Killing the hat game

Newsroom has a followup piece about its complaint about Stuart Nash refusing to release compromising emails to donors in which he revealed cabinet discussions. Nash had used the "hat game", claiming that those communications were made in his capacity as an MP, not a Minister, and so not covered by the Official Information Act (and so, for OIA purposes, they did not exist). Newsroom had complained, then dropped the complaint when the Ombudsman took too long, then revived it when the emails were leaked and Nash was sacked. And the Ombudsman has now made the obvious ruling: that the emails were held in a Ministerial capacity, and so Nash violated the OIA. That's good, but it gets better, because the Ombudsman has also directly attacked the hat game:

In announcing his decision, Boshier also set out his expectations about how future ministers should respond to OIA requests. He emphasised the importance of transparency and underlined the OIA’s broad application.

“This case highlights the potential for the roles of an MP and a minister to overlap and for information to be held in both capacities. The Official Information Act is an important constitutional safeguard. It is based on the principle of making information available,” said Boshier. “In my view the OIA should apply where there is a ministerial overlap of any kind.”

This is an obvious ruling, given the 2016 ruling that information received by Ministers is official by default, and Ministers have to prove that it was received in another capacity. But its good to have it formally stated. And hopefully there'll be an official case note, so that Ministers will have no excuse, and for requesters to refer to when Ministers illegally try and hide information.

Adding criminal penalties to the OIA

In the wake of Stuart Nash's unlawful withholding of official information to hide his corrupt disclosure to donors, there have been multiple calls for criminal penalties to be added to the OIA to deter such behaviour. Graeme Edgeler makes the case well in The Spinoff, Newsroom interviews a bunch of experts who are all united on it, and even ACT has got into the game. And so they should. 72 countries have such laws, and we are weird for not having them - especially when we clearly have a problem with wilful hiding of information.

To help things along, I've taken a first stab at a bill on the Progressive Bills Project wiki. The bill is based on Canadian and South African law, and provides for a penalty of two years imprisonment for destroying, damaging, altering, concealing, or falsifying records, or directing, counsel or procuring someone to do the same. There's some policy questions that I'm not sure about: should it refer to "records" or "information" (the OIA is unusual in covering the latter)? Should prosecution require the permission of the Attorney-General, as is required for wrongful disclosure and corrupt use offences? Should it just be in the Crimes Act and cover LGOIMA as well, or should LGOIMA have its own clause? But I think there's enough there for someone to pick it up and put it in the ballot, and for it to be improved by a select committee. So, how about it? Any MP's keen?

This cover-up needs to be a crime

On Tuesday night, former Forestry Minister Stuart Nash was sacked for corruption, after the Prime Minister discovered he had disclosed confidential cabinet discussions to his donors. Its since emerged that Jacinda Ardern's office knew of this disclosure, but didn't act on the obvious breach of the Cabinet manual, and didn't tell her about it - which smacks of a coverup. And now Newsroom has weighed in, suggesting that Nash deliberately and knowingly violated the OIA:

On June 8, 2021, Newsroom made a request to Nash’s office under the Official Information Act for “All written correspondence and details of the nature and substance of any other communication since the start of 2020” between Nash and 19 of his political donors. Included on the list of donors was Troy Bowker. Given that the June 2020 email to Bowker concerned discussions Nash was having in his capacity as a minister, it appears that the June 2020 email fell within the scope of Newsroom’s request.

In August 2021, however, Nash’s office responded, “I hold nothing that is within the scope of your request as the Act relates only to information provided to me as minister. I must therefore refuse your request under section 18(e) of the Official Information Act as the information does not exist or cannot be found.”

I have two comments here. The first is that there seems to be no reason whatsoever for this request to have been escalated to the Prime Minister's office, and it seems to be another example of Labour's informational control-freakery. The fact that it was the PM's staff who ruled the email "out of scope" because it wasn’t "received in his capacity as a minister" also echoes Gaurav Sharma's claims about the PM's office instructing MPs about how to hide information from the OIA by claiming it was received in a party capacity. (In this case its strictly false, because information from Cabinet discussions can only be held in a Ministerial capacity; the PM's staff's willingness to overlook this calls every OIA judgement they have ever made into question, and suggests they are systematically illegally withholding information on political grounds. Unfortunately, the Ombudsman can't do anything about it, because OIA investigations can only be in relation to a specific request, while Ministers have ensured that the Ombudsmen's Act, which allows own-motion inquiries into OIA practices, doesn't apply to them. Convenient, isn't it?)

My second comment is that this is a perfect example of why the OIA needs criminal penalties for deliberate violations. Canada does this, with the Access to Information Act having a penalty of two years imprisonment for those who, with intent to frustrate a request, conceal, falsify or destroy records. We should do the same, to deter such behaviour and enable public servants to stand up to illegal demands from their political masters. But as with the Ombudsmen's Act, the problem is getting Ministers to apply the law to themselves...

Either way, its clear that the announced review into what else Nash might have corruptly disclosed isn't enough; we also need a full investigation into Labour's handling of OIA requests. And if this government won't do it, I'd hope the next one will.

Sacked for corruption

So, after interfering with the police, and then interfering with immigration decisions, Stuart Nash has finally been sacked:

Stuart Nash has been sacked as a minister, after Stuff revealed he had emailed business figures, including donors, detailing private Cabinet discussions.

Prime Minister Chris Hipkins confirmed the people Nash emailed were donors to his campaign, which he said was a serious breach of trust and expectations for ministers.

“His conduct is inexcusable,” Hipkins said. “He is no longer a Cabinet minister and won’t be coming back.”

Good. Because there's a name for spilling sensitive cabinet information to your donors: corruption. People who do that should have no place in cabinet, no place in parliament, and indeed no place in our politics at all. So its not enough for nash to just be sacked: he needs to resign from Parliament as well.

While on this occasion Nahs was just venting, the real worry here is what else he has disclosed, and whether anyone made money off it. Because that's a serious criminal offence, and one which would cast serious doubt on the integrity of our political system.

(Meanwhile, pre-sacking, Newshub had raised the issue of how Nash could possibly be seen as holding a credible inquiry into forestry slash when he had received thousands of dollars in donations from the forestry industry. Its a good question. And the fact that he was appointed Mininster of Forestry with those donations hanging over him shows very poor judgement on the part of those who appointed him).

Stuart Nash: Funded by racism

Troy Bowker is a racist. And as Newsroom shows this morning, he's been funding one of our most conservative and foot-dragging cabinet ministers:

Stuart Nash, Minister of Regional and Economic Development, received at least $51,000 in direct and indirect donations from Troy Bowker, the controversial investment banker who recently accused animation entrepreneur Sir Ian Taylor of “sucking up to the left Māori-loving agenda”.

In a response to a LinkedIn comment by Taylor celebrating New Zealand’s Pacific heritage, Bowker said: “Another example of European NZers not being proud of their own ancestors … FFS. Wake up NZ.”

[...]

Bowker and Nash have a longstanding political relationship. According to donation records filed with the Electoral Commission, Nash received a total of $51,000 from Bowker over the 2014, 2017 and 2020 elections – either directly or through Bowker’s investment company Caniwi Capital. Bowker also helped fund a 2014 report examining the possibility of establishing a new centrist party, led by Nash, to compete with National and Labour. Nash has repeatedly described Bowker as a “mate”.

At this stage the political class pooh-poohs any suggestion of undue influence with the claim that $50,000 isn't a lot of money. And everyone else in New Zealand laughs bitterly at them, because to us, its a fuck-ton of money. Not Auckland-house-deposit money, but enough to make a normal person a hell of a lot more comfortable. And you don't give someone that amount of money unless you either have deep ideological similarities, or you want something in return. Nash needs to explain which of those categories he falls into. And if he wants to eliminate the lingering taint, he needs to return it to sender as quickly as possible.

Meanwhile, thanks to Aotearoa's secretive election funding laws, we have no idea how much money Bowker has given to political parties (as opposed to candidates). He could have given any of them up to $15,000 a year, and we'd be none the wiser. We need to fix that, by lowering the disclosure threshold immediately.