Chapter 3: Protecting good government

The case for the good government grounds

We have no doubt that there is a proper place for withholding grounds that protect good government and effective administration. The interests underlying the grounds are as worthy of protection today as they were when the OIA was first enacted.

Our system of government is founded on basic relationships and understandings, such as collective ministerial responsibility, that are necessary for our system of government to function. Collectively the unwritten sources that make up New Zealand’s constitution, including constitutional conventions, define where power sits and who may exercise it in the New Zealand system of government. The official information legislation needs to reflect that model.

The legislation must also recognise that some room for deliberation and some forms of confidentiality are necessary for our model of government to work. The ability of the government to govern requires some room for deliberation in private to develop and consider ideas without fear of adverse consequence. All official information regimes in jurisdictions that have Westminster models of government acknowledge the continued need for some confidentiality at the centre of government, albeit by different means. The case for retaining some level of protection in both central and local government is equally strong in New Zealand.

In its review of secrecy laws in Australia, the Australian Law Reform Commission observed that the Westminster system of government, the same system we have in New Zealand, “was premised on secrecy” and that deliberations of the government were private.62 Ministers’ ability to impart and receive advice from their officials in confidence reinforced the principle of a politically neutral public service. Ministers could freely create and debate ideas with ministerial colleagues and officials. Before the OIA this desire for secrecy and confidentiality was taken to unnecessary extremes in Acts such as the Official Secrets Act. That completely closed approach is now in the past. We have a much more open-government model. However the good government grounds in the OIA, and to a lesser extent in LGOIMA, are a necessary reminder that complete openness is sometimes damaging to government and therefore society as a whole.

Australian Law Reform Commission Secrecy Laws and Open Government in Australia (ALRC R112, 2009) at [2.5].