May 12 - 18, 2024: Issue 625


Senate Report On Lobbying Passes The Buck On Improving Transparency Or Legislation: Plan To Hold Another 'Review'

The main report recommendations tabled on May 7 2024 from a senate committee inquiry into lobbying miss an opportunity for urgent, overdue and much-needed regulatory and systems improvements according to ACT Independent Senator David Pocock.

Last December, a majority of senators supported a motion moved by Senator Pocock to establish the inquiry which went on to receive 346 public submissions and hold a day-long public hearing in Canberra.

Rather than moving ahead with reform now on the basis of extensive evidence tendered to the inquiry, the main committee report recommends holding a further “independent review of the Lobbying Code of Conduct”, improving regulatory interoperability and restoring day passes.

In a dissenting report, containing seven recommendations, Senator Pocock urged immediate action on key items proposed for the independent review including:

  • legislating the currently voluntary Lobbying Code of Conduct, 
  • expanding its application to in-house lobbyists and interactions with all parliamentarians, and;
  • introducing appropriately strong penalties for breaching the code 

Senator Pocock’s recommendations went further, reflecting evidence tendered to the committee that called for:

  • the monthly publication of ministerial diaries, consistent with advocacy from other crossbench senators including Senator Lambie and former Senator Rex Patrick;
  • the publication of sponsored passholders who are granted privileged access to parliament house, including the name of their sponsor;
  • the establishment of a new properly resourced regulator to oversee the Lobbying Code of Conduct and Lobbyist register; and
  • the establishment of a Whistleblower Protection Authority, consistent with advocacy from other crossbenchers including the Member for Indi Helen Haines and the Member for Clark, Andrew Wilkie to ensure that whistleblowers using parliamentary privilege are adequately protected.

Senator Pocock recognised the value of effective lobbying and access to parliament house but argued the evidence overwhelmingly demonstrated a need for those benefits to be balanced with appropriate democratic protections.

“Weak and ineffective regulation of lobbyists and a secretive system of allowing access to Parliament House undermines public trust in our parliamentary institutions,” Senator Pocock said.

“We need a fit-for-purpose regime to regulate lobbying in federal parliament to promotes transparency and guard against private interests usurping the public interest.

“The enormous weight of evidence tendered to this inquiry - including from current lobbyists - revealed the system as it currently stands is fatally flawed. 

“We’ve got a code with such a narrow definition of lobbying that 80% of lobbyists aren’t even captured by it and in the unlikely event someone is found to breach it, the penalty is so light as to offer no deterrent at all.

“Ministers aren’t accountable for who they meet with and more than 2000 people have 24/7 access-all-areas passes with no public visibility over who they are or who gave them this access.

“The professionalisation of lobbying in this country into what is now a multi-billion dollar industry requires improved regulation, and the time to make those changes is now.”

Summary of Senator Pocock’s recommendations:

Recommendation 1: The definition of lobbyist should be expanded so that all lobbyists, including in-house lobbyists, are on the Register of Lobbyists and subject to the Lobbying Code of Conduct.

Recommendation 2: The Lobbying Code of Conduct should extend to include interactions between lobbyists and all parliamentarians.

Recommendation 3: The Lobbying Code of Conduct must be legislated and include appropriate penalties for breaches.

Recommendation 4: An independent regulator should be appointed and properly resourced to oversee the Lobbying Code of Conduct and Lobbyist Register.

Recommendation 5: Details of sponsored passes should be published, including the name of the passholder, the passholder’s employer and the identity of the sponsoring  parliamentarian.

Recommendation 6: A model should be developed for monthly publication of Ministerial diaries. The starting point for design of that model should be the system currently in force in Queensland.

Recommendation 7: Establish a Whistleblower Protection Authority to ensure that whistleblowers using parliamentary privilege are adequately protected.

Senate report on lobbying passes the buck on improving transparency or legislation

Joo-Cheong ThamThe University of Melbourne

Lobbying is at the heart of government. Who has access to and influence over key government officials shapes the decisions governments make – and how they make them.

The ability to influence government is certainly essential to democratic politics. Yet how lobbying occurs federally undermines Australia’s democracy.

This lobbying is typically shrouded in secrecy. Bound up with such secrecy is unfair access for “insider” groups, especially powerful commercial interests. Such secrecy and unfairness risk encouraging corruption, particularly quid pro quo deals between government decision-makers and lobbyists.

The parlous state of federal lobbying regulation can take much of the blame for this. On May 7, the Senate Finance and Public Administration handed down a report highlighting the inadequacies of this regulation. According to the report, Commonwealth lobbying regulations have not kept pace with either developments in the lobbying landscape or the makeup of the parliament.

However, disappointingly, the report stops short of decisive recommendations in line with its findings.

To Strengthen The Lobbying Code Of Conduct – Or Not

The key regulation examined by the Senate report was the federal Lobbying Code of Conduct. The code and its register are government policies administered by the Attorney-General’s Department. They apply only to commercial lobbyists (but not in-house lobbyists, lobbyists who act on behalf of their employers).

The report concludes that federal lobbying regulation has “not kept pace with best-practice developments in other jurisdictions” and “could be usefully amended to improve its effectiveness”.

It also found strong justification for strengthening the code in key ways. On including in-house lobbyists, it said:

[…] lobbying activity that is neither subject to the Code nor captured on the Register is not sufficiently transparent, and that efforts must be made to extend the coverage of the Code […] The committee therefore recommends that the definition of lobbyists under the Lobbying Code of Conduct be expanded to capture a broader range of actors.

On calls to legislate the code, the report positively notes “the widespread experience with legislated schemes both within Australia and internationally”.

On independent administration of the code, it concludes this would remove

the real or perceived conflict of interest that exists under the current regulatory arrangements where the executive government is responsible for regulating its own relationships.

In a disappointing twist, the report fails to recommend that the code be strengthened in these ways. It says this is due to “the narrow field of views heard by the committee during the hearing and the need to better understand a broader perspective”.

Rather, it recommends the Australian government commission an independent review to consider strengthening the code in the ways proposed.

Parliament House ‘Orange’ Passes

The report examines whether there should be disclosure of the list of holders of “orange” passes to Australian Parliament House (APH). These are sponsored passes issued on the basis that the holders have “a significant and regular business” requirement for unescorted access to Parliament House.

The report found “the process for obtaining a sponsored pass is not entirely transparent”. It said “very little is known about the 1,977 sponsored passholders that have a significant and regular business requirement to access APH”. Current regulatory arrangements “make it impossible to ascertain the scale of lobbyist access to APH”.

Rather than seeking to penetrate this opaqueness, the report recommended exploration of “regulatory interoperability” between the Lobbying Code of Conduct and the APH access system.

Emphasising that “the ‘orange pass’ is not a lobbyist pass”, it fell back on its “another review” recommendation. This was on the grounds that “the most effective accountability and transparency measures relate to legislating a properly representative Lobbying Code of Conduct”.

Publication Of Ministerial Diaries

The report noted that publication of ministerial diaries is required in the Australian Capital Territory, New South Wales, Queensland and Victoria. It recognised that:

visibility over diaries can provide a valuable counter reference point to the information available on lobbyist registers, allowing for a comparison of what is disclosed on both platforms and analysis of how these meetings may align with legislative and regulatory changes and the awarding of government contracts.

However, it resists recommending publication of ministerial diaries based on a non sequitur: should the publication requirements extend to all parliamentarians, there would need to be fuller consideration of “matters of parliamentary privilege”.

Reforming The Cash Nexus

A striking omission from the report is its neglect of the intimate link between lobbying and political contributions. This matters because:

We can understand the frustration of Senator David Pocock when he says in his dissenting report:

We know the problems; the committee was given the solutions. It’s time to get on with the job of fixing the broken system that regulates the conduct and access of federal lobbyists.

Equally understandable is the frustration of Special Minister of State Don Farrell at a bill sponsored by Pocock that proposes a $1.5 million “mega-donor” cap on political donations with no campaign spending caps. This is seemingly aimed at protecting Climate 200’s funding operations.

Perhaps the Senate report on lobbying can prompt a reset – a setting aside of mutual frustration – and pave the way for robust and integrated reforms of lobbying and political funding.The Conversation

Joo-Cheong Tham, Professor, Melbourne Law School, The University of Melbourne

This article is republished from The Conversation under a Creative Commons license. Read the original article.