Wednesday, January 17, 2018

The criminal fishing industry must be exposed to scrutiny

Over the past few years, the Official Information Act has been a vital tool in exposing our appalling fisheries management regime and the way it turns a blind eye to serious criminal behaviour by the industry. Those revelations have driven the push for a better monitoring regime, including video monitoring of fishing boats to detect and deter false reporting, dumping and high grading. But the fishing industry - which according to MPI would go out of business if the law was enforced - is deeply unhappy with its pervasive criminality being exposed. Their solution? Secrecy:

The commercial fishing industry wants to stop the public getting access to videos and images of fish being discarded and seabirds being caught by fishing boats because they say it could be bad for New Zealand's reputation.

The industry has asked the Government to change the law so that the Official Information Act could not be used by journalists, competitors and other groups to access such information.


"We suggest that the Fisheries Act be amended to clarify the purpose for which the IEMRS information (and other information on commercial fishing activities) will be obtained by MPI, and to expressly provide for the OIA to not apply to this information," the letter reads.

The document raises concerns about video revealing secret fishing spots, and that "potentially embarrassing" footage of paua divers getting undressed and changed into their wetsuits would be held by MPI.

Of course, privacy and commercial interests are already protected by the OIA. But that's not what really concerns them - what the fishing industry is worried about is pictures and footage of protected species caught in their nets and lines, or of criminal behaviour by fishers, which would damage their reputation. But to echo Kevin Hague, if fishers don't want the public to see pictures of dead dolphins in their nets, maybe they should not kill any? If an industry relies on secrecy to maintain social licence, then it deserves to die.

The OIA has been called a "quasi constitutional" statute. Its principle of transparency of government information is fundamental to our democracy. And we shouldn't be exempting information from it without a seriously good reason. The law and the Ombudsman are clear: the potential for political embarrassment is never a good reason to withhold information. That applies to politicians and public servants, and it should apply to the criminal fishing industry too.

Tuesday, January 16, 2018

The Asia New Zealand Foundation and the OIA

The Asia New Zealand Foundation is a charitable trust established by the government. All members of the trust are appointed by the Minister of Foreign Affairs, and several key public servants are deemed ex officiio members. The trust exists to fulfil a government objective - strengthening relationships with Asia - and is accountable to Parliament for that mission under the Public Finance Act. Over 90% of its revenue comes from the government (and most of the rest is interest from past government endowments). And yet, it is apparently not subject to the Official Information Act. They're not explicitly scheduled, and as far as I can tell, do not fall into any of the categories in the various schedules. Weirdly, many of the organisations in schedule 4A of the Public Finance Act are subject to the OIA, though not according to any system that I can determine.

That said, you may be able to obtain information from the Secretary of MFAT, the CEO of NZTE, or the Secretary of Education by the roundabout way of s2(4A) OIA: because they're on the trust solely in connection with their official position, any information they hold about the Foundation from that source is thereby Official Information. And conveniently, the trust deed requires that they get sent board papers ahead of any meeting...

But obviously, you shouldn't have to do that. This is clearly a government body. It is spending our money. And it should be accountable to us, through the OIA.

The government could fix this - and all of the other weird little exceptions and exemptions - in an instant by adding it to the OIA schedule by Order in Council. The question is, will it? And if not, does anybody want to take a member's bill to fix it?

New Fisk

Why are doctors in the Middle East cosying up to foreign armies?
Jared Kushner’s connection to an Israeli business goes without scrutiny – imagine how different it would be if that business was Palestinian

Spain refuses to respect Catalonia's election

Last year, the Spanish government in Madrid dissolved Catalanoia's regional government and forced regional elections in the hope of overthrowing a seperatist majority in the regional Parliament. They lost. Catalans marched to the ballot boxes in record numbers, and re-elected the people Spain wanted to get rid of. They now seem set to re-elect the Carles Puigdemont - the man Madrid overthrew - as President. So naturally, Spain is having another tantrum:

Spain’s Prime Minister Mariano Rajoy has warned Madrid will continue to run Catalonia’s government if separatist leader Carles Puigdemont tries to govern from Belgium, where he is living in self-imposed exile.

Separatist parties last week agreed to reinstall Mr Puigdemont as Catalonia’s president of government, following fresh elections in which they kept their majority in the Catalan Parliament.


In a speech at his centre-right People’s Party headquarters on Monday, Mr Rajoy said: “It’s absurd that someone aspires to be president of the Catalan regional government as a fugitive in Brussels – it’s a case of common sense.”

Spanish government spokesman Inigo Mendez de Vigo added: “Parliamentary rules are very clear. They do not contemplate the possibility of a [parliamentary] presence that is not in person.

Maybe Spain's parliamentary rules do. But Catalonia's parliamentary rules are a matter for Catalans. And I'd look to Catalonia for their interpretation, not Madrid. As for Madrid's threat, the will of the Catalan people is clear: they want the seperatists as government and Puigdemont as President. Spain needs to respect that. But that's the whole problem, isn't it?

Thursday, January 11, 2018

Mosquitos and the Human Rights Act

The Mosquito is a sound system that emits a deafening whine at a frequency older people cannot hear. It is explicitly used to deny access to public space to young people and to "deter" them from "congregating". Over the past few years, such devices have been installed by a number of New Zealand local authorities in parks and other public spaces, often at the behest of the police.

It also pretty obviously violates the Human Rights Act.

The Human Rights Act includes age (meaning any age above 16 years) as a prohibited ground of discrimination. Refusing access by the public to places, vehicles, or facilities on the basis of a prohibited ground of discrimination is illegal. But this is the explicit purpose of Mosquito devices, and the sound they emit is expected to be heard by people up to the age of 25. So, the explicit purpose of such devices is to deny people access to spaces (by making it damn unpleasant to be there), on the basis of a prohibited ground of discrimination.

Using such a device might not be unlawful where the space is already closed to everyone, regardless of age. "Might" because local authorities (and the police who are advising them) have wider obligations not to discriminate under the Bill of Rights Act, and these may rule out specifically age-based measures unless they can meet the stringent test of a justified limitation. And because the effects of these devices may intrude into areas which are not closed, which immediately violates freedom from discrimination, as well as the freedoms of movement, assembly and association. What is clear is that deploying them in or in a way which affects public streets, open parks, "pedestrian links", or any public space is discriminatory and illegal.

As for what to do about it, complaining to the Human Rights Commission seems to be a good place to start.

(This post was inspired by a request on FYI, the public OIA request site, about the Dunedin City Council's use of a Mosquito)

Monday, January 08, 2018

Freedom of information in the ACT

Last year, the Australian Capital Territory updated its Freedom of Information Act. The new law came into force on the first of January, and besides removing some of the more obnoxious features of Australian FOIA law, it also introduces a new concept of "open access information":

The new laws also introduce an open-access scheme. Open access is a "push model" for providing government information to the public without the need for a formal request. Information that will now be proactively and regularly disclosed includes policy documents, details about agency activities and budgeting, technical and scientific reports prepared for government, information about ministerial and staff travel and hospitality expenses, ministers' diaries including all ministerial appointments and meetings, minutes of meetings and reports of government boards and panels, summaries of cabinet decisions, and the triple-bottom-line assessment for cabinet decisions.


The open-access scheme will greatly benefit the community by allowing people to discover and understand information about government decision-making that they didn't even know existed or realised they were interested in. The community is crying out for more transparency from government and this is a really strong way to improve this, without putting people through the formalities of an FOI request.

There's also a statutory disclosure log scheme, requiring agencies to publish responses to FOIA requests.

Much of this information is routinely proactively published in New Zealand - but not all of it is. And the stuff we do get is purely by grace and favour, and can be redacted however an agency pleases (well... you could use the Ombudsman Act to challenge on reasonableness, and the Ombudsman would probably say that what's reasonable is what's in the OIA, but its difficult to mount a substantive challenge to redactions). We'd benefit both from statutory backing for routine disclosure, and by requiring automatic disclosure of material such as Ministerial diaries, cabinet papers and minutes, and minutes from government boards. At the least, it would help prevent shit like this, where requests for routine, easily found information are obstructed out of sheer bloody-mindedness.

How convenient

The UK has a regular programme of release of historical material through their National Archives. But this year, in addition to the usual end-of-year release stories (Margaret Thatcher hated pandas, apparently), there's also the news that files on some of the UK's less stellar moments are being systematically "misplaced":

Thousands of government papers detailing some of the most controversial episodes in 20th-century British history have vanished after civil servants removed them from the country’s National Archives and then reported them as lost.

Documents concerning the Falklands war, Northern Ireland’s Troubles and the infamous Zinoviev letter – in which MI6 officers plotted to bring about the downfall of the first Labour government - are all said to have been misplaced.


Almost 1,000 files, each thought to contain dozens of papers, are affected. In most instances the entire file is said to have been mislaid after being removed from public view at the archives and taken back to Whitehall.

An entire file on the Zinoviev letter scandal is said to have been lost after Home Office civil servants took it away. The Home Office declined to say why it was taken or when or how it was lost. Nor would its say whether any copies had been made.

In other instances, papers from within files have been carefully selected and taken away.

How convenient. Its amazing how its the documents on the UK government's controversial actions, which might not show it in the best light (or which might lead to justice for its colonial victims), which are being "misplaced" in this way. If the British establishment was trying to give the impression that it had stolen these documents and then destroyed them in a crude coverup, they couldn't do a better job.

And they can do it because the UK Public Records Act does not include any offence provisions. In New Zealand, it is a criminal offence to destroy public records. In the UK, of course, they have an outdated law designed to protect the establishment rather than hold it to account.

But it does make me wonder if anything similar happens here. New Zealand has a statutory process for temporary return of archive material and you'd expect it to be checked when it comes back to the archives. So, I guess its time for an OIA about how often this happens, and whether anything goes "missing" in the process. Hopefully its rare enough that I can get a list...