Submission to the Government Administration Committee. on the Lobbying Disclosure Bill

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1 Submission to the Government Administration Committee on the Lobbying Disclosure Bill

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3 Lobbying Disclosure Bill Submission to the Government Administration Committee by the Public Service Association: Te Pūkenga Here Tikanga Mahi Introduction 5 October 2012 We are The New Zealand Public Service Association Te Pūkenga Here Tikanga Mahi (the PSA) is the largest trade union in New Zealand with over 58,000 members. We are a democratic organisation representing members in the public service, the wider state sector (the district health boards, crown research institutes and other crown entities, state owned enterprises, local government, tertiary education institutions and nongovernmental organisations working in the health, social services and community sectors. The PSA is not affiliated to any political party but we are a politically active organisation. We have regular contact with politicians and senior public servants nationally. As an organisation with members across the country, we have members and delegates contacting their local MPs on a regular basis as well. We therefore have a major interest in this legislation. We are an affiliate of the New Zealand Council of Trade Unions and support their submission. We wish to appear before the select committee in support of this submission Overview We support the principles behind the bill What is the extent of the problem? The PSA supports the principles behind this bill. We believe that lobbying activities carry the risk that some interest groups may secure unfair advantages or misuse their position to influence decisions to their benefit and that some regulation of this area is necessary. While most concern is likely to focus on the use of professional third party lobbyists, we accept that it is both impractical and inconsistent to exclude nongovernmental organisations, such as unions, from the bill. For the PSA the main question is whether the extent of the problem in New Zealand warrants the comprehensive form of regulation proposed in the bill. We note that New Zealand consistently scores well on Transparency International s Corruption Perception Index and that we are currently ranked first out of 183 nations. 1 However, 1 3

4 we cannot afford to be complacent and we also note that Transparency International s corruption barometer asked people in different countries how the level of corruption had changed in the last three years. 73% of those surveyed in New Zealand thought that it had increased as compared to 54% in Australia, 62% in Canada, 36% in Fiji, 32% in Singapore, 72% in the United Kingdom and 72% in the United States. 2 We need a system of regulation that is appropriate for NZ It is concerning that such a high percentage of New Zealanders believes that the country has become more corrupt over the last three years. Commercial lobbying activity appears to have become more prominent in recent years, for example in the case of the proposed Auckland convention centre and the resistance of tobacco companies to plain packaging of their product. Internationally countries such as Canada, Australia and the United Kingdom have either regulated or are in the process of regulating lobbying activities. All of this suggests that, while New Zealand does not have a major problem with corruption, it is worth addressing the issue. However, the PSA believes that we should design a system of regulation that is appropriate for the culture and context of New Zealand. The bill as proposed provides for a register of lobbyists and a code of conduct, both of which are to be administered by the Office of the Auditor-General. It defines lobbying and lobbying activity quite broadly. It also requires registered lobbyists to file quarterly returns to the Auditor-General on their lobbying activities. We are aware of debate about which government agency should administer this legislation but given our recommendation for a low-level form of regulation and given the size of New Zealand we do not think that a specialist agency (as exists in some overseas jurisdictions) should be created for this purpose. We therefore agree that the Office of the Auditor-General is the appropriate agency to manage any regime to regulate lobbying. Given the relatively limited extent of the problem in New Zealand, we propose that a system of regulation be developed that is based on the purpose of the bill, which is to increase the transparency of decision-making by executive government by (a) Establishing a Register of Lobbyists which is administered by the Auditor- General: (b) The development of a Lobbyists Code of Conduct and providing powers to the Auditor-General to investigate alleged breaches of the Code. This would not require a burdensome system of monitoring and reporting all contact between lobbyists and Ministers, their staff, and MPs. Even for an organisation the size of the PSA this proposal will require the allocation of additional resource and is likely to be difficult to manage, given that we will have delegates and members approaching MPs in their constituencies sometimes wearing a PSA hat and sometimes not. For smaller NGOs this will be almost impossible to manage. 2 4

5 A low level approach to the regulation of lobbying, such as we have described here seems like a good first step. A corollary of this should be a review of the legislation after an appropriate period (say five years) when a proper evaluation should provide evidence of whether a disclosure regime is also required. What are the gaps in the bill? However, there is another question about whether there are potential problems that may need to be addressed, but which the bill in its current form does not address. Senior public servants are currently excluded from the bill, and yet their position of influence can make them a target for lobbying activities. Similarly there is nothing in the bill about revolving door provisions or cooling-off periods, before former public office holders (or senior public servants) can register as lobbyists. The PSA recommends that we include senior public servants in the legislation and provide for a cooling off period after they leave office before they can register as a lobbyist. We need more time for discussion and debate Notwithstanding the positions we have outlined above, we think that the implications of this legislation would be far reaching and it therefore requires in depth discussion and debate. The circumstance of this bill being drawn from the ballot means that we have not had that and we would strongly suggest that more time is taken to develop a system of lobbying regulation that has wide acceptance. In addition to these main points there are a number of other issues we wish to discuss in more detail in our submission. Submissions on the bill That the definition of lobbying activity be changed to exclude communications between MPs and constituents That organisations must register as Definition of lobbying activity and lobbyist The definitions of lobbying activity and lobbyist contained in the bill are both very wide. We understand that this approach was taken in an effort to capture all relevant activity and limit the scope for avoiding the disclosure regime. However, we are concerned that it could pick up the involvement of our members in communicating with their local MPs. The Attorney-General raised this as one of his concerns about the bill s limitations of freedom of expression. We think that the definition of lobbying activity should be changed to exclude any communication between a constituent and their member of parliament. Consideration should also be given to whether this exemption should be extended to communications between citizens and list MPs. Onus of registering and filing returns A related change would be to place the obligation to register and file returns on the organisation that a lobbyist represents, rather than on the individual or company undertaking lobbying on their behalf. The PSA thinks that this will make it clearer 5

6 lobbyists That the lobbying regulation regime in NZ be based on compulsory registration and a code of conduct for lobbyists who is undertaking lobbying and make compliance costs easier to manage. Register and Code of Conduct The Attorney-General argued that the obligation on lobbyists to register (as well as the obligation to disclose information about lobbying activities undertaken), while not preventing expression, would limit the ability to express information freely. We understand this rationale in relation to the disclosure regime (although we do not agree with it) but cannot see how it can relate to a register of lobbyists. A register, and a supporting code of conduct, would be a valuable tool in establishing commonly understood standards of integrity and conduct and encouraging transparency when breaches of the code are revealed. They will not require disclosure of private communications unless a breach of the code was suspected or established. A code of conduct would set a useful guide to acceptable behaviour. The relationship between lobbyists and public office holders is of interest to the media. The existence of the code should sharpen the expectations of the media and public in the conduct of lobbyists and politicians, which could lead to greater scrutiny. We see the register (together with the code) as being a useful and appropriate step in the regulation of lobbying. Together these measures may be sufficient, at least until an evaluation of the legislation can be carried out. That the bill does not include a reporting or disclosure regime That there be a range of penalties that are appropriate to the type of organisation Reporting The PSA believes that the reporting regime proposed in the bill would be burdensome for non-governmental organisations, including unions. Most have limited resources and to monitor and report on all interactions with public office holders will place an intolerable burden on most. For a union the size of the PSA it will still mean that some part of members subscriptions will have to be deployed into monitoring and reporting activities. It will also lead to avoidance behaviours by some lobbying organisations, which could undermine the effectiveness of the legislation. We therefore would oppose a reporting or disclosure regime as provided in the bill. Sanctions Sanctions need to be effective and, in the world of lobbying and politics, exposure is probably the most effective sanction of all. Nonetheless, there will need to be sanctions associated with the regulatory regime. We would recommend that there should be a range of penalties available, ranging from a censure, to deregistration, and an appropriate range of fines. Fines need to be appropriate to the resources of the organisation that is in breach of the code, and also reflect their capacity and competence to manage their obligations under the legislation. A fine of $20,000 could be crippling to a small organisation or individual but represent a minor irritant to a large corporation. 6

7 We also note that one of the privileges for overseas lobbyists is to have long-term freedom of access to the premises of parliament. Breaches of a code of conduct may result in deregistration and withdrawal of access. In New Zealand where access to parliament for members of the public is relatively easy, this might not have the same leverage as other countries but should also be part of the deliberations by the select committee. That there be a broad exclusion of state sector employees engaged in communication with public-office holders as part of their normal duties. Exclusion of state sector employees Clause 7(6) of the Bill attempts to exclude government and local government employees acting in their official capacity from the definition of lobbying activity, so that they cannot be considered to be lobbyists when doing their job. For state sector employees it does this by excluding any person working for any department listed under Schedule 1 of the State Sector Act However, this does not exclude state sector employees employed by other government agencies outside the core public service. This could place state servants, such as those working for the NZ Police or the NZ Defence Force in an invidious position and needs to be replaced by a broad exclusion of all state sector employees who are engaged in communication with public-office holders as part of their normal duties. We note that such an exclusion exists in the Canadian legislation. Submissions on gaps in the bill That lobbying regulation apply to lobbying activities involving senior public servants Exclusion of senior public servants The bill currently focuses on the lobbying of politicians, but Australia and Canada are among those countries where the lobbying of senior public servants is subject to lobbying regulation. Public servants are obliged to maintain contact with all stakeholders and also to gather information and provide advice to their Minister. This means that they quite properly engage with organisations and individuals who would qualify as lobbyists and that they are also in a position to influence the Minister. They should therefore be covered. Consideration would have to be given to which public servants would be within the scope of the legislation. Chief executives have direct access to the Minister and responsibility for the advice given, so should clearly be included. Where a department has those operating at tier two or even tier three, who are responsible for specialist policy or regulation there is a case for including those levels, given that the Chief Executive is likely to be highly dependent on their advice and they are likely to have access to the Minister (albeit through the chief executive). Consideration should also be given to including officials who have decision making responsibilities over the letting of contracts or major procurement decisions. We have no conclusive view on where this boundary should be, but raise it as an issue for the select committee s consideration. 7

8 That the legislation include a cooling off period for public office holders and senior public servants registering as a lobbyist. That the Committee explore the need to include the payment of success payments as a criminal offence That the legislation include obligations on Ministers and MPs Cooling off periods It is common in overseas jurisdictions for there to be a cooling off period before former legislators (or senior public servants) can register as lobbyists. This can be as long as 5 years in the case of Canada although 18 months appears to be the most common period. In the small and intimate labour market of New Zealand an extended cooling off period is likely to place unnecessary restrictions on former MPs or senior public servants seeking employment. However, the PSA believes that a period of a more limited duration would be appropriate. It should involve working as lobbyist in an area that calls directly upon the inside knowledge gained as working as a Minister or a senior public service. We are aware of at least one situation where, during the decision-making around a contentious policy issue, a senior public servant left their position to work for the industry organisation concerned. Whether or not decisions were improperly influenced, this action was inappropriate. Success payments We are aware that in New South Wales the Lobbying of Government Officials Act 2011 makes it a criminal offence to pay or receive a success fee for lobbying. The NSW Government Lobbyist Code of Conduct has also been amended to require the Director-General to remove a lobbyist from the register if they have been found guilty of that offence. This might be an issue that is worthy of consideration. Obligations on the lobbied Most Australian states have a code of conduct for MPs as well as a Code of Ministerial Conduct. This could, if necessary, extend to them reporting on communications. It would appear reasonable to place some responsibility on both sides. An issue for deliberation in the Select Committee should be a requirement on MPs and Ministers to also be transparent and accountable in regard to lobbying directed at them. This could focus on gifts and other potential inducements, but a specific requirement could be made for lobbyists to also report any such gifts and potential inducements as a cross-check. For further information about this submission contact Glenn Barclay E: T: (04) M: (027)

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