Legal Beagle by Graeme Edgeler


Adventures in the OIA or: Why Don Brash wanted to lead ACT

Some time last year, I realised that you could find stuff out by asking the Government. It used to be I'd have had a discussion with someone, or read a news story or made a blog comment and thought to myself “I wonder if they ...” or “how many ...” and I wouldn't try to find out. And then once – for some reason – likely the personal satisfaction of knowing I was right about something – I flicked off an email to a government department asking them for some small piece of information.

I had made OIA requests before: the background papers to something, an explanation of something I was particularly interested in for some specific purpose, or for work (and that's all an OIA request is: a request to the government for information) but this was altogether more frivilous. But nonetheless important. The Official Information Act replaced the Official Secrets Act (Muldoon did something right!) and ushered in a more open system, which I suspect has had an important impact on public decision-making and accountability (mostly for good, some for ill).

Every request for information from a state agency, however informal – written, via telephone, in person, or emailled – is an OIA request. And that state agency needs a good reason to tell you they won't release the information you seek.

Russell hasn't run a tell us your stories post in a while, so if my interests bore you (or even if they don't) feel free to chime in with your own OIA successes (or failures) in the comment thread. Following, are three of my most recent hits:


Why Don Brash might prefer to lead ACT than form a new party (and why The Mana Party faces a hard ask)

Each election year, the Electoral Commission starts a process by which it divides up a pot of public time (on TVNZ and National Radio) and money ($2.855m ex. GST) that registered political parties contesting the party vote get to spend on TV an radio advertising. It is the only money parties can spend on TV and radio advertising.

The process by which this money is allocated is convoluted. It starts many months before the election when parties (or prospective parties) are required to advise the Commission in writing that they wish to be considered. At the 2008 election, the Kiwi Part forgot, and so couldn't run TV and radio advertising.

And on 17 March this year, just before the 5pm deadline, I asked the Electoral Commission who had applied.

I had been hoping someone big had failed to apply. All the Electoral Commission is required to do is publicise the process in the New Zealand Gazette. As no-one would notice it there, it tends to also put out a press release. This year it didn't. The information is on its website, and for obvious reasons, I'll give you the url in full: Yep. They just edited the 2008 press release on their website, which is still there archived with the other media releases from 2008 - its webfeed didn't even update. I imagine the Commission must also have emailed the secretaries of the political parties (no missing parliamentary parties, for a start), but not everyone is there (the New Citizen Party, for example).

The Maori Party has applied, but Hone Harawira's Mana Party has not (Hone the candidate will be allowed radio and tv advertising as part of his $25k spending limit, but it won't be able to push a party vote and it won't be publicly funded).

And importantly, there is no new Don Brash Party.

This provides a pretty big incentive for Brash to want to lead ACT rather than to have gone it alone in a new vehicle. Even if he brings in lots of money in donations, unless he's behind the Coalition of New Zealanders, the New Zealand Sovereignty Party, the Pirate Party of New Zealand, or the World Peace Party (the four unregistered parties which did apply), that new party couldn't have advertised on TV or radio.

Another bonus, of course, is the level of funding. The Electoral Commission is hearing submissions from the parties today and tomorrow on the proper allocation between the parties. Based on past numbers, I estimate a new party will get $10k, and ACT will be up for $200k-$250k of public money to spend on broadcast advertising.


Just how many private prosecutions are there?

Until 2008, the Ministry of Justice didn't keep the numbers, but I suspect, with the changes to jury trials and everything else occuring (and perhaps Trevor Mallard's high profile private prosecution bringing it to the fore), they decided it was time to start.

The few people I've spoken about this to have assumed there would be at most a handful each year. I'd always thought that - with the crazies out there - there would be a reasonable number. I know of a few against a government officials, and imagined that there'd be less famous people subject to them as well. A prosecution is a pretty easy thing to commence, and the filing fee per charge is a little over $30.

So I asked. Of the charges that reach a conclusion in 2008, 61 of the 339,428 were private prosecutions. In 2009, it was 49 of the 369,826. There were no guilty pleas to a private prosecution in either year. In 2008, nine privately-laid charges went to trial, and in 2009, one did. None resulted in a finding of guilt.

These numbers, though small, may be among the reasons the Criminal Procedure makes laying a private prosecution a little harder (a registrar will be able to order that the charge go before a judge for the judge to look at the intended evidence and rule whether there is enough for it to even be laid).


Yellowcake importation: how the Government missed the boat

In June last year, TV3's Patrick Gower broke a story about the transhipment of yellowcake (partially-refined uranium ore) through New Zealand territorial waters (including its docking, but not landing) at the Port of Nelson.

Claire Browning, over at Pundit, looked into the legalities of it, and I chimed in with a know-it-all remark to the effect "what about Atomic Energy Act 1945?" (which I'd been blindsided with in some other Internet-based discussion). That Act requires the written approval of the Minister of Energy to importation of more than five pounds (yes, pounds) of uranium.

You can read up on the technical detail in the Pundit thread, but we had filed parallel OIA requests to different government departments about compliance with bits of the law, and I got pretty quickly to my answer: no permission had been given under the Atomic Energy Act for the shipments to pass through New Zealand.

The response to my OIA request suggested that the appropriate permissions had been granted by the Environmental Risk Management Authority under the Hazardous Substances and New Organisms Act 1996. I don't accept that's the end of it. I consider that the transhipments of yellowcake were "imported" - even if temporarily - so both bits of legislation will apply.

Complying with one piece of legislation dealing with a matter doesn't mean you can ignore the other bits. That you've obtain a consent under the Building Act to build a farm shed doesn't mean you won't also need a resource consent, or a water permit.

In the end, nothing will likely happen. But I don't rule out the possibility that next time this comes up, someone in the Ministry of Economic Development will suggest the  permissions be granted out of an abundance of caution, even though it may not be required...

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