It was a mild, cloudy morning in May 1974 when Oliver Sutherland and his wife, Ulla Sköld, were confronted, on their doorstep, by one of the country’s top cops.
The couple were key members of the group Auckland Committee on Racism and Discrimination (Acord), which had been pushing the government to adopt a duty solicitor scheme. The official door-knock at their Grey Lynn villa – led by Christchurch-based Detective Superintendent Brian Wilkinson, who’d been pulled off a murder case and sent north – related to a leaked Cabinet memo proposing just such a scheme.
“I was pretty freaked out,” Sutherland says from his Nelson home. “I don’t recall us really delving into the Official Secrets Act and the provisions that could be used against us, and that all suddenly appeared with terrible reality at nine o’clock on that Saturday morning.”
The Official Secrets Act became law in 1951, and was based on a British Statute of 1911. “There is no doubt at all that the Official Secrets Act, which was based on an ancient English law, had to be dealt to,” says former Prime Minister Sir Geoffrey Palmer, a constitutional law expert.
The Act had only been used once, in 1952, and lay dormant until that fateful day in May 1974, Sutherland wrote in his book Justice and Race – “when the Labour government used it against Ulla and me to search our house and to interrogate us”.
Months later, the Act was invoked again, this time in the arrest of veteran public servant Bill Sutch, in a high-profile spy case. (He was acquitted, following a trial, the following year.)
Every public servant, including Sutherland, an entomologist for the Department of Science and Industrial Research, signed a document, when first appointed, to say they’d abide by the Official Secrets Act. It was one of the least-known pieces of legislation but conferred broad powers for the state to search, arrest and interrogate.
The Act’s use twice within four months was followed by, four years later, the formation of the Danks Committee (named after its chair, Sir Alan) to review the law. The committee reported back, unequivocally, in December 1980, and, two years later, the Official Information Act came into force.
Sutherland: “It’s hard to overlook the proximity and say that there was not some effect of what happened to us in terms of the establishment of Danks, and ultimately the complete reversal of the approach to official information.”
Success has many fathers, Palmer says, a nod to the Official Secrets Act’s use twice in 1974 by Attorney General Dr Martyn Finlay. “That was one factor in it.”
Not that the country should be lulled into some utopian ideal. “The trouble is, the Official Information Act is in dire need of repair,” Palmer says. “It’s used as an obstacle to getting information.”
Back to that Grey Lynn door-knock in 1974.
After a leaked copy of the Cabinet memo arrived in Sutherland’s letterbox, he wrote an audacious letter to Finlay, saying Acord could make the recommendations public if modifications weren’t made. The Attorney-General hit the roof, saying if the paper wasn’t returned he’d refer the matter to police.
Newsroom asked Sutherland if such tactics were naïve. The first sound, in response, is Sköld’s laughter.
“It was terribly naïve,” Sutherland admits. “It was along the lines of the usual Acord approach to things, which was to be stroppy first, and to think about it second.”
They had the foresight enough – with the help of their lawyer David Lange, who went on to become Prime Minister – to put the Cabinet memo in a bank deposit box the day before. What was still in the villa, however, was – they can’t quite remember – a covering letter or envelope, in their document room.
Sköld picks up the story. “I’d obviously seen it the previous day or a couple of days before, so I knew where it was.” She made her excuses, grabbed the incriminating document – which might have identified the leaker – and dashed to the outdoor toilet.
“I tore it into small pieces, and I flushed it down the lavatory.” She asked their neighbour for a cigarette – which she used to “lay a trail of smoke”. (Sutherland expressed surprise at this, as he thought she’d burned the document.)
It didn’t end there, however. On Monday, police picked them up and whisked the couple to the central Auckland station for an interview. The search had been front-page news, so the car entered via a garage to avoid protesters.
Lange was already there. “It seemed a bit Kafka-esque,” Sutherland says. “The whole situation on the 10th floor was about as intimidating as it could be, even if they didn’t stand over me with a baton.”
The same day, Roger Steele, editor of the Victoria University Students’ Association paper Salient sent a telegram to Prime Minister Norman Kirk and ministers: “STRONGLY OBJECT TO THE POLICE STATE TACTICS OF RAID ON DR SUTHERLAND’S HOME. FAILING SUITABLE PUBLIC EXPLANATION WE MUST CONCLUDE THAT ACTION WAS VINDICTIVE REPRISAL FOR SUBMISSIONS CRITICISING PROPOSED LEGISLATION.”
A copy of the resulting article, including Finlay’s response, appeared in Sutherland’s Security Intelligence Service file, released to him in 2008.
Under the Official Secrets Act, it was an offence to knowingly give false information, or fail to comply with requirements from officials, such as returning official documents. The mere fact of possession was problematic.
“That’s when we really started to feel pretty worried,” Sutherland said of the 10th floor interrogation. Sköld, who’s from Sweden, wasn’t a citizen at the time. “David Lange reckoned that Ulla could have been deported.”
Lange looked at the legislation, and told the couple they couldn’t refuse to answer questions, and had to answer truthfully. Offenders faced up to seven years in prison.
If Sutherland didn’t feel panic in the interview, he certainly felt extremely nervous and apprehensive. “When they threatened to use the Act against David as well, then I realised we were in very different territory from the usual court case.”
The most straight-forward part was they didn’t know the identity of the leaker. It’s something Sutherland told police time and again.
As it was, the Cabinet memo was returned, and police took no action. There was huge publicity about the case, and that of Sutch, prompting public discussions.
In October 1974, three weeks after Sutch’s arrest, Sutherland addressed a meeting, organised by the Auckland Council for Civil Liberties, at the town hall’s concert chamber. A summary by an SIS agent identified prominent attendees, and summarised Sutherland’s speech.
“The issue of public information and secrecy was not an Acord issue – we were an anti-racism group,” Sutherland says. “We got caught up in it because we had this doctrine oblique to us.
“I was not at all reluctant to take part in that public meeting, or to stand up and say how there needs to be changes to the law, because it was so draconian.”
Fast forward to 1980, and the Danks report. (Sköld and Sutherland made submissions to the committee.)
The report said there had been pressure for shifting towards greater openness for years, and the presumption of non-disclosure wasn’t helpful or valid.
“The case for more openness in government is compelling. It rests on the democratic principles of encouraging participation in public affairs and ensuring the accountability of those in office; it also derives from concern for the interests of individuals. A no less important consideration is that the government requires public understanding and support to get its policies carried out. This can come only from an informed public.”
Sutherland and Sköld felt vindicated by the Danks report. The findings were a milestone, Sutherland says. “One’s only got to look at the legislation that came from it.”
Public servants are probably bolder about leaking material now, he says. (That’s particularly true of this coalition Government, including advice on tobacco products, fair pay agreements, the Treaty Principles Bill, and overseas investment in build-to-rent housing.)
However, Palmer, the former Prime Minister, is critical of how the Act’s been implemented. “Ministers don’t like the Official Information Act. They resist it.”
Despite several Law Commission reviews recommending an overhaul, successive governments have refused to reform the Act. “I’ve been following these issues for much more than 40 years,” Palmer says, “and one gets tired of the fact that the same old things are trotted out and nothing ever changes”.
The Act should cover the Parliamentary Counsel Office, he says, and aspects of what happens in Parliament, but it doesn’t.
“There’s not nearly enough proactive release [of information],” Palmer complains. “If you’re going to prevent corruption in your society, you must have transparency, and that’s what we don’t have.”
