Snapper example makes case for lobbying transparency

New information on the National Government’s involvement in helping a company to get a contract in Auckland’s integrated ticketing shows why we need a transparent lobbying disclosure regime.

In answer to questions in the house a few months ago, Transport Minister Gerry Brownlee provided a list of occasions when his predecessor Steven Joyce met with Snapper’s operators and said that, while Snapper’s involvement in Auckland integrated ticketing may have been raised in some of these meetings, the Transport Minister had no part in the council’s commercial decision to contract with Snapper.

That appears to have been untrue. Information gained under the Official Information Act includes a letter showing that a meeting not mentioned by Mr Brownlee took place between Snapper and Mr Joyce in March 2010. The letter thanks Mr Joyce for meeting with NZTA to express his opinion that Snapper should be part of the integrated ticketing system.

(Since then, Auckland Council has terminated its contract with Snapper and could potentially be sued for millions).

This new information certainly raises questions about Mr Joyce’s involvement in the decision. But we’re only just finding out about this now, two and a half years after the fact – by which time Steven Joyce is no longer the Minister and Snapper no longer has the contract with Auckland Council.

And it’s only coming out because the opposition has managed to ask the right questions. If Snapper’s troubles with Auckland Council hadn’t cast the spotlight on its contract, then we might never have found out about Steven Joyce’s role in getting them that contract in the first place.

This is why we need proactive disclosure of lobbying. It should be every New Zealander’s right to know who is approaching Ministers about what. Currently, such meetings can remain secret unless the correct questions are asked – and even then there is a long history of Ministers circumventing the Parliamentary question and OIA processes.

A proactive lobbying disclosure regime would mean that such communications would be a matter of public record much sooner, and without the need for someone to know exactly what to ask for in order to find out. It would give New Zealanders peace of mind that Ministers and lobbyists aren’t trading favours behind closed doors.

33 thoughts on “Snapper example makes case for lobbying transparency

  1. Courts determine people’s intent all the time, which is why we have them, because they do a much more reliable and measured job of it than media lynch mobs. As long as the law’s drafted well enough in the beginning, I think if there were a significant enough reason to believe someone was lobbying for it to reach a court, a court would naturally consider if they were contacting an MP because a someone else had asked them to lobby in a professional capacity, irrespective of what’s written on paper about contracts and job descriptions.

    If the Bill remained badly drafted in its definition then I wouldn’t want to be one of the early people on the fringe of possible lobbying and possibly being pushed through the courts while it remains ambiguous. It could potentially be years before courts have had a proper chance to make it absolutely clear how the interpretation should work, and that’s unfair for regular distinct real people who just want to speak to their MPs about stuff that affects them. But, once again, I’m not concerned the Bill will actually be passed until some significant changes have been made to address this issue.

  2. Not unless that employee, who is paid to have that conversation by their employer says:

    Therein lies the problem. If a lobbyist works for an employer then they are no different from the organic farm employee, as far as the law is concerned. If you allow the “casual conversation”, as I’ve characterised it, then you allow the lobbyist in through the exact same door.

    It’s very difficult to determine intent. It simply won’t be as obvious as you make out.

  3. MikeM – fair enough. Making the definition more explicit wouldn’t hurt the proposition.

    I agree wholeheartedly with your view that the proposed Bill does not deserved to be kicked to the curb on the basis of interpretation. It’s easy to fix and I’m really not sure what all the fuss is about. The courts will inevitably test the law and refine interpretation based on submissions when the first case goes up, so there is no real panic.

    The intent of the Bill appears to have been lost in the surrounding shitfight. While there is no excuse for a poorly worded Bill, the question needs to be framed as follows with objectors:

    Do you approve of the status quo – that MPs can be directly lobbied by representatives of third parties that seek to gain market / regulatory / financial favour with no public oversight, and no view as to whether the success of said lobbying can be inferred from that MPs voting record?

  4. You’ve just described the employee at an organic farm talking to an MP about cross-contamination from the next field.

    Not unless that employee, who is paid to have that conversation by their employer says:

    “Hey MP! On behalf of my employer I want your support/proposition of a Bill to the House that (a) prohibits implicit or complicit cross-contamination of organic crops and attaches heavy regulatory and financials penalties on non-organic farmers for breaches and/or (b) explicitly provides financial support for my employer’s enterprise to remediate losses real or perceived as a result of this cross contamination, even though it this is not currently against the law.”

  5. Considering how many submissions raised this issue, and how many MPs had reservations about supporting the Bill to its final stage without changes but agreed to support it to Select Committee (including the government), I’d be surprised if the Select Committee doesn’t come back in January with strong recommendations to change the wording… and if that doesn’t happen then I’d be surprised if the Bill makes it through. During the First Reading, Holly Walker even acknowledged that it may be necessary to amend the definitions to ensure the intent is clear. As I said earlier, though, I’m not bothered at the moment because I think it’s just a process issue.

    Gregor, for me I’m not comfortable with an implicit meaning. I’d rather the law spelled out clearly what is and what isn’t lobbying. I think that definition should be about whether someone’s being compensated by a third party with the expectation of speaking on their behalf, instead of that person’s own personal opinions. This might be a direct payment in exchange for lobbying an MP, or it might be a salary employment arrangement whereby part or all of the expectation of the employee is to represent the company or organisation to Ministers and other MPs, whether directly in a contract or because the company’s asked the person to do it. Presently, the combination of 7(2) and 7(3) by my reading could easily be taken to mean that anyone employed by a company is considered a lobbyist if they communicate about anything that might be considered in that company’s favour… even if the person’s main concern in the communication is for themselves.

    I definitely don’t, however, think the Bill should be thrown out because its first draft isn’t completely up to scratch.

  6. You’ve just described the employee at an organic farm talking to an MP about cross-contamination from the next field.

  7. And therefore capturing most employees.

    Hi Arana – I think it’s pretty implicit in the wording that a conversation is OK but a conversation that is;

    (a) conducted on behalf of a 3rd party
    (b) is directly paid for as a service by that 3rd party, and
    (b) occurs specifically for the purposes of influencing a favourable market / financial / regulatory outcome for that 3rd party,

    is lobbying.

    If it’s not implicit enough, then there are two options – re-write the bill until it is or let the courts determine the interpretation.

    I think a little tweak plus a degree of fine tuning via the courts would work.

  8. If they’re merely speaking to an MP in relation to the company that employs them, then it seems possible under section 7(3) that it could be considered lobbying under this Bill,

    …which leads onto my “Anyone who actually IS a dedicated lobbyist may simply alter their job description” comment.

    If you start excluding people who simply want to talk about something related to their area of work (i.e. a concerned organic farmer talking about what’s happening in the next field), as you should, then you’re going to need to define the lobbying job description, aren’t you.

    I think you can see where this is going….

  9. The problem isn’t so much the lobbying but the fact the Government acts on it – putting legislation and regulations in place that favour one group of citizens over another. Sometimes justified, sometimes not so much.

    An argument could be put forth that there is too much government meddling, often prompted by special interest groups and lobbyists. Don’t see how that’s going to change under this bill – although it sure will be interesting to find out just who’s behind certain legislative changes!

  10. If they’re merely speaking to an MP in relation to the company that employs them, then it seems possible under section 7(3) that it could be considered lobbying under this Bill, and that’s my main concern here. eg. It could possibly catch a small business owner like (for instance) a farmer who wants to talk to an MP about their livelihood which is totally entangled in the small farm they own/run, or a supermarket checkout worker who’s concerned some change might cause their employer to close down. I’d prefer it if the definition were restricted to people who are being asked or expected to speak with MPs on behalf of another, or a company or organisation, in exchange for salary or other payment, and not just speaking about stuff that relates to the one that pays them for other things.

    Really though, it’s still early days in the Bill’s development. Section 7 has already been clearly flagged as something that needs fine tuning. If it still looks like this in its final form then I’d be concerned, but this is how laws get made.

  11. Anyone who actually IS a dedicated lobbyist may simply alter their job description.

    Which would make precisely no difference as MikeM points out.
    The threshold is “for payment, on behalf of any person or company or firm or organisation”.

    Doesn’t matter if you call yourself a street sweeper.

  12. Chilling.

    It’s so wide, it’s going to include anyone with a job.

    Anyone who actually IS a dedicated lobbyist may simply alter their job description.

  13. If I meet Holly in the supermarket and talk about topic X, am I lobbying? Holly doesn’t know if I’m doing so as a concerned individual or as a professional with deeply vested interests working for a multi-national.

    What Holly does or doesn’t know is irrelevant. If you’re approaching Holly as a lobbyist defined under section 7(2), then yes you’re lobbying and must be registered. It’s your responsibility, and if you’re not registered it’s an offence under section 19 of the Bill, able to be penalised by $10000 for individuals or $20000 for companies.

    I imagine a lot of professional lobbyists will simply operate in coffee establishments if they wish to remain off-record. Casual conversation – indistinguishable from any other casual conversation with an MP.

    And if they’re discovered, they can be prosecuted.

  14. I don’t see how they define lobbyist without it being restrictive. If I meet Holly in the supermarket and talk about topic X, am I lobbying?

    Holly doesn’t know if I’m doing so as a concerned individual or as a professional, with deeply vested interests, working for a multi-national.

    I imagine a lot of professional lobbyists will simply operate in coffee establishments if they wish to remain off-record. Casual conversation – indistinguishable from….any other casual conversation with an MP.

  15. Sorry Arana, I quoted you correctly. You may not have MEANT to say that, but you did… twice.

    If you didn’t mean it, fine… you clarified, but don’t blame me for taking you at your word and don’t call it a straw-man when I am using your words.

    As for damaging “good” lobbying, I doubt that registering and requiring openness about lobbying is going to do much of that.

    AGAIN….

    The only defense against corruption that a democracy has in the long run, is an informed and educated electorate.

    Can the bill be improved in terms of how it defines “lobbyist” and how it implements the desired openness? Almost certainly.

    However, allowing lobbying without bounds or scrutiny is indefensible in any real democracy implemented among fallible humans.

    We simply cannot allow ourselves to be ignorant of who is influencing our government…

    “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” – Jefferson

    BJ

  16. http://www.stuff.co.nz/dominion-post/comment/7921448/Lobbying-bill-a-sledgehammer

    “No-one can disagree with these, but the bill before the House does not meet the last of the four. It is a sledgehammer for a nut.

    What is being proposed doesn’t differentiate between the so-called bad lobbyists and those organisations and individuals who are participating in a democratic right to discuss and put forward a particular point of view.

    This latter group accounts for 95 per cent of the lobbying that takes place in New Zealand.

    These discussions are often about informing MPs and officials on the impact of particular policies and issues in our communities. These are crucial to a functioning democracy.

    The bill is in danger of stifling these discussions through bureaucracy. It appears to be written around an assumption that a few unidentified suppliers of independent advice are somehow acting inappropriately and thus need to be regulated……

    Transparency about who is talking to whom is fine, but what we really need is a framework that allows you to have a friendly conversation with your MP on the street and not worry about whether your opinion could be defined as lobbying”.

    Dave Henderson is executive director of the Association of Non-Governmental Organisations of Aotearoa.

  17. Didn’t say we did get to vote on policies, so nice straw man, BJ.

    We get to vote for a set of policies, and if we don’t like them, we don’t vote for the party or politician. If there is one policy we do not like, they may lose our vote.

    Let’s face it – there is no way to distinguish between supposed “good” lobbying and “bad” lobbying. Most people talking to MPs are doing so in good faith. We therefore risk damaging good faith communications with MPs.

  18. BJ Chip doesn’t trust Green Party politicians to make up their own minds.

    You are being stupid. Deliberately so. What is sauce for the goose is sauce for the gander. As it has to be.

    If I do not trust ANY National or ACT MP ( and I do not, though I believe SOME must be honest ) why should my own MP’s get a pass? Should not those people who believe that the Greens are untrustworthy get to see who is lobbying them and for what?

    If I don’t like the resulting dolphin policy, I don’t vote for it.

    You don’t GET a vote on that policy… the MP does.

    If the MP proposes policy people don’t like as a result, people won’t vote for it.

    That’s twice you make the same mistake. You don’t get but a vote on the MP or the party once every 3 years… not a vote on every bill. That’s the “representative” part of representative democracy.

    I do not trust ANY politician so much that I won’t watch them… not even the ones I vote for… are you really that gullible? I’m from New York… I know better.

    …and this
    “unacceptable and dangerous limit on freedom of expression”

    – is the very excuse used to justify the abuse that has become institutionalized in the USA. Which you just said you agree with.

    Yet you say you don’t want the same system as the USA. Apparently you don’t know very well how it happens. I watched it grow in the USA… grew up with it… and it is ugly in effect, and devastating to the democratic process.

    “We regard ready access to MPs for all citizens as freedom of expression.”

    …and the bill does nothing to restrict citizens. It doesn’t even restrict people who are being paid to access MPs. All it does is ensure that they are visible to the public.

    AGAIN….

    The only defense against corruption that a democracy has in the long run, is an informed and educated electorate.

    …and being ignorant about who is lobbying your MP for what, is not being informed… not at all.

    Worse: The libertarian view of things depends even MORE strongly on that informed electorate, and is even worse off with ignorance.

  19. “BJ Chip doesn’t trust Green Party politicians to make up their own minds.”

    Can’t speak for @bjchip but I don’t see a reason to trust any random politician in general to make a decision in the interests of everyone involved if I can’t assess all the likely avenues from which they’re being strongly persuaded. Trusting today’s politicians doesn’t mean they won’t be out the door and replaced by someone else tomorrow.

    Some rules are important to stop people from abusing the process. Others are important to make it more transparent to everyone that it’s not being abused. Some are good for both.

  20. BJ Chip doesn’t trust Green Party politicians to make up their own minds.

    This bill is an unworkable mess, and will soon be thrown out, so it’s moot. The biggest flaw is that it doesn’t solve a problem. It tries – poorly – to solve an imagined problem. If anyone wants to talk to an MP, good for them. If the MP proposes policy people don’t like as a result, people won’t vote for it. Any definition of “lobbyist” that would have the chilling big brother effect you so desire is bound to cast a very wide net, and cannot help but be overly restrictive.

    I do not want the “same system as America”, so stop the straw man arguments. We regard ready access to MPs for all citizens as freedom of expression.

  21. Hi @Arana. I don’t like the current definition in the Bill for similar reasons as the concerns already raised, especially that it could catch people just wanting to talk to their MPs and discourage or prevent regular people with regular concerns from speaking to them. I wrote more in a comment a few months ago (please excuse the grammar in that comment). I don’t like the ambiguity of un-written exceptions and codes of ethics which has been suggested for getting around the slackness, unless it’s actually necessary. If people shouldn’t be covered, it should be written as clearly as possible in law.

    The ‘lobbyists’ who concern me most are those who aren’t individuals and small business owners, who arrange to meet with and influence Ministers in ways not available to regular people, who don’t represent specific people so much as virtual companies or organisations. I get concerned when speaking to an MP involves an engineered process such as by hiring specialists to frame arguments in ways that are designed to persuade by taking advantage of exclusive access. I’m fine with organisations, corporates and other big stakeholders presenting their points of view and I realise this often requires actual meetings with officials, but I want to know who’s doing it, to whom, and what they talked about.

    I won’t try to technically define what a lobbyist is here and now. That’s what further readings, debate and Select Committees are for, and I’m keen to see the result.

  22. Silly wabbit…. We DO NOT TRUST politicians, and the bill is quite catholic about making sure we have the tools to keep an eye on them.

    The bill defines lobbyist. It is part of the negotiation just how that definition is worded now.

    Typically for the Right, “freedom of expression” is selectively offered to those who have the money to buy access.

    That’s how it currently works…

    As for how it can be improved, that IS what is being done with it now.

    There is no downside to giving the public the ability to monitor who is talking to our MPs, except for those who have something to hide, and the software and database needed to keep track of the lobbyists.

    Your objection is noted but your reasoning is not acceptable.

    The only defense against corruption that a democracy has in the long run, is an informed and educated electorate.

    We’re in trouble … but the USA is already finished as a democracy.

    Owing in large part to the advantages handed out to those who have the money to buy “free expression”.

    …and you want the same system here?

  23. The clear implication of this ridiculous bill is politicians cannot be trusted.

    Yes.

    It may be that the Bill can still be improved, but that doesn’t mean we shouldn’t know which lobbyists are having privileged access and being involved in shaping Minister’s decisions. Even if you personally happen to trust Ministers today, it’s important that people can see the process happening above board, because it helps them trust that it’s happening properly. And that gives people more confidence that their government isn’t acting corruptly.

  24. Talk about missing the point, BJ. I think anyone should be able to talk to MPs, about anything, and it doesn’t necessarily require public notification.

    If a “save the dolphins” group talks to Gareth, must that be recorded and published? Why? I’d be very surprised if they didn’t, and would be very surprised if it didn’t influence his position in some way. If I don’t like the resulting dolphin policy, I don’t vote for it.

    The clear implication of this ridiculous bill is politicians cannot be trusted. Not just “them” on the “other team” – it means you. Green MPs. Really? You can’t be trusted to make up your own minds? You are saying you are that easily led and owned, so must be monitored at all times by the press and public?

    I agree with this:

    “The Commission agrees with the Attorney-General that the dramatic overreach of the Bill is an “unacceptable and dangerous limit on freedom of expression”. The Commission strongly opposes the passage of the Bill ”

    That is the downside risk of this legislation, and for what gain?

    It’s just more convoluted administration and red tape. And paranoid, at that.

  25. Gee @Arana, I want to know.

    This isn’t about party policies—you know the policies before you vote for them. It’s about ensuring we can more transparently see who’s lobbying elected government Ministers when they’re in office, so it’s clearer whether the decisions they make are likely to be based on good impartial advice, or on lobbying from private entities looking to push their own agendas.

    Right now I don’t care too much if Greanpeace talks to Holly Walker, but if she’s ever in direct charge of millions, or billions of dollars of our money, and deciding how and where it gets spent, I definitely want to know who she’s been talking to. But then, this Bill would ensure exactly that!

  26. I (as an environmentalist) am of the opinion that Greenpeace talking to the Greens is every bit as scary as the Snapper example quoted.

    Both need to be given the transparency offered by exposing lobyists.

  27. Replace every instance of “Snapper” with the term “Greenpeace” and the name “Steven Joyce” with “Holly Walker”

    Also:

    “It would give New Zealanders peace of mind that Holly Walker and lobbyists aren’t trading favours behind closed doors.”

    Who cares if Greenpeace talks to you, Holly? Who cares if they influence Green Party policy, Holly? All policy is influenced by someone. The voters decide if they like the policy that results.

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