The latest on the fight against TPPA

By   /   September 30, 2015  /   18 Comments

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Five and a half years is enough! The obsessive secrecy that shrouds the Trans-Pacific Partnership Agreement (TPPA) negotiations was challenged in the High Court in Wellington on Monday.

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Five and a half years is enough! The obsessive secrecy that shrouds the Trans-Pacific Partnership Agreement (TPPA) negotiations was challenged in the High Court in Wellington on Monday.

The case involves Trade Minister Tim Groser’s blanket refusal to release a range of documents relating to the TPPA that I requested under the Official Information Act. Co-applicants are Consumer NZ, Ngati Kahungunu, Oxfam, Greenpeace, Association of Salaried Medical Specialists, NZ Nurses Organisation and the Tertiary Education Union.

We are seeking a Declaration that the Minister’s refusal was unlawful, and for orders as to how he should reconsider the request. Matthew Palmer QC represented all the applicants. Justice Collins has reserved his decision.

The case has its genesis back in January. I had asked the Minister to supply eight categories of documents, ranging from old and more recent negotiating mandates and documents tabled by New Zealand in the negotiations, to any cost-benefit analyses on its potential impact for New Zealand overall or in sectoral areas.

The categories were based on recommendations from the European Ombudsman in a self-initiated report on the negotiations between the US and EU for the TransAtlantic Trade and Investment Partnership (TTIP), which runs parallel to the TPPA.

The case took so long to get to court because the Chief Ombudsman had to review the Minister’s refusal before we could seek a judicial review. That took nearly five months – and she still hasn’t completed her review of two of the eight categories.

It transpires that the Minister made his decision without looking at a single document! He simply knew from experience that they would either be super-sensitive and therefore could be withheld under the Act, or so anodyne that there was no point in releasing them. Both MFAT officials and the Chief Ombudsman viewed that as an acceptable process.

The infamous secrecy pact adopted by the TPPA parties was just one reason Groser relied on. Others included the likely prejudice to international relations and damage to the economic interests of New Zealand.

This is not the place to rehearse the legal arguments in any detail. My OIA request, Groser’s response, the Ombudsman’s report and various documents from the case can be accessed on tpplegal.wordpress.com.

A ruling in our favour will help to breakthrough the secrecy of the TPPA and prevent a re-run in future negotiations. Already a similar pact applies to the Trade in Services Agreement (TISA), where documents are to be kept secret throughout the negotiations and, aside from the final text, for five years after the agreement comes into force. Future agreements could extend that period to 10 or 20 years, or even indefinitely.

The case could also serve a much wider purpose. This is the first time the New Zealand’s courts have reviewed some provisions of the Official Information Act. A progressive interpretation that reflects the Act’s objectives of promoting democratic engagement and accountability would benefit journalists, campaigners, academics, NGOs and many others who have been frustrated by the rise of executive power and its corresponding unaccountability.

The litigation is being crowd funded. Contributions can be made at https://givealittle.co.nz/cause/tppnosecrecy. There is also a fundraising dinner at Ika restaurant in Mt Eden Rd, Auckland next Monday 5 October, with entertainment from Moana Maniapoto and Don McGlashan; bookings can be made through http://ikaseafoodandgrill.co.nz/salon/. Any money left over will go to support the ongoing campaign.

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18 Comments

  1. saveNZ says:

    +100 – Good on you all!

    It is up to Justice Collins now, to step up or sell out!

  2. Jack Ramaka says:

    Why all the secrecy on the TPP Agreement, what about the statement “nothing to hide, nothing to fear”, Key is the pot calling the kettle black!!!

  3. Jack Ramaka says:

    Weird this TPP Agreement. Playing into the hands of the corporates and the 1% percenters.

  4. Steve H says:

    Following this closely, not just for TPPA but for the wider interpretations of the OIA. When can we expect J Collins’ decision?

    • jane kelsey says:

      The decision is reserved. The hearing was expedited, so we are confident the judge will do his best. But he also needs to address the complex legal issues on sections that have not been subject to judicial interpretation before.

      • Richard Christie says:

        Jane’s reply is totally factual.
        That some RWNJ voted her presentation of facts with a “thumbs down”, illustrates how divorced from reality they are.

  5. elle says:

    One wonders if all the reserved decisions by legal bodies is a ruse to hold things up until the TPPA is signed,it seems to be a trend.

  6. J S Bark J S Bark says:

    Thank you Jane. This is an incredibly important action on so many levels. I will be following it with great interest.

  7. David H says:

    But what happens if you win and get 200000 black pages all redacted??

    • jane kelsey says:

      The judge has been asked to provide some guidance on the meanings of the two sections (6 and 9) under which the Minister can withhold. Part of my evidence included documents of the same genre of several categories i was seeking to have released (of which there are not 2000,000 pages), so one would hope taht the minister would respond consistently with previous government practice. But all this is speculation. We will have to wait and see.

    • framu says:

      you win

  8. BDBinc says:

    Please note that

    a) There was no need to wait 5yrs for the Ombudsman input to file a case for disclosure
    b) Even if Kelsey wins her case (after she waited five years to file) she did not make the NZ public co applicants (just the controlled union heads)
    As the Courts are Crown’s and the Judges are all Crown employees what sort justice do people expect from there in these matters?
    Far better to inform everyone it is unlawful to not disclose an agreement in which the people of NZ are the most effected party.
    In law it is called “No contract”.

  9. Helena says:

    Thank you, Jane.
    Now would be a good time to ask John Key about the threats made against the people of New Zealand by the Corporate Global Illuminati using HAARP if he failed to push through the TPPA. He could also explain the demands regarding the South Island prior to the Christchurch earthquake.

    • elle says:

      Ive read somewhere that some mafia types from overseas wanted to purchase great swaves of land in south island to escape to when USA is in trouble, they were refused and the next day Christchurch had a massive earthquake that was man made. Maybe an article by Geopolitics or Scoop or Wake up New Zealand sorry cant be more specific

      • Lara says:

        WTF??

        If that earthquake in Christchurch was “man made” then man has managed to do something entirely new that we have never managed before, on a massive scale.

        That is a very extraordinary claim to make.

        Extraordinary claims require extraordinary evidence.

        It looks like a tin foil hat conspiracy bollocks claim TBH.

  10. Mike the Lefty says:

    Of course the details of the negotiation are being kept for us under the old “commercial sensitivity” excuse. That may be appropriate for private dealings but this is a deal that involves the government of New Zealand. The government is supposed to be working for us, isn’t it? therefore we should at the very least know what is on the table. The National government treats us like mushrooms – keeps us in the dark and feeds us b…st. Their mantra is that we should just trust them to get the best result and leave it at that.
    We can trust this National government?? Yeah right!

  11. Kate Kate says:

    My quick prediction for the dairy side of the TPPA now that the greed is over and the pain has begun. This was set up to drive the asset sales and the money driven into the dairy boom for irrigation schemes. Now the TTPA will swoop in and take the real asset here WATER. The cows and dairy farmers were used at the height of the dairy boom to push the water wars here. Now watch all dairy crash around the world now that the TPPA is signed off and the asset here WATER is ready to plunder. The corporations must know this, water is the universal new wealth and power control medium. The stupid and greedy have and will all fall on their swords. The land grab has been made easy as the banks own the farms of farmers who had dairy dollar signs in their eyes.
    Now I predict that the huge tankers will be coming in for the water. Conspiracy theory? We will see won’t we.