Official Information (Parliamentary Under-Secretaries) Amendment Bill

Thank you, Mr Chair. I was not tardy at all on this particular occasion.

Clause 1 of the bill is, of course, just the title clause, so I was hoping that might allow for a slightly more wide-ranging debate, given that it is only one sentence and it includes the words “Official Information”, “(Parliamentary Under-Secretaries)”, and “Amendment Act”. So being able to take this one debatable clause is helpful, because actually it is a very, very difficult—

The CHAIRPERSON (Hon Trevor Mallard): Just do it.

The issues that we do have concerns around include, actually, clause 4, which varies the definition of what a “Minister of the Crown” is. We heard during the select committee stage some erudite observations from, for instance, Sir Grant Hammond, the President of the Law Commission, but those were in a personal capacity. Those were not made in his position as president. He was, I think, in between appointments at that stage, or the board had not authorised him to comment officially. He was of the view this was a device that would allow the parliamentary under-secretary to come under the scrutiny of the Official Information Act (OIA).

Although that might be the case, it was somewhat concerning to members, particularly on our side, that we were varying the definition of what a “Minister of the Crown” is. It might be only for the purposes of the OIA, but would this be a slippery slope? Would this open the door to others being considered, for the purposes of the OIA, to be a Minister of the Crown, even though they are clearly not Ministers under the Cabinet Manual definition of what a Minister is? They are not members of the Executive Council of New Zealand, and they enjoy none of the privileges—indeed, protections—of Ministers. For instance, parliamentary under-secretaries do not enjoy the honorific of “the Hon”. They may be honourable members, but they do not have that titular honour.

They also do not have the services, for instance, of the VIP Transport Service. It might be seen as something of a luxury, having access to a Crown car, but it is a very useful amenity for Ministers who need to have confidential conversations, for instance, with their officials on a cellphone in the back of the car so that they are not necessarily being overheard by taxi-drivers or other people who are not cleared to the appropriate security clearance levels.

These are amenities that a parliamentary under-secretary does not enjoy, yet they would have imposed upon them the criteria of the OIA not only with regard, obviously, to their official duties, because that already is the case. The parliamentary under-secretary that we have in the current Parliament, Mr Seymour, is subject to the OIA in so far as he is delegated responsibilities within the education portfolio or the small business—or is it the regulatory reform portfolio? But, in any case, that was a concern for us because, on this side of the House, the other thing we take very seriously, as well as transparency, is also the protection of the confidentiality of constituents who might come to a member of Parliament.

So, having inherited the Westminster system, we have here members of Parliament who also hold roles in the executive, unlike other jurisdictions like the United States, where there is that complete separation between the executive and the legislature. We were somewhat concerned, I have to confess, Mr Rurawhe, that it would be possible to extend this even further or to make an argument based on the change being made here, because it is a change. We have to face up to the fact that this was not the intention, as expressed in clause 4 of this bill, of the original drafters of the OIA.

Certainly, there was no evidence that was provided to the select committee, and research was done by our justice ministry officials, that it was the intention of those who drafted the original OIA, which was a very forward-looking piece of legislation back in 1982, which was put down in the dying days of the fourth, or was it the third, National Government, the Muldoon National Government in 1982—many years ahead of the equivalent Freedom of Information Act in the United Kingdom jurisdiction. But from when this Act was drafted, clause 4, as it is laid out now, is a change. It is a departure. It is not a correction. It is not bringing it back to what it should have been; this is an innovation. It is a clear change that we are making, so we must understand that, I believe.

Similarly, I think it is also necessary that we are mindful of the fact members who are parliamentary under-secretaries are also members of Parliament, and we do not want this to be seen as an open door to other further innovations that could have a negative effect on, for instance, the ability of members of Parliament to conduct their constituency business with confidentiality for those who bring—

There is no tardiness here. I would like to address this bill with particular regard to the amendments on my Supplementary Order Paper 181.

💬 Hon David Parker: We wouldn’t notice anyway.

Ha, ha! That was quite good.

The CHAIRPERSON (Hon Trevor Mallard): I am going to interrupt the member straight away and say that he is aware—because it has been reported as such—that his amendments are out of scope, and although he may make a passing reference to them, he cannot build a speech on it.

Thank you, Mr Chair. Let me address the bill a bit more widely before making a passing reference to my Supplementary Order Paper, and you will see that my speech is roughly built upon the amendment that has been ruled out of order, but it does actually form an interesting piece of backdrop to how the Committee came to be debating the bill tonight.

As has been discussed at length through earlier stages, clause 4 of this bill—really, the only clause that has a huge amount of influence—extends the powers of the Official Information Act from members of the Privy Council and from Ministers and Associate Ministers to parliamentary under-secretaries. This was not the intention, as Mr Foster-Bell has said, of the Official Information Act.

The CHAIRPERSON (Hon Trevor Mallard): The Executive Council, I think the member means.

The Executive Council—very sorry. You are right, Mr Chair, and thank you for that correction. It also was not the intention when such matters were revisited by the Constitution Act by the fourth Labour Government in 1986. So it is a significant change. As Mr Foster-Bell has said, although I am not so worried about which perks come with the bill, I do not think that there should be a balance between obligations and perks, because we are all honoured to serve here in Parliament, in whatever capacity. What is important is that clause 4 will make no material difference to the way that parliamentary under-secretaries operate and the transparency in the way that they operate.

I might venture that as the only current member of Parliament who has served as a parliamentary under-secretary, I am in a unique position to say this. I think you will find that is true—the last one was actually Dover Samuels. I have already made a point of tabling or proactively releasing all official information that I have held in my capacity as a parliamentary under-secretary. In an earlier reading I made a point of piling it up on this desk and showing members quite what a volume of information has already been made proactively available. But more importantly—

💬 Hon Ruth Dyson: When did you start releasing it? Before or after this bill was drawn?

The member is asking did I begin those releases before or after this bill was drawn. I suspect that what she will find if she looks back through the records is that the notion of proactive release began in December 2014, when I signed a letter with Minister Parata, which was a guide to how Official Information Act requests to my particular duties as parliamentary under-secretary would be dealt with. I am not aware of when the bill was drawn, but I think the member will find that, actually, the bill was drawn after that time—so a good question, but, as is often the case with the member, not a particularly relevant one.

💬 Hon Ruth Dyson: A good but incorrect answer.

If I can return to the substance of the bill rather than the heckling that I am encountering from the far corner, the second reason why clause 4 will make no substantial difference is that according to the Constitution Act, a parliamentary under-secretary derives all of their powers from the Minister. So to the extent that the parliamentary under-secretary is exercising any power, how they are exercising it and what it is being used for can be discovered by sending an Official Information Act request to the Minister’s office. That is why Minister Parata and I, given that we thought we might get a lot of Official Information Act requests, actually moved to have a procedure for dealing with such requests, and, funnily enough, as parliamentary under-secretary I have been signing up the ones that were not already proactively released, which it turns out most of them were.

It is a clause that will have no material impact on the operation of parliamentary under-secretaries. It will not give the people watching or listening at home an additional insight into how parliamentary under-secretaries such as myself operate. I am more than happy for this bill to go through on that basis, but I would say that once we have breached the distinction between the Executive Council—

I just note thanks to the Committee for agreeing to treat this all as one question. So let us move on.

As Mr Seymour said, the substance of the bill is clause 4. It is around the redefinition of “Minister of the Crown”. My colleague Mr Foster-Bell pointed out that although the argument is clear that the redefinition applies only to this particular Act, the Official Information Act, the act of undertaking a redefinition of what is a Minister itself fills us with some concern. I think Mr Seymour was just touching on the point that I would make. I do not argue or make comment on his contributions that with all of the work that he has been doing and the process that he has in place in his office this will make no material difference to the actual information that is released. The part that does concern me, although we will be supporting the bill tonight, is that this change not only blurs but basically removes the distinction between what it means to be a member of the Executive Council and what it means to be a member of the executive.

We had a number of submitters—not terribly many, but we had several—and the point from the Law Commission, for instance, was that in the first reading of this bill a number of members, and I was one of them, used the term “executive” about the Official Information Act not applying to parliamentary under-secretaries because they are not members of the executive. They are, so we were incorrect. The distinction lies in the difference between the Executive Council, which all Ministers are members of, whether they are Ministers inside Cabinet or Ministers outside Cabinet, and the only members of the executive who are not on the Executive Council, who are parliamentary under-secretaries.

I asked, as part of the select committee process, for officials to go back and look at the 1980s, at the time of the passing of the Official Information Act and in subsequent years, for utterances in the House recorded in the Hansard or any other correspondence or commentary they could find from members of House that would indicate that around that time or in the subsequent years they thought: “Oops, we made a mistake. It had been our intention that the Official Information Act would cover all members of the executive, and we should really think about doing something so that these parliamentary under-secretaries are covered.” There were at least a couple of them in the 1980s—such as the Hon Annette King and the Hon Peter Dunne, to mention two—who were parliamentary under-secretaries who were not covered under the Official Information Act, which had been passed in the early 1980s. When they were parliamentary under-secretaries they were not covered under it.

Officials reported back and reported that they could find no record at all that gave any indication that any members, at least in the House, had made any utterance that suggested that they thought they had made a mistake, that the bill needed to be amended, or that somehow because parliamentary under-secretaries were members of the executive, they should have been captured under the Official Information Act. So from that lack of discourse we can all take, I think, great confidence that at the time of the passing of the Act and in subsequent years it has not been considered that parliamentary under-secretaries should be included under the Official Information Act.

In taking the step that officials recommended—and, admittedly, they recommended it because, given the Government Administration Committee agreed that we would recommend the extension to include parliamentary under-secretaries, the most expedient way of doing that was simply to redefine what a “Minister of the Crown” includes under the Act. But the concern is that, as I have said, all Ministers are members of the Executive Council but parliamentary under-secretaries are not. We are concerned that the redefinition just destroys that distinction, and we do feel—I certainly feel—that the distinction has always existed for a reason, and it is quite arguable that we are just removing the reason, which in itself is a little troubling.

Having said that, despite the concern that I do have about doing it that way, we do believe on reflection through the select committee—particularly its members, but also other members in the Government caucus—that the transparency and greater access that this will afford and the greater confidence this will give the public in the access to information, including those actions that are delegated to parliamentary under-secretaries, do outweigh a concern that we might have about the blurring through a redefinition. So we did support this bill in the second reading and we will be supporting this bill this evening as well, but we do have some concerns.

I just wanted to open my speech tonight by going back to the chair of the Government Administration Committee—the very good chair of our committee, the Hon Ruth Dyson—and some comments that she made and directed towards Mr Seymour in his role as a parliamentary under-secretary. She challenged him in terms of when he had actually begun releasing documents under the Official Information Act (OIA). He came back and he was very clear about the fact that he had signed an agreement with the Minister of Education, Minister Parata, in December 2014, and that is when the process had begun. Just looking at the documentation that I have, I can confirm that this bill was introduced into the House on 23 July 2015 and it was referred to the committee on 14 October.

💬 Hon Ruth Dyson: When was it lodged? You don’t know the answer to that question, do you?

Well, that might be a very good question. If the chair takes a call, that might actually be a very good question for the chair to answer.

💬 Hon Ruth Dyson: The Chair’s there.

The chair of the select committee—the chair of the select committee. I have been waiting all night for the chair to take a call. I was assured that she will, so we will wait and see. I think that this just supports and highlights the comments that were made by David Seymour—that actually he had already initiated this process under the OIA before the bill was even introduced into the House. So I just wanted to support him on that.

I would be the first to admit that I was a bit cynical when this bill was introduced to the House.

💬 Hon Ruth Dyson: Surely not!

No, that was at the start of the process, and I will explain why I was cynical, because under a Labour Government—

The CHAIRPERSON (Hon Trevor Mallard): No, the member is not going to explain why he was cynical. What he is going to do now is go back to debating clauses 1 to 4, which we are currently considering—remember? We had a first reading and a second reading. We have agreed to the principles of the bill. All we are doing now is debating whether these clauses do the job or not.

I think the clauses will do the job, Mr Chair. I do not think there is any concern or worry about that at all. But I am just very interested that our Parliament has actually had parliamentary under-secretaries before, under both National and Labour Governments, and the legislation that existed then seemed to work very well. I think we had the Hon Dover Samuels who was a parliamentary under-secretary. He seemed to operate very well under that legislation, and so I could not see initially what the immediate issue was under the existing legislation. Parliamentary under-secretaries have obviously served very well and very transparently under previous Governments, so—

OK, the member will resume his seat. David Seymour—sorry, Eugenie Sage.

💬 David Seymour: Mr Chair, you can’t take the call away.

The CHAIRPERSON (Hon Trevor Mallard): It was an absolute mistake. I call Eugenie Sage.

It will be only a brief call, Mr Seymour. We are very pleased to support this bill. Yes, there certainly have been parliamentary under-secretaries before, but I do not think they have been responsible for such ideological nonsense as we have had with this parliamentary under-secretary and his promotion—

The CHAIRPERSON (Hon Trevor Mallard): Order! I am now going to warn the member. She is even worse than some of the people being off the topic before. Clauses 1 to 4 only.

Thank you, Mr Chair. So we are pleased that the Government is going to support the bill, because it is a tiny sign that it does recognise the value of the Official Information Act.

However, the Law Commission did a very comprehensive review of the Official Information Act, putting out an issues paper in 2010 and then quite a comprehensive report in 2012, The Public’s Right to Know, which recommended a much more extensive review of the legislation. It is really disappointing that the Government has not proceeded with that. So we would like to see the recommendations from the Law Commission’s report, which are along the lines of some of the changes in Mr Seymour’s Supplementary Order Paper 181—which is out of scope, and we are pleased it is out of scope because it is very poorly drafted—including that the Officers of Parliament, with certain exclusions, be included in the Official Information Act. We would like to see the Act completely rewritten so that it is very clear, because, as the Law Commission pointed out, deciding or determining whether an agency is actually subject to the Act is quite complex.

But I can see Mr Chair is a bit concerned about the scope of my speech, so I will simply say that we support the bill. I congratulate the member in the chair, Adrian Rurawhe, and look forward to a much more comprehensive review of the legislation.

David Seymour, I think—after the debacle earlier.

I thank the member who just resumed her seat, Eugenie Sage, for setting a new standard in the scope of this debate, which, of course, I will not seek to reach, because I respect your rulings, Mr Chair.

The CHAIRPERSON (Hon Trevor Mallard): The member must not mislead the Committee.

I want to touch on Supplementary Order Paper 181 because—as I was working towards in my speech—it is an important part of the story of how this bill got here. It has been helpfully alluded to by the member who just resumed her seat that Part 4 in this particular bill does actually change—oh, sorry, section 4, does actually—

The CHAIRPERSON (Hon Trevor Mallard): Clause 4.

Clause 4 does significantly change the role of parliamentary under-secretaries. Once you are prepared to open up that distinction, then I think it is worth asking whether this is the right way to do it. This House has limited time. There are limited resources for transferring information within Government. How do we find the optimal level of transparency across Government, given those constraints?

It seems to me that the Law Commission did, in fact, make a very, very helpful contribution in its 2012 report on the public’s right to know when it advocated not only that the Official Information Act be extended—as it has been in clause 4 of this bill—but that it be extended much, much wider. Of course the principles on which the commission drew, in making those recommendations, are the same principles that clause 4 in this bill purports to be based upon. It recommended, for instance, that the Office of the Ombudsman should also have the Official Information Act extended to it. I support that, and I will mention, in passing, a Supplementary Order Paper that has been ruled out of order that actually would have made that change.

The Law Commission—showing neither fear nor favour for its own profession—also recommended that the judiciary has the Official Information Act applied to it.

The CHAIRPERSON (Hon Trevor Mallard): All right. Do I need to tell the member?

No, no. I have got the message.

The CHAIRPERSON (Hon Trevor Mallard): Right. Well, the member will now come back to the bill.

Thank you, Mr Chair. As we can see, there is a theme here: by excluding a number of other possibilities, this bill has been very narrow in scope. It also tells us something about the motivations of the member in charge of the bill. I think that the people at home will often judge politicians by their motivations and they might wonder why Mr Rurawhe has brought any of these four clauses, including clause 4, to this Committee. The fact that he has been so unwilling to follow the Law Commission’s very sensible recommendations and has included only parliamentary under-secretaries in clause 4 is one of the reasons I find it so difficult to support clause 4.

I think people at home will be wondering why—if he was really committed to the public’s right to know—Adrian Rurawhe drafted a clause that was so limited in its scope when other credible sources say that there are so many other aspects of government that might have been included in that clause. That is why I find it so difficult to support clause 4, and it is why people at home might be wondering why Mr Rurawhe drafted such a narrow clause. Perhaps, if we are very lucky, Mr Rurawhe will actually stand up and give the Committee his explanation of precisely why that is.

I think it actually is worth mentioning that on several occasions in the recent past a member has left this Parliament because of prosecutions brought in the court system, presided over by the judiciary, where they were ultimately exonerated in court but none the less lost their career. I think that if we are prepared in clause 4 to extend the Official Information Act to parliamentary under-secretaries and if the judiciary is also being seen to have so much influence on the proceedings in this House, and actually change the balance of the House at different times—

I thank the member David Seymour for yielding briefly as I take another contribution in this Committee stage debate. I have actually got a couple of questions for the honourable member Mr Rurawhe, because, as we commenced this Committee stage debate on this interesting, if short, piece of legislation, Mr Rurawhe did not make a contribution. We have had a few questions already. I would like to add a couple to that. The clause that I do not have a question on is the “principal Act”, as laid out in clause 3. That is very clear. I understand that entirely and I think that if a member does not understand what the meaning of that clause is, they probably should not be in this place, because it is very straightforward.

Clause 1 is the title clause. I actually would like to ask why the member chose to call it the “Official Information (Parliamentary Under-secretaries)”—plural—“Amendment Bill”, because of course there is currently only one parliamentary under-secretary, and one might feel that it is somewhat targeted upon the only current parliamentary under-secretary. So I would just be interested in an assurance from Mr Rurawhe that this is actually a high-minded point of principle and not simply targeting the only current under-secretary of State. I would like to know the answer to that question.

The second question, Mr Rurawhe, is around the commencement clause, clause 2, which says that this Act comes into force the day after it receives the Royal assent. I would like to know from Mr Rurawhe whether he had in mind, when devising this clause, the retrospectivity of the Official Information Act. It is inherently something that is designed to allow transparency on information that has been accumulated, generated, and stored over a long period of time. We have heard from the member Mr Seymour, the only current parliamentary under-secretary under this National Government, that he has put in place a very proactive approach to responding to Official Information Act requests, or, in fact, proactively releasing information before the requests are even made, in so far as his education portfolio is concerned. I am not quite so sure whether he has that proactive measure in place on his, arguably, less controversial portfolio of regulatory reform.

If this bill comes into force immediately on the day after the Royal assent without any period to allow it to be bedded in, what kind of compliance burden might this place on the smaller office of a parliamentary under-secretary vis-à-vis a larger office of a Minister, be it a Cabinet Minister, a Minister outside Cabinet, an Associate Minister, or even a Minister of State, although there is no one who holds that sinecure, obviously, under this hard-working National-led Government. So the question there really is whether a day after the Royal assent is sufficient, given that over the course of 18 months or so that the member has been a parliamentary under-secretary a vast amount of information may have been generated, accumulated, held, stored, and processed by his office. He might have received, for all we know, many thousands of pieces of correspondence in the field of regulatory reform because there are many letters written by admirers of this Government, I am sure, and of the wonderful policies that have been implemented to make life easier for small-business owners, cutting through the red tape. I am sure he gets thousands of congratulatory cards on a daily basis from businesses up and down the country, be they in Clutha-Southland, or Dunedin North—

The CHAIRPERSON (Hon Trevor Mallard): Order! There is nothing in the debating phase that prevents members being ironic, but they still have to be relevant.

💬 David Seymour: I raise a point of order, Mr Chairperson. How do you know he is being ironic?

The CHAIRPERSON (Hon Trevor Mallard): Paul Foster-Bell.

My point here, and the relevance to this particular clause, is I am concerned—and I hope Mr Rurawhe will respond to this—that there could be a vast array of information generated in this modern, highly automated, technical age in which we live held by Mr Seymour’s office that does not fall under the category that he has explained as being proactively released. Therefore, has the member proposing the bill considered the impact that that might place on a relatively low-resourced office, when you compare it with the offices of other Ministers—that there would be a burden being placed on staff, or perhaps public servants. What is the cost to the taxpayer that that might bring? So I would like some answers from the member, if possible.

Tēnā koe e Te Kaiwhakahaere o te rā, tēnā tātou katoa.

[Thank you Mr Chair of today’s proceedings, and acknowledgments to us all.]

I would like to try to answer or to address some of the questions that have been raised by members. I have been listening very carefully to them, and I would like to, if I can, try to join some of them together because I think some of them are relevant to each other.

So, first of all, about intent—it is very easy for us to look through our 2016 lenses and try to predict what the 1982 intent was. The information from the Ministry of Justice seems to say that there was no intent around parliamentary under-secretaries whatsoever, and what ended up in the Act was the intent. The issue for me is what is our intent in line with information that has come to this House and to members of Parliament—for example, the document that members have referred to—and the public’s right to know. Surely, the intent of this Parliament tonight is what we should be talking about. Quite clearly, so far, all of the submitters have agreed with this bill and the Ministry of Justice has recommended that it be supported into legislation, and that is quite clear. So I think it is this Parliament’s intent that is what counts to do with this bill.

The issue around capturing a member of Parliament’s work through this bill is, quite clearly, also addressed by the Ministry of Justice. The Law Society said that any risk of capturing parliamentary information is mitigated by the withholding grounds contained in the Official Information Act. That is never ever going to be captured under my member’s bill, and so members can rest assured that that will not be an issue, or it ought not to be an issue.

The title of the bill, Mr Foster-Bell, clearly reflects what this bill is about. My understanding is that the title of the bill should be relevant to what is in the bill. It could not be more relevant. What it is not relevant to is anything else that someone might want to add to it. That would change the whole nature of the bill. So I think that the title of the bill is absolutely correct.

Retrospective issues—a good question, and I have thought about that. I take Mr Seymour’s word. He has stated to the Committee that he has already provided that information, so what additional compliance burden will be on him? Well, according to his own answer or his own information to the Committee, it would be nothing, because he is already doing that. He is already, by his own statements in the House, providing that information, and I think that is fine. Before that, I am not sure. I am not sure what one can do through this bill to address, say, former parliamentary under-secretaries. I am not sure. I suppose you could try making an application to the Hon Annette King perhaps, or to Peter Dunne. I am not sure that they hold that information. It is probably in the archives, anyway, so I do not see that as an issue at all. I have thought carefully about that and I do not think that is really an issue.

Mr Seymour has quite rightly said, as I acknowledge, that he has told this Committee that he has already provided information through the Official Information Act—and that is fine. He says that will make no material difference. What it will make a material difference to is the future, and the obligation for future parliamentary under-secretaries to be compliant with this bill when it becomes an Act. That is quite clear.

The question around why it is so narrow—well, it is narrow in the respect that it does what the title says it is going to do. I would make a distinction—I would make a distinction—to what has been tabled, like this: this bill makes a change to the definition of who, along with Ministers, is liable to Official Information Act requests. What it does not do, as has been proposed by Mr Seymour’s Supplementary Order Paper 181, is add new agencies into schedule 1 of the Official Information Act. It does not do that. The other difference, of course, is that those clauses have not been scrutinised by a select committee, and they have not been subject to public submissions. I think that would be a mistake.

Order! I am not going to let the member carry on debating something that is out of scope. The question is that clauses 1 to 4 stand part. Those of that opinion will say Aye—oh, sorry. I will make it clear, as I have previously, that I am not putting Mr Seymour’s Supplementary Order Paper because it is out of scope.