Actions required include actually funding civil servants to work on this, and explicitly mandating agency Chief Executives to (a) cooperate and support this work and (b) begin work to scope what adaptations will need to be made to their business systems to make use of the dataset.

DIA should continue to lead this work as they’ve been doing it well, and the combination of being responsible for digital government, the National Library, Archives NZ and local government means that they’ve got a strong departmental interest in it succeeding.

The actions required for this commitment will include:

a) MBIE (as owner of procurement policy for the government) to continue the work they started under commitment 12 of the 2018-2020 NAP, and issue a consultation document to the public, agencies and suppliers for comment;

b) publication of the analysis of the submissions received in response to the consultation document;

c) public consultation on draft advice to Ministers;

d) providing advice to Ministers that may be revised in light of this second round of consultation;

e) Ministers making a decision by December 2021; and

f) if the decision is to commit to the Data Standard and Principles, co-design of the guidance and standards for implementation by MBIE and other agencies.

While the work on commitment 12 of the current NAP provides open data of recent contract award notices for procurement conducted using GETS, an increasing proportion of procurement is done away from GETS through other channels such as all-of-government panels of approved suppliers.

The desired outcomes for this commitment are:

a) Government adoption of the principles and data standard to apply across central government agencies (regardless of whether they are public service agencies or wider state sector) – which will require changes in systems and process;

b) increased competitiveness of government tendering and better value for public money;

c) cumulative gains in strengthening the integrity of public procurement (and thereby reducing opportunities for poor quality procurement and corruption) through adoption and implementation of an open data standard that will enable linking data with company ownership and directorships and other datasets.

This is going to require the following actions:

a) Provision of advice to Ministers on the benefits and implications of acceding to the Convention;

b) A Minister (probably the Minister for the Environment) proposing accession to Cabinet, and Cabinet agreeing to it;

c) Commissioning a National Interest Analysis (which will draw on (a) above);

d) Parliamentary consideration of the Convention (see here)

e) The relevant Minister writing to the Aarhus Convention secretariat at the UNECE in Geneva by February 2021 to signal New Zealand’s desire to accede.

If NZ accedes (signs up to) the Convention, it will have to ensure its domestic legislation meets the Convention standards. This will have the effect of putting in a ‘floor’ on each of the three pillars to safeguard these rights, meaning future governments would not, for example, be able to weaken people’s rights to participate in consideration of consents sought under the Resource Mangement Act, or be able to suspend an elected decision making body on environmental issues as we saw in Canterbury. It is also likely that in some places the Convention would not only safeguard minimum standards, but would raise the requirements for openness. Two examples: the Convention would not allow information about emissions into the environment (eg from a manufacturing or agricultural process) to be refused on grounds of commercial sensitivity if sought under the OIA; and it is likely we would see capped legal costs for groups wanting to bring challenges of government decisions on issues affecting the environment to the courts.

The bigger picture reasons for why we should press for inclusion of this commitment are climate change and biodiversity collapse. As these two closely related problems become ever more urgent to address, we may see governments seeking to act in a more authoritarian or dirigiste manner to adopt measures intended to address the problems we face. However, in a democracy, the legitimacy of these measures rests on public involvement in their creation and implementation. The Aarhus Convention helps cement public rights, which in turn will help ensure democratic legitimacy.

This is going to require actions such as:

a) Publication of the results of the Policy Project’s consultations on public engagement experiences, and its analyses of them;

b) Publication of a draft policy paper to Ministers on options for a mandatory all-of-government standard for consultation exercises, and inviting submissions on this draft policy paper;

c) Collation and publication of the submissions on the draft policy paper and providing the final draft of the policy paper to Ministers;

d) Approval by Ministers of a move to create mandatory standards for consultation exercises, and the resources to do the work and build a enhanced portal based on an open data standard;

e) Co-creation of the open data standard for the consultation listings portal, and public consultation on the final draft (if not iterative consultations as the draft standard is developed);

f) Co-creation of the consultation standard, and public consultation of the final draft;

g) Publication of the submissions received on the draft consultation standard, and of the analysis of the standards;

h) Provision of the final text to Ministers for approval and adoption; and

i) Funding of work to implement the standard and monitoring compliance with it.

§  not advertising the consultation to the public, because it’s more convenient for an agency to undertake ‘targeted consultation’ with cherry picked ‘stakeholders’

§  submission periods that are too short, thereby constraining the ability of people (including civil society groups and private sector organisations) to adequately consider the proposals, formulate a response, have the draft response considered by their organisation’s governance bodies

§  not making the consultation documents available in an accessible format – too often documents are in PDF only, which – besides the problems of this format for people with visual impairments – hinders copying and pasting text into submissions as quotations

§  no automatic publication of the submissions, let alone within a specified timeframe, such as two weeks following closure of the submission period

§  no automatic publication of officials’ analysis of the submissions – which is quite distinct from the options they propose to Ministers or other decision-makers

§  no central location online where people know they can be sure that all consultations being undertaken by all agencies are listed. The current portal on govt.nz does not list them all – not even the current process for developing this action plan.

The Policy Project, run out of the Department of Prime Minister and Cabinet, has been consulting on people’s experiences of government consultations. (Again this does not appear to have been listed on the central consultation portal – the irony is deep). It has also been leading commitment 5 in the 2018-2020 NAP, to ‘develop a deeper and more consistent understanding within the NZ public sector of what good engagement with the public means (right across the IAP2’s Public Participation Spectrum)’. It’s time this work resulted in something that the public can meaningfully hold agencies to account with regard to consultation exercises. The UK had similar standards 20 years ago, with, for example a minimum 12 week consultation period. See here.

To get the maximum benefit out of this, and to enable the creation of tools which enable people to set up customised alerts when consultations are issued on topics of interest to them, or by certain agencies in whose work they’re interested, the revised centralised portal should be built on an open data standard. This, for example should include geospatial metadata about the area the relevant consultation applies to: national, regional, local authority, ward level, district health board, and so on. This would enable the creation of interfaces which would let people navigate to find consultations via a map-based interface.

These efforts by departments have often failed to comply with the Cabinet Manual and Legislation Design Advisory Committee guidance to consult with the Ministry of Justice and Ombudsman before introducing legislation into Parliament that cuts out rights under the OIA.

Given these failures on both a practical and principled level, it’s time to elevate the requirements on agencies from following guidance to following the law, by making public consultation on proposed secrecy clauses mandatory prior to a Bill being introduced to Parliament. This is because experience also suggests that trying to get such secrecy clauses removed once a Bill is introduced to Parliament is a nigh-on impossible task. MPs simply do not prioritise their or the public’s right to know at this stage of the policy and legislative process.

Given the enactment of these secrecy clauses in the past, the commitment should also include a programme of work to review existing secrecy clauses on the statute book, publish the list of such that it compiles, alongside reasons for their repeal, amendment or retention after considering how the OIA applies to such information. Such a review was conducted by the UK government in the lead up to implementation of its Freedom of Information Act. Report here [PDF].

This includes links from each page about the Bill to (a) the Attorney-General’s advice on the Bill’s NZ Bill of Rights Act compliance, (b) the Regulatory Impact Statements on the Bill, (c) the Climate Impact Assessments where one is required.

It also should include a requirement that written submissions on Bills are published before oral submissions commence, and that committees publish in advance the dates and times and names of each oral submitter, so that people can make informed decisions about when they may want to attend the committee to listen to other submitters.

If Parliament is serious about wanting to solicit high-quality submissions to help it with scrutiny and analysis of legislation, it needs to do more to help people find the relevant information produced by officials as part of the process for developing and introducing the legislation.

Closely related to this, Select Commitees only publish bare dates and times for their hearing on Bills, see for example this Schedule of Meetings. Unlike their UK counterparts, no information is provided about which person or organisation is submitting at any session, which means that if an interested person wants to go and listen to the submission from someone else – say an expert in the relevant field – they have no way of finding out when this person will be appearing before the committee. It is entirely possible to do this, as the Committee secretariats arrange the dates and times of oral submissions in advance of the relevant sessions – it requires a change of practice, and possibly some additional resourcing.

The outcome would be higher quality submissions and higher levels of public engagement with select committee’s vital work of scrutinising Bills at this stage of the legislation’s progress through the House.

Facebook also has technological limitations in terms of being able to search for videos of specific submitters, or to watch submissions given at a particular time: if the videos are timestamped, it does not appear this is surfaced to people not signed in to the site. This means the site is all but useless in enabling people trying to find video recordings of specific submitters or specific questions from MPs.

Parliament should commit the resources to develop and implement its own video streaming and recording platform, built on open non-proprietary standards, and not tied to any web platform provider following completion of the contract it has tendered for development and implementation of the technology. There are pre-existing providers of such technology within New Zealand.

A decision by Parliament to commit the resources to producing and publishing Hansard of select committee’s public sessions would be an enormous benefit not only to those outside Parliament wishing to partcipate, but also to MPs, committee secretariats and government officials.