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Opinion: Why we back TPPA court action

Why has Consumer NZ supported high court action over Trans-Pacific Partnership Agreement (TPPA) negotiations? We support free trade and the benefits trade brings to all of us. What we don’t support is secrecy. Obsessive levels of it.

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The court action was not about trying to stop the negotiations, but about asking whether it was right for Trade Minister Tim Groser to dismiss any requests for information relating to them. In fact, the action was more about our precious Official Information Act. Its purpose is to make official information available to people to:

  • enable them to effectively participate in the making and administration of laws and policies
  • promote accountability of ministers and officials
  • enhance respect for the law
  • promote good government
  • protect information consistent with public interest and personal privacy.

These are lofty purposes that have largely been respected. However, when Professor Jane Kelsey asked the minister in January to supply eight categories of documents, ranging from old and recent negotiating mandates and tabled documents, to any cost-benefit analyses on the TPPA’s potential impact for New Zealand or its sectors, she was given a blanket refusal to release anything. Even “anodyne” material.

The case has taken this long to get to court because the Chief Ombudsman needed to review the request first. That has taken five months and she still hasn’t completed a review of two of the eight categories.

The case actually turns on whether Groser could blanketly refuse all information requests without closely investigating the documents. As Kelsey says: “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.”

Strangely the Chief Ombudsman seems to have agreed with that view. This is out of step with the European Ombudsman who suggests the traditional secrecy surrounding trade negotiations is counterproductive to public trust in such processes. And you’d have to say after five years of negotiating this deal in secret, the European Ombudsman is probably right.

There is a confidentiality agreement between the parties to the TPP negotiations. But the lawyer for the applicants, Matthew Palmer QC, argued at court it was dangerous to allow a sweeping international agreement to override the provisions of the Official Information Act. We agree. That’s why we, along with other like-minded groups, support this action.

Justice David Collins says he will get out a decision as soon as possible. It won’t be easy. It’s the first time the Official Information Act has been reviewed by the courts in this way.

In the meantime, TPP negotiations have hotted up. We can’t give you a reading of the temperature at the Atlanta venue, because like everyone who is not a negotiator, we’ve been frozen out.

About the author:


Sue Chetwin has been our Chief Executive since April 2007 after more than 25 years in print journalism. She was formerly the Editor of Sunday News, Sunday Star Times and the Herald on Sunday. She says there are strong parallels between consumer advocacy and journalism.

Sue oversees all of Consumer’s operations and is also the public face of the organisation. Sue is a director of the Banking Ombudsman Scheme, an alternate on the Electricity and Gas Complaints Commission and a member of the Electricity Authority Retail Advisory group.