Wednesday, September 08, 2021

More Labour secrecy

The government introduced a new Civil Aviation Bill to modernise the 30-year-old Civil Aviation Act and 55-year-old Airport Authorities Act today. Which is not normally the sort of bill I would comment on, except that it includes not one, but two new secrecy clauses.

The first of these in section 199 applies to information provided as part of an application for an international air carriage cooperation agreement (so e.g. something like Star Alliance, which raises questions around cartels and price fixing). Under this section, the Minister can make an order forbidding the publication of such information, or the giving of evidence about it. This isn't a duty of confidentiality on the government - its the equivalent of a court suppression order, but by Ministerial decree, applying to the media. And it allows fines of up to $25,000 for any person who violates it.

These orders expire when an application for a cooperation agreement is finally determined or withdrawn, so the purpose of them is clearly to protect commercially sensitive information. This is of course already protected by the Official Information Act, and while the public interest in withholding must be balanced against the public interest in release, the interpretations by the Ombudsman make it one of the stronger reasons to withhold. So what's the case for secrecy? And what's the case for gagging the public, in a prima facie violation of the BORA's affirmation of the right to free expression? The explanatory note doesn't say, simply passing it off as "provid[ing] further for how the Minister may deal with the application". And that is apparently the standard of disclosure the government provides on secrecy and undermining constitutional and quasi-constitutional legislation.

(Also worth noting: there's apparently no BORA vet on this bill. And from its title, I wouldn't have picked it as engaging free expression issues either).

The second clause, section 456, prohibits publication of any information or document obtained by the Civil Aviation Authority in exercising any of its functions, duties, or powers, except under specified circumstances (weirdly, the explanatory note says that the clause "allows" publication, but the way it is worded forbids it in all circumstances other than those specified). Effectively, this is a catchall secrecy clause which exempts the CAA from the OIA. The justification? Rather than say specifically what the concerns are or what information needs to be protected and why, the explanatory note simply says that the section is "modelled on sections 109A and 109B of the Land Transport Management Act 2003", which was passed last year. So, secrecy is being used to justify secrecy, and one agency being exempt is used as a justification to exempt others.

Both clauses are completely new; there is nothing remotely like them in the existing Civil Aviation Act. So this is a significant erosion of the level of transparency we have over a government agency.

These clauses have become more common and more onerous over the past few years, and it is clear now that this government has an unstated policy of chipping away at the OIA, exempting agency after agency with broader and broader secrecy clauses and without ever providing any justification. Which may be convenient for bureaucrats, but it is inherently damaging to transparency, accountability, and our ability to participate in public decision-making. And that is simply not good enough. We deserve an open, transparent and accountable government. And that means not passing legislation like this.