Ombudsmen (Cost Recovery) Amendment Bill

I move, That the Ombudsmen (Cost Recovery) Amendment Bill be now read a first time. I nominate the Government Administration Committee to consider the bill. This bill has its genesis in a similar piece of legislation that was drafted by my former colleague the Hon Shane Jones, who identified a hole in our administration of what is a very core part of holding Governments, Government departments, local governments, and various other agencies of the State accountable to the public, who elect them and who fund them through their taxes. That is, that there is really no financial penalty for the Government departments that drag their feet and deliberately stop the Official Information Act working as it is.

So Shane Jones came up with this idea, which I think is quite a sensible one. It was that the Ombudsman, when the Ombudsman gets a complaint and finds that it is well founded, has the ability to recover their costs—that is, the Ombudsman’s costs—from the Government department. That is what this bill does, in essence, and I want to explain why it is necessary and why this aligns the incentives that those Government departments should be under with the aims of the legislation.

Ombudsmen have been around in New Zealand for quite a few decades now. I think it was 1975 that Ombudsmen were first introduced, or it might have been even earlier—was it in the 1960s? But, in any event, in 1982 the responsibilities of Ombudsmen were extended when the Official Information Act was passed. That was the time when this Parliament said that in order to have properly accountable Governments and Government departments, there should generally be transparency of the documents that they hold and those documents should be able to be accessed by the public by making a request to the central government agency or the Minister’s office, or to local government in the case of local government, and they have got a duty to provide that information to the public, except for some exceptions.

There are some well-seated exceptions. They include that you do not want to destroy the incentive for Government departments to give full and frank advice to their Ministers and you do not want to be forcing Governments to breach legal professional privilege—they have got the right to keep their legal advice confidential. There are some commercial negotiations that also should not be made public, and there are also some exceptions relating to highly personal information. But, other than those exceptions, there is a duty on the Government under the Official Information Act to make that information available to the public.

As things sort of transpire through history, you know, things get distorted. There is a bit of an ebb and flow to these things, and the Official Information Act came in in 1982 because Government was not being open enough. After then, Governments improved, and I think Government departments and Governments have been pretty good overall at complying with the Official Information Act. But none the less you see this slow decline over time, as Governments and Government departments get a little bit less willing to hand over what they should be handing over, and they fight before they hand over the documents and they become obstructive.

Is this happening in New Zealand? Well, I think it is, and I want to give a couple of instances. The number of complaints that the Ombudsman gets is about 3,000 a year, or a bit more than that, but roughly 3,000 complaints a year. Some of those complaints are because the way in which Government departments fight against the disclosure of that information means that it takes many years to overcome. Some of that has been because of underfunding of the Ombudsman, which is in part being fixed because this Parliament voted them more money—not the Government, but this Parliament; that is how the Ombudsman is funded, by a parliamentary vote and not by a Government vote—but none the less there is still a large number of outstanding old Official Information Act requests.

This, in my opinion, is all the more important to fix nowadays, given that the media are so pressed given the collapse of their revenue model. The media now do less investigative journalism than they used to because they have not got the paid staff to do the investigative journalism that they used to be able to sustain before they lost all of their advertising revenue to the internet. That means that they make fewer Official Information Act requests, I would say, and it also means that they are less assiduous in following them up because they just have not got the time to do it. So this makes it all the more important that the Official Information Act works properly. Does it work properly all the time? No, it does not.

What is a recent example? In this House we have recently had what I think was scandalous behaviour in respect of the Saudi sheep saga. We know as a matter of public record that the Auditor-General eventually got to the bottom of it and showed that there was poor practice around multimillion-dollar payments to Sheik Hamood Al Ali Khalaf from Saudi Arabia, and at one stage the Minister appeared in the House and said that we were doing that to settle a legal claim or a legal risk—both of those words were used at different times. So we made requests under the Official Information Act to try to get to the bottom of this because it seemed very unusual for the New Zealand Government to be paying a man $4 million, plus more than a million dollars to fly sheep to a farm in the desert, plus about another $6 million on that farm. You know, it was a lot of money, it just did not make sense, and it had been hidden from the public.

So we went about making our inquiries. We had all sorts of difficulties getting to the bottom of that. You know, even to this day I do not have a lot of the documents. We have given up because, of course, the Auditor-General, essentially, got to the bottom of it, but we actually did not get to the bottom of it through the Official Information Act. When documents were eventually released, they were released in this great gush of documents that was a pile about 5 inches long—and it is good that those documents were released—but they were full of redactions and those redactions did not make sense. Those redactions said things like “commercial sensitivity”. Commercial sensitivity of a negotiation that has finished? How can that be when there were only two parties? It is not like there was some open tender where people would be disclosing their methods of how they would compete for contracts. There was only one party involved, the deal had been done, and the money was being paid.

Well, you know, those redactions—we appealed to the Ombudsman. Did we get satisfaction through there? No, we did not. Was that the Ombudsman’s fault? Well, perhaps in part. I am not criticising the current Ombudsman, but, you know, they did not jump to it as fast as I would have liked, partly because they were so pressed with all of the other ones that they are dealing with.

If you create an incentive that you can ping the Government department that is being obstructive, well, for a start, you have got more money for the Ombudsman to follow through what needs to be followed through, and if there are too many of those things that are not being complied with by the Government, then the Ombudsman will get more and more money to do what needs to be done and could take on some more staff.

But, as importantly, that would be a trigger for this Parliament, through a select committee, to say to those Government departments: “Why is it that you keep getting pinged for costs by the Ombudsman? You’re obviously not complying with the Official Information Act. We don’t think that’s good enough.” So this Parliament would be putting accountability mechanisms on the chief executives of the Government departments, who can cause this to be done properly.

Final point: the other thing that has gone wrong recently in New Zealand—and this is not just under the current Government. It happened under the prior Government as well, but there is a slide whereby it gets worse year by year. It is that there has been this corruption—not “corruption”; I do not mean that. There has been this over-extension of the no-surprises doctrine. The no-surprises doctrine is now being used to say: “Oh well, actually, nothing should happen that Ministers don’t like or that is going to embarrass the Government.”

That is not how the Official Information Act is meant to work. Government departments ought not to be seeking permission from their Minister’s office to release something; they should be doing their duty. They might tell their Minister that it is happening, but they should not be seeking approval to do it, or negotiating through ministerial advisers and Government departments for that to happen. I know that that is happening, we all know that that is happening, and it needs to be stamped out.

Some overseas jurisdictions criminalise that. They say that it is a criminal offence for the Government department to negotiate with the powers that be above them before they meet their duties under the Act. That would have been one approach and, you know, maybe we should look at that as a country.

This approach is less harsh than that, but none the less I think it is worthy. It will assist the media to do their job, it will assist members of Parliament to do their job, and it will assist interested members of the public to get the information that they, by law, are entitled to. It is not changing the legal test as to when information is able to be legitimately withheld. It would aid in the proper implementation of the Official Information Act.

Debate interrupted.