Friday, September 21, 2012

Jordan Williams: Lobbying bill will distance people from MPs

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.

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".

The problem the bill tries to resolve doesn't exist.

The bill states its purpose is to increase the transparency of decision making.  The Greens argue it will solve lobbyists having "improper influence over government policy".  Ms Walker has said lobbyists are "even able to write and determine policy".

Those claims are extraordinary.  Is she saying our MPs are so weak in their resolve that a few lobbyists twisting ears causes MPs to hand over the drafter's pen?

New Zealand law-making is already very transparent.  With very limited exceptions we do not have a problem with political corruption.  Existing law already targets gifting and the kind of corporate hospitality that implies improper influence.  Any gifts made to an MP with a market value of more than $500 must be publicly disclosed on the existing Register of Pecuniary Interests.  Electoral law requires all large donations to be disclosed.

Ministers are often asked under the Official Information Act who they've met with in their ministerial capacity.  If a few dinners and bottles of wine (worth less than $500 in total) can dictate policy in Wellington, New Zealand has much larger problems than any bill will fix!

Lobbying is essential if organisations and individuals are to effectively communicate their views to the Government.  Like lawyers, lobbyists merely frame arguments and submissions to maximise their persuasiveness in the political context.  They balance the power of officials who often have their own interests, views and objectives.

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.

How willing would Green MPs be to meet with a mining company executive when the MP knew the meeting could be on the front page of the Dominion Post?  It would not matter how sensible or insightful the mining executive might be.

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.

Jordan Williams is Wellington-based public and commercial lawyer at Franks&Ogilvie. Select committee submissions on the Lobbying Disclosure Bill close on October 5. This article was first published in the Dominion Post.

1 comment:

Duncan Brown said...

"It requires all communications, even informal conversations, to be publicly disclosed" - yet another bureaucracy in-the-making.

If it's so bad, why did Parliament let it pass first reading?

What chance the bill will be cleaned up in select committee?

From the explanatory note: "Returns will disclose who is undertaking lobbying activity, who is being lobbied, who is paying for lobbying activity, the subject-matter being lobbied about, and lobbying methods used. Failure to file returns may result in individuals being suspended or removed from the Register of Lobbyists." and we thought employer compliance was time-consuming and expensive.