First judicial review for the Minister of Transport

In September, Eloise Gibson reported for RNZ that the Minister of Transport, Simeon Brown, fast-tracked changes to tailpipe emissions standards to meet a car industry deadline. Now, legal questions are being asked about the process that led to those decisions.

As reported on Monday, again by Eloise Gibson for RNZ, the minister is being taken to court by an electric-car advocacy initiative  over the engagement that resulted in weakening the pre-existing standards:

The Better New Zealand Trust said it was unreasonable of Brown to direct his transport officials to consult only four motoring groups – all of which were against the standards – before making a decision.

The trust said if EV suppliers had been consulted, they would have countered claims from the rest of the industry that there were not enough low-emissions vehicles available to meet the standards.

An electric car lobby group is taking Transport Minister Simeon Brown to court over his decision to lower tailpipe CO2 emissions standards for car imports.

The Better New Zealand Trust said it was unreasonable of Brown to direct his transport officials to consult only four motoring groups – all of which were against the standards – before making a decision.

The trust said if EV suppliers had been consulted, they would have countered claims from the rest of the industry that there were not enough low-emissions vehicles available to meet the standards.

The trust said Brown should have asked for advice on whether New Zealand would still meet its emissions targets for the transport sector with the weaker tailpipe standards, after Ministry for the Environment officials raised concerns that the country’s already tight carbon budgets would be “materially” harder to meet.

It claimed he acted contrary to the purpose of Part 13 (Clean vehicle standard) of the Land Transport Act, which is “to achieve a rapid reduction in carbon dioxide emissions from light vehicles imported into New Zealand, to assist New Zealand in meeting its 2050 target and emissions budgets”.

That reminds us of something

And it’s somewhat related to yesterday’s post on who benefits from official secrecy.

When it came to the Setting of Speed Limits rule, the Minister also favoured early engagement with an even more select group of stakeholders.

This came to light via an OIA, after the Ministry of Transport (MoT) proactively released a batch of documents in late January covering official advice to the Minister on revising speed rule. Those documents contained quite a few redactions, and these were queried by an OIA request.

So, on 24 April 2024, MoT released an updated version of the documents – making visible three short paragraphs originally withheld under section 9(2)(f)(iv) of the Official Information Act – “to maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials.”

The three paragraphs describe how the Ministry plans to “work closely with key stakeholders, namely the Automobile Association and Transporting New Zealand” (the latter is a trucking lobby group), to “ensure road user and community views are represented in the rule changes.”

Note: other page-length redactions are still hidden from public view. Also, although this came to light before the public consultation, as far as we know, it wasn’t widely noted or picked up by the media in coverage of the consultation. (Correct us if we’re wrong.)

Those three paragraphs – and the initial decision to withhold them for “confidentiality” reasons – raise questions, like:

• Do the Automobile Association and Transporting New Zealand represent the views of all “road users”? If not, why were those other road users not engaged with?
• Do the Automobile Association and Transporting New Zealand represent a sufficient range of “road user and community views”? If not, why were further community views not sought?
• What other groups might a Minister responsible seek early engagement with, to ensure their views are “being considered” in changes to speed-setting rules that include compulsory roll-back of evidence-based safer speeds?
  (We’d suggest: groups representing public transport passengers and employees, and active transport including walking and cycling; groups representing disabled people, aged citizens, children, horse-riders; emergency response workers; trauma surgeons; the tourism lobby – who else?)
• And is this limited engagement “unreasonable” – if so, would it benefit from a judicial review?

These questions sit alongside lots of other questions, e.g. advice sought or received by the minister on the safety and economic impacts of his proposed speed changes, and where he stands on the evidence. These questions are being asked in the House; by journalists; and by citizens via OIA  (see a list at the end of this post).

What went into the Speed Rule Soup?

Meanwhile, on Friday the MoT released another tranche of documents, including:

• A report from the Minister of Transport’s office to the Chair of the Cabinet Economic Policy Committee, titled UPDATE ON OUR 100-DAY COMMITMENT TO STOP BLANKET SPEED LIMIT REDUCTIONS AND DEVELOP A NEW RULE FOR SETTING SPEED LIMITS
• The September 17 Cabinet Minute of Decision on the Setting of Speed Limits Rule
• The final version of the Regulatory Impact Statement on the Setting of Speed Limits (worth a close look)
• And the long-awaited Summary of submissions: Draft Land Transport Rule: Setting of Speed Limits 2024

The consultation summary notes there were 8,180 total submissions, totalling 7/997 from individuals, 138 from groups, and 45 from road-controlling authorities (RCAs).

As we’ve covered here before, that’s a striking level of engagement, given the supposedly “controversial” speed rule it seeks to overturn received a pretty low-key 325 submissions in 2022.

What gives?

One thing that really stands out in this consultation is:

Overall, each proposal received broad support. When broken down into submitter groups, most
individuals supported the proposals. For each proposal except proposal 2 (strengthen consultation requirements), most groups and RCAs did not support the proposal.

In other words: dozens of local authorities, road safety organisations, and other groups – schools, communities, health professionals, trauma surgeons – were almost unanimously opposed to the changes, as was the former science advisor to the Ministry of Transport. Whereas, submissions from individuals were more starkly divided: in most cases only a slight majority supported the changes, and some of those individual voices were “difficult to code” on account of being nuanced.

This divide is seen most starkly in Proposal 7 (reversing safe speeds), which as predicted became Ground Zero for a ridiculous culture war, as shown by:

• the highest number of comments overall: 6802, with 6,621 of those from individuals.
• the highest proportion of support from individuals – 4376 people (66%) wrote in support of overturning safe speeds (420 of whom wanted them overturned even faster) – while 2022 individuals did not support the proposal
• and the highest degree of opposition from groups (72% opposed) and road-controlling authorities (83% opposed)

No surprises here. Those who understand the evidence and have experience dealing with the harm on our roads do not want to see existing safe speed limits undone.

Meanwhile, a few thousand frustrated drivers (and this is not us editorialising, that’s how the feedback summary describes them) “believe” that being frustrated makes them less safe on the road, and so speeds should go up.

The Minister chose reckons over research, and clamour over calm consideration of the evidence. He favoured the frustrations of those behind the wheel, rather than those on the front line.

So what now? Is a judicial review in the works for this decision as well?

In the meantime, an interesting OIA might ask: what was the balance of support and opposition from individuals before – and then after – the Minister took the unprecedented step of emailing his supporters and imploring them to submit?

Other questions awaiting answers: the OIAs on the table

1) On the cost-benefit analysis behind the speed rule changes (refused)

Several people have requested the cost-benefit analysis referred to by the Minister in a RNZ interview on 8 July 2024. They include this request and this one, both sent on 8 July. Both were answered on 5 August, with the MoT refusing to provide the mentioned cost-benefit analysis, on the grounds it’s already out there:

The Ministry of Transport (the Ministry) considered the costs and benefits of the draft Setting of Speed Limits Rule 2024 (the draft Rule) as part of its work on the interim Regulatory Impact Statement (RIS). The RIS considered the safety impacts of the rule, namely the expected impact on deaths, serious and minor injuries. However, as the RIS notes, these impacts cannot be quantified due to a range of factors.

As the RIS has been published on the Ministry’s website, I am refusing your request under Section 18(d) of the Act – the information is publicly available on the Ministry’s website: [link]

A question for our readers: does “we tried but we couldn’t work it out” count as a cost-benefit analysis?

2) On the cost-benefit analysis, safety analysis, and process involved in drafting the speed rule changes

An ongoing query (since 11 July 2024!) repeats the request for the cost-benefit analysis – plus any safety analysis, plus the process of drafting the new rule.

On 6 September, MoT responded as above, pointing to the Regulatory Impact Statement [RIS], and refusing to release information about the drafting process on these grounds: “9(2)(f)(iv) to maintain the constitutional conventions for the time being which protect the confidentiality of advice tendered by Ministers of the Crown and officials.”

On 11 October, the correspondent reiterates their original request, asking for the “the analyses used to support the statements made in the RIS, not the statements themselves.” They also note that now the speed rule has been signed off, it’s in the public interest to see the process by which it was arrived at.

This request remains wide open.

3) On safety stats on roads with reduced speeds that now stand to be raised again

This open query from 28 September 2024 asks the MoT for any work done, or any data recorded, on deaths and serious injuries on roads “which had speed reductions (50-30km/h,100-80km/h) which the Transport Minister is seeking to reverse.”

4) On the use of AI to analyse public feedback on the Setting of Speed Limits Rule

This query on 22 July 2024 from the New Zealand Council of Civil Liberties asked the MoT about this reference: “We may use an artificial intelligence tool to help us analyse submissions”, and in particular the commitment to keeping people’s personal information private.

A detailed response on 19 August 2024 explained this was a “limited pilot to test the ability of GenAI to support the analysis of public submissions.”

Interestingly, the MoT also used GPS feedback as part of its pilot:

The Ministry’s pilot is assessing the ability of AI to support the assessment of public submissions for the ‘Speed Rule’ and retrospectively (after submissions were assessed and reported on) for the 2024 Government Policy Statement (GPS) on land transport as part of the testing process. Given the GPS submissions had already been reviewed at the time of the pilot, the pilot had no effect on the outcome of the review of submissions.

So… if the GPS submissions have been reviewed, where’s the public-facing summary of public feedback? (Internal summaries of public feedback on the GPS can be seen here).

5) On consultation feedback on the [previous government’s] draft Government Policy Statement (GPS)

Looking back, a request from 28 July 2024 asked for the report on feedback from the September 2023 public consultation on the Labour Government’s GPS – Land Transport.

And, in the event such a report didn’t exist, “a summary of the consultation feedback [and] any documents referencing how the consultation was used to finalise the GPS, including minutes of meetings.”

After an extension of the original 20 working days, the Ministry of Transport replied on 28 August with these documents, with a few redactions “to protect the privacy of natural persons.”

One thing of note: Labour’s draft GPS received 80 online submissions, and 271 via email, for a total of 431. Compare that to the 2038 submissions received on this year’s GPS, the one that drew widespread concern from expert advisors.

6) On who’s advising the Minister on transport matters in general

A query about the existence and scope of any “transport expert advisory group”.  The response says the Minister established a Transport Revenue Expert Advisory Group consisting of Scott Wilson and Barney Irvine, to offer advice on things like distance-based charging, time-of-use charging, tolls and alternative funding tools, such as value capture. It ran from 8 May to 9 July 2024, these were its terms of reference, and this was a report it produced.

In his OIA response dated 4 September 2024, the Minister says “It will be replaced by a stakeholder reference group to bring together expertise from across the transport sector, ensuring industry views help to shape the policy development process.” [Emphasis added]

And for those interested in the ferry question, the reply also notes: “One other group which I did not set up but which I sponsor, is the iREX Ministerial Advisory Group. Information about this group is publicly available on the Beehive website. The terms of reference can be found here and information about the membership of the group can be found here.”

Do you know of any other requests for public information we should be keeping tabs on? Let us know in the comments below.

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