Lobby groups should not be taxpayer funded

October 1st, 2014 at 3:00 pm by David Farrar

NBR reports:

Taxpayers have forked out over $228,000 to lobby group Federated Farmers since 2009, much to the surprise of its president William Rolleston.

Dr Rolleston has also refused to say whether corporate donations are part of the $7.45 million the federation has received in unspecified “other revenue” since 2008.

When NBR ONLINE informed Dr Rolleston that the Ministry for Primary Industries and its predecessors have paid about $228,000 to the federation over the past five years he replied, “Gosh, really? What have they paid it for?”

A very good question. I’m against taxpayer funding of lobby groups – including the ones I often agree with.

The Taxpayers Union has said:

The Taxpayers’ Union is calling on Federated Farmers to make a firm commitment to reject any future Government funding, after it was revealed that the lobby group had received over $200,000 of payments in recent years.

Taxpayers’ Union Executive Director Jordan Williams says:
“Federated Farmers need to be weaned off taxpayer funding .”

“Government agencies should not be handing over taxpayers’ money to lobby groups and pet causes. Here a group that speaks for one of our largest industries is on the take from the Government’s ‘Sustainable Farming Fund’.”

“How can a lobby group such as Fed Farmers remain credible and independent, when it’s receiving taxpayer funded top ups?”

You can’t argue for smaller Government, when you put your hand out for taxpayer funding.

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Greens’ Lobbying Bill killed off

August 26th, 2013 at 12:00 pm by David Farrar

The Government Administration Committee has reported back the Lobbying Disclosure Bill written by former Green MP Sue Kedgley and introduced by Holly Walker.

It is no surprise that the Committee unanimously recommended the Bill not proceed. The bill was well-intentioned but to be blunt it was drafted so atrociously that it was beyond unworkable. A more sensible bill would have had a reasonable chance of progressing.

I previously covered the intense criticism of the bill by submitters and the Attorney-General said it was inconsistent with the Bill fo Rights:

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.

It’s a good lesson that you can harm your own cause by putting up such a badly drafted bill. It’s effectively killed off any possibility of there being any legislative reform around lobbying (not that I was convinced one needed legislation).

The Government Administration Committee has made three non-legislative recommendations which seem worthwhile:

  1. 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
  2. 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
  3. That the Government encourage the proactive release of policy papers to make the policy-making process more transparent

At least I won’t now have to worry about ending up in court because I engaged with an MP on Twitter and forgot to tell the Auditor-General about it!

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More lethal criticism of Lobbying Transparency Bill

October 25th, 2012 at 9:00 am by David Farrar

I’ve just been reading most of the 100 or so submissions on the Lobbying Transparency Bill, and its really must come close to being the most incompetently drafted bill in some years. I know Holly Walker didn’t draft the bill herself – she inherited it from Sue Kedgley. But, as one lawyer said to me, it would have been nice if she had read it before submitting it in her name.

I’ll come to the various criticism in a few lines, including from the Clerk of the House and the Auditor-General, but will note for now it is obvious it can not pass in its current form. There seems to be four options open to the select committee:

  • Radically rewrite the bill, and then call for further submissions on the amended bill as it will be so different to the current one.
  • Ask the Law Commission to write a new bill around lobbying transparency and regulation, as recommended by the NZ Law Society, and vote this bill down.
  • Look to implement a non-legislative solution, as I and others have proposed – such as through Standing Orders.
  • Just vote the bill down, allowing a more competently drafted one to be resubmitted to the ballot.

So what do some of the submissions say. Let;s start with the joint submission from the Clerk of the House and GM of The Parliamentary Service:

 We are concerned about the bill’s potential to create barriers, both to participation by the public in democratic processes, and to the many legitimate means through which members, committees, Ministers and the House inform themselves of matters relevant to the exercise of their roles. The potential for public participation to be deterred by perceptions about the bill’s provisions is also a major question. Many hundreds of individuals and organisations have contact with members and Ministers every day, both in relation to matters of public policy and also in respect of personal grievances and concerns.

It is rare for these two parliamentary agencies to speak out on a bill.

Moreover, as currently drafted, the bill appears to result in staff members of the Office of the Clerk and the Parliamentary Service being potentially classified as lobbyists.

Under this bill, it will be easier to count those who will not be lobbyists!

Here’s Tainui:

We believe the Government Administration Committee should recommend to Parliament that the Lobbying Disclosure Bill should not be proceeded with for four principal reasons:

  • It impinges on all citizens’ freedom of speech and their rights under the Bill of Rights Act 1990.
  • The public policy underpinning the proposed legislation is not based on evidence and its provisions will discourage the discussion and debate critical to the development of good public policy.
  • It would constrain the right of Maori to practice tikanga Maori in respect of kanohi ki te kanohi and whaikorero.
  • If enacted, the legislation would be impossible to enforce and administratively costly.

Federated Farmers pulls no punches:

Members of Parliament, we feel, should be outraged as the Bill impugns your reputation. It fundamentally implies the only way to „keep you honest‟, is to make third parties disclose full details of when, where and what they met you about. It implies that politicians can not be trusted to make up their own minds. Those who are promoting this law are obviously extremely concerned about this. The best solution is for them to resign from parliament as soon as possible. This reduces the risk to “abuse” of the system, and brings in others who, by definition, must be “better” and obviously have more ethics and ability.

But why stop there? Why not just have a selection process operated by the Auditor General, whereby only “good” politicians are able to operate in Parliament. On the logic of this bill, this would reduce risk considerably of “lobbyists exerting undue or improper influence on Ministers or members of Parliament”.

You can almost feel the flames.

Ngai Tahu:

The flow on effect is that the iwi – Crown relationships are reduced to the same status as that between the Crown and, for example, tobacco industry lobbyists. This is an unacceptable step backwards in the Crown iwi/Māori relationship.

This is one of the problems of such heavy-handed regulations.  The University of Auckland notes:

On top of this, an aspect of the University’s engagement with Ministers, Members of Parliament and officials is in its legally defined role as critic and conscience of society. (Section 162 Education Act (1989).

The Lobbying Disclosure Bill runs counter to this role and to the stated (Education Act 1989 S161(4)) obligation of the Crown and its agencies to ensure the autonomy and academic freedom of universities.

The Human Rights Commission:

 The Commission agrees with the Attorney-General that the dramatic overreach of the Bill is an “unacceptable and dangerous limit on freedom of expression”. …

The Commission strongly opposes the passage of the Bill …

The Newspaper Publishers Association:

The NPA supports more openness in Government … However, this Bill in its intention to curb lobbyists is deeply flawed to the extent it is unworkable.

Normally the media would be supportive of something that opens up Government. But they know this particular bill is unworkable.

This is a naive Bill that seeks to address a non-existent problem in an unrealistic way. It proposes introducing another level of bureaucracy that would be costly and difficult to police and prosecute, making it well nigh unworkable. It is inconsistent with the Bill of Rights in cutting across freedom of expression.

The Association of NGOs says:

 Our submission, resulting from all these discussions, is relatively simple: if the significant problems with the Bill cannot be fixed – and we have not managed to find a way that can happen – then the way it is currently structured should be abandoned.

The Association of Universities says:

 That the Government Administration Committee return the Lobbying Disclosure Bill to Parliament with the recommendation that it not proceed. …

If the Lobbying Disclosure Bill was to be enacted, Universities NZ’s representatives would be required to register as lobbyists before they could communicate with the relevant Minister on any of these matters and many other issues directly impacting on Universities NZ’s statutory functions.

Two of the government agencies with whom Universities NZ works most closely in undertaking its statutory functions – the NZ Qualifications Authority and the Tertiary Education Commission – would also be required to have their representatives register as lobbyists before communicating on these issues with the relevant
Minister. Because they are crown agencies they are not listed in Schedule 1 of the State Sector Act and they are therefore not exempt from coverage of the Bill.

This is what I mean by incompetent drafting. The TEC and NZQA would have to register as lobbyists under the bill as drafted!

We doubt if the Speakers Science Forum series could continue under the regime that would be imposed by the Lobbying Disclosure Bill.

They conclude:

New Zealand is a small, open democracy which has been highly rated in international studies for its freedom from corruption. There is no evidence in NZ of the clandestine behaviour that might warrant the type of legislation proposed by this Bill. Indeed, the effect of the Bill will be to inhibit severely the existing freedom with which individuals and organisations can exchange views on matters of legislation, regulation and policy with Members of Parliament and Ministers.

Universities NZ recommends that the Government Administration Committee report to Parliament that the Lobbying Disclosure Bill is a flawed and unnecessary piece of legislation that should not proceed.

So against this Bill are the Office of the Clerk, the Parliamentary Service, the Law Society, major Iwi, the Human Rights Commission, the newspapers, the NGOs and the universities.  Anyone missing. Oh yeah the proposed regulator – the Auditor-General. Here is what she said:

The proposed functions and powers are unrelated to the Auditor-General’s core work as an auditor, and not consistent with the constitutional role of scrutiny of the Executive on behalf of Parliament. In essence, the Auditor-General would be a regulator of those who want to communicate with Members of Parliament (both Ministers and other MPs).

The majority of those to be regulated would be private sector entities and private citizens. This is inconsistent with the Auditor-General’s current role which is restricted to the audit of public entities (as defined in the Public Audit Act). A requirement to monitor and regulate the activities of private sector entities would be novel in the history of the office, and not part of the role contemplated when the Public Audit Act was drafted.

The Bill, if enacted, would give the Auditor-General direct enforcement powers, which is not consistent with the role of an auditor.

You’d think you’d consult an agency before proposing them as a regulator.

There’s a lesson here about members’ bills. They are draft pieces of legislation and should be taken seriously.  Don’t just submit something your staff give you, or a former MP gives you. Spend a couple of months or more consulting people on it. Show some lawyers a draft. The Office of the Clerk can even help. Talk to major stakeholders who could be impacted before you submit the bill – not afterwards. Even publish an early draft (as Kevin Hague has done) and ask for feedback on it.

Oh yeah also even the Waikato University Law School disses it.

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Law Society slaughters Lobbying Bill and Chauvel SOP

October 12th, 2012 at 1:25 pm by David Farrar

The Law Society has published its submission on Holly Walker’s Lobbying Disclosure Bill and the SOP by Charles Chauvel. They almost brutally dissect both of them. Their summary is:

  • There is likely to be a drop in participation in the political process
  • The Supplementary Order Paper (SOP)1 tries to separate “organisations” in a way that is unprincipled and illogical
  • The SOP exemptions for “constituents” do not recognise MMP, and contain other illogicalities
  • There is no demonstrated justification for the erosion of the internationally recognised doctrine of legal privilege
  • International reports and codes indicate this is a highly complex area not amenable to legislation by slogan

Legislation by slogan is a term that may catch on for it.

They give an example of how wide the bill is:

It also has to be recognised that lobbying can be entirely altruistic, for example, fireworks safety or youth suicide advocates. Some may be paid directly to lobby, others may do so as part of wider paid employment, and some may do so without payment. In some cases it may be difficult to tell. Clause 6(2) of the Bill is probably so broad that it would catch a Professor of Mental Health who lobbied on a matter such as the application of funding for youth suicide prevention.

They state:

Unfortunately, the Bill is little more than ‘legislation by slogan’. It is unsupported by any cost-benefit analysis or effective linking of the solution to the alleged problem, and lacks rigour in its drafting. The Supplementary Order Paper that is before the Committee makes the Bill worse on all three counts

And this is the SOP from the Shadow Attorney-General. They specifically say:

The Supplementary Order Paper put forward by Mr Charles Chauvel does not improve the Bill. The SOP proposes three main changes to the Bill. …  Two of the amendments are palpably wrong, and the third may be an improvement but needs analysis and context.

And on the exemption for MPs talking to their constituents:

The term “constituent” is not used in the Electoral Act 1993.

It can be taken to mean something other than “individual”. It may mean “any elector”, but that
could be too broad. It also seems odd to exclude persons who are too young to vote, or those who are otherwise not (yet) qualified (for example, refugees). Presumably “constituent” cannot include firms or organisations, but what about their office holders? 

If it means “elector in relation to the electorate of the Member” then very capricious outcomes are possible. To take Mr Chauvel’s own position, he is a list MP. So, an elector in Ohariu could lobby the Honourable Peter Dunne as the electorate MP but could not lobby Mr Chauvel, even if they would prefer to deal with Mr Chauvel.

Now that is an own goal.

Their recommendation:

The Law Society strongly recommends that the Law Commission be given the opportunity to provide a comprehensive analysis of the appropriateness of lobbying disclosure regulation and the serious issues it poses, before any legislation is progressed in New Zealand.

Their clause by clause analysis is also worth a read:

Clause 6 requires individuals to register before engaging in lobbying activity. This is a strict liability offence (cl 19(2)), so those who lobby without realising that their activity is lobbying will be criminalised.

And the Greens claim to be a party that supports free speech! They were the only party to vote against repealing the odious Electoral Finance Act also.

 

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My submission on the Lobbying Disclosure Bill

October 5th, 2012 at 2:10 pm by David Farrar

SUBMISSION OF DAVID FARRAR ON THE
LOBBYING DISCLOSURE BILL TO THE GOVERNMENT ADMINISTRATION SELECT COMMITTEE

 About the Submitter

  1. This submission is made by David Farrar in a personal capacity. I would like to appear before the Committee to speak to my submission.
  2. I frequently communicate with MPs and staff on political, policy and legislative issues. The views expressed are always my own, yet under this legislation in some circumstances I would face large fines unless I I filed a return listing every tweet, e-mail, text message, oral conversation I have with an MP or staff member or a political issue. This would even apply to if an MP asks me for my view on an issue in passing at say a social function or Koru Club.
  3. I chair the Policy Advisory Group of InternetNZ, and get paid a small fee ($1,000 a month) for chairing the group, and working with staff on Internet policy issues. Under the proposed legislation, this would make me a paid lobbyist. I do not regard myself as that, as I only advocate for what I personally believe in, and am not paid to advocate the views of InternetNZ. However the definition in the proposed law would define me as a paid lobbyist.

Background to Bill

  1. This bill seems to be based on a genuine desire to avoid lobbying practices of the type seen overseas, primarily in the United States. I share that desire.
  2. It is important to understand how massively different lobbying in the United States is, compared to New Zealand. In the US lobbying often consists of lobby groups meeting individual representatives and offering them large sums of moneys to help finance their primary or general election campaigns if they vote the desired way on issues. Such funding may often be indirect such as via Political Action Committees or PACs.
  3. Lobbying in New Zealand does not work that way, and due to our laws and culture basically can’t work that way. First of all, political parties tend to vote as a bloc on all but conscience issues. Decisions are taken collectively by a caucus or Cabinet. In the US a political party is more a label, than a formal organization. There is almost no method to impose discipline or expel wayward members. Hence lobbying is about influencing individual members and helping them win elections – the one way they can be “disciplined”.
  4. In New Zealand we have very good transparency requirements around MPs, parties, and money. The Electoral Act requires disclosure of any donation over $1,500 to a candidate of $15,000 to a party. The Register of MPs Pecuniary Interests requires disclosure of any gifts over $500. The Cabinet Manual has similar requirements. Ministers and their staffs disclose under the OIA ridiculously trivial gifts such as tickets to sporting games. So we already have excellent (not perfect) laws and policies in place when it comes to politicians and money.
  5. I also have to say I have never heard of US-style lobbying when an organization or individual has tried to persuade an MP to vote a certain way, because of money which will flow to them. All the lobbying I have ever observed is based on advocacy around what is good for New Zealand, good for a particular affected organization, will a policy actually achieve it aims etc.
  6. So I think we should be very clear that the legal and political framework that exists in New Zealand is critically different to the United States, and this is unlikely to change.

Transparency

  1. Transparency generally is a very good thing in politics. This is why we have the Official Information Act. That is why Parliament meets in open to make laws. We have seen useful extra transparency such as televised sittings of Parliament, online listings of submissions to select committees, disclosure of MPs expenses and the like.
  2. But it is obviously transparency has its limits. Otherwise we would require every MP to have a webcam attached to them that broadcasts video and audio of all their activities. This might make for a very enjoyable reality TV show, but would not be a very good system of Government.
  3. Beyond the Official Information Act, there is no obligation for disclosure of what is discussed at caucus meetings, at cabinet meetings, at select committee meetings when considering legislation amendments, of meetings between MPs and staff, of meetings of political party governing bodies and policy committees, of cross-party parliamentary meetings, of the business committee of Parliament etc etc. These are all very important and powerful forums and discussions.
  4. Transparency is focused on the actual decisions taken by MPs and parties, whom the public holds accountable for them. They are judged by voters based on how they vote, not whom they met with.
  5. As the Attorney-General has pointed out the proposed law, as currently worded, would massively discourage people from communicating with MPs on political issues – with a risk of large fines if they do. I generally believe we want to encourage more people to communicate with MPs on political issues, not discourage them.
  6. I also note that such legislation often has unforeseen consequences. The history of electoral finance legislation in the United States is that the more regulations they impose (and the US is much more heavily regulated than NZ), the more it deters “Joe Average” from involvement, but those determined to be involved just fund loopholes such as PACs.
  7. I believe the bill, in its current form, would be extremely detrimental to New Zealand democracy.

Defining a Lobbyist

  1. The bill defines a lobbyist as someone who engages, for payment, on behalf of any individual or organization on any legislative, policy, funding or contractual issue with any MP or parliamentary staff member. This can include shareholders, directors, officers, contractors and staff.
  2. Some have suggested that unions be exempted from definition as a lobbyist. I oppose that. It would be very uneven if only business groups lobbying on industrial relations issue had to register and disclose, but unions did not.
  3. Some have said that such a regime should apply to professional lobbying firms only, of which NZ has around half a dozen to a dozen. However all that is likely to do is encourage people not to use those firms, even though it may lead to better outcomes if they do. Organisations would simply use their own staff more.
  4. Others have said that the regime should apply only to businesses, as they are motivated by profit. So for example a mining company would have to disclose its lobbying activity, but Greenpeace would not have to. Again I think this is very unbalanced. NGOs can benefit just as much from political decisions as businesses. Staff for NGOs could have employment agreements where they get bonuses if they achieve certain outcomes. Some NGOs such as unions stand to gain millions of dollars from legislative changes that benefit them. Restricting the definition to companies would be unfair.
  5. Such a restriction is also likely to lead to US style PACs. NGOs could be set up and funded to lobby for outcomes, to avoid having to register as lobbyists. Ironically this bill could then see more US style politics, not less.
  6. If there is to be mandatory registration of lobbyists, then the definition must include NGOs, not just businesses.
  7. However I would argue there is an alternative to mandatory registration, and that is a voluntary registration system, without fear of prosecutions and fines if you get it wrong.
  8. It should be noted that we don’t really have a great current problem with transparency of who represents who. If a Telecom staff member meets with MPs, it is clear they are representing Telecom. Likewise when Greenpeace meets with MPs, you know they are Greenpeace. You do not need a register to tell you this. With professional lobbying firms, the argument is you may not know whom they represent when they advocate on an issue. In my experience no lobbying firm has ever advocated on an issue in their own right. They have always stated to MPs and staff which client they represent. Many list them on their website in fact.
  9. So bearing in mind there is no defined current problem with practice, it seems overkill to go all the way to a mandatory registration system with large fines for non-compliance. I would advocate a halfway house.
  10. I propose that as an alternative, a register of lobbyists be set up by the Office of the Speaker and/or the Clerk of the House. Allow organisations and individuals who self-identify as lobbyists to register on it. They could be asked to list their clients, the policy areas of interest to them, and any specific bills they are interested in. This list could be published on the parliamentary website. You could even give an asterisk to those with swipe cards!
  11. As an individual who has a certain degree of experience in lobbying MPs, I would have no problem with going onto a register, both in areas where I do have a financial tie (Internet issues) and those where I have no financial interest (Keep It 18 campaign and Marriage Equality). What I don’t want though is to be risking prosecution and fines. As it happens, I tend to disclose prominently on my blog the issues I take an interest in, and groups I am involved in.
  12. Some may say with no risk of prosecution and fines, such a register would be toothless. I disagree. I think the power of public pressure can be considerable. If prominent individuals or organisations did not register, the media and others could well highlight this to their disadvantage.
  13. An organization that generally is not involved in the parliamentary process such as say the Red Cross shouldn’t feel a need to register just because they may chat about aid issues occasionally to their local MP. But a more political organization such as say Greenpeace would be expected. But rather than scare groups such as Red Cross off with risk of fines, just have an opt in self-recognition system. Have some trust in the public, the media, and even new media to expose any blatant cases of groups not registered who should be. This is preferable to trying to reach a definition of lobbyist that isn’t either unfairly exclusive or so inclusive it deters communications with MPs.

Defining Communications

  1. Defining what counts as a lobbying communication is also very problematic,
  2. The current definition of effectively all communications on a political or policy issues would cover tweets, e-mails, informal chats at functions, letters, formal meetings, phone calls, text messages.
  3. Unlike some countries, our MPs engage all the time with many New Zealanders – including those who may be considered a “lobbyist”. This engagement is far more than sit down meetings in Parliament Buildings. MPs attend scores of meetings and functions where people talk to them on political issues
  4. Speaking personally, I talk to and engage with a number of MPs (from many parties) many times a week. Often we chat socially Sometimes we discuss current events. Sometimes we discuss legislation and policy. The thought that I have to disclose every single discussion I have with MPs (let alone parliamentary staffers) on say Internet related issues (as I am technically a lobbyist for InternetNZ, as this bill is defined) is horrifying. It would be like working for one of those awful law firms where you have to account for every six minutes of your time.
  5. You could restrict the law to be face to face meetings in Parliament only. But then you’ll provide incentives for those not wanting their every discussion with an MP disclosed to avoid face to face meetings and use other mediums.
  6. How do you draw a line where an e-mailed communication is counted as lobbying, but a tweet is not? I think it is mission impossible.
  7. I note that Ministers are already obliged to release their ministerial diaries under the OIA, if requested. We already have transparency with Ministers. They can be asked written or oral questions about whom they meet with or talk to, as well as the OIA.
  8. If there is a desire for greater transparency around meetings with opposition MPs and backbench MPs, then that could be achieved by having them release their diaries also by extending the OIA to Parliamentary Service. That nature of diaries is it will tend to capture planned scheduled meetings, but not ad hoc conversations.
  9. The media can also of course ask MPs about any meetings they have had, and there are political consequences related to refusal to answer.

Summary

  1. I propose that it should not be an offence to communicate with MPs if you are an unregistered “lobbyist”. That is too grievous a restriction on freedom of speech.
  2. I propose that the Select Committee recommend that the Speaker and Office of the Clark establish a Register of Lobbyists, as detailed above. It could be given some formality through Standing Orders if necessary.
  3. I propose that the requirement for reporting all communications between lobbyists and MPs be dropped as unworkable.
  4. As an alternative I propose that MPs diaries be made official information under the Official Information Act, as is the case for Ministers. Note this would still allow deletion of sensitive information as defined under the OIA.

Thank you for considering this submission. I would like to make an oral submission also, and look forward to appearing.

 

David Farrar

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Williams on lobbying bill

September 21st, 2012 at 12:00 pm by David Farrar

Jordan Williams writes in the Dom Post:

Green MP Holly Walker’s Lobbying Disclosure Bill is being sold to the public with the best of intentions.  But as drafted, it constructs such a barrier between MPs and members of the public that it will take us closer to the American-style lobbying industry the bill’s  supporters are hoping to avoid.

I agree with Jordan on this. Often a perverse consequence of regulation in an area, is that it drives out the “good” and only leaves standing those absolutely determined.

Take electoral finance laws and regulations. The US has the most corrupt political finance system in the OECD, yet it has the most regulated. They cap maximum donations, require every donation to be listed online instantly, and the effect has been that lobby groups set up PACs so they can still donate, while Joe Average is scared off.

The bill makes lobbying activity a criminal offence for all but those preregistered with the auditor-general.  It requires all communications, even informal conversations, to be publicly disclosed with the client’s identity and interests detailed.

The bill is badly drafted.  For example it defines “lobbying activity” so widely that it covers any business writing to an MP.

Further, it covers even the most modest or ancillary advocacy.  An accountant emailing an MP about a tax policy on behalf of a client will be committing a criminal offence unless the accountant is a registered lobbyist.  A fine of up to $10,000 for individuals and $20,000 for companies can be imposed.  Even a local farm manager complaining to the local MP at the supermarket about emissions policy would be covered.

The bill doesn’t just cover businesses.  The inclusion of voluntary organisations mean a single email sent by a manager on behalf of a local RSA is illegal unless the manager is also registered as a “lobbyist”. 

Some of these flaws can be fixed at select committee. But it is possible some can not be. 20 years ago almost all communications with MPs were face to face meetings in their offices. Today you engage with MPs in person, at airport lounges, at functions, on Twitter, via e-mail, via Facebook etc.

The Greens’ bill risks our open and accessible political system. As Kiwis we’re fortunate in our ability to easily access our elected representatives.  Most MPs run constituency clinics.  It’s not hard to have half an hour of an MP’s time. We are a small country with very accessible MPs.  Why introduce “big city” barriers between the people and their representatives?

Arguing  the bill is good because it pursues “transparency” is naive.  A law that requires prior registration and public disclosure of every communication with an MP for anyone with a financial interest in lobbying a policy will disincentivise even emailing politicians.  That means it’s harder for MPs to get the information and insights they need.

That’s not good for democracy.  If the bill becomes law, policy arguments will soon turn on who is making them instead of the merits.

That is a real risk.

We want our MPs receiving free and frank briefings from those whom proposed laws are likely to impact. Historically, communication with an MP has been privileged for that reason.  The attorney-general has identified the bill as conflicting with the right for freedom of expression.  Unpopular organisations or causes risk being ostracised.

The Greens will incentivise New Zealanders to use fulltime lobbyists.

Because the bill covers even the most minimal advocacy, it will drive more businesses and organisations to use professionals.  We should protect our culture of picking up the phone and calling our MP.

From my point of view and that of my firm, Holly Walker’s bill will be great for business.  It will push Wellington toward Washington.

But as a constitutional lawyer and New Zealander, I believe the bill should be rejected.

I think the bill is well intentioned, and my preference is to amend it rather than reject it. but it will be challenging to find a compromise that doesn’t have the unintended consequences Jordan writes of.

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Shearer on the union exemption

August 7th, 2012 at 9:00 am by David Farrar

You have to listen to this interview on bFM to believe it. David Shearer tries and justifies Labour’s proposal to exempt unions from the lobbying transparency bill. An extract:

“It is more of what I was just saying before umm ethan is that, you know I get you know trade unions or say salvation army or whatever they are standing up for rights of you know workers or rights of the poor or whatever, or whatever it is likely to be. Umm I don’t look to gain have had any sort of, I don’t look to have any material gain from that as a, as a as an MP–but there is what the the idea was is to try and capture the you know the various sort of business and corporate interests that might you know in a sense be trying to do sort of what you know they do offshore (not sure happens here?) is to buy buy politicans off”

Is the leader of the Labour Party really saying he has nothing to gain from unions, when they are both major funders of Labour, but also now get 20% of the vote on who is the Labour Leader? Unions get a major say in Labour candidate selections also. Yet Shearer says they should be specifically exempt from lobbying transparency requirements!

Again, I recommend people listen to the whole interview – it is far from clear and concise!

 

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Labour fighting transparency

July 30th, 2012 at 10:00 am by David Farrar

No Right Turn blogs:

As everyone by now knows, Holly Walker’s Lobbying Disclosure Bill was unanimously sent to select committee by the House on Wednesday night. The bill has flaws, and this will be a chance to fix them and bring some regulation to this area. Meanwhile, Labour has already put some stakes in the ground, offering amendments which would limit the bill to commercial organisations and exclude NGOs and trade unions from its scope.

Quite apart from introducing loopholes you could drive a busload of lobbyists through, this also undermines the objectives of the bill. “National, patriotic, religious, philanthropic, charitable, scientific, artistic, social, professional, or sporting” NGOs – and unions – are lobbyists just like everybody else, and therefore their lobbying should be disclosed. Trying to exempt them simply makes it look like Labour thinks the rules shouldn’t apply to their mates. And that is neither principled nor fair.

I will be submitting on the bill specifically to oppose these proposed amendments. I suggest others who want proper transparency (rather than just transparency for people Labour doesn’t like) do likewise.

These are appalling amendments by Labour, and show their commitment to transparency to be a nasty sham. The specific exemption for unions is especially self-seeking.

This looks to be a repeat of the Electoral Finance Act. Labour talked transparency around electoral finance law, but what they actually introduced to Parliament has no extra transparency around donations (that was inserted in later, after people such as myself submitted the law should be changed), but instead was around fucking over their opponents.

The bill introduced by Holly Walker is well-intentioned. I hope consensus can be found on an applicable regime. But if the Greens go along with Labour’s amendments, then that bastardises the entire bill, and turns it into a partisan hatchet job. If that occurs, then I’d say Parliament should reject the bill entirely (which National, ACT and United can do).

It makes you wonder why Labour wants to hide the extent of their meetings and lobbying from unions, from public scrutiny. I for one think some sunlight there would be a great thing.

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More taxpayer funded lobbying

June 26th, 2012 at 10:00 am by David Farrar

Last month I blogged on taxpayer funded lobbying. This should be of grave concern, because what it means is effectively you have Government Departments funding NGOs to lobby MPs on what the law should be.

I had a response from the Public Health Association, which was:

Hi David, We would like to respond briefly to your 14 May post about taxpayers funding lobbying. The Public Health Association (PHA) acknowledges you have a valid concern and would like to make it clear that none of the public money we receive is spent on lobbying or advocacy. It is part of our contract with the Ministry not to do so. Any lobbying we do is funded by membership fees, individual donations and fund-raising. Money we receive from the Ministry is spent only on activities such as supporting the public health workforce.

The reality though I believe is that if the vast majority of your expenses are staff, then there is no way you can say that no public money is spent on lobbying.

Now I do not advocate that a body which receives some taxpayer funding should not be allowed to express a view on issues. That would be wrong. But when a body is both primarily funded by the taxpayer, and the bulk of its work appears to be advocacy and lobbying – that is when I think it should not be allowed.

The PHA openly states “The PHA is a voluntary association that takes a leading role in promoting public health and influencing public policy.”, and over 50% of their income is from the Ministry of Health. Most of the remainder is their conference which is I believe 90% public sector funded. Actual voluntary membership fees are only 5% of their income.

I’ve also been sent examples in the alcohol area. An OIA from the Ministry of Health reveals taxpayer funding of Alcohol Healthwatch with $3.35m, the vast majority for “alcohol health promotion”.

Have a look at their website. It is all about lobbying MPs on the Alcohol Reform Bill.

The Health Sponsorship Council has a presentation on their website from ASH. Slide 16 is about how they must “Hold the Government to account”.  ASH is 89% taxpayer funded, and was saying this at a taxpayer funded conference.

This outbreak of taxpayer funded lobbying is not unique to New Zealand. The Institute of Economic Affairs in the UK has published a report called “Sock Puppets: How the Government lobbies itself and why“. It is a compelling read. They note:

For political parties, the benefits of supporting ‘sock puppet’ organisations extend beyond the short-term utility of progressing their legislative agenda whilst in government. Once the party loses power, these groups become a ‘shadow state’ using public money to promote the same political ideology. The new government must therefore choose between withdrawing the funding (which will prompt outrage from the threatened groups) and keeping it in place (which will mean funding politically hostile organisations).

I think the Government should apply a simple litmus test. No organisation which spends say more than 25% of their time or resources or lobbying should be eligible for government funding. They should be forced to split into totally separate organisations if they provide genuinely useful services which should remain funded, but this should not be used to have the bureaucracy use sock puppets to lobby Parliament and MPs on what the laws should be.

Lobby groups should be funded by their members and supporters, not by taxpayers.

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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 lobbying 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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The Lobbying Disclosure Bill

June 12th, 2012 at 11:00 am by David Farrar

Gareth Richards reviews the Lobbying Disclosure Bill in NZ Lawyer:

As drafted, the Bill applies only to lobbyists that receive payment to carry out lobbying activities. This requirement seems difficult to justify, as in principle, there is little difference between:

  • A paid lobbyist lobbying a Minister for policy change on behalf of an organisation;
  • A person lobbying a Minister for policy change voluntarily on behalf of an organisation; and
  • A person lobbying a Minster for a policy change for their own private benefit.

It is unclear why being paid to lobby is a threshold test that triggers the requirement to disclose lobbying activities. The explanatory note offers no clues to explain why paid lobbying has been singled out.

One reason may be that removing the payment requirement would open “lobbying activity” up to an extremely large number of interactions; absent the ‘payment’ requirement, arguably a constituent who met with their local MP seeking a policy change would meet the definition of “lobbying activity”.

Requiring a payment relationship between the lobbyist and his or her principal before the lobbying activity is reported risks an under-inclusive regime. It will catch only a subset of the influence the Bill is concerned to cast sunlight on. There are readily conceivable scenarios where individuals may seek to lobby Ministers and MPs to obtain private benefits, for example immigration or foreign investment policy changes, which would not be caught by the Bill as drafted because the lobbyist is not paid for his or her services. There are also people who will, unpaid, communicate with MPs or Ministers on behalf of influential groups and organisations.

The current definition is problematic. I would have to register as a lobbyist for InternetNZ (which I do little lobbying on behalf of) yet would not to have to register as a lobbyist for KeepIt18 (which I do much lobbying on behalf of).

MPs and local authorities frequently lobby Ministers and other MPs about legislative, regulatory, and policy change, yet there is no requirement to disclose these activities under the Bill.

It is presumed the response to this is that lobbying is such a core and frequent part of the role of MPs and local authorities that: (a) it does not need to be proactively disclosed; and (b) if it had to be disclosed, the volume of interactions would make the register unworkable.

If those responses are accepted, then the Bill will create two classes of lobbying – one done by elected representatives which the public must uncover in some way and another done by everyone else which must be proactively disclosed.

Also a valid issue.

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Taxpayer funded lobbying

May 14th, 2012 at 2:00 pm by David Farrar

This is an issue that should be investigated by the Government or the Auditor-General. Yet again we have evidence of taxpayer-funded groups using their funding to lobby the Government for specific law and policy changes.

This is an extremely bad thing. The Government should not be effectively paying people to lobby Parliament and the Government a specific way.  Just as Ministries are forbidden to lobby, it is equally wrong for them to contract other groups to lobby.

This was first exposed in 2003. Then ACT MP Rodney Hide revealed that Action on Smoking and Health (ASH) and five other NGOs were receiving taxpayer money from the Ministry of Health to help lobby MPs on the Smoke-free Environments Amendment Bill (the one that banned smoking in bars and cafes).

The Director-General of Health then ordered a State Services Commission investigation into the matter (the Hunn/Brazier inquiry). Hunn and Brazier considered that the advocacy and lobbying clauses in six contracts were unacceptable under public service standards and in their view could compromise the political neutrality of the Ministry of Health. They recommended that future agreements with NGOs explicitly exclude lobbying activities.

The Treasury’s most recent guidelines (2009) for contracts with non-governmental organisations also make it clear: “Government agencies should also be careful to ensure that contracts do not breach public service standards of political neutrality”.

However, the Health Ministry is still funding the “advocacy” and “awareness raising” that these organisations engage in. The Ministry still funds ASH and other organisations like the Public Health Association – it is just more careful about what it puts in the contracts.

The current ASH contract allows it to “liaise with government and private health agencies, the media and any other appropriate organisations to raise public awareness of tobacco related issues and developments”. It says it will “prepare and distribute media briefings, commentary and releases on key tobacco issues. This will include maintaining relationships with key media.”

A quick look at the ASH website makes it clear it is a lobby group, but a lobby group that gets 89% of its funding from the taxpayer. I am all in favour of taxpayer funding quit smoking initiatives, but not funding a lobby group. One of its values is “A dedication to influencing public policy and social norms to tobacco related harm.” It has a page on its current campaigns, of which seven are about law changes, only one is actually about quitting smoking,

The current ASH contract provides for it to receive $578,000 p.a of taxpayer money in 2012. I’d say the vast majority of this goes on lobbying and media activities.

The Public Health Association received $311,967 from government grants in 2011, $305,843 in 2010 and $323,498 in 2009. In its financial statements it lists an item of income as “Advocacy/Healthy Public Policy”, as well as “Informed Debate/Communications”.

The PHA says that it “takes a leading role in promoting public health and influencing public policy…Our goal is to improve the health of all New Zealanders by progressively strengthening the organised efforts of society by being an informed collaborative and strong advocate for public health.”

On its website it has a letters to the editor guide.  It says: “Do you feel strongly about a public health issue? Write a letter to the editor using our simple letter writing techniques, list of email addresses and examples of sample letters (alcohol, housing, tobacco, oral health and preventing family violence).”

Smoke-free Coalition

The Smokefree Coalition (www.sfc.org.nz) says it is “committed to preventing the uptake of smoking among young people and reducing the smoking rates of all New Zealanders” and it has published a road-map for how to make NZ smoke-free by 2025. It received $167,213 in 2011 and 2010 and $179,890 in 2009 from government. This represented 98%, 96% and 95% of its funding in each of those years.

Those are just three examples where there is over a million dollars a year of government money going to NGOs for lobbying.

Another example is  the Turanga website (a government funded anti-smoking research initiative) has posted a page listing “3 ways to support a tobacco tax increase.” One of the ways is to write to MPs. The website directs readers to http://www.taxtobacco.org.nz/ in which readers can fill in their name and write a personal message to Key, Ryall, English or Turia. Readers can select from a range of sentences that they have written for them.

Now I personally support an increase in tobacco tax. But that is not the point. Government money should not be used for NGOs to campaign for what the law should be. It is the thin end of corruption.

The second way of supporting a tobacco increase is: “ASH have some tax postcards to send to John Key, Bill English, Tony Ryall and Tariana Turia. If you would like a batch please email ash via their website www.ash.org.nz with your postal address and let ASH Director Ben Youdan know how many you need.”

That is also explicitly political lobbying.

As an individual taxpayer I’d be quite happy to donate some of my money to anti-smoking groups. But the Government should only fund anti-smoking groups which actually provide stop smoking services or genuine medical research. They should not fund advocacy groups to influence public opinion on future law and policy changes. ASH and the PHA should have their public funding removed, and they should rely on donations like all the other advocacy groups out there have to.

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Key on Members Bills

April 16th, 2012 at 3:00 pm by David Farrar

Danya Levy at Stuff reports:

Key, who is in Jakarta on a trade mission, said he had discussed the use of the veto with English, who made the announcement while the prime minister was on holiday with his family.

Everyone acknowledged paid parental leave was important for mothers and families.

“It’s an important time they bond with their children. Everyone acknowledges having more time with their infants would be an important thing to support.”

However, the Government’s number one priority was getting its books back to surplus.

“We think when the Government’s balance sheet is in order, that provides greater strength for families overall because it is not just paid parental leave we support; it’s Working For Families, it’s access to early childhood education and many other initiatives.”

The reality is that surpluses give you options, deficits just give you debt. Borrowing money to fund extending paid parental leave is not sustainable.

Meanwhile, Key has indicated he would support a Green members’ bill to introduce a record of lobbyists who work at Parliament.

“I don’t think any Government has done as much in terms of introduced transparency into Parliament as we have in the past three-and-a-half years. There’s much greater transparency in terms of MPs’ expenses and the likes.”

Key said he was not “fundamentally opposed” to having a register.

“That’s a matter for our caucus to consider but in principle I’m not opposed to it potentially going to a select committee.”

I’m not a clairvoyant, but I predict National will vote for the bill at first reading :-)

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The Lobbying Disclosure Bill

April 11th, 2012 at 12:00 pm by David Farrar

One of the bills drawn out of the ballot last week was the Lobbying Disclosure Bill in the name of Holly Walker, bur originally drafted by Sue Kedgley.

The Herald had a headline “Long time lobbyist lobbies against lobby law”, but in fact the substance of the story was quite different:

One of the country’s longest standing lobbyists says a bill which would force lobbyists to register and disclose their clients and meetings with Government ministers is not necessary in New Zealand.

Mark Unsworth, a partner of government relations firm Saunders Unsworth, said he was not against the proposals in a Green Party bill which will soon go before Parliament but did not believe it was necessary.

I would suggest that this bill is a solution looking for a problem. But as no one wants to be seen as against transparency, it will probably proceed. Like Mark Unsworth, I have no problem in principle with the intent, but people should be aware of how far reaching the bill may be.

The Dom Post editorial is in favour of the bill, as is the Herald.

The proposed bill makes it an offence for any person to engage in lobbying activity, unless they are registered with the Auditor-General. The definition in the bill of lobbying is very wide. I blogged last year:

Arguably I could be regarded as a lobbyist for InternetNZ. For many years I chaired their Public Policy Committee as Vice-President of InternetNZ. As VP I had a small honorarium of $12,000 a year. I’ve retired as VP, but still chair the now titled Policy Advisory Group. This involves literally chairing the monthly meetings, but also meeting with policy staff regularly to help develop submissions, pro-actively identifying policy issues etc. I am now technically a contractor, as I am no longer an officer, and still get $12,000 a year for it.

Now for the last seven years or so, I’ve been one of the InternetNZ people who speaks to our submissions at select committees, and meets with MPs to advocate for what we regard as good for the Internet.

One could argue I am a paid lobbyist for InternetNZ in my current role. I don’t quite see it like that because my advocacy is based on my beliefs of what is good for the Internet, which coincide with InternetNZ. But under the proposed law, I might be classified as a lobbyist. Now that doesn’t worry me at all, but it seems strange to me as I’m not like a lawyer or lobbyist who will argue for a client regardless of their own beliefs. If ever INZ adopted a policy position I disagreed with, I would not take part in the advocacy around it.

Now depending on how you define a lobbyist, my advocacy on behalf of InternetNZ might be deemed lobbying in my role as a contractor to them, but how about when I was their Vice-President? I was doing much the same then, as I was today. I would argue you should say that if I am deemed a lobbyist as a contractor, I am also a lobbyist as an office holder.

Now if you do take that definition, then just be aware that an awfully large number of people will now be classified as lobbyists. I’d suspect 1,000+ people would fall into that definition.

Now if I am classified as a lobbyist for InternetNZ, then under this bill I’d say I’d have to report any tweets I direct towards MPs on Internet related issues.

At Kiwi Foo Camp there was a roundtable discussion with David Shearer, David Cunliffe and Clare Curran on innovation. I’m pretty sure we discussed some Internet issues there, so does that have to be disclosed even though there were 40 people in the room?

What if I go to a Meet the Candidates meeting and ask MPs a question on copyright issues, mentioning my own views on them? Do I face a $10,000 fine for not including that?

How about my blog posts? I know many MPs read this blog. Does that count as a communication towards them, that must be disclosed?

The bill should be supported at first reading. Its intent is worthy. However I think a select committee will have to very carefully consider it to ensure it doesn’t become a bureaucratic monster where (for example) every discussion between a Greenpeace activist and a Green MP doesn’t require forms in triplicate.

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Health Research?

May 23rd, 2008 at 3:00 pm by David Farrar

From Murray McCully’s newsletter:

Lobbyists Scam Health Budget
Amongst the apparent beneficiaries of yesterday’s Budget was an outfit called the Health Research Council, originally established to award grants for valuable scientific research in the health sector. In the last financial year it received nearly $70million from the nation’s taxpayers. And yesterday Dr Cullen announced that health research would be boosted by $4 million. The Council is part of a wider portfolio of science funding totalling $550 million, accorded critical review in previous editions of this newsletter. And this week it is the turn of the Health Research Council to receive such constructive scrutiny.

Members of the Health Research Council are appointed on the advice of the Minister of Health. The primary function of the Council, according to S6 of the Health Research Council Act is “to advise the Minister on national health research policy…” So the Council is, through the Minister, responsible to Parliament and it is funded through an appropriation granted by Parliament.

Last year the Health Research Council decided to approve a grant of $701,000 to a group of researchers from the Wellington School of Medicine, a branch of Otago University, to study “policymaking to reduce smoking around children. The fact that said group of researchers might accurately be described as anti-tobacco activists is underlined by the fact that the application discloses over $1.8 million in grants to members of the group for tobacco-related research over the previous three years.

The summary makes clear what the research will actually involve: “Smokefree policies can be expanded by government policies,” we are told. “So as to help advocates, this research aims to determine obstacles/opportunities within policy processes, for interventions appropriate to specific population groups.”

The subsequent detail makes it clear what the thrust of the research involves: “recorded face to face anonymous transcribed interviews will be conducted with at least 55 past/current politicians…” In addition to researching “policy statements, official advice and party policies,” the project will include “searches for relevant voting records and statements by politicians during the period from 1996 to the present. All of this, a bargain at $701,000.

So it works like this: a Research Council that is being funded by Parliament to provide quality research for Parliament in the area of health science is instead spending that money researching the Members of Parliament themselves, their speeches, their advisors and their voting records. And the purpose of this exercise is not to come up with new scientific discoveries that might benefit the health sector, but, in their own words, “to help advocates.”

So taxpayers’ money that should be advancing the health of New Zealanders by funding new scientific breakthroughs is instead funding the preparation of resource material for lobbyists about the Members of Parliament who gave them the money in the first place. Which will presumably be useful because those same lobbyists will also be able to lobby for increased health science funding which can then be diverted into further lobbying. Which of course, is what our foolish Government has just done to the tune of $4 million a year. Isn’t that just the scam of the century?

So basically this was a $700,000 grant paid to anti-smoking activists for them to research on how they can be more successful activists!!

I’d like to get a grant from the Health Research Council so I can interview people on how I could be a better blogger!

There have been other examples in the past of how the Government funds lobby groups to lobby Parliament. It is quite simply wrong. Lobby groups should not be taxpayer funded for their lobbying. It is fine to be funded for other activities but it is the thin end of a corruption wedge to have the Government fund lobbying of MPs.

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