Rounding up lobbyists but poisoning the grassroots

In a move which has enormous implications for community and grassroots organisations, The Independent Commission Against Corruption (ICAC) in New South Wales has broadened its scope beyond the investigation of specific allegations of corrupt public conduct, to investigate persuasion and influence in the state.

In an ironically veiled attempt to begin investigating lobbying and lobbyists it has published an issues paper entitled the nature and management of lobbying in NSW.

This is the first time the ICAC has moved outside its proclaimed framework (ICAC Act 1988) of investigating specific allegations of corruption and moved into investigating systems.

The commission is inviting community and agency comment on the issues paper (due before June 23) but it is not difficult to read between the lines.

As well as preparing the ground for the government to create a legislative gatehouse through which financially well-off persuasion and influence can be kept track of, it may well be a bold move to proscribe the actions and activities of local organisations and individuals who seek to influence and persuade at “grassroots” level.

Grassroots groups have the capacity to stop government policy, though most often they are portrayed in the news media as little guys attempting to stop invasive corporate activity.

An example of an attempt to stop government policy in NSW is the grassroots protests in the Sydney suburb of Ryde against federal housing development.

The action is making the federal member for Bennelong, Maxine McKew, look relatively powerless in the face of community organisation and action.

It is this type of action that terrifies governments and indeed, has led some in America to create powerful legislation to stop the organisation of local communities and their political influence.

In Alabama state for example, according to a recent Institute for Justice report, failure to adhere to the law of lobbying can result in criminal penalties that include the possibility of a maximum sentence of 20 years jail and a $30,000 fine - the same as that for kidnapping.

In Washington state the rules allow for grassroots persuaders to be fined $10,000 per infringement.

This could lead to multiple fines if a local community group was unaware that they were violating the lobbying code.

In New York state, violating the lobbying law has the potential to invoke a $5,000 fine and four years in jail - an equivalent punishment as that meted out to an arsonist.

These penalties are severe enough to give pause to many groups that may wish to use persuasion and influence as strategies in their neighbourhoods or communities.

Presently in NSW, there is no legislation governing the lobbying activities of grassroots organisations or individuals.

There is, however, a government code of conduct for lobbyists that states free and open access to the institutions of government should be part of a healthy democracy.

It also states there is a public expectation that persuaders and influencers will be “individuals of strong moral calibre who operate according to the highest standards of professional conduct”.

The ICAC issues paper seeks to make determinations on 26 matters it refers to as principal issues relating to lobbying including the weaknesses of the current system (10), the choice of self regulation, government regulation or a combination (14) and whether gift giving should be banned (20).

In the US legislation and proscription means organising and attempting to influence in a neighbourhood or community is subject to registration and thus anyone donating more than $25 to a grassroots campaign (in Washington state at least) is on the list.

This effectively means that taking a slab and a couple of pizzas to a neighbourhood meeting about a land development, and inviting the local councillor or state member, has the potential to be seen as corrupting and thus requires the participants, especially the slab and pizza guy, to register as a lobbyist.

The nature of such proscriptive legislation on grassroots influence and persuasion in NSW would have a devastating effect on the principal of democracy.

Existing lobbying codes are designed as gatekeeping mechanisms to show Kevin Rudd who is visiting federal departments and parliamentarians, and to provide a list for Kristina Kenneally of who is wandering the Macquarie Street and Governor Phillip Tower corridors.

Queensland has embedded its regulations in the Integrity Act 2009 (chapter 4, regulation of lobbying activities) but it identifies particular entities as non-lobbyists - non profit organisations such as charities and churches, trade unions, employer groups and “entities carrying out incidental lobbying activities”.

A recent investigation into the idea of codifying lobbying conduct in Queensland, however, has itself been lobbied to expand the lobbyists register to include churches, unions, green groups, industry bodies and professional organisations.

The ICAC inquiry has appended the Queensland information to its issues paper, along with the Canadian Lobbying Act 1985 ostensibly, one might suspect, to provide comparative perspective.

In Canada, the legislation covers business, trade, professional and voluntary organisations, trade unions, chambers of commerce, charitable societies, not-for-profits such as religious and sporting groups and most alarmingly, coalition or interest groups.

Generally, interest group means all those neighbourhood and community groups that come together for some specific purpose and, whether successful or not in their elementary unprofessional persuasive actions, disband at the end of the process.

Similar legislation in NSW will have the effect of shutting down important political communication between citizens and government, rather than what ICAC envisages - that “a truly ‘grassroots’ movement should be natural and spontaneous”.

The advantage in legislating grassroots activity and action will be for the government.

Local and community groups and individuals will be terrified into acquiescence by the prospect of spending time in Parklea prison for persuading their local councillor to attend a fete or for sending out a mail shot.