LOBBYING IN AUSTRALIA

Authors: David Moore and Mellisa Lai, (MinterEllison)

Constitution: The Constitution of Australia (the Constitution) sets out the powers of the body politic, the Commonwealth of Australia (ie, the six federated states).

Australia does not have a bill of rights, though there are some rights protected in the Constitution and at common law.

Relevantly, the High Court of Australia has ruled that there is an implied - but not absolute - freedom of political communication under Australian law.

Legislative system: There are three arms of the government: Parliament; the judiciary; and the executive. In this chapter, ‘government’ refers to the federal government (the Commonwealth).

Parliament is made up of the Queen (represented by the Governor-General), the Senate and the House of Representatives. Members of the House of Representatives represent their respective geographical electorates and are elected for terms of not more than three years. Senators represent their respective states or territories and serve for a term of six years (except for senators representing the territories who serve the same term of office as members of the House of Representatives).

In order to form a government, a political party (or coalition of parties) must secure the majority of votes in the House of Representatives; the government need not have a majority in the Senate. The head of the government is the Prime Minister and, as a matter of constitutional convention, is delegated executive powers by the Governor-General.

The Prime Minister appoints members of the government (from either the House of Representatives or the Senate) to serve as ministers with allocated areas of responsibility, known as portfolios. The Prime Minister and the ministers are referred to as the executive government. Additionally, a smaller, core group of government ministers will be appointed by the Prime Minister as members of the Cabinet, the traditional body charged with determining the policy directions of the government of the day.

In order for a bill presented to Parliament to become law, it must pass both the House of Representatives and the Senate before receiving royal assent; a bill that has been passed by Parliament and has received royal assent is known as an Act. Certain Acts allow for the relevant minister to prescribe regulations relating to the Act. Generally speaking, an Act will set out the substance of the law, while regulations deal with the implementation or interpretation of the Act.

National subdivisions: Powers are divided between the government and the six states (New South Wales, Queensland, South Australia, Tasmania, Victoria and Western Australia).

Under the Constitution, the government may exercise powers expressly set out in the Constitution. States may make laws on matters not controlled by the government. In the event of an inconsistency between laws made by a state and laws made by the government, the latter generally prevails.

Territories, principally the Australian Capital Territory and the Northern Territory, may exercise such powers and make laws on matters as set out in the relevant self-government legislation (subject to potential override by the government).

States and territories exercise powers and make laws in respect of a number of areas, including planning, education, health, infrastructure and emergency services. States and territories may levy state-based taxes, however, a significant amount of state revenue is granted from the government.

State and territory governments may also make laws in relation to lobbying, elections and political donations. This chapter will consider government relations at the federal level; however, it should be noted that different laws apply to lobbying and government relations at a state and territory level, and there are local government bodies in each state.

Consultation process: The government undertakes consultations with and invites submissions from stakeholders on certain regulatory and policy issues. Although consultation processes are not in place for all issues, it is not uncommon for the government to engage with businesses, community organisations and individuals when proposed policy or legislation changes will impact stakeholders. These consultation processes may be run through the respective government department responsible for the issue or parliamentary committees may seek submissions from the public on issues under their consideration.

In addition to public consultation processes, stakeholders may meet with senior public servants and parliamentarians, or their staff, to present their perspectives and seek to influence legislation or policy decisions. Businesses regularly engage lobbyists to assist in this process.

Judiciary: Under the Constitution, the judiciary is an independent arm of government. According to the doctrine of separation of powers, the judiciary interprets and applies the law independently and without interference from the parliamentary or executive arms of government.

The terms of office and remuneration of the federal judiciary are guaranteed under the Constitution. Judges are appointed by the executive (without parliamentary oversight) and may only be removed on the grounds of proved misbehaviour or incapacity. Judges are required to retire when they reach the age of 70.

General: At a federal level, lobbying activities in Australia are administered and regulated by the Secretary of the Department of the Prime Minister and Cabinet through the Lobbying Code of Conduct (the Code) and the Register of Lobbyists (the Register). Lobbying activities at a state and territory level are regulated by the respective state or territory government authority.

The Code does not grant the Secretary of the Department of the Prime Minister and Cabinet express powers to investigate or penalise breaches of the Code. Rather, the Code states that a government representative who becomes aware of a breach of the Code must report details of the breach to the Secretary. The effectiveness of the Code is enforced not through penalties and investigatory powers but instead through the presumption that government representatives will not willingly engage with a person who is known to be in breach of the Code.

Although government officials administer the Code and Register, there is not a public perception that political interests conflict with the intended goal of transparency of the regime.

The Australian government enacted the Foreign Influence Transparency Scheme Act 2018 (Cth) (the Scheme) on 29 June 2018, which requires registration by persons undertaking registrable activities ‘on behalf of’ a foreign principal for the purpose of political or governmental influence, and for those registrants to meet ongoing reporting obligations, including disclosing information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship. The requirement to register will commence on a date to be proclaimed or by 29 June 2019 and will be in addition to lobbyists’ existing obligations under the Code.

Definition of Lobbying:

Code: Lobbying activities are defined under the Code as communications with a government representative in an effort to influence government decision-making, including the making or amendment of legislation, the development or amendment of a government policy or programme, the awarding of a government contract, or the grant or allocation of funding.

The definition of lobbying activities does not include:

• communications with a committee of Parliament;
• communications with a minister or parliamentary secretary in his or her capacity as a local member or senator in relation to non-ministerial responsibilities;
• communications in response to a call for submissions, petitions or communications of a grassroots campaign nature in an attempt to influence a government policy or decision;
• communications in response to a request for tender;
• statements made in a public forum; or
• responses to requests by government representatives for information.

Scheme: ‘Parliamentary lobbying’ in Australia for the purpose of political influence on behalf of a foreign government, entity, foreign political organisation or foreign government related individual is registerable under the Scheme. ‘Parliamentary lobbying’ means lobbying a member of the Parliament or a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984, and ‘general political lobbying’ means lobbying any one or more of the following: a Commonwealth public official, a department, agency or authority of the Commonwealth, a registered political party, a candidate in a federal election that is not Parliamentary lobbying. ‘Lobby’ is defined to include to communicate, in any way, with a person or a group of persons for the purpose of influencing any process, decision or outcome and represent the interests of a person, in any process. Also defined under the Scheme as registrable activities are ‘communications activities’ and ‘disbursement activities’.

Registration and other disclosure:

Code: Persons undertaking lobbying activities on behalf of a client with a government representative must be recorded on the Register. The Register is a public document that is published on the website of the Department of the Prime Minister and Cabinet. Its purpose is to promote transparency of influences acting within Australia’s political system.

Scheme: Following commencement, registration under the Scheme is mandatory, unless certain exemptions apply. It is a criminal offence for a person who is liable to register not to be registered under the Scheme.

Activities subject to disclosure or registration:

Code: As noted before , the definition of lobbying activities under the Code is limited to ‘communications with a government representative’, which is defined as including oral, written and electronic communications.

A government representative is defined as: a minister; a parliamentary secretary; a person employed or engaged by a minister or a parliamentary secretary; an agency head or a person employed under the Public Service Act 1999; a person engaged as a contractor or consultant by a government agency whose staff are employed under the Public Service Act 1999; or a member of the Australian Defence Force.

Scheme: A person becomes liable to register in relation to a foreign principal if the person:

• undertakes an activity on behalf of a foreign principal that is a registrable activity in relation to the foreign principal; or
• enters into a registrable arrangement with a foreign principal (even if they do not yet engage in any registrable activities).

A registrable arrangement is an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. As noted before , registrable activities include parliamentary lobbying, general political lobbying, communications activities and disbursement activities.

Entities and persons subject to lobbying rules:

Code: The Code applies to lobbyists and government representatives.

The Code defines a lobbyist as any person, company or organisation that conducts lobbying activities on behalf of a third-party client or whose employees conduct lobbying activities on behalf of a third-party client.

For the purposes of the Code, a lobbyist does not include:

• charitable, religious and other organisations or funds that are endorsed as deductible gift recipients;
• non-profit associations or organisations constituted to represent the interests of their members that are not endorsed as deductible gift recipients;
• individuals making representations on behalf of relatives or friends about their personal affairs;
• members of trade delegations visiting Australia;
• persons who are registered under an Australian government scheme regulating the activities of members of that profession, such as registered tax agents, customs brokers, and company auditors and liquidators, provided that their dealings with government representatives are part of the normal day-to-day work of people in that profession; and
• members of professions, such as doctors, lawyers, accountants and other service providers, who make occasional representations to the government on behalf of others in a way that is incidental to the provision to them of their professional or other services. However, if a significant or regular part of the services offered by a person employed or engaged by a firm of lawyers, doctors, accountants or other service providers involves lobbying activities on behalf of clients of that firm, the firm and the person offering those services must register and identify the clients for whom they carry out lobbying activities.

The Code does not apply to persons or organisations engaging in lobbying activities on their own behalf. These persons are not required to be recorded in the Register (unless that person also engages in lobbying activities on behalf of a client or clients).

Scheme: A person becomes liable to register under the Scheme in relation to a foreign principal if the person undertakes a registrable activity ‘on behalf of’ a foreign principal, or enters into a registrable arrangement with a foreign principal. ‘Person’ is defined to include, among other things, an individual, a body corporate, a partnership and an organisation whether or not resident in, formed or created in, or carrying on business in, Australia and whether constituted under an Australian or foreign law or not constituted under a law at all.

Lobbyist details:

Code:

A lobbyist must record the following details for inclusion on the Register:

• the business registration details (including trading names) of the lobbyist (including where the business is not a publicly listed company), the names of owners, partners or major shareholders, as applicable;
• the names and positions of persons employed, contracted or otherwise engaged by the lobbyist to carry out lobbying activities;
• whether a person employed, contracted or otherwise engaged by the lobbyist is a former government representative, and if so, the date the person became a former government representative; and
• a list of any clients who have engaged the person on a retainer to provide services or any other clients for whom the person has provided lobbying services (paid or unpaid) in the past three months.

The lobbyist must also lodge a statutory declaration for each person listed as conducting lobbying activities under the application stating that the person: has never been sentenced to a term of imprisonment of 30 months or more; has not been convicted, as an adult, in the past 10 years, of an offence, one element of which involves dishonesty, such as theft or fraud; and is not a member of a state or federal political party executive, state executive or administrative committee (or the equivalent body).

Registration is achieved by completing the online registration form located on the website of the Department of the Prime Minister and Cabinet.

A lobbyist is not required to list a client on the Register where that might result in speculation about a pending transaction involving the client. Where a lobbyist relies upon this exemption, the lobbyist must advise the government representative with whom they are meeting of that reliance and must also provide the anticipated date upon which they will add their client to the Register. The lobbyist must promptly record their client on the Register once market sensitivity has passed.

A lobbyist must submit updated details to the Secretary of the Department of the Prime Minister and Cabinet in the event of any change to the lobbyist’s details as soon as practicable and within 10 business days. This includes when the lobbyist begins to act for a new client.

Scheme:

In relation to the Scheme, the secretary of the Attorney General’s Department must keep a register of information in relation to the Scheme. The secretary must include on the register the following information and documents for each person who is registered in relation to a foreign principal:

• the name of the person and the foreign principal;
• the application for the registration and any accompanying information or documents;
• any notices given by the person in accordance with Division 2 of Part 3 (reporting to the secretary) and any accompanying information or documents;
• any renewal of the registration and any accompanying information or documents;
• a record of any other communications between the person and the Secretary;
• any information prescribed by the rules for the purposes of paragraph 43(1)(c) in relation to registrants; and
• any other information or documents the secretary considers appropriate.

Content of reports:

Code

Lobbyists must submit updated lobbyist details to the Secretary of the Department of the Prime Minister and Cabinet in the event of any change to the lobbyist’s details as soon as practicable and within the 10 business days after the change occurs. Each year, within 10 business days of 31 January, lobbyists must provide the Secretary with confirmation that the lobbyist’s details are up to date.

The lobbyist must also provide statutory declarations for all persons employed, contracted or otherwise engaged by the lobbyist to carry out lobbying activities on behalf of a client stating that the person: has never been sentenced to a term of imprisonment of 30 months or more; has not been convicted, as an adult, in the past 10 years, of an offence, one element of which involves dishonesty, such as theft or fraud; and is not a member of a state or federal political party executive, state executive or administrative committee (or the equivalent body).

A lobbyist’s registration will lapse if confirmations and updated statutory declarations are not provided within the specified time frame.

Scheme:

Under the Scheme, a registrant has various responsibilities with regard to reporting including to:

• promptly report any material changes affecting the registration and any disbursement activity undertaken on behalf of the foreign principal;
• during the voting period for a federal election or designated vote - review the currency of information provided by the registrant and promptly report on certain registrable activities undertaken during the voting period;
• make disclosures when undertaking communications activity on behalf of the foreign principal; and
• renew registration annually for so long as the person remains liable to register under the Scheme.

Financing of the registration scheme:

Administration of the Code, the Register and the Scheme is financed by the government. There are no fees payable to register as a lobbyist.

Public access to lobbying registers and reports:

Code:

The Register is publicly available on the website of the Department of the Prime Minister and Cabinet, and is maintained by the staff of that Department.

Scheme:

In relation to the Scheme, the secretary must make available to the public, on a website, the following information in relation to each person registered in relation to a foreign principal:

• the name of the person and the foreign principal;
• a description of the kind of registrable activities the person undertakes on behalf of the foreign principal; and
• any other information prescribed by the rules.

Code of conduct:

Under the Code, when engaging with government representatives lobbyists must:

• not engage in any conduct that is corrupt, dishonest or illegal, or unlawfully cause or threaten any detriment;
• use all reasonable endeavours to satisfy themselves of the truth and accuracy of all statements and information provided by them to clients whom they represent, the wider public and government representatives;
• not make misleading, exaggerated or extravagant claims about, or otherwise misrepresent, the nature or extent of their access to government representatives, members of political parties or to any other person;
• keep strictly separate from their duties and activities as lobbyists any personal activity or involvement on behalf of a political party; and
• when making initial contact with government representatives, inform the government representatives:
  • that they are lobbyists or employees of, or contractors or persons engaged by, lobbyists;
  • of whether they are currently listed on the Register;
  • of the name of their relevant client or clients; and
  • of the nature of the matters that their clients wish them to raise.

Details of these principles, along with the rest of the Code, are available on the website of the Department of the Prime Minister and Cabinet.

Breaches of the Code, including the above principles of engagement, may result in the Secretary of the Department of the Prime Minister and Cabinet removing a lobbyist or an employee or contractor of a lobbyist from the Register.

Media: Australian media laws impose broadcasting and advertising standards relating to the content and delivery of broadcast material, as well as regulating the concentration of media ownership in Australia. The Broadcasting Services Act 1992 states that when broadcasting political matter at the request of another person, a broadcaster must arrange for an announcement to be made at the end of the broadcast that sets out details of the person authorising the political matter to be broadcast. The purpose of this requirement is to provide transparency to the public regarding the person or organisation promoting a certain political issue.

In addition to political authorisation announcements, the Broadcasting Services Act 1992 sets out requirements regarding access to and timing of the broadcast of a political matter during an election period. For example, if any election matter is broadcast during an election period by a broadcaster, then the broadcaster must give all political parties contesting the election a reasonable opportunity to have the matter broadcast during the election period provided that they are represented in Parliament at that time. Additionally, blackout periods for election advertising apply from the Wednesday before an election.

The Australian Press Council, the industry association for newspapers, magazines and associated digital outlets, sets out general principles with which its members are expected to abide by, including the obligation to ensure that conflicts of interests are avoided or adequately disclosed, and that they do not influence published material. Although the Australian Press Council has no legal or legislative powers to fine or penalise the press, its charter states that the press has a responsibility to the public to commit itself to self-regulation that provides a mechanism for dealing with the concerns of members of the public and the maintenance of the ethical standards and journalistic professionalism of the press.

Australian media, broadcasting and press laws do not specifically restrict the use of commercial interests in media to influence public policy outcomes.

General: Political parties and politicians’ campaigns are funded through public funds and private donations. Remuneration of politicians is funded through public money.

Registration of interests: Registered political parties (and their respective state or territory branches and associated entities) must lodge an annual return to the Australian Electoral Commission detailing the following:

• the total value of receipts;
• details of amounts received that are more than the disclosure threshold (currently A$13,800, indexed annually), including the name and address of the person from whom the amount was received, whether the receipt was a donation, and the sum received from the person;
• the total value of payments;
• the total value of debts as at 30 June; and
• details of debts outstanding as at 30 June that total more than the disclosure threshold (currently A$13,800, indexed annually), including the name and address of the person to whom the debt is owed, the amount owed and whether that debt is to a financial institution.

The Australian Electoral Commission also requires political candidates, unendorsed Senate groups and Senate groups endorsed by more than one registered political party to disclose donations and electoral expenditure incurred during an election. Electoral returns to the Commission must show:

• the total value of donations received;
• the total number of donors;
• individual donations received above the disclosure threshold (currently A$13,800, indexed annually) and the details of those donations, including:
  • the date on which each donation was received;
  • the amount or value of each donation; and
  • the name and address of the donor; and
• electoral expenditure incurred.

Contributions to political parties and officials: Australian law does not currently limit who may make political contributions nor does it restrict how much may be contributed. Persons or organisations who make donations to political parties or candidates above the disclosure threshold (currently A$13,800, indexed annually) must lodge a return with the Australian Electoral Commission.

If a person is registered under the Scheme in relation to a foreign principal and the person undertakes disbursement activity on behalf of the foreign principal (meaning when the person disburses money or things of value and neither the person nor a recipient of the disbursement is required to disclose it under the general disclosure threshold to the Australian Electoral Commission), the person must give the secretary a notice specifying the total value reached in specific circumstances.

Sources of funding for political campaigns: Political campaigns are funded by private donations and public funds. The amount of public funds payable is calculated by multiplying the number of formal first preference votes received by that political party by the rate of payment applicable at the time.

Lobbyist participation in fundraising and electioneering: There are no special restrictions or disclosure requirements for lobbyists with respect to political donations or candidate fundraising at a federal level. Certain state and territory regimes apply different standards for donations and donors.

Independent expenditure and coordination: Political campaigning independent of a candidate or party is not restricted under Australian law, however, independent third parties who incur political expenditure above the disclosure threshold (currently A$13,800, indexed annually) in one year must lodge an annual return to the Australian Electoral Commission.

Gifts, travel and hospitality:

Parliamentarians must disclose gifts valued at more than A$750 received from official sources and gifts valued at more than A$300 received from non-official sources. Parliamentarians must also disclose any sponsored travel or hospitality received valued in excess of A$300. A gift received by the parliamentarian, the parliamentarian’s spouse or partner or dependent children from family or friends in a purely personal capacity need not be registered unless the parliamentarian judges that an appearance of conflict of interest may be seen to exist.

Ministers must not seek or accept any kind of benefit either for themselves or for others in connection with performing or not performing any part of their official duties as a minister.

There are also restrictions on other offices that may be held by candidates seeking political office, including under the Constitution.

Anti-bribery laws:

Bribery of federal public officials is criminalised in the Criminal Code. Under the Criminal Code, a person commits an offence if the person dishonestly provides, causes to provide, offers to provide or causes an offer to provide a benefit to a public official with the intention of influencing that official in the exercise of his or her official duties. Likewise, a public official commits an offence if he or she dishonestly asks for, receives or agrees to receive a benefit for himself or herself or another person with the intention that the benefit will influence his or her official duties or with the intention of inducing, fostering or sustaining a belief that the exercise of the official’s duties will be influenced.

The Criminal Code also criminalises bribery of foreign public officials. A person commits an offence if the person dishonestly provides, causes to provide, offers to provide or causes an offer to provide a benefit to a foreign public official that is not legitimately due with the intention of influencing that official in the exercise of his or her official duties to obtain or retain business, or obtain or retain a business advantage, which is not legitimately due to the recipient.

There are duties that apply to government officials under the Public Governance Performance and Accountability Act 2013 (Cth) and a code of conduct under the Public Service Act 1999 (Cth).

States and territories also have legislation criminalising bribery of public and private individuals.

Revolving door:

Persons who retire from office as a minister or a parliamentary secretary may not engage in lobbying activities relating to any matter that they had official dealings with in their last 18 months in office, for a period of 18 months after they cease to hold office.

Persons who were employed in the offices of ministers or parliamentary secretaries at adviser level and above, members of the Australian Defence Force at colonel level or above (or equivalent), and agency heads or persons employed under the Public Service Act 1999 in the Senior Executive Service (or equivalent), may not, for a period of 12 months after they cease their employment, engage in lobbying activities relating to any matter that they had official dealings with in their last 12 months of employment.

While there is no distinct prohibition on public-sector employees entering the private sector after service, a person who has left the Australian Public Service must not disclose official information if it is reasonably foreseeable that the disclosure would be prejudicial to the effective working of government, and must not disclose information received or communicated in confidence. Information may be disclosed if it is authorised, already lawfully in the public domain, or can be disclosed without compromising the work of government or revealing information given in confidence.

Furthermore, a person who has left the Australian Public Service commits an offence if he or she uses official information obtained while employed dishonestly to obtain a benefit for himself or herself or another person, or to cause detriment to another.

There are duties that apply to government officials under the Public Governance Performance and Accountability Act 2013 (Cth) and a code of conduct under the Public Service Act 1999 (Cth). Further, specific provisions apply to former cabinet ministers in the Scheme in relation to registrable activities on behalf of foreign principals.

Private-sector professionals are seconded to public bodies relatively frequently, particularly in the professional services industries.

Prohibitions on lobbying: Australian law does not specifically provide for a lobbyist to be barred from lobbying or undertaking lobbying activities, nor are there restrictions on engaging lobbyists.

However, under the Lobbying Code of Conduct, the Secretary of the Department of the Prime Minister and Cabinet may remove a lobbyist or an employee or contractor of a lobbyist from the Register if:

• the conduct of the person has contravened any of the terms of the Code;
• the registration details of the person are inaccurate;
• the person fails to answer questions within a reasonable period of time relating to the person’s details on the Register or the person’s lobbying activities (in particular questions relating to allegations of breaches of the Code) or provides inaccurate information in response to those questions;
• the person fails to relevant provide details within the time limits stipulated under the Code;
• the person is a member of a state or federal political party executive, state executive or administrative committee; or
• the Minister Assisting the Prime Minister for the Public Service, in his or her absolute discretion, directs the Secretary to remove the person from the Register.

Recent cases: In Unions NSW v New South Wales [2013] HCA 58, the High Court found that a state law that banned political donations from anyone other than an individual on the electoral roll was found to be invalid because it restricted political communication and was not reasonably and appropriately adapted to achieving a legitimate aim such as preventing corruption or undue influence.

However, in McCloy v New South Wales [2015] HCA 34, state laws that banned donations from specified ‘prohibited donors’ (such as property developers), banned indirect campaign contributions and capped the value of donations that could be made, were found to be valid because the High Court found that they were proportionate to the legitimate purpose of preventing corruption and undue influence in government.

Remedies and sanctions:

As noted before, failure to comply with the Lobbying Code of Conduct may result in that person being removed from the Register.

Failure to lodge a return required by the Australian Electoral Commission may result in a fine of up to A$10,500. Providing misleading or false material in a return required by the Australian Electoral Commission may result in a fine of up to A$21,000.

Under the Criminal Code, bribery of a federal public official may result in imprisonment for up to 10 years or a fine of up to A$2.1 million (or both) for individuals. For corporations, the offence may result in a fine of up to the greater of: A$21 million; three times the value of the benefit obtained from the bribe; or 10 per cent of the annual turnover of the body corporate in the 12 months prior to the conduct. Public officials guilty of accepting a bribe may be subject to imprisonment for a period of up to five years.

An intentional omission to apply or renew for registration under the Scheme carries a maximum penalty of five years’ imprisonment. Periods of imprisonment may also apply to, among other things, a failure to comply with a notice requiring information, providing false or misleading information or documents to the secretary and a person damaging or destroying records relating to the Scheme. As the Scheme has not yet commenced, sanctions have not yet been imposed.

Updates and trends:

The Electoral Legislation Amendment (Electoral Funding and Disclosure Reform) Bill 2017 (the Bill) has not yet been passed through Parliament. The Bill targets political financing by restricting the ability of foreign money to finance domestic election campaigns, and reducing opportunities for election funding to be used for private gain. With the intention of limiting foreign influence, Australian elections, political parties, candidates, Senate groups and significant political campaigners are proposed to be banned from receiving foreign gifts over A$250, or any money transferred from foreign accounts.