The Kiwi Paradox—A Comparison of Freedom of Information in Australia and New Zealand
| Author | Rick Snell |
| DOI | 10.22145/flr.28.3.8 |
| Published date | 01 September 2000 |
| Date | 01 September 2000 |
| Subject Matter | Article |
THE KIWI
PARADOX-A
COMPARISON
OF
FREEDOM
OF
INFORMATION
IN
AUSTRALIA
AND
NEW ZEALAND
Rick
Snel*
INTRODUCTION
Australian
freedom
of
information
(FOI)
specialists,
on
first
encounter
with
New
Zealand's
Official
Information
Act
1982,
tend
to
scratch
their heads
about
this
quaint
and quixotic
variant
of
access
legislation.
Viewed
from
a
trans-Tasman
perspective,
the
Official
Information
Act
appears
riddled
with
extremely
flexible
provisions
which
would
offer
hard-bitten
bureaucrats
easy escape
routes
to
avoid
providing
requested
information.
An
initial
glance at
the
history
of
the
Official
Information
Act
merely
confirms
this
observation.
When
it
was
launched,
the
Official
Information
Act
was
seen
by
many
New
Zealanders
as a
poor compromise between
an
Official
Secrets
Act
and
freedom
of
information
legislation. Indeed,
Sir
Robert
Muldoon
referred
to
it
as
a
"nine
day
wonder".
1
The
final
passage
of
the
Australian
FOT
Act
was
accompanied
by
an
initial
belief
in
the
creation
of
a
nascent
regime
of
openness,
whereas the
introduction
of
the
Official
Information
Act
was depicted
by
the
Public
Service
Association
as
"Not
a
freedom
of
information
law..
.nor
a
secrecy
law...
but
an
uneasy
compromise
between
the
two."
2
A
cartoon
had
the following caption:
BA
(Ions),
ILB,
MA,
senior lecturer
in
public
law
at the
University of Tasmania.
This
article arose from
an
invitation
to
be
the
Inaugural
Visiting
Fellow
of the
New
Zealand
Institute
of
Public Law at
the
Victoria
University.
Wellington.
My
gratitude
to
Paul
Walker,
the
former
Director,
and
to
Melissa
Poole,
Deputy
Director.
My
apologies
to
the
VUW
Public
Law
classes
who
had
to
sit
through
my
initial
ham-fisted
attempts
at
comparing
the
Freedom
of Information
and
Official
Information
Acts.
My
thanks
are
also
extended,
in
no
particular
order,
to
the
following
New Zealanders
who
displayed
great
tolerance
in
trying
to
enlighten
an
Australian
academic:
Sir
Geoffrey
Palmer,
former
Prime Minister of
New Zealand,
Richard
Buchanan, Director
of
the Law
Commission
and
Ailsa
Salt,
former
Executive
Director
of
the
Information
Authority.
Finally
a
word
of
thanks
to
the
New Zealand
Ombudsmen,
Sir
Brian
Elwood
and
Justice
Anand
Satyanand,
and
their
staff
whose
request
for
a
seminar
forced
me
to
try
and undertake
a
critical
comparison
of
the
two
schemes
of
access.
1 J
Belgrave,
"The
Official
Information
Act
and
the
Policy
Process"
in
Legal
Research
Foundation,
The
Official
Information
Act
Seminar
Papers:
General
Overview
of
Official
Information
and
the
Official
Inlbrmation
Act
(1997)
at
24.
2
New Zealand
Public
Service
Association,
Open
Government?
A
users
guide
to
the Official
InIbriation
Act
(PSA
Research
Discussion
Paper,
18
April
1983)
at
2.
Copy
held
by
author.
Federal
Law
Review
The Official
Information
Act
is
complex
and confusing.
On
the
negative side,
it
contains
so
many
reasons
for
and means
of
withholding
information
that
it
could
be
used
to
prevent
the
disclosure
of
all
but
the
most
routine
information.
3
This
paper
presents
the
argument
that when
the
two
access
regimes
are
evaluated
on
several
performance
criteria,
the
Official
Information
Act
has
achieved
a
significantly
higher
level of
openness
in
government
than Australian
FOI
legislation.
Hence
the
paradox.
How
did
the
two
access
regimes
travel
so
far
from
their
original
receptions?
The
superior
performance
of
the
Official
Information
Act
can
be
traced
back
to
the
original design principles
associated
with
each
legislative
scheme.
Buchanan notes
that,
whilst
the
New Zealand
Official
Information
Act
shares
the
same
general
objectives
as
its
Australian
and
Canadian
counterparts,
it
differs
to
a
considerable
extent
in
its
design
principles.
4
This
paper demonstrates
how
those
design
principles
(see
Table
1)
with
respect
to
the
areas
of
Cabinet
and
policy
documents,
produced
significantly different outcomes
between
Australia and
New
Zealand,
especially
at
a
national
level.
5
This
difference
in
outcomes has
become
more
marked
over
the
years.
In
the first
few
years
after
their
launch,
observers
of
the
Freedom
of
Information
Act
and
Official
Information
Act
were
content
to
treat
the
differences
as
marginal
and
the
general outcomes
as
similar.
6
Yet
that superior
performance
does
not
necessarily
indicate
that New
Zealand
is
a
paragon
of
openness.
As
former
Prime
Minister
Sir
Geoffrey
Palmer
noted:
There
is
a
great
deal
of
unpopularity
about
the
Official
Information
Act in
the
eyes
of
decision-makers,
because
many
or
them
do not
like
to
share information.
The
Official
Information
Act
is
based
on
the
theory
that
information
is
power,
and
in
a
democracy
it
ought
to
be
shared.
While
the
Act
has
changed the
culture
profoundly
it
is
much
less
closely
observed
than
it
ought
to
be.
7
The
differences
in
performance
are
lessened
when
the
comparison
is
made
with
the
second
generation
of
Australian
FOI
legislation
(found
at
the
State
level)
and the
proposed
third
generation
of
suggested
reforms.
Many
of
the
design
principles
incorporated
in
this
second
and
potential
third
generation
of
Australian
FOI
legislation
resemble,
or
are
designed
to
achieve,
the same outcomes
as
those
in
the
Official
Information
Act.
Nevertheless,
Australian
access
laws
have
been
seen
in
the
following
light:
It
is
my
sad
conclusion...
that
with
few
exceptions
the
agencies
of government
have
taken
the
Act
as
a
guide
to
where they
should
dig
their
trenches
and
build
their ramparts.
8
3
Ibid
at
5.
4 R
Buchanan,
"Cabinet,
policy
docuients
and
freedom
of
information:
the
New Zealand
experience"
(1991)
31
FoIRev I
at
2-6.
5
The
original
version
of the design principles used
in
this
paper
were
drawn
from
Buchanan's
article
and further
refined
during
my research
in
New Zealand.
6
R
Hazell, "Freedom
of
Information
in
Australia
Canada
and New Zealand"
(1989)
67
Public
Administration
189.
7 G
Palmer, New
Zealand's
Constitution
in
Crisis:
Reforming
our
Political
System
(1992)
at
31-
33.
8
M
Paterson,
Submission
94
quoted
in
Australian
Law
Reform
Commission
and
Administrative
Review
Council,
Open Government:
a
review
of
the
federal
Freedom
of
Information
Act
1982
(ALRC
77/ARC
40,
1995)
at
35.
Volume
28
Australia
and
New
Zealand
Freedom
of
Information
Table
1:
Key
points
of
design
difference
between
the
FOI
Act
and
the
Official
Information
Act
Key
features
Australia
New Zealand
The
target
of
access
Documents
Information
Interpretation Narrow
Pro-disclosure
Withholding provisions
Categorical
Consequential
Public
Interest
Specific
General
Internal
Review
Yes
No
External
Review Legalistic
Informal
Administering
the
Act
Ad
hoc
and
internal
Systematic and
external
for
5
years
Designer
Expectations Hostile
reception
Evolutionary
Even
in
retrospect
it
cannot
be
argued
that
this
difference
in
performance
has
meant
that Australia
took
the
wrong
approach
to
achieving
open
government.
Historical,
cultural,
institutional
and
attitudinal
differences
between
Australia
and
New
Zealand
may
have
defeated
any
attempt
to
achieve
the same
performance results
in
Australia
by
using
a
replica of
the
Official
Information
Act.
Grant
Liddell
puts
forward
the
strongest
case
for
the
relative
superiority
of
the
Official
Information
Act
over
other
F01
Acts:
New Zealand's
OMcial
Information
Act
suffers
from
fewer
deficiencies
than
most
if
not
all
other
freedom of
information statutes.
It
is
an
Act
concerned
with
information,
not
documents;
it
creates
rights of
process
rather
than
rights of
access to
official
information;
its
dispute
resolution
and
enforcement mechanisms
are
relatively inexpensive,
accessible
and
speedy;
it
requires
decisions
on
access to
be
made
on
a
time-
and
information-
specific
basis;
and,
most
importantly,
it
states
a
guiding
principle
of availability, informed
by
the
purposes
of accountability and
participation,
as
the
foundation
on
which
the Act
is
built.
Unlike
other
freedom of
information statutes,
it
does
not
categorise
certain
classes
or
categories
of
information,
eg
Cabinet
papers,
as
beyond
its
reach.
Its
coverage
is
defined and,
in
most
instances,
easily
ascertained.
Thus
disputes
are
principally
disputes
over
matters
of
judgment:
is
information,
properly
subject
to
the
Act,
properly
withheld
or
not? There
are
very
few
disputes
about
boundary
issues,
such
as
what
is
information?;
is
the
body
holding
the
information
subject
to
the
Act?
And
the
cases
that
have
progressed
to
the
regular
courts
have
emphasised
the
role
of
the decision-maker's
judgment
in
determining
access to
information
issues,
thus
emphasising
that
they
have
been
genuinely
difficult
cases.
9
This
comparative
undertaking
was begun
and
completed
with
the
trepidation
of
all
such
transnational studies.
New
Zealand
readers
need
to
forgive
my clumsy
and
9
G
Liddell,
"The
Official
Information
Act
1982
and
the
Legislature:
A
Proposal"
in
Legal
Research
Foundation,
above
n
1.
2000
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