Mai Chen

Public and employment law specialist Mai Chen on current events

Mai Chen: SkyCity ruckus shows why lobbying bill needed

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The SkyCity negotiations have spawned a perception of back-room deals. Photo / APN
The SkyCity negotiations have spawned a perception of back-room deals. Photo / APN

The controversy over the SkyCity Casino's negotiations with the Government to build a convention centre in exchange for the ability to install more poker machines, and to extend SkyCity's gambling licence, demonstrates why we need a Lobbying Disclosure Bill, like the member's bill now before Parliament.

The Prime Minister has said that the agreement has to survive public scrutiny. If, as the key players involved say, nothing untoward is going on behind closed doors, a Lobbying Disclosure Bill would help them prove that this is the case.

Such a bill must not, however, have a chilling effect on the Government and MPs being able to talk to citizens and constituents. Having a cloud of suspected impropriety whenever the Government talks to business, not-for-profit groups, or Maori, or vice versa would not assist a healthy democracy. But nor would a perception of privileged access only to a few.

So how to strike the balance in the bill between transparency, accountability, and confidentiality?

Lobbying is important in a democracy, whether it is Greenpeace lobbying against fracking, or those lobbying for paid parental leave to be extended or tech users lobbying for the freedom of the internet.

The Australian Lobbying Code of Conduct says that "Lobbying is a legitimate activity and an important part of the democratic process. Lobbyists can help individuals and organisations communicate their views on matters of public interest to Government and, in doing so, improve outcomes for the individual and the community as a whole. ... The Lobbying Code of Conduct is intended to promote trust and the integrity of Government processes and ensure that contact between lobbyists and Government representatives are conducted in accordance with public expectations of transparency, integrity and honesty." The Canadian Lobbying Act 1985 preamble also says that "free and open access to Government is an important matter of public interest; and ... lobbying public office holders is a legitimate activity".

Green Party MP Holly Walker's bill will increase transactions cost, but that is inevitable for government and everyone dealing with government. The public's expectation of transparency is growing, for both government and business, especially in the light of the Global Financial Crisis and the various high-profile misdemeanours of professionals and advisers.

So when business interfaces with government, the public expects a higher standard of transparency than your ordinary business deal.

The SkyCity negotiations have spawned a perception that back-room deals have been done, although nothing "illegal" appears to have occurred. Voting along party lines happens all the time in Wellington, but the current statutory moratorium on casinos under the Gambling Act 2003 which prohibits indefinitely further venue licences being issued resulted from public concern about the social impact of casinos. Section 11 prohibiting measures increasing casino gambling, such as adding poker machines without decreases in gaming tables (or vice versa) would have to be amended if the final agreement is for more pokies. Neither United Future's Peter Dunne nor Act's John Banks have taken a position yet, despite their votes being needed to amend the law. But there does appear to be majority support for the Lobbying Disclosure Bill to progress to select committee.

The bill will require that anyone engaged in paid "lobbying activity" be recorded on a lobbyists' register administered by the Auditor-General, which would be published online. It would be an offence to engage in lobbying activity without being on the lobbyist register. This would include those employed or contracted by or in governance roles with a business, trade, industry (trade union), professional or voluntary organisation.

The bill also requires the Auditor-General to develop a Lobbyists' Code of Practice that must be complied with. Similar to other professional standards, if lobbyists behave badly, the Auditor-General will be able to strike them off. The Auditor-General has wide powers to investigate.

Lobbyists will also be required to regularly file returns to the Auditor-General which detail who they met, when they met them, and what they met about.

The bill does raise issues about whether lobbying should be extended beyond paid lobbyists and whether the bill should apply to the lobbying of officials in the public service, and not just ministers, MPs and their staff.

Even if this member's bill is not enacted, I predict that some variant of it will be as a government bill in the medium term. Such legislation will change the way government and Parliament operate, and it will change how some people interact with government and Parliament.

But that is probably the way it should be.

Mai Chen is a partner in the public law firm Chen Palmer, which provides legal advice and advocates on behalf of clients to ministers and MPs. Its advocates are lawyers subject to the Lawyers and Conveyances Act 2006.

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