Transparency, governance and the Constitution’s role supporting official information

Sir Geoffrey Palmer

Sir Geoffrey Palmer

Former New Zealand Prime Minister Sir Geoffrey Palmer, spoke to the May Board meeting of Transparency International New Zealand (TINZ) about his project A Constitution for Aotearoa New Zealand.

A Constitution for Aotearoa New Zealand, jointly authored with Andrew Butler and launched in September 2016, is now in the second printing and available from Victoria University Press.

Their proposal: a modern constitution that is easy to understand, reflects New Zealand’s identity and nationhood, protects rights and liberties, and prevents governments from abusing power.

Central to TINZ’s purpose is connecting the principles of constitutional design to transparency, thus reducing the risk of corruption.

One constitutional lawyer found the New Zealand constitution to be located in 45 Acts of Parliament including six passed in England, 12 international treaties, nine areas of common law, eight constitutional conventions, three-and-a-half executive instruments, one prerogative instrument, one legislative instrument and half a judicial instrument.

The authors believe this scattering of sources creates obscurity and a lack of clarity. These are enemies to transparency and democracy.

To date there are over 2,500 submissions. Many are thoughtful and useful, indicating a considerable interest in the project and an appetite for change.

Sir Geoffrey asked TINZ to make a submission about:

  1. The wording in the Constitution regarding the transparency of official information as an important way to prevent corruption.
  2. He also asked TINZ to make a submission about the importance of free and frank advice from the public sector.

TINZ proposed to prepare a Submission by the 1 December 2017 deadline.

A redrafted Constitution for further consideration will be produced by Butler and Palmer early next year along with an analysis about ways to further advance the project.

TINZ mission consistent with the proposed constitution

TINZ’s role is to ensure that “government, politics, business, civil society and the daily lives of people are free of corruption.” Sir Geoffrey believes that in order to reach that condition, a number of other features of public policy are necessary.

The new constitution would be an important tool to maintain New Zealand's high trust society where "Integrity and good governance are important in that they underpin government legitimacy and the freedoms, civil liberties and ability to participate in a democratic state. When people trust their institutions, they are more likely to pay their taxes, fill in the census forms and to comply with laws and regulations."

The democratic deficit

“When one looks around the western world now, one finds some worrying trends revolving around politics and public trust”, Sir Geoffrey said. “Inter-active conversations between the governed and the decision-makers seem more difficult to conduct now.”

Dutch writer, David Van Reybrouck, author of a book with the provocative title Against Elections, makes a case that the trend now is toward “deliberative democracy" which he defines as:

Deliberative democracy is a form of democracy in which collective deliberation is central and in which participants formulate concrete, rational solutions to social challenges based on information and reasoning.

Sir Geoffrey notes that “To have a better democracy in New Zealand we need to thicken and deepen the Constitution. We are quite some distance from being a deliberative democracy”.

Open government and information

"Open government is an important value”, Sir Geoffrey said. “Public opinion is one of the checks against arbitrary power, but only if people know what is going on”.

Quoting famous American Judge Louis Brandeis:

"Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman."

That is a basis for New Zealand’s 1982 Official Information Act as well as the 1980 Danks Committee principles for the proposed legislation:

  • A better-informed public can better participate in the democratic process.
  • Secrecy is an important impediment to accountability when Parliament, press, and public cannot properly follow and scrutinise the actions of Government.
  • Public servants make many important decisions that affect people and the permanent administration should also be accountable through greater flows of information about what they are doing.
  • Better information flows will produce more effective government and help towards the more flexible development of policy. With more information available, it is easier to prepare for change.
  • If more information is available, public cooperation with government will be enhanced.

Sir Geoffrey concluded that after more than 35 years of the Act, the present policy settings remain inadequate and do not serve the interests of transparency in government as well as they should. It is still often difficult to get information about public affairs in a timely fashion.

A strengthened Official Information Act would increase protection against corruption and questionable decision-making in both central and local government.

Butler and Sir Geoffrey, think that a commitment to greater openness of government information in a written codified and judicially enforceable constitution would be a safeguard worth having.

Sir Geoffrey challenged the TINZ Board to make a submission on the best way to word a constitutional guarantee of official information.

Speech notes on transparency, governance and constitutions by Sir Geoffrey Palmer QC

Sir Geoffrey Palmer presenting to the TINZ Board

Sir Geoffrey Palmer presenting to the TINZ Board 22 May, 2017

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