Bill of Rights report on the Lobbying Disclosure Bill

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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