On Friday, Newsroom had a very disturbing report of Department of Internal Affairs officials attempting to subvert the democratic process by interfering with the work of the select committee on the Three Waters legislation. The story effectively highlighted concerns raised by the New Zealand Council for Civil Liberties during the recent review of Standing Orders about select committees' dependence on departmental officials for analysis of submissions and advice. Those officials work for Ministers, not Parliament, and are also usually the people who have developed the policy. They are thus inherently conflicted in their role, and in a position to tilt the advice to support their own (or the Ministers') position. The Department of Internal Affairs seems to have gone a lot further than that, into actively subverting the decisions of the committee, which is why it was noticed. But there's a lot officials can do below that threshold and probably get away with.
And sadly, I have an example. The Health Committee has just reported back on the Therapeutic products Bill. Like many recent government bills, it includes a secrecy clause, so I sent in the usual submission opposing it and trying to have it amended to protect the public's rights under the OIA. The secrecy clause is particularly wide-ranging and odious, covering all information that an "information holder" - meaning the regulatory body and others - obtains while performing their functions or exercising their powers under the Act, and applying criminal penalties for disclosure, effectively reinstating the Official Secrets Act for this information. Meanwhile, the list of functions of the regulator shows how extreme this is: among the things to be decalred state secrets is whether a licence has been issued, whether a a particular product is unsafe and what (if any) action has been taken, whether a product makes false claims of health benefits, and whether guidance was issued to help suppliers avoid making such claims. The regulator also has a function of providing advice to the Minister of Health and the chief executive on " the adequacy and performance of, and funding for, the regulatory system"; that advice too will be a state secret. So if for example they advice that the system is too weak or that funding is inadequate, it will be a criminal offence for it to be disclosed to the public, or to Parliament. Which is obviously very convenient for a government wanting to hide its dirty laundry, but not so convenient for the rest of us.
The normal procedure for a select committee is for the department responsible for the bill to prepare a summary of the submissions, extracting key themes and issues (they also, in a prime example of that conflict of interest, tend to dismiss them all to protect their preferred position, but they at least note that an issue was raised, enabling MPs to ask followup questions). So I was quite surprised when I checked the Bill's Departmental Report and the appendix summarising the submissions to find no mention whatsoever of the issues I had raised. Indeed, the only mention of the OIA was two bland assurances that "The regulatory authority will be subject to the provisions of the Official Information Act 1981", so "transparency will be assured to the same degree as in relation to other government agencies". The first is true, the second is not, as the secrecy clause over-rides the OIA and removes any transparency.
It is one thing when a committee disagrees with your submission. It is quite another when it appears never to have been put before them. Its unclear whether this is because the department was overwhelmed by the volume of submissions (there were over a thousand, many from antivaxxers) or because they preferred to highlight pharmaceutical company views (those are the only ones mentioned in the relevant part of the analysis of submissions). But either way, its not really good enough, especially when we're talking about over-riding legislation the courts have recognised as constitutional, and especially when it would have such a horrific impact on transparency for a key regulatory body. The Ministry of Health has poorly served parliament on this occasion. The question now is whether Ministers or MPs will step in to fix the issue they didn't highlight.
