Crown Law defends Groser's inaction on TPP OIA request

Monday 28th September 2015

The Crown Law Office faced questions in the Wellington High Court from a judge keen to understand why Trade Minister Tim Groser dismissed an Official Information Act request for the confidential texts of Trans-Pacific Partnership trade and investment pact negotiations, without closely investigating the documents.

Justice David Collins quizzed deputy solicitor-general Virginia Hardy, appearing for Groser in a claim for a declaratory judgement on the reach of the OIA led by TPP opponent and University of Auckland law professor Jane Kelsey, and a coalition of seven non-government organisations, iwi and consumer advocates.

Counsel for Kelsey, Matthew Palmer QC, argued in the morning's hearings that it was "dangerous" to allow a "sweeping international agreement" to negotiate the TPP confidentially to over-ride the provisions of the Official Information Act.

"The sweeping nature of the international agreement is at odds with the OIA, which requires precise judgement. This agreement shouldn't be able to reverse that," said Palmer, describing that approach as "more of an Official Secrets Act mind-set" than one consistent with the OIA's requirement that all information that can practically be released should be.

"We want a declaration on how New Zealand domestic law treats that agreement," said Palmer.

Hardy for Groser said Kelsey's OIA application in January was made urgently, leading the minister to decide swiftly, backed by official advice, to declare the task of sifting perhaps 30,000 documents for deletions too large to meet an urgent request, while accepting there would be many instances of information that was either in the public domain or "anodyne" - such as the location and timing of TPP meetings - and could be released.

Justice Collins asked why Groser had not conveyed that the timetable was unreasonable.

"Why couldn't they have sought to limit the scope and while by the way, we might consider charging you for our efforts?" the judge asked. "I understand what you are saying. The appropriateness of that response depends on whether a broader approach complied with the Act."

"The minister adopted a sensible approach based on the subject matter (and) his knowledge of the documents," said Hardy.

"The question is whether the minister's approach of considering the documents listed by the applicant ", including his own "depth of understanding and that of his officials, the intimate knowledge of the negotiating environment in which TPP occurs, and explaining that to the chief ombudsman and providing documents" followed an unlawful process, Hardy said.

Chief Ombudsman Beverley Wakem investigated Kelsey's claim on the way to today's court hearing for a declaratory judgement, and agreed with the decision to withhold all documents from Kelsey, while noting that some of the material would not have offended the confidentiality provision.

The claim taken by Consumer NZ, Ngati Kahungunu, Greenpeace, Oxfam, the Association of Salaried Medical Specialists, New Zealand Nurses Organisation, and the Tertiary Education Union, and Kelsey is coinciding with TPP countries' trade ministers meeting in Atlanta, Georgia, where it is possible a final agreement could be hammered out.

US media reports suggest the US is pushing Canada to open its dairy market to New Zealand and Australian competition, signalling progress on one of the last remaining issues to be negotiated among the 12 nations of the Asia-Pacific.

That news is alarming US and Canadian dairy farmers but is likely to involve far more limited concessions than New Zealand has pushed for.

Groser said last week there would not be a "gold-plated deal" on dairy, but a deal had to emerge or New Zealand could not sign. Groser is in the US for climate change talks in New York and had not decided last week whether to attend the Georgia meeting, unless there was a dairy deal to discuss.

Justice Collins asked Palmer to reflect on his recent decision “about the extent to which courts should give direction", which Hardy later cited as saying that "to make a declaration, the statement must be fact-specific, efficacious and capable of practical application."

"The crux of the argument is that the information that could properly be released and was unlawfully withheld is the anodyne, publicly available material."

Palmer argued that the New Zealand government should not be “contracting out” its legal obligations under the OIA by making it subservient to the requirements of a strict confidentiality agreement between the 12 TPP nations.

Justice Collins observed that such a decision “could be consistent” with the act.

Palmer also dwelt on the approach being taken by the European Union, which has been willing to allow release of negotiating texts relating to the European-US equivalent of TPP, known as TTIP, and comments by the European Ombudsman suggesting the traditional secrecy surrounding trade negotiations is counter-productive to public trust in such processes.

The hearing is expected to conclude today and Justice Collins said he would "do my best to get it (a judgement) out as quickly as I can."

BusinessDesk.co.nz

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