The Ombudsmen “enhance government accountability to the public”419
and provide “a safety net when something goes wrong in public administration.”420
A large portion of the Office’s work concerns the proper use of the Official Information Act 1982.421
As is the case with the other two Offices, the Ombudsman was designed to deal with complaints against public agencies.422 This means that it is not particularly well- placed to investigate breaches of lobbying regulations on the part of private third parties.
There are significant administrative and financial burdens associated with the duties of a lobbying authority. If given to the Ombudsmen, these duties may overwhelm the Office. This is particularly true given the current workload which the Ombudsmen face. In its 2011/12 statement of intent, the Ombudsmen asked for an extension of additional funding to deal with a growing backlog of inquiries. This backlog has been particularly severe following the Christchurch earthquakes and the Pike River mining disaster.423
There is no particular reason to recommend the Ombudsman as a suitable lobbying authority. The Office has investigatory functions and has the same level of independence as its counterparts, but has no particular expertise in lobbying or with private actors. If it was to assume the role it would require a significant increase in funding and a broadening of expertise.
F Contemplating a Parliamentary Commissioner for Lobbying
It is conceivable that another officer of Parliament could be created to fill the role of lobbying authority. As noted earlier, this approach was taken in Canada with the establishment of the Office of the Commissioner of Lobbying of Canada in 2008 (replacing the Registrar of Lobbyists). The creation of an Office is no small matter, however. The Finance and Expenditure Committee suggested that five criteria be considered during deliberations to determine whether an office should be created:424
1. An Officer of Parliament must only be created to provide a check on the arbitrary use of power by the Executive.
2. An Officer of Parliament must only be discharging functions which the House of Representatives itself, if it so wished, might carry out.
3. Parliament should consider creating an Officer of Parliament only rarely.
4. That Parliament review from time to time the appropriateness of each Officer of Parliament’s status as an Officer of Parliament.
5. That each Office of Parliament should be created in separate legislation principally devoted to that office.
The Cabinet Manual stipulates that Ministers who are considering developing a bill to establish a new officer of Parliament must consult with the Committee at an early
419 Mai Chen Public Law Toolbox (Lexisnexis, Wellington, 2012) at 682. 420
Mai Chen Public Law Toolbox (Lexisnexis, Wellington, 2012) at 682.
421 Official Information Act 1982, ss 28-36. 422 Ombudsmen Act 1975, s 13.
423 Office of the Ombudsmen “2010/11 Supplementary Estimates and 2011/12 Main Estimates” (2011)
at 2.
424
Finance and Expenditure Committee 1989 “Report on the Inquiry into Officers of Parliament” [1987-1990] XVII AJHR I.4B at 13.
stage.425 Although this is a clear direction, on one occasion the Committee was not consulted before a plan to create an Office reached bill form.426 Having received notification of the proposal, the Committee then deliberates on the matter and makes recommendations to the House.427
As noted in the 1989 report, the creation of offices is a rare event. Only one office has been created since the inception of the Officers of Parliament Committee, and this was largely treated as a long-overdue amendment.428 Before the amendment was made, the Auditor-General was an Officer of the Crown, which was a “major statutory anomaly”429 recognised by all parties in the House at the time, given that it was required to independently audit on behalf of the public. For this reason there is little guidance available as to how the 1989 criteria for the creation of an office might be interpreted.
One of the greatest deterrents for the creation of an additional Office of Parliament comes about as a result of budgetary constraints. While a full appraisal of the costs associated with the establishment of a Parliamentary Commissioner for Lobbying is beyond the scope of this paper, some insight can be gleaned from the total budgetary expenditures for international equivalents. The 2013-14 estimates for the Office of the Commissioner of Lobbying of Canada is currently $4.42 million, involving 28 full- time equivalent employees.430 To put this in perspective, the New Zealand 2013-14 Vote Ombudsmen secured $10.17 million from the annual budget.431 It is submitted that the expense incurred for the establishment Parliamentary Commissioner for Lobbying is tolerable, in light of the fact that its establishment could increase government integrity and improve public confidence in government decision-making at a time where it appears that the latter is particularly low.
425 Cabinet Office Cabinet Manual 2011 at [7.39].
426 The Committee objected to the creation of a Deputy Parliamentary Commissioner for the
Environment position, on the basis that this was not brought to the Committee’s attention. Officers of Parliament Committee “1994/95 Financial Review: Parliamentary Commissioner for the Environment” [1993-96] AJHR I.23C at 127.
427
David McGee Parliamentary Practice in New Zealand (3rd ed, Dunmore Publishing, Wellington, 2005) 71.
428 David McGee Parliamentary Practice in New Zealand (3rd ed, Dunmore Publishing, Wellington,
2005) 74.
429
Finance and Expenditure Committee 1989 “Report on the Inquiry into Officers of Parliament” [1987-1990] XVII AJHR I.4B at 11.
430 MP Tony Clement “Office of the Commissioner of Lobbying of Canada 2013-2014: Reports on
Plans and Priorities” (2013) Office of the Commissioner of Lobbying of Canada <http://www.ocl- cal.gc.ca/eic/site/012.nsf/eng/h_00718.html> at 9.
431
New Zealand Treasury “Vote Ombudsmen” The Supplementary Estimates of Appropriations and
IX
Enforcement: Codes of Conduct and Criminal Sanctions
Included in the OECD’s recommendations for effective lobbying frameworks is a requirement for “enforceable standards of conduct for fostering a culture of integrity by, for instance, avoiding conflict of interest and providing accurate information” and a “coherent spectrum of strategies and practices that secure compliance with standards and rules.”432
These typically take form as non-legislative and legislative measures.
A Code of conduct
Codes of conduct are a useful non-legislative means of contributing towards the objectives of lobbying legislation. They encourage ethical lobbying practices in accordance with a number of core values. In theory, codes can simultaneously help to ensure reputable lobbying activity whilst also reassuring the public that efforts are being made to achieve this. The Lobbying Disclosure Bill would have required the Auditor-General to develop a Lobbyists’ Code of Conduct, which would have espoused the behavioural expectations required of lobbyists and a provision to suspend or remove lobbyists from the Register of Lobbyists as a consequence of non- compliance.433