David Harvey
There is a peculiar softness in the language we use when government breaks the law. A private citizen who takes what is not theirs is a thief. A company that ignores its contractual obligations is in breach and can expect to be sued.
But when a government department does the same thing, the vocabulary shifts. The conduct becomes “inappropriate”. It “appears to be contrary to law”. It reflects “systemic practice” that requires “strengthened compliance”.
Two recent examples – one now the subject of a formal Ombudsman’s opinion; the other a quiet, everyday occurrence in courthouses around the country – show how this linguistic cushioning allows unlawful behaviour by the state to be treated as something less than what it is.
The NBR affair
The first example arrived with the Chief Ombudsman’s opinion on the Ministry of Business, Innovation and Employment’s treatment of the National Business Review’s paywalled journalism.
The facts, as reported by both The Post and The New Zealand Herald’s Media Insider, are not seriously in dispute. NBR, using the Official Information Act, uncovered what it describes as widespread breaches of its subscription terms across 11 government departments dating back to 2020.
Collectively, the departments admitted that at least 230 articles had been shared with thousands of staff.
MBIE alone acknowledged sharing at least 149 articles; Inland Revenue at least 43; Internal Affairs at least 23; the Serious Fraud Office at least 15. MBIE confirmed that people outside its small pool of paid licences had access to NBR content over a period stretching from August 2021 to late 2025, with staff able to request paywalled articles from the ministry’s library team.
Chief Ombudsman John Allen’s final opinion found that MBIE’s practice was unreasonable and, in his words, “appears to be contrary to law”.
He concluded that the sharing was plainly not how subscriptions were intended to be used, that it breached NBR’s terms and conditions, and that the scale of it pointed to a systemic practice that harmed the publication’s commercial position.
He recommended that MBIE apologise, report to NBR on the full extent of the sharing, monitor its own conduct in future, and engage with NBR on a remedy. He wrote to the responsible minister, Nicola Willis, and to the Public Service Commissioner.
It is worth pausing on what this conduct actually involves, stripped of the administrative vocabulary. A subscription to NBR is a contract. Its terms prohibit sharing. Every article copied and circulated beyond the licensed user is a breach of that contract.
Every reproduction of the article itself engages the Copyright Act 1994, because copying a literary work without licence is an infringement – and copyright, as NBR’s owner Todd Scott has pointed out, is not optional and applies equally to everyone.
And there is at least an argument that goes further still: s 228 of the Crimes Act 1961 makes it an offence to dishonestly and without claim of right use a document with intent to obtain any advantage or pecuniary gain.
Where an organisation knowingly circulates paywalled material to avoid paying for the subscriptions it needs, the advantage obtained – hundreds of subscriptions’ worth of journalism for the price of a handful – is not hard to identify.
Whether any prosecution would ever be brought is a separate question. The point is that the conduct sits on a spectrum that begins at breach of contract and extends, arguably, into the criminal law. It does not sit in some special administrative category called “inappropriate”.
The departments’ own responses illustrate the problem. MBIE’s statement acknowledged the Ombudsman’s opinion and listed remedial steps: more licences, updated internal guidance, better subscription management.
These are sensible measures, but they are framed as improvements to “compliance”, as though the ministry had fallen short of a best-practice guideline rather than helped itself, over years, to a small publisher’s property.
Nineteen private entities caught doing the same thing have already settled with NBR, paying more than $200,000 in damages and costs.
They did not settle because their conduct was inappropriate. They settled because it was unlawful and they were liable.
The courthouse counter
The second example involves no Ombudsman, no press release and no admission – which is precisely why it matters. It concerns access to court documents in criminal proceedings.
The rules here are not obscure. The Senior Courts (Access to Court Documents) Rules 2017 and the District Court (Access to Court Documents) Rules 2017 set out, with some care, a graduated scheme.
Certain documents – the formal court record, including things such as judgments, orders and the charging document once a case has been disposed of, along with a wider class of documents during the substantive hearing stage – may be accessed by any member of the public as of right.
No application to a judge is required. No reasons need be given. The rules deliberately distinguish between this category and other documents, for which a request must be made and for which a judge or registrar exercises a discretion, weighing open justice against privacy and the administration of justice.
That is the law. The practice, as anyone who has stood at a court registry counter asking for a document can attest, is frequently different.
Registry staff routinely respond to requests for documents that the rules make available as of right by insisting that nothing can be released without a judge’s authorisation.
Sometimes this is presented as policy; sometimes simply as “how it’s done”. The effect is that a legal entitlement conferred by rules made under statute is converted, at the counter, into a privilege dispensed at official discretion.
This is not a trivial administrative wrinkle. The access rules exist to give effect to the principle of open justice – the idea that the public is entitled to see what is done in the public’s courts.
When a registry imposes a judicial-authorisation requirement that the rules do not contain, it is not being cautious; it is substituting its own preferred rule for the one Parliament’s delegated rule-making process actually produced.
A member of the public turned away in these circumstances has been denied a legal right and the denial is itself contrary to law. That the official doing the denying is polite, well-meaning and following an internal habit rather than a statute does not change the analysis.
Government departments and court registries do not have the power to make their own rules; they have the duty to apply the rules that exist.
The common thread
Put the two examples side by side and the pattern is clear.
In the NBR case, government agencies treated a private publisher’s legal rights – contractual and proprietary – as flexible, something that could yield to internal convenience until an external watchdog said otherwise.
In the courthouse case, officials treat the public’s legal rights of access the same way, as defaults that can be overridden by local practice.
In both cases, the conduct is unlawful in the ordinary sense of that word: it is conduct the law does not permit. Yet in both cases the institutional instinct is to describe it in softer terms – a compliance gap, a practice to be reviewed, a matter for guidance and training.
The Ombudsman’s opinion in the MBIE matter is genuinely significant and NBR is entitled to regard it as a vindication. But even that opinion, careful and firm as it is, speaks the dialect of administrative review: “unreasonable”, “inappropriate”, “appears to be contrary to law”.
The hedging is understandable – an ombudsman is not a court and findings of illegality are ultimately for judges – but the cumulative effect of such language, repeated across every episode of official wrongdoing, is corrosive. It teaches the public service that the worst consequence of breaking the law is a recommendation to apologise.
The rule of law does not have a public-sector exemption.
If a government department shares paywalled content in breach of contract and copyright, it has acted unlawfully, with all the exposure to civil remedy – and conceivably more – that would attach to anyone else.
If a court registry refuses to release a document the rules say the public may have, it has acted unlawfully, however routine the refusal has become. Calling such conduct “inappropriate” is not neutrality; it is a category error and one that only ever runs in the state’s favour.
Unlawful behaviour is just that: unlawful. The sooner official language catches up with that plain fact, the sooner official behaviour might follow.
David Harvey
David Harvey is a retired District Court Judge and a member of The Law Association’s Public & Administrative Law Committee
The Ombudsman also is bound by law. David Harvey would do well to take a look at s 22 of the Ombudsmen Act 1975, which sets out the findings open to the Ombudsman. The language to which Mr Harvey objects is the language of that section.
As Mr Harvey himself says: “an ombudsman is not a court and findings of illegality are ultimately for judges”. The NBR could obtain a finding of breach of contract or possibly a criminal conviction by going to court or laying a criminal complaint. If it chooses instead to complain to the Ombudsman, it will obtain Ombudsman findings and remedies.
The Ombudsman is designed to be an informal and accessible avenue of grievance resolution, primarily for citizens without the resources (financial and otherwise) to access the courts. The ‘softer’ findings and remedies available to this office correspond to its informal procedures.
Hanna Wilberg, Associate Professor of Law
It seems to me that Ms Wilberg is incorrect to downplay the Ombudsman’s role as “informal procedures”. Wrongdoing by government actors would commonly not be identified but for those “informal procedures”.
Those procedures are vital to transparency, accountability, and democracy itself. Government actors are not particularly good at admitting when they are wrong until caught red-handed or compelled by official and personal information laws, backed by the “informal procedures” referred.
It seems equally wrong to describe the language referred to by Mr Harvey as mere “findings open to the Ombudsman”, in a way that suggests the Ombudsman is limited to the s 22(1) descriptors “unreasonable”, “inappropriate”, and “appears contrary to law”.
Those so-called findings are the types of “opinion” that trigger the requirement in s 22(3) to report the case to appropriate actors, which could include the NZ Police.
In doing so, the Ombudsman “shall report his opinion, and his reasons therefor”.
The opinion that something “appears contrary to law” is not a reason to hold that opinion. A reason could include that there appears to be a breach of contract because stated actions are contrary to specified contractual terms, or there appears to be unlawful criminal conduct because stated actions are contrary to specified criminal provisions.
Giving such reasons is not optional and should not be downplayed or minimised in a way that protects government actors.
How something “appears to be contrary to law” is important, if the rule of law is to have real meaning. There is a big difference between an apparent inadvertent breach of contract and apparent criminal dishonest use, which the public may consider to be a form of theft by government actors.
The appropriateness of full reasons becoming public is a different point, at least perhaps until other actors perform their duties.