Ewen-Street Ian: Public Records Bill — First Reading 
Ewen-Street Ian: Public Records Bill — First Reading 
[Volume:620;Page:15779] 
IAN EWEN-STREET (Green) 
: 
 I am presenting this speech on behalf of my colleague Keith Locke who cannot be with us today. The Green Party will be supporting this bill. It establishes a more systematic approach to the keeping and disposal of public records even though it still gives too much leeway to Ministers to withhold documents from the archives. 
Laudably the bill strives to achieve collection in the archives of all appropriate public documents. The new body Archives New Zealand will be an independent Crown entity and there will be an advisory Archives Council. The Chief Archivist will be independent and not subject to ministerial direction. The Chief Archivist has the power to issue mandatory guidelines covering the retention and disposal of public records and may direct local government to preserve particular records. The Chief Archivist will also arrange for independent audits of record-keeping in Government offices. There will be more a independent systematic and transparent approach to archive collection. 
It is also good that the archives will be open to the public free of charge although public users may have to pay photocopying costs. Free access is important because we want to encourage historical research and the fact is that many of our amateur historians do not have much money. They are doing it for love not profit. Many of them are retired and are living on a pension but the product of their labours is often of great worth to the community. 
Researchers get very frustrated when key materials are not in the archives or they are shut out by restrictive access rules. This is not a new problem but wording in the new bill gives Ministers and heads of Government departments a lot of discretion in keeping material out of the public domain. It is good that there is a general provision in clause 21 for the mandatory transfer of public records after 25 years. However this provision is immediately qualified by clause 22 which gives Ministers after consultation with the archives Minister the power to defer the transfer of records for any period determined by the Minister and then gives the Minister the power to renew that deferral at any later time for any further period. The Minister can refuse to transfer documents that might prejudice security. In reality there is little that will prejudice security 25 years after the fact other than the identities of still-under-Government operatives. Twenty-five years ago the cold war was still raging and Muldoon was still in power. 
After 25 years Ministers may well prevent the release of material not for real security reasons but to protect their departments from public embarrassment. For example I have recently received under the Official Information Act and at the end of quite a few requests a memo dated 28 July 1975 from one Brian Lynch writing on behalf of the Secretary of Foreign Affairs. It reported on a meeting Mr Lynch had with the then Fretilin secretary-general and now East Timorese Foreign Minister Mr Jose Ramos Horta. In the memo the secretary admits without any qualms that he lied to Mr Horta. In paragraph 4 he writes that: “Despite the confidence we displayed to the contrary we are sure that the Indonesians have not in fact dismissed the possibility of achieving integration by force if they consider the situation requires it.” At the same time Mr Lynch said to Mr Horta that: “He was sure that at senior Indonesian Government level armed intervention had been ruled out.” That is 4 months out from the Indonesian invasion the New Zealand Government knew that it was on the cards yet lied about it to the East Timorese. According to the documents the content of the Lynch/Horta discussion was then passed on to the Indonesians. 
We are not just talking about a ministry being embarrassed for its dishonesty. Taken together with all the other East Timor documents released in recent years they show that the invasion of East Timor and all the agony that followed may have been avoided if the New Zealand and Australian Governments had stood up and been counted in 1975. Instead they collaborated with the Indonesian regime and covered it up. At the end they wanted to keep friendly relations with the Suharto Government even if it meant sacrificing the East Timorese people. 
That is where the bill is dangerous in another way in that one of the grounds for a Minister not transferring documents is that doing so might “prejudice international relations of the Government of New Zealand”. I argue that making public the documents on our disastrous past relations with the Indonesian dictatorship actually improves our relationship with the modern democratic forces in that country. Bureaucrats in the Ministry of Foreign Affairs and Trade may have the opposite view and the Minister may well act on their advice. 
Whatever the outcome of that argument the Minister can fall back on the third reason in the bill for refusing transfer of documents which is that the transfer might “prejudice the entrusting of information” to New Zealand by a foreign Government. To continue with my Indonesia illustration it may well be argued that we cannot release the East Timor documents because there are letters and cables in them that the Indonesian Government wants to keep secret. At first sight any undue restrictions might be countered by the Chief Archivist’s right under the bill to inspect records held by a department. However the Chief Archivist’s access to any classified or restricted material can be vetoed by the head of the relevant department. 
To give members an idea of the outrageous restrictions that can be imposed let us look at the Security Intelligence Service which says that information on SIS staff cannot be released until 100 years after their deaths. Technical information on SIS operations also has a 100-year time limit and subject files a 50-year limit. It is precisely the most embarrassing and controversial parts of our history that we can learn the most from. An error understood is an error not repeated. How can we really learn from what the SIS may have done wrong if we have to wait 50 or 100 years by which time all the people who could enlighten us are well in their graves? 
We need procedures to stop unnecessary delays in transferring material to the archives. The Australian Law Reform Commission for example has proposed independent review bodies to stop material staying classified well beyond the normal archives deadline. It says that those reviews should continue at 5-year intervals. The commission has hit the nail on the head when it says that: “Information must not be classified for extraneous reasons—for example to conceal breaches of the law inefficiency or administrative error; to prevent embarrassment to a person organisation or agency.” 
One might argue that we have the Official Information Act process with recourse to the Ombudsman which applies to most information still held by Government departments and that is a useful fallback. But for historians that is always of limited use because it is often hard to know exactly what to ask for in documents one has never seen and departmental officials are used to playing sophisticated games with the inquirer. In any case someone writing an interesting history is looking for the unexpected; something that he or she did not know about and would not think to ask for. 
Open archives are much more valuable for such research. There is one reason why we do not want many outs for the Ministers and top bureaucrats in the Public Records Bill. Hopefully we will see several contributions from researchers historians and lawyers in the select committee process to address any of the bill’s weaknesses in that respect.