A number of submissions made on the Bill raised concerns about its universal approach to lobbying activity. The Bill, unlike some of its international counterparts, intended to charge all relevant lobbyists with the same registration and disclosure obligations.262 Some submitters felt that the Bill should vary the requirements expected of different lobbyists. Organisations including Amnesty International Aotearoa New Zealand, the New Zealand Disability Support Network and the Service and Food Workers Union Nga Ringa Tota recommended that professional lobbyists should be subject to more onerous requirements than NGOs and trade unions.263 Two arguments were made in favour of this distinction: professional lobbyists are more deserving of intensive scrutiny than NGOs and not-for-profits with respect to lobbying activity due to their increase financial clout, and NGOs and not-for-profits lack the resources and expertise to ensure compliance with a lobbyists’ register.
C Conclusion
The faults of the Lobbying Disclosure Bill’s register do not negate the possibility of the implementation of a similar, more effective regime in New Zealand. Lobbyist registers are variable. Between jurisdictions, there are distinctions between which lobbyists and what types of activities incur registration requirements, and what degree of information these requirements entail.264 Registers must be tailored to reflect the nature of lobbying practices and the human rights instruments specific to the jurisdiction in which they operate.
261 Chen Palmer New Zealand Public and Employment Law Specialists “Submission to the
Government Administration Committee on the Lobbying Disclosure Bill” (17 October 2012) at [25].
262 Compare Lobbying Disclosure Bill 2012 (15-1) cl 7 with Lobbying Act RSC 1985 c44, ss5
(Consultant Lobbyists), 7 (In-House Lobbyists (Corporations and Organisations)).
263 Amnesty International Aotearoa New Zealand “Submission to the Government Administration
Select Committee on the Lobbying Disclosure Bill” at [4.1]; New Zealand Disability Support Network “Re: Lobbying Disclosure Bill: The New Zealand Disability Support Network Submission” at 2; Service and Food Workers Union Nga Ringa Tota “Submission to the Government Administration Select Committee on the Lobbying Disclosure Bill” at [3].
V
Who Must Register? Defining “Lobbyists” and “Lobbying
Activity”
A Introduction
Lobbying registration requirements impose a notable burden on many of the actors in everyday political interaction. It follows that the regulations that apply must define the intended target of its provisions with specificity and clarity to allow for straight- forward interpretation. Unfortunately, such legislation frequently falls short of achieving this objective. Furthermore, approaches taken in different jurisdictions have consistently struggled to create legislative definitions which cover the target lobbyists while also avoiding the capture of other types of lobbyists.
As noted in Chapter I, the dictionary form of “lobbying” or “lobbyist” presents a much broader definition of the activity than that which is commonly treated by legislation and public perception. Given the variety of forms that lobbyists take – and the corresponding range of extents to which they might appropriately be required to register – it is unsurprising that there is little consistency between approaches to determining which lobbyists to regulate. A number of principles dictate the way in which the target of lobbying legislation is determined. Most evidently, the way that registerable lobbying is defined must effectively capture those lobbyists who participate in unethical or otherwise damaging lobbying activity. This requires drafters to be intimately familiar with the types of lobbying which occur within the jurisdiction concerned, and the different extents to which these require regulation. A register must place onuses which accurately reflect the context to which it is to be introduced. The scope of the definitional provisions must also be drafted with reference to the local legal framework. Registers should not require disclosure from lobbyists whose activities are already governed by another effective public law tool.265
Clarity is possibly the most essential ingredient in the formulation of “lobbyist” for the purposes of the law. Non-lobbyists and those lobbyists who fall outside the ambit of the regulation must know that they are not subject to its provisions. Additionally, clarity is necessary in those states where delineations are made between different types of lobbyists (e.g. between in-house and consultant lobbyists). If poorly drafted, the practical application of these categories can cause confusion, or a fear that the lobbyist will improperly interpret the provisions of the register. One consequence of this scenario could be that lobbyists (or their clients) would refrain from lobbying in order to avoid the risk of incurring penalties for non-compliance. It is likely that this would mean a resultant drop in civic engagement and in the benefits which lobbying can provide.
This chapter involves a comparative analysis of the relevant lobbyist register provisions from Canada, the United States and Australia. The Canadian Lobbying Act 1985 served as the inspiration of the Lobbying Disclosure Bill and thus has a rightful place in this analysis. The United States has the oldest lobbying regulations in the world, and thus presumably has valuable insight to offer for similar attempts in New Zealand. The Australian register has a number of characteristics which make it
distinct from the other two states, which provides the analysis with a degree of contrast.
This chapter suggests a number of alterations to the provisions suggested in the Lobbying Disclosure Bill. These suggested provisions could more clearly articulate criteria to identify which lobbyists and lobbying activities would fall under the jurisdiction of the Bill, thus avoiding the capture of unintended targets.
B Defining “lobbying” – International approaches at a glance