Scott Ryan (Victoria, Liberal Party, Shadow Parliamentary Secretary for Small Business and Fair Competition) Share this | Link to this | Hansard source

I present the report of the Finance and Public Administration References Committee on the operation of the Lobbying Code of Conduct and the Lobbyist Register, together with the Hansard record of proceedings and documents presented to the committee.

Ordered that the report be printed.

I move:

That the Senate take note of the report.

This is an important inquiry following up on an earlier report of the committee into the establishment of the code in 2008. I was part of that inquiry, having become a member of this place halfway through the conduct of that inquiry. The government subsequently made changes to the operation of the code, mainly around the nomination of former government representatives by lobbyists who are covered by the code and by moving reporting into a twice-yearly time frame.

Importantly, this inquiry was an opportunity to dispel some of the myths propagated by some regarding lobbying and government relations as an industry and a sector, for I think it is in the political interests of some to cry foul regarding legitimate contact between citizens, business and government and political representatives. No evidence was presented to the committee regarding corrupt practices in Australia, and I think that is particularly important to note.

There are some, however, who seem to have a vested interest in increasing the regulation of contact between business organisations and their political repre­sentatives; yet it appears that these are based on experiences in other jurisdictions, notably the United States, partly in some of our own states, and also in places like Canada. No evidence was provided that this is actually required in Australia today at the Commonwealth level. Indeed, one of the justifications of some who propose additional regulation is simply that other nations are doing it.

I put to the Senate that regulatory creep without need or justification in other jurisdictions is not a justification for it happening here. For example, in the United States, an example oft quoted by the advocates of further regulation, congressmen and senators have an appropriations power that members of the House of Representatives and senators lack under our Constitution. This is a profound difference in political arrangements and it provides for a much greater opportunity for favours to be granted or for unsavoury practices to develop.

Similarly, another justification is that states in Australia are introducing such regimes. These reflect practices in the states, legal regimes they have established and, indeed, political cultures in these jurisdictions. Again, here, regulatory burdens imposed in one place do not necessarily fit the needs of another. Simply because one or another of our states is acting in a certain fashion does not require that to be undertaken at the Commonwealth level.

As for the cry that we need national uniformity in this regard, I can only refer to Menzies' famous phrase about the curse of uniformity. There is absolutely no reason why states cannot impose their own rules as they see fit. Indeed, in a federation that is something we should aspire to. National uniformity in this case—and this is very important—would not reduce the regulatory cost on this sector. National uniformity is being proposed to increase the regulatory burden without justification.

While most submitters who proposed increased regulation of this space are undoubtedly motivated by good causes, as with all higher causes this sometimes leads to extreme outcomes. A couple of examples did concern me. I was particularly concerned by proposals to require meetings with all members of parliament to be disclosed when they were meeting with someone who was determined to be lobbying on a particular activity. This proposal included details of disclosure of the conversations. There must remain an element of privacy for members of parliament and senators to consult with constituents including businesses and organisations. To do otherwise would simply allow motives to be assigned to meetings that took place and to the actions of members and, indeed, would empower the vilification of organisations, members of this place and people who simply wish to meet with their MPs to discuss their concerns. Furthermore, the issue of what is a constituent issue versus what is lobbying, which was discussed in the committee hearing, will remain a sore point because no clear criteria were provided. When does dealing with an issue become lobbying? As politicians we are judged by our actions—by how we vote in this place and by what we say to the public at election time and in between elections. This proposal strikes me as nothing less than an attempt to make a window into men's souls, to allow others to try to assign motives to our actions regardless of what we may think they are. We should be judged on our actions in this place, not be asked to breach what are in some cases profoundly private discussions and allow others to assign motives as they see fit.

This report outlines the committee's view that it is satisfied with the operation of the code at the moment. We did ask some questions and we have asked the department to consider whether there could be a provision on the code website for announcement of breaches of the code, and that is under consideration. The code meets its objectives, and those objectives are to allow public knowledge about whom the third-party lobbyists are actively working on behalf of and to ensure those people in government who meet with people lobbying on behalf of someone else know what that person is meeting them about. I have been a lobbyist in a past life, to use the pejorative phrase. It was always clear whom I was representing because it was on my business card and was provided to the person I made the appointment with. The aim of this code was actually to allow third-party lobbyists guarantees and some transparency about whom they were representing. The code does that.

There are some other comments in this report from other parties that reflect some of the concerns that I raised which the committee has disagreed with. The idea that we would propose to regulate everyone who contacts government, whether they be a charitable organisation, a religious organisation or an individual business, I find quite abhorrent. The idea that there would be disclosure of the content of meetings between members of parliament and constituents against the wishes of both I find profoundly concerning. There needs to be a degree of privacy.

The proposal of the Australian Greens would require all bodies corporate, unincorporated associations, religious organisations and charitable trusts, as well as companies that meet with government to lobby, whatever that term may mean, to register. The department advised us that that would lead to over 5,000 people having to register. That would bring with it a substantial cost. At no time was there any case established that this is required in Australia. At no time were there examples of corrupt practices at the Commonwealth level. Pejorative phrases were thrown around about the influence of particular companies, but for those who, for example, might support a carbon tax or a mining tax—as opposed to people who, like me, oppose both—my position has been made clear in this place and outside. Why should other people be able to try to assign motives to that simply because of whom I met with?

Furthermore, this would introduce a huge level of complexity about what constitutes lobbying, and there are no criteria for this in other regimes. Dr David Solomon, whose motives I do not impugn whatsoever—he is quite a fine former journalist and author; I own a few of his books—put the view that it would just have to be a judgment. If a business comes to see you about a tax issue, and the second half of the meeting might be about consideration of changing a particular tax regime, when does the meeting move from a constituent issue to lobbying? No criteria are provided around that. Yet again we have a regulatory urge in search of a purpose and in search of a need.

The committee report wholly outlines why this code is operating as it was intended and why there does not need to be any further regulation as to this. Australia is a clean country by world standards. It has stayed that way. We have the institutions to protect it and there is no need for further regulation.

Lee Rhiannon (NSW, Australian Greens) Share this | Link to this | Hansard source

The Finance and Public Administration References Committee report before us, about lobbying, is inadequate. Lobbying is an important part of the democratic process. It is something that clearly is developing more and more and plays an integral part in the lives of most of the people who work in this place as MPs, including senators. Clearly we need a code so the public can have greater confidence in how decisions are made. That is the essence of what we are dealing with here. However, when we come to actually discuss it we see a reluctance from Labor and the coalition parties to deal with this in a substantial way. The reason that it has been raised in the first place is that periodically there are scandals and the government of the day has felt obliged to do something, but it has never been enough.

It is worth remembering that, when the Greens moved the motion to establish this inquiry—an inquiry that the committee had previously identified was needed but was never established—Labor voted against it while the coalition did vote for it. However, we then saw the reluctance of the coalition to really explore the issue thoroughly when the inquiry process began. The inquiry lasted only about 3½ hours and involved only three witnesses. We did not hear evidence from any witnesses from non-government organisations or from academics who specialise in this area. So, while I certainly appreciate the time that the three witnesses who did attend gave to the inquiry, it was not enough to do a thorough job.

Senator Ryan put up various arguments that we have heard many times from him and his colleagues. His whole argument falls over, however, when you look at Canada, where they have had a very thorough system involving a lobbyist code of conduct and a very transparent process that has worked. It has worked for the public so that the public then feel more confident in how the democratic process operates, how decisions are made, who is attempting to influence decision makers and how they are handling that. It is not about assigning motives, as suggested by the emotive language that Senator Ryan used. It is about enhancing the democratic process. That is what we should be coming together here to discuss. I imagine all senators, if they are honest, know that there is a lot of cynicism amongst the general public about how this place operates and the power and influence lobbyists have.

So we are disappointed in the report that was produced. On behalf of the Australian Greens, I submitted a dissenting report. We have called for the establishment of an office of the commission of lobbying. We believe that the oversight of lobbying should rest with such an independent body, which would report directly to the federal parliament, have auditing and investigative powers and a mandate to enforce a new lobbying act and a lobbyist code of conduct. This is about a set of standards so that lobbying can operate in a much healthier way. Such an office is badly needed and also, clearly, we need the legislative framework, as I have just set out.

We certainly need to expand on who is subject to lobbying. When people have asked me in recent times about what I have been doing and I have mentioned about the lobbyist inquiry, what has then come up is about who is regarded as a lobbyist. I find people are very shocked that the current system does not cover in-house lobbyists. People are always amazed that BHP lobbyists, who are in-house, are not covered. We have no knowledge about who they meet with or anything at all about how they operate. Therefore, that definition does need to change.

We also need to strengthen the disclosure requirements. When we come to this point I often find that people start talking about the enormous burden and difficulty of collating such information, but that does not stand up. In this day and age with so much information collated electronically it is not the burden that it is made out to be. What is more, we have a responsibility to be transparent about lobbying activities. The Australian Greens believe that the scheme should require the disclosure, in a timely manner, of when lobbying occurred, who stood to benefit, who was lobbied, the subject matter of the lobbying and the meeting outcome. That is not onerous. It replicates a system in Canada that is highly successful. Although I have not been fortunate enough to go to Canada, I imagine that it gives greater confidence in how decisions are made in their parliaments.

A further recommendation that we put forward is to enhance compliance and review. The proposed commissioner for lobbying receives and investigates complaints, then there should be a strengthening of the meaningful sanctions applying to members of parliament, public servants and lobbyists, and proper appeal rights. That is where we need to have a mechanism to ensure that the system put in place is complied with. That, certainly, should be developed.

There is also the challenging issue, which I acknowledge, that many people in this place may well be lobbyists when they leave. Senator Ryan mentioned that he was a lobbyist before he came here. So, we need to look at the post-separation employment provisions. The Australian Greens believe there should be a five-year ban on ex-ministers working as lobbyists. In some jurisdictions they already have one- or two-year separation provisions. Clearly, something is needed.

A big one, which we would argue should have been picked up by this inquiry, is success fees. We need a ban on success fees. We support such a ban and, at the moment, it is something that is having a corrupting influence on how the democratic process works because some lobbyists are paid success fees. There have been a number of scandals in recent times in the United Kingdom, and those parliaments are, I think, worse for wear for that information that has come out. Part of that has been around success fees, and it underlines why we need to change.

I want to expand on the issue of who is defined as a lobbyist. The revised scheme, as I said, should go beyond third party professional lobbyists. We can look at the New South Wales Independent Commission Against Corruption's proposed definition of a lobbying entity. They defined it as:

A body corporate, unincorporated association, partnership, trust, firm or religious or charitable organisation that engages in a Lobbying Activity on its own behalf.

That definition is from ICAC, a well-respected body within New South Wales, which has also been grappling with this issue. I wanted to read out that definition because, again, it undermines the comments made by Senator Ryan, who tried to belittle some of the attempts to reform the current system we have for lobbying in this parliament, as though the Greens had just come up with some loose definitions. That is certainly not the case, our work is well researched and we need that change. I also want to make reference to Dr David Solomon. He points out that the definition:

... echoes Canada’s definition of in house lobbyists (organisations) and in house lobbyists (corporations).

Dr Solomon has done a great deal of work in this area and is one of the authorities on it. I wanted to mention that because of the link with the Canadian experience, which certainly has become a model for many groups around the world who are attempting to have their own parliaments move on this issue.

In being frank, I am obviously disappointed with the way the inquiry went. At least we did get the inquiry up. It is an issue that needs further attention because what the committee has come forward with certainly does not advance the democratic process, does not give us more transparency on the operations of lobbyists and, clearly, highlights that there is more work to be done here.

I seek leave to continue my remarks later.

Leave granted; debate adjourned.