Chapter 5Options put to the committee
5.1The committee received 346 public submissions to the inquiry. The overwhelming majority of submitters expressed their support for stronger regulations and increased transparency over the role of lobbyists within and beyond Australian Parliament House.
5.2A significant number of the public submissions to the inquiry were received as part of the advocacy campaign #CleanUpPolitics, coordinated by DrMoniqueRyan MP, the Centre for Public Integrity (CPI), Transparency International and the Australian Democracy Network with the stated aim of improving the regulation of lobbying activities at the Commonwealth level. Collectively, these submitters echoed many of the points that were put forward in Dr Ryan's submission.
5.3This chapter sets out the views and recommendations of submitters about key issues relating to the Terms of Reference of the inquiry.
Opportunities to improve the Lobbying Code of Conduct
5.4As noted in the introduction in Chapter 1, there are three main purposes for regulating lobbying:
to prevent corrupt behaviour by lobbyists and public officials;
to help ensure greater fairness in government policy-making and decision-making processes by increasing transparency and reducing the incidence of hidden lobbying by vested interests and reducing the risk of regulatory capture by government; and
improving the quality of government decision-making and policy-making by ensuring government decisions are made according to merit, rather than towards narrow sectional interests.
5.5Many of the potential options for reform that were put to the committee would aim to address one or more of the above purposes.
5.6Submitters and witnesses presented a range of options to improve the Lobbying Code of Conduct (Code). Arguably the most fundamental of these reform proposals would be to legislate the Code. As noted in Chapter 3, legislation of the Code would include automatically enshrining the Register in law.
5.7Many of the other proposed reforms would flow from and, to some extent, rely on this legislative approach, namely:
amending the Code to include in-house lobbyists;
introducing an appropriate sanctions regime; and
introducing independent administration of the Code.
Legislating the Lobbying Code of Conduct
5.8As noted in earlier chapters, the Commonwealth's current lobbying regime is voluntary. Legislating the Code would align it with the United States (US) and Canada as well as several Australian states.
5.9Several submitters identified shortcomings with the optional approach embodied in the current administrative scheme. These submitters argued that the current scheme does little to incentivise compliance or deter breaches as there are minimal or no effective consequences for non-compliance. These submitters therefore argued that a legislated lobbyists regulatory scheme would be inherently more robust than the current administrative scheme.
5.10The NSW ICAC submitted that its review of international best practice lobbying regulations found that 'statutory schemes impose higher levels of transparency over lobbying registration' by making registration and compliance with the Code compulsory by law.
5.11The CPI submitted that legislating the Code would incentivise compliance and deter breaches because a legislated Code could impose penalties for breaches.
5.12Further, a legislated scheme could potentially include the ability to enforce a separation period between the time an ex-minister or senior public official held a government position and their engagement as a lobbyist.
5.13The Uniting Church of Australia, Synod of Victoria and Australia submitted that a legislated approach to lobbying is essential to any serious attempt to reduce corrupt methods of influencing policy.
5.14Similarly, Mr John Menadue, a former Secretary of the Department of Prime Minister & Cabinet, submitted that legislating the Code would help ensure the public interest is 'paramount' by enabling effective regulation of lobbyists.
Expanding the definition of lobbyists
5.15Most submitters and witnesses expressed concern that the limited definition of a lobbyist under the current Code has resulted in a partial and incomplete picture of lobbyists at the Commonwealth level. These submitters and witnesses therefore argued for a more comprehensive definition to support a broader capturing of lobbyists and lobbying activity.
5.16As noted in Chapter 3, under the current regulations, only third-party lobbyists are captured. That is, any person, company or organisation that conducts lobbying activities on behalf of a third-party client or whose employees, contractors or persons otherwise engaged by the person, company or organisation conduct lobbying activities on behalf of a third-party client.
5.17The Code does not apply to lobbyists who undertake lobbying activities on behalf of their employer (in-house lobbyists). The Attorney-General's Department (AGD) submitted that in-house lobbying is already 'sufficiently transparent as it is clear whose interests in-house lobbyists represent'.
5.18By contrast, almost every other submitter and witness argued that the current regime is severely deficient because it fails to include in-house lobbyists and, to that extent, also lacks transparency.
5.19For example, the CPI submitted that the way in which ‘lobbying’ and ‘lobbyist’ are currently defined under the Code 'restricts the Code’s application and undermines its effectiveness by capturing only communications made to a government representative in an effort to influence government decision-making'. Instead, the CPI argued that the definition of ‘lobbying’ should be 'broadened to include any attempt to influence the decision-making of parliamentarians'.
5.20Likewise, Professor Ray Ison and Mr Ed Straw jointly submitted that there are gaps evident in the current regulations, which are too narrowly focussed on registered third-party lobbyists and therefore fail to capture all relevant lobbying activities.
5.21Hawker Britton, a government relations firm based in Canberra, submitted that the current definition places undue emphasis on the business model of individuals engaged in lobbying rather than focusing on the actual activities undertaken. Hawker Britton argued that the current model falls short of achieving the regulatory objective of promoting public trust in the integrity of government processes set out in the Code. Hawker Britton therefore recommended that the definitions related to lobbying should be amended to include in-house lobbyists and focus more on the activities of lobbyists, rather than the business model they are employed under.
5.22Similarly, Executive Counsel Australia, a government relations firm based in Canberra, submitted that an amended definition should be centred on capturing all individuals who are remunerated to engage with and influence any level of the Commonwealth bureaucracy. It was argued that this should necessarily include in-house lobbyists, board members, and senior employees of industry associations, companies, consultancies, and not-for-profit organisations.
5.23The Australia Institute submitted that 'in-house lobbyists for corporations are the most glaring omission from the official definition'. However, it also highlighted other groups, including not-for-profit associations, trade associations and other peak industry bodies that are known to regularly lobby government. It was argued that the current definition is too narrow and so should be amended and expanded to include these groups.
5.24Drawing on regulations in the US, the Australia Institute proposed a more effective definition of lobbyists would consider the amount of time spent lobbying as a proportion of professional duties.
Independent administration of the Code
5.25As set out in Chapter 3, New South Wales, Queensland, and Western Australia each administer their respective codes of conduct independent from executive government.
5.26Several submitters drew attention to the need for independent administration of the Code and the Register. Many of these submitters recommended that a dedicated lobbying commissioner within the National Anti-Corruption Commission (NACC) would be a more appropriate regulator than AGD.
5.27Associate Professor Ng submitted that:
The independence of the regulator is essential, and it is best if the scheme is administered by an independent statutory authority, rather than a department within the executive.
5.28CPI submitted that the Code should be overseen by an independent regulator, rather than by AGD. This would mitigate a potential conflict of interest caused by a department under the direction of the executive being tasked with investigating breaches that may involve, directly or tangentially, members of the government and other parliamentarians.
5.29Our Democracy submitted that breaches of the Code should be investigated by the NACC, or another independent regulatory body with sanction powers, in line with the approach taken in several Australian states.
Strengthening the compliance posture of the regulator
5.30As outlined in Chapter 3, AGD rarely exercises the compliance tools currently available under the Code.
5.31Several submitters drew attention to the limited compliance measures contained in the current regulations, which largely rely on temporary de-registration as the primary enforcement mechanism. These submitters suggested that the compliance and sanctions regime could be usefully strengthened.
5.32Professor Ison and Mr Straw submitted that the current regulations are further undermined by the inadequacy and the underuse of enforcement mechanisms and penalties for non-compliance. Accordingly, they argued there are minimal incentives for compliance and seemingly no real consequences for non-compliance, resulting in a regulatory framework that is ultimately a symbolic, administrative exercise.
5.33Our Democracy submitted that registration and compliance with the Code should be legislatively mandated for all lobbyists, including in-house lobbyists. They highlighted the need for sanction powers to deal with unregistered lobbying and non-compliance, including warnings, fines and bans on future registration.
5.34At the public hearing, Ms Kate Griffiths from the Grattan Institute commented that:
The only listed sanction for violating the code of conduct is being deregistered. There is no listed sanction for lobbyists lobbying while unregistered. We recommend a review into possible stronger sanctions for non-compliance.
Publication of diaries
5.35NSW, Victoria, and the ACT all require the quarterly disclosure of Ministerial diaries. In Queensland this disclosure occurs monthly and includes the diaries of Ministers, Assistant Ministers, and their respective Chiefs of Staff. Disclosure requirements generally centre on the dates of meetings and organisations represented and are published online in an accessible PDF format. None of these jurisdictions have legislated this requirement, opting to rely on the proactive disclosure of diaries by officials.
5.36Many submitters argued that the disclosure of Ministerial and parliamentarians' diaries is an important transparency and accountability mechanism as it enables public monitoring of any interests meeting with decision-makers and other parliamentarians in a position to exercise influence over government decision-making.
5.37The NSW ICAC submitted that Ministerial diary disclosures can bolster transparency over the lobbying of ministers by providing a counter reference point for lobbying registers, allowing for a comparison of what is disclosed on both platforms.
5.38The Australia Institute submitted that Commonwealth adoption of similar disclosure requirements to the above-mentioned jurisdictions 'would provide critical insight into the scale, access, and influence of lobbying in federal parliament'.
5.39Associate Professor Ng submitted that diary disclosures are most effective when extended to Ministers, ministerial advisers and senior public servants, and when they include sufficient detail on the subject matter discussed at the meeting, and whether it relates to any legislation, grants, or contracts.
5.40CPI and Dr Ryan submitted that diary disclosure requirements should extend beyond public officials to include lobbyists themselves.
5.41Cancer Council Australia submitted that both officials and lobbyists diaries should be published alongside one another on the same digitally accessible platform to allow for streamlined comparison of lobbyists' interactions with officials without having to navigate two separate virtual systems.
5.42Our Democracy submitted that diary disclosure requirements should be legislated, as this would make them more effective, and not reliant on voluntary transparency.
5.43At the public hearing, Professor Anne Twomey commented that any effort to mandate Ministerial diary disclosures should necessarily extend to all parliamentarians, including backbenchers and crossbenchers.
The APH pass system
5.44As detailed in Chapter 4, very little is known about the 1977 sponsored passholders that have a significant and regular business requirement to access APH. It is often assumed that most access APH to lobby government officials. However, this is not known with any degree of certainty.
5.45Submitters and witnesses raised concerns that the current privacy arrangements, in effect, work to conceal information about sponsored passholders and their activity inside APH. These concerns centre on the lack of any interaction between the Register of Lobbyists and the APH passholder database, the lack of transparency over the database and the need to balance genuine privacy concerns with the transparency and accountability objectives of the Code.
Interaction between the Register of Lobbyists and the APH passholder database
5.46As noted in Chapters 3 and 4, there is currently no interaction between the pass system administered by DPS and the Code of Conduct and Register of Lobbyists administered by AGD.
5.47Several submitters pointed to a regulatory gap, namely that the lack of any interaction between the Register of Lobbyists and the APH passholder database creates a risk that deregistered lobbyists may be able to conduct unregistered lobbying inside APH without any oversight.
5.48AGD submitted that the Code does not currently interact with the arrangements set out in the Private Area Access Policy (PAAP) for managing access to APH. However, AGD advised that it is 'open to exploring options to enhance the interoperability of these frameworks, in particular avenues to facilitate information sharing':
for the purpose of improving compliance with the Code; and
to provide Parliament with information about a person’s compliance with the Code which could inform decisions about their eligibility to hold a sponsored access card.
Transparency and publication of the sponsored passholder database
5.49While the Register provides some transparency over which third-party lobbyists are making representations to government, it is currently unknown who has access to officials inside APH. As noted in Chapter 4, DPS currently manages the APH pass database in accordance with the Australian Privacy Principles contained in Schedule 1 of the Privacy Act 1988.
5.50The NSW ICAC submitted that unregulated lobbying creates opportunities for organisations or special interest groups to obtain unfair advantages and disproportionate access to, and influence over, official decision-making. With no system of formal oversight to safeguard against unregistered lobbying inside APH, this is a genuine risk under the current arrangements.
5.51Professor Twomey submitted that sponsored passes on the grounds of a significant and regular business requirement should only be granted to registered lobbyists to mitigate the risk of unregistered lobbying taking place inside APH.
5.52The Grattan Institute submitted that DPS's justification for not making public the passholder database on privacy and security grounds is out of step with international best-practice, citing other jurisdictions like the United Kingdom (UK), US, and New Zealand, which have demonstrated the ability to manage these risks and publish lists of passholders.
5.53Professor Twomey submitted that:
the excuse for denying such transparency has been that such a record could amount to a security risk. However, anyone with malicious intent who wished to steal or duplicate a parliamentary pass could surely do so from the large number of others who hold such passes.
5.54The Australian Professional Government Relations Association (APGRA), the professional association for consulting and in-house government relations practitioners in Australia, were confident that the current arrangements for sponsored pass holders are robust, efficient, and fair. APGRA submitted that the publication of the sponsored passholder database would be 'duplicative to the existing lobbyist register' and create an undue administrative burden for government relations practitioners.
5.55By contrast, Professor Twomey reminded the committee that, with respect to the suggestion that regulations creating administrative burdens, 'if people want the pass, then they choose to take the burden of registration.'
5.56Indeed, public relations firms such as Hawker Britton supported a public register of Parliament House pass holders and their sponsors.
5.57Emeritus Professor Mike Daube AO noted that information regarding the pass system is difficult to find and suggested that the APH website should publish comprehensive information about how to obtain a pass, as well as policies and regulations relating to maintaining a pass.
Privacy concerns regarding the publication of diaries and the passholder database
5.58Health Equity Matters drew the attention of the committee to the need to balance transparency and accountability objectives with efforts to ensure that non-commercial interests, particularly those relating to marginalised social groups, are not exposed or disadvantaged by amended regulations.
5.59Health Equity Matters submitted that increased transparency of the passholder database risks 'exposing lobbyists who are members of marginalised and stigmatised communities to unwelcome attention' and creating 'a platform for open hostility and physical violence against these communities.'
5.60Health Equity Matters recommended that any amendments to the current regulations should necessarily consider a public interest exemption to full transparency for marginalised community members seeking a sponsored parliamentary pass.
5.61Professor Twomey pointed out that where sensitive information is being communicated to parliamentarians, for example from whistleblowers, there are several alternative places and platforms for meetings between parliamentarians that are less conspicuous than APH, as well as the option to obtain an escorted visitor pass.
5.62Some evidence also suggests that a clear demarcation of the differences between various sub-groups of sponsored passholders, discerning lobbyists from advocates, activists, whistleblowers, and others would also go some way to alleviating the issue identified here.
Restoring the unescorted day pass
5.63A smaller number of submitters to the inquiry argued that greater transparency over who has access to APH should not create a barrier to access by creating additional administrative burdens for passholders and their sponsors. One possible solution put to the committee was the restoration of the unescorted day pass. This pass category is not captured in DPS policy documents relating to the pass system.
5.64The Australia Institute noted this category of pass was in use until recently, discontinued in 2014 as part of a broader security and counter-terrorism effort.
5.65The Australia Institute submitted that the re-introduction of the unescorted day pass could allow occasional visitors to benefit from unescorted movement, without the need to hold a permanent pass. Moreover, it noted that this could ease the burden on parliamentary offices, who would no longer have to spend large parts of their day chaperoning visitors, as they do now.