Thursday, September 30, 2021

Gagging the public for ministerial convenience

Earlier in the month I raised the problem of Labour's new Civil Aviation Bill, which includes not one, but two secrecy clauses. The government has finally published the BORA vet on the bill, which actually addresses one of them. Naturally, it finds it consistent with the right to freedom of expression. But the reason it provides is absolutely extraordinary.

The section in question is s199, which was apparently s197 in the earlier draft. It allows the Minister to prohibit publication of any information information involved in a decision concerning international air carriage applications until the decision has been made (at which point it becomes subject to the OIA again). People violating such a gag order can be fined $7,500 (or $25,000 for corporations). The Ministry of Justice considers this justified because:

Restricting the publication or disclosure of sensitive commercial information in the course of decisionmaking serves the important objective of providing decision makers with the opportunity to make decisions free from external influence or pressure.

The information that may be restricted is only that which the Minister considers would prejudice decisionmaking on the application, and the information is subject to the Official Information Act 1982 following the expiry of the restriction.

Well, no. The clause as written allows the suppression of any information connected to the decision, with no test whatsoever on whether it would be prejudicial (maybe the earlier version included these tests; if so, they've been removed). And it applies to everyone in the country, not just the parties to the decision. As for the first bit, is the Ministry really saying that a Minister should be allowed to gag everyone in the country to allow them undisturbed decision-making "free from external influence or pressure"? If so, how is that possibly consistent with freedom of expression? Because Ministers make a lot of decisions, which would mean a lot of gag-orders if this is allowed.

Even if the orders applied only to the parties, is it really OK for the government to gag people simply because they don't want the "disturbance" of them talking while they are trying to make a decision? I don't think so. Its one thing for the government to refuse to release information (and even that I think is dodgy, rooted in an archaic ideology of top-down government which sees the public as an unwanted distraction rather than participants). But gagging other people requires extraordinary justification. Your voice being inconvenient to the Minister isn't good enough.

If we look at this from first principles, and taking the Ministry of Justice's view on what sort of information is viewed as needing protection at face value, there is no need whatsoever for a secrecy clause. The Minister can already refuse any OIA request for sensitive commercial information or for confidential advice on their decision under existing clauses of the OIA (subject to a public interest test, and with the latter protection ending once the decision is made). And that is all the protection they need. Anything more is unnecessary. Gagging the public with criminal sanctions is certainly unnecessary. And insofar as it is not "as little interference as possible" with the right to freedom of expression, this clause clearly cannot be regarded as a justified in a free and democratic society.