Wednesday, June 05, 2019

Odious secrecy II

Last month, when the government released its Zero Carbon Bill, I highlighted how it contained an odious expansion of secrecy which throw a veil over practically all decisions made by the Independent Climate Change Commission. I wanted to see how this particular atrocity came about, so I sent an OIA to the Minister seeking all advice and communications on the drafting of this particular clause. I got the response back yesterday, and I was appalled. The short version is that there's not really any advice, and the Minister apparently has no fucking idea how this part of his bill works, or even what it actually says.

In his response, the Minister says:

Clause 10 of the Climate Change Response (Zero Carbon) Amendment Bill requires the Commission to keep information confidential and allows otherwise confidential information to be disclosed to the Commission. The intent of the Government was that, for the purpose of accessing relevant information under the CCRA, the Commission should be treated as though it were an administrating agency and be subject to equivalent obligations of confidentiality.

This provision may be relevant for the Commission in providing advice about the settings of the New Zealand Emissions Trading Scheme (NZ ETS). Cabinet has agreed that this will be a regular function of the Commission. It will be brought into operation by proposed legislative changes to improve the scheme.

The only substantive piece of "advice" on this is two paragraphs of a Cabinet paper:
The Commission will require access to government-held information in order to fulfil its functions. The provisions of the Bill will need to balance access to this information with the need to safeguard legally privileged or personal information. Where appropriate, it will also have statutory provisions to allow it to access information that it might not otherwise be able to gain, for instance under the CCRA.

I propose that, for the purpose of accessing relevant information under the CCRA, the Commission should be treated as though it were an administrating agency. It will also be subject to equivalent obligations of confidentiality.

[Emphasis added]

Where to begin on this? Firstly, the Bill at present only has powers (in s5ZV) to obtain information from government entities, about how they will be affected by climate change, how they plan to deal with it, and what progress they are making on those plans. Every single one of those agencies is already covered by the OIA, so as a matter of principle, their information should be open. It shouldn't become secret simply because another government agency has asked for it. But that is the effect of this bill (more on this below). Secondly, the Bill at present has no powers for the Climate Change Commission to gain information from non-government agencies. Those powers might be coming in the ETS legislation, but even if they are, as I noted earlier the Official Information Act already contains protections for legally privileged and personal information, as well as information that is "commercially sensitive" or which has been compelled by an enactment. These protections are more than sufficient to safeguard the interests the Minister claims to be concerned about. If he believes they are not, then he needs to make a much better case than this for bypassing them.

But even if you agree with the Minister that the OIA is not sufficient for protecting these interests, the Bill goes a lot further than that. Once amended, the secrecy clause will apply to "the Climate Change Commission, in respect of the performance of its functions or exercise of its powers under Parts 1A to 1C... at the time during which, and any time after which, those functions are performed or those powers are exercised" and require it (with certain specified exceptions) to "keep confidential all information that comes into the person’s knowledge when performing any function or exercising any power under the relevant Part of this Act". So what functions are exercised under parts 1A to 1C? Its all neatly summarised in s5J on the Commission's functions:

And under the bill as drafted, all of this will be required to be kept confidential. The setting of targets, the advice to Ministers about budgets, their assessment of whether the Minister is actually meeting those budgets, all secret. And while some of it may be required by law to be published or tabled in the House, the internal advice and correspondence (which is where all the dirt is) will all be secret.

With its target and budget setting powers and apparent control over the ETS, the Climate Change Commission is intended to be the driver of climate change policy. I've said before that climate change is our most important policy challenge, and that everything else is basicly just rearranging deckchairs on the Titanic. The effect of this Bill would be to make be to make everything said and done by the most important agency dealing with that challenge a secret. All of it. Its as if they decided to exempt everything done by Treasury from the OIA - that's the policy effect here. And its not just an attack on transparency, its also woefully shortsighted. To point out the obvious, the Greens expect this law to last, and for other parties to oversee it when they are in government. But it will be pretty hard to hold those future governments to account if everything the primary advice agency does is legally secret.

From the Minister's response, this is not what he intended. In which case, he needs to amend the Bill to fix it. Otherwise that secrecy is going to come back to bite him.