Chapter 6Committee view and recommendations

Introduction

6.1Having your voice heard, and making representations to elected members and to the processes of the parliament is a fundamental part of our parliamentary democracy. Lobbying is a legitimate and important part of that process, assisting individuals and organisations to communicate their views to the respective elements of the parliament and government.

6.2That being recognised, certain issues have become apparent in this inquiry.

6.3Firstly, although the Commonwealth of Australia moved early with the introduction of lobbying regulation in 1983, and despite modifications to what may be described as a moderately robust scheme, lobbying regulations at the Commonwealth level have not maintained pace with the developments in both the lobbying landscape nor the nuances of the makeup of the parliament and those ultimately influencing decision making.

6.4Much of the evidence to the committee, including from the New South Wales Independent Commission Against Corruption (NSW ICAC), pointed out that incomplete regulations increase the risk of corrupt behaviour and allow an unregulated 'off the record' space in which vested interests may exert undue influence over official decision-making, which diminishes trust in government.

6.5Further, Commonwealth lobbying regulations have not kept pace with best-practice developments in other jurisdictions, including state jurisdictions within Australia such as NSW, Queensland and Western Australia, and overseas jurisdictions particularly the United States, but also Canada.

6.6It seems to the committee that there are clearly aspects of the Commonwealth lobbying regulations that could be usefully amended to improve its effectiveness.

6.7Secondly, there is some conflation between the Lobbying Code of Conduct and the Register of Lobbyists administered by the Attorney-General's Department on one hand and the Australian Parliament House sponsored pass system administered by the Department of Parliamentary Services on the other. These two different systems serve two different purposes.

6.8Accordingly, the committee's recommendations are directed at improving the current regulatory arrangements for lobbyists, maintaining the independence and integrity of the Australian Parliament House sponsored pass system, and supporting increased access to Australian Parliament House.

Improving the regulatory arrangements for lobbyists

An appropriate definition of lobbyists

6.9The current Lobbying Code of Conduct applies only to lobbyists conducting lobbying activities on behalf of third parties.

6.10Most submitters and witnesses expressed concern that this limited definition of a lobbyist under the current Code provides only a partial and incomplete picture of lobbyists at the Commonwealth level, and that this falls short of achieving the regulatory objective of promoting public trust in the integrity of government processes as set out in the Code.

6.11Accordingly, a broad range of submitters and witnesses, including government relations firms such as Hawker Britton and Executive Counsel Australia, recommended that the definitions related to lobbying should be amended to include in-house lobbyists and focus more on the activities of lobbyists.

6.12The committee notes the justification for the exclusion of in-house lobbyists from the Code put forward by AGD.

6.13The committee notes evidence from parties seeking a system that would allow them to understand in a timely manner who was engaged in lobbying on a particular matter that would enable them to be satisfied that a balance of views was heard.

6.14To that extent, the committee considers that 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.

6.15That said, the committee also considers that changes to the definition of lobbying must not impede other forms of civic participation. This would include advocacy, research, and whistleblowing. The committee considers these activities should not be subject to the same regulations.

6.16The committee therefore recommends that the definition of lobbyists under the Lobbying Code of Conduct be expanded to capture a broader range of actors. Given the narrow field of views heard by the committee during the hearing and the need to better understand a broader perspective, the committee does not make a specific recommendation relating to scope but notes that the desire expressed relating to transparency of lobbying cuts all ways and the interests of transparency are not directional.

6.17The committee therefore recommends the Australian Government review the Lobbying Code of Conduct with a view to including an expanded definition of a lobbyist.

A legislated Code of Conduct

6.18The bulk of the evidence received by the committee identified shortcomings with the optional approach of the Commonwealth administrative scheme covering lobbyists. Many submitters argued that this framework does little to incentivise compliance or deter breaches as it has minimal or no effective consequences for non-compliance.

6.19The committee notes the evidence from the NSW ICAC that found legislated schemes impose higher levels of transparency over lobbying when they make registration and compliance with the Code compulsory.

6.20The committee notes that the United States and Canada as well as NSW, Queensland, Western Australia, and South Australia have all legislated lobbying regulations.

6.21Noting the widespread experience with legislated schemes both within Australia and internationally, the committee therefore recommends that the review of the Lobbying Code of Conduct incorporates consideration of the Australian Government introducing legislation to require all lobbyists to adhere to the Lobbying Code of Conduct and maintain registration on the Register of Lobbyists.

Independent administration of the Code

6.22The Lobbying Code of Conduct and the Register of Lobbyists are currently administered by the Attorney-General's Department. Evidence from the NSW ICAC and Professor Ng both noted that independent administration is best practice because it removes 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.

6.23The committee agrees that independent administration would remove this potential conflict of interest.

6.24The committee notes that in NSW, the lobbying regulations are administered by the NSW Electoral Commissioner, and in Queensland by the Integrity Commissioner.

6.25The committee therefore recommends that the government review considers what may be the most appropriate body to administer the Code at the Commonwealth level.

6.26The committee received evidence from the NSW ICAC that independent administration of regulations in NSW had resulted in the regulator ensuring increased compliance activity by the lobbying sector.

6.27The committee is of the view that breaches and non-compliance with the Code should incur real penalties beyond deregistration, reflecting the seriousness of the breach. In other jurisdictions, penalties for non-compliance with lobbying regulations include sanctions, fines, and imprisonment. There is, therefore, a need for a Commonwealth regulator with both the appropriate powers and the responsibility, authority, and mandate to enforce compliance with the Code.

6.28The committee recommends the Australian Government commission an independent review of the Lobbying Code of Conduct to consider:

an expanded definition of a lobbyist;

introducing legislation to require all lobbyists to adhere to the Lobbying Code of Conduct and maintain registration on the Register of Lobbyists; and

the most appropriate body to administer the Lobbying Code of Conduct and the Register of Lobbyists at the Commonwealth level.

Publication of diaries

6.29The committee heard from a range of submitters and witnesses that the publication of diaries, particularly Ministerial diaries, would provide a useful transparency and accountability measure around lobbyists interactions with government officials.

6.30This broader transparency requirement would recognise the evolving make up of Australian parliaments, particularly as crossbenchers and minor parties may hold a 'balance of power' and use that power to persuade governments to pursue (or refrain from) certain courses of action, and that they may also wield significant influence over public discourse.

6.31The committee notes that under various ministerial codes of conduct, in NSW, Victoria, and the Australian Capital Territory, Ministers are required to disclose their diaries on a quarterly basis. In Queensland, Ministers, Assistant Ministers, and ministerial chiefs of staff are all required to disclose their diaries monthly. These disclosures are expected to provide sufficient detail with respect to the date, location, and attendance at the meeting.

6.32The committee recognises 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.

6.33The committee also notes evidence put forward by Professor Twomey that any diary publication requirements should necessarily be extended to all parliamentarians, not just Ministers.

6.34The committee notes that this proposition raises several issues including matters of parliamentary privilege which would need much more scrutiny than possible via this inquiry, including consideration by the respective House and Senate privileges committees.

6.35It is also critical that the interests of vulnerable populations be protected, and it is appropriate that some meetings be discrete.

6.36As such, the committee notes the evidence but makes no specific recommendations in relation to publication of diaries.

6.37It is, however, clearly open to any Member of Parliament or Senator to publish their diary in the interests of transparency.

The current APH sponsored pass system

Interaction between the Code and the sponsored pass system

6.38The committee is of the view that it is in the interests of the democratic process that as many people as possible have access to Parliament House and therefore the democratic process.

6.39For example, parliamentarians rely on the access of citizens to Australian Parliament House to better understand critical issues beyond the border of their own constituencies, issues that they may have to make decisions on as legislators. Australian Parliament House is a large building and has useful spaces for people to work and prepare for meetings without interfering with the work of the parliament. Public use of these facilities should be encouraged when used in appropriate ways by people participating in the democratic process.

6.40Access to Parliament House should be facilitated not hindered and the primacy of deciding who comes and goes should remain at the discretion of the parliament.

6.41At the outset, therefore, the committee recognises the evidence from DPS that the sponsored pass, or 'orange pass', is not a lobbyist pass.

6.42The committee considers that the most effective accountability and transparency measures relate to legislating a properly representative Lobbying Code of Conduct based on a comprehensive definition of a lobbyist as discussed in previous sections. Given that the Register of Lobbyists that sits under the Lobbying Code of Conduct is a publicly searchable database, this system would provide the necessary transparency.

6.43MP’s and Senators remain free to declare who they have sponsored for Australian Parliament House passes.

6.44Accordingly, the committee considers that there is no need to publish the names of sponsored pass holders contained on the Department of Parliamentary Services database (noting also that the database is managed in accordance with the Australian Privacy Principles contained in Schedule 1 of the Privacy Act 1988).

6.45Further, the Lobbyists Register would only contain the names of lobbyists, not those persons exercising other forms of civic participation, including advocates. Therefore, the privacy of advocates sponsored by parliamentarians would remain unaltered by the changes the committee is proposing. Based on the evidence it received in the hearing, the committee recognises that this is fundamentally important to encouraging and facilitating legitimate civic activity in a democratic society.

6.46Noting the evidence from Health Equity Matters, the committee recognises that increased transparency of the passholder database risks exposing marginalised and stigmatised communities to unwelcome attention and the politicisation of relationships between parliamentarians and advocates, whistleblowers, and their constituents.

6.47Therefore, the call to publish the names of all sponsored passholders would unnecessarily capture a range of persons accessing Australian Parliament House for legitimate civic purposes. This proposal is not something that the committee could recommend.

6.48That said, the committee considers that the current lack of any interaction between the Code and the sponsored pass system undermines the regulatory effectiveness of both systems.

6.49Therefore, the committee considers that a structured notification system advising of a breach of either of the two systems presents a genuine opportunity to improve the compliance posture of both the Code and the pass system and related policies administered by DPS.

6.50This could, for example, take the form of automatically generated mutual compliance alerts between the two systems.

6.51Decisions relating to such alerts should then be a matter for either the parliament in respect of eligibility to hold an Australian Parliament House sponsored pass, or those administering the Lobbyist register in accordance with the provisions of the Code to decide.

6.52The committee therefore recommends that the Department of Parliamentary Services and the administrator of the Lobbying Code of Conduct explore opportunities for regulatory interaction.

6.53The committee recommends that the Department of Parliamentary Services and the administrator of the Lobbying Code of Conduct explore opportunities for regulatory interoperability to improve the effective regulation of lobbyists including appropriate procedures for managing respective notifications received, regardless of whether the Lobbying Code of Conduct is a voluntary or legislated scheme.

Restore the unescorted day pass

6.54The committee agrees with evidence it received that argued that the previous unescorted day pass was an important access mechanism for individuals and organisations who visited Australian Parliament House only occasionally, but nevertheless benefitted from the freedom of movement afforded by unescorted access.

6.55The requirement for escorted visitors to be accompanied at all times creates an onerous burden on both visitors to Australian Parliament House and the staff of the parliamentarians they are meeting, who are often required to move back and forth between private and public areas to escort visitors around the building.

6.56Restoring the unescorted day pass would reduce the burden on a parliamentarian's staff and create efficiencies for occasional visitors to Australian Parliament House to make the most of their time in the building, including by being able to move freely from one meeting to another without repeatedly signing in as a visitor, or being constantly escorted.

6.57Unescorted day pass holders would require the sponsorship of a passholder with policy rights and would be subject to identity verification checks and security screening.

6.58The committee firmly believes that restoring the unescorted day pass would help to improve the accessibility of Australian Parliament House for individuals and organisations that visit Australian Parliament House only occasionally, without subjecting them to the same processes as sponsored passholders under the current arrangements.

6.59Therefore, the committee recommends that the Department of Parliamentary Services restore the unescorted day pass for persons who require only occasional access to Australian Parliament House.

6.60The committee recommends that the Department of Parliamentary Services restore the unescorted day pass for persons who require only occasional access to Australian Parliament House.

Senator the Hon Richard Colbeck

Chair

Liberal Senator for Tasmania