LOBBYING REGULATION IN AUSTRALIA

The Federal and all State Governments plus the Australian Capital Territory (ACT) require lobbyists and their clients to be listed on their respective lobbyist registers. Only the Northern Territory does not have this requirement. Generally, the registers have to be updated both quarterly and every time a new client is acquired. Lobbyist activities are regulated and the Australian Governments require lobbyists to follow a Code of Conduct prescribed for their jurisdiction.

Western Australian Government

The Western Australian (WA) State Government was the first Australian Government to introduce a Lobbyist Code of Conduct and Register of Lobbyists. The Integrity (Lobbyists) Bill 2014 was assented to on 11 July 2016. The Premier stated that the purpose of the Bill is to:

 “… promote and enhance public confidence in the transparency, integrity and honesty of dealings between government representatives and people who undertake lobbying on behalf of others. In order to achieve this objective, the Bill:

a) provides for the registration of people who undertake lobbying on behalf of third parties;

b) provides for the issuing of a code of conduct for registered persons in their dealings with government; and

c) prohibits registered persons from agreeing to receive payments or other rewards that are dependent on the outcome of lobbying activities” 

The WA Code states in part of its preamble that: “Lobbyists can enhance the strength of democracy by assisting individuals and organisations with advice on public policy processes and facilitating contact with relevant Government Representatives”.

Federal Government

On 2 April 2008, the Federal Government released an exposure draft of the Lobbying Code of Conduct (the Code). Essentially, the Code followed the model adopted by the Western Australian Government. In May 2008, following Cabinet approval of the Code, the Federal Government established a Register of Lobbyists to ensure that contact between lobbyists and Commonwealth Government representatives is conducted in accordance with public expectations of transparency, integrity and honesty. This was the first time a federal Government had introduced such measures.

The Preamble of the Federal Lobbying Code of Conduct provides a good insight into the role of the profession in Australia:

1.Respect for the institutions of Government depends to a large extent on public confidence in the integrity of Ministers, their staff and senior Government officials.

2. Lobbying is a legitimate activity and an important part of the democratic process. Lobbyists can help individuals and organizations communicate their views on matters of public interest to the Government and, in doing so, improve outcomes for the individual and the community as a whole.

3. In performing this role, there is a public expectation that lobbying activities will be carried out ethically and transparently, and that Government representatives who are approached by lobbyists can establish whose interests they represent so that informed judgments can be made about the outcome they are seeking to achieve.

4. The Lobbying Code of Conduct 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.

Lobbyists and Government representatives are expected to comply with the requirements of the Lobbying Code of Conduct in accordance with their spirit, intention and purpose.

New South Wales Government

On 29 October 2008 the then Premier announced the introduction of the Lobbyist Code of Conduct (NSW Code) and Register of Lobbyists (NSW Register) that came into operation on 1 February 2009. The administration of the NSW Register was the responsibility of the Director-General of the Department of Premier and Cabinet but changes to this arrangement were announced by the Premier in May 2014.

The current “Lobbying of Government Officials (Lobbyists Code of Conduct) Regulation 2014” defines a lobbying a NSW Government official as: “... communicating with the official for the purpose of representing the interests of others in relation to any of the following:

(a) legislation or proposed legislation or a government decision or policy or proposed government decision or policy,

(b) a planning application,

(c) the exercise by the official of his or her official functions”.

In May 2014, the Premier announced changes to lobbying rules. The changes  include:

• “Establishing the Electoral Commission as an independent regulator of lobbyists;

• Applying a set of ethical standards to all third-party lobbyists and other organisations that lobby government;

• Empowering the independent regulator to investigate alleged breaches and impose sanctions ...

• Requiring Ministers to publish quarterly diary summaries of scheduled meetings with external organisations on portfolio-related activities; and

• ... [recommending that] the Ministerial Code of Conduct become applicable, giving the watchdog the power to investigate and make findings on a Minister’s compliance with the Code”.

Queensland Government

In March 2010 the Queensland Integrity Commissioner approved a new Lobbyists Code of Conduct. Under the provisions of the Integrity Act 2009 (Qld) the Lobbyists Code of Conduct (Queensland Code) and its requirements were enshrined in legislation and the Integrity Commissioner is responsible for administering the Register of Lobbyists. Queensland was the first Australian State to replace its administrative scheme with a statutory lobbyists code.

The Queensland Code goes further than other Australian codes with the inclusion of the Leader and Deputy Leader of the Opposition and Local Government in the list of officials covered by the Act.

Victorian Government

The Victorian Government Professional Lobbyist Code of Conduct (Victorian Code) and Register of Lobbyists (Victorian Register) were introduced by the Premier in August 2009.

The Victorian Code applies to Ministers, Cabinet Secretaries, Parliamentary Secretaries, Ministerial staff and public officials and defines a lobbyist as: “a ‘person, company or organisation who conducts lobbying activities on behalf of a third party client ...”.

The Victorian Code requires professional lobbyists to register with the Public Sector Standards Commissioner who has the power to refuse applications. The most recent version of the Victorian Code is dated 1 November 2013 and includes a prohibition on lobbyists receiving success fees. The Register of Lobbyists commenced on 1 December 2009 and is published on the Victorian Public Sector Commission website.

The Victorian Code includes references to the post-separation employment of Ministers and Parliamentary Secretaries. Ministers and Cabinet Secretaries are barred for 18 months from engaging in lobbying activities relating to any matter with which they had official dealings in their last 18 months in office.

Parliamentary Secretaries, public service executives and Ministerial advisors employed under the Public Administration Act 2004 (Vic) are barred for 12 months from engaging in lobbying activities relating to any matter with which they had official dealings in their last 12 months.

The Victorian Code states in part of its preamble that:

“Lobbyists and Government Affairs Directors can enhance the strength of democracy by assisting individuals and organiations with advice on public policy processes and facilitating contact with relevant Government Representatives”.

Tasmanian Government

The Deputy Premier and Attorney-General introduced a Lobbying Code of Conduct (the Code) on 15 August 2009. The Code covers third party lobbyists and defines ‘Government representative’ as: “a Minister, a Parliamentary Secretary, a Member of Parliament of the political party (or parties) that constitute the Executive Government of the day, ministerial advisers and heads of agencies appointed under the State Service Act 2000.”

The Code imposes post-separation employment restrictions on Ministers, Parliamentary Secretaries and heads of agencies, preventing them from acting as lobbyists for a period of 12 months. The Code provides for a Register of Lobbyists (the Register) which has been in operation since 1 September 2009.

The Register is located on the Department of Premier and Cabinet website with the Secretary of the Department responsible for handling breaches of the Code. Lobbyists are required to update their details annually.

The Integrity Act 2009, established the Integrity Commission, and lists one of the functions of the Commission as to: “establish and maintain codes of conduct and registration systems to regulate contact between persons conducting lobbying activities and certain public officers”.

The Tasmanian Code states in part of its preamble that: “Ethical lobbying is a legitimate activity and an important part of the democratic process. Lobbyists can help individuals and organizations communicate their views on matters of public interest to the Government and Parliament and, in doing so, improve outcomes for the community as a whole.

South Australian Government

On 29 August 2009 the SA State Government announced the Lobbyist Code of Conduct and public Register of Lobbyists (SA Register). South Australia’s Code (SA Code), which came into force on 1 December 2009, was prepared in consultation with the Victorian Government and was very similar to codes adopted by the Federal and other State Governments. The SA Register is managed by the Chief Executive, Department of Premier and Cabinet.

The SA Code also requires lobbyists to register and to update their details annually on the Register of Lobbyists and, for ministers and public servants, operates in conjunction with the Ministerial Code of Conduct and the Public Sector Code of Conduct.

On 9 August 2015, the SA Government introduced the Lobbyists Bill 2015. The subsequent Lobbyists Act 2015 was proclaimed on 11 February 2016.

The Act imposes post-separation rules to restrict the lobbying activities of Ministers, Parliamentary Secretaries, Ministerial staff and departmental executives after they leave office. Ministers receive a complete ban on professional lobbying activities for two years after the Minister leaves Ministerial office. Parliamentary Secretaries, Ministerial staff and departmental executives are banned from professional lobbying activities for 12 months afte leaving office in relation to all matters the individual had official dealings with.

The Act also provides that a person who is a member of a Government board is prohibited from engaging in professional lobbying during the term of their appointment to that board. At the commencement of this Act, a registered lobbyist who wishes to continue as a Government board member must surrender his or her registration as a lobbyist. Conversely, if the person wishes to continue as a professional lobbyist, he or she must resign from that Government board.

The Act prohibits the giving and receiving of success fees and imposes strict requirements for registration as a lobbyist (including requirements for the lodging of annual returns).

Under the Act, anyone who lobbies a SA public official on behalf of a third party - to influence the outcome of legislation, applications for licenses, permits or exemptions, the awarding of contracts or grants, or any other exercise of the official’s functions or duties - must be registered on the Lobbyist Register.

There are serious penalties for lobbying while unregistered or for giving or receiving a success fee - a company may be fined up to $150,000, or an individual may be fined up to $30,000 or jailed for two years.

The SA Code states in part of its preamble that: “Lobbyists can contribute to the strength of democracy by assisting individuals and organisations with advice on public policy processes and facilitating contact with relevant Government Representatives”.

Australian Capital Territory Government

The ACT Lobbying Code of Conduct (ACT Code) was adopted as a continuing resolution of the Assembly on 5 August 2014. From 1 January 2015 only lobbyists who are registered on the ACT Register of Lobbyists are  able to contact a Member of the Legislative Assembly, their staff and contractors, or ACT public sector employees for the purpose of lobbying on behalf of a third party.

The ACT Code states in part of its preamble that: “Lobbyists can enhance the strength of democracy by assisting individuals and organisations with advice on public policy processes and facilitating contact with public officials”.

Conclusion

In recent years, lobbying has grown dramatically around Australia. On the Federal Register of Lobbyists alone, they were in 2016 248 lobbying entities registered with the Department of Prime Minister and Cabinet. These entities registered 654 staff and listed 1,662 clients. In addition to these registered entities, or ‘third party’ lobbyists, there are a diverse range of special interests who conduct their own lobbying. These interests including unions, clubs, industry associations, in-house Government relations staff at major companies, religious entities, non-government organizations and charities but are not required to be registered. It is difficult to estimate the number of unregistered personnel who undertake lobbying activities but it is estimated that in Canberra alone, there are more than 1,000. All of these personnel should be required to record their details on the appropriate Lobbyist Register in each Australian Federal, State and Territory Government jurisdiction in which they undertake their lobbying activities.

Federal lobbyists have to be registered with the Department of Prime Minister and Cabinet, but this is inadequate. They should also be obliged to promptly, publicly and accurately disclose the discussions and meetings they have had with ministers, shadow ministers and senior public servants”. Requirements similar to this have recently been introduced in South Australia and Queensland. They should be introduced into every Australian Federal, State and Territory Government jurisdiction.