Lobbying Disclosure Bill 15 1 Report of the Government Administration Committee Contents Recommendations 2 Introduction 2 Background 2 Issues raised 2 Our concerns about the bill 3 Non-legislative alternatives 4 Appendix 5
Lobbying Disclosure Bill Recommendations The Government Administration Committee has examined the Lobbying Disclosure Bill and recommends that it not be passed. The Government Administration Committee recommends that the House develop guidelines for members of Parliament about handling communications relating to parliamentary business, and review the relevant Standing Orders to ensure consistency. The Government Administration Committee recommends that the Government require the regulatory impact statements and explanatory notes of parliamentary bills to include details of the non-departmental organisations consulted during the development of related policy and legislation encourage the proactive release of policy papers to make the policy-making process more transparent. Introduction The Lobbying Disclosure Bill, a member s bill in the name of Holly Walker, seeks to make decision-making more transparent by regulating lobbying. It would establish a register of lobbyists and a code of conduct for lobbyists. The bill would also make it an offence to engage in lobbying without being registered. Returns of lobbying activity would have to be filed with the Auditor-General, and this information would be made publicly available on a website. Failure to comply with the code of conduct, and to file returns, could result in suspension or removal from the register of lobbyists. Background With no public scrutiny of lobbyists activities, and no code of ethics, there is no way of knowing who is lobbying whom and for what purpose. The bill would seek to address this by requiring the public disclosure of lobbying activity, and lobbyists to adhere to a code of conduct. We are aware that Australia and Canada have well-established compulsory registration regimes, and the bill closely follows the Canadian model in terms of the information to be disclosed and the reporting process. Issues raised The bill is based on the premise that lobbying is entrenched in our political system and has become an increasingly important part of the political process. Most submitters on the bill supported its intent of enhancing trust in the integrity and impartiality of democracy and political decision-making by bringing more transparency to political lobbying in New Zealand. However, the appropriateness of the proposed regime for the New Zealand context was questioned, and substantial amendments to the bill were sought to limit its application in various ways. Key issues raised by submitters included the following: 2
The need to define more tightly key terms, such as lobbyist, lobbying activity and public office holder. Whether a disclosure regime should apply to interactions with members of the executive, members of Parliament, or both. The components a disclosure regime should include, such as a register of lobbyists, a code of conduct, and reporting requirements. The type of information lobbyists should be required to disclose, and how often. Whether the regime should be mandatory or voluntary. Which government agency could best administer a disclosure regime. We considered all submissions on the bill carefully and thoroughly. Our concerns about the bill In our view the bill could have unintended consequences for the openness of our democracy by limiting the ability of people to express opinions and impart information freely. The bill would affect everyday dealings with the public by members of Parliament, and could discourage constituents from engaging with members. Because the bill does not exclude from its application organisations that are not professional lobbyists and are not greatly involved in lobbying, it could capture, for example, a person contacting their member of Parliament about government policy regarding their small business. We consider that lobbying in this most basic sense should not be targeted. While the bill s stated purpose is to increase the transparency of decision-making by executive government, it also covers communications with members of Parliament and their staff. The Clerk of the House and the General Manager Parliamentary Service informed us in their joint submission that this could result in staff of the Office of the Clerk and the Parliamentary Service being classified as lobbyists. There are also significant differences in the decision-making spheres of Ministers and of other members of Parliament. Members who are not Ministers do not have executive decision-making powers, and the ability to individually decide the fate of legislation. The Clerk of the House and the General Manager Parliamentary Service further informed us that the bill s application to parliamentary proceedings would be likely to put pressure on the privileges of the House, diminishing its powers and immunities. We consider that an appropriate balance is needed between the disclosure of communications that might influence decision-making, and ensuring that participation in democratic processes is not deterred by an erosion of crucial protections. The Attorney-General examined the Lobbying Disclosure Bill under section 7 of the New Zealand Bill of Rights Act 1990, and concluded that the bill could limit freedom of expression as affirmed by section 14 of that Act, and that the bill goes well beyond what would be required to regulate the activities of lobbyists. The Attorney-General observed that freedom of expression is an essential barrier to state tyranny, and the ability to freely express views and opinions; citizens should not be silenced by the state. With these concerns in mind we do not consider the legislative response proposed by this bill to be the best way to improve the transparency of lobbying and decision-making in New Zealand. 3
Non-legislative alternatives We sought advice on non-legislative ways of making interactions between lobbyists and decision-makers more transparent. We recommend that the following be considered. Guidance for members of Parliament We recommend that the House develop guidelines for members of Parliament on handling communications relating to parliamentary business; this could encourage proactive disclosure and reporting by MPs (including Ministers). These guidelines could include mechanisms for disclosure and reporting by MPs and lobbyists, and definitions of key terms such as lobbyist, and lobbying activity. They could build on provisions in the Standing Orders, including those relating to contempt of the House and bribery of MPs, and provisions in the Crimes Act 1961 relating to corruption and bribery. At the same time, the relevant Standing Orders could also be reviewed. Reporting on organisations consulted in the development of legislation We recommend that the Government require the regulatory impact statements and explanatory notes of parliamentary bills to include the names of any non-departmental organisations consulted during the development of related policy and legislation. This should make the involvement of lobbyists and other non-governmental organisations in the development of legislation more transparent. Proactive disclosure of policy papers by departments We recommend that the Government encourage the proactive release of policy papers to make the policymaking process more transparent. The Law Commission recognised this as a trend in its 2012 report on the Official Information Act 1982, The Public s Right to Know. The Cabinet Manual also contains key principles for the proactive release of Cabinet material. 4
Appendix Committee procedure The Lobbying Disclosure Bill was referred to the committee on 25 July 2012. The closing date for submissions was 5 October 2012. The committee received 103 submissions from interested groups and individuals. We received advice from the Department of the Prime Minister and Cabinet. Committee members Hon Ruth Dyson (Chairperson) Chris Auchinvole Kanwaljit Singh Bakshi Hon Trevor Mallard Eric Roy Holly Walker 5