TPP activists claim refusal to release negotiating texts ‘unlawful’

NationalBusinessReview | 28 Sept 2015

Ministers can’t make blanket refusals to release documents under the Official Information Act without reviewing them first or by arguing the only information that could be made public would be “anodyne,” the High Court at Wellington has been told.

Several organisations concerned at the secrecy surrounding negotiation of the Trans Pacific Partnership trade and investment agreement are seeking a declaration from the court that would require Trade Minister Tim Groser to reconsider earlier decisions to withhold documents relating to the negotiations.

Matthew Palmer QC is representing the claimants, Consumer NZ, Ngati Kahungunu, Greenpeace, Oxfam, the Association of Salaried Medical Specialists, the NZ Nurses Organisation, and the Tertiary Education Union in an action initiated by the University of Auckland law school’s TPP critic, Professor Jane Kelsey, who claim the process of deciding to withhold information requested so far has been unlawful.

Justice David Collins, who is hearing the application, reacted rarely during Dr Palmer’s submissions but asked him before the lunch break to reflect on a recent decision “about the extent to which courts should give direction.”

Dr Palmer argued 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.

Dr Palmer responded: “Our submission is that if there was no other reason for information to be withheld, that agreement cannot provide an additional reason.”

Much of the morning’s arguments revolved around the fact that neither the minister nor the Ministry of Foreign Affairs had undertaken a full review of the documents in question to determine whether parts that were either in the public domain already or were “anodyne” and uncontroversial and could be released.

“The minister failed to undertake a basic element by failing to assess the information itself,” said Palmer. “That’s the basis of a request for a determination. Blanket refusals are not contemplated by the act.”

Dr Palmer also dwelled 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 continuing.

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