by Holly Walker
Below is an opinion piece by Guy Giorno, a Canadian legal expert on lobbying transparency laws, written in response to the Attorney General’s recent report on the Bill of Rights implications of my Lobbying Disclosure Bill.
Attorney General Chris Finlayson’s conclusion that Holly Walker’s Lobbying Disclosure Bill contravenes the Bill of Rights Act was surprising – so much a surprise that it was noticed on the other side of the world.
Ms Walker wants to make lobbyists report their contacts with parliamentarians, something already required in several other countries. Canada, for example, has deep experience with lobbying transparency legislation. Its federal Parliament enacted a lobbying transparency law more than two decades ago. Seven of ten Canadian provincial legislatures have followed suit.
Mr. Finlayson’s belief that lobbying transparency is a potential threat to rights – as opposed to a law that helps protect our democracy – would catch Canadians by surprise.
It is not that Canadians prize their freedoms any less than New Zealanders. Canada’s Constitution protects freedom of expression. The test applied by the Canadian courts in determining whether a law may justifiably restrict free expression is essentially the same as New Zealand’s.
The Attorney General rightly noted that free speech is an essential ingredient of democracy. He might also have mentioned that the particular form of expression involved in lobbying – citizens’ communications with government – is one of our oldest and most historic rights.
The right to advocate to government can be traced to Magna Carta of 1215, which confirmed the right of barons to seek the redress of grievances against the Crown. The Bill of Rights of 1689 declared, “That it is the right of the subjects to petition the king …”
Lobbying transparency laws, like Holly Walker’s bill, recognise that lobbying is an ancient, democratic right. Such laws do not prevent lobbying. They just prevent hidden lobbying.
Everyone has the right to try to influence public policy. Nobody has the right to influence public policy in secret.
Ms Walker’s bill contemplates a code of conduct for lobbyists, which surely is unobjectionable. Free speech is not infringed by requiring honesty and ethical behaviour of those who are paid to influence government.
Apart from requiring ethical conduct, stripped to its essentials, a lobbying disclosure law does not regulate anything. Like other transparency laws such as the Official Information Act, lobbying disclosure merely makes facts available to the public. It is left to the political process (which includes the opposition, the news media, interest groups and ordinary members of the public) to decide whether and how to utilise those facts.
Most legislative proposals are amenable to improvement and Ms Walker’s bill is no exception. Here again the international experience can be valuable. It seems an exaggeration, however, to argue, as the Attorney General does, that for want of a few small improvements the bill is “an unacceptable limit on a core element of freedom of expression.”
For example, the Attorney General notes that the bill would require disclosure of all lobbying, even as simple as “a one-off email.” There is no correlation, however, between the brevity of a communication and the need for transparency. A short e-mail or a brief phone call to a Cabinet Minister from the president of a corporation might be most significant and influential.
Another of Mr. Finlayson’s objections is that the bill fails to exclude those who are not professional lobbyists. In reality, many people who do not consider themselves lobbyists nonetheless engage in lobbying: some lawyers, for example; also corporate executives and directors. The law should illuminate all paid attempts to influence, not just the actions of the self-identified lobbying industry.
At the heart of the Attorney General’s analysis of the Lobbying Disclosure Bill is the assumption that some people will avoiding communicating with an MP because they would prefer not to register and to be stigmatised as a lobbyist. In other words, some people who are quite prepared to contact the government in secret will cease to communicate if the existence and the nature of their contacts become public.
No doubt this is so. In every democracy there are conversations between private interests and politicians that the participants would be ashamed to reveal.
Isn’t that precisely why every country needs a lobbying disclosure law?
If the shame of disclosure makes someone, upon reflection, decide not to influence a politician, it does not follow that the disclosure law placed a restriction on the attempt to influence. Ultimately the nature of the communication, not the disclosure law, would be responsible for the feeling of shame and the decision to refrain from lobbying.
In his critique of the bill, Mr. Finlayson cited the United States constitution and quoted George Washington. We would do well to consider another U.S. voice, the eminent jurist Louis Brandeis. A century ago, Justice Brandeis wrote that, “Sunlight is said to be the best of disinfectants.”
It is bizarre to suggest that sunlight – a law that tries to illuminate influences on government – is a threat to fundamental freedoms.
The greater threat is allowing politicians and lobbyists to operate in darkness.
* * *
Guy W. Giorno is recognised as a Canadian legal expert in lobbying transparency. He is also the former chief of staff to the current Prime Minister of Canada.
Published in Justice & Democracy | Parliament by Holly Walker on Mon, July 2nd, 2012
Tags: Attorney general, Bill Of Rights, Canada, lobbying, Lobbying Disclosure Bill, open government, transparency
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Is Finlayson an actual human who can learn from experiences of others or is he a member of the National Party Caucus?
The latter apparently. Incapable of seeing the difference between democracy as it is practised in countries other than the USA and the US oligarchic plutocracy that came to be when the Supreme Court ruled that “free speech” for people included corporations, and monetary donations and purchases of advertisements were “free speech”.
Comparing the results (the US is no longer a democracy in anything but name while Canada actually has a realistic electoral process) one can see that Finlayson is applying his biases to the detriment of democracy in New Zealand.
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It sounds like you are trying to solve a problem that doesn’t exist by creating a new bureaucracy which will be a problem for everyone and cost us money we don’t have, to achieve I don’t know what. You won’t worry about it until a Green lobbyist gets caught out.
Let’s leave freedom of speech just as what it says, without any newspeak limitations that are “for our own good”?
Ta.
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Fine One-Track… if it is FREE you are free to say whatever you like.
If you have to PAY to say it wherever it is you feel like talking about it, then it IS NOT FREE.
Moreover, this right DOES NOT apply to “people” who happen to be corporations, which are by definition sociopathic entities. Within those limits? Fine by me, but if you twist the language so that free speech includes the use of money to amplify that speech, then we WILL by damned require a heap of regulation of that moneyed process.
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BJ,
Money may amplify speech but it is the recipient listener that has the judgement rights.
Maybe we need to look at the decision makers listeners regarding their ability to make the “right” decisions.
What Holly Walker and you are suggesting is shooting the messenger instead of questing the decison makers.
Bit like being seduced by advertising. The final decision lies with the recipient of the information, to act or not to act.
Care to explain further your notion that corporations are sociopathic entities?
If I think what you are suggesting I can show you any number of governmental states and electoral parties equally so, including some opposition parties in NZL.
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No Gerrit… I am suggesting, based on my personal experience with this idiocy in the US, that the equating of free speech with money is so distorting of democracy as to completely obliterate any trace of it within two generations of exposure to the advertising.
Sure, a corporation has charter that requires it to make money, but has no requirement that it pay any attention to the social costs of it doing so. It is basic to the entity. It is in business to make money, not to make people feel good or to respond to the needs of the society. Corporations MAY (under the influence of specific actual individuals) be good citizens, but their reason for existence gives them the property of amorality and lack of responsibility that marks the sociopath.
Governments on the other hand, generally have a constitutional requirement that they respond to the people and their needs, and have at their core the requirement that they advance the well-being of the society… not make a profit.
I am sure that you’d recognize that if you are immersed in a message you cannot (I mean this, you CANNOT) avoid absorbing some part of it. It is simple brainwashing… and even someone like you or me with a strong ability to detect crap, cannot AVOID the crap and it filters into our worldview over time. When it gets to the kids before they HAVE any filters for this crap… it is game over. Which is why it takes 2 generations.
This is something I saw happen in the USA. I EXPERIENCED it, and the Canadians didn’t, they merely watched. A Canadian is telling you this is a bad idea. I am telling you it is a REALLY bad idea.
It is effectively TREASON against the nation of New Zealand as it is an attempt to subvert the ability of the democracy.
That’s how I understand it Gerrit. Finlayson may as well be an agent of foreign powers.
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BJ,
Totally agree that common sense has been bred out of the population.
For Now.
Have faith however that anyone can control that for long however.
After all we have people in NZL that firmly believe that the tax payer has unlimited access to money that can be spread around equally.
Same for people that believe that Finlayson is an agent of a foreign power.
Where is the common sense with those ones?
Even Holly Walker will succumb to the ego (power) trip and will gladly and proudly sit alongside Winstom Peters in a government caucus.
When he has been the biggest recipient of moneyed lobbying (when No means Yes, where horses and fishes talk).
Where is the common sense with that?
Common sense would indicate she should not. But she will.
Principles are for sale at any level.
But eventually they all fall.
Common sense will prevail.
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“Same for people that believe that Finlayson is an agent of a foreign power.”
Nobody thinks that. BJ said “he might as well be…”. If you are going to stick up for common sense, you really shouldn’t be making false claims as to its lack in others.
How do you suggest we restore common sense – it seems to me there’s a real lack of basic political and historical understanding in young people in New Zealand, which leads them to make very weak and uncritical judgements (and I’m mostly thinking of those who are broadly on ‘my side’ politically). I’m tempted to advocate civics education in schools, but given the likely interests of those who control the curricula, I’m not sure that it would help.
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@ Gerrit: I suspect BJ is is utilising Prof. Joel Bakan’s analysis wherein the corporation as an entity displays common Factor 1 inter-personal behavioural traits with human psychopaths, namely;
Glibness/superficial charm – the corporation relies on message management rather than information to further its ends.
Grandiose sense of self-worth – the corporation will insist that it is the best / position its ethical purity, contrary to evidence.
Pathological lying – the corporation will obfuscate an lie to further its own ends.
Cunning/manipulative – the corporation will manipulate people / public opinion in pursuit of its goals.
Lack of remorse or guilt – the corporation is not empathic, therefore incapable of remorse.
Emotionally shallow – the corporation relates to others always in a way that disguises its driving intent and is incapable of self reflection.
Callous – the corporation will put others at risk to further its own goals and is incapable of moral judgement.
Failure to accept responsibility – the corporations will often, even when found to be accountable, refuse to accept responsibility for its actions.
The corporation also meets some broader Factor 2 criteria such as Parasitic behaviour, lack of realistic goals, poor behavioural control and criminal versatility but as these are non-interpersonal traits, Bakan doesn’t really go into them.
Note: Bakan is at pains to point out that while not all corporations actively display psychopathic behaviour, the modern organisational structure and legal mandate of the corporation makes it, by default, a psychopathic entity.
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Gregor W,
If we were to substitute the word “corporate” with “politcal party”, it would be a true statement of ALL political parties.
What comes first, a non sociopathic political party or a sociopathic corporate.
Is one a reflection of the other and which chicken (entity) crossed the road first and how will decapitate both entities?
In fact I would say the 99.9998 % of individuals show some if not all of the sociopathic entities symthoms (sp?).
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Gerrit, political parties are required to obtain a mandate and that, under MMP, requires coalitions and that means compromise. This is not selling out, unless you think a minority party alone in government, under FPP, is inherently more principled as it can govern alone.
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SPC,
Polical parties treat the mandate from the people with as much distain as corporates treat the mandate from the shareholders through the board.
ALL political parties treat a mandate from the people withg contempt.
No, I would say political parties and corporates are equal in ignoring mandates from the voters.
Bottom line is the Greens will go in coalition with Labour and NZFirst when both political parties have shown a complete disregards to the mandates given to them from the people.
The fact that Holly Walker will sit around the same table as Winston come next election means she is not adhering to the principals of what she is aiming for. Transparent lobbying.
For the lobbying baubles that Winston Peters took during the Helen Clark labour government would preclude her working with Winston Peters.
In fact would she be
“Callous – the corporation (political party) will put others at risk to further its own goals and is incapable of moral judgement”
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I like the idea of this Bill in principle, but having scanned it I’m still unclear with how it deals with these situations when there’s a blurry line between paid and unpaid. Have I understood it right?
If the owner of a small retail shop (as in the small farm farmer stereotype or the corner dairy owner stereotype or whatever) wants to visit their local MP and express concern about how an issue affects them personally because it might affect their business, which could be their entire life, the way I read sections 6 and 7 tell me that they’d have to be a registered lobbyist and file returns to do that.
I guess opinions vary, but to me this isn’t lobbying, because it’s still people expressing their own personal views for themselves and because it’s not something that’s coming from an abstract organisation that don’t directly represent any person and are merely paying professionals to push a view that no specific person might hold (besides the organisation). The Bill, however, seems to say they’d need to be registered simply because a major part of their life is to run a business, mostly by themselves, that’s massively tangled into their own interests.
For that class of small business owners, I could easily people just throwing up their hands and not bothering to express themselves at all, because it’s more effort than it’s worth or because they don’t want to suffer the public stigma and attention of being labelled a lobbyist on the public record. As far as I can tell it still discriminates between such people and another person who’s work and non-work lives are distinctly separate.
Or have I misunderstood?
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@ Gerrit
If we were to substitute the word “corporate” with “politcal party”, it would be a true statement of ALL political parties.
Sure. But political parties don’t have the same legal rights as corporations where, in the States specifically, they are regarded as pseudo-human entities. Bakan’s focus was on the States. The situation here is somewhat different legally.
So it’s apples and oranges.
In fact I would say the 99.9998 % of individuals show some if not all of the sociopathic entities symthoms (sp?)
While I agree that most people will display some of these traits to a degree, they will not exhibit a pathology that describes psychosis. The measures are well established medically and most or all of the factors have to be present at a prescribed level to form a diagnosis of psychopathy.
To whit, while lots of people may show a small measure of one or more symptoms, that in itself is not abnormal. Only a small percentage of the population will be classified as psychotic.
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Whoops. Apologies for the terrible grammar in my previous post, now that I’ve re-read it. (Far too much cutting and pasting and not much proofing.)
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Gregor W
So why then go to the trouble to extensively quote the guy/girl?
That displays just about every trend desrcibed. Specifically
If it has no relevance in NZL it is nothing but glibness.
Still does not alter the fact that Holly Walker will, at the drop of a hat, sit alongside the alledged most prolific taker of political lobbying money if the 2014 elections go to latest poll results.
Maybe a little fishy history lesson?
http://www.stuff.co.nz/the-press/598656/Peters-faces-fresh-allegations
or even a horsey history lesson from the frog him/her self.
http://blog.greens.org.nz/2008/07/22/the-minister-of-racing/
Yet will these lessons be overlooked by Holly walker?
No she will show
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@bjchip – 1:52 – I don’t think the definition of “freedom of speech” has ever had anything to do with it being free from cost. Now that does sound like newspeak.
And it still sounds like this bill would catch far more than those evil corporations in its net, especially in its original form. Specifically it seems clear that many “real” people would indeed be discouraged from engaging with their public representatives because of the planned regulations. And once it is on the books, well we can make further “adjustments” to control the message, I mean battle the evil lobbyists.
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What on earth are you talking about, Gerrit?
While Bakan uses the modern instance of corporation in the States an an example, his thesis of the corporation as antisocial is universal. It’s very relevant to NZ given that the joint stock, limited liability company is pretty much the vehicle of commerce worldwide.
If you want to pan his thinking, read ‘The Corporation’ (if nothing else, for an excellent history on the development of the corporation as an entity since the 17th century) and then comment.
I don’t really care about your Holly Walker red herring tbh. I was specifically attempting to answer your question re corporations and the logic around why they might be considered sociopathic.
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Gregor W
I was quoting Bakan anti social reasoning as seen in corporates back as having correlation in political parties.
I dont pan the thinking or the thesis, just reasoning that the same traits are seen in political parties.
The same traits that Holly Walker will show after 2014 election when she will sit down with the person who took the monied lobbyists baubles.
Surely the Greens cannot support a registered lobbiest disclosure bill and then in the future sit down with recipients of monied lobbiest largesse.
You see a red herring, I see a conflict of interest and double standards by Holly Walker.
I see politcal parties as being as sociopathic as corporations.
You dont, thats cool even if, in my opinion, blinkered vision.
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Gerrit
I was not referring to anyone’s diatribe in particular, just to the NATURE of corporations and the definition (such as it is and what there is of it) of a “Sociopath”. Note that this is NOT the same as a Psychopath which is a more distinct and well defined diagnosis.
http://dictionary.reference.com/browse/sociopath
“a person with a psychopathic personality whose behavior is antisocial, often criminal, and who lacks a sense of moral responsibility or social conscience.”
The corporation is defined by its charter and that charter very seldom places moral responsibility or social conscience ahead of making profits, if it mentions those things at all. Most corporations have NO sense of morality when it comes to projecting consequences further than their profit expectations, and do not attempt to do so. Moreover, we don’t have any say in the actions of the corporation unless we are shareholders… or impose some government restriction on them.
This is ENTIRELY different from government which, if we actually get up off our hind-ends and vote, we get to have a say in. Directly… and it is accountable to us for its actions AND it has by definition, the well being of the society at large as its FIRST responsibility.
New Zealand is NOT A CORPORATION!!! There is no such thing as New Zealand Ltd.. There is no limit on our liability for what happens to our future. More importantly there is no such thing as New Zealand Inc., which is the USian way of saying “Ltd”. The corporations here know that they are more restricted than their USian counterparts and National (which remains a wholly pwned subsidiary) is trying to change that.
Which is what makes them no better than traitors to the nation as a whole. It also keeps them focussed on the wrong problems, no matter how smart they are.
BJ
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BJ,
While I agree with you on the sociopathic nature of corporations, I see correlation with political parties as having the same sociopathic tendencies.
Do you agree?
We may get to vote for them once every three years but beweeen times ALL political parties have thrown the moral judgement out the window and implemented policies not shown in manifest.
If a policy that they want to implement is not in the election manifest, the very least should have been a binding referendum for guidance from the voters.
Anything less is not democracy and should be labelled sociopathic.
My question of Holly Walker remians. Will she sit down around the government caucus table with Winston Peters after 2014 election?
It is a moral call to ask for tansparencies in lobbying but turn a blind eye to the (some would argue) biggest benifactor of moneyed lobbying in NZL.
If she has moral judgement (sociopathically speaking) she wont sit at the same table as Winston Peters. If she does sit down, it shows sociopathical tendencies.
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I think where we differ is that the corporation is that way by design and is only ever NOT that way “by accident”, while the political party is supposed to be responsive and is only ever “sociopathic” by a similar “accident”, and can be expected to revert to serving the people of NZ at least for the period of time running up to the election.
The responsiveness or lack thereof, between elections is a real issue though, and the notion of requiring referenda for the laws that garner resistance of the sort that S59 and Asset Sales have obtained, is interesting. Just exactly how to make it happen is a puzzle but I think it could be do-able.
My expectation though, is that if National has its way, even the pre-election period will not make a difference. The “sociopaths” have the money to generate the advertising to convince the weak minded, and there are enough of those to overwhelm any intelligent debate and vote on any topic. Effectively big money would control the parties. Which is how it is in the USA.
No escape… “no matter who you vote for, the government still gets in”.
respectfully
BJ
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