Bill of Rights report on the Lobbying Disclosure Bill

June 12th, 2012 at 3:01 pm by David Farrar

The Attorney-General has delivered the required report on how the Lobby Disclosure Bill by Holly Walker complies with Bill of Rights Act. The conclusion is that it would be an unjustified limitation of the right to freedom of expression. Some extracts:

The First Amendment to the Constitution of the United States provides that Congress shall make no law abridging the freedom of speech. George Washington remarked “If the freedom of speech is taken away then dumb and silent we may be led, like sheep to the slaughter.” …

The AG also quotes former Green MP Keith Locke:

“… All should be given the right to express a view no matter how disconcerting it should be, on even the most difficult or abhorrent of issues… Implicit in free speech is the idea that the community benefits from an untrammelled exchange of views and that every participant might have something to add to our enlightenment.”

Quoting the wisdom of Keith Locke on a bill by a Green MP, means that presumably the Greens won’t attack the opinion as one they disagree with.

The conclusion is:

Whilst a requirement to register as a lobbyist and the imposition of various obligations to disclose publicly information about activities undertaken do not prevent expression, they do limit the ability to express information freely.  Some people may be dissuaded from expressing themselves because of the implications of the Bill. 

I therefore consider that the Bill is prima facie inconsistent with s 14 of the Bill of Rights Act.

Then the question is, can the limitation be justified. The AG says that some regulation can be justified, to increase transparency but:

The limits on freedom of expression sought to be imposed by the Bill are greater than reasonably necessary to meet the objective.  This is because, primarily due to poor drafting, the Bill goes well beyond the activities of professional lobbyists to include a wide range of other activities.

An example:

The Bill will also capture people who send a one-off email to their Member of Parliament on behalf of their incorporated farm or small business regarding any government policy.  This is because the Bill does not exclude from its scope organisations who are not professional lobbyists and do not have significant involvement in lobbying.  The Bill may also capture a person from a media outlet who arranges a face-to-face interview between a journalist and a Minister.

This means:

 Individuals in the examples above may restrain themselves from making communications if they did not want to be considered a lobbyist and incur potential criminal sanctions for communicating with Ministers or Members of Parliament.  This is an unacceptable and dangerous limit on freedom of expression.

And finally:

This Bill significantly limits core democratic expression. In going well beyond what would be required to regulate the activities of lobbyists, it risks creating a chilling effect for average New Zealanders who may fear criminal sanctions for merely communicating with a Member of Parliament on behalf of their business in relation to government policy.  This would be an unacceptable limit on a core element of freedom of expression.

I favour the bill going to select committee, but it is clear that it will need to be significantly amended to proceed beyond select committee.

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21 Responses to “Bill of Rights report on the Lobbying Disclosure Bill”

  1. BeaB (2,083 comments) says:

    Hear hear!
    Thank god for some champions of democracy and freedoms against the ‘chilling’ effect of those who want to restrict us and place obstacles in our path. I think we have heard that word ‘chilling’ before with the Labour Party when it shut down our right to have our say during elections.
    The price of liberty…

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  2. PaulL (5,983 comments) says:

    It is a bit unlike the Greens to restrict freedom of expression (at least for people with Green-ish sensibilities), so I’m going to assume this is incompetence rather than a plan. Which then leads to the question – do these MPs just draft bills themselves, or do they get some drafting advice from someone who actually knows how to do it? It’s not actually as easy as it looks.

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  3. BeaB (2,083 comments) says:

    It is the ingrained totalitarian streak in all Lefties and the Greens are more extreme than Labour which wanders aimlessly round the centre looking for a purpose. They know best and we have to be made to fall into line whether we like it or not. Freedom of speech? Of course but only if you say the right things. Ditto every other right and freedom.

    God bless the Auditor General.

    If Labour and Greens are coming, watch out for your freedoms.

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  4. Harriet (4,616 comments) says:

    Of course ! …..now I understand……Black is white, peace is war…and slavery and oppression are freedoms.

    It is clear now that, to the left, 1984 is an instruction manual.

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  5. AG (1,820 comments) says:

    “Which then leads to the question – do these MPs just draft bills themselves, or do they get some drafting advice from someone who actually knows how to do it? It’s not actually as easy as it looks.”

    No – it is not. Members Bills (like this one) do not get drafted by Parliamentary Counsel (like Government Bills do). Whilst the Lobbying Bill was based on similar Canadian legislation, their style of drafting is very different to NZ’s, so the translation doesn’t work cleanly. Hence the problems with the Lobbying Bill (in terms of overreach) … and so the AG’s s7 report.

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  6. s.russell (1,580 comments) says:

    Bravo the AG!
    I favour the bill being dumped immediately.

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  7. Mark Unsworth (40 comments) says:

    Actually what this means is that Parliament will now move to water down the Bill so that it excludes nearly everyone except professional lobbyists such as myself.While some may support that move it certainly won’t lead to the increased levels of openness and transparency that was the objective of the legislation.Probably 90% of lobbying will not be covered and particularly lobbying by ” not for profit” groups,trade unions etc.As I said,that may suit some people but I question the effectiveness of a Bill that is so narrow in its focus.I may be wrong but lets see.

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  8. Graeme Edgeler (3,277 comments) says:

    Members drafting bills can get the assistance of legislative counsel employed by the Office of the Clerk.

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  9. OneTrack (2,818 comments) says:

    Harriet @4:54 – Yes

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  10. hj (6,747 comments) says:

    So lobbying is “freedom of speech”. I would call it speech with knobs on.
    I.e could be that the speach drowns out the other side of any argument; these professional lobbiests must be paid such a lot for something.. weird phenomena huh?

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  11. AG (1,820 comments) says:

    Graeme,

    And the PCO can give assistance and advice as well. But not the full bells-and-whistles drafting service (unless the AG tells them to do so). And any assistance and advice must be seen in the context of the member not having the backing of departmental advisors to work with those helping write any Bill. So all in all, you’re far more likely to see fuck ups in the wording of Members Bills than you are in Government ones.

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  12. mikenmild (11,246 comments) says:

    I wonder if this report will join the short list of such reports that have been accepted by the government of the much longer list of reports that have been rejected.

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  13. krazykiwi (9,189 comments) says:

    The only lobbying disclosure I support is knowing how much public money is given to organisations to lobby the government. Refer this from 11th June: Sock Puppets: How the government lobbies itself and why.

    New research, released today, reveals the true extent of government funded lobbying by charities and pressure groups. 

    This report argues that, when government funds the lobbying of itself, it is subverting democracy and debasing the concept of charity. It is also an unnecessary and wasteful use of taxpayers’ money. By skewing the public debate and political process in this way, genuine civil society is being cold-shouldered.

    In the last 15 years, state funding of charities in Britain has increased significantly. 27,000 charities are now dependent on the government for more than 75 per cent of their income and the ‘voluntary sector’ receives more money from the state than it receives in voluntary donations.
     
    State funding weakens the independence of charities, making them less inclined to criticise government policy. This can create a ‘sock puppet’ version of civil society giving the illusion of grassroots support for new legislation. These state-funded activists engage in direct lobbying (of politicians) and indirect lobbying (of the public) using taxpayers’ money, thereby blurring the distinction between public and private action.
     
    State-funded charities and NGOs usually campaign for causes which do not enjoy widespread support amongst the general public (e.g. foreign aid, temperance, identity politics). They typically lobby for bigger government, higher taxes, greater regulation and the creation of new agencies to oversee and enforce new laws. In many cases, they call for increased funding for themselves and their associated departments.
     
    Urgent action should be taken, including banning government departments from using taxpayer’s money to engage in advertising campaigns, the abolition of unrestricted grants to charities and the creation of a new category of non-profit organisation, for organisations which receive substantial funds from statutory sources.

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  14. Holly Walker (3 comments) says:

    Thanks for your post David. I’ve blogged about my thoughts on the AG’s report over at frogblog. I don’t accept his premise that the bill necessarily restricts freedom of expression; it simply seeks to record when certain communications take place, but but regardless, his main concern towards the end of the report is the scope of the bill and who it captures, and am confident that we can address the issues he raises at the select committee, should the bill pass its first reading. Cheers, Holly.

    http://blog.greens.org.nz/2012/06/12/attorney-general-report-on-lobbying-disclosure-bill/

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  15. Grendel (972 comments) says:

    Since when have the greens ever cared about restricting freedoms? except their own of course (maintained on the taxpayers coin if possible).

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  16. mikenmild (11,246 comments) says:

    I was interested in Holly’s argument that recording lobbying activity is not a limitation on the freedom of expression. I’m not sure that publishing the fact that someone spoke to an MP or Minister actually infringes that person’s freedom of expression, but I’d be interested to see the argument.

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  17. Graeme Edgeler (3,277 comments) says:

    mike – the concern is not that publishing someone’s details is a breach of their freedom of expression. You might be able to have an argument, but I suspect the A-G would conclude that even if it was a limit, it would be a reasonable limit.

    Rather, the concern is that setting up all of these complex rules, where people may not be able to tell whether they are covered, may deter some people (perhaps a lot of people) from making those communications at all. Someone will look at the rules, and think “this might be lobbying activity, does that mean I have to register as a lobbyist, but I’m not a lobbyist, I don’t know, it’s all too hard, let’s not bother.” Is setting up rules where this is a likely consequence, reasonable? That’s a different question.

    Holly – your bill does not simply seek to record when certain communications take place. If did, it could either place an obligation on the receivers of those communications (ministers or MPs) to disclose them, or it could criminalise the failure to declare such communications. The Bill doesn’t do either.

    Rather, your bill would criminalise the making of certain communications by people who don’t register as lobbyists.

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  18. East Wellington Superhero (1,151 comments) says:

    I just don’t get this. And I’m surprised that Mr IDU, David Farrar, is even supporting this to Select Committee.

    Holly Walker says “it simply seeks to record when certain communications take place”. Well, sorry, we don’t live in a police state where people get recorded.

    Slow down and pause for a moment. The-people-with-power-will-get-authority-to-record-who-is-communicating-with-who.

    The Mark Unsworths of the world, God bless ‘em, are smart and they’ll find other ways to do their evil (according to the Greens) work and this part of political life will carry on. HOWEVER, what will be established is the beginning of the notion – in the minds of the political class and wider society, that “hey, maybe ‘the government’ ought to be monitoring who’s talking to who”.

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  19. BeaB (2,083 comments) says:

    Holly Walker’s comment sends chills down my spine.

    “it simply seeks to record when certain communications take place”

    Do we as citizens of a free country need more recording of conversations? How creepy are these Greens and what else do they have in store for us?

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  20. Put it away (2,888 comments) says:

    Attention Greens: start your recording devices. Wouldn’t want you to miss this communication from my middle finger in 3.. 2… 1…

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  21. GuyGiorno (1 comment) says:

    Please do not jump to hasty conclusions. Ms Walker’s bill is based on lobbying disclosure laws in other parliamentary democracies, including Canada.

    Your Attorney General is of the view that the bill restricts communication with government. I’m not sure that he is correct. What the bill would do would be to reveal attempts to influence government.

    Everyone has a right to try to influence government decisions. It does not follow that everyone possesses the right to influence government in secret.

    The bill is not about restricting communication with government. It would prevent hidden communication with government.

    If it is healthy for democracy to allow private interests, operating for pay, to influence politicians in secret, then I am unaware of the rationale.

    Canada has required lobbyist disclosure for more than 20 years, and the result has been to make government more accountable and to make the government decision-making process more open and transparent.

    Guy Giorno
    Ottawa, Canada

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