Back in December the regime introduced the Commerce (Promoting Competition and Other Matters) Amendment Bill. While doing various other things - including introducing whistleblower protection for those providing evidence tot he Commerce Commission - the bill also massively expands the Commission's statutory secrecy powers, effectively giving it a ten-year exemption from the OIA. The bill is currently before select committee, and some of the submissions on it have been released, including that of the Ombudsman. Who is... not impressed.
The Ombudsman essentially argues that the secrecy clause is not justified as the information it seeks to protect is already strongly protected under the OIA:
Successive Ombudsmen have held that, in the OIA context, information provided by informants to regulatory bodies such as the Commission attracts protection on grounds of confidentiality on the basis that its disclosure under the OIA would have a chilling effect on the willingness of future would-be informants to come forward. In circumstances where the OIA already protects the relevant considerations, the creation of multiple mechanisms which, in essence, create a 10-year blanket carve-out from the OIA appeared unnecessary and excessive.They suggest a number of ways of highlighting this to give reassurance to informants which would be less restrictive and infringe the BORA right to receive information less.
They also note that the "because we want to" clause - which allows the Commission to ignore its own secrecy clause for anyone it thinks has a "proper interest" in receiving the information - will apply to parties under investigation, as the fundamental right to natural justice means they must be able to know the nature and origins of allegations against them in order to properly respond. Which in turn completely guts the Commission's primary argument for secrecy (protecting the identity of informants to prevent retaliation). So, as I noted earlier, the bill won't do what its meant to, and the only people it will hide information from is the public.
There's also submissions from the New Zealand Law Society Te Kāhui Ture o Aotearoa and law firm Chapman Tripp which make similar points. The latter in particular highlights the public interest in transparency, so that the Commission's investigations are procedurally fair, its evidence properly tested, and its decisions seen to be robust.
The question now is whether the committee will listen, or whether they'll continue mindlessly following the trend for increasing secrecy and reduced accountability.
