Labor Members of the Committee endorse the report and support its recommendations, continuing the strong bipartisan tradition of the Joint Committee of Public Accounts & Audit.
In particular we note and welcome the Committee’s strong condemnation of the administration of the EBPC Act.
These additional comments relate to the Lobbying Code of Conduct as Labor Members consider the recommendations do not go far enough and that legislation is warranted to provide a stronger, statutory underpinning for the Code.
LEGISLATION IS REQUIRED FOR THE LOBBYING CODE OF CONDUCT
The Australian National Audit Office has examined and made two separate sets of recommendations for improvements to the administration of the Australian Government Register of Lobbyists (‘the Register’) and its associated Lobbying Code of Conduct (‘the Code’).
The first investigation and recommendations were detailed in Auditor-General Report No.27 of 2017–18, Management of the Australian Government’s Register of Lobbyists, the recommendations to Government being:
The Department of the Prime Minister and Cabinet review the appropriateness of the current arrangements and Code requirements in supporting the achievement of the objectives established for the Code. To better support the ongoing regulation of lobbyists, PM&C should:
implement a strategy to raise lobbyists’ and Government representatives’ awareness of the Code and their responsibilities;
assess risks to compliance with the Code and provide advice on the ongoing sufficiency of the current compliance management framework; and
develop a set of performance measures and establish an evaluation framework to inform stakeholders about the extent to which outcomes and broader policy objectives are being achieved.
However, in a Follow-up Audit published in June 2020, the ANAO determined that the Government had not implemented those earlier recommendations.
When questioned about this failure in hearings of the Public Accounts and Audit Committee on 4 March 2021, the evidence of the Attorney-General’s Department (“AGD”) was that in May 2019, responsibility for the Register was shifted from the Department of Prime Minister and Cabinet (PM&C) to AGD, following a Machinery of Government Change initiated by the Prime Minister’s office. Following this change of administrative arrangements, AGD’s focus was on dealing with problems with functioning of the Register website that were identified with the transfer of this responsibility.
Evidence to the Committee about the reasons for these problems and the subsequent difficulties with fixing them included that:
There was no written plan for transfer of accountability between the two departments; and
There was a lack of clarity about when PM&C would complete its changes to the system to deal with ‘some problematic functionality’.
AGD’s evidence was that it has now prepared an implementation plan that covers both the 2018 and 2020 recommendations of the ANAO. However, a primary concern raised by the ANAO reports and the evidence received in a public hearing about the operation of the Register and the Code did not relate to the technical problems with the Register website.
The central problem identified by the ANAO centered on the fact the Government has been operating an essentially passive regime. There was no strategy to raise awareness of the Register and Code, no systematic assessment of risk, no proactive assessment of compliance with the requirements of the Register or the Code, and no evaluation framework of the scheme overall.
When pressed on what AGD was doing to actively identify lobbyists who had not registered, and to ensure compliance with the Code, the Department assured the Committee that steps were being taken to engage with the lobbying sector and to improve the Government’s communication strategy to raise awareness of the Register and Code.
However, it is clear that little is being done to address the primary concern about the way in which the Register and Code are currently administered, which is marked by a primarily a passive rather than proactive approach to the regulation of lobbying by this Government. This is revealed in the fact AGD does not appear to operate or intend to introduce a performance framework or a risk management framework to ensure the Register and Code are fulfilling the important functions for which they were established.
Labor members believe this is a serious and fundamental weakness underpinning the Code that no amount of technical improvement to the web interface for the Register can address.
Rather, significant changes should be made to shift the entire regulatory regime to a more active orientation that includes performance targets and the development and implementation of a risk management framework to identify individuals who do not register and to ensure that those lobbyists who have registered comply with the requirements of the Code.
The need to shift the Register and Code to a statutory footing
The ANAO revealed that on 6 May 2018, the Prime Minister wrote to the Attorney-General, requesting advice to be provided by late July 2018, "following your review of arrangements in relation to the Lobbying Code, as recommended by the ANAO, including whether the Lobbying Code should be placed on a statutory footing in a manner consistent with the FITS Bill."
But the ANAO found that "The Attorney-General wrote to the Prime Minister on 12 September 2018 responding to the initial request, and confirming it was withdrawn by agreement."
AGD also confirmed that it had not provided advice to the Attorney-General regarding shifting the Register and Code to a statutory footing prior to the apparent withdrawal of the May 2018 request. However, under questioning AGD confirmed that having now fixed most of the technical problems with the website, it would be providing further advice to the Attorney-General ‘by the middle of the year’ on options to improve administration and operation, and that these options could include shifting the regime to a statutory footing.
The Government claims to recognize the importance of the Register and Code, which it describes as being “to ensure that contact between lobbyists and Australian Government representatives is conducted in accordance with public expectations of transparency, integrity and honesty.” Yet there is precious little action that conveys any sense of urgency or import.
Problems with ‘transparency, honesty and integrity’ in the Australian Government have been frequently and prominently aired in the media over recent years. A great deal more needs to be done to remedy these problems and to restore the Australian public’s faith in the integrity of their national government.
It is certainly a step forward that the Australian Government website that operates the Register is now functioning. However, it is the strong view of the Labor Members of this Committee that the administration of the Register and the Code should be strengthened to ensure that both the Register and Code are more proactively administered and enforced.
In putting in place the significant reforms required to move the scheme to a proactive footing, it is also the view of Labor members that the entire scheme be shifted to a statutory footing. This would provide for:
Greater opportunities for public consultation on and transparency in the design of the statutory scheme;
Greater confidence in the independence of the scheme from the government of the day, with its operation provided for by statute rather than executive order; and
Opportunities to strengthen the scheme through statutory enforcement mechanisms, including civil penalties for breach of certain provisions.
Lobbying is a legitimate activity however it must be undertaken transparently, to enhance integrity and prevent corruption.
The Morrison Government has failed to introduce a proper National Anti-Corruption Commission, allowing their rorts, waste and corruption to go unchecked.
This government has also repeatedly shown it cannot be trusted to govern with respect for long established conventions and standards, hence a legislative response is warranted.
Labor members consider that an all-out effort is urgently required to improve integrity in national public administration and arrest the decline in public trust in democracy and institutions. Legislating a strong Lobbyist Code would complement Labor’s commitment to introduce a National Anti-Corruption Commission.
Julian Hill MP
Pat Conroy MP
Senator Kimberley Kitching
Alicia Payne MP
Senator Jess Walsh
Tim Watts MP