Midyear Examination Administration, Official Information Act, and Letters Patent 1983

Midyear Examination Administration and Examinable Topics

The lecturer begins by addressing inquiries regarding the midyear examination. The examination will consist of three questions to be completed within a ninety-minute duration, allowing exactly thirty minutes per question. The questions are specifically designed to be answerable within this thirty-minute timeframe. The structure of the exam requires students to answer two questions from the material covered by the current lecturer and one question based on the material covered by Mr. Tanahue Tom (also referred to as Mr. Tomohu Tom), specifically regarding the Treaty and topics from his lectures.

A detailed format of the examination will be posted on Learn. The exam is divided into three parts. Part A will provide ample choices, specifically offering two questions from which the student must select one. Part B will contain three questions from the current lecturer's portion of the course, and students must answer one. Part C consists of Mr. Tom's portion of the exam. Effectively, students choose two out of five possible questions from the current lecturer's sections.

Examinable topics include modern constitutional developments discussed in class, the rule of law (the final topic of the semester), and the sources of the constitution. The lecturer notes that the exam is fairly generous in its structure. Regarding upcoming lectures, the Official Information Act (OIA) and the Letters Patent of 1983 will be finished today. The Constitution Act of 1986 (Topic I) will be covered tomorrow. Topics J and K, which include the New Zealand Bill of Rights Act and the Human Rights Act, will not be lectured by the current speaker; instead, they will be covered in the third term by Mr. John O'Farwell as part of the rights legislation course. Remaining time in the semester will involve brief discussions on the Citizens Initiated Referendum Act, MMP, and the Supreme Court Act, followed by three weeks dedicated to the rule of law.

The Official Information Act (OIA): Constitutional Significance and Culture

The Official Information Act is described as one of the three most far-reaching reforms of the modern era and is characterized as an intensely constitutional statute. Its radical nature was first recognized in the 1985 judicial review case by Justice Jeffries in the High Court, who termed it a "radical measure" because it redefined the regime for information release and revoked the previous code of secrecy. This constitutional status was further affirmed in 1988 by President Cook in the appeal case Commissioner of Police and Ombudsman.

While there is now widespread acceptance of the OIA regime across central and local government, this was not the case at its inception in 1982. The Ombudsman’s early annual reports noted significant resistance. The DANKS Committee, the architects and original drafters of the Bill, recognized that the Act's success depended on an "attitudinal shift" and the re-engineering of a public law culture previously rooted in secrecy. It was anticipated that a full generation of public servants would need to pass before the principle of open government was fully embraced. Despite current widespread acceptance, the Ombudsman still reports instances of a "compliance culture," where some organizations fulfill the requirements in a minimalist way to avoid full disclosure.

Legislative Framework and the Principle of Availability

The OIA is grounded in the principle of public accountability for ministers and senior public servants. The constitutional rationale is that public decision-makers cannot be held to account unless the public has access to the information used as the basis for their decisions. This is codified in the Principle of Availability in Section 5, which states that all official information shall be made available upon request unless there is a good reason for withholding it.

Reasons for withholding information are categorized as follows:

Section 6 (Conclusive Reasons): These represent interests of the state that "trump" the right to information. If a conclusive reason applies, the government agency has no discretion and is under a duty to withhold the information to prevent demonstrable prejudice to state interests.

Section 9 (Other Reasons): These are not conclusive and require a balancing exercise. The holder of the information must determine if the reason for withholding is outweighed by other considerations that favor release. The underlying policy is to release information whenever possible.

Section 18 (Administrative Reasons): These are practical reasons for declining a request, such as the information being slated for public release within the week or the information simply not existing.

Regarding the definition of "Official Information," the DANKS Committee deliberately chose not to define it by category to avoid endless disputes. Instead, the Act applies to all information held by a government department or agency subject to the Act. A minor exception exists for purely private communications, such as a personal email between a public servant and a partner regarding household errands (e.g., buying milk). To determine if an agency is subject to the Act, one must refer to the first schedules of the Ombudsman Act and the OIA, which list all covered ministries, departments, and public organizations.

Enforcement Mechanisms and the Ministerial Veto

By approximately the third year of the Act's operation (identified by the speaker as around 1975, though likely intended as a post-1982 date), it became clear that some agencies were frustrating the Act's objectives by ignoring requests. An amendment in 1986 (further noted as 1996 for refusal deemed status) addressed this by imposing a statutory duty to make a decision within twenty working days. Failure to respond within this four-week window is legally deemed a refusal, allowing the requester to seek the Ombudsman's assistance.

The Ombudsman has primary responsibility for administering the OIA, but the political executive (the government) retains ultimate responsibility. The DANKS Committee believed that the release of sensitive information ultimately involved political judgment, for which ministers should be accountable to Parliament. Originally, this was managed through an individual ministerial veto. Following a 1987 amendment, this was replaced by an Executive Council veto exercised formally by an Order in Council. This veto must be exercised within twenty working days of an Ombudsman’s recommendation to release information. If no veto is issued within that window, the Ombudsman’s recommendation becomes legally binding on the agency. Under Section 32, if an agency still refuses to comply after the recommendation becomes binding, the requester can seek a writ of mandamus—a court order compelling a public body to perform its duty—though this has never been necessary in practice.

Proactive Disclosure and the "Push Model"

Global trends in freedom of information suggest a shift from a "pull model" (reactive disclosure upon request) to a "push model" (proactive disclosure). In 2012, the Law Commission reviewed the OIA and recommended a statutory duty for agencies to take all reasonably practical steps to make information available proactively. While this statutory duty has not been formally adopted, modern technology and the internet have made proactive release viable and cost-effective. Many agencies now post reports, policies, and strategies on their websites.

However, a 2017 investigation of twelve government departments revealed that not one had adopted a comprehensive proactive release policy. The exception is the Department of the Prime Minister and Cabinet (DPMC). The DPMC proactively releases cabinet papers and minutes—historically the most secret parts of the executive—within thirty working days of a final cabinet decision. This release is subject to a proviso for sensitive material, and individual ministers retain primary responsibility for approving these releases and deciding whether to release the material in whole, in part, or to defer release beyond the thirty-day window.

Question & Discussion

During the lecture, an interruption occurred.

Speaker: "What is it telling us? That my lecture's that bad? That's not alarmed, though, is it? Is it? It's real… Okay. Scarper. It's a bit irritating, isn't it? There we go. Full marks."

The Letters Patent 1983

The Letters Patent 1983 is a fundamental document that constitutes and defines the Office of the Governor General and the Executive Council. The 1983 instrument replaced the 1917 Letters Patent and Royal Instructions, which had remained unchanged for sixty-six years. This revision was a significant expression of New Zealand’s burgeoning nationhood and its status as a sovereign, independent nation. In 2006, a minor amendment was made to recast the oath sworn by the Governor General. At that time, it was suggested that the entire document be updated again to modernize archaic language, though this has not fully occurred.

The 1917 instruments were considered outdated even when promulgated, as they still allowed the Governor General to decline ministerial advice and refer matters to London. To reflect New Zealand's independent status, the 1983 Letters Patent introduced six changes (five substantive and one formal).

Change 1 (Formal): The designation of New Zealand was changed. The term "Dominion of the Crown" was removed. Although the Prime Minister's office directed departments to stop using the term in 1946 and it was officially discarded in 1953, the 1983 instrument formalized this. The Governor General is now the representative in "our Realm of New Zealand." The Realm includes the North, South, and Stewart Islands, the self-governing states of the Cook Islands, Niue, Tokelau, and the Ross Dependency.

Change 2 (Substantive): All references to the Governor General declining to act on ministerial advice were removed. Under the 1917 instructions, the Governor General could dissent and seek advice from London. This power became obsolete after the Balfour Declaration of 1926, which established that the Governor General held the same position relative to local affairs in the dominion as the King held in the United Kingdom.

Change 3 (Substantive): The 1983 letters removed the power of Her Majesty to issue "Royal Instructions." Historically, these instructions directed the Governor General on how to exercise powers. This was deemed wholly out of accord with contemporary relations between New Zealand and the United Kingdom and had been effectively redundant since the 1926 Balfour Declaration.