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.