Monday, September 28, 2015

Challenging TPP secrecy

There's a significant court case happening today: a judicial review of the Minister of Trade's refusal to release information about the TPP under the Official Information Act. OIA cases are rare - I can't remember the last one, though I'm aware of a couple from the 80's - so its a bit of a landmark which will help clarify the meaning of the Act. Unfortunately I don't think there's much chance of a successful outcome. The Minister's refusal rests largely on the OIA's conclusive reasons for withholding official information, notably prejudice to international relations and to receving information from other governments. And these are areas where the judiciary has traditionally defered to the executive. Its not openly nonsensical that release of TPP documents will prejudice these interests, so I expect the court will uphold the refusal. In other areas - the ones most likely to be successful - the Ombudsman has not yet formed a view, so there's nothing to review.

More interesting is the fact that this refusal was not based on the merits of each document, but on a sample of them and the Minister's assumptions about what might be in them. While administratively convenient, that goes against the purpose and merits-based assessment regime of the OIA, and is something the Minister deserves to be spanked for.

What this case will expose is how out of step the OIA is on these issues. There is huge public interest in disclosure, yet the law will allow all material to be shrouded in secrecy (based in part on the government agreeing with other governments effectively to contract out of it - something which seems ultra vires). Governments, it seems, are united in the view that the negotiations they conduct on "our" behalf are not for the eyes of us dirty peasants, and that we should just shut up and accept whatever they decide. But this isn't the middle ages, and they're not kings; we live in democracies now, and such secret agreements simply have no democratic legitimacy. And if the OIA won't give us the transparency we now expect, we need to amend it, or replace those sections. And we should start with an Open Diplomacy Act, to ensure that any information our government provides other governments in negotiations is also shared with us.