Thursday, April 17, 2014


Below is my draft submission on the Environmental Reporting Bill. I'm primarily interested in the freedom of information issues; I expect other groups to be focused on the reporting itself.

  1. I support the aims of the Environmental Reporting Bill of giving us regular, independent reporting on the state of our environment. Such reporting is vital as a mechanism to assess the success of government policy, as well as to identifying potential environmental problems.

  2. I have serious misgivings about some sections of the bill, particularly those relating to the selection of topics and the disclosure of information. I therefore ask that the bill be amended to address those concerns.
  3. I do not wish to appear before the Committee.

    Selection of topics

  4. Section 18 of the Bill provides for the Minister to specify the topics to be covered within synthesis and domain reports by Order in Council. Before prescribing such topics, the Minister must consult the Government Statistician and the Commissioner. This is a useful safeguard; however consultation is not the same as listening, and it still permits a perception that topics may be selected (or not selected) on political grounds. For example, a Minister under pressure from the dairy industry could select topics in such a way as to gloss over problems such as "dirty dairying". This perception undermines the purposes of the bill.

  5. There are two obvious solutions. One is to have the topics specified in law, for example as a schedule to the Bill. A second would be to allow the Government Statistician and the Commissioner to jointly select topics. Either would remove the perception of political interference (or, in the case of a schedule, require that it be exercised so publicly as to dissuade politicians from doing so). On balance, I would prefer specification in law.

    Disclosure of information

  6. Section 16 of the Bill allows the Secretary of MfE and the Government Statistician to veto the release of "information or analysis that will be, or has been, used in an environmental report". The veto power "applies despite any other enactment". From the departmental disclosure statement and the policy background to the Bill, the purpose of the veto power is to ensure that reporting is independent of the government of the day. However, the power goes well beyond that, restricting the right of access to information not just of government Ministers, but of the general public, and not just before a report is published, but also after.

  7. The Official Information Act 1982 is "a constitutional statute of major importance".1 It is a fundamental means of ensuring the public accountability of Ministers and public sector agencies. Overriding it requires extremely strong justification. Such justification does not appear to exist.

  8. In assessing the justification for overriding the OIA, the comparable scheme for overriding the New Zealand Bill of Rights Act 1990 is helpful. In order to be justified, a limitation must serve an important public purpose, be rationally connected to that purpose, be proportionate to that purpose, and the least drastic means of achieving it.2

  9. Ensuring the independence of environmental reporting is an important public purpose. However, restricting public access to information about such reports runs contrary to that purpose. Rather than being a threat to independence, transparency is a means of protecting it. The best way to ensure that Ministers do not interfere in the production of an independent report is for their communications to be subject to the OIA and to be released on request. The best way to ensure that the conclusions of a report are seen to be robust and independent is to pro-actively release all drafts and working material at the same time as the report, so the public can see that that is the case.

  10. The veto power is also disproportionate. Quite apart from questions of scope or the fact it applies both before and after publication, the OIA already contains a legislative scheme allowing information to be withheld where release would cause identifiable harm and would not be outweighed by the public interest. That scheme was developed by a Royal Commission, has been the subject of thirty years of jurisprudence and interpretation by the Ombudsman, is well understood and has been repeatedly reviewed. In the most recent review, the Law Commission did not identify any need for new withholding grounds. To the extent that "information or analysis that will be, or has been, used in an environmental report" can already be withheld under the Act, the new veto power is unnecessary. To the extent that it cannot, it is unjustified.

  11. As noted above, the veto power "applies despite any other enactment". This does not just override the OIA, but also the information-gathering powers of Officers of Parliament contained in the Public Audit Act 2001, Environment Act 1986, and Ombudsmen Act 1975, the commission of inquiry powers of the Waitangi Tribunal exercised under the Treaty of Waitangi Act 1975, the statutory powers of the judiciary, the privileges of Parliament, and indeed the protections of the New Zealand Bill of Rights Act 1990.3 The idea that such a broad-reaching power which trumps all other legislation (including fundamental constitutional Acts) is a least drastic means is simply absurd.

  12. I recommend that section 16 be removed from the Bill. The existing structure of the OIA is perfectly capable of coping with environmental reporting information, and ensuring that it is covered would lend credibility to the independence of reporting.

  13. Concerns about Ministerial interference are already credibly covered by section 14 of the Bill, requiring the Secretary of MfE and the Government Statistician to act independently in preparing reports.
1 Philip Joseph, Constitutional and Administrative Law in New Zealand (2nd ed), Brookers (2001), p. 148.
2 Moonen v Film and Literature Board of Review (No 2) [2002] 2 NZLR 754 (CA)
3 The full submission suggests several possible scenarios where such conflicts could emerge.