February 20, 2016
As many of you will know, in 2013 the NZ government signed up to the Open Government Partnership, a group of countries and civil society organisations that promises to take steps to improve transparency, accountability and public participation in governments. Governments have to submit two-yearly action plans, which are supposed to be “co-created” with the public and interested civil society organisations. Governments then get assessed on the adequacy of their consultation, the quality of their action plans, and how much progress they have made.
Who does that assessment? In NZ’s case, that would be me. I have been engaged by the Open Government Partnership’s IRM (Independent Reporting Mechanism) to study our action plan, interview officials nad interested observers, and draw up a report evaluating the government’s performance.
That report has now been released for public comment. You can find it here: http://www.opengovpartnership.org/sites/default/files/New%20Zealand_IRM%20Report_public%20comment.pdf
The next bit of the blog is my summary of the report and some impressions about the process and the content. I have written it; it is not the work of the Independent Reporting Mechanism.
The report is not flattering for the government. For a start, our action plan cannot sensibly be described as a “co-creation” with civil society. The government decided very early on what it wanted to put in it, and then conducted a very limited consultation exercise. For instance, it never even put out a press release about consultation. It even breached its obligation to publish, in advance, a list of its consultation activities. (In comments on the report, the government said I’d got this wrong. It pointed to a list it had posted on the State Services Commission website. That list was posted after all the consultation had taken place.)
Those the government consulted criticised the government for its rushed and apparently pre-determined process, but were prepared to put forward a range of ideas about what should be in the action plan. Those ideas were very largely ignored.
The government said it did not have much time, since the action plan was due in June 2014. True. But it never actually released its action plan until October. (Nevertheless, it still dated it “July”).
The govenrment was then supposed to evaluate its own performance. Its obligation was to prepare a self-assessment of its first year under the action plan, then get public feedback and finalise and publish the self-assessment by September. It published a draft in October. It released its final self-assessment nearly two weeks ago, on 9 February. (It was dated January).
That self-assessment described the government’s action plan as “ambitious”. Was it? The people I interviewed didn’t think so. We made only four commitments, one of the fewest of any participating country. That doesn’t necessarily mean ours was bad: they could have been ground-breaking commitments. Were they? Not really. Our action plan consisted of four government initiatives that were already happening. That is certainly allowed under the OGP framework. But the point of the OGP is that governments are supposed to promise to make improvements over current practices. So the initiatives needed to be improved or speeded up to increase the degree of transparency, accountability and particiption. I could find very little evidence that we did any of that. It was simply business as usual. It is hard to believe that we have done anything much differently at all as a result of joining OGP.
Some point out that our government is already much more transparent and accountable that most other governments in the world. That is certainly true. But there is always room for improvement, and OGP requires assessing our commitments against our current baseline. We are supposed to be able to demonstrate positive progress.
Perhaps conscious of this, our action plan describes itself as a living document. It says it will be updated, in consultation with stakeholders, during its two-year course. In fact, this never happened. It was never updated. And, during the first year anyway, there was not even any consultation. The government did set up a Stakeholder Advisory Group to provide it with advice. But that group is not well-resourced and many of its own members would say that it is no substitute for proper public consultation.
What is in the action plan? The four commitments relate to:
(1) the government’s six-monthly reports under its Better Public Services programme - that is, public reporting about government progress against a range of ten social policies concerning things like crime, welfare, education, and digitising government services. The programme may well be laudable. Its central thrust - reporting against publicly set targets - clearly supports government accountability. But it’s not primarily about open government. As an OGP commitment, it’s not really very ambitious. And the OGP did not prompt any change in the way it was delivered.
(2) the government’s ICT Strategy and Action Plan. This is extremely wide-ranging, and is about transforming government services in the new digital environment. It was originally prepared in 2013. The action plan was updated in 2014 (this was part of our OGP commitment but would have happened anyway). The Strategy was updated in 2015 (this wasn’t part of our OGP commitment). The part of this commitment most relevant to OGP is the open data programme, which looks to “unlock” government data for productive re-use. Most people I spoke with said this was a laudable goal, and there had been some real improvements, such as the government portals at www.govt.nz and www.data.govt.nz. But they said it was patchy and often not well-designed. There wasn’t enormous progress in the year after the action plan, which didn’t really seem to have any effect on the government’s ICT activities.
(3) a promise to consult and report back to Ministers about Transparency International’s National Integrity Systems report, a large and sweeping analysis of the pillars of democracy containing a series of recommendations for reform. Its report was to be in February 2015. You might notice that this is not much to promise. The government was looking at it anyway. The government did meet regularly with TINZ and discuss which recommendations were most signficant. It did prepare a report for the Minister by February, but it did little more that summarise the TINZ recommendations. It promised another report later that might look at taking action on some of them. But the thrust of its self-assessment was that it was already taking strong action in relation to most of the recommendations, something that TINZ disagreed with, and which my analysis in the report suggests is not borne out.
(4) Review the Kia Tutahi Accord in 2015. Again, not particularly ambitious. The accord is a sort of pact between the government and community organisations promising to engage over the development of policies. The review has not been made available to me and may not even be complete yet. It seems to constitute little more than the conduct and analysis of two surveys, laudable in themselves. In the action plan, the government said it would be conducting research on international best practice for community consultation. It does not seem to have done that yet, and now it seems that it is not part of the promised review.
I interviewed officials and sent long lists of questions to the government, pressing them to identify ways in which the components of our action plan have made a real difference to the level of transparency, accountability and public participation. I got little that was concrete in response. Officials believe that the initiatives are good policy, that they reflect values of transparency and the like, and that the production of a range of plans, reviews, refreshes, and taskforces constitutes concrete progress. But OGP focuses on measurable progress that affects the public.
The next action plan is due in June this year. The report contains recommendations for improving the process and content. Here’s quote from the IRM press release:
Echoing the views of most of those interviewed, the report called on the government to increase public consultation and raise the ambition level in the next action plan, which is due in June. This should involve consultation that is earlier, better designed and resourced, and more responsive to stakeholder priorities. The report IRM suggested that the next plan should include bold and potentially transformative commitments such as:
· Reform of official freedom of information laws;
· Creation of public consultation guidelines for new bills, regulations and policies
· Regular, standardized, technically independent “state of the nation” reporting on social policy and the environment;
· A clear cross-government policy to allow public servants and those receiving public funding to speak out on significant public issues without facing any form of retaliation
· Political party funding reform to increase transparency around donations and Parliamentary revenues.
The IRM invites all interested stakeholders to make public comments on the report at www.opengovpartnership.org/country/new-zealand/irm or via email at firstname.lastname@example.org. Comments received will be used to prepare the final version of the report and published alongside it. The public comment period will be open until the end of the day Thursday, 2 March 2016 EST.
October 21, 2015
Here’s an op-ed piece I wrote a couple of weeks ago. I shopped it around the media, but they weren’t interested. You’d think the media might have the most to gain from debate about open government. (In the end, Scoop took it).
At a meeting in the beating heart of the government precinct late last month, a roomful of experts, officials and interested observers discussed a government programme. They weren’t impressed with it. Can you guess what it was?
“It looks more like a conversation the executive government is having with itself,” said Sir Geoffrey Palmer.
The author of a leading textbook on access to information, Graham Taylor, said he had no idea it was going on. “There was no effort to ensure people knew about it,” he said.
“How many people outside of Wellington are part of this?” asked environmentalist and academic Cath Wallace.
“I didn’t know about it until April,” said political commentator Colin James.
What were they talking about? The government’s Action Plan on open government.
You haven’t heard of it either? In 2013, New Zealand agreed to join the Open Government Partnership, a group of 66 countries working to promote government that is open, accountable and responsive to citizens. Participating governments agree draw up Action Plans in consultation with their people to take concrete steps to improve their transparency and accountability.
Our first action plan was released last October. Last week, the government released its own draft report card on its progress. The government thinks it’s doing pretty well. It says we have made “significant progress” on our commitments, which are “extremely ambitious”.
I’ve been hired by the Open Government Partnership to conduct an independent assessment of our progress. As you can tell by some of the quotes above, some of the people I’ve been talking to don’t agree with the government.
Our action plan contains four commitments. The government will keep reporting publicly on the results of our Better Public Services programme, and particularly the promise to make it increasingly easy to deal with government online. It will also refresh our refresh our ICT strategy, focusing on plans to make data more open. It will review progress of the Kia Tutahi Relationship Accord, a set of principles about how the government will engage with community organisations. And it will consult on Transparency International’s recent report recommending changes to enhance systems of public integrity, and report back to Ministers.
Most of these initiatives were already underway when the action plan was drawn up, leading some critics to suggest that our plan is merely an exercise in retro-fitting. But the OGP lets governments include existing programmes, as long as they then stretch them or speed them up in some way.
Officials point out that New Zealand is already much more open than most other countries. They say that the four initiatives are bold and potentially transformative. The OGP is about improving public services, increasing public integrity and better managing public services. These initiatives do just that.
Officials argue that Better Public Services is bravely setting specific targets on things like reducing violent crime and increasing early childhood education and publicly measuring the government’s performance against them. The ICT strategy is opening datasets that are improving government. The review of Kia Tutahi is on target and there has already been progress on implementing Transparency International’s recommendations. There could have been better consultation at the outset, but the government hopes to fix that in next year’s action plan. And the State Services Commission has appointed a stakeholder advisory group to help them develop the existing action plan and formulate the next one.
But there are many critics. Public policy expert Murray Petrie calls it one of the least ambitious action plans of all the participating countries. Some note that Cabinet decided the main parts of the plan very early, conducted very little consultation, and ignored most of the feedback received.
Improving public services, opening datasets, and enabling digital transactions may be fine things, they say, but they have little to do with the OGP’s core principles of transparency, accountability and public participation. Is the government really doing anything it wasn’t doing already? Is committing to “reporting” “refreshing”and “reviewing” really much of a commitment at all? Shouldn’t the plan include things like concrete steps to reform our official information laws, improve social and environmental reporting, and publish a plain-English budget? (It’s also surprising how many people have told me that the biggest open government problem is the culture of fear that prevents many experts – officials and people dependent on government funding – from speaking out in ways that the government might find uncongenial).
The government is seeking feedback on its draft self-assessment by October 16. What do you make of our action plan and the process that led to it, and what should be in the next one? You can head on over to the State Services Commission’s website, read it, and have your say. Or you can contact me with your thoughts. Open government requires the government to be transparent and to listen; but it also requires the citizenry to speak out.
[Obviously, comment on the government’s draft is now closed, but you can still provide feedback to me at email@example.com]
October 14, 2015
It thinks its doing a pretty good job. Do you agree? The government is seeking comments until this Friday. You can give your views here: NZOGP_ActionPlan@ssc.govt.nz
September 11, 2015
Here’s an article I wrote about 10 years ago. It’s about how the President of the Film and Literature Board of Review used her powers to make interim publication orders…. and then stopped. Bits of the law and practice may now be a bit out of date. But I’m inclined to think it’s relevant to the current debate about Into the River, especially the suggestion at the end that if the Board were to meet by telephone conference, this whole problem would disappear.
On the morning of Friday, July 12, everything was set for the launch of this year’s Auckland Film Festival. The programmes were printed. The theatres were booked. Hundreds of advance tickets had been sold.There was just one snag: festival director Bill Gosden didn’t know whether he’d be allowed to screen the opening film.
Gosden had good reason to sweat. Four days earlier, the Society for the Promotion of Community Standards had challenged the censor’s R18 rating for the opening film, Y tu mama tambien. The next day, the society asked for an “interim restriction order” – a temporary ban preventing the film from being publicly screened until the challenge could be determined.
The challenge wouldn’t be determined until the members of the Film and Literature Board of Review could meet together to discuss the film. That wasn’t going to happen for at least another five weeks.
So, eight hours before the Y tu mama tambien reels were due to roll, Gosden still didn’t know whether he was allowed to put them on the projector. He was seething with frustration and indignation. “The three days before the Auckland Film Festival opened were bad for my life expectancy,” he says.
Everything depended on whether the temporary ban would be imposed. The signs weren’t good. Earlier in the year, the SPCS had challenged the ratings of two films that were due for screening in Beck’s Incredible Film Fest, Bully and Visitor Q.
It also applied for temporary bans. It got them.
“It is in the public interest to allow applicants the right of review as set out in the Act,” wrote Claudia Elliott, the Rotorua-based lawyer who heads the Film and Literature Board of Review. “If the film is shown in the interim, the effect of the review would be lost.”
Elliott alone has to decide whether or not to grant these interim applications. The law doesn’t give her much help. It just says she has to impose an interim ban if she’s satisfied that it’s “in the public interest” to do so.
It’s a tough call. If she bans the film, she prevents hundreds of festival-goers from exercising their rights, even though the chances are high that the Board of Review will simply confirm the censor’s rating. (Last year, of 15 ratings referred to the Board of Review, 13 were left as they were.)
If she doesn’t ban the film, she’s denying the society its day in court, and frustrating a right of challenge that Parliament clearly provided for. What’s the point of a review if the film could be screened, and the damage done, before the review is even held?
In the Bully and Visitor Q decisions, Elliott signalled that she was going to protect the integrity of the review system over the rights of film-goers. She warned festival organisers that they would just have to get their films classified earlier to give a fair shot to anyone who wanted to challenge the classification.
Any lawyer looking at those decisions on July 12 would have sighed grimly, clapped Bill Gosden on the shoulder, and said, “sorry mate, you’re buggered. Better find another film in a hurry.”
But Gosden didn’t give in. He put together some submissions, desperately trying to convince Elliott that an interim ban wasn’t in the public interest. The SPCS hadn’t even seen the film, he asserted. Its claim that the film showed boys being “exploited by an adult woman for the purposes of sexual gratification” wasn’t warranted.
The film isn’t harmful at all: it’s been favourably reviewed, it’s not exploitative or pornographic, it’s been released with popular success overseas. Besides, it’s restricted to those over 18 who see it at the festival. Festival-goers are sensible, mature types. An AC Neilson survey shows that 60 percent are Concert FM or National Radio listeners. Governors General attend! Where’s the harm?
On the other hand, if the ban were imposed, the festival would suffer serious harm to its finances, its credibility and its reputation for providing worthy – if provocative – fare, rather than child porn.
Most of these arguments were relevant and well-made. Problem was, most of them were also made during the argument about the Bully and Visitor Q bans. Elliott didn’t accept them then. And when you looked at the reasoning in those cases, there didn’t seem to be any good reason to treat Ytu mama tambien differently.
At high noon on the opening day of the festival – really, exactly 12:00 – the fax machine at the Department of Internal Affairs spat out Elliott’s decision: no interim ban.
The society hadn’t made out an arguable case, she found. She acknowledged that it was hard for the society to do so without having seen the video. But now the public interest demanded that overseas ratings be taken into account, and the merit of the film, and the fact that it was subtitled and therefore of limited appeal. This time, she cited cases emphasising free speech. This time, the public interest required respect for the integrity of the censor’s original decision rather than the society’s right to challenge it.
Gosden, of course, was elated. For him, this was plainly the right decision, even if it was a change of direction. “It seems to me that Claudia Elliott has been on something of a learning curve,” he suggests.
What changed? Elliott didn’t respond to requests for an explanation.
Gosden wonders whether Elliott has grown more savvy about the realities of film festival organisation. Festivals source films from an enormous variety of distributors and sales agents, he explains. Some give you a copy of the film months in advance. Some don’t send it through until two days before it’s due to screen. Gosden recalls that Elliott questioned him closely about issues like this during a recent Board of Review hearing on another film. Elliott’s decision in Y tu mama tambien acknowledges Gosden’s argument that he submitted the film as early as he could for classification. Then she immediately notes that the society had every right to make the application it did.
Ant Timpson, who organises Beck’s Incredible Film Fest, has a different explanation. “She has made a definite distinction between two different film festivals…an elitist one,” he wrote in an email. “Are they saying the audience that attends my festival is ‘dangerous’? That they aren’t adult enough? Insane.”
Elliott doesn’t say any of that in her decisions. But nor does she give any principled reason for treating the films differently, so Timpson can be forgiven for wondering what’s going on.
Timpson is sure that if it had been him and not Bill Gosden who wanted to screen the films, Elliott would have granted the interim ban. He sees it as straight-up bias. And he’s furious about it.
Gosden suspects Timpson rather shot himself in the foot by “presenting every film as if it were an occasion for moral panic.”
Timpson had indeed ramped up interest in his festival by hyping the films as controversial and cutting-edge. “Believe me, some of these films will be very lucky if they manage to slip past the realm of the censors,” said his programme guide. “If last year’s fest was the equivalent of bungee jumping, you could say that this is the year the rubber snapped.”
Timpson says his films have been pushing boundaries for ten years. That’s what his festival is about. Yes, he’s upfront about the content of the films. He thinks that’s a useful service to people who are thinking of coming along.
And he can’t see what his attitude – even if it is disrespectful – has to do with the classification of films.
So…how do films get classified? What exactly is relevant? Films - along with videos, books, newspapers, CDs, computer files, magazines, billboards, and even t-shirts and playing cards – are dealt with by the Films, Videos, and Publications Classification Act. This Act is much more interesting than it sounds, because it contains the law on what we’re allowed to see and hear and what we’re not.
The crux of this Act is the definition of “objectionable”. Nothing can be banned or even age-restricted unless it’s objectionable. To be objectionable, a publication, including a film, must deal with matters such as sex, horror, crime, cruelty or violence. (That’s been interpreted by the courts to mean that things like hate speech can’t be restricted in any way, unless they’re associated with, say, violence.)
So far, no problem. All the festival films under challenge deal with sex. And how. Many of them contain goodly amounts of cruelty, violence and crime as well. But that’s not enough by itself. To be objectionable, their availability must be “likely to be injurious to the public good.”
How can you tell whether a film is likely to be injurious to the public good? You can’t. There’s really no science about it. There’s a list of factors in the Act: is there torture or sexual coercion? Is it degrading? Does it promote or encourage criminal acts? Does it have artistic, social or cultural merit? But at the end of the day, it boils down to a gut feeling about whether the publication is harmful.
So the key question in the censorship system – in any censorship system – is: whose gut is consulted?
In New Zealand, the most important gut belongs to Chief Censor Bill Hastings. Hastings was one of my lecturers at law school in the late eighties. He was hip, approachable and slightly eccentric, wont to stop lectures in the middle and talk about his baby daughter. Some lecturers present the law like a maths problem: a set of rules that, properly applied, produce clear answers. Not Bill. Hastings emphasised the ambiguities. He presented law as a tug of war between competing interpretations and interests. For him, law is not so much about finding the right answer as finding the better argument. It’s an approach that leaves room for strong views and genuine disagreement, and for conclusions that are robust and rigorously tested but don’t claim to be divine truth.
It may be the only approach to censorship that makes any sense.
Hastings and his staff look at the statutory criteria, and classify the films. (Actually, if a film isn’t restricted in Australia or the UK, then we just piggy-back on Australia’s classification. If it is age-restricted there, we decide what to do with it for ourselves.)
If you’re dissatisfied with the censor’s decision, there’s a right of review to the Film and Literature Board of Review. This contains the nine next most important guts in the country.
How are they chosen? They’re appointed by the Governor General on the recommendation of the Minister of Internal Affairs with the agreement of the Minister of Justice and the Minister of Women’s Affairs. (“What is the Minister of Women’s Affairs doing there?” asked lawyer Don Dugdale in the New Zealand Law Journal, shortly before the Act was passed.) The President has to be a lawyer, but the only qualification for the rest is “knowledge of, or experience in, the different aspects of matters likely to come before the Board.”
What comes before the Board is often hard-core pornography and graphic violence. So that’s interesting.
Troubling fact: add together the vagueness of the definition of objectionability the Board members are applying, and the fact that the law says they don’t actually need any evidence in order to find that a particular film might be “injurious to the public good,” and you get a recipe for danger: will this coterie simply apply their own whims and agendas and prejudices, and dress them up as reasons to ban and restrict things?
Comforting fact: in the years since the Board of Review was created in 1993, there have been only six court challenges to its decisions.
Troubling fact: in five cases, the court has found that the Board made a legal botch of one kind or another.
Comforting fact: by and large, the Board’s decisions aren’t out of line with the classifications reached overseas.
In recent years, the Board has tended to be a little more liberal than the Censor’s office, lowering age restrictions on Savage Honeymoon, Cruel Intentions, Joan of Arc, and Saving Private Ryan, for example. It reduced the classification on the only film festival film taken to the Board before this year, the Danish comedy-drama Mifunes Sidste Sang, from R18 to M (unrestricted but recommended as suitable for those 16 years and over.) “The sexual material and coarse language in the film is only given sufficient screen time to keep the plot moving along,” it found.
The Board has very rarely banned anything. But its President, as we’ve seen, does have the power - never used before this year as far as I can tell - to ban things temporarily, as a holding pattern between the original classification by the censor and the Board’s review. This is the power that the rejuvenated SPCS called upon to throw a spanner in the projector of Timpson’s Incredible Film Fest. This is the power Elliott refused to exercise to stop Y tu mama tambien and another festival flick, The Piano Teacher.
Elliott’s u-turn on interim restriction orders has produced an exquisite irony: common ground between Timpson and his nemesis David Lane, the SPCS’s secretary.
Lane, too, is outraged at Elliott. His reasons are a bit different though. He thinks Elliott has changed the ground rules in a way that’s illegal and unfair on those who want to challenge the censor’s classifications.
On the basis of the latest decisions, Lane and the society will have to come up with arguments about how any particular film is detrimental to the public interest, and make out an arguable case, before a temporary ban will be ordered.
Often, he’ll have to do this without even seeing the film. He won’t say whether or not he has seen the films the society has complained about (though it’s difficult to see how he could have). But he says that’s irrelevant anyway. “We don’t have the intention of being censors,” explains Lane. “If we feel there are good grounds for concern [about a film], we put it over to the President of the Board to decide whether it warrants an interim restriction order.”
How does the society decide whether it has concerns? It looks through the festival programmes, and identifies films it thinks are objectionable. Then it gets a copy of the censor’s decisions on those films, which provide further information about their content. It might read whatever it can get over the internet. If the society thinks the classification looks dodgy, it puts in a challenge. Then it asks for a ban in the meantime.
The society’s lawyer, Peter McKenzie QC, says it’s not up to the society to prove that a ban is in the public interest. Once the question is referred to Elliott, it’s up to her to look at the film and make up her own mind about whether the public interest justifies an interim ban. “She’s required by the statute to make her own judgment on the issue,” he says.
Again, the law isn’t much help here. All it says is that Elliott must be “satisfied” that an interim ban is in the public interest. Does that put an obligation on anyone seeking such a ban to convince her? The festivals think so. Chief Censor Bill Hastings thinks so. The Society doesn’t.
Nor, apparently, did Elliott when she granted interim bans on Bully and Visitor Q. Elliott noted that the Society hadn’t seen Visitor Q, but that didn’t stop her granting the interim ban.
But, apparently, it does now. Under her new approach, there’s a rather glaring problem for the Society. What’s it supposed to do? Phone up Ant Timpson and ask for a copy of any video it wants to challenge so that it can make better arguments for a ban?
Where does all this leave us? We have two different sets of decisions from Claudia Elliott. One set seems to justify an interim ban in almost any case, and could be used to upset any film festival that can’t push its films through the censorship process about three months in advance.
The other set seems to preclude an interim ban in almost any case, and could be used to give the green light to the public screening of any film even if a serious challenge is pending.
It’s difficult to understand why these decisions are different. It’s difficult to predict which will be used in the future, unless we assume that the latest decisions (the Gosden ones) represent an ongoing change of policy.
Big deal? Maybe bigger than you think. Mainstream film distributors have been watching these developments nervously. Imagine, for example, if someone took exception to Lord of the Rings: the Two Towers, lodged an application for review a few days before its premiere, and asked for an interim restriction order. Blockbuster films are scheduled months in advance. Distributors promise to deliver movies to cinema owners on particular dates. TV and magazine advertising is lined up. Increasingly, films are released internationally on the same day. Once a film is queued up in this process, it’s very hard to replace. “The possibility exists that we could be derailed,” says Andrew Cornwell, General Manager of Columbia Tristar (N.Z.) Ltd, which has distributed films like Spiderman, Men in Black II, and Black Hawk Down. “We’d be absolutely gutted.”
He may be right to be afraid. Arguably, it’s easier to justify a temporary ban on mainstream films than film festival ones. Such a delay would only bump the screening back a bit, not stymie the few public screenings of a film that may never return to the country.
Gordon Adam, of arthouse film distributors Metropolis Film, is worried too. “It could cost us thousands in forward buying of advertising space which I can’t recover,” he says. Sure, there might be a bump in interest if the restriction order gets splashy publicity. But that will have dissipated if the Board doesn’t give the go-ahead pretty quickly after that.
Adam and Cornwell are breathing a sigh of relief about Elliott’s refusal to stop Y tu mama tambien. “I think she did do an about face,” says Cornwell, “but she made the right decision. If she’d opened the sluice gates, she would’ve found it hard to turn down any application in the future.” Why did she change direction? “She had a bit more blowtorch put on her. A restriction order would’ve unleashed hell.”
Still, the conflicting decisions from Elliott don’t give the distributors any assurance that what happened to Ant Timpson won’t happen to them. Consider Monster’s Ball, which Adam distributes. There’s sex: a father and a son (separately) bonk a hooker in a hotel room. There’s violence: the son shoots himself in the head. You can imagine an organisation like SPCS regarding it as injurious to the public good, even though it earned Halle Berry an Oscar.
As it happens, Hastings arranged a screening for a cross-section of the public to get some feedback before his office classified it. He made it R18.
None of that would have prevented a temporary restriction order from wreaking havoc with the film’s scheduling if someone applied to have it reviewed.
The distributors don’t object to the censorship system. What infuriates them is the cumbersome way it’s being run. “The main problem is that the Board is not able to meet in a timely manner,” says Cornwell. “There is flexibility within the system,” he points out. The Board just isn’t using it.
It seems like the perfect solution. If the Board can hear and determine applications quickly, then temporary bans won’t be necessary, and if granted, won’t matter.
The Board’s nine members are scattered around the country, and getting them together in one place is logistically difficult. But it’s also unnecessary. Under the censorship law, the Board can sit in divisions. It can determine its own procedure. When the Board receives a challenge to a particular film, there’s nothing to stop Elliott from firing copies off to three Board members and holding a hearing via teleconference. Objectors get their day in court. Usually, the Board will uphold the censor’s decision, and the screening can go ahead as scheduled. If the Board finds the film objectionable and bans it permanently, the film-shower will have a chance to make alternative arrangements.
But the Board hasn’t been doing this. It has never sat in divisions. It has never held meetings by teleconference. It is required to conduct reviews “as soon as practicable”, but it can take months to hear some applications.
Elliott didn’t reply to questions about the Board’s procedure. Perhaps the Board prefers to meet in person because that’s the way it has always been done. Perhaps, since most of the latest members were appointed only last June, they think it’s important that they deliberate together while they get a feel for the job.
There may be another, more convincing, reason. Anyone who wants to challenge one of the censor’s classifications has six weeks to do so, after the classification is published.
The current Board’s practice is to wait for those six weeks to elapse before conducting its review.
It seems a justifiable interpretation of the law. Just because one application is lodged early on, that doesn’t mean another one won’t turn up toward the end of the appeal period.
Never mind that this has never happened before.
Never mind that previous Boards often conducted reviews before the appeal period had expired.
Never mind that media lawyer Sarah Bacon of Izard Weston, media law lecturer Ursula Cheer of Canterbury University and Chief Censor Bill Hastings all think the Board can hear reviews within the six week period.
Never mind that once an application has been lodged, others affected can come along and submissions without lodging their own applications.
Never mind that this solution would often suit everyone, and it’s difficult to think of anyone who would complain about it.
It seems that the Board’s convenience is more important than the public’s.
September 7, 2015
As you might know, the New Zealand government has signed up to the Open Government Partnership, a forum of countries working to promote government that is open, accountable and responsive to citizens.
Last year, the New Zealand government issued its first OGP Action Plan for 2014-2016. It sets out commitments by the NZ government aimed at improving our systems of integrity, transparency, participation and accountability over the ensuing two years.
I’m the New Zealand researcher for the IRM, the agency responsible for assessing New Zealand’s performance under the OGP. I am convening a meeting at lunchtime on 14 September 2015 to provide an opportunity for those interested in the OGP to comment on New Zealand’s Action Plan. Do you support it? Could it be improved? Has there been proper consultation? Has the plan been put into action in the past year? What has been achieved? Is it making a difference? Might it be done better next time? How?
· Meeting to comment on New Zealand’s Action Plan
· 14 September 2015, noon
· Victoria University Law School, Moot room, 3rd Floor, Old Government Buildings
You can find links to NZ’s Action plan and relevant documents here.
The State Services Commission’s site on the OGP is here.
The international OGP site is here.
UPDATE: to help you think about this, you might like to read Murray Petrie’s comment on New Zealand’s performance here.
Please RSVP (or send your comments directly) to firstname.lastname@example.org or call 463 6336 or 022 026 2997.
October 28, 2014
The Whale certainly created a splash in the last election. More accurately, it was investigative journalist Nicky Hager and his book Dirty Politics that created the splash. The Whale – controversial right-wing blogger Cameron Slater and his Whale Oil blog, whose emails were leaked to Mr Hager – copped most of the spray. (I should disclose that I act for Nicky Hager).
But Mr Slater has also been making life busy for the courts. In recent months, he has been at the forefront of two significant High Court cases. In the first, he argued that he was a journalist, and should not be required to turn over his sources in a defamation suit against him. In the second, he sought an injunction against several media defendants and a hacker to prevent the further publication of the leaked emails about him that formed the basis of Dirty Politics.
The decisions were released within a week of each other shortly before the election. Mr Slater had mixed success with them. He was found to be a journalist, but the court ordered him to disclose his sources anyway. He got his injunction against the hacker, but not against the media.
Both cases revealed interesting things about the state of our media law.
First, the source protection case. The Evidence Act allows journalists to protect the identity of their sources, if they have promised them confidentiality. But it also allows judges to override that promise and compel them to disclose their sources. A judge has to decide whether the public interest in knowing the source’s identity outweighs the harm to the source together with the public interest in the flow of information from confidential sources.
What’s a journalist? Someone who, in the normal course of work, receives information from informants in the expectation that it will be published in a news medium. What’s a news medium? A medium for the dissemination to the public, or a section of the public, of news and observations on news.
This raises big questions. Is a blog a news medium? Is a blogger a journalist? Are they sometimes? If so, when? The District Court judge had held, rather peremptorily, that Mr Slater’s blog was not disseminating news, and that was the end of the story.
In the High Court, Asher J disagreed. In a lengthy and thoughtful judgment, he accepted that Mr Slater qualified as a journalist at the relevant time. Mr Slater spent a lot of his life blogging. He frequently received information from sources, promising confidentiality. He broke news stories. He published opinions on news. In this context, the judge said, purveying “news” means “providing new information to the public about recent events of interest to the public… on a regular basis… for the purpose of disseminating news”. Making a profit isn’t necessary. No particular format is required. The journalist doesn’t need to be subject to an ethics complaints system. A style of journalism that may be dramatic or abusive or hyperbolic doesn’t disqualify a journalist either. A pattern of consistent inaccuracy or deceit may mean that a blogger is not a journalist, but there was no evidence of that before the judge.
Of course, this isn’t a definition of “journalist” for all purposes, just for the Evidence Act. It’s a fiendishly difficult topic, and this strikes me as a pretty good stab at it. It’s similar to the definition the Law Commission has used.
The judge then went on to order Mr Slater to reveal his sources anyway. He explained that the identity of the sources may be crucial to evaluating pleaded defences of truth and honest opinion. What was there in the balance favouring source protection? Almost nothing. The posts were about a private dispute, they contained “extreme and vitriolic statements,” they “bore the hallmarks of a private feud”, and the source material seemed to have been obtained illegally. It was not a whistleblower case.
Ironically, Mr Slater’s “news” site reported only that he had been declared by the High Court to be a journalist. It didn’t see fit to mention the rest of the judgment. All in all, though, Asher J’s decision seems right on target, and gives very helpful guidance in a difficult and fast evolving area of law.
The same can’t be said, I think, of Fogarty J’s decisions on Mr Slater’s application to prevent further publication of his hacked emails.
This case, too, bristled with fascinating issues. Recall that the emails had been illegally obtained by someone calling himself “RawShark”, who had first given them to Mr Hager for his book, and after the book was published, began releasing them online and providing them to journalists. The application alleged breach of confidence and invasion of privacy. Some of the material (omitted from Dirty Politics) was clearly very personal. RawShark had released some of this, then apologised and said he’d vet the releases more carefully in future. There was a strong argument that all of the material was subject to an obligation of confidence, and that this obligation bound third parties, such as the media, who acquired it. But public interest is a defence to both causes of action.
The PM had accused Mr Hager of “making stuff up”. The emails supported the book’s veracity. Did that establish public interest in them? Would that only apply to the ones mentioned in the book? Was there public interest in some of the emails that weren’t in the book? The media had published some others. Emails showing contacts between political figures and Mr Slater were particularly pertinent with an election pending. Did that establish public interest? Would a judge be prepared to evaluate where the public interest lay without seeing all the emails and hearing argument on the context?
The interim injunction thresholds are very high. Courts are reluctant to gag speech. In privacy cases, for example, the Court of Appeal in Hosking v Runting held that there must usually be “compelling evidence of most highly offensive intended publicising of private information and there is little legitimate public concern in the information.” Was that test satisfied?
Who knows? Fogarty J’s 9-paragraph decision – gagging the hacker but not the media – sheds little light on these issues. He doesn’t cite Hosking, or the test for a privacy injunction. He doesn’t cite any breach of confidence cases at all.
The judge is surely right to conclude that there is an arguable case against RawShark (as indeed there is against the media). But is this the right standard? Hosking seems to set the bar for an injunction higher. So do many other free speech injunction cases. What’s more, the judge doesn’t mention the right to free speech in the Bill of Rights Act. Given that the injunction restricts what might include significant political speech, we might have expected an explanation of why it is demonstrably justified under section 5.
Remarkably, the judge doesn’t even explain why he didn’t grant the injunction against the media. If he accepted that the media were publishing information in the public interest, on what grounds was he satisfied that RawShark wasn’t? The judge points out that there is a difference between preventing the further circulation of what’s already in the public domain, and preventing RawShark from putting more hacked emails into the public domain. But that ignores another category: the emails leaked by RawShark to the media and not yet published. The injunction permitted the media to publish anything they liked from this category. But the judge gives no reason to differentiate between those emails and anything RawShark may still have had. He conducts no evaluation of any of the specific information leaked, published or not, and what public interest there may have been in it.
Was the judge worried that RawShark would again release very private information in which there was no public interest, since he’d done so before? The judgment doesn’t say.
As it happened, that afternoon RawShark said he had given all his information to the media and was shutting up shop. Did the judge know about this? Did he believe it? Did it make him more inclined to feel that any significant information was now in the responsible hands of the media and so it would not do any harm to gag RawShark? The judgment doesn’t say.
Perhaps the judge was comforted by the fact that Dirty Politics and the media seemed to have already had an opportunity to air the most significant parts of the hacked emails. But the judgment doesn’t say that either.
The upshot of this decision seems to be this: if the injunction application had been made before Dirty Politics was published, and before any of the emails had been leaked to the media, then an injunction would certainly have been granted against everyone, no matter what the degree of public interest may have been.
Now, I think we have to be very sympathetic to judges who have make difficult decisions on interim injunctions quickly and without the benefit of all the evidence and full argument. RawShark was not represented. What’s more, further argument was scheduled for the following week, and the judge permitted any defendants to apply for the orders to be varied on 24-hours’ notice. But even so, I think this loses sight of the principle that interlocutory applications must be scrutinised particularly carefully when they are likely to finally dispose of the case. In relation to RawShark, that’s exactly what’s happened.
I’m not saying that the ultimate decision Fogarty J reached was wrong. It’s possible that this outcome could be defended. But the judgment itself is so sparse and unsatisfactory that I don’t think it can be.
October 3, 2014
I wonder when the Broadcasting Standards Authority are going to tell us that one of the BSA board members quit a couple of weeks ago. That hasn’t come out yet, has it? A member of the BSA has up and walked. They haven’t mentioned that one yet, have they?
(Some might say that I have just made an unqualified factual assertion that a member of the BSA resigned. Not the BSA, though! They said a statement just like this one, by Martin Devlin on Radio Sport, was pure speculation and gossip, and therefore not subject to the accuracy standard. So even though it turned out to be entirely untrue, there was no breach of broadcasting standards. In fairness to the BSA, this was during talkback, Devlin is provocative and not always to be taken seriously, and the producer did add “we’ll wait for that story to break”. But I don’t think those factors tell against what was plainly an assertion of fact. Here’s the full statement and BSA’s reasoning:
I wonder when Team New Zealand are going to tell us all that one of their chief designers quit a couple of weeks ago. …That hasn’t come out yet, has it? Because you know how they wanted their salaries to keep all their designers and stuff? But one of their main designers has up and walked. They haven’t mentioned that one yet, have they? … I don’t think that one’s coming out yet, is it?
We do not think that this amounted to an unqualified statement of fact which was subject to standards of accuracy, or which listeners would have interpreted as authoritative or certain. Rather, most listeners would have taken the comments in the nature of speculation or gossip, due to the host’s repeated questioning whether it had ‘come out yet’. The impression created was that Mr Devlin had perhaps heard rumours, but this clearly had not been stated or corroborated by ETNZ itself. This was supported by the producer’s reaction when he said, ‘we’ll wait for that story to break’, again indicating it had not been confirmed.)
September 19, 2014
In a significant Court of Appeal decision (see Murray v Wishart), hot off the press, the judges have unanimously ruled that a third party publisher (the owner of a Facebook page that contained comments by others) was not liable for other people’s comments simply because he “ought to have known” that they contain defamatory material (even if he didn’t actually know of the content of the comments). So hosts of Facebook pages will only be liable for defamation of posters’ comments if (a) they actually knew about the comments and (b) failed to remove them in a reasonable time in circumstances that give rise to an inference that they were taking responsibility for the comments.
Will this apply to other content hosts, such as the Blogger platform, search engines and ISPs? Maybe. The Court said:
Our analysis of the authorities shows how sensitivethe outcome can be to the particular circumstances of the publication. The fact that many of the authorities relate to publication in one form or another on the internet does not provide any form of common theme, because of hte different roles taken by the alleged publisher in each case.
So there’s still room for development of the law here. And the outcomes for online entities that have some role in publishing others’ comments seems somewhat fact sensitive. The indications in this judgment are that the Courts should assess which analogies are most appropriate in the particular circumstances: for example, is the publisher more like a news vendor (who can be taken to have accepted liablity for the publications being sold, subject to an innocent dissemination defence), or the owner of a public noticeboard (who hasn’t really taken part in publication until they are told someone has posted a defamatory notice)?
This offers some comfort to ISPs, who are usually likely to fall into the latter category. But it seems that once they are notified, then it will usually be a short step to the conclusion that they have adopted the statement if they do not remove it within a reasonable time.
September 15, 2014
I’m struggling to find the provisions in NZ’s policy about the classification of documents that allow the PM to declassify documents for the purpose of protecting his reputation (his word, not mine, on Morning Report this morning). Perhaps the PM could help me out here.
The PM has said he would declassify documents to prove he stopped a mass surveillance proposal, in response to criticisms by journalist Glenn Greenwald (and, it seems, whistleblower Edward Snowden).
A few other questions spring to mind:
Why were these documents classified in the first place, and who by? What was the security classification?
If they were classified secret or top secret, what was the “serious” or “exceptionally grave” damage to our security operations that would have been caused if we’d known about them, say, at the time we were debating the proper content of our spy laws? (Or what other secrecy ground was relied on?).
Who is directing the reclassification? Because it sounds like the PM is ordering it. But the decision should surely be made by the intelligence agencies themselves. Chapter 3, para 31 says:
for authority to downgrade or declassify, refer material classified SECRET or TOP SECRET to the point of origin.
So what’s the PM doing making this call? Hasn’t he always told us that operational decisions are the domain of the agencies themselves? (And isn’t his office under investigation for rapidly having SIS information declassified and released to Cameron Slater?)
If the PM is making this decision, is protecting his own reputation a proper consideration?
One might have thought that “overriding public interest” was the proper benchmark for working out whether to declassify a document. That has the beauty of being consistent with the Official Information Act, which still applies to these documents (see Chapter 3, para 6). And surely there is overriding public interest in the release of the documents now. Is the PM reluctant to make this point because of the obvious rejoinder: why were they not in the public interest back when we were debating the law, when similar allegations of mass surveillance by our spy agencies were being made, and when the country was debating what powers and limitations on those powers were appropriate?
Is this declassification process being expedited? Again, on whose instructions?
Or was it already in train? It was widely anticipated that Nicky Hager’s book would include similar allegations to these. Had the PM already begun or even finished the declassification process in order to have the documents lined up for rebuttal?
Why are the only documents being declassified the ones necessary to protect the PM’s reputation by showing how he stopped this “business plan”? If those documents are no longer going to be harmful to release, or if there is sufficient public interest to override any relevant harm, then aren’t there a swag of other relevant documents that should be declassified too?
September 14, 2014
Yes. Yes, he is. The High Court says so, as Whale Oil points out triumphantly. Like the good journalist he is, he even shows us the evidence: para 145 of Justice Asher’s judgment.
Mr Slater then goes on to demonstrate his journalistic chops by entirely failing to report the rest of the judgment. That includes the part where the judge says the material in his posts was “extreme and vindictive” and bore “the hallmarks of a private feud”, was not of any public interest , and was probably unlawfully obtained.
He also omits the judge’s conclusion that he therefore has to turn over his sources, which was in fact the whole point of the application.
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