Vaccine passports were announced on October 5. Composite image / File
The Office of the Ombudsman has backpedalled on a decision to drop an investigation into whether the Government wrongly sat on significant Covid-19 information about vaccine passes.
And the minister who was the focus of the complaint - Chris Hipkins - has expressed regret over the way the vaccine pass law was introduced but says the "extraordinary circumstances" of the pandemic meant it had to be done at speed.
Thomas Beagle of the New Zealand Council for Civil Liberties had complained to the Office of the Ombudsman because he believed Hipkins hadn't provided the public necessary information about the vaccine pass plan before it become law.
On Monday the Office of the Ombudsman told Beagle its inquiry was off simply because Hipkins had changed jobs in the reshuffle. On Wednesday, Beagle was told it was back on.
At this stage, the reason given for dropping the inquiry is at odds with the Ombudsman's official position.
The drama began with an Official Information Act (OIA) request from Beagle in early October to Hipkins who was then Minister for Covid-19 Response. Beagle told the Herald the pandemic had an impact on people's civil liberties, with "draconian measures" imposed.
Beagle said the council's role throughout was to push for evidence and seek reasons as to why rights should be curtailed.
Largely, he said, the Government had done a good job of making a case and producing evidence to support it. The council had held it to account throughout by reading the evidence and getting its perspective to the public and decision-makers.
Then, on October 5, the Prime Minister announced that vaccine passes would be introduced.
Beagle wrote to Hipkins and the Prime Minister four days later speaking of "deep concern about the way in which the Government is proceeding to introduce vaccination certificates, and to seek information from you about the proposals that must be shared with the public".
Beagle told the Herald the intent was to gain access through the OIA to the advice Ardern and Hipkins received to find out if it was a step justified by the evidence.
Ardern batted the letter to Hipkins whose office appeared to miss that it was an OIA request, legally requiring a response inside 20 working days.
When a response did come - after Beagle complained - it was November 22 and included an apology for an "administrative error" which led to it being overlooked. It also said he couldn't have what he had asked for because, in line with the law, it was to be released publicly in January anyway.
That's when Beagle complained to the Ombudsman. In his view, the information underpinning the vaccine pass decision needed to be made public as soon as possible. He considered the proactive release planned by the Government as too far ahead.
Even when much of the information was released on December 10, Beagle maintained that there was a principle at stake. The OIA law allowed for "urgent" requests to be expedited and the council had asked for urgency in the case of its request around the vaccine passes.
Instead of urgency, it got ignored for a while and then kicked to touch. In its complaint to the Ombudsman, it said: "The fact that the minister is also responsible for the country's membership of the Open Government Partnership only rubs salt into this wound to our democracy."
The next six months of correspondence with the Office of the Ombudsman show the typical slow progress of a complaint through the system. In one email the senior investigator asks Beagle whether he wants to continue with the complaint. In another he asks to be told, "what outcome you are seeking".
For Beagle, it was an obvious point of principle. Back in October, the country was about to become subject to vaccine passes without seeing the evidence that underpinned Cabinet's position.
Then Ardern moved Hipkins out of his Covid-19 role and a new email from the Office of the Ombudsman landed.
Beagle was told: "The Ombudsman cannot investigate an OIA decision [or delay or failure to make a proper decision] of a Minister who no longer holds the relevant ministerial portfolio."
"Unfortunately, that means that this Office is unable to take any further action regarding your concerns about a delay in this case, and our preliminary inquiries have been discontinued."
That's when Beagle took to Twitter. It led to another example being tweeted by barrister Graeme Edgeler in which the Free Speech Coalition - a right-leaning ginger group - was told: "When there is a change in Minister, the Ombudsman cannot continue with an investigation into the earlier Minister's decision."
Not so, said a spokeswoman for the Chief Ombudsman. While not speaking about the specific case, she said a reshuffle leads to consultation with the new Minister before deciding on the next steps.
She said it was done because it was "not uncommon" for a new Minister to come to a different view and release information previously withheld.
"Senior Ombudsman staff are reviewing complaints against Ministers closed as a result of the recent reshuffle, of which there are three. In reality, the closure of complaints due to a ministerial portfolio reshuffle are rare."
In this case, the closure of Beagle's complaint was rolled back with an email from an Assistant Ombudsman who was "reviewing" the previous response.
Hipkins said he took concerns such as Beagle's seriously. "This is not the way you would prefer to introduce legislation of this nature but the pandemic created extraordinary circumstances which could not be ignored."
He said vaccine passes were always intended to be temporary and last just four months when public health advice found they were no longer needed.
"I strive to be open and transparent and this includes my approach to legislation. While there's still more work to do, I am committed to making further progress in this space."
Edgeler said the Ombudsman's approach pointed to a deeper problem in how complaints were handled when ministers changed roles or left Parliament.
He said the focus of requests was the role the person inhabited and not the actual person. Edgeler said lawsuits against ministers of the Crown continued regardless of who inhabited the role.
"I don't know why the Ombudsman thinks it's different. If the Ombudsman's approach was applied to other parts of government, it would break."
Edgeler said the Constitution Act was clear that a minister remained a minister regardless of what portfolio he or she held so there was no reason Hipkins could not still deal with the complaint.
Former Ombudsman Leo Donnelly said the change in minister did not end an investigation but it was a "pragmatic" approach to ask the new minister for his or her view on refused requests.
He said the new minister might have a different view and take a different approach. It was a step taken through developed practice, he said, rather than law.
"The new minister is not bound by the approach taken by the previous minister."
Donnelly said the language used - "Ombudsman cannot investigate" - was "taking it too far".
AUT University's head of journalism Dr Greg Treadwell, whose doctorate was on the OIA, said the law worked when the spirit of the law was embraced.
"Unfortunately, our right-to-information system has been degraded by regular misuse of the law over decades now and we have a situation where officials, as in this example, seem uninterested in the spirit of the law or its essential role in our democracy.
"It should not matter that the decision-maker – minister or minion – has moved on. That would effectively and unjustly remove an applicant's right to appeal. Absurd. The details of and the reasoning behind the decision should still be available for review if the minister has gone to the dark side of the moon."
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