General policy statement
This Bill seeks to bring a measure of transparency and public disclosure around the lobbying activity directed at members of Parliament and their staff, and in so doing to enhance trust in the integrity and impartiality of democracy and political decision making.
It seeks to ensure that lobbying takes place in as open a way as possible, and in a way that protects the interests of the public, and to establish ethical standards for lobbying activity in New Zealand, with the prospect of sanctions if rules are broken.
Democracy thrives on transparency and open government—and there have been recent moves to bring more transparency to political donations, freedom of information, and members' expenses. However, professional lobbyists who seek to influence government policy or legislation, are able to operate in secret, under the radar, in the shadows of the democratic process, often undetected and unreported.
There is no public scrutiny of the activities of people who are paid to lobby parliamentarians, their staff, or public servants. Nor is there any code of ethics. This means there is no way of knowing who is engaged in the lobbying process, who is lobbying whom, and for what purpose.
And unlike many professions that are regulated through legislation and controlled by registration boards that set and maintain standards of practice and conduct, there are no clear standards or codes of conduct for lobbyists.
The secrecy and lack of any public disclosure regime around lobbying activity fuels public perceptions that some lobbyists may exert undue or improper influence over government or policy, and that the growth of lobbying has subtly shifted the political landscape in favour of corporate interests. It also undermines trust in the integrity of government and our democracy.
Lobbying is entrenched in our political system, and has become an increasingly important part of the political process. Long before Bills have reached Parliament, lobbyists will have been meeting with public servants and members seeking to influence legislation, and make amendments to it. Some lobbyists and special interest groups are even able to write and determine policy.
There is public interest in parliamentarians and the general public knowing who is engaged in lobbying activities that seek to influence public policy, and where they are directed.
This can be achieved in a relatively straightforward way, by a Register of Lobbyists and a Lobbyists' Code of Conduct. These mechanisms will provide some public disclosure of the activity of lobbyists, and set some rules around the conduct of lobbying. It will also provide some assurance to the public that lobbying is being carried out ethically and that lobbyists are not exerting undue or improper influence on Ministers and members of Parliament.
This Bill follows recommendations by the Public Governance Committee of the Organisation for Economic Co-operation and Development (OECD) by requiring the public disclosure of lobbying activity and by establishing a Lobbyists' Code of Conduct, to which lobbyists will be held accountable.
The Bill will require any paid lobbyists to be on a Register of Lobbyists. Failure to register would be an offence. The Register will be administered by the Auditor-General. Returns of lobbying activity will need to be filed with the Auditor-General and this information will be made publicly available on a website maintained by the Auditor-General's office.
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.
The Bill will require the Auditor-General to develop a Lobbyists’ Code of Conduct that will clarify the standards of conduct expected of lobbyists. The Auditor-General will be given powers to investigate alleged breaches of the Code and to report his or her conclusions to Parliament. A breach of the Code may result in suspension or removal of individuals from the Register of Lobbyists.
Australia and Canada both have well-established compulsory Registers of Lobbyists. This Bill is aligned closely with the principles of the Canadian model in the information required to be disclosed and the methods of reporting.
Clause by clause analysis
Clause 1 is the Title clause.
Clause 2 is the commencement clause. The Bill will come into force on the day after the date on which it receives the Royal assent.
Clause 3 sets out the purpose of the Bill, which is to increase the transparency of decision making by executive government by:
establishing a Register of Lobbyists that is administered by the Auditor-General
the development of a Lobbyists' Code of Conduct and providing powers to the Auditor-General to investigate alleged breaches of the Code.
Clause 4 contains definitions of terms used in the Bill.
Clause 5 states that the Act binds the Crown.
Registration of lobbyists and returns of lobbying activity
Clause 6 requires any individual engaged in any lobbying activity to be registered with the Auditor-General as a lobbyist before engaging in the lobbying activity and lists the information that must be provided to the Auditor-General to register as a lobbyist.
Clause 7 sets out requirements for returns that must be filed with the Auditor-General by any individual or company or firm or organisation engaged in lobbying activity. Some activities and classes of persons are expressly excluded from the definition of lobbying activity.
Clause 8 states that returns must be certified in accordance with the manner specified by the Auditor-General. This provision recognises that returns may be permitted to be filed in different forms, including in paper and electronic forms.
Clause 9 requires any individual who, or company or firm or organisation which, files a return of lobbying activity to provide the Auditor-General with additional information if requested to do so, to clarify information in either a return or any additional information previously provided to the Auditor-General.
Clause 10 states that the Auditor-General must establish a Register of Lobbyists containing a record of the individuals registered as lobbyists, returns, and other documents, which must be available in full to the public.
Clause 11 provides the Auditor-General with the power to suspend or remove individuals from the Register of Lobbyists where returns are not filed or additional information is not provided as required. Suspensions and removals will need to be notified to members of Parliament and chief executives of government departments.
Clause 12 will allow the Auditor-General to send information provided under the Act to any current or former public office holder in order for them to confirm the information or correct or complete it.
Lobbyists' Code of Conduct
Clause 13 requires the Auditor-General to develop a Lobbyists' Code of Conduct.
Clause 14 requires any individual who, or company or firm or organisation which, is required to file a return of lobbying activity to comply with the Code.
Clause 15 provides the Auditor-General with powers to investigate alleged breaches of the Code.
Clause 16 provides the Auditor-General with the power to suspend or remove individuals from the Register of Lobbyists where a breach of the Code is found to have occurred. Suspensions and removals will need to be notified to members of Parliament and chief executives of government departments.
Clause 17 requires the Auditor-General to prepare a report of any investigation and to submit it to the Speaker of the House. The Speaker must present the report to the House forthwith after receiving it. The report can contain personal details of any individual if these are relevant to the investigation and the Auditor-General considers that publication of such details is in the public interest.
Clause 18 states that the Auditor-General may issue advisory opinions concerning the enforcement, interpretation, or application of the Act.
Clause 19 provides that the offences listed in section 39 of the Public Audit Act 2001 apply in respect of the exercise of any power or duty of the Auditor-General under the Act. It will be an offence to—
intentionally obstruct, hinder, or resist the Auditor-General in the exercise of his or her powers under the Act:
intentionally refuse or fail to comply with any lawful requirement of the Auditor-General:
make a statement or give information to the Auditor-General, knowing that the statement or information is false or misleading:
represent directly or indirectly that the person holds any authority under this Act when that person knowingly does not hold that authority.
It will also be an offence to engage in any lobbying activity without being registered as a lobbyist with the Auditor-General.
These offences will be punishable on summary conviction—
in the case of an individual or person required by regulations to file a return on behalf of a company or firm or organisation, to a fine not exceeding $10,000:
in the case of a company or organisation, to a fine not exceeding $20,000.
Clause 20 requires the Auditor-General to include in his or her office's annual report to Parliament a report concerning the administration of the Act for the period covered by the report.
Clause 21 provides for regulations to be made for the following purposes:
prescribing the manner and form of returns of lobbying activity, including requiring any person or persons who occupy any particular role or roles within a company or firm or organisation to file a return on behalf of the company or firm or organisation:
prescribing the manner and form in which information provided in returns of lobbying activity or in a response to a request for additional information is to be confirmed or corrected or completed by present or former public office holders:
prescribing fees for the purpose of recovering the administrative costs of the Auditor-General in performing his or her functions under this Act:
providing for matters contemplated by this Act or necessary to give it full effect or necessary for its administration.
Clause 22 provides for a review of the Act by Parliament every 5 years after the Act comes into force.