The NSW Council for Civil Liberties (NSWCCL) welcomes the opportunity to make a submission to the Senate Finance and Public Administration Reference Committee about the Inquiry into access to Australian Parliament House by lobbyists.
Our full submission is below.
Current transparency arrangements relating to the lobbyist Register
Lobbying is a necessary and important part of democracy. It allows concerned citizens and special interest groups to raise important issues with their democratically elected political representatives and to shape public policy. However, the current regulations and laws surrounding lobbyists are ripe for abuse. Robust lobbying regulation is an essential measure to ensure transparency, accountability, and the integrity of the political process.
At present in Australia we rely on a public lobbyist Register and a Code of Conduct that does not cover the majority of lobbyists. Third party, or commercial lobbyists are paid professionals who are engaged by clients to make representations to influence public officials on their behalf1, while in-house lobbyists are those that seek to influence public officials on behalf of their employer2. Industries hire professional in-house lobbyists and former politicians for their connections, paying fees well outside the budget of non-corporate actors.3
The Lobbyist Register solely pertains to commercial lobbyists, excluding in-house lobbyists employed by corporations or peak bodies. This equates to only 20% of lobbyists being on the Register, making the transparency benefits of the Register negligible.4
For example, Fossil fuel industry lobbyists have included former Liberal Party, National Party and ALP ministers. We know that lobbying by the fossil fuel industry to hinder effective climate action5 has been successful in slowing down Australia’s response to the Climate Crisis. Recent history shows us that relentless lobbying knocked out Australia’s chance to have an effective emissions trading scheme, a mining tax and price on carbon. If the halls of Parliament are saturated by industry lobbyists and not counterbalanced by community voices, politicians’ views will be skewed to favour industry.6
These wins for big business and the fossil fuel industry come at an enormous cost for the current Australian public and future generations of Australians. This is largely attributable to the shortcomings of federal lobbying regulation.
Diary
Trust in government and in our political institutions is essential to maintain a healthy democracy. Our community is understandably sceptical about the motivations of many of our leaders. Having clear and transparent boundaries and rules about the contact, conduct and the relationship between lobbyists and politicians will help to strengthen our political system and rebuild public trust.
This includes transparency about diary. Unlike comparable jurisdictions in Canada, Scotland and Ireland, the Australian Register does not require lobbyists to disclose who they are meeting with, how often, or what they are meeting about.7 And because the meetings happen in secret, the extent of the influence and potential corruption isn’t exposed. To be meaningful, regulation must capture all engagement with politicians by professional lobbyists, regardless of where and by what means it is achieved.
How could the lobbyist Register and the Code of Conduct be improved?
The preamble to the Code refers to the ‘public expectation that lobbying activities will be carried out ethically and transparently’ and states that the Code is ‘intended to promote trust in the integrity of government processes and ensure that contact between lobbyists and Government representatives is conducted in accordance with public expectations of transparency, integrity and honesty’.
The Lobbying Code of Conduct also provides in clause 12 that the lobbyist ‘must not engage in any conduct that is corrupt, dishonest or illegal, or unlawfully cause or threaten any detriment to a person’. The lobbyist ‘must use all reasonable endeavours to satisfy themselves of the truth and accuracy of all statements and information’ they provide to Government representatives.
The NSWCCL submits that the Register should extend to lobbying by in-house lobbyists and their behaviour should also be subject to the Code requiring ethical behaviour and transparency.
NSWCCL is a member of the #OurDemocracy Alliance and the following recommendations echo the call from the Alliance that the Australian Parliament should support a Federal Lobbying Act to regulate lobbying and increase transparency over who lobbyists are and who they are lobbying. This should include:
1. Extending the federal register of Lobbyists to include in-house lobbyists.
The federal Register should be broadened to include in-house lobbyists – employees of, for example, industry associations or corporations. Appropriate thresholds need to be set to ensure employees who lobby only infrequently are not caught.
2. Requiring lobbyists to provide regular disclosure of their lobbying activity.
Lobbyists should be required to disclose not just their names, but who they are meeting with, how often and what they are discussing.
3. Strengthen enforcement of the lobbyist code of conduct.
Codes of conduct, independently enforced with real penalties, should be included in a Lobbying Act to ensure those lobbying decision-makers act with integrity, and do not act in a way that subverts the public interest. Alleged breaches of the code should be investigated by the National Anti-Corruption Commission, and breaches should attract penalties, including fines and deregistration. A similar approach is already taken in Queensland where lobbying laws are enforced by the Queensland Integrity Commission. In Ireland, Canada and the US there are fines and even jail terms apply for breaches of lobbying regulation.8
4. Require Ministers, Shadow Ministers and senior Ministerial staff to publish their diaries.
A federal Lobbying Act should require Ministers, senior Ministerial staff and Shadow Ministers to publish their diaries. The publication of Ministerial diaries already occurs in Queensland, NSW, Victoria and the ACT. There is no reason that Commonwealth Ministers cannot do the same.
The diary disclosures should include all external stakeholder meetings, events and functions attended by them in an official capacity. Records of meetings should identify those present, their positions, and any prospective policy, legislation, grant, contract, regulation and/or project to which a meeting related.
These diaries should be disclosed to, and published by, the National Anti-Corruption Commission on a monthly basis.
5. Stop Ministers moving into industry jobs.
It is important to regulate the revolving door between public office and private industry as it creates a risk of actual as well as perceived corruption.
The Lobbying Code of Conduct requires that Ministers and parliamentary secretaries not lobby, advocate or have business meetings with members of the government, parliament, public service or defence force on any matters on which they have had official dealings as Minister in their last 18-months in office. It appears these rules are not enforced in practice. The time period and provisions around political staff moving into lobbying roles should be extended and properly enforced by the National Anti-Corruption Commission.
Safeguarding our democracy from the pressures of big money and big influence will improve the functioning of government and ensure that political outcomes are in the public’s best interests. The Australian public deserve those who they have elected to serve their interests – and their interests alone.
Australians are at risk of further losing faith and trust in our civil institutions, our political institutions and our elected politicians if Governments do not embrace transparency and accountability advocated in this submission.
1 Darren Halpin and John Warhurst, ‘Commercial Lobbying in Australia: Exploring the Australian Lobbying Register’ (2016) 75(1) Australian Journal of Public Administration 100, 110.
2 Ng, Yee-Fui. "Regulating the influencers: The evolution of lobbying regulation in Australia." Adelaide Law Review, The 41.2 (2020): 507-543.
3 Nest, Michael, and Saul Mullard. "Lobbying, corruption and climate finance: The stakes for international development." U4 Issue (2021).
4 Ng, Yee-Fui. "Regulating the influencers: The evolution of lobbying regulation in Australia." Adelaide Law Review, The 41.2 (2020): 507-543.
5 Lucas, Adam. "Investigating networks of corporate influence on government decision-making: The case of Australia’s climate change and energy policies." Energy Research & Social Science 81 (2021): 102271.
6 Ng, Yee-Fui. "Regulating the influencers: The evolution of lobbying regulation in Australia." Adelaide Law Review, The 41.2 (2020): 507-543.
7 Ng, Yee-Fui. "Regulating the influencers: The evolution of lobbying regulation in Australia." Adelaide Law Review, The 41.2 (2020): 507-543.
8 Ng, Yee-Fui. "Regulating the influencers: The evolution of lobbying regulation in Australia." Adelaide Law Review, The 41.2 (2020): 507-543.
