In 2018 the Australian National Audit Office had completed a performance audit of PM&C’s administration of the lobbying code, which it found seriously deficient. The Australian Government’s regime was established with the introduction of the Lobbying Code of Conduct. Its main administrative mechanism is the Register of Lobbyists (Register). The Register is a publicly available database of registered lobbyist organisations and lobbyists, and their clients. As at March 2020, the Register listed 257 lobbyist organisations, 590 individual lobbyists that had 1,792 clients.
The ANAO report recommended that the department take a more proactive role in monitoring the effectiveness of the code, for example by forming a strategy to raise awareness of the code, by assessing risks to compliance with the code, and by developing performance indicators and an evaluation framework to measure success in achieving the code’s broader policy objectives.
In June this year, the ANAO published a “follow-up audit” that examined what AGD had done towards implementing the earlier recommendations made to PM&C.
Lobbyist organisations have administrative responsibilities associated with keeping the Register up to date, and lobbyist organisations and individual lobbyists must also comply with a number of lobbying principles and prohibitions under the Code. Government representatives are required to check the Register prior to meeting with a lobbyist, and to report any known breaches of the Code. The Attorney-General’s Department (AGD) became responsible for administering the Code following a machinery of government change that transferred accountability from the Department of the Prime Minister and Cabinet (PM&C) in May 2018.
The Attorney-General’s Department blamed its collective failures on significant IT issues. A number of technological issues were identified following the system migration. These included incorrect or incomplete data during transfer from PM&C to AGD, issues with functionality of the user portal, linking errors between the Register and the backend system, duplicate data, and finally issues with AGD’s ability to create and publish registrations. However, the report noted that improvements could be made to communications, compliance management and evaluation for the Code and the Register.
One of the issues was that AGD did not develop a communications or stakeholder engagement strategy for the Code. Communication primarily occurred through a dedicated website and through correspondence with registered lobbyist organisations, with limited public information and stakeholder engagement. Communications were therefore focused on administrative responsibilities rather than broader compliance obligations, with no communication activities targeted at unregistered lobbyists. This must change to ensure that all lobbyists understand that they need to register, on time and with the relevant information.
Former PM Hawke introduced a lobbyist registration scheme in Australia in 1983 but that was abolished in 1996 under Howard as it had fallen into misuse. The current Lobbying Code of Conduct (Code) was established under Rudd on 13 May 2008. Lobbyists’ then were defined to be ‘any person, company or organisation who conducts lobbying activities on behalf of a third party client or whose employees conduct lobbying activities on behalf of a third party client’ and excludes ‘in-house’ lobbyists, ‘engaging in lobbying activities on their own behalf rather than for a client.’ Charitable and religious organisations; non-profit organisations; trade delegations; and regulated professions such as tax agents, doctors, lawyers and accountants ‘who make occasional representations to Government on behalf of others in a way that is incidental to the provision of their services’ are among the excluded entities.
The Federal Government’s Lobbying Code of Conduct and associated Register of Lobbyists has operated effectively over the past decade to achieve high levels of compliance and ensure public expectations of transparency, integrity and honesty are met.
Lobby Register on 3 March 2020
Lobbyist organisation 257
Owners, partners, stakeholders 254
Lobbyist Registered 590
Former Government representatives registered 227
So, some 38 per cent who have now registered, indicated that they previously held a position as a Commonwealth Government representative. This is why academics argue for the concept of a published listing of Ministerial diaries which other nations like New Zealand and The United Kingdom has implemented.
Most state and territory jurisdictions now have a code of conduct and register, key differences include enshrinement of the code in legislation, regulation of in-house lobbyists as well as third-party lobbyists, duration of lobbying prohibition periods for former Government representatives, types of information that lobbyists must report (specific lobbying activities and communications), compliance methods (audits, reviews and formal and police investigations); the severity of penalties, the independence of the administrative entity, and the extent of public reporting. The Northern Territory is the laggard in almost all respects of legislating against lobbying practices and hopefully the returned Labor administration will finally introduce one.
PM&C was accountable for the Code between 2008 and 2018. A machinery of government (MoG) change in 2018 made AGD accountable, in addition to its ongoing responsibility for the Foreign Influence Transparency Scheme (FITS). Commencing on 10 December 2018, the purpose of FITS is to provide the public with visibility of the nature, level and extent of foreign influence on Australia’s government and politics. FITS also involves a public register, and is regulated through legislation which includes criminal offences for failing to comply with obligations under the scheme, failing to register in circumstances where a person is required to do so, providing false or misleading information or destroying records to avoid registration obligations.
The Prime Minister publicly announced the intention to consolidate government integrity and transparency responsibilities within AGD in July 2017. It was intended that transferring accountability for various integrity schemes would enhance the Attorney-General’s integrity role and allow the Attorney-General to focus on protecting the rule of law and ensuring integrity within the Commonwealth. It was also intended that harmonising the requirements of the Foreign Influence Transparency Scheme (FITS) and the Lobbying Code within one administrating entity would reduce regulatory burden and increase public transparency. The Administrative Arrangements Order was modified on 11 May 2018 to indicate that AGD now dealt with whole of government integrity policy and activities. We shall see over the next few years if this occurs.