Source: Professor Jane Kelsey + Courts of New Zealand + Click here for the Full Judgment: Kelsey V The Minister of Trade (pdf)
The High Court today vindicted charges that Trade Minister Tim Groser acted unlawfully in his quest to keep all information about the Trans-Pacific Partnership Agreement (TPPA) secret.
The case involved judicial review of Minister Groser’s refusal to release various categories of documents under the Official Information Act, which the first applicant Professor Jane Kelsey requested in January 2015.
The Minister said ‘no’ without looking at a single document, claiming he knew what they all contained and that releasing them would jeopardise New Zealand’s interests.
‘The Minister’s approach epitomises the contempt for democratic processes and accountability that has pervaded these negotiations’, said Professor Kelsey.
Justice Collins said: ‘the Act plays a significant role in Nerw Zealand’s constitutional and democratic arrangements. It is essential the Act’s meaning and purpose is fully honoured by those required to consider the release of official information.’[para 156(2)
In ordering the Minister to reconsider his decision His Honour said ‘the orders I have made reinforce to the Minister and other decision-makers the importance of discharging their responsibilities under the Act and promote future compliance’ [para 158(2)].
Because this was a judicial review, the court could not consider the substantive grounds on which the Minister relied, but provided guidance for his interpretation as he reconsiders the request.
The judge effectively reserved the right for either party to return to the court within six months for further orders if the Minister does not appear to have taken the message of the judgement on board.
‘It’s cold comfort that the Minister will have to revisit the request, using a proper process and interpretation of the rules, after the negotiations have already concluded’, Professor Kelsey said. ‘His unlawful approach in circumventing the Official Information Act appears to have achieved its goal.’
Nevertheless, the Minister should now release at least some documents that can help inform the debate on the TPPA.
The court’s decision also has a longer-term precedent value. ‘It sends a message to this minister and his colleagues in the Executive that their legal obligations under the Act cannot be flouted just because they are politically inconvenient, and that people are prepared to challenge them if they do.’
Professor Kelsey suggests there are equally serious questions about the Chief Ombudsman’s failure to hold the Minister to account.
‘The Chief Ombudsman is meant to be a check on Executive power, not to legitimise its unlawful practices.’
‘That she could uphold such a seriously deficient interpretation of the Act, and delay the possiblity of a legal challenge for nearly five months while she reached that conclusion, shows the Office needs a serious overhaul.’
The Chief Ombudsman has still not reported on two categories of information that were omitted from her review of the Minister’s decision because she had not finalised her deliberations. That means they could not form part of the judicial proceedings.
Professor Kelsey described as ‘practically useless’ the Chief Ombudsman’s suggestions that a report on those matters is imminent, almost three months later, following several reminders and after the negotiations have been concluded.
These aspects of the request, as well as the Minister’s approach to the reconsideration, could form the basis of a supplementary approach to the court within the next six months.
‘I have updated the original request to the Minister dating to this week. Let’s hope the Minister now takes the law seriously and releases the raft of documents – and goes back to the other TPPA parties and asks them to rescind their secrecy memorandum.’
The judicial review relates to an Official Information Act request lodged on 25 January 2015 seeking eight categories of documents, drawn from categories recommended by release by the European Ombudsman in parallel negotiations between the US and EU.
The Minister refused to release any of the information on 27 February 2015. The matter was referred to the Chief Ombudsman, who reported on 29 July 2015 upholding the Minister’s decision in relation to six of the categories and continuing her inquiry on two.
The court proceedings were lodged on 5 August 2015 by eight applicants: Consumer New Zealand, Ngati Kahungunu, Oxfam NZ, Greenpeace NZ, the Association of Salaried Medical Specialists, New Zealand Nurses Organisation, Tertuary Education Union, and Professor Kelsey. They sought Declarations that the Minister’s decision was unlawful, and Orders for the Minister to reconsider the decision.
The Court made an order quashing the Minister’s decision and directing him to reconsider the request in light of his interpretation of the provisions of the Act. In light of that order he considered it unnecessary to issue the Declarations sought by the Applicants, but reserved the right for the parties to return to the court within six months if supplementary or consequential orders are likely to be required. Costs were awarded to the Applicants.