Former New Zealand Herald editor Gavin Ellis claims New Zealanders are sleepwalking through an all-out assault on their democratic rights. Ben Thomas thinks Gavin Ellis should chill out a bit.
“The country in which we live is not quite as free as we like to think,” warns former New Zealand Herald editor Gavin Ellis, who ditched the newspaper game in 2005 to become an academic specialising in the future of media and communication. Alas, that future looks bleak.
In this latest release from Bridget Williams Books’ ostentatiously agenda setting BWB Texts imprint, Ellis wastes no time in declaring New Zealanders have become lazy and neglectful, as rights we take for granted are eroded to the point of nothingness – in short, that we have become his titular “Complacent Nation”.
But fear not: while the mass of the population passes our days in amiable sleepy ignorance, Ellis has been worrying enough for all of us. He’s worried that ten years ago politicians discussed automatic name suppression for police shooters; he’s worried about legislation to stop cyber-harrassment, and by the penultimate chapter he’s worrying about simultaneous terrorist mass shootings in Auckland and Wellington and the possible extension of the Charter Schools programme. He wants New Zealand to wake up and smell the coffee, but more coffee seems like the last thing Gavin Ellis needs.
His running theme of complacency is mostly a thinly veiled ‘shock’ vehicle to drive home a clear concern with what he sees as diminution of the public’s “right to know”. Ellis appears captivated by the observation that the New Zealand Bill of Rights Act 1990 (BORA) protects not just the right to impart ideas and opinions, but also to seek information. This is an interesting way of looking at the current controversy around the Official Information Act 1982 (OIA).
The OIA essentially says that any official information held by government should be released to the public upon request, unless there is a good reason to withhold it (such as national security, or a number of broader exceptions). This was a huge shift from the pre-’80s position where official information was off limits unless the government decided it should be released. Therefore, Ellis posits, the modern culture of political management and “spin” – which attempts to control the flow of information from the government to the public – is not just unfortunate or unethical, but an interference with a fundamental right.
These issues were best summed up in journalist David Fisher’s 2014 speech to public service lawyers. In essence, the “no surprises” policies of successive governments have put increasing pressure on nominally independent public servants to keep their ministers safe from political risk. Bureaucrats therefore collude with professional political advisors to delay, censor and withhold information. The public is kept in the dark not for genuine reasons under the law, but to avoid bad press or Opposition pressure. The Ombudsman, whose office is meant to ensure the Act is working, is buckling under a lack of resources and the cynical gaming of the system by the political class. These are by now well-worn allegations and they are not without foundation.
Ellis considers a number of fixes for this admittedly messy state of affairs, such as instructions from Cabinet not to be involved in OIA processes, but dismisses them in short order as inadequate. His real idea is an entrenched and supreme Bill of Rights to replace what he calls, (quoting the Act’s architect Sir Geoffrey Palmer), our “mild version”. Currently the BORA applies to government agencies, but can’t be used to stop Parliament passing laws. He wants it to become supreme law. The Courts would be empowered to effectively reject laws on the basis they were inconsistent with the Bill of Rights. Furthermore, Ellis wants wishy-washy qualifications from the current Act removed. No more would our rights be potentially subject to “such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
There’s an argument to be made for a supreme Bill of Rights, and Palmer, now aged 74, has been making it, reliably, every year since he was Prime Minister more than a quarter century ago. But that doesn’t explain why it would be Ellis’ preferred solution to the “complacent nation” or OIA misfeasance. The link between the problem the book identifies and the solution it proposes is so vanishingly small that it still eludes me after my second re-reading. He seems to be simply saying that an entrenched Bill of Rights would send a signal to bureaucrats that they shouldn’t be messing around with OIA requests, using the constitution as a sort of heavy threat to keep civil servants honest.
There are many culprits for the failure of the OIA, and murky political motivation is only one. As a former government operative, I can definitively say most requests take the maximum of 20 working days because – as a journalist like Ellis knows – a deadline quickly becomes a target in the face of the almost infinite number of urgent issues competing for time and attention in the public sector.
The Ombudsman’s office can’t or won’t provide clear and consistent rulings with useful precedent value, and in the past has handled complaints over-officiously and prevented early resolution. Journalists and opposition MPs expect government officials to work as their research librarians, compiling information in new forms not simply photocopying and passing on documents. And, most significantly, the OIA was conceived when official information meant a tidy filing cabinet full of letters and weekly memos, not an endless sprawl of email conversations combining work programmes and personal gossip, countless Word drafts, tracked changes and comments ready to be singled out by journalists up against their own deadlines as “controversial”.
In fact, the only suspect we can clearly rule out as being responsible for the mess we find ourselves in is a too-weak Bill of Rights Act. A bureaucrat processing an OIA request is performing a public function and therefore already has to act in accordance with the Bill of Rights Act. Upending New Zealand’s constitutional arrangements and hoping that helps clean up this bureaucratic tangle is kind of like using a sledgehammer to crack a nut. Except it’s more like using the sledgehammer to threaten a nut: it won’t do what you want it to, and you’ll probably break a bunch of other stuff waving a sledgehammer around like that.
Throughout the book Ellis refers to the “unintended consequences” of legislation that could accidentally limit speech. He doesn’t however consider the possibility of “unintended consequences” arising from an enormous constitutional change. Trying to put “freedom of expression” beyond politics is akin to dumping radioactive waste in the desert. You don’t solve the problem, you just move it. Anyone who has seen the unedifying spectacle of US presidential candidates talking about their future Supreme Court nominees will note that none has talked about how their appointments will be neutral arbiters of the law chosen for their jurisprudential skills. Putting political power into the hands of judges makes the courts political.
The BORA is much wider than just freedom of expression. Ellis may be right that anti-cyberbullying legislation is an undue restriction on human rights we need to stop (although I don’t think he is), but he’s silent on other current controversies over the Bill of Rights Act. The courts have been making big strides enforcing positive rights to receive government payments in recent cases, and Ellis doesn’t say if that’s a good thing or a bad thing, or how his entrenched Bill of Rights might affect the government’s ability to allocate resources for healthcare, welfare and perhaps education.
This myopia is understandable. As a former newspaperman, Ellis places the right to know above all others. So let me end by sharing something he should know: all the conspiracies worth worrying about happen out in the open. Whatever democratic deficit we face, it’s not because in the age of the internet there is too little information.
To use the most bizarre example, even the byzantine dealings of Foreign Minister Murray McCully – setting up a sheep farm as an unsuccessful baksheesh in the sweltering desert, flying pregnant ewes on Singapore Airlines to Saudi Arabia only for all their lambs to perish, and almost certainly misleading Cabinet about a non-existent legal threat, have been laid bare eventually. It took digging, it took persistence from journalists, but the scandal is now there for all to see in its (literally) grisly detail. However, nothing has changed. McCully has not faced pressure to stand down, and many media outlets have ignored the story entirely, or congratulated the foreign minister on his wiliness.
Ellis’s concerns about the OIA are grounded in a complicated reality, and maybe there is a problem with complacency in New Zealand, albeit not the one he thinks. But his connection of the two things is cheaply manufactured, an associative leap at the end of a university tutorial that’s allowed to go on too long. BWB’s boast is that their texts are “short books on big subjects”, and the resulting pressure to have a big idea seems a burden too great for some of its contributors to bear.