only 15 percent of abortions are medical abortions. By contrast, 62 percent of abortions in the UK are medical abortions and 45 percent of abortions performed before nine weeks (two-thirds of the total number) in the United States are medical abortions.

We are a long way behind the times on this.

During the election campaign, Prime Minister Jacinda Ardern expressed her personal view that should abortion be taken out of the Crimes Act so it is likely that this will form some part of the reform.

On Tuesday, Andrew Little refused to give much detail on what reform might look like, but suggested it might be broader than taking abortion out of the Crimes Act.

“There are more issues than just what’s in the Crimes Act … it’s also the hurdles that have been put in the way of women who are faced with making that decision,” he said.

The vote would be a conscience vote, meaning MPs would be given the ability to vote freely without following a party line. Reform is likely to be supported by the Prime Minister, liberal members of her party and the Green Party.

It would also require support from some NZ First and/or National MPs if it is to progress New Zealand abortion laws and practices into the 21st century.


Hagaman v Little appeal rejected by Supreme Court

The defamation case Hagaman v Andrew Little has reached a conclusion in the Supreme Court, where an appeal on behalf of Earl Hagaman has been rejected.

In April 2017 a jury could not decide on some claims in a defamation case brought by Earl and Lani Hagaman against then Labour Party leader Andrew Little. The jury found that one comment wasn’t defamatory, one was but they couldn’t decide if ‘qualified privilege’ was an adequate defence, and they couldn’t decide at all on four other claims.

An appeal was filed, but not long after the trial (25 May) Earl Hagaman died.

Since then Lani Hagaman has tried to argue that an appeal should survive Mr Hagaman’s death, but has failed.

The Supreme Court ruling follows a Court of Appeal judgment in November:

[1] Does the late Mr Hagaman’s appeal against a High Court Judge’s ruling in a defamation trial survive his death? That is the question this judgment is concerned with.


[2] Mr and Mrs Hagaman owned a large New Zealand hotel chain. In 2014 Mr Hagaman made a substantial donation to the governing National Party of New Zealand. The Hagamans’ hotel chain later received Niue Government funding to
upgrade a hotel in that country. The ultimate source of that funding was New Zealand Government aid assistance. The Leader of the Opposition Labour Party of New Zealand, Mr Little, drew a connection between these events in a series of six
public statements.

[3] The Hagamans issued proceedings in defamation against Mr Little in June 2016. Trial commenced in April 2017. During the trial Clark J ruled that the six statements were protected by qualified privilege. The jury were agreed that
Mrs Hagaman’s claims failed. They also agreed that two of Mr Hagaman’s six claims failed. But they could not agree on the other four. Judgment was entered in the High Court for Mr Little against Mrs Hagaman. No judgment was entered in relation to Mr Hagaman’s claim.

[4] The present appeal against the Judge’s ruling concerns one only of those four disagreed claims — the second cause of action. The appeal was filed in April 2017. Mr Hagaman died in May 2017. Although his personal representatives have not yet been substituted as appellants, they are responsible for the present conduct of the appeal and accept responsibility for any costs ordered on it.

[5] The question trail on the second cause of action given to the jury by the Judge, and the answers they gave, were as follows:
First named plaintiff (Earl Hagaman): Second cause of action
5. Do the words set out in paragraph 10 of the second amended Statement of Claim carry any of the meanings set out in paragraph 11?
6. If the answer to any of issue 5 is “Yes”, is that meaning defamatory of the first named plaintiff (Earl Hagaman)?
7. If the answer to issue 6 is “Yes” was the defendant (Andrew Little) motivated by ill-will towards the first named plaintiff (Earl Hagaman) or, did the defendant take improper advantage of the occasion of publication?
8. If the answer to issue 7 is “Yes”, then assess:
(iii) General damages $
(iv) Exemplary damages $

[6] The practical question we must decide is whether the jury answers on the second cause of action amount to a verdict for Mr Hagaman. We will now explain why this point matters.

When does an appeal in a defamation claim survive death?

[7] The old common law rule was that personal actions in tort (including defamation) abate upon the death of the plaintiff (or the defendant): actio personalis moritur cum persona. The rationale for the rule is that such an action is personal to the victim and his or her tortfeasor, and should not devolve to their estates. Professor Pollock called it a “barbarous rule”. The effect of the rule, as we will see, rather depended on the stage the claim had reached.

[8] The rule was abolished in part by statute in 1936, permitting the continuation of an action despite the death of a party.

[9] Defamation is excluded from the reforming effect of s 3(1). That simply means that the reform (creating a new statutory survival rule for other torts) does not apply to it. For defamation the old common law rule continues.

[10] Whether a defamation claim abates with death or not ultimately depends on the stage the proceeding has reached.

Does Mr Hagaman’s appeal survive his death?

[14] We are concerned only with the second cause of action. Mr Tizard for Mr Little submits there is neither verdict nor judgment on that cause of action. It follows it has abated and the appeal must be dismissed. Mr Fowler QC for Mr Hagaman’s representatives submits that although there is no judgment, the cause of action does not abate because there is at least a verdict. He submits that the jury answers constitute a special verdict finding that Mr Hagaman was defamed by Mr Little.

[15] A special verdict is one where the jury is asked to respond with answers to a series of questions rather than simply stating whether they find for the plaintiff and in what amount.

[16] But an incomplete set of answers will not amount to a verdict for one party or the other. A verdict is a conclusive determination of all factual issues within a cause of action, for one party or the other. The verdict can then be perfected by entry of judgment. In defamation a verdict for the plaintiff must include the jury’s award of damages; otherwise it is incomplete and void.

[17] It is evident that in this case the jury was asked by the Judge to respond to a series of questions, the intended result of which would be a special verdict on each cause of action. This produced verdicts for Mr Little on the causes of action alleged by Mrs Hagaman. It also produced verdicts for Mr Little on the fifth and sixth causes of action alleged by Mr Hagaman. Here the jury, asked questionse, answered either that the words did not bear the meaning alleged or that the meaning was not defamatory. That meant, as the question trail makes clear, that the jury had no more work to do. The answers were complete, even though not all questions had been answered.

[18] The same cannot be said of the second cause of action. The jury’s work was incomplete. Having answered the first two questions affirmatively, they had to go on and answer the third. But they could not agree on it. That is not a special verdict, because there is no conclusive answer on that cause of action. No judgment upon it could be pronounced.

[19] It follows that no verdict was given on the second cause of action. It therefore abates with the death of Mr Hagaman. No appeal may now be advanced upon it. As the whole of the appeal is confined to that cause of action, it also follows that the appeal itself must be dismissed.


[20] The appeal is dismissed.

[21] The appellant’s estate must pay the respondent costs for a standard appeal on a band A basis and usual disbursements.

This decision was appeared in the Supreme Court. RNZ: Little defamation appeal rejected by Supreme Court

A bid by the late Earl Hagaman’s estate to continue a defamation case against former Labour leader Andrew Little has been dismissed by the Supreme Court.

Mr Hagaman – who died in May last year – and his wife Lianna-Merie sued Mr Little for statements made about a hotel contract.

A jury was not able to reach a conclusive verdict.

Mr Hagaman’s widow tried to continue the case, taking it to the Court of Appeal.

It ruled the case could not continue after Mr Hagaman’s death and the decision was taken to the Supreme Court.

The Supreme Court decision today said the arguments by Mr Hagaman’s representatives were not sufficient to warrant a retrial.

Mr Little has been awarded costs.

So a win and costs award for Little, but it will have (hopefully) been a lesson to him. He will obviously not want to be taken to Court again, especially now he is Minister of Justice and Minister for Courts.

Abortion law reform on the table

In New Zealand it’s fairly easy to get a safe abortion, but to do so it’s necessary to claim harm that may be more fabricated than fact.

During the election campaign Jacinda Ardern said she would shift abortion out of the Crimes Act, something that’s long overdue. She said…

“…there will be a majority of Parliament that think, actually in 2017, women shouldn’t face being criminals for accessing their own rights”.

In contrast then prime Minister Bill English said the current sham was “broadly satisfactory” and didn’t need changing.

Now Minister of Justice Andrew Little  is starting a process to look at how to change the law.

Stuff:  Government takes first steps towards abortion law reform

Abortion is a polarising issue with laws that haven’t changed in 40 years. It became an election issue last year when Jacinda Ardern stated in a fiery leaders’ debate that she would shift abortion out of the Crimes Act, where it has been since 1977.

Justice Minister Andrew Little told Stuff this week that Labour wants to “modernise” the laws and see abortion treated as a health issue – not a criminal one.

That means he will soon write to the Law Commission to get advice on the best process for doing so.

Significantly more people support change than oppose it.

In December, Family First commissioned a poll of 1013 New Zealanders found 52 per cent of people generally support abortion while 29 per cent are opposed.

Interestingly, 53 per cent of those who generally support abortion think the time limit for getting one should be less than the current 20 weeks stated in the Crimes Act.

That may depend on how the time limit question was asked. I think that most people would ideally prefer a shorter time frame, but most would also probably support longer times in special circumstances – such as when the mother’s life was in danger.

When, as seems likely, the law change comes to be voted on in Parliament, it will see politicians from either side of the aisle with contrasting views.

National leader English has previously called the current setup “broadly satisfactory”.

His caucus isn’t united in that view though, for example, Nikki Kaye has called the current law “archaic”.

National’s justice spokeswoman Amy Adams told Stuff reforming abortion laws “hasn’t been a focus of the National Party” and she’d want to see proposed changes before commenting further.

‘Not a focus’ is politician speak for avoiding addressing an issue that should be dealt with. It has also been an excuse used, ironically, by Andrew Little when he was Labour leader and pulled a Member’s Bill on euthanasia (taken over by David Seymour, drawn from the ballot and now before Parliament).

Similarly Ardern has previously said she expected some of her own caucus would oppose a bill proposing changes to the law.

When it comes to a vote in parliament it should be a conscience issue. Some MPs are likely to put their own views ahead of the views of their constituency, but that’s how things have always worked. But if the time is right to fix a fudging of current law then Parliament should have enough votes to sort it out.



Political carols

Excerpts from Toby Manhire: Walking in a Winston Wonderland

We Three Things:

Jacinda Ardern solo:
Just a kid from Moh-orrinsville
Keen to help out Andy Little
It’s not hubris, to just do this
Truth is that I quite like Bill
James Shaw solo:
Great Together, I believe in
Speak the truth – that’s how we win
Metiria, great co-leader
Popped into recycling bin
Winston Peters solo:
Had enough? Too right they had
Status quo was very bad
Need a deadline? Watch it, Sunshine
Covfefe, believe me, sad!

We Wish you a Merry Christmas
Feat Bill English

We wish you a Merry Christmas
We wish you a Merry Christmas
We wish you a Merry Christmas
And would just note in passing that the National Party won more votes than anyone and yet is not in government which a lot of ordinary New Zealanders will find surprising as they approach their Happy New Year.

Gareth the Red Mo’ed Reindeer
As sung by Gareth Morgan

Gareth the Red Mo’ed Reindeer
Had a very small ego
But all the lipsticked reindeers
Were a bunch of thick bozos

Fiscal Spells
As sung by Steven Joyce

O! Fiscal spells, fiscal spells
Fiscal hole, OK?
O what fun it is to ride
When you’re running the campaign.

Little Drummer Boy
As sung by Andrew Little

Come they told me, pa rum pum pum pum
Just a new deputy, pa rum pum pum pum
Must replace Annette King, pa rum pum pum pum
Anyway you know what happened after that and it’s all fine now.

Mārie Te Pō
As sung by Don Brash

Mārie te pō, tapu te pō
Marino, marama
Ko te Whāea, me te Tama
Tama tino, tapu rā
Moe mai i te aio
Moe mai i te aio.

Google doesn’t translate that well, but it is obviously

Silent night, holy night, calm, bright etc.

Whāea is mother, Tama is boy/sun but no sign of a virgin there.


Reform for Official Information act

It’s debatable whether the Official Information Act needs reforming, or if Government Ministers and officials need to be required to comply with the Act as it is. There has been creeping avoidance of complying properly with the Act over successive Governments.

Listener: Information wants to be free – why is the OIA an obstacle?

Chief Ombudsman Peter Boshier has been blunt: the advice that ministers receive from their officials has been deliberately dumbed down, as a consequence of the Official Information Act (OIA).

Its vital contribution to our freedom and governmental accountability has, over successive administrations, been undermined by fear. Subtle and even blatant political heavying from ministers and officials’ self-protective desire not to cause trouble have led state agencies to increasingly refrain from offering potentially contentious advice, because they know it will become public and embarrass them and/or their minister.

Another growing trend has been deliberately to delay compliance with an OIA request, or flat out deny it.

Boshier has reversed the latter trend in his two years in the role, partly by making it clear he will name and shame those who fail to co-operate in good faith with the OIA’s processes. But he’s right to say we need new leadership to restore the Act to full efficacy and public respect. In his briefing to the incoming Government, he has usefully clarified the law as it stands, and as he believes officials should adhere to it.

That suggests that the Act may be sufficient as it is as long as it is complied with.

The headline clarification is a presumption that all official information will be released, and released in a timely manner, unless there are special reasons not to.

A further one is that officials asked to release something under the OIA must not then ask their ministers whether they may do so. It is their obligation to release it unless exempted, and they are only duty-bound to tell ministers to avoid surprises.

Ministers shouldn’t be involved in decisions on what should be a process, not a choice.

Boshier is on the record as noting a culture of transparent Government has to start with strong leadership.

Some have called for the Ombudsman’s office to have stronger powers of coercion, including making serious non-compliance an imprisonable offence. But a better buttress to information freedom would be to automate Boshier’s newly elucidated presumption that all information can be released unless it would cause a serious mischief.

Why not a system where, by default, all background papers to a governmental decision are released automatically? This could perhaps happen after early consultations, but before legislative proposals are finalised. Rather than relying on people to request information, why not put the onus on a department or minister to seek, via the Ombudsman, permission not to release it?

It is, after all, our information.

The OIA came up in Parliament yesterday, with Brett Hudson questioning the Minister of Justice Andrew Little. Transcript (with bickering and diversion edited out):

9. BRETT HUDSON (National) to the Minister of Justice: What reform is he planning to make to the Official Information Act 1982?

Hon ANDREW LITTLE (Minister of Justice): The Act is almost 35 years old, and the public’s expectations about access to official information are greater now than ever before…the Official Information Act is the responsibility of the Minister of Justice. As stated in the Speech from the Throne, this Government will foster a more open and democratic society—

Brett Hudson: I raise a point of order, Mr Speaker. I just note that the Minister in his response claimed that the Act was under the responsibility of the Minister of Justice. I refer that Minister, and your good self, to the Department of the Prime Minister and Cabinet (DPMC) website, which is very clear in the delegations for the Associate Minister of State Services (Open Government) that all matters of official information and the Official Information Act are under the delegations for that Minister.

Mr SPEAKER: And I’m going to deal with that. It was a matter that was referred to because it was a question about where the question was going. The Act is administered by the Minister of Justice.

Brett Hudson: Under his planned reform, will it be the norm for the Chief Ombudsman to have to make a recommendation in order for documents to be released?

Hon ANDREW LITTLE: The approach that this Government has taken to official information is to look to the report of the Law Commission in 2012, which the previous Government did nothing about; the recommendations of the Chief Ombudsman in 2015, which the previous Government did nothing about; and to look to questions of attitude and behaviour, because that is the way we will change the effectiveness of the Official Information Act.

So will Little, Ardern and the government walk the walk and “to look to questions of attitude and behaviour, because that is the way we will change the effectiveness of the Official Information Act”, because the OIA ball is in their court.


Adams v Little on Pike River re-entry liability

In Parliament yesterday Amy Adams questioned Andrew Little, the Minister responsible for Pike River Re-entry, about liability for any decision to re-enter the Pike River mine.

There is a lot of credibility and responsibility riding on mine re-entry for Little and Labour.


7. Hon AMY ADAMS (National—Selwyn) to the Minister responsible for Pike River Re-entry: Who will bear potential liability under health and safety legislation for any re-entry of the Pike River drift that he approves, and what is the range of penalties that could be imposed on them in the event of a breach of workplace safety obligations?

Mr SPEAKER: Before I call the Hon Andrew Little, I will indicate to the House that I have been informed by the Minister’s office that this is likely to be a longer than normal answer, and, because of the important nature of it, I’ve allowed that.

Hon ANDREW LITTLE (Minister responsible for Pike River Re-entry): Thank you, Mr Speaker. To the first question: there are potentially many people liable as required under the Health and Safety at Work Act, which was passed by her Government. This includes employees, contractors, and subcontractors. Health and safety after all, as we all know, is a shared responsibility.

To the second question: in so far as the member would be aware that I am unable to give legal advice, the penalties in the legislation range—depending on whether they are an individual or a company—from an up to $50,000 fine for failing to comply with a health and safety duty or up to five years in prison or an up to $3 million fine for reckless conduct exposing someone to the risk of death. These penalties will only be applied where the agency fails to meet its obligations. But I can reassure her that I have every intention of ensuring that the re-entry work is consistent with health and safety obligations.

Hon Amy Adams: What was the recommendation from his Ministry of Business, Innovation and Employment (MBIE) officials on the optimal decision-making structure for Pike River re-entry, given those health and safety obligations, among other things?

Hon ANDREW LITTLE: I received advice from MBIE and also from the State Services Commission, and I followed the State Services Commission advice, which was for an arrangement that allowed for maximum accountability to this Parliament. That’s what I am here for.

Hon Amy Adams: Why did the Minister reject official advice that a decision about safe re-entry will be best achieved by ensuring the decision maker is independent, with the decision maker being the holder of the key duties of care around ensuring health and safety?

Hon ANDREW LITTLE: In putting together this project, I was acutely aware that the previous Government had handled the families involved in this matter in a completely shabby and appalling way, and I wanted to ensure that the arrangements we put in place allowed for full accountability to this Parliament, engaged the families fully and properly, allowed for good quality advice at all levels, and complied with our health and safety legislation.

Hon Amy Adams: Why did the Minister reject advice that the best decision would come from an independent decision maker?

Hon ANDREW LITTLE: I got a range of advice, including from the State Services Commission, which expressed their preferred option about having a structure that allowed for maximum accountability to this Parliament as well as flexibility and responsiveness. The member should read the papers properly.

Hon Amy Adams: On what basis does the Minister think it’s reasonable to expect public servants that report to him to carry the burden of criminal responsibility for decisions that that Minister makes?

Hon ANDREW LITTLE: That member misunderstand the law that her Government put in place called the Health and Safety at Work Act, and she misunderstands the implied obligations in every employment agreement for every employee. Every employee, contractor, subcontractor—anybody involved in a task—has duties under the Health and Safety at Work Act. No employee under our employment law can be required or instructed to undertake unsafe work, and no employer can issue an instruction that is unlawful and unreasonable—and that won’t happen in this project.

Hon Amy Adams: I seek leave to table a document prepared by the Parliamentary Library for my office that makes it quite clear that the chief executive of the agency is criminally responsible.

Mr SPEAKER: Is there any objection to the tabling of that document? There appears to be none.

Document, by leave, laid on the Table of the House.

Pike River Agency CEO liable if re-entry goes wrong

Andrew Little and Labour intend handing over responsibility of whether a Pike River re-entry attempt is made to the Recovery Agency they are setting up, and if re-entry is attempted and something goes wrong the agency chief executive will be liable. I suspect that applicants for the job may be limited.

Stuff:  Pike River Recovery Agency chief executive liable if re-entry goes wrong, not Andrew Little

The chief executive of the Pike River Recovery Agency will be held responsible if anything goes wrong with the re-entry of the drift.

Last month, the Prime Minister and Andrew Little – the Minister Responsible for the Pike River Re-entry, announced the Government would establish a government department by the end of January 2018 to assess the risk associated with a manned re-entry, and the best way to carry out the entry.

The entry of the mine’s drift, and the recovery of any remains of the 29 men killed in 2010, would be completed by March 2019.

Both Jacinda Ardern and Little said there would be risk involved with a manned re-entry, but it was up to the agency to assess the risk and to mitigate it, and if the level of risk was acceptable, go forward with the re-entry.

Despite promises by Winston Peters and Labour that there would be re-entry into the mine they are handing over responsibility to someone else.

At the time of the announcement, Little said the agency – Te Kahui Whakamana Rua Tekau ma Iwa (The Empowering Voice for the Pike 29) – would answer to him, and as the minister in charge, he would have the final decision.

Apparently not now.

He refused to respond to questions on who would be held liable, under New Zealand health and safety laws, if something went wrong.

However, documents relating to the establishment of the agency show the chief executive of the agency would be held legally responsible if something went wrong.

So Little wasn’t prepared to be up front about what he is organising, and is also handing over both the ultimate decision plus liability to someone else.

A ministerial briefing paper from November 3, said the liability would rest with those instructed by the minister, not the minister.

In order to remove that legal liability, health and safety laws would have to be changed – something the Government decided not to do.

Establishing an independent decision maker from the outset, would provide clarity on who was accountable for the decisions around safety, the briefing document said.

“It sets a clearer level of expectation around single focus and impartial decision making.

“If you wished to retain a departmental model to keep the entity closer to government, then the chief executive … could be given the statutorily independent role of determining whether re-entry should go ahead.

“In addition, without legislation, the Minister could potentially be exposed to accessorial liability in the event that something goes wrong in the course of re-entry activities.”

“A decision about safe re-entry will be best achieved by ensuring the decision-maker is independent,” the document said.

The decision-maker should be responsible for developing “a robust and credible plan” for safe recovery of the drift, including engaging fully with the Pike River families and their experts, and then charged with implementing this plan.

“This provides clear lines of accountability, with the decision maker and implementer of the decision being the holder of the key duties of care around ensuring health and safety.”


December 2016: Winston Peters says Pike River re-entry is bottom line to election deals 

Winston Peters says re-entering Pike River mine is a “bottom line” to any election deal made next year.

In interviews this morning, Peters also reiterated his claim that he will enter the mine himself.

“I’m making no bones about it, we’ll give these people a fair-go, and yes this is a bottom line, and it shouldn’t have to be”.

Any political party seeking New Zealand First’s support to form a government in the 2017 election will have to commit to re-entering the mine.

September 2017: Pike River families give their blessing to Jacinda Ardern as she visits region where Labour started

Ardern met with family members at the Pike River memorial on the West Coast to re-state her commitment to re-enter the mine in which 29 miners died following explosions in 2010.

“After all this time, the least we can do is the right thing,” she told them.

Anna Osbourne, whose husband Milton was among those killed, said she was hoping for a change of Government to ensure the re-entry went ahead.

“We’ve had lies, we’ve had broken promises, so I’m hoping for a change of Government,” Osbourne said.

October 2017: Winston Peters meets Pike River families

Families spokesman Bernie Monk told media in Wellington they knew they had Mr Peters’ support.

“He’s a man of his word, and we’re going to support him the whole way… We’ve got full faith in Winston Peters and what he’s going to do.”

Asked if reentering the mine was still one of NZ First’s bottom lines, Mr Peters responded: “What do you think? How many times do I have to tell you?”

The Labour-NZ First Coalition Agreement specifies: “Commit to re-entry to Pike River”.

October 2017: Pike River manned re-entry possible early next year – Little

The minister responsible for re-entry into Pike River, Andrew Little, hopes to get people in to the mine by April next year.

Mr Little told Newhub’s The AM Show today that he had two comprehensive reports and he believes manned entry is entirely achievable.

“There are risks – but there’s risks [in] doing anything.

“So lets clear all that stuff out of the way, lets look at what we know is there, what we know that the technology and the science tells us is possible, and work up that plan.”

The plan seems to be to make someone else make a decision on re-entry and to be liable if anything goes wrong.

4 December 2017: Pike River Recovery Agency chief executive liable if re-entry goes wrong, not Andrew Little

Ardern was asked whether she was comfortable with the legal liability resting on the shoulders of the chief executive.

“I’m confident that we’re going to go through a process that means we’re going to dot all of our i’s and cross all of our t’s,” she said.

“We’ve given ourselves enough lead time to make sure we do this properly.

“But the point ultimately is whether or not we’re doing right by families and that’s what we’ve undertaken to do.”

Gobbledegook and duckingdeduty.