Congratulations Jane Kelsey

Written By: - Date published: 12:39 pm, October 13th, 2015 - 61 comments
Categories: Abuse of power, Deep stuff, democracy under attack, Politics, the praiseworthy and the pitiful, trade - Tags: , , ,

Jane Kelsey

In breaking news Jane Kelsey’a High Court application for a declaration that Tim Groser improperly treated her application for details of the Trans Pacific Partnership Agreement has essentially succeeded. The decision is here.

The synopsis of the decision is as follows:

[1] The applicants have sought judicial review of a decision of the Minister of Trade (the Minister) in which he refused to release to Professor Kelsey official information contained in eight categories of documents she requested under the Official Information Act 1982 (the Act). The information requested by Professor Kelsey concerns material associated with negotiations that have led to a multi-lateral free trade agreement called the Trans-Pacific Partnership Agreement (TPP Agreement).

[2] When the Minister refused Professor Kelsey’s request, neither he nor his officials assessed each piece of information requested against the criteria in the Act for withholding official information. Instead, the Minister adopted a “blanket approach” to the request based upon his knowledge of the categories of documents requested by Professor Kelsey. I have concluded this approach did not comply with the Act.

[3] The applicants have applied for a series of declarations concerning the lawfulness of the Minister’s approach and the meaning of specific provisions of the Act.

[4] Rather than issue specific declarations I have quashed the Minister’s decision in relation to six of the categories of documents requested by Professor Kelsey. I explain in this judgment the aspects of Professor Kelsey’s request which have to be reconsidered. When the Minister reconsiders his decision he will be required to do so in a way that is consistent with his obligations under the Act, which I explain in this judgment.

I have not had time to read or analyse the decision.  No doubt better legal brains than mine will do so.  I suspect the Crown will appeal.

It has been noticeable how recently from various Government friendly quarters Jane Kelsey has been publicly attacked and maligned, in my view totally without justification.  But Jane Kelsey ought to be thanked for her sterling work and her perseverance.  Democracies need more citizens like her.

61 comments on “Congratulations Jane Kelsey ”

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  1. weka 1
    13 October 2015 at 12:54 pm

    what’s a declaration?

    • mickysavage 1.1
      13 October 2015 at 12:59 pm

      In this case a request for a Court to say that what happened here breached the OIA.

    • One Anonymous Bloke 1.2
      13 October 2015 at 1:01 pm

      declaration
      A court order stating that a certain situation or fact exists, rather than requiring that something must be done or not done. For example, the Family Court or High Court can make a ‘declaration of paternity’, declaring that a particular man is or is not the father of a particular child.

      source

  2. Pat 2
    13 October 2015 at 1:01 pm

    yet another example of this government thumbing its nose at the law……as the heading says, Congratulations Jane Kelsey…..but is seriously disturbing that it has come to this

  3. Tracey 3
    13 October 2015 at 1:47 pm

    wet bus ticket time. the right have some fear of kelsey, highlighted as mickey pointsout, by the ad hominem attacks (led by mapp and hooton).

    oh and another minister breaches the highest ethic standard demanded by the cabinet manual. question for the PM? LOL

  4. Whispering Kate 4
    13 October 2015 at 1:59 pm

    The Judge quashed the Minister in 6 categories but there are 8 – I wonder what’s so important about the other 2 categories – beggars belief really, we probably wouldn’t sleep at night if we knew the contents of the other 2.

  5. ianmac 5
    13 October 2015 at 3:02 pm

    Maybe the judgement just means that the Minister was wrong to group 6 non-responses together. The next response will be that the Minister will decline each question one by one. As a layman is this possible?

  6. savenz 6
    13 October 2015 at 3:22 pm

    Thank you Jane Kelsey for having courage and guts and action to bring these constant illegal breaches by our government to account!

  7. Penny Bright 7
    13 October 2015 at 3:30 pm

    Got a ‘professional’ and considered opinion on this post Matthew Hooton?
    __________________________________________________________

    Jane Kelsey: Govt spin won’t stop TPP facts emerging

    Tuesday, 13 October 2015
    The New Zealand Herald

    If governments want to play by secret squirrel rules they can hardly accuse those who raise alarms based on best available information of scaremongering.

    The post-Atlanta response by the government and cheerleaders for the Trans-Pacific Partnership Agreement (TPPA) shows they still don’t understand why people have opposed the deal and will continue to do so.

    First, the secrecy of negotiations and the handcuffs the Agreement will place on future elected governments is a direct assault on democracy and sovereignty.

    People don’t want ‘trust me’ democracy where the Executive makes the law in secret and presents a fait accompli.

    The High Court’s decision today that Trade Minister Groser acted unlawfully in refusing to release any information to me under the Official Information Act should act as a wake up call for him and the government.

    In his determination to keep everything secret, Minister Groser treated his legal obligations with contempt. He did not look at a single document before deeming every piece of information too sensitive, or too anodyne, to release.

    During the case the Minister’s standard line, parroted by many politicians and media commentators, that ‘negotiations are always done this way’ was abandoned in the face of evidence they are not.

    The judge’s statement that ‘the Act plays a significant role in New Zealand’s constitutional and democratic arrangements’ and its meaning and purpose must be fully honoured by those to whom it applies, is a clear rebuke to the Minister.

    It also sends a clear message to the government more generally that the growing unaccountability of Executive power is not acceptable in a democracy.

    The opposition to the TPPA is also about substance.

    It became a mass movement because people understand this is not about ‘free trade’, but that corporate interests are seeking to remake global rules in their interests.

    Suggestions by pro-TPPA politicians and commentators that doctors, parliamentarians, lawyers, and local communities, here and around the world, are dupes of myself and a couple of fellow-travellers beggars belief.

    As Minister Groser discovered, such insults backfire when the targets have more credibility than politicians.

    I take my role as a public intellectual seriously. Always have. For more than six years, at considerable personal expense, I closely monitored the Trans-Pacific Partnership Agreement negotiations.

    With a handful of others, I continued to attend negotiating meetings when they went underground two years ago, as the already inadequate ‘stakeholder’ process stopped without any explanation.

    Two books, many academic articles and conference papers, keynote addresses, briefings to politicians and professional bodies, commentaries on leaked texts, opinion pieces, speeches and press releases, sought to give people some insights into what was happening behind closed doors.

    Most of the technical papers written to assist negotiators will never see the light of day.

    I stand by everything I have said about the Trans-Pacific Partnership Agreement (TPPA) over the past six years (especially if it is quoted accurately).

    Once the text becomes public, it will become clear that some of the excesses were beaten back (and opposition to the deal can take considerable credit for that), but many of the dangers that I and others pointed to are still there.

    We always knew the government and its allies would have a two-pronged strategy if they finalised the deal – to spin like crazy before people could see the facts, and to launch a counter-offensive to discredit opponents.

    I guess it’s flattering that the government apparently pre-scripted counters to every point they thought I would raise.

    Personal attacks and character assassination, epitomised by Rodney Hide’s vitriol in the Herald on Sunday, are the resort of people who lack convincing arguments.

    It’s time for the post-Atlanta debate to focus on the substance, which requires release of the text and the background documents, and for the parties to revoke their secrecy pact to keep negotiating documents secret for four years after the agreement comes into force.

    Work has already begun, with support from the Law Foundation, on a series of expert analyses that will enable New Zealanders to judge for themselves what they think of the final deal.

    That is what democracy requires. New Zealanders deserve nothing less.

    Jane Kelsey is a law professor at Auckland University.
    _____________________________________________

    Penny Bright

    Confirmed 2016 Auckland Mayoral candidate

  8. Matthew Hooton 8
    13 October 2015 at 3:44 pm

    Absolutely Greg. On this issue, congratulations Jane Kelsey. With it comes to OIA compliance, each government since Muldoon’s (which passed the Act) has been worse than the one before, and the slide risks continuing until the Act becomes a total irrelevance. This is a good shot across the government’s bow that it has to comply with the law, and hopefully it will be part of encouraging a behaviour change. Sadly, I doubt it though, and I think the OIA needs to be fully reviewed, reformed and modernised, including adding penalties for breaking it. This may also be a start for a push towards that.

    • Anne 8.1
      13 October 2015 at 4:00 pm

      I take offence at you using a person’s real name instead of their pseudonym. While mickysavage has been open about his identity, he chooses to write here under a pseudonym. Perhaps you are of the opinion that your self-designated place in society is on a higher plane than the rest of us and therefore you don’t have to abide by normal common courtesy and respect. I disagree.

      • Matthew Hooton 8.1.1
        13 October 2015 at 5:08 pm

        You can “take offence” if you want, whatever that means, and whatever you gain psychically from it.

        • McFlock 8.1.1.1
          13 October 2015 at 5:14 pm

          whatever you gain psychically from it.

          If people gained “psychically” from being subjected to the (sometimes passive-) aggressive dickishness of tories, most readers here would have some XMen-level powers by now…

    • Paul 8.2
      13 October 2015 at 4:01 pm

      Spin spin spin.
      You are a mercenary of big business, Mr Hooton.
      Many citizens find such actions contemptible.

      • North 8.2.1
        13 October 2015 at 9:57 pm

        Ha ! Too late…..I get it – the Ponce Key’s “Higher Standards, Higher Standards, Higher Standards !”

        All along he was talking about taller flag poles from which to fly his and Richie’s beloved Silver Fern. What a creep !

      • Rozgonz 8.2.2
        15 October 2015 at 12:49 pm

        Where would we be without big business Paul? Who creates jobs and pays your bills Paul?

    • Grindlebottom 8.3
      13 October 2015 at 4:22 pm

      Hooton:…I think the OIA needs to be fully reviewed, reformed and modernised, including adding penalties for breaking it. This may also be a start for a push towards that.

      The behaviour of this National government suggests this Court decision might be the start of a move to amend the OIA to ensure they can get away with this sort of refusal to release information behaviour in the future. They are unlikely to add penalties for breaking it that would apply to Ministers.

      • Grindlebottom 8.3.1
        13 October 2015 at 8:19 pm

        From a quick read of the decision the guts of it seems to be that Court has ordered Grosser to reconsider the decision, ensuring officials this time properly assess each piece of information in 6 of the 8 categories requested by Professor Kelsey against the OIA criteria for withholding official information, and that any refusal to release the information next time correctly identifies the specific reason allowed in s 18(a)-(h) of the Act for withholding each piece of information, as well as the grounds on which those reasons are based.

        The Crown probably won’t need to appeal. The Chief Ombudsman reviewed the Minister’s decision after seeing 21 documents that fell within Kelsey’s request. She upheld the decision to withhold. The Judge said he was unable to review the merits of the decision to withhold (meaning he couldn’t legally substitute his judgement on whether public interest outweighed other considerations for withholding info).

        All Grosser may have to do is get his officials to do a bit more work and he gets to withhold basically the same information again. I think the way the judge explains how the Minister must identify the “grounds” for his reasons will cause MFAT some headaches: he makes that rather muddy, IMO. But the Minister could still conceivably get away with not providing grounds by virtue of s 19(a)(2).

    • Stuart Munro 8.4
      13 October 2015 at 5:18 pm

      Nice use of the ‘Labour did it too’ meme Matthew – can you substantiate it?

      • Matthew Hooton 8.4.1
        13 October 2015 at 5:21 pm

        Yes, I have been a big user of the OIA for many years and it would take months to get ministers in the last government to comply with the law. Now it is many more months, rolling in some cases into years. It seems each government tries to outdo the one before in terms of abusing this particular Act.

        • leftie 8.4.1.1
          13 October 2015 at 6:18 pm

          @Matthew Hooton.

          Where’s the proof? Your response doesn’t substantiate anything.

        • Draco T Bastard 8.4.1.2
          13 October 2015 at 6:26 pm

          There’s a maximum of 20 days turnaround. I assume that you’re taking all these that are taking months to the Ombudsman?

        • Stuart Munro 8.4.1.3
          14 October 2015 at 8:44 am

          Months to years – so it would not be out of place to describe this government as an order of magnitude worse in the matter of OIA requests. I always like to know effect sizes.

        • Tracey 8.4.1.4
          15 October 2015 at 12:58 pm

          And of course your own admission that when you were a paid employee of National and had to process OIA’s you happily abused the process by directive.

          But that’s changed now Matthew, right? You know since Key pissed you off personally and all.

          🙄

          • Matthew Hooton 8.4.1.4.1
            15 October 2015 at 1:06 pm

            My record was one year (to the day) and that was going back and forth to the Ombudsman many times, and negotiating what would be released. In the end we could withhold a great deal of information and gave the requestor (the student unions) a single sentence that answered their inquiry fully. To hold up an OIA for a whole year was so unusual in the mid 1990s that I kept the file as a memento. By the mid 2000s, a one year delay was common but not standard practice. Now it is standard practice. God knows where things will get to if the situation isn’t corrected.

            • Tracey 8.4.1.4.1.1
              15 October 2015 at 1:10 pm

              Everything always come back to intent Matthew. Laws are only effective in this kind of area when people enforce/apply them with the intent of the law in mind, instead of the mindset of circumventing obligations. I don’t know how that changes.

              For example the Cabinet Manual is pretty clear but has no genuine enforcement provision so is treated like a piece of toilet paper

              I had a complaint to the Ombudsmen (following a decline by DBH) still underway 2 years later. By then my client had been to Court and the information I requested was required for that. NEVER heard again from Ombudsmen.

            • DoublePlusGood 8.4.1.4.1.2
              15 October 2015 at 1:54 pm

              “kept the file as a memento”
              Says everything about your lack of character and integrity really, that you would want to keep a file to fondly remember a time when you abused the system for political gain.

            • Grant 8.4.1.4.1.3
              15 October 2015 at 2:04 pm

              So it’s not corruption of the intent of the OIA that bothers you it’s just the scale on which it’s practiced. Sounds about right for you.

      • Pat 8.5.1
        13 October 2015 at 7:02 pm

        tis just another variation of “they do it too” …Matthew is nothing if not predictable.

        • Matthew Hooton 8.5.1.1
          14 October 2015 at 8:41 am

          But they didn’t “do it too” – not to this extent. This is the worst government ever in terms of OIA compliance. That is my point. Courts need to be used to intervene more to stop it getting even worse, and hopefully encourage improvement.

          • One Anonymous Bloke 8.5.1.1.1
            14 October 2015 at 8:45 am

            Personal responsibility means personal consequences. Get Ministers a corporate box from SERCO. With bars. No, not that kind of bar.

            • Tracey 8.5.1.1.1.1
              15 October 2015 at 1:00 pm

              and employees who choose to take orders from people seeking to abuse the system ought to have protection to do the right thing.

          • Pat 8.5.1.1.2
            14 October 2015 at 9:30 am

            “But they didn’t “do it too” – not to this extent. This is the worst government ever in terms of OIA compliance.”

            and not only in terms of OIA compliance…but I must confess that statement was not predicted.

    • Tracey 8.6
      15 October 2015 at 12:55 pm

      progressively worse indeed. This government was elected on a self professed claim of better transparency than its predecessor. It lied and then failed by design. But then you know this cos you were part of that abuse at one stage and didn’t object.

      BUT now you are all reformed since Mr Key pissed you off personally.

  9. Tory 9
    13 October 2015 at 4:13 pm

    I have no issues with the Courts findings, that’s the process.

    With regards to the politics of Jane Kelsey, she doesn’t believe in globalisation whereas the current government (and myself) do, what’s wrong with challenging (you use the words ‘publicly attacked and maligned’) a critic on their views?

    It happens everyday in some form (from the left and right; after all it was the ex Labour Prime Minister Helen Clark who categorised John Campbell a “sanctimonious little creep”).

    • Draco T Bastard 9.1
      13 October 2015 at 6:28 pm

      With regards to the politics of Jane Kelsey, she doesn’t believe in globalisation whereas the current government (and myself) do, what’s wrong with challenging (you use the words ‘publicly attacked and maligned’) a critic on their views?

      It’s not peoples views that need challenging but the facts. Kelsey has facts, the RWNJs only have ad hominem attacks.

      • sandflypoint 9.1.1
        13 October 2015 at 9:22 pm

        No Kelsey doesn’t have the facts. There is a fairly long list of claims she has made on the TPP that are demonstrably false. Kelsey is a paid activist, nothing more. All power to her, but the TPP is away and the sun still rose this morning.

        • Draco T Bastard 9.1.1.1
          13 October 2015 at 9:36 pm

          There is a fairly long list of claims she has made on the TPP that are demonstrably false.

          You’ll be able to list them then right?

          Kelsey is a paid activist, nothing more.

          No she’s not, she’s an academic. You really shouldn’t go round defaming people like that – it could get you in trouble.

          but the TPP is away and the sun still rose this morning.

          And the sun will rise again tommorrow and the TPPA will still be a bad deal costing us billions.

          • Rozgonz 9.1.1.1.1
            15 October 2015 at 12:52 pm

            Kelsey is a communist who is fundamentally opposed to free trade and anything the National Government does. She can’t think straight so her argument carry’s no weight.

            [lprent: And obviously you are card carrying fascist from the late 1930s, who wanders around with your brain hanging out of your pants showing syphilitic sores and bad penile hygiene. In other words a sick dickhead.

            This is an ‘fact’ that carries equal credibility with your one. In other words none…. Have you read our policy? Oh thats right – you probably can’t understand words that someone hasn’t made into slogans for you.

            Banned permanently as being a troll who is simply too stupid to write on this site. ]

        • mickysavage 9.1.1.2
          13 October 2015 at 10:50 pm

          Straw man argument. One of her main complaints is that she has been improperly denied the relevant information and from the looks of today’s decision she is right.

        • savenz 9.1.1.3
          14 October 2015 at 8:05 am

          Oh where have I heard the phrase

          TPP is away and the sun still rose this morning

          Yes I bet it’s nice in Hawaii and the sun still rises there, oh to be a government funded troll.

    • North 9.2
      13 October 2015 at 10:01 pm

      Yeah well Bowel Motion reckons Kelsey’s just a Commie…..???

  10. BLiP 10
    13 October 2015 at 4:31 pm

    ‘

    Indeed, sincere thanks to Jane Kelsey along with Consumer NZ, the Association of Salaried Medical Specialists, Ngati Kahungunu, the New Zealand Nurses Organisation, the Tertiary Education Union, Greenpeace and Oxfam for exposing yet more unlawfulness by the John Key led National Ltd™ government. Were it not for this extraordinary collaboration it seems Jane Kelsey’s fight would have been made all the more difficult.

    Any celebrations should be tempered by the fact that the Ombusman’s Office and Crown Law have colluded with National Ltd™ in denying New Zealanders their rights. While its pretty much the job of Crown Law to protect the government, Beverley Wakem needs to explain herself. Not only did she drag her heels over this matter but she appears also to have got it completely wrong.

    • Gangnam Style 10.1
      13 October 2015 at 6:21 pm

      “Beverley Wakem needs to explain herself. Not only did she drag her heels over this matter but she appears also to have got it completely wrong.” – YES!

    • Tracey 10.2
      16 October 2015 at 8:51 am

      It’s a hard left marxist conspiracy to make life hard for NZers. Clearly. Such bastards seeking to hold Ministers and their departments to account pursuant to legislation passed by Parliament as representatives of the people.

  11. Mike the Savage One 11
    13 October 2015 at 5:30 pm

    A triumph of some form at last, for Jane Kelsey and friends, I congratulate her! With some pleasure I also read this in an article by Hamish Rutherford on ‘stuff.co’ today (see link below):

    “The decision led to a fresh attack of the Ombudsman, which adjudicates on Official Information Act disputes, and upheld Groser’s decision not to release information.

    The Taxpayers’ Union congratulated Kelsey on her court challenge, as it dismissed the Ombudsman’s effectiveness.

    “This is a significant victory for freedom of information and an embarrassment for the Office of the Ombudsman which has been shown up as lacking. Every day, groups from the Taxpayers’ Union to Greenpeace along with public lawyers and political journalists are hampered by a freedom of information system which is being gamed by the government,” executive director Jordan Williams said.

    “For years the Ombudsman’s office has complained that the problems are due to a lack of funding. In reality, the number of appeals relating to the Official Information Act has snowballed because government agencies and politicians know that the Ombudsman is a toothless tiger.” ”

    Quoted extract from stuff.co, here is the link to the full story:
    http://www.stuff.co.nz/business/72963910/judge-orders-trade-minister-to-review-his-refusal-to-release-tppa-documents

    The Chief Ombudsman is defending her Office, but I know full well, like many others, that they have been sitting on endless complaints for months if not years, and simply lamenting underfunding, and otherwise do nothing, that has been a weak performance by Dame Beverley Wakem.

    This government has been playing the OIA system for years, and they continue doing it, denying citizens transparency and accountability, and with that access to justice also in many other complaints. Having read some decisions by Ms Wakem, I am not impressed by her and her colleague Ron Paterson.

  12. NZJester 12
    14 October 2015 at 12:30 am

    When big corporations who are not governments are allowed to see the text in full but not the general public then there is a serious problem with it to begin with. Any money those big corporations make out of this deal before it all becomes public is just as bad as someone making money from the stock market by insider trading.

  13. mikesh 13
    14 October 2015 at 11:04 am

    It seems to me Ms Kelsey has not gained anything. The grounds of the court’s decision are that Groser & Co did not comply with with the provisions of the act. So now Groser will “return to the drawing board”, comply with the act’s provisions, and then refuse the application anyway, assuming he can make a reasonable case for doing so.

    • Tracey 13.1
      16 October 2015 at 8:57 am

      Except she has revealed that Mr Groser made a decision based on his ideology rather than the criteria for releasing information. Presumably he was worried that his desire to not release couldn’t be supported by the criteria laid out in the legislation, otherwise why ignore said criteria?

      Others may think that revealing that is nothing, but in fact it makes it harder for those who support this government to do so with the belief that they are supporting people with integrity, honesty, genuine belief in the positions they take on our behalf (cos IF he genuinely held such belief the process would have supported a decision to withhold the information) . People who twist a system, or in this case simply ignore it cannot be trusted and show very poor judgment. It follows that their decisions on our behalf cannot be trusted either. But hey, some folks think they can get a better life by supporting such behaviour…

      The criteria exist to prevent politicians abusing the right to know what is going on in our Parliament. Groser has done just that. Key wont invoke the “highest ethical standards” and the Speaker won’t punish him. National’s supporters might not too BUT that doesn’t change the type of character that is being revealed as Mr Groser.

      Now when people vote for he and his party they do it with full knowledge that he will do anything, including breaching laws, to control what information NZers get to see. They may not ask why, but they ought to.

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