Lobbying is an undeniable reality of government decision-making in Australia, and the OECD has recognised that it can make a valuable contribution to the democratic process. It also cautions, however, that lobbying can lead to “undue influence, unfair competition and regulatory capture to the detriment of the public”.
Because of this, effective lobbying regulation is crucial.
However, the myriad inadequacies in Victoria’s current lobbying regime have been highlighted by Age reports this week of disquiet among some MPs about the relationship between the newly appointed Victorian Planning Minister Lizzie Blandthorn and her brother, director of lobbying firm Hawker Britton.
John-Paul Blandthorn’s clients at Hawker Britton include major developers such as the Dennis Family Corporation, construction giant John Holland in its role building the West Gate Tunnel and the Shopping Centre Council. Mr Blandthorn has also worked as an adviser to the Premier.
While no wrongdoing is suggested, the relationship does raise potential conflict-of-interest questions and has highlighted weaknesses in the way lobbying is regulated.
In Victoria, lobbying is regulated by a code of conduct and associated Register of Lobbyists. This code is not enshrined in legislation – a feature that the Victorian regime shares with its counterparts in the Commonwealth, Tasmania and the ACT, and which is one of the reasons that the Commonwealth auditor-general termed that regime “light touch”.
In NSW, Queensland, South Australia and Western Australia, lobbying regulation is enshrined in legislation.
Victoria’s code is limited in that it does not apply to in-house lobbyists (that is, persons or entities – or the employees of such persons or entities – who engage in lobbying on their own behalf rather than for a client) unless they are government affairs directors who have held certain positions.
But there is no justification for excluding in-house lobbyists from lobbying regulation. After all, their role is identical to that of third-party lobbyists: to promote the interests of a specific person or entity to decision-makers and seek favourable outcomes.
Then there is the matter of the revolving door, whereby government officials become lobbyists after departing government, and ex-lobbyists become government officials.
This gives rise to grave conflicts, which have been articulated by labour law expert Professor Joo Cheong Tham. One of these relates to the prospect of future employment, whereby public officials may modify their conduct to ingratiate themselves with potential future private sector employers.
Conflicts can also arise where public officials are lobbied by their former colleagues: in this way, the revolving door permits the sale and purchase of privileged influence and access, which the NSW ICAC has described as falling “well within any reasonable concept of bribery or official corruption”.
In Victoria, the “cooling-off period” established by the code required before former public office holders can take up lobbying work is too short to allow the dilution of the influence and connections they use. It is 12 months for parliamentary secretaries, and executives and ministerial officers and 18 months for ministers and cabinet secretaries. This is far less than applies in NSW, Queensland, the United Kingdom and Canada.
There is currently no requirement to disclose the diaries of ministers, shadow ministers and their chiefs of staff – another significant limitation of the Victorian integrity framework. Ministerial diaries are published in NSW, Queensland and the ACT, and these disclosures are important for accountability.
Necessary (though not sufficient) for the success of lobbying regimes is that the rules are enforceable. In Victoria (as in the Commonwealth and Tasmania), the only penalty lobbyists face for non-compliance is deregistration. In contrast, NSW, Queensland, South Australia, Western Australia, the UK and Canada also issue fines while and in the case of South Australia and Canada, criminal sanctions.
At a minimum, fines should be introduced in Victoria to encourage compliance and deter breaches. Other mechanisms should also be considered including the confiscation of parliamentary access passes and making a represented person or entity ineligible to receive government grants or contracts, in sufficiently egregious breaches.
As well as bolstered sanctions, there must also be a well-resourced independent statutory authority to enforce penalties.
These reforms are the bare minimum required to bring Victoria’s lobbying regime up to standard. A more ambitious project would see changes such as the integration of lobbyist disclosures with the disclosure of political donations, as well as broader improvements to the inclusivity and openness of government decision-making practices.
The recent federal election results have revealed the public appetite for integrity reform. May that whet the Victorian Government’s.
Written by Centre for Public Integrity Research Director Dr Catherine Williams and published in the Age on June 30