The Crown Law Office faced questions in the High Court at Wellington from a judge keen to understand why Trade Minister Tim Groser dismissed an Official Information Act request for the confidential texts of Trans Pacific Partnership trade and investment pact negotiations, without closely investigating the documents.
Justice David Collins quizzed deputy solicitor-general Virginia Hardy, appearing for Groser in a claim for a declaratory judgment on the reach of the OIA led by TPP opponent and University of Auckland law professor Jane Kelsey, and a coalition of seven non-government organisations, iwi and consumer advocates.
Counsel for Kelsey, Matthew Palmer, QC, argued in yesterday morning's hearings that it was "dangerous" to allow a "sweeping international agreement" to negotiate the TPP confidentially to over-ride the provisions of the OIA.
"The sweeping nature of the international agreement is at odds with the OIA, which requires precise judgment. This agreement shouldn't be able to reverse that," said Palmer, describing that approach as "more of an Official Secrets Act mind-set" than one consistent with the OIA's requirement that all information that can practically be released should be.
"We want a declaration on how New Zealand domestic law treats that agreement," said Palmer.
Hardy, for Groser, said Kelsey's OIA application in January was made urgently, leading the minister to decide swiftly, backed by official advice, to declare the task of sifting perhaps 30,000 documents for deletions too large to meet an urgent request, while accepting there would be many instances of information that was either in the public domain or "anodyne" - such as the location and timing of TPP meetings - and could be released.
Justice Collins asked why Groser had not conveyed that the timetable was unreasonable.
"Why couldn't they have sought to limit the scope [while saying] by the way, we might consider charging you for our efforts?" the judge asked. "I understand what you are saying. The appropriateness of that response depends on whether a broader approach complied with the act."
"The minister adopted a sensible approach based on the subject matter [and] his knowledge of the documents," said Hardy.
"The question is whether the minister's approach of considering the documents listed by the applicant [including his own] depth of understanding and that of his officials, the intimate knowledge of the negotiating environment in which TPP occurs, and explaining that to the Chief Ombudsman and providing documents" followed an unlawful process, Hardy said.
Chief Ombudsman Beverley Wakem investigated Kelsey's claim on the way to yesterday's court hearing for a declaratory judgment, and agreed with the decision to withhold all documents from Kelsey, while noting that some of the material would not have offended the confidentiality provision.
The claim taken by Consumer NZ, Ngati Kahungunu, Greenpeace, Oxfam, the Association of Salaried Medical Specialists, New Zealand Nurses Organisation and the Tertiary Education Union along with Kelsey coincides with a meeting of TPP countries' trade ministers in Atlanta, Georgia, where it is possible a final agreement could be hammered out.
United States reports suggest the US is pushing Canada to open its dairy market to competition, signalling progress on one of the last issues to be negotiated among the 12 nations of the Asia-Pacific.
Groser said last week there would not be a "gold-plated deal" on dairy, but a deal had to emerge or New Zealand could not sign. Groser is in the US for climate change talks and had not decided last week whether to attend the Georgia meeting, unless there was a dairy deal to discuss.
Justice Collins asked Palmer to reflect on his recent decision "about the extent to which courts should give direction", which Hardy later cited as saying that "to make a declaration, the statement must be fact-specific, efficacious and capable of practical application".
"The crux of the argument is that the information that could properly be released and was unlawfully withheld is the anodyne, publicly available material."
Palmer said the New Zealand Government should not be "contracting out" its legal obligations under the OIA by making it subservient to the requirements of a confidentiality agreement among the 12 TPP nations.
The hearing is expected to conclude today and Justice Collins said he would "do my best to get it [a judgment] out as quickly as I can".
• A TPP opponents' lawyer argues it is dangerous to allow a sweeping international agreement to negotiate the TPP confidentially to over-ride the provisions of the Official Information Act.
• Trade Minister Tim Groser's lawyer said the OIA application was made urgently, leading the minister to decide swiftly, backed by official advice, to declare the task of sifting perhaps 30,000 documents for deletions too large to meet an urgent request.