This guest editorial was written for the ANZSOG/National Regulators Community of practice monthly newsletter, highlighting new additions to the Regulation Policy and Practice collection on APO. The RP&P collection brings together a range of practical resources from national, local and state/territory governments, regulatory agencies and external institutions conducting monitoring, inquiries and reviews. You can receive this newsletter by joining the ANZSOG/National Regulators Community of Practice (membership is free) or subscribe to the newsletter directly.
By Yee-Fui Ng
Regulation of political lobbying is a significant corruption challenge for governments, but one that if done successfully can enhance political equality and improve fairness of government policy-making by increasing transparency in the disclosure of lobbying activities.
Interest in the issue is growing, and in March this year, regulators from twenty integrity agencies across the country gathered for the first ever integrity summit to discuss how to best regulate lobbying practices to prevent corruption and undue influence.
This followed the Victorian IBAC’s Operation Sandon in 2020, where it was revealed that a lobbyist funnelled bags of cash totalling more than $100,000 from a property developer to a councillor, under the guise of sham transactions. In 2019, NSW ICAC launched a public inquiry into lobbying regulation (Operation Eclipse), as it identified inappropriate lobbying as a potential corruption risk, following its previous lobbying investigation (Operation Halifax) in 2010.
Lobbying regulation in Australia currently takes the form of a public lobbyist register and code of conduct, underpinned by legislation in some jurisdictions. However, the regulation of lobbying in Australian jurisdictions, apart from NSW and Queensland, remains underdeveloped. This short article will outline three main steps that will greatly enhance lobbying regulation in Australia.
1. Expanding the regulatory net
The coverage of lobbyists required to register in Australia is confined to third party lobbyists, which only comprises 20 per cent of the lobbyist population. This means that a large proportion of lobbyists are not covered by regulation, such as those that operate in-house as employees. Such restrictive coverage fails to provide proper transparency of government decision-making in terms of lobbying by ‘repeat players’.
To enhance regulatory effectiveness, it is essential to expand the lobbyists required to register to both third party and in-house lobbyists. This is consistent with comparable jurisdictions that have a long history of regulating lobbyists, such as Canada and the United States.
2. Increasing the level of disclosure
The level of disclosure of lobbying activity required in most Australian jurisdictions is dismal. With the exception NSW and Queensland, the only disclosure that is required is the name and contact details of the lobbyist and the client they are representing. There is thus a complete vacuum of knowledge about when lobbyists are contacting government officials and over what policy issues.
In NSW and Queensland, there is the disclosure of ministerial diaries, which provides some visibility of who ministers are meeting with and the broad subject matter of the meeting. However, other logical targets of lobbyists, such as ministerial advisers and public servants, are not covered by this form of regulation.
Queensland has the most comprehensive regulation in this regard, with a requirement to disclose all lobbying contacts, like Canada and Scotland.
To enhance transparency, all Australian jurisdictions should require lobbyists to disclose each and every lobbying contact, as well as require ministers, senior ministerial advisers and senior public servants to provide monthly disclosure of their diaries.
3. Enhancing enforcement
Finally, compliance and enforcement remain key to a successful system of lobbying regulation. The Guardian has reported poor enforcement efforts by Australian regulators, where not a single lobbyist has been punished for breaching the rules from 2013-2018 federally, or in Victoria, Western Australia, Queensland, and South Australia.
In 2018, the Commonwealth Auditor-General found that the Prime Minister’s Department, which then oversaw the federal lobbyist register, had not suspended or removed the registration of a single lobbyist since 2013, despite identifying at least 11 possible breaches. The Secretary of the Prime Minister’s Department responded that they considered their role to be merely administrative, rather than regulatory.
This points to the need for an independent regulator administering a legislative scheme, rather than the responsibility residing within a government department that does not have sufficient independence from the core executive.
To enhance enforcement, a more systematic monitoring and compliance regime could also be implemented through a program of proactive audit investigations. For instance, in the United States, the Government Accountability Office conducts annual reviews of lobbyists’ compliance with disclosure requirements.
As part of the impetus to improve the declining public faith in democracy and political institutions in Australia, governments should seek to regulate the strong influence of vested interests and influence peddlers that can drown out other less well-resourced and well-connected voices within a democracy.
Reform of lobbying regulation in Australia to enhance the scope of its coverage and the level of disclosure of lobbying activity, will shine the light of transparency in an area currently hidden in the shadows. It will reduce the risk of corruption by lobbyists and public officials, and ultimately promote the democratic norms of political equality and fairness.
Dr Yee-Fui Ng is an Associate Professor in the Faculty of Law at Monash University, and the Deputy Director of the Australian Centre for Justice Innovation.