Dissenting report by Senator Rhiannon on behalf of The Australian Greens
The Australian Greens are disappointed but not surprised that this
inquiry has failed to take up the opportunity to properly regulate lobbying
activity, making not one recommendation for reform. We have made eight
recommendations for reform (below).
It was clear from the start that the government lacked an appetite for
reform. The Australian Greens brought on this inquiry after the government
sidestepped its obligation to initiate a review recommended by the same
Committee in 2008.
The inquiry has overlooked the clear evidence from many that current
regulation is deficient.
The Lobbying Code of Conduct and Register scheme lags well behind other
countries such as Canada and the United States.
It is also out of step with The Organisation for Economic Co-operation and
Development (OECD) reports and guidelines on lobbying to which Australia is a
party. The Department of Prime Minister and Cabinet admitted in the inquiry
that the government has not responded to the OECD’s work.
The Queensland Integrity Commissioner Dr David Solomon AM succinctly
summed up the flaws in the scheme during the public hearing:
The problem simply is that we have a system that suggests
that lobbying is being regulated, but the amount of lobbying that is being
regulated is a relative small amount of the lobbying that goes on. The risk is
that people will think that there is proper regulation of lobbying, when the
fact is that that is not what the system is designed to give us.
The legacy the public is now left with is inadequate regulation that Dr
Solomon describes as:
...too narrowly focused on relatively few lobbyists...[that]
do(es) not provide for adequate and timely disclosure of lobbying
activities...ignore(s) the lobbying of non-government legislators
and...contain(s) no real mechanism for supervision or policing and very few
sanctions for breaches of the various codes and laws.
The inquiry accepted the argument that the status quo is adequate,
partly on the basis of the spurious reasoning that because there has been a
high level of compliance then reform is not necessary.
This ignores the fact that a large slab of lobbying that does occur, for
example by in-house lobbyists and of non-government MPs, is not caught by the
scheme. The Department of Prime Minister and Cabinet estimates that around
5,000 would be required to register if in-house lobbyists were covered by the
scheme, compared to 934 entities and individuals currently on the register.
The inquiry gives excessive weight to the argument that the scheme meets
its defined objectives set by Senator Faulkner upon establishing the Code in
2008: ‘to ensure Ministers and other Government representatives know whose
interests are being represented by lobbyists before them...”
The inquiry relies on this to rebut calls for greater regulation. The
argument is put that it is clear to MPs whose interests in-house lobbyists
represent and therefore there is no need to bring them within the scheme.
Unfortunately this overlooks the additional and very important objective
spelt out by Senator Faulkner – the right of ‘the public to know who stands to
benefit from the efforts of lobbyists’.
While Ministers might know who is being represented when in-house
lobbyists meet with them, the public remains blind to what goes on behind
closed doors under the current scheme.
It remains virtually impossible for the public to find out who is
lobbying and for what purpose.
Some key issues are totally absent in this report, such as whether there
should be more detailed public reporting of lobbying activity. This is despite
the Queensland Integrity Commissioner Dr David Solomon AM in his public
appearance before the Committee identifying this as ‘crucial’ and describing
current reporting obligations as ‘very minor’. He named a lack of transparency
as one of the scheme’s major failures.
While the additional costs of tightening lobbying regulation are warmly
embraced as barriers by the Inquiry, the benefits to the public and democracy
of adopting a system such as that seen in Canada are not explored.
The overseas experience is paid short shrift, despite excellent
regulatory models in Canada and the US. The report ignores OECD reports and
guidelines that set out what constitutes appropriate regulation and fails to
consider high profile corruption scandals involving lobbyists in Queensland,
NSW, United States and United Kingdom which serve as a warning of the need to
better protect against corruption risks.
The Australian Greens are also concerned that there may have been a
tendency to provide more weight to the views of the lobbyist industry who
oppose additional regulation than to academics, accountability campaigners and
non-government groups who made submissions to the inquiry.
This follows the trend set by the government when it began its first ‘review’
of the scheme in 2010 and invited a select group of lobbyists to a roundtable
(five of which had made political donations to either the Government, the
Coalition or both).
In the two and half short hours given over to public hearings for this
Inquiry no academics or non-government organisations which made submissions
critical of the scheme were invited to present, with Labor and Coalition MPs on
the Committee refusing my request to invite them in the interests of balance.
Only three invitations were extended and accepted – the QLD Integrity
Commissioner, bureaucrats from the Department of the Prime Minister &
Cabinet and a major lobbying firm (also a donor to the major parties).
In conclusion, this inquiry has been a missed opportunity to reform a scheme
described by Dr Solomon as a ‘very light touch system that does not really
Greens vision for regulation of lobbying
The Australian Greens have a strong interest in strengthening the
democratic system by making the decision making process more transparent and
In 2007, prior to the current scheme, Australian Greens Leader Bob Brown
introduced the Lobbying and Ministerial Accountability Bill 2007 to regulate
While we believe lobbying is a legitimate activity, the Australian
Greens share the concerns of many that the current Lobbying Code of Conduct and
Register is inadequate to meet public expectations that what happens behind
closed doors between lobbyists and politicians is appropriately regulated and
that the lobbying ‘footprint’ is clear for all to see.
Corruption risks are real, as has recently been witnessed in three high
profile US and UK lobbyist scandals. They can range from direct bribing of
those with decision-making power to a culture of ‘policy capture’ where
governments tend to favour lobbyists’ interests over those of the community.
With the light off lobbyists in Canberra, or at the very best
substantially dimmed, it is impossible to see who is gaining access to
politicians and high level bureaucrats and whether deals are being done.
The Australian Greens believe the public has a legitimate right to know
the ‘who’, ‘what’, ‘where’ and results of lobbying. The current system is not
There is legitimate concern in the community that not everyone has the
same opportunity to lobby decision makers and that those with the deepest
pockets and the most power and connections are better able to influence policy
The public cannot be confident that decisions are being made on merit
after considering a broad range of views, or because of relationships the
public is not privy to.
The Australian Greens believe it is possible and desirable to strengthen
the current scheme, without creating unreasonable barriers to groups
participating in the democratic process.
Summary of recommendations
1. Establish an Office of the
Commissioner of Lobbying
The Australian Greens believe oversight of lobbying should rest with an
independent body similar to the Canadian Commissioner of Lobbying. This
independent body would report direct to federal parliament and have auditing
and investigative powers and a mandate to enforce a new Lobbying Act and
Lobbyists’ Code of Conduct.
2. Provide a legislative framework
1.32 The Australian Greens support a legislative framework for the regulation
3. Expand who is the subject of
1.33 The Australian Greens believe there is a strong case for expanding the
target of lobbying from government ministers to include all MPs and Senators,
including cross benchers and opposition MPs, as occurs in the US and Canada.
4. Widen who is defined as a
1.34 Expand the scope of lobbying to include corporations and organisations
employing in-house lobbyists, many of whom are in a position to influence
5. Strengthen disclosure
1.35 The Australian Greens believe the scheme should require the disclosure,
in a timely manner, of when the lobbying occurred, who stood to benefit, who
was lobbied, the subject matter of the lobbying and the meeting outcome.
6. Enhance compliance and review
1.36 The Australian Greens support: the proposed Commissioner for Lobbying
receiving and investigating complaints; strengthened and meaningful sanctions
applying to MPs, public servants and lobbyists and proper appeal rights.
7. Strengthen post separation
1.37 The Australian Greens believe there should be a five year ban on
ex-ministers working as lobbyists.
8. Ban success fees
1.38 The Australian Greens support a ban on the payment of success fees to
Australian Greens’ proposal in detail
Establish an Office of the
Commissioner of Lobbying
The Australian Greens believe oversight of lobbying should
rest with an independent body similar to the Canadian Commissioner of
Lobbying. This independent body would report direct to federal parliament and
have auditing and investigative powers and a mandate to enforce a new Lobbying
Act and Lobbyists’ Code of Conduct.
Currently regulation of the scheme rests with the Executive. An
independent authority, with the capacity and integrity to ensure regulations
are applied equally to all concerned, will ensure decisions are not left to the
discretion of political representatives.
The Office, based on the Canadian model, would ensure transparency and
accountability in the lobbying of public office holders and contribute to
confidence in the integrity of government decision-making. It functions would
include maintenance of the register, compliance, prevention and education work.
A similar model exists in QLD where the Integrity Commissioner administers the
lobbyist registration scheme.
Provide a legislative framework
The Australian Greens support a legislative framework for
the regulation of lobbying.
Creating a legislative framework would strengthen the regulation of
lobbying, for example providing for appropriate sanctions and appeal rights.
Overseas jurisdictions such as Canada as well as Western Australia, Queensland
and NSW have taken this step.
It has been argued that a legislative structure may encroach on the
separation of powers between the judiciary and the parliament and risks a
constitutional challenge based on the implied freedom of political
However this freedom is by no means absolute.
Expand who is the subject of
The Australian Greens believe there is a strong case for
expanding the target of lobbying from government ministers to include all MPs
and Senators, including cross benchers and opposition MPs, as occurs in the US
The current scheme which regulates only lobbying of ‘Government
wrongly assumes that it is the Executive that has hold of parliament and
decision-making and that there will always be majority government and
disciplined parties. This ignores the reality of our Australian political
system where there can be factions within parties which attracts lobbying of
all MPs (eg on same-sex marriage, refugees) as well as minority governments
where independents and minor parties may be key to decision-making. The reality
is that those with power to allow or disallow a bill to pass may be the target
of intense lobbying.
Widen who is defined as a lobbyist
Expand the scope of lobbying to include corporations and
organisations employing in-house lobbyists, many of whom are in a position to
influence government policy.
The revised scheme should go beyond third party professional lobbyists
to adopt the NSW Independent Commission Against Corruption’s (ICAC) proposed
definition of a “lobbying entity:
A body corporate, unincorporated association, partnership,
trust, firm or religious or charitable organisation that engages in a lobbying
activity on its own behalf.
This would require registration of industry peak bodies and most
religious and charitable bodies and all corporations that lobby by use of their
own in-house staff, including board members.
Dr David Solomon points out the definition echoes Canada’s definition of
in house lobbyists (organisations) and in house lobbyists (corporations).
Limiting the code to third party lobbyists, or ‘hired guns’, is like
using a butterfly net to capture a lion. It misses those such as in-house lobbyists
in big corporations such as BHP Billiton and Telstra and interest groups such
as the AMA, industry bodies such as the Australian Hotels Association, the
Minerals Council of Australia or the Australian Industry Group, unions,
churches, and not-for-profit community groups like GetUp!:
“... if the point ... is to shed light upon those who seek to
influence the government, then the federal lobbying code of conduct, as
currently constituted, fails to fully do that. Many of the lobbyists active in
Canberra, as well as many of those who are the focus of their lobbying, are
being missed out entirely by the code, as it is currently constituted”.
The government employs a jaundiced argument that the scheme does not
need expanding because the Code’s main aim is to allow government
representatives to know who they are meeting with and who is represented. This
ignores a key function of the regulatory scheme: to provide transparency so the
public can scrutinise how decisions are made.
ICAC takes odds with the argument that non-profit making peak bodies
should remain beyond the reach of the scheme:
“The difference in motive was claimed as a reason why the
regulation of the lobbying of peak body organisations was unnecessary. This
argument did not address the problem of undisclosed dealings, and the lack of
public access to information and to decision-makers. It also did not address
the existence of undisclosed opponents. There is no difference in principle, in
method or in its effect between lobbying conducted by third party lobbyists and
that conducted by any other entity seeking to persuade government of its view.
All seek to use or have an effect on the resources or powers of government, all
draw from the same group of methods and tactics to persuade government of the
merit of their view, and most seek to make use of a friendly relationship.”
Canada and the US capture in-house lobbyists. To qualify they must be
renumerated (eg in Canada they must be paid or expect to be paid in excess of
“reimbursement of reasonable expenses such as travel”) and meet a workload
threshold (eg in Canada lobbying must exceed the equivalent of 20 percent of
the duties of a single paid employee over a month).
Strengthen disclosure requirements
The Australian Greens believe the scheme should require
the disclosure, in a timely manner, of when the lobbying occurred, who stood to
benefit, who was lobbied, the subject matter of the lobbying and the meeting
Current disclosure requirements are very weak and do not allow the
public to effectively scrutinise lobbying activities. The online lobbyist
register does not detail when lobbying occurred, who stood to benefit, who was
lobbied, what was the subject matter of the lobbying or the meeting outcome.
There is no requirement to disclose the actual interest being represented.
In contrast, in Canada lobbyists are required to submit monthly
communication reports with details of who they met, date of the meeting and
general subjects covered. In the UK the Prime Minister’s website has a record
of ‘Who Ministers are Meeting’.
In NSW from July 2011 the NSW Department of Planning and Infrastructure has
begun keeping a register on its website which lists contact between staff and
registered lobbyists in relation to planning proposals.
There should be clear direction on precisely what is required to ensure
the disclosure is not so vague as to be meaningless.
It should include a general description and details (eg names and descriptions
of specific legislative proposals, bills, regulations, policies, programs of
interest and grants, contributions or contracts sought).
A capacity should also exist for the regulators to demand further clarification
of subject matter where existing provisions seeking specific information have
not been met.
Some argue that requiring this level of disclosure may inhibit frank
exchange and that the disclosure of issues that are commercial-in-confidence
may damage the interests of a lobbyist or client. Detailed minutes of meetings
would however face existing, time limited, privacy and other legal protections.
There is an option for initial disclosure to be more limited, while
supplementary disclosure could be more detailed after legitimate privacy
concerns have become less important. The Australian Greens believe, however,
that those seeking to withhold disclosure should be required to show a
legitimate reason to keep information from the public.
Enhance compliance and review
The Australian Greens support: the proposed Commissioner
for Lobbying receiving and investigating complaints; strengthened and
meaningful sanctions applying to MPs, public servants and lobbyists and proper
appeal rights (see above).
The current scheme is toothless, relying on guidelines with no clear
enforcement framework. The onus is on Government representatives to report
breaches and the power to sanction, or remove a lobbyist from the Register,
rests with the Secretary of the Department of Prime Minister and Cabinet. There
are no appeal rights or independent scrutiny of the decision. The Canadian and
US lobbying legislation provides for large fines and criminal penalties for
those breaching the code.
The Australian Greens support a range of financial penalties as well as
criminal penalties for serious offences which apply to third party and in-house
lobbyists. Consideration should be given to the capacity of a new Office of the
Commissioner of Lobbying to publicly name those breaching the scheme in
Strengthen post separation
The Australian Greens believe there should be a five year
ban on ex-ministers working as lobbyists.
The federal requirements lag behind jurisdictions like Queensland and
South Australia which set the ban at two years. The revolving door provisions
in Canada and the US are much stronger than in Australia. For example in Canada
‘Designated Public Office Holders’ (all MPs and Senators, their staff, very
senior executives) face a ban of five years after leaving their positions, but
the Lobbying Commissioner can exempt certain individuals (eg students employed
in a Minister’s office) and it does not stop individuals from working for
non-profit organisations as long as their duties do not require them to lobby
the government, or working for corporations if lobbying the federal government
is not one of their main duties.
Ban success fees
The Australian Greens support a ban on the payment of
success fees to lobbyists.
This will minimise the incentive created for lobbyists to use corrupt
methods to achieve an outcome that will attract a bonus fee. Canada and the US
prohibit lobbyists from receiving any payment that is in whole or in part
contingent on the outcome of their lobbying. NSW and Queensland have both made
it a criminal offence to pay or receive a success fee for lobbying.
Senator Lee Rhiannon
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