Legal Beagle by Graeme Edgeler

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Legal Beagle: Adventures in the OIA or: Why Don Brash wanted to lead ACT

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  • Graeme Edgeler,

    p.s. I realise National Radio changed its name to Radio New Zealand National. In Part 6 of the Broadcasting Act, not so much =)

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Rich of Observationz,

    I guess the situation with yellowcake depends on whether the meaning of "imported" includes goods on a ship that aren't being unloaded in New Zealand. Such goods aren't subject to GST and duties, for instance.

    You also have the situation where aircraft land in NZ with depleted uranium balance weights. I'd suspect they don't have permits, either.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Graeme Edgeler,

    I guess the situation with yellowcake depends on whether the meaning of "imported" includes goods on a ship that aren't being unloaded in New Zealand.

    Precisely. It certainly does for a lot of purposes: including things like drug importation. Other statutory schemes use similar but distinct concepts. e.g. biosecurity uses "arrival in New Zealand", which means you're not breaking the law if you leave overseas fruit on a plane or a ship.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • izogi,

    The Official Information Act replaced the Official Secrets Act (Muldoon did something right!) and ushered in a more open system, which I suspect has had an important impact on public decision-making and accountability (mostly for good, some for ill).

    Thanks for that interesting piece, Graeme. I think the most positive aspects of the Official Information Act within New Zealand have been in the precedents that were set around interpreting it from the beginning. I read this Sydney Morning Herald article a few years back (I liked it enough to bookmark it) which is very complimentary to the OIA in the face of what Australia ended up with at about the same time. In Australia, the precedents seem to have been for government officials to go to whatever lengths they could find to avoid releasing things. Not sure if that's just a biased journalists' view.

    I worked in a non-policy role in a NZ government department until a few months ago, and much of my work was near the records managers and research analysts. It probably varies between departments, but they took their roles very seriously when it came to making information as available as possible, and they were always trying to push their culture through the organisation. I think there are still problems, like responses that get left until the last possible date before responding (and occasionally are overdue). Sometimes because Ministers have been getting involved, and other times just because many people involved in collating and writing OIA responses have other jobs that they'd rather be working on. It's tough to plan ahead if you have no idea whether you'll have to stop on short notice and answer a person's request about something you've not dealt with for several years, or answer 100 people's requests if something external happens and it provokes lots of people asking stuff. Not all departments have figured out how to handle this, and I bet there's lots of room for improvement.

    The OIA's definitely impacted the culture internally though. You just have to see how many fishing expeditions come in from members of the media (many of which never see the light of day despite someone spending several hours or more responding), and people treat their jobs as if whatever they're doing might become public knowledge. The flip-side of that is that there's less nervousness when things get released because people have (more often at least) already considered their actions. That's just my take, anyway. Obviously others may vary.

    Wellington • Since Jan 2007 • 1139 posts Report Reply

  • Raymond A Francis,

    Interesting stuff Graeme, rather surprised at the number of private prosecutions l had imagined it to be a very small number mostly becuase so few are reported to get to trial
    Good that you ask the questions so we may know

    45' South • Since Nov 2006 • 576 posts Report Reply

  • Graeme Edgeler,

    rather surprised at the number of private prosecutions l had imagined it to be a very small number mostly becuase so few are reported to get to trial

    Few of the other 350k prosecutions are reported either. I should note for completely, that the number of proceedings is around half the number of charges (i.e. the average number of charges a privately prosecuted individual faces is two).

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Craig Ranapia, in reply to izogi,

    In Australia, the precedents seem to have been for government officials to go to whatever lengths they could find to avoid releasing things. Not sure if that’s just a biased journalists’ view.

    @IZOGI: The Official Information and Local Government Official Information and Meetings Acts are pretty good (though a good number of the exemptions reek to high heaven, IMO and YMMV of course). But compliance? That’s more of a curate’s egg. Idiot/Savant’s done some excellent analysis, and I think a fair summary is that compliance continues to be, at best, patchy and too often downright Kalfka-esque.

    On Media7 last night, Jon Stephenson said it took Jerry Mateparae six months to deign to even respond to his last OIA request, and it was basically (I'm paraphrasing) a long "fuck off, I'm not telling you shit." That's blatantly flouting the law, but unless the Ombudmen get real enforcement powers what's the downside? Stephenson didn't have the time or resources to be constantly taking the NZDF to task and research a complex story like that.

    And this is nothing new. Back in the 90’s, I worked at a very small provincial paper. Even the most innocuous requests for information from the local council and hospital boards were painful. I think the assumption was that if they dragged their feet long enough (and well past the legal deadline), you’d either give up or drop dead. And you know what, they were right most of the time.

    North Shore, Auckland • Since Nov 2006 • 12370 posts Report Reply

  • Rich of Observationz,

    The Atomic Energy Act is an interesting curiosity.

    It doesn't distinguish enriched and natural uranium, so it would be legal for a secondary school to acquire a pound (454g) of 95% enriched uranium. Get a few schools together (something over a hundred) and they could jointly make a bomb.

    They'd need to collect a *lot* of voluntary contributions, though.

    Back in Wellington • Since Nov 2006 • 5550 posts Report Reply

  • Sacha, in reply to Rich of Observationz,

    Oi, don't give the current lot any ideas about alternative funding options for schools

    Ak • Since May 2008 • 19686 posts Report Reply

  • Graeme Edgeler,

    It doesn’t distinguish enriched and natural uranium, so it would be legal for a secondary school to acquire a pound (454g) of 95% enriched uranium.

    As I point out, compliance with one law isn't enough. You have to comply with every law.

    You may be right that importation of a quantity of enriched uranium of less than five pounds would not breach the Atomic Energy Act. That doesn't mean it wouldn't breach some other Act!

    Possession of a nuclear weapon is a crime in New Zealand. Aiding in the manufacture of a nuclear weapon (for example by importing enriched uranium) is also an offence against New Zealand Nuclear Free Zone, Disarmament, and Arms Control Act 1987.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Idiot Savant, in reply to Craig Ranapia,

    On Media7 last night, Jon Stephenson said it took Jerry Mateparae six months to deign to even respond to his last OIA request, and it was basically (I'm paraphrasing) a long "fuck off, I'm not telling you shit." That's blatantly flouting the law, but unless the Ombudmen get real enforcement powers what's the downside?

    In theory, the Ombudsman has those powers. They can look at Mateparae's reasons, say "this is bullshit", and force him to answer. Unless PM certifies its a security risk (in which case its on him) or Cabinet says no (something which hasn't been done since the clause was modified in 1987), there's a public duty on every member of the NZDF to release.

    In practice, the Ombudsman doesn't kick arse and take names, but negotiates and compromises. And they take months, sometimes years to do it. I'm still waiting for their draft decision on Cabinet conflicts of interest to become final (and for DPMC to be forced to release some information as a result).

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Idiot Savant,

    The Electoral Commission is hearing submissions from the parties today and tomorrow on the proper Based on past numbers

    Something seems to be missing there.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Idiot Savant,

    And on 17 March this year, just before the 5pm deadline, I asked the Electoral Commission who had applied.

    Can you scan that and put it up please? There are some new unregistered parties crying out for wikipages, but need independent sources.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Eddie Clark, in reply to Craig Ranapia,

    On Media7 last night, Jon Stephenson said it took Jerry Mateparae six months to deign to even respond to his last OIA request, and it was basically (I'm paraphrasing) a long "fuck off, I'm not telling you shit." That's blatantly flouting the law, but unless the Ombudmen get real enforcement powers what's the downside? Stephenson didn't have the time or resources to be constantly taking the NZDF to task and research a complex story like that.

    Having done a fair few OIA's in my former evil lobbyist/lawyer life, I can say that NZDF was the worst for quick responses, and the quickest to redact absolutely everything they could. However, they DID cough up most of what was being asked for once we complained to the Ombudsmen. Which is to say they could tell the ombudsmen to eff off, but in practice they don't (Southland Institute of Technology is, as far as I recall, the ONLY organisation to ever refuse to implement an ombudsman's recommendation. Our Office of the Ombudsmen is a damn good one as far as these things go internationally (even if it is massively overworked), as is our OIA. I was shocked at how secretive everything is in Canadia.

    Wellington • Since Nov 2006 • 273 posts Report Reply

  • Graeme Edgeler,

    Can you scan that and put it up please? There are some new unregistered parties crying out for wikipages, but need independent sources.

    I was wondering when you'd turn up, I/S.

    I'm not sure an email from the EC counts as an independent source ... original research, maybe?

    Simplest to wait for a couple of weeks. The Commission will make its interim allocation and will hopefully put that up on its website. Then it will be "official". You should get a news story or two to go along with it.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Graeme Edgeler,

    Which is to say they could tell the ombudsmen to eff off, but in practice they don’t

    The NZDF can't tell the Ombudsman to eff off. As they're a government department, it would be up to Cabinet.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Idiot Savant, in reply to Graeme Edgeler,

    Simplest to wait for a couple of weeks. The Commission will make its interim allocation and will hopefully put that up on its website. Then it will be "official". You should get a news story or two to go along with it

    Point. And they'll also likely post the submissions.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Graeme Edgeler,

    Point. And they’ll also likely post the submissions.

    I'm not so sure. They didn't even put a media release telling people to apply.

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

  • Simon Johnson,

    About the 61 and the 48 unsuccessful privately-initiated prosecutions; do these include the prosecutions laid by the RSPCA?
    I recall reading that the RSPCA had achieved several successful private prosecutions for animal cruelty offences. Perhaps the RSPCA cases were concluded after 2009?

    Wellington • Since Nov 2006 • 4 posts Report Reply

  • Biobbs, in reply to izogi,

    Thanks for that interesting piece, Graeme. I think the most positive aspects of the Official Information Act within New Zealand have been in the precedents that were set around interpreting it from the beginning. I read this Sydney Morning Herald article a few years back (I liked it enough to bookmark it) which is very complimentary to the OIA in the face of what Australia ended up with at about the same time.

    If you look at the comments section under that SMH article, you will see a perfect example of Biobbs' Law:

    Any time someone claims that NZ does something better than Oz, the probability that an Aussie will come along and say 'New Zealand is tiny and not even a real country , so what they do is trivial and irrelevant to us' is 1.

    The River Mouth, Denmark • Since Jan 2011 • 114 posts Report Reply

  • Paul Williams,

    I was shocked at how secretive everything is in Canadia.

    Or in Australia - NSW at least. jus' sayin

    Sydney • Since Nov 2006 • 2273 posts Report Reply

  • Rowan Crawford,

    As a bit of shameless self-promotion, can I point anyone thinking of doing an OIA request at fyi.org.nz? It tries to help along people writing public OIA requests.

    Also, any thoughts on improving the site would be gratefully accepted. Cheers!

    Auckland • Since Oct 2008 • 27 posts Report Reply

  • Idiot Savant,

    That would be

    http://fyi.org.nz/

    Its a nice easy system for asking questions and publicising the result.

    Palmerston North • Since Nov 2006 • 1711 posts Report Reply

  • Lara,

    This is a really interesting post, thank you.

    I have only ever made two OIA requests. One response (from MFAT) didn't tell me anything that wasn't already in the public domain, and arrived exactly six weeks after I made the request. The second request was to the Department of Labour in mid July last year. I was given a series of commitments on when the info would be sent but eventually the person I was dealing with sent me an email in Nov/Dec telling me he was retiring, and if I still wanted the info I would have to talk to his replacement. I was not pleased (at all!) but by that point the project I was doing had been finished (albeit with gaping holes). So I haven't followed it up. In the future I will probably use your site Rowan!

    Christchurch • Since Jul 2009 • 82 posts Report Reply

  • Graeme Edgeler,

    I have only ever made two OIA requests.

    I'm pretty sure that's not true. Ringing up some departmental office and asking what time they're open is an OIA request :-)

    Wellington, New Zealand • Since Nov 2006 • 3202 posts Report Reply

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