More lethal criticism of Lobbying Transparency Bill

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.