Closing the revolving door

Executive summary

For too long has the Commonwealth’s lax regulation of lobbying has allowed a revolving door of former government representatives to wield their disproportionate influence on behalf of monied interests. An analysis of the Federal Register of Lobbyists and Commonwealth donations data shows the extent to which corporate influence and quid pro quo governance have infected the Australian political environment.

This outcome is not inevitable. Other states and territories and overseas jurisdictions have successfully regulated the conduct of lobbying. In line with best practice, the Centre for Public Integrity recommends that:         

1. There be a Lobbying Code of Conduct enshrined in legislation;
2. The definition of ‘lobbying’ be expanded to capture all forms of influence, and ‘lobbyist’ be expanded to capture in-house lobbyists;         
3. Transparency be promoted via proactive publication of ministerial diaries with additional details required in respect of meetings with registered lobbyists;
4. The regime be overseen by a well-resourced regulator, with sanctions expanded to include fines, criminal sanctions and potential barring from government contracts for serious breaches; and         
5. The post-employment separation period be expanded to five years and include all Members of Parliament rather than just Ministers and ministerial staff.

Introduction

Despite the Preamble to the Commonwealth Lobbying Code of Conduct explicitly recognising that ‘[r]espect for the institutions of Government depends to a large extent on public confidence in the integrity of Ministers, their staff and senior Government officials’, the current state of the Commonwealth lobbying regime does little to facilitate public confidence in lobbying. While lobbying can play an important role in the democratic process, as the Organization for Economic Cooperation and Development warns it can also be used ‘to steer public policies away from the public interest’. [1] Indeed, laissez-faire regulation of lobbying breeds what Professor Joo Cheong Tham has characterized as ‘a trinity of vices: secrecy, corruption and unfairness’.[2]

Currently, the Commonwealth has one of the country’s weakest lobbying regimes. Its unlegislated Code of Conduct represents what the Auditor-General has described as a ‘light-touch approach’, the scope of regulated parties and activities is unduly limited, there is no transparency of ministerial and staffer diaries or the details of lobbying activity, sanctions are limited to deregistration, and the post-employment separation period is too short to be meaningful.

An ever-revolving door

The Lobbying Code of Conduct (‘Code’) provides that former Commonwealth Ministers or Parliamentary Secretaries must not engage in lobbying activities in relation to any matter with which they had ‘official dealings’ for 18 months after leaving office.[3] This period is reduced to 12 months for former Commonwealth ministerial advisers, Australian Defence Force officers and senior public servants.[4] Unlike many other jurisdictions, Members of Parliament are not captured by the current definition.[5]

This lacklustre limitation period, combined with the restriction to ‘official dealings’ and inapplicability to former Members of Parliament, has permitted a significant number of former elected representatives and senior government officials to lobby in support of some of Australia’s largest corporations – in some cases, as Figure 1 establishes, with very little time elapsing between the cessation of employment in a regulated role, and the assumption of a lobbyist position.

 

Figure 1: Time between leaving office and lobbyist registration

Our analysis reveals that many lobbyists – including those mentioned above – are often lobbying on behalf of entities which donated significantly to their parties and campaigns while in office, culminating in a nexus of corporate influence and quid pro quo between monied interests and elected representatives. For example, former Defence Minister Joel Fitzgibbon, after leaving Parliament in April 2022, registered as a lobbyist in June 2022 and now lobbies for CMAX Communications who are engaged by American defence contractor Raytheon Technologies. Raytheon has donated over $825,000 dollars to the major parties since 1998-99, with just over $100,000 of that going to the Labor Party. CMAX Communications has also engaged Jarryd Williamson as a lobbyist, a former adviser to Scott Morrison,

Similarly, former Liberal MP Fiona Scott registered as a lobbyist two years after losing her seat in 2016, and now lobbies for Premier National who are engaged by the Australian Hotels Association and Hemmes Trading: the former has donated $8.7 million since 1998-99 to the Coalition, and the latter $350,000.

Brendan Tegg, who was Director of Policy in Scott Morrison’s office until 2019, started lobbying for TG Public Affairs a year later. TG Public Affairs current clients include construction and development giants Multiplex and Lendlease: Multiplex has provided $1,220,438 to the Coalition since 1998-99, and Lendlease $697,461.

Former Defence Minister Christopher Pyne, who joined Ernst & Young almost immediately after leaving Parliament in 2019, began lobbying on their behalf in November 2019. Ernst & Young has provided over $750,000 to the major parties since 1998-99 (with just over $120,000 of that directed to the Coalition).

Julie Bishop, Foreign Affairs Minister from 2013-18, registered as a lobbyist approximately 18 months after leaving office. After previously acting for the now-collapsed Greensill Capital and L’Oréal Australia, she now lobbies for Isdell Pty Ltd who are engaged by Twinza Oil (an oil driller with substantial assets in Papua New Guinea).

Andrew Robb, Trade Minister from 2013-16, registered as a lobbyist in 2020 (after consulting for a direct beneficiary of his own policy as Minister[6]) and now lobbies on behalf of Tamboran Resources. Tamboran, the prospective fracker of the Beetaloo Basin, donated $200,000 to the major parties in 2021/22.[7]

There are many other lower-level advisors employed under the Members of Parliament (Staff) Act 1984 (Cth) who commenced work as lobbyists either immediately after ceasing employment, or within unsettlingly short periods. For example, an advisor of former Social Services Minister Anne Ruston began lobbying for the aerospace company Airbus only 9 days after ceasing employment with the Minister. In a similar vein, a former senior adviser to Finance Minister Mathias Cormann began lobbying for Ampol only two weeks after ceasing employment. A former staffer for Resources Minister Matt Canavan began lobbying on behalf of British American Tobacco and the Minerals Council of NSW less than two years after ceasing employment, and an adviser to Communications Minister Paul Fletcher began lobbying for gas retailer Elgas less than 18 months after ceasing employment.

This is not to mention the vast number of former state government elected representatives and ministerial staff who are not captured by the Code, despite commencing work as registered Commonwealth lobbyists shortly after leaving office.

There is no suggestion that any of the individuals referred to this in paper has acted in breach of their obligations under the current Code. Rather, these cases exemplify the inadequacy of the current Commonwealth lobbying regime.

Reforming the Commonwealth lobbying regime

There are a number of common-sense, practical and realistic changes which should be made to the Commonwealth lobbying regime. These reforms are based on best practice in both the states and territories, and other cognate overseas jurisdictions. The reforms aim to prevent corrupt behaviour by lobbyists and public officials, ensuring both equality of access to decision-making processes and that government decision-making is based on merit.[8]

1. Effective regulation

The Lobbying Code of Conduct should be enshrined in legislation to incentivise compliance, deter breaches and increase the transparency of lobbying. The Code should impose penalties for breaches, and refuse registration for those seeking it during the separation period. Enshrining the Code in legislation would bring the Commonwealth up to speed with Canada,[9] the United Kingdom,[10] and most of the states.[11]

2. Define ‘lobbying’ and ‘lobbyist’ broadly

The Commonwealth definition of ‘lobbying’ is limited to activities directed at Government representatives,[12] and the definition of ‘lobbyist’ is constrained to persons lobbying on behalf of a third-party client.[13] This should be expanded to include any attempt to influence the decision-making of a government or opposition representative in the exercise of their official functions.

The definition of ‘lobbyist’ should capture anyone engaging in lobbying activity, not just those lobbying on behalf of a client. In-house lobbyists, who promote the interests of an entity to decision makers they are employed by, must be treated the same way as third-party lobbyists.

3. Promoting transparency

Currently, the only transparency requirement for the Commonwealth lobbying regime is the publication and maintenance of a Register of Lobbyists.[14] This is manifestly insufficient to maintain confidence in our elected representatives.        

To promote transparency, lobbying activity should be periodically disclosed via:

• publication of the diaries of ministers, shadow ministers and their chiefs of staff; and
• expansion of the Register to include dates and details of meetings between lobbyists and representatives.

Diary disclosures are a valuable accountability mechanism, and are currently required in New South Wales,[15] Queensland[16] and the Australian Capital Territory.[17]

Meetings of public officials with lobbyists should be recorded in greater detail on the Register, as is the case in Queensland, where entries in respect of meetings with lobbyists must ‘include details about all attendees and a short description of the subject matter of the meeting.[18]

4. Promoting accountability

Currently, the Code is overseen by the Attorney-General’s Department. Instead, it should be administered by a regulator sufficiently resourced to promote compliance.

The sole sanction currently available for breach of the Code is deregistration.[19] By contrast, South Australia,[20] Western Australia,[21] the United Kingdom[22] and Canada provide for the issuing of fines,[23] and South Australia and Canada provide for criminal sanctions.

If the Commonwealth’s available sanctions are to have a real likelihood of incentivising compliance and deterring breach, they should at a minimum include financial sanctions. Other, more tailored mechanisms should also be considered: these include the confiscation of parliamentary access passes, and in extreme cases ineligibility to be party to government contracts for a period of time.

5. Closing the revolving door

The current post-employment separation period is not sufficient to allow for the dilution of influence and connections of the regulated person and should be extended to five years in order to be meaningful: this also accords with global best practice.[24]

Currently, the post-employment separation period applies only to matters in respect of which a regulated person had ‘official dealings’: the ‘official dealings’ restriction should be removed from the prohibition, insofar as influence and networks do not develop only in relation to matters the subject of ‘official dealings’.

In addition, the current Commonwealth Code only applies to Ministers or Parliamentary Secretaries, ministerial advisers, Defence Force Officers and senior public servants. This should be expanded to include all Members of Parliament (but in this case, limited to their official dealings).[25]

As five years is much greater than the existing 12 or 18 months, prospective lobbyists should be able to apply to the National Anti-Corruption Commission for a shortening of the separation period based on their period of employment / tenure and duties in office.[26]

References

[1] Organization for Economic Cooperation and Development, ‘Setting the rules for lobbying’, <https://www.oecd.org/about/impact/setting-the-right-rules-for-lobbying.htm?>, accessed 13 July 2022.

[2] Joo-Cheong Tham, ‘Democracy before Dollars – the Problems with Money in Australian Politics and How to Fix them’ in Papers on Parliament no. 70 (2019) 23, 28.

[3]Lobbying Code of Conduct (Cth) cl. 11(1).

[4] Ibid s 11(2).

[5] Cf Lobbying Code of Conduct (Tas).

[6] Nick McKenzie, Richard Baker and Chris Uhlmann, ‘Liberal Andrew Robb took $880k China job as soon as he left Parliament’, The Sydney Morning Herald (online 6 June 2017) < https://www.smh.com.au/national/liberal-andrew-robb-took-880k-china-job-as-soon-as-he-left-parliament-20170602-gwje3e.html>.

[7] Samantha Dick and Jane Bardon, ‘Anti-fracking group launches Supreme Court action against the NT government’s approval of Beetaloo Basin exploration’, ABC News (online, 8 February 2023) < https://www.abc.net.au/news/2023-02-08/nt-supreme-court-action-approval-tamboran-wells-beetaloo-basin/101940302>.

[8] Yee-Fui Ng, ‘Regulating the Influencers: The Evolution of Lobbying Regulation in Australia’ (2020) 41(2) Adelaide Law Review 507, 509.

[9]Lobbying Act, RSC 1985, c C-44.

[10]Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (UK) pt 1

[11] See Integrity Act 2009 (Qld) ch 4; Lobbyists Act 2015 (SA); Lobbying of Government Officials Act 2011 (NSW); Integrity (Lobbyists) Act 2016 (WA). Cf Lobbying Code of Conduct (Tas); Victorian Government Professional Lobbyist Code of Conduct (Vic).

[12]Lobbying Code of Conduct (Cth) cl. 5(1) (definition of ‘lobbying activities’).

[13] Ibid s 5(2) (definition of ‘lobbyist’).

[14]Lobbying Code of Conduct (Cth) cl. 7.

[15]Premier’s Memorandum M2015-05-Publication of Ministerial Diaries and Release of Overseas Travel Information < https://arp.nsw.gov.au/m2015-05-publication-ministerial-diaries-and-release-overseas-travel-information>.  

[16]Queensland Government Ministerial Handbook [3.12]

[17] See Freedom of Information Act 2016 (ACT) ss 23(1) (definition of ‘open access information’ (a)(iii)), 24(1).

[18]Queensland Government Ministerial Handbook [3.12]

[19]Lobbying Code of Conduct (Cth) cl. 14

[20]Lobbyists Act 2015 (SA) ss 5(1), 11(1), 14(1), 17.

[21]Integrity (Lobbyists) Act 2016 (WA) s 8(1), 24(1).         

[22]Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 (UK) s 12(7).

[23]Lobbying Act, RSC 1985, c C-44, s 14(1).

[24]Lobbying Act, RSC 1985, c C-44, s 10.11(1).

[25] Ibid s 2(1) (definition of ‘public office holder’).

[26] Ibid s 10.11(3).