Thursday, October 06, 2011

The constitutional status of the OIA

The Ombudsmen Annual Report for the year ended 30 June 2011 [PDF] was released yesterday, and I've spent this morning reading it. OIA complaints reached an all-time high last year, though were down in many departments (the big exceptions being Corrections, Labour and MSD). John Key was the only Minister to attract more than 15 complaints. But the interesting part of any Ombudsman's annual report is the section on significant decisions. And this one has a very interesting one, about the constitutional status of the OIA. Someone had requested information about the citizenship status of an individual, and been refused on the basis that it would be contrary to an enactment - specifically the Citizenship Regulations 2002. The Ombudsman found that it would indeed be contrary to those regulations, but that it did not matter because the derogation was not explicit enough:

The Ombudsman accepted that release to the requester would be contrary to regulation 15. However, he did not accept that a regulation made after 1 July 1983 could have the effect of overriding the OIA unless the empowering provision under which that regulation was made expressly or impliedly provides for the presumption of availability of official information under the OIA to be abrogated. To accept otherwise does not do justice to the constitutional status of the OIA. There was nothing in the empowering provisions in the Citizenship Act 1977 that justified the setting aside of one’s obligations under the OIA. Accordingly, the Ombudsman did not accept that section 18(c)(i) of the OIA could apply.

In our view, Parliament must have made clear its intentions to override the OIA by way of primary or pre-existing secondary legislation in order to have that effect.

(Pre-1983 regulations are protected by the OIA's savings clause).

This is, I think, something new. But its also the way our constitution evolves. The courts have gradually taken this sort of view with both the Treaty of Waitangi and the BORA: that any derogation must be explicit and leave no room for doubt, because the constitutional (and in the case of the BORA, statutory) presumption is that Parliament would never derogate from these accidentally and therefore a consistent interpretation must be found. Now the Ombudsman is playing the same game on transparency. The result will be a more open government, and an even greater presumption against statutory secrecy. And that will be better for all of us.