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August 16, 2017

The Spinoff has a terrific tool that lets you see and compare the leading parties’ election policies. You can tick your favourites and then see which way you lean based on your policy choices. It is beautifully done. It almost makes you feel as if we’re living in a democracy where people choose the party with the best ideas.

Topics: General | 85 Comments »

Hammering the MC

August 11, 2017

Mike Hosking for TVNZ election debate moderator? Doesn’t look like many would vote for him, even though he’s the best person for the job according to a very well-placed source.

The problem is obvious. He is, in fact, biased. Apparently this doesn’t concern TVNZ, which seems remarkable right there. On the other hand, as Bill Ralston points out, the role is basically that of a traffic cop. I think this understates the importance of the choice and tone of the questions (which I hope are at least being overseen by someone else). It also understates the dangers of being pulled over by a traffic cop who thinks you are contemptible.

So 18,000 people on current count have signed a petition to dump Hosking as debate moderator. I don’t think Hosking should be moderator. But I haven’t signed the petition. That’s because it invokes the balance standard from the Broadcasting Act. Here it is:

Section 4(1)(d) of the Broadcasting Act 1989 requires broadcasters to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.

Call me a media law geek, but I have to point out that this is basically irrelevant to the question. For one thing, we can’t tell whether Hosking has breached this standard until we have seen his performance. He didn’t do a bad job last time.

For another, it applies over a period of time, and across all the coverage. Any lack of balance in one programme can be corrected by supplying it in a later one.

For another, this standard is about issues, not about people.

The standard that may be relevant is fairness. Every programme has to be fair to those involved. But again, that will turn on Hosking’s performance. You can’t complain under the Broadcasting Act in advance of a programme about the selection of a host.

But for me, there’s a more powerful reason to criticise TVNZ’s debate coverage. It screws over the Greens and NZ First, and therefore the voting public. I know their polling has dipped a bit, but a debate with them included would be much more useful to the public than one between the two major parties. The debates matter, and can have real effects. TVNZ is picking sides: it’s biased toward the two big parties. It sends the implicit message that they’re the only ones worth taking seriously. That other parties’ agendas aren’t worthy of the big stage.

I’m not suggesting this is legally challengeable. Judges won’t interfere with decisions like this unless they are utterly bone-headed. And excluded parties broadcasting standards challenges have never succeeded. TVNZ can certainly come up with a rationale to survive those sorts of challenge.

But, really. Why not have a leaders’ debate with the two big parties, then a four-party one, then one with the minor parties?

TV3, I hope you’re listening.



Topics: General | 42 Comments »

A couple of significant defamation appeals

August 8, 2017

In defamation law, there are three basic defences. The first one, aptly called “truth”, protects you if you basically got it right. The second is called “honest opinion”. You can use it where you’ve clearly expressed an opinion, it’s honest, and its based on facts you have set out or which are generally well known. That way, people can tell they are getting a viewpoint and what it’s about, and can then figure out whether they agree or disagree.

The third one is known as privilege. That’s for when you have screwed up, your facts are wrong, and you haven’t expressed it as an opinion. Privilege protects you even though you’ve published a defamatory smear and hurt someone’s reputation. It protects you because the judges say that the free flow of candid speech between some people, on some occasions, is so important that we don’t want to discourage it by subjecting those involved to defamation law, even though some people are likely to be harmed by some of that speech when it’s wrong. The obvious example is debate on the floor of Parliament.

But there are other examples too. The protection isn’t quite as all-powerful as the complete immunity we give to those in Parliament. It can be lost if its not exercised in good faith. That’s known as “qualified privilege”. In 2000, our Court of Appeal ruled that it could protect the media when publishing important commentary on current, past and aspiring MPs (and perhaps others directly concerned in the functioning of representative and responsible government). That privilege could be lost if it is not used responsibly.

That’s been the law for the last 17 years. But there are unresolved questions around the fringes. What about commentary on other matters of public interest besides the conduct of politicians? Might that be protected by qualified privilege too?

And what, exactly, counts as not using the privilege responsibly? Might it differ depending on who the defendant is? For example, if responsible journalism usually requires seeking and reporting the other side, is that also a requirement for bloggers, or a lobby group, or another politician, who is sued for attacking an MP? And who has to prove it? Does the plaintiff have to show that the defendant behaved irresponsibly (as is the NZ rule in cases brought by MPs), or does the defendant have to show it has behaved responsibly (as is the rule in the UK, which already has a broad public interest defence?)

And what if the media is reporting on a couple of MPs slagging each other off? Can they just report the crossfire? Would that be responsible? Or do they have to check out each allegation before publishing it?

We have some High Court authority on some of these questions, though it’s somewhat sparse and inconsistent. The Court of Appeal and the Supreme Court have  not weighed in yet. But two upcoming cases may change that. (Disclaimer: I have a hand in both). In Hagaman v Little the Court of Appeal may have to examine the boundaries of qualified privilege when claimed by a politician criticising a businessman, and the question of whether a defendant in these circumstances has to establish they have behaved responsibly in order to get the defence, and what responsibility may mean in that context. (That’s if the case survives the preliminary question of whether the appeal can continue despite the Mr Hagaman’s death).

In Durie v Gardiner and Maori Television Service, the Court will also have to grapple with the question of whether and how qualified privilege applies outside attacks on MPs (the plaintiffs are the then co-chair of the Maori Council and a lawyer acting for the Council), and what counts as responsibility . In particular, should NZ adopt developments in the UK and Canada that say it can sometimes be responsible to publish unverified allegations, if they shed important light on a public dispute, though they might be quite wrong? If so, then in what circumstances?

So these are pretty big cases for defamation law in New Zealand. And as ever, they will force the courts to reckon with the elemental contest between speech and reputation, and to explain more about how the elusive concept of responsibility acts as an arbiter between those two primal values.



Topics: Defamation, General | 1,804 Comments »

Protection of journalists’ sources

August 7, 2017

Here’s a useful resource for journalists trying to communicate with confidential sources without leaving electronic (or other) footprints that might unwittingly burn them.

Topics: Confidential sources | 1,067 Comments »

Is it possible that Todd Barclay did not commit an offence?

June 20, 2017

Newsroom has done a terrific job of trying to get to the bottom of the allegation that National MP Todd Barclay secretly recorded his former electorate agent Glenys Dickson.

Newsroom claims Barclay left a dictaphone in the Gore electorate office and recorded Dickson’s side of phone conversations. It suggests that he may have recorded conversations between electorate staff too. It suggests he used the material against her in some unspecified way. It’s not clear whether this happened only once or multiple times.

Barclay has denied all this. But it seems that not everything he said has turned out to be entirely accurate. (For instance, he’s quoted saying he would cooperate with any police investigation, but according to police, he refused to be interviewed).

It’s a crime to use a recording device to record a private conversation that you are not a party to. It sure sounds like Barclay has committed that crime. Newsroom certainly asserts it. It looks like Barclay (or someone) told Bill English about it, and Newsroom has texts where Bill English talks about this. So why did the police, after investigating, decide that it didn’t have enough evidence to prosecute?

I don’t know. But here are a few things that I suppose might be murky, or might provide a defence:

I haven’t seen the police advice. Maybe I’ve missed something. But I have to wonder about their conclusion.   Isn’t it about now that Graham McCready usually puts in an appearance?

I note, in any event, that this issue about the Crimes Act doesn’t exhaust the legal analysis here. There are also possible breaches of the Privacy Act (we might start with the general obligation to let people know when you’re collecting information, and the obligation to do so in a way that is lawful, fair and not unreasonably intrusive). There are also possible tort claims  for intrusion and breach of confidence. Then there are employment issues about duties of trust and confidence (though how that plays out given that the Parliamentary Service is the employer, I’m not sure; but I’d expect at least a duty to investigate properly).


Topics: Journalism and criminal law, Privacy Act, Privacy tort, Whistle-blowing | 753 Comments »

Open Government Partnership draft final report for New Zealand

January 10, 2017

I’ve mentioned that I’m the New Zealand researcher for the Open Government Partnership, an international organisation in which governments promise to implement action plans to increase government transparency and accountability. My draft final report is available for public comment here:

Topics: General | 340 Comments »

Margaret Harkema welcomes TV3 defamation settlement and apology

December 8, 2016

As some of you know, I act for Margaret Harkema, a dog and horse breeder in Hastings.

You may also have seen the apology broadcast by TV3 at about 7pm last night, and repeated tonight. If you missed it, you can catch it again tomorrow night, or see it on the Newshub’s website for the next week. Or you can read the text, which I’ve set out below.

The apology concerned a series of programmes broadcast about Margaret on Campbell Live in late 2011.

The apology is part of a settlement whose terms are confidential, but which involved payment of a sum of damages.

The settlement came in the wake of a Broadcasting Standards Authority decision, which contained scathing criticisms of Campbell Live’s reporting. You can read it on the BSA’s website at  It contains a detailed discussion of the background facts.

Ms Harkema says she is relieved her ordeal was over and her reputation vindicated. “Those programmes left me debilitated financially and mentally,” she said. “To this day I am shocked that a so-called reputable news organisation and its journalists could behave in such a reckless and irresponsible way.”

Ms Harkema said that she would prefer to make no further comment at this point. She asked that anyone who wanted to know anything more read the BSA’s decision, and if they had questions, contact me.

My contact details are: cellphone   022 026 0997, landline 476 8119, email

TV3’s apology

In 2011 Campbell Live broadcast a series of stories critical of Hastings horse and dog breeder Margaret Harkema and the Valley Animal Research Centre.

The Broadcasting Standards Authority found the programmes were inaccurate, unfair, “based on a pre-determined, narrow view of Ms Harkema and her practices,” were wrongfully edited to portray Ms Harkema as dishonest, and left out important information that was inconsistent with Campbell Live’s allegations. It found Campbell Live didn’t give Ms Harkema a fair chance to respond and “sensationalised or over-stated the situation by failing to distinguish guesswork from fact.”

The Broadcasting Standards Authority also condemned Campbell Live for secretly filming Ms Harkema in two highly offensive breaches of privacy.

TV3 accepts that Campbell Live’s allegations were wrong and unreservedly apologises to Ms Harkema for the damage caused to her reputation and the severe distress caused to her and her family.

Topics: General | 66 Comments »

OGP consultations underway

August 4, 2016

If you are interested in transparency issues, then there’s a brief but significant chance for you to have some effect on government. The government has to draw up its action plan for open government under the Open Government Partnership by October. That plan is supposed to include commitments that improve transparency, accountability and public participation in government decision-making. The plan is also supposed to be “co-created” with us. The co-creation part is happening now. But it has been left to the last minute.

The government has been so late on this that two community organisations – ECO and Hui E! – have been conducting their own community engagement processes to attempt to gather information and support for input into the OGP.

Now, the government has engaged consultants engage2 to seek public input into our next action plan. Details at

I encourage you to get involved.

Topics: General | 43 Comments »

Open Government Partnership report

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:

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 and 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 or via email at 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.

Topics: General | 24,654 Comments »

Open Government Partnership: Are we on the right track?

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]

Topics: General | 1,386 Comments »

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