Monday, March 27, 2023

A significant decision for transparency

On 19 November 2010 an explosion at the Pike River Mine killed 29 people. The explosion was caused by unsafe work practices; however the National government corruptly dropped charges against Pike River Coal CEO Peter Whittall in exchange for a $3.4 million payout to the families of the dead. This payment was denounced as "chequebook justice" by the Pike River families, and the withdrawal of charges was later ruled unlawful by the Supreme Court. But we've never been able to learn who made the illegal deal and why, because all the documents are covered by legal privilege. But last week, in a significant decision for transparency in Aotearoa, the High Court agreed to overturn that privilege:

Multiple attempts were made to access the deal's documents through the Official Information Act and Ombudsman, but they were consistently blocked - on the grounds of legal privilege and confidentiality.

But on Friday, a judgement obtained by 1News said transparency matters in the interests of justice.

It said that without transparency, "there is scope for false speculation and misunderstanding" which "can undermine confidence in the administration of justice".

It means the families may now see the privileged material and be able to learn why charges were dropped.

This is just the privilege over settlement negotiations in the court record. But the precedent - that transparency supports the administration of justice and is more important than legal privilege where confidence in the system is on the line - should allow the families to gain access to other documents around the case currently being withheld under legal privilege. The big lever here is that the purpose of the OIA is to enable access to official information "to enhance respect for the law and to promote the good government of New Zealand". So far the Ombudsman has generally focused on the second part of that, but the court has just sent a very clear signal that the first part matters too. And hopefully the Ombudsman will listen (if not, I guess it will be back to court to get an actually binding precedent specifically about legal privilege and the OIA).

If they do, then this is going to have implications. Where the government has behaved disgracefully and called the administration of justice into question with apparently corrupt dealing, they will no longer be able to hide behind their lawyers. And that I think will make us a much better society.

Update: the full judgement is now online.