Legal Beagle by Graeme Edgeler

56

Questions, but no answers, with thanks to David Simon for opening my eyes

I

On Thursday, Newsroom journalist Sam Sachdeva sent this tweet:

There have been a whopping 6254 written questions submitted to Govt ministers by the Nats in the last month; for comparison, there were 964 during the equivalent period after the 2014 election.

— Sam Sachdeva (@SamSachdevaNZ) November 24, 2017

I retweeted, and replied, and my mentions have now started to die down.

Written questions are not OIA requests. They’re more urgent: replies are expected within six working days, not 20, and the MPs who are asking them can seek answers, but not documents. And like the more well-known oral questions, each question is limited to one question, and answers are usually expected to be short. They’re a means for MPs, especially opposition MPs, but also local MPs, to quickly get information from Ministers to enable them to be able to do their jobs, representing the interests of their constituents, or holding the government to account, and, ideally not having to wait for the length of time an OIA usually takes.

You can’t use the written questions to get documents, but you can use them to ask for the names of documents: what reports has the Minister seen about school closures in the last month? With the answer, an MP can then follow up with an OIA request for reports of interest.

So, what questions have National MPs been asking?

Here’s one example:

8560 (2017). Hon Mark Mitchell to the Defence (Minister - Ron Mark) (16 Nov 2017): What meetings, if any, has the Minister attended between 26 October 2017 and 15 November 2017, including subject, attendees, and agenda items?

It’s the type of thing any beat reporter probably does once a month via the OIA: ask the Minister of Health, or Education, or Defence who they have met with in the last month (or in this case, the first 3 weeks or so since being a Minister), or what reports they’ve received in the last month, and then 20 working days later once you received the reply, put in further requests about reports or meetings of particular interest. It is an entirely reasonable question for the opposition defence spokesperson to ask: MPs have a heightened interest in this information, and allowing them the faster start on the question part is the reason Parliament has written questions.

The answer given was:

Hon Ron Mark (Defence (Minister - Ron Mark)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

This is not particularly helpful. But perhaps three weeks is too a long time? With meetings every day, the answer could be lengthy.

How did other MPs do?

Well, Simon Bridges, split them up a little more. He broke them down into weeks, asking questions like:

8449 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 26 October and 29 October inclusive, including subject, attendees and agenda items?

And:

8448 (2017). Hon Simon Bridges to the Immigration (Associate Minister - Kris Faafoi) (16 Nov 2017): What meetings, if any, did the Minister attend between 30 October and 05 November inclusive, including subject, attendees and agenda items?

These questions got the answers:

(to 8449) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

(to 8448) Hon Kris Faafoi (Immigration (Associate Minister - Kris Faafoi)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

Well, they say a week is a long time in politics, so maybe this too is too long, even when the week is short because for most of it, you weren’t yet a Minister). So, at the express request of the Ministers, National MPs have been limiting their requests further:

Chris Bishop asked about a single day:

8393 (2017). Chris Bishop to the Police (Minister - Stuart Nash) (16 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27, if so, what people and organisations did he meet with on that day, where were the meetings held and what were the main items of business?

The reply:

Hon Stuart Nash (Police (Minister - Stuart Nash)) replied: I meet regularly, formally and informally, with officials and various stakeholders. A range of issues are discussed. If the Member would like to be more specific I will endeavour to answer the question.

 Bishop too, was asked by the Minister to be more specific, Ministers are refusing to say what they did even on a single day. Bishop has followed up, with a few more questions:

11778 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 8 and 9am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

11779 (2017). Chris Bishop to the Minister of Police (22 Nov 2017): Did the Minister have any meetings in his capacity as Minister of Police on October 27 between 9 and 10am, if so, what people and organisations did he meet with at that time; where were the meetings held and what were the main items of business?

The replies are due by Thursday. Hopefully Bishop, and the other MPs (all of whom seem to have been specifically invited by Ministers to ask more granular question) will have the answers to which they are entitled.

So far, Bishop’s hour-by-hour requests only cover the first two days the Minister of Police was in office, although the essentially rejected day-by-day requests covered several weeks. The Minister should consider himself lucky. Far from being aghast that National MPs have asked “a whopping 6254 written questions”, I am instead surprised by their forbearance. They are being denied information they ought to have. By rights, they should have asked more.

II

A wonderful piece of journalism I’ve come back to several times is this article by David Simon, now reprinted on his website. He describes:

...police commanders who felt it was their duty to demonstrate that crime never occurred in their precincts, desk sergeants who believed that they had a right to arrest and detain citizens without reporting it and, of course, homicide detectives and patrolmen who, when it suited them, argued convincingly that to provide the basic details of any incident might lead to the escape of some heinous felon. Everyone had very good reasons for why nearly every fact about a crime should go unreported.

In response to such flummery, I had in my wallet, next to my Baltimore Sun press pass, a business card for Chief Judge Robert F. Sweeney of the Maryland District Court, with his home phone number on the back. When confronted with a desk sergeant or police spokesman convinced that the public had no right to know who had shot whom in the 1400 block of North Bentalou Street, I would dial the judge.

And then I would stand, secretly delighted, as yet another police officer learned not only the fundamentals of Maryland’s public information law, but the fact that as custodian of public records, he needed to kick out the face sheet of any incident report and open his arrest log to immediate inspection. There are civil penalties for refusing to do so, the judge would assure him. And as chief judge of the District Court, he would declare, I may well invoke said penalties if you go further down this path.

Delays of even 24 hours? Nope, not acceptable. Requiring written notification from the newspaper? No, the judge would explain. Even ordinary citizens have a right to those reports. And woe to any fool who tried to suggest to His Honor that he would need a 30-day state Public Information Act request for something as basic as a face sheet or an arrest log.

“What do you need the thirty days for?” the judge once asked a police spokesman on speakerphone.

“We may need to redact sensitive information,” the spokesman offered.

“You can’t redact anything. Do you hear me? Everything in an initial incident report is public. If the report has been filed by the officer, then give it to the reporter tonight or face contempt charges tomorrow.”

The late Judge Sweeney, who’d been named to his post in the early 1970s, when newspapers were challenging the Nixonian model of imperial governance, kept this up until 1996, when he retired. I have few heroes left, but he still qualifies.

I don’t know a lot about freedom of information law in Maryland. I suspect it is imperfect, but the idea that there are distinct public records laws which make a range of information automatically obtainable is eye-opening. I thought we had (in theory, if not always practice) a pretty good freedom of information law, and while there’s information in New Zealand that we have a right of access to: the names and home addresses of directors of companies via the Companies Register, for example, the idea that that category can include to arrest logs and the facing sheets of reports of police shootings is kind of mind-blowing.

Basic ministerial diaries should be in the same category. MPs shouldn’t even have to ask for this material. It should be released automatically each week.

Ministers have only themselves to blame that National MPs have had to ask questions about what they’ve been doing each week, each day and each hour. It’s because they haven’t told them (and us) already.

Information about who a Minister has met, or what reports they have received are matters of public interest. While the explicit content  of some meetings, or some briefings  may be properly withheld, the existence of the meetings themselves will not, just like the existence of arrests and shootings in Baltimore.

Clare Curran has recently been appointed Minister for Open Government. She should take the opportunity to propose to Cabinet the automatic release of ministerial schedules.

III

The law of armed conflict recognises the concept of a “reprisal”. It allows, in certain circumstances, one party to a conflict to deliberately commit what might otherwise be a breach of the laws and customs of war, in response to breaches by another belligerent. For example, if your enemy commits the war crime of deliberately misusing vehicles carrying the Red Cross or Red Crescent emblem as cover for an attack, it may be permissible for you, in the right circumstances, the undertake what would otherwise be the war crime of attacking vehicles protected by a Red Cross or Red Crescent.

There are limits. You cannot carry out reprisals on civilians, or on prisoners of war, and caution is required, lest the reprisal cause further breaches of the laws and customs of war.

So too it is with Parliament. The rules allow a lot of things that custom and practice dictate should not be done in ordinary circumstances. An MP will sometimes take a point of order they know they will lose, but one of these customs is that members should not take wholly frivolous points of order.

On a Members' day on 6 April 2005, the Government deliberately refused to send a Minister to House when it resumed after the dinner break, causing the House to be inquorate (Standing Orders require a minister to be present), causing the loss of 2.5 hours of members time, preventing the opposition from using the one day it has every two sitting weeks to advance its business and not government business. They had their reasons (leader of the House Michael Cullen was annoyed opposition members had denied leave to extend the sitting during the dinner break and then rise early to allow all government members could attend a State Dinner for the President of Indonesia), but he still shouldn’t have done it. The following day, the opposition took about 3o minutes before question time on points of order litigating the issue, and then after question time, opposition MPs took turns seeking leave to table individual standing orders until the Government relented and allowed the debate on the first reading of the Green Party’s Employment Relations (Flexible Working Hours) Amendment Bill to be finished, before going to Government business. Opposition MPs should not make frivolous points of order, but the Government shouldn’t deliberately collapse the House on a members day, so the reprisal was proportionate and comity resumed.

The same is true here. While there is no limit on the number of written questions that the opposition can ask, the opposition should not ask 6254 written questions in a month. But the reason this is so is that they shouldn’t have to.

The asking of a large number of very specific questions is an entirely proportional response to the refusal of Ministers to seriously answer reasonable questions. Hopefully this reprisal again has its intended effect, and Ministers should realise that they were wrong to have refused to seriously answer the more general questions National MPs had asked.

During the election campaign, bloggers, tweeters, economists and journalists rightly called out Steven Joyce’s false claims of there being an $11.7b hole in Labour’s fiscal plan. There was a right and a wrong, and no serious debate about which was which.

On that occasion, National was wrong. On this occasion, National is right. There is no justification for the Government’s refusal to seriously respond to National MP’s questions about what they are doing in office, and every justification for National’s response. This is especially so when it is over material that should simply be made public in the general course. National should get its answers, and the public should get to see what the Government is doing. If ministers aren’t prepared for that sort of openness, they shouldn’t be ministers. Over to you, Clare Curran.

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