Posts by Sue Grey
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I've asked Attorney-General Chris Finlayson, Solicitor-General Una Jagose and the relevant Ministers (Health and Customs) to urgently disclose the legal advice that Dr Steward Jessamine of MinHealth waived legal privilege on when he advised on 10 January: "Advice has also been received that cannabis-based products cannot be considered lawfully supplied in the United States"... I've pointed out Chapter 4 para 4.64 of the Cabinet Manaul which makes clear that any legal privilege is lost if it is waived by disclosure of the content of the advice- and even by a statement such as "I have received legal advice and acted on it"
It appears the Ministry's new December 2016 policy was based on this advice and so it is important for transparency and confidence in public decision making that we can understand what exactly that advice said, and the reasons for it so we can all assess how robust it is. It is great news that the State Services Commissioner Peter Hughes is now overviewing compliance with the Official Information Act, so I've cc'd him in too. -
Hard News: More medical cannabis…, in reply to Russell Brown,
I've got an OIA response from Peter Dunne which admits that the harmful effects of synthetic cannabis products are far more serious than the effects from natural cannabis. ... which makes it even more incomprehensible why he promotes synthetic products over natural products or why he is apparently so fixated with the pharmaceutic route ......
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One of the underlying problems is s22 of the State Sector Act, as public servants duties are mainly to uphold the wishes of their Minister rather than uphold the law and act in the public interest.
There is a serious mis-match between the rule of law (the fundamental principle that everyone is bound by the law) and the duties and lack of accountability of public servants.
If they were accountable to the public their attitudes and focus would no doubt quickly change....
22 Principal responsibilities
(1) The chief executive of a department or departmental agency is responsible to the appropriate Minister for—
(a)the department’s or departmental agency’s carrying out the purpose of this Act; and
(b)the department’s or departmental agency’s responsiveness on matters relating to the collective interests of government; and
(c)the stewardship of the department or departmental agency, including of its medium- and long-term sustainability, organisational health, capability, and capacity to offer free and frank advice to successive governments; and
(d)the stewardship of—
(i)assets and liabilities on behalf of the Crown that are used by or relate to (as applicable) the department or departmental agency; and
(ii)the legislation administered by the department or departmental agency; and
(e)the performance of the functions and duties and the exercise of the powers of the chief executive or of the department or departmental agency (whether imposed by any enactment or by the policies of the Government); and
(f)the tendering of free and frank advice to Ministers; and
(g)the integrity and conduct of the employees for whom the chief executive is responsible; and
(h)the efficient and economical delivery of the goods or services provided by the department or departmental agency and how effectively those goods or services contribute to the intended outcomes.
(2)Except as provided in any other enactment,—
(a)the chief executive of a department is not responsible for the performance of functions or duties or the exercise of powers by that part of the department that comprises any departmental agency hosted by the department; and
(b)the chief executive of a departmental agency is responsible only for the performance of functions or duties or the exercise of powers by that part of the department that comprises the departmental agency. -
The Ombudsman ruled against MinHealth last year for withholding legal advice where it was in the public interest to disclose it (see link below)
Unfortunately despite this, and the intense public interest in trying to understand the Ministry's unique interpretation of the law, Min Health and its lawyer Phil Knipe wont release the legal advice it is relying on- either in relation to its new policy on the Misuse of Drugs Act exemption (s8(2)(l)((iii)) or on the classification of CBD under the Misuse of Drugs Act .
Where the content of legal advice has been "waived" the Cabinet Rules (Chapter 4) dont allow the government to continue to claim legal privilege. They must disclose the advice. Unfortunately they seem to operate under an "alternative law" and "alternative rules" to justify their "alternative interpretation"..... and they know the Ombudsman is too under resourced to respond quickly.