This commentary based on my book, Complacent Nation, appeared in three New Zealand metropolitan newspapers on Monday 15 August 2016.
The Right to Know and Supreme Law
The New Zealand public are a perplexing paradox.
They leap into paroxysms of patriotic fervour at the sight of 15 men charging with an oval ball, or one woman hitting a small round one with a stick.
They break out ‘The End is Nigh’ signs when attempts are made to regulate what lightbulbs they may use, and have strong views on a symbolic piece of cloth (even if they don’t vote to change it).
Yet, when a fundamental human right is threatened and eroded, they fall strangely silent.
Perhaps they believe life in a free country is somehow self-perpetuating. Unfortunately, it is not.
The right that has been threatened and eroded is the right to know.
It is embodied in the freedom of expression clauses of the New Zealand Bill of Rights Act and the United Nations’ Universal Declaration of Human Rights. It is the underlying principle of the Official Information Act. That, one might think, invests it with an inalienable status. One would be wrong.
The right to know in New Zealand has become deeply politicised, with the release of official information assessed on the basis of political risk. The requirement that public servants adopt a ‘no surprises’ approach means the ministers who oversee their activities are able to block, delay or water down inconvenient truths while leaving their departments to ‘take the heat’.
They are able to do so because, for every legislative clause ‘guaranteeing’ freedom of expression, there are a score of provisions that allow the ‘guarantee’ to be ignored.
The Bill of Rights Act allows rights to be over-ridden by “reasonable limits prescribed by law as may be demonstrably justified in a free and democratic society”. Section 5 of the Official Information Act states the principle that “information shall be made available unless there are good reasons for withholding it”.
These get-out clauses have allowed legislators to include – in an Act purportedly designed to allow the public to know what the state is doing on its behalf – 56 grounds for ignoring
the principle that official information should be available.
Both the Labour-led Government of Helen Clark and the present National-led Government have used these provisions, together with the ‘no surprises’ policy and the replacement of public service tenure with (may be) renewable term contracts, to manage what the public is allowed to know. Both have used the get-out provision of the Bill of Rights Act to propose and pass laws that would otherwise breach our rights.
Public servants and journalists tell disturbing stories about the way official information is now routinely viewed through a lens that places the interests of ruling politicians uppermost. I am also concerned about what might come next.
Politicians know from experience that they can make inroads into our right to know without raising the ire of the public. They also know that the public is increasingly driven by emotive issues and can be diverted away from bothersome detail.
There are three scenarios under which our right to know – including the right of journalists to seek information on the public’s behalf – could be dramatically curtailed. One is the implementation of draconian anti-terrorism laws following attacks in this country, another is widespread privatisation of state functions, and the third is the election of a populist right-wing government. In each case restrictions circumvent the Bill of Rights Act on the basis that they are within “reasonable limits”.
Some restrictions under those scenarios may be justified: There is broad recognition that free speech is not entirely without limits. However, circumstances also allow politicians to give the state powers that go beyond what is necessary and proportionate. The anti-terrorism laws of Australia, the United Kingdom, Canada and the United States are proof of that. So, too, is the execution of police search warrants on the homes of New Zealand journalists like Nicky Hager and Heather du Plessis-Allan.
I argue for an over-arching safeguard by establishing the Bill of Rights Act as supreme law. It would allow the Supreme Court to review laws and regulations seen to be in breach and refer them back to Parliament for reconsideration, as is the case in Canada. Get-out clauses would have a high hurdle to jump.
Politicians will not initiate such a safeguard. They have already ignored calls for it by former Prime Minister Sir Geoffrey Palmer and the late jurist Lord Cooke of Thorndon. It will happen only if there is a widespread demand that tips the political scales. And for that to happen New Zealanders will need to be shocked out of their complacency.
Dr Gavin Ellis, a senior lecturer at the University of Auckland, is a media commentator and former editor-in-chief of the New Zealand Herald. “Complacent Nation” is part of the BWB Text series published by Bridget Williams Books (hard copy $14.99, e-book $4.99).