PUBLIC POLICY ADVOCACY IN NEW ZEELAND

The New Zeeland House of Representatives usually consists of 120 Members of Parliament (MPs), sometimes more due to overhang seats. 70 MPs are elected directly in electoral seats and the remainder are filled by list MPs based on each party's share of the party vote. The form of New Zeeland government essentially follows the Westminster system and the government is led by the Prime Minister and cabinet who are chosen from amongst the members of the House of Representatives.

Back in 2012, a Lobbying Disclosure Bill was introduced in the New Zeeland Parliament and unanimously passed at first reading. The Bill sought to bring a measure of transparency and public disclosure around lobbying directed at Members of Parliament and their staff. The Bill would have established a Register of Lobbyists and a Code of Conduct, and make it an offence to engage in lobbying without being registered. Returns of lobbying activity would have been filed with the Auditor-General, and this information would have been made available to the public. Failure to comply with the Code of Conduct, or file returns, could have resulted in suspension or removal from the Register.

Having passed first reading, the Bill was subsequently referred to the Government Administration Select Committee for further consideration. The Government Administartion Select Committee recommended in October 2013 that the Bill not be passed. Instead the Government Administration Select Committee made three broad recommendations but no timeframes were given for their implementation.

1. Improved guidance for MPs: that the House develop guidelines for MPs on handling communications relating to parliamentary business;
2. Reporting on organisations consulted in the development of legislation: that the Government require Regulatory Impact Statements (RISs) and explanatory notes of parliamentary bills to include the names of any non-departmental organisations consulted during the development of related policy and legislations; and
3. Proactive disclosures of policy papers by departments: that the Government encourages the proactive release of policy papers to make the policymaking more transparent.

Issues with the Bill

The Attorney-General examined the Bill under section 7 of the New Zealand Bill of Rights Act of 1990, and concluded that the Bill could limit freedom of expression, that the Bill went well beyond what would be required to regulate the activities of lobbyists.

The Committee received 103 submissions from interested groups and individuals. Most submitters on the Bill supported its intent, but questioned the appropriateness of the proposed regime for the New Zeeland context, with substantial amendments to the Bill being sought to limit its application. The key issues raised by submitters included the following:

• the need to define more tightly key terms, such as 'lobbyist', 'lobbying activity' and 'public office holder';
• whether a disclosure regime should apply to interactions with Ministers, MPs, or both;
• the components a disclosure regime should include, such as Register of Lobbyists, a Code of Conduct, and Reporting Requirements;
• the type of information lobbyists should be required to disclose, and how often;
• whether the regime should be mandatory or voluntary; and
• which government agency could best administer a disclosure regime.

The Committee's own view was that the Bill could have unintended consequences for the openness of New Zeeland democracy by limiting the ability of people to express opinions and impart information freely. Ultimately finding that the legislative response being proposed in the Bill was not the best way to improve the transparency of lobbying and decision-making in New Zeeland.

Next Step

The House has yet to develop some form of guidelines for MPs on handling communications and interactions with lobbyists. The Committee has suggested that these guidelines should focus on the mechanisms for disclosure and reporting by MPs and lobbyists, and developing definitions of key terms such as 'lobbyist' and 'lobbying activity'. The difficulty of overly broad definitions will continue to be a problem for drafters. However, this is likely to be bridged to a significant degree by focusing on 'professional' lobbyists, being persons who interact with government on behalf of non-governmental organisations for a fee. Access to parliament is also likely to be a trigger for reporting.

The Committee also suggested that any guidelines could build on provisions in the Standing Orders, including those relating to contempt of the House and bribery of Members of Parliament, and provisions in the Crimes Act 1961 relating to corruption and bribery. However, the apparent public concern about lobbying appears to be much broader than the relatively narrow and serious focus of these instruments, which relate to inherently 'bad' activities. Lobbying reform is essentially about transparency in relation to otherwise 'good' or at least 'neutral' activities. So whilst regulation will need to dovetail with these matters, it will need to take a broader, different and more permissive approach.