Helen Polley (Tasmania, Australian Labor Party) Share this | Link to this | Hansard source

I present the report of the Finance and Public Administration Committee, Knock, knock ...who’s there? The Lobbying Code of Conduct, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

by leave—I move:

That the Senate take note of the report.

Today I table the Finance and Public Administration Committee’s report titled Knock, knock ... who’s there? The Lobbying Code of Conduct. Firstly, I would like to thank Stephen Palethorpe, the committee secretary, and his team, who work so hard for us to be able to present these reports. May I also thank those who put forward submissions, as well as all those witnesses who appeared at our hearing in order to put forward their point of view.

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. There is a general cynicism in the public about our elected officials. The Lobbying Code of Conduct is a measure that we can use to combat that cynicism relating to transparency within government. This is why this measure is something to be welcomed. Ultimately, it is a tool that will restore the public’s confidence in its government.

Increasing the focus on lobbying activities is in the public interest as many citizens are unaware of the complex relationship that exists between lobbyists, their clients and those they are placing representations before. The committee supports the aim of the government to:

… promote trust in the integrity of government processes and ensure that contacts between lobbyists and Government representatives are conducted in accordance with public expectations of transparency …

The Rudd Labor government recognises that lobbying is a legitimate activity and part of the democratic process. However, what is needed is a mechanism of regulation that balances the rights of interest groups to put forward their point of view and the right of the public to know who is talking to ministers. This code of conduct represents an appropriate balance between these two aims—that of the public to know of the lobbyists’ activities and that of the lobbyists representing interest groups. By requiring lobbyists to register, it adds a layer of transparency that has not existed previously. By making the register available to the public on the website of the Department of the Prime Minister and Cabinet, it makes it even easier for the public to monitor and be aware of lobbyists’ activities.

I am pleased to note in the Senate today that there are currently 193 lobbyists on the register. As we heard from our witnesses, a wide variety of organisations welcomed the code. This indicates that there is a high level of support for the transparency that this code effects. Professor John Warhurst said that lobbyists:

… welcome the recognition and legitimacy that tends to follow such government attention.

John O’Callaghan said that the code:

… will lead to improved transparency in dealings between lobbyists and the federal government, providing a higher level of confidence about the processes of government, including government policy making.

Those who appeared before the committee understood that the Rudd Labor government was putting forward a clear code of conduct and lobbyist register aimed at promoting good governance and restoring confidence in the government. Further evidence from witnesses suggested that the code of conduct should go further and be applied through a statute. However, evidence presented to the committee by the Clerk of the Senate suggested that such a course of action would be seen as an encroachment on the separation of powers between the judiciary and the parliament—indeed, even a possible challenge to the freedom of political communication.

As I stated earlier, the main objective of the code of conduct was to ensure transparency in lobbying and was supported by the witnesses who appeared before the committee. The evidence supported a need for a code of conduct to provide transparency and some form of regulation to lobbyists’ activities. I understand that this code of conduct is something that is unique in Australian political history. Although there was previously a register of lobbyists in place in Australia from 1984 to 1996, it was not a public register and it did not include a code of conduct to regulate lobbying practice. What has been introduced by the Rudd Labor government has incorporated both of these. The new Lobbying Code of Conduct and the Register of Lobbyists will help bring our checks on third-party lobbyists up to international standards. Presently, Canada and the United States of America already have registers, and the European Parliament is currently moving to establish a mandatory public register.

In light of the time limits that have been placed on us today, I seek leave to incorporate the remainder of my speech in Hansard to enable other members of the committee to make a contribution to the debate.

Leave granted.

The remainder of the speech read as follows—

The implementation of this code is an important step that the Rudd Labor government has taken and they should be congratulated on this important measure of ensuring transparency within government. The registration of lobbyists should be seen as part of the government’s determination to restore respect for the institutions of government and improve governance across the public sector. The Register of Lobbyists was foreshadowed in the government’s election commitments and is another example of how the Rudd Labor government is delivering on its election commitments.

There are other aspects to the code that warrant discussion. A major element of the code was the introduction of post-employment prohibitions on government and public sector staff engaging in lobbying activities. This extends to ministers and parliamentary secretaries, who no longer will be allowed to engage in lobbying activities until they have been out of office for 18 months. There were various points of view on this issue; however, I feel that placing these limits on post-government employment is the right thing to do. After all, we all benefit from a transparent and accountable government.

Of course, the code has only been in operation since 1 July of this year. As such, the committee felt it was right that an inquiry be conducted into the operation of the code in the second half of 2009. From our hearing, there were aspects of the code that will need to be reviewed; therefore, I support the recommendation to conduct the review late next year. The purpose of the review is to ensure the code of conduct and the register are functioning as intended, including in three areas. The first is coverage of lobbyists. For example, the code has operated for too short a time for us to decide whether the definition of the word ‘lobbyist’ is adequate. Whether the definition should be expanded further to cover groups not presently covered is something that can be included in the review. The second is the regulatory burden on lobbyists. The last is procedural fairness. Issues such as these can only be decided after the code operates for a period of time.

In conclusion, may I congratulate the government for putting forward the code of conduct and register and for fulfilling another of its election commitments. I commend this report to the Senate.

Mitch Fifield (Victoria, Liberal Party) Share this | Link to this | Hansard source

Firstly, I thank the committee secretariat for their work on this report and this inquiry and also congratulate them for their creativity with the title of this report, which is Knock knock … who’s there? Congratulations to them for that. I also acknowledge Senator Polley’s fine chairmanship of the committee.

On this occasion, opposition senators are submitting a minority report, but in doing so there is certainly no question that ministerial probity and transparency are essential pillars of our democracy. The coalition shares the view that public confidence in the integrity of government is vital to the effective functioning of our parliamentary system, but the government proposal for a Lobbying Code of Conduct is seriously flawed. I must express some disappointment at this point in Senator Faulkner, who has responsibility for the Lobbying Code of Conduct. It is genuine disappointment, because I am someone who had high hopes for Senator Faulkner. I am someone on this side of the chamber who has often said to his colleagues that he believes Senator Faulkner does genuinely care about standards in government and about probity and propriety in the administration of government. But I must confess that I have steadily become disappointed: firstly, with Senator Faulkner’s failure to ensure that charter letters were issued to ministers; secondly, with his stalling and never-ending monologues in Senate estimates; and, thirdly, with his handling of the CMAX affair. I would have hoped that Senator Faulkner would have ensured that the relevant staff were stood aside, but the government staffing committee has taken no action, took some four or five months to conduct their inquiries and have now stalled those in the face of the Auditor-General’s report. That is a third source of disappointment with Senator Faulkner, and this lobbying code is the fourth.

The register, as proposed, does contravene the principle of equality before the law by unfairly preferencing one sector of the business community over another. This, I believe, is a partisan attempt to protect the political influence of the trade union movement. As I say, this code is fundamentally flawed. The code totally ignores in-house lobbyists employed by unions, industry associations and corporations. Indeed, there is nothing in this code or its provisions that would prevent the disgraced former Western Australian Premier Brian Burke from lobbying in the ministerial wing of parliament as an in-house advocate on the payroll of a union or a company—absolutely nothing.

The code also invests in the Cabinet Secretary, Senator Faulkner, an arbitrary power to exclude lobbyists from the register, with no practical avenue of appeal. The only avenue of appeal open to lobbyists who are excluded would be the High Court and possibly the Federal Court, at great expense. This would potentially have very crippling consequences for lobbying firms, the majority of which are small businesses. This power invested in Senator Faulkner also poses the serious risk that the code could be used for partisan political purposes rather than for the dispassionate regulation of an industry.

It is for these reasons that opposition senators have three primary recommendations. The first is:

That the Cabinet Secretary’s powers to exclude a lobbyist from the register be devolved to the Secretary of the Department of the Prime Minister and Cabinet.

It is a function which is much more appropriately vested in a senior public servant than a partisan political figure. The second main recommendation is that any decision ‘to exclude an individual or entity from the register should be subject to appeal to the Administrative Appeals Tribunal, to ensure that legal recourse is not cost prohibitive’ for a small business. The third primary recommendation is that ‘coverage of the code be expanded to embrace unions, industry associations and other businesses’ which conduct their own lobbying activities.

There clearly is no widespread concern about, or crisis of public confidence in, the probity of Commonwealth governance or institutions. But, if the aim of this code is to prevent the occurrence in the federal jurisdiction of episodes such as those witnessed with the likes of disgraced former Premier Brian Burke and the Wollongong development scandal in New South Wales, then this code fails that test. This code, in unamended form, will fail to achieve its stated purpose and could create a cure which is far worse than the disease.

Opposition senators have proposed a couple of other amendments to the code. One is:

That post-employment restrictions on MOPS staff be removed from the Code.

This is, in effect, a retrospective change to the employment conditions of MOP staff—and I am in wholehearted agreement with the CPSU on this matter, I regret to say.

Michael Ronaldson (Victoria, Liberal Party, Shadow Special Minister of State) Share this | Link to this | Hansard source

They are right.

Mitch Fifield (Victoria, Liberal Party) Share this | Link to this | Hansard source

As Senator Ronaldson says, they are right. The other matter that needs to be cleaned up is the status of the question-and-answer section on the PM&C website—that is, whether or not this constitutes part of the code. There is an out here for lobbyists, who could say, ‘Well, we’ve satisfied the code itself,’ even if their actions were contrary to the Q&A section of the PM&C website. So its status needs to be clarified. Finally, opposition senators are of the view:

That the Code should not be expanded to apply to non-executive members of either House of Parliament nor to non-ministerial MOPS staff.

There should be nothing which stands in the way of the capacity of constituents and the public to communicate with their elected representatives. That expansion of the code is something which we do not support.

It is no surprise that the sole government recommendation in this report is for yet another review. We probably do not have too much trouble with that but we do recommend that our amendments to the code be accepted so that this can be a properly functioning and effective code.

Question agreed to.