web analytics

Court’s decision on TPP OIA has both Nats and Ombudsman squirming

Written By: - Date published: 10:44 am, October 15th, 2015 - 23 comments
Categories: Abuse of power, accountability, law - Tags: , , , , , , ,

As recently covered here, the High Court has upheld Jane Kelsey’s application for a declaration that the Government and Tim Groser improperly considered her application for information concerning the TPPA negotiations.

The Nats aren’t happy:

Govt considers TPP OIA appeal

The government is considering whether to appeal against a court decision finding Trade Minister Tim Groser acted unlawfully in the way he rejected requests for information about the Trans-Pacific Partnership (TPP) negotiations.

Green Party MP Russel Norman said he hoped the court decision would mean an end to the National-led government’s abuse of the OIA.

“John Key’s statement suggests that the ministers in his government routinely are in breach of the Official Information Act.

“Really that’s no surprise when the Prime Minister himself advised public servants and ministers to routinely break the act when he said ‘we delay stuff as long as we can’ when the act is absolutely clear that the government should release information as soon as possible.”

The Ombudsman isn’t happy either – how’s this for defensive:

Chief Ombudsman’s statement on High Court TPPA Decision

The High Court’s decision released today requiring the Minister of Trade to reconsider his decision relating to Professor Jane Kelsey’s request for information about the TPPA relates only to the decision making process followed by the Minister.

Any suggestion that the Court passed judgement on the merits of the Chief Ombudsman’s decision is incorrect.


Both Nats and Ombudsman would be well advised to take three deep breaths, and read this typically excellent piece by Prof. Andrew Geddis:

Comes the rule with no exception

Jane Kelsey’s court victory over the evil MFAT/Tim Groser empire is probably too little, too late for her campaign against the TPPA. But it sends some important messages to a range of public actors in New Zealand’s governing arrangements.

The problem with this [Groser’s] approach is that it runs completely counter to the OIA’s basic purpose – to make any and all information available unless one of the specific reasons in the legislation applies. For the information holder to decide that it won’t provide information without actually looking at it and considering if there is a valid statutory reason for refusing its release inverts the way the OIA is supposed to work.

Furthermore, the OIA has provisions within it to deal with requests for large amounts of information. If it would take a long time to go through the material and decide on its release, the agency holding the information can extend the time limits contained in the OIA. And if it would be very costly to comply with the request, then a “reasonable” charge can be levied for doing so.

However, MFAT/Tim Groser didn’t give any consideration to these options before issuing their blanket refusal. Which means that they didn’t comply with what the legislation requires, making the decision unlawful. And so Justice Collins told them to go away and make the decision again, this time after doing what the OIA says. …

That’s pretty definitive. And just for the Ombudsman:

The third audience for this judgment is the Ombudsman’s office, and the Chief Ombudsman Beverley Wakem in particular. Because it is fair to say that she does not come out of the judgment all that well. Not only does Justice Collins find that she apparently misunderstands how a quite key legal test under the OIA is meant to apply (at para. [139]), but her failure to pick up MFAT/Tim Groser’s ignoring of proper process is quite concerning.

After all, the Ombudsman is meant to be the primary check on those who hold official information failing to abide by their legal obligations. If that office is not noticing those failures – if it is basically waving through decisions that fail to comply with the OIA – then what is a citizen to do?

Prof. Jane Kelsey showed us one option a citizen can pursue – the courts. But not everyone has the skills, resources and determination to do it. Better that the system just works as it should – as the High Court has just reminded those in power.

23 comments on “Court’s decision on TPP OIA has both Nats and Ombudsman squirming ”

  1. dukeofurl 1

    Who will rid me of this turbulent OIA priest ?

    Cant see to find the Ombusman office decision online which declined to back Kelsey up.

  2. To these modern day politicians, the process of democracy is just a nuisance.

    This shows how easy it would be for a country to slip into a dictatorship if the correct procedures are not followed.

    Thank goodness for the likes of Prof Jane Kelsey.

  3. Tracey 3

    This is an example of where the appointment of the Ombudsmen is VERY important. Oversight of the Ombudsmen is crucial and so is RESOURCING of the office. If you are not a professor of law or a wealthy person you have to sit back and watch months (and sometimes years) pass before the O’s office can get to you. Government departments know this and, in my experience, abuse it by defaulting to refusal knowing how long followup will take.

    Nats will appeal so it goes beyond the 30 days when all information of the agreement will be released BUT something tells me they dont want their cost/benefit analysis released until they absolutely have to. Which is odd given how sure they are the deal is “good” for NZ

  4. Tracey 4

    This was a judicial review type process. The Court, as far as I can tell, has not said Groser should have released the information, it has said he and his office wilfully ignored the proper process to following in reaching the decision to not release. Hence it is sent back to be decided by following the correct process.

    No need to appeal surely, just go through the correct process this time and your original decision will be justified, right Timmy?

  5. With the help of https://www.fyi.org.nz I have filed a request for information from Mr Groser regarding the effects of the Trans Pacific Partnership Agreement on New Zealanders human rights and our obligations in this regard overseas. I got a nice long detailed answer that did everything BUT answer my questions.

    Trying again. Complaining to the Ombudsman is on the cards if this does not work out.

    • Ilicit 6.1

      Good luck, seems the government finds all sorts of spin (on any subject) instead of a proper response.

      And given the irresponsibility of the OIA Ombudsman, a political appointee, I don’t hold high hopes for your challenge.

    • Mike the Savage One 6.2

      I would not pin that much hope in the present Ombudsman, she is also going to be replaced soon, her age is well over the age an Ombudsman is meant to have while serving, she must retire a.s.a.p..

      • Tracey 6.2.1

        ALL Ombudsmen have been hamstrung by a pitiful lack of resources arising from a cynical use of the system/process by Departments of our Government and their bosses.

  6. Mike the Savage One 7

    Yep, both Ombudsmen we have are not that great at all, despite of the odd decisions that some have celebrated in the past. Ron Paterson seems to be rather soft on medical practitioners and also some state agencies when it comes to complaints about these, OIA related or otherwise. Beverley Wakem has made some appalling decisions, as I can gather, having read a few. She seems to be letting government agencies off too often, giving them more credit than any genuine complainant.

    It is time for a real shake-up in this area.

    If the government wants to appeal the court decision, then we can interpret this as a further attempt to cover up their breaches of the spirit and the law of the OIA.

  7. Tory 8

    “Little takes the ball, he dribbles through the opposition like they were not there, his speed and timing are amazing to watch. He approaches the goal and shoots, it’s a ripper and the crowd roars!, right into the far right of the net, goal keeper Kelsey was powerless to stop that shot. Suddenly the crowd goes quiet, bigger, an own goal…”

  8. KJT 9

    I await with breathless anticipation police charges for breaking the law.
    Or any admission of personal responsibility, from, the party of “personal responsibility”.

    • The lost sheep 9.1

      You will wait a long time KJT, as no one can be charged with ‘breaking the law’ under the OIA, nor are there any sanctions for failing to comply with it – apart from the requirement to go back and have another crack at doing it properly.

      • McFlock 9.1.1

        and, of course, the government’s complete lack of integrity and their constant refusal to take personal responsibility for their incompetence.

      • tracey 9.1.2

        True enough


        note something the Judge said…

        The Act (OIA)
        ‘plays a significant role in New Zealand’s constitutional and democratic arrangements. It is essential the Act’s meaning and purpose is fully honoured by those required to consider the release of official information… The orders I have made reinforce to the Minister and other decision-makers the importance of discharging their responsibilities under the Act and promote future compliance’.

        • One Anonymous Bloke

          What are the sanctions available to the courts if Groser (or some other compromised trougher) embodies everything the National Party represents by continuing down his illegal path?

      • Craig H 9.1.3

        True, but the law can be enforced by a court order, and if that’s not complied with, Contempt of Court is on the table.

  9. KJT 10

    Pity. Responsibility obviously does not apply in Government.

  10. KJT 11

    If we could hold politicians to the same professional standard as builders, for example, we could charge them with serial child abuse for the 300 000 children they have neglected.

    • Draco T Bastard 11.1

      Considering that this governments policies have likely resulted in increased suicide we should probably be charging them with murder. Life sentences for the entire government.

Recent Comments

Recent Posts

  • Twenty highlights of 2020
    As we welcome in the new year, our focus is on continuing to keep New Zealanders safe and moving forward with our economic recovery. There’s a lot to get on with, but before we say a final goodbye to 2020, here’s a quick look back at some of the milestones ...
    2 weeks ago

  • Cook Islanders to resume travel to New Zealand
    The Prime Minister of New Zealand Jacinda Ardern and the Prime Minister of the Cook Islands Mark Brown have announced passengers from the Cook Islands can resume quarantine-free travel into New Zealand from 21 January, enabling access to essential services such as health. “Following confirmation of the Cook Islands’ COVID ...
    BeehiveBy beehive.govt.nz
    2 days ago
  • Supporting communities and landowners to grow employment opportunities
    Jobs for Nature funding is being made available to conservation groups and landowners to employ staff and contractors in a move aimed at boosting local biodiversity-focused projects, Conservation Minister Kiritapu Allan has announced. It is estimated some 400-plus jobs will be created with employment opportunities in ecology, restoration, trapping, ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Border exception for some returning international tertiary students
    The Government has approved an exception class for 1000 international tertiary students, degree level and above, who began their study in New Zealand but were caught offshore when border restrictions began. The exception will allow students to return to New Zealand in stages from April 2021. “Our top priority continues ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • Tiwai deal gives time for managed transition
    Today’s deal between Meridian and Rio Tinto for the Tiwai smelter to remain open another four years provides time for a managed transition for Southland. “The deal provides welcome certainty to the Southland community by protecting jobs and incomes as the region plans for the future. The Government is committed ...
    BeehiveBy beehive.govt.nz
    3 days ago
  • New member for APEC Business Advisory Council
    Prime Minister Jacinda Ardern has appointed Anna Curzon to the APEC Business Advisory Council (ABAC). The leader of each APEC economy appoints three private sector representatives to ABAC. ABAC provides advice to leaders annually on business priorities. “ABAC helps ensure that APEC’s work programme is informed by business community perspectives ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Govt’s careful economic management recognised
    The Government’s prudent fiscal management and strong policy programme in the face of the COVID-19 global pandemic have been acknowledged by the credit rating agency Fitch. Fitch has today affirmed New Zealand’s local currency rating at AA+ with a stable outlook and foreign currency rating at AA with a positive ...
    BeehiveBy beehive.govt.nz
    4 days ago
  • Additional actions to keep COVID-19 out of NZ
    The Government is putting in place a suite of additional actions to protect New Zealand from COVID-19, including new emerging variants, COVID-19 Response Minister Chris Hipkins said today. “Given the high rates of infection in many countries and evidence of the global spread of more transmissible variants, it’s clear that ...
    BeehiveBy beehive.govt.nz
    5 days ago
  • 19 projects will clean up and protect waterways
    $36 million of Government funding alongside councils and others for 19 projects Investment will clean up and protect waterways and create local jobs Boots on the ground expected in Q2 of 2021 Funding part of the Jobs for Nature policy package A package of 19 projects will help clean up ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • New Zealand Government acknowledges 175th anniversary of Battle of Ruapekapeka
    The commemoration of the 175th anniversary of the Battle of Ruapekapeka represents an opportunity for all New Zealanders to reflect on the role these conflicts have had in creating our modern nation, says Associate Minister for Arts, Culture and Heritage Kiri Allan. “The Battle at Te Ruapekapeka Pā, which took ...
    BeehiveBy beehive.govt.nz
    1 week ago
  • Better care for babies with tongue-tie
    Babies born with tongue-tie will be assessed and treated consistently under new guidelines released by the Ministry of Health, Associate Minister of Health Dr Ayesha Verrall announced today. Around 5% to 10% of babies are born with a tongue-tie, or ankyloglossia, in New Zealand each year. At least half can ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Prisoner disorder event at Waikeria Prison over
    The prisoner disorder event at Waikeria Prison is over, with all remaining prisoners now safely and securely detained, Corrections Minister Kelvin Davis says. The majority of those involved in the event are members of the Mongols and Comancheros. Five of the men are deportees from Australia, with three subject to ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Pre-departure COVID-19 test for travellers from the UK and the US from 15 January
    Travellers from the United Kingdom or the United States bound for New Zealand will be required to get a negative test result for COVID-19 before departing, and work is underway to extend the requirement to other long haul flights to New Zealand, COVID-19 Response Minister Chris Hipkins confirmed today. “The new PCR test requirement, foreshadowed last ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • PM congratulates New Year Honour recipients
    Prime Minister Jacinda Ardern has added her warm congratulations to the New Zealanders recognised for their contributions to their communities and the country in the New Year 2021 Honours List. “The past year has been one that few of us could have imagined. In spite of all the things that ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • David Parker congratulates New Year 2021 Honours recipients
    Attorney-General and Minister for the Environment David Parker has congratulated two retired judges who have had their contributions to the country and their communities recognised in the New Year 2021 Honours list. The Hon Tony Randerson QC has been appointed a Companion of the New Zealand Order of Merit for ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • New Year’s Honours highlights outstanding Pacific leadership through challenging year
    Minister for Pacific Peoples Aupito William Sio says the New Year’s Honours List 2021 highlights again the outstanding contribution made by Pacific people across Aotearoa. “We are acknowledging the work of 13 Pacific leaders in the New Year’s Honours, representing a number of sectors including health, education, community, sports, the ...
    BeehiveBy beehive.govt.nz
    2 weeks ago
  • Supporting seniors to embrace technology
    The Government’s investment in digital literacy training for seniors has led to more than 250 people participating so far, helping them stay connected. “COVID-19 has meant older New Zealanders are showing more interest in learning how to use technology like Zoom and Skype so they can to keep in touch ...
    BeehiveBy beehive.govt.nz
    2 weeks ago