My submission on the Lobbying Disclosure Bill

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

4. 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.
5. 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.
6. 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”.
7. 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.
8. 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.
9. 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

10. 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.
11. 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.
12. 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.
13. 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.
14. 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.
15. 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.
16. I believe the bill, in its current form, would be extremely detrimental to New Zealand democracy.

Defining a Lobbyist

17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. If there is to be mandatory registration of lobbyists, then the definition must include NGOs, not just businesses.
23. 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.
24. 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.
25. 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.
26. 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!
27. 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.
28. 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.
29. 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

30. Defining what counts as a lobbying communication is also very problematic,
31. 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.
32. 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
33. 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.
34. 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.
35. 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.
36. 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.
37. 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.
38. 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

39. 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.
40. 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.
41. I propose that the requirement for reporting all communications between lobbyists and MPs be dropped as unworkable.
42. 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