Canberra lobbying must be reined in. Here’s how we can protect our democracy

Under the Howard government, climate change policy was determined by fossil fuel lobbyists (many of whom were former senior public servants) who likened themselves to organised crime through a self-styled label – the greenhouse mafia.

These lobbyists were part of a network of climate sceptics – dubbed the “Carbon Club” – that effectively hindered direct climate action by Australia for decades. They provide a stark illustration of how lobbying, in the words of the OECD, can result in “policy capture” and steer public policy away from the public interest.

The sponsored passes can be issued to anyone as long as the applicant agrees to a security check and is approved by a member of parliament.

Of course, as the NSW ICAC has pointed out, “lobbying is a central and legitimate activity for the functioning of a democratic system”.

Regulation of how and by whom lobbying is conducted are, however, critical for it to serve its democratic purposes.

At the federal level, lobbying practices and regulation have undermined democracy in three ways. There is, firstly, the secrecy shrouding federal lobbying.

The Australian Government Lobbyists Register makes a tepid gesture towards transparency. While it reveals some information about commercial lobbyists (lobbyists who act on behalf of third parties), it fails to fully disclose who is engaging in lobbying, particularly through its exclusion of in-house lobbyists (of companies, trade unions and other non-government organisations). It also fails to disclose who is being lobbied; the subject matter of lobbying; and the timing of the lobbying.

Second, there is the risk of corruption and misconduct. This invariably comes with secrecy and is compounded when lobbyists and lobbying organisations have made political contributions to the parties in power, as research by the Centre for Public Integrity detailed this week.

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The risk of corruption and misconduct also grows in proportion to the number of former ministers and senior public servants who are employed in the private sector after leaving public sector employment (known by the technical term, “post-separation employment”). As Grattan Institute analysis demonstrates, this is now a well-established pathway with more than a quarter of former ministers and assistant ministers taking up roles in peak organisations, large corporations, lobbying and consulting firms since 1990.

As the NSW ICAC has observed, “conflicts of interest are at the centre of many of the post-separation employment problems”. Public officials, including ministers, may modify their conduct, by going “soft” on their responsibilities or, generally, making decisions favourable to prospective private sector employers, in order to improve their post-separation employment prospects. When public officials are lobbied by former colleagues or superiors, prior (and possibly ongoing) associations can compromise impartial decision-making.

The third failure of federal lobbying practices and regulation is unfair access and influence. Secret lobbying, by its nature, involves such unfairness. When lobbying or the details of the lobbying are unknown at the time when the law or policy is being made, those engaged in that lobbying are able to put arguments to decision-makers that other interested parties are not in a position to counter simply because they are not aware that those arguments have been made.

Senator David Pocock is among those concerned about the lack of transparency regarding lobbyists in Parliament House. Credit: Alex Ellinghausen

Even without secrecy, unfair access and influence can result from lobbying through the creation of “insiders” and “outsiders” to the political process. The former consists of a tightly circumscribed group that includes commercial lobbyists and in-house lobbyists of companies, trade unions and non-government organisations. The latter is the rest of us. Not all are equal, of course, within the group of insiders and here the privileged position of business speaks with a louder voice.

Here again political contributions have a toxic effect. As the Grattan Institute has found, “major donors to political parties are more likely to get a meeting with a senior minister”.

How can this parlous situation be remedied? We need to move away from what the auditor-general has characterised as a “light-touch approach” of federal regulation.

The Centre for Public Integrity has made five recommendations to strengthen federal lobbying regulation. First, a lobbying code of conduct should be legislated. This would bring the federal regulation in line with Canada, United Kingdom and most of the states.

The definition of “lobbying” should be expanded to capture all forms of influence, and “lobbyist” be expanded to capture in-house lobbyists. This adopts for the federal level a recommendation made by NSW ICAC which was adopted by the previous (Coalition) state government.

Third, transparency should be promoted via proactive publication of ministerial diaries with additional details required in respect of meetings with registered lobbyists. Such arrangements are already in place in NSW, Queensland and the ACT.

Four, the regime should be overseen by a well-resourced regulator, with sanctions expanded to include fines, criminal sanctions and potential barring from government contracts for serious breaches. This recommendation draws from the sanctions available under lobbying regulation in Canada, United Kingdom, South Australia and Western Australia.

And finally, the post-employment separation period should be expanded to five years – as in Canada – and include all members of parliament rather than just ministers and ministerial staff

Robust regulation is essential for democratic lobbying. Without it, Australians will continue to be unable to trust that public power is being exercised in the public interest.

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