Commonwealth of Australia Explanatory Memoranda

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LOBBYING (IMPROVING GOVERNMENT HONESTY AND TRUST) BILL 2024

                     2023 -- 2024




THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA




            HOUSE OF REPRESENTATIVES




   Lobbying (Improving Government Honesty and Trust)
                        Bill 2024




            EXPLANATORY MEMORANDUM
                          and
  STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS




                Circulated by authority of
                  Dr Monique Ryan MP


Lobbying (Improving Government Honesty and Trust) Bill 2024 Background to the Bill 1. There is increasing public concern that our Government and its representatives lack honesty and integrity. Our communities commonly believe that the political system has no interest in being open because it operates for politicians and those with vested interests. These concerns and beliefs have led to louder calls for Government decision-making to be made transparent, and for those individuals making the decisions to be held accountable. 2. Perceptions have worsened in recent years about the pervasive influence that lobbyists have over political decision-making. Certainly, advocacy in and of itself is a legitimate contribution to the democratic process, bringing diverse perspectives to government representatives to inform policy development and decision making. However, the practice of lobbying and its role in decision-making must be made more transparent to ensure that Government decisions are taken in the public interest and not unduly influenced by private interests or by external direction unknown to the public. 3. The current Federal Code of Conduct for lobbyists is severely limited. It applies to registered professional lobbyists acting on behalf of third-party clients, but it does not apply to most lobbying activity; for instance, that undertaken by businesses and industry bodies. It does not apply to in-house lobbyists. 4. Furthermore, while the identities of registered lobbyists and their clients are published on a register, there is a lack of transparency regarding their lobbying activity and access to government. 5. There are no meaningful consequences for breaching the Federal Code of Conduct. 6. The responsibility for making the impact of lobbying transparent, and decision- makers accountable for their actions, must be borne by both Government and lobbyists themselves.


7. There is presently no consistent or visible way of knowing which corporate or stakeholder groups are meeting with Ministers. The risk of conflicts of interest, and bias in decision-making, are further heightened when former politicians, senior political staff or high-ranking government officials take on roles in the private sector and then engage in Government lobbying on behalf of a private entity. 8. The publication of Ministerial diaries is a vital transparency -- and accountability -- measure. Voters should know who their Ministers and senior Ministerial advisers are meeting with and why those meetings are occurring. However, unlike New South Wales, Queensland, and the Australian Capital Territory, there is currently no Commonwealth legislative requirement to publish Ministerial diaries. 9. The publication of lobbyists' meetings with government is also an important transparency measure which will militate against secrecy in government decision- making. The public deserves to be able to see who is lobbying, to whom, when, and about what. At present, that is not possible. 10. When former politicians, senior political staff and high-ranking government officials take on roles in the private sector upon leaving Government, and then engage in lobbying on behalf of a private entity, this heightens the perception of possible conflicts of interests and bias. At present, the Federal Code of Conduct provides that Ministers must not -- for 18 months after leaving office -- engage in lobbying activities relating to any matter in which they had official dealings. For Ministerial adviser level and above, members of the Australian Defence Force at Colonel level or above, an agency head, or person employed under the Public Service Act 1999 in the Senior Executive Service, that period is 12 months. 11. At present, lobbyists can work in senior campaign advisory positions during an election period, then -- immediately after the election -- return to the private sector to lobby the Government. At a minimum, this practice creates an unavoidable perception of bias in the mind of the public, and more broadly contributes to the diminution of our democracy by corroding community confidence in Government.


Outline of the Bill This Bill introduces several measures. 1. It enhances the integrity of Government decision-making by extending the Register of Lobbyists to include registered professional lobbyists acting on behalf of third parties, services firms, and lobbyists acting on behalf of businesses and industry bodies ('in house lobbyists'). 2. It enhances transparency and accountability by setting out the information that must be included on the Register of Lobbyists. The Register must include names of lobbyists, and it requires that a person be identified as a professional lobbyist, an in- house lobbyist and/or a former Government representative. 3. It enhances transparency by prohibiting lobbying by an unregistered lobbyist. It makes it an offence for a person who is not registered to engage in lobbying activities with a Government representative, if that person is a professional lobbyist, or employed or engaged by a professional lobbyist. 4. It enhances transparency and accountability by requiring lobbyists to prepare a quarterly return that must be uploaded to the publicly searchable online Register of Lobbyists. It must detail all meetings with members of parliament and their senior advisers must, note the key issues discussed, and specify those persons in attendance. 5. It promotes the integrity of lobbying activities by requiring lobbyists to disclose details such as the ownership structure and major shareholders of the entities being represented, and ordinarily (with some exceptions) the names of the third-party clients. 6. It restricts the giving of gifts and hospitality by lobbyists to Government representatives. 7. It restricts lobbying activities in circumstances where a lobbyist has a close relationship with the Government representative being lobbied, and, a sense of


obligation towards the lobbyist could reasonably be expected to subsist because of that close relationship. 8. It requires the publication of Ministers' diaries, such that meetings with both registered and non-registered lobbyists are disclosed. All meetings with stakeholders, external organisations and lobbyists that relate to the Minister's responsibilities must be listed. This includes meetings held at office and offsite, scheduled phone calls, and events where a Minister attends in an official capacity. All events and functions attended by the Minister (or Parliamentary Secretary) that relate to their Ministerial responsibilities must also be included in their diaries. (This clause extends the publication requirement to Parliamentary Secretaries because a Parliamentary Secretary is a Minister under s4 of the Ministers of State Act 1952.) 9. It extends the post-employment cooling-off period for former Ministers and senior government officials and advisers to three years, in keeping with international best practice. 10. It provides the National Anti-Corruption Commission with the ability to investigate alleged breaches of the legislation. 11. It imposes sanctions for breaches including fines and suspension or revocation of registration. Financial Impact The Bill will have no financial impact. Notes on Clauses Part 1 Preliminary Clause 1 Short Title This clause provides for the Bill, when enacted, to be cited as the Lobbying (Improving Government Honesty and Trust) Act 2024.


Clause 2 Commencement Subsection 2(1) provides that each provision of the Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms. Item 1 in the Table provides that the whole of the Act will commence the day after the day on which the Consolidated Revenue Fund is appropriated under an Act to the Department in which the Act is administered for payment for the purposes of the Act. Subsection 2(2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of the Act. Clause 3 Objects of the Act The principal aim of the Act is to promote and enhance transparency, integrity, and honesty in dealings between lobbyists and the Government. The Act: a. provides for the registration of lobbyists, with details to be made publicly available on an online register b. requires detailed quarterly lobbying returns to be prepared and uploaded to the register by all registered lobbyists c. ensures that registered lobbyists comply with appropriate standards of conduct when engaging in lobbying activities with Government representatives d. requires the publication of Ministerial diaries on a periodic basis e. requires the Australian Government Directory to include entries for current and former senior Ministerial staffers f. restricts lobbying by certain former Government representatives g. restricts lobbying and inappropriate practices of Ministers after ceasing to be Ministers h. restricts lobbying and inappropriate practices of senior Government advisers after ceasing to be senior Government advisers


i. provides for enforcement of the Act, including through the imposition of appropriate penalties. Clause 4 Simplified outline of this Act This clause provides a simplified outline of the Act. Clause 5 Crown to be bound This clause provides that the Act binds the Crown in right of the Commonwealth. Clause 6 Application This clause provides that the Act applies both within and outside Australia, and only applies to lobbying activities after the commencement of the Act. The Act does not require a Government representative to have dealings with a lobbyist/s and it does not limit communication with a person if a law requires a Government representative to take account of the views advanced by a person. Clause 7 Extended geographical jurisdiction for offences This clause provides that section 15.1 of the Criminal Code will apply to all offences under the Act. Part 2 Definitions Clause 8 Definitions This clause defines terms and expressions used throughout the Act to avoid doubt and to clarify the intended meaning of each word for the specific purposes of the Act. Critical definitions that apply to the operation of the Act and may assist in the reading of this Explanatory Memorandum include:


a. Government decision-making includes the making of a decision in relation to: the proposing, making, or amending of legislation; the proposing, developing, or amending of an Australian government policy or program; the awarding of an Australian government contract; and the granting or allocation of funding. b. Government representative means any of the following: a parliamentarian; a person employed or engaged by a parliamentarian under the Members of Parliament (Staff) Act 1984; an Agency Head or a person employed under the Public Service Act 1999; a person engaged as a contractor or consultant by a Commonwealth entity, or a member of the Australian Defence Force. Clause 9 Meaning of lobbying activity This clause defines the meaning of lobbying activity for the purposes of the Act. It provides that it means any activity undertaken with a Government representative for the purpose of influencing Government decision-making. This clause excludes various activities from the definition of lobbying activity, including such things as: communicating with a committee of Parliament; communicating in one's capacity as a constituent; responding to tender or submission requests; and communicating as part of an activity of a grassroots campaign nature in an attempt to influence an Australian government policy or decision. Clause 10 Meaning of lobbyist This clause defines the meaning of lobbyist. It provides that lobbyist includes professional lobbyists and in-house lobbyists. A professional lobbyist is a person who undertakes lobbying activities on behalf of a third-party client, or the person employs or engages another person to undertake lobbying activities on behalf of a third-party client. The meaning of an in-house lobbyist is dependent upon an entity meeting certain requirements as well as the person employed as a lobbyist by that entity.


The entity must incur expenditure of at least $100,000 for the current financial year, or for any of the last 3 financial years, on remuneration for officers, employees, or contractors who, as a significant part of their role, undertake or direct lobbying activities for the entity or have an annual revenue of at least $5 million for the current financial or for any of the last 3 financial years; or be an industry association. The person must be an officer, employee, or contractor of the entity. They must spend at least 8 hours in a calendar month undertaking or directing lobbying activities for the entity for at least 3 calendar months in the current financial year, or in any of the last 3 financial years. Importantly, a member of a trade delegation visiting Australia is not regarded as a lobbyist. Similarly, a person who provides technical or professional services as a member of a technical or professional occupation -- such as medicine, law, or accountancy -- is not regarded as a lobbyist if the undertaking of lobbying activities is occasional and incidental only. Part 3 Regulation of lobbying activities and related practices Clause 11 Lobbying activity by unregistered lobbyists prohibited This clause provides that a person commits an offence if they undertake lobbying activities with or in relation to a Government representative and they are a professional lobbyist or an in-house lobbyist and are not registered. Clause 12 Certain former Government representatives must not engage in lobbying activities or related practices This clause provides -- amongst other things -- that a person commits an offence if for 3 years after ceasing to be a Minister they engage in lobbying activities with a Government representative on matters on which they had official dealings in their Ministerial role. It is also an offence to provide advice or information to assist a lobbyist on an aspect of work for a department or agency for which they held Ministerial responsibility. Moreover, it is an


offence for the Minister to provide advice or information about projects or contracts for which they held Ministerial responsibility for their own financial or commercial advantage. Similar provisions exist in this clause for senior Government advisers. They are defined as senior Ministerial advisers, Agency Heads, SES employees of a Commonwealth entity, or a member of the ADF with a rank of Colonel or above. A senior Ministerial adviser is someone classified as a member of senior staff under the Members of Parliament (Staff) Act 1984 Clause 13 Undertaking lobbying activities Principles This clause provides that a lobbyist must observe several principles. They include that the lobbyist: a. must not engage in conduct that is corrupt, dishonest or illegal b. must not engage in conduct that unlawfully causes or threatens detriment to another person c. must use all reasonable endeavours to satisfy themselves of the truth and accuracy of all statements and information provided by them to their clients, members of the public, or Government representatives d. must keep their lobbying activities separate from any activities the lobbyist or person engages in in a personal capacity or on behalf of a political party e. must inform the Government representative before engaging in lobbying activities that: i. the person is a registered lobbyist ii. the names of each client on behalf of whom the person is engaging in the lobbying activities iii. the nature of the matters that each client wishes them to raise with the Government representative; and iv. if the lobbyist or person is prohibited from engaging in certain lobbying activities under section 12


f. must not provide a gift or hospitality directly or indirectly to the Government representative, unless the gift is of low value and is given as a token of appreciation or as a promotional item g. any other principle prescribed by the rules. Close relationship This clause also requires that a registered lobbyist or listed person must not undertake lobbying activities with, or in relation to, a Government representative if the Government representative would reasonably be seen to have a close relationship with the lobbyist and a sense of obligation towards the lobbyist because of that close relationship would be expected. Role in Election Campaign The section requires that an in-house lobbyist or listed person must not perform both a substantial role in an election campaign, and work as an in-house lobbyist or as listed person of a professional lobbyist during the period from the time the writs are issued for a general election until 6 months after the election. If an in-house lobbyist or listed person does choose to undertake a substantial role in an election campaign, then they may request that the Commissioner suspend their registration as a registered lobbyist for that period. Clause 14 Obligations of Government representatives This clause provides that a Government representative cannot engage in lobbying activities with a person unless that person is registered or listed as a lobbyist, and that person has told the Government representative the names of the client/s on whose behalf they are representing. A Government representative who becomes aware of a contravention of this Bill must refer the matter to the Commissioner. Part 4 Registration Division 1 -- Register of Lobbyists


Clause 15 Establishment of Register This clause provides that the Commissioner must establish an electronic Register of Lobbyists that is published on the website of the Department administered by the Attorney General. Clause 16 Information to be included on the Register This clause sets out the information that must be contained in the Register for each registered lobbyist. It also includes the circumstances in which such information need not be included. Clause 17 Information from quarterly returns to be included on the Register This clause establishes the requirement for a lobbyist to give the Commissioner a quarterly return that discloses the number of lobbying activities undertaken by a lobbyist or listed person for the preceding quarter. For each activity the following must be disclosed: a. details about the topic of the activity and the desired outcome b. the name of each Government representative the activity was with, or relates to c. the form of any communication as part of the activity d. the day or days the activity happened e. the names of the persons directing and undertaking the activity. There are further obligations if the lobbyist is a professional lobbyist. They include the disclosure of the name and ABN of their third-party clients as well as, in the case of those clients that are body corporates, the details of any controlled entities of those clients. Division 2 -- Registration Process Clause 18 Application for Registration This clause sets out the method by which a lobbyist applies for registration and the documentation required to support the application. It includes a requirement for a statutory declaration that, among other things, requires a person to declare that they have not previously committed a serious contravention of the Act.


Clause 19 Registration This clause sets out when the Commissioner is required to register a lobbyist and the circumstances in which a lobbyist may be refused registration. Division 3 -- Updating the Register Clause 20 Notification of changes to registration details This clause requires that an amendment to the register be notified by the lobbyist to the Commissioner within 10 business days and that a person commits an offence if they fail to do so. Clause 21 Periodic confirmation of registration details This clause provides that confirmation of lobbyist registration details will occur each year in February and July. In July there is an additional requirement for lobbyists to complete a new statutory declaration as per clause 18. Division 4 -- Variation, suspension, or cancellation of registration Clause 22 Variation, suspension, or cancellation of registration This clause provides that a lobbyist's registration can be varied, suspended, or cancelled at the initiative of the Commissioner, or by the Minister as directed to the Commissioner. The Minister must state the reasons why they are proposing this course of action and request that the lobbyist show cause as to why the change should not take place. Part 5 Other transparency requirements Clause 23 Requirement to publish Ministerial diaries This clause provides that Ministers must publish their diaries each calendar month.


The information that must be contained in the diaries includes all meetings with stakeholders, external organisations and lobbyists that relate to the Minister's responsibilities, including: a. meetings held in person, by videoconference, teleconference, or telephone call b. meetings attended by the Minister or by an adviser to the Minister c. details of who attended each meeting and the key matters discussed. The diary must also disclose all events and functions attended by the Minister that relate to the Minister's responsibilities. Clause 24 Requirement for Australian Government Directory to include entries for current and former senior Ministerial staffers This clause provides that the Australian Government Directory show the name of each senior Ministerial staffer and former senior Ministerial staffer in such a way that links the staff to the Minister's entry in the Australian Government Directory. For former senior Ministerial staffers, their employment cessation date must be noted, and these details must be maintained for 3 years post-cessation. Part 6 Enforcement Clause 25 Referral of alleged contravention This clause provides that, if a person reasonably believes someone has contravened the Act, they must refer the matter to the Commissioner. Clause 26 Investigations by the Commissioner This clause provides that the Commissioner may instigate an investigation on its own initiative or in response to a referral under s25. Part 7 Miscellaneous Clause 27 Review of decisions


This clause provides that a lobbyist may make an application to the Administrative Review Tribunal for review of a decision by the Commissioner not to register a lobbyist, or to vary, suspend, or cancel a lobbyist's registration. Similarly, such an application can be made to review a decision of the Minister to direct the Commissioner not to register a lobbyist or to vary, suspend or cancel a lobbyist's registration. Clause 28 Treatment of partnerships This clause provides how a partnership, and its partners, are to be regarded under the Act. Clause 29 Treatment of unincorporated associations This clause provides how unincorporated associations are to be regarded under the Act. Clause 30 Annual report This clause provides that when the Commissioner is preparing a report under the Public Governance, Performance and Accountability Act 2103 in relation to the National Anti- Corruption Commission for a particular period, it must include information about the operation of this Act for the same period. Clause 31 Review of the Operation of the Act by an expert panel This clause provides that the Minister must cause an independent review of the Act by an expert panel within three years of the commencement of the Act. It must also include an opportunity for members of the public to make written submissions about the operation of the Act. The report of the review must be tabled before each House of Parliament within 7 days of the House having reviewed the Report.


Clause 32 Appointment of members of the expert panel This clause provides that a three-person expert panel must conduct the independent review of the operation of the Act. Those appointed to the panel must have expertise or experience in one or more of the following areas: community advocacy and engagement; legal and regulatory compliance; or contemporary issues relating to lobbying. However, none of the following is permitted to be on the panel: a current officer or employee of a registered political party, a registered lobbyist or listed person, or a current or former parliamentarian. The Minister must first propose the expert members they intend to appoint to a parliamentary committee -- whose role covers the kinds of matters set out in the objects of the Act. This committee must notify the Minister if it supports or vetoes the appointments and, if it vetoes an appointment/s, it must propose two alternatives for each person vetoed. Clause 33 Rules This clause provides that a Minister may make rules prescribing matters, amongst other things, that are necessary or convenient for carrying out or giving effect to the Act.


STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Lobbying (Improving Government Honesty and Trust) Bill 2024 The Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. Overview of the Bill This Bill introduces several measures. 1. It enhances the integrity of Government decision-making by extending the Register of Lobbyists to include registered professional lobbyists acting on behalf of third parties, services firms, and lobbyists acting on behalf of businesses and industry bodies ('in house lobbyists'). 2. It enhances transparency and accountability by setting out the information that must be included on the Register of Lobbyists. The Register must include names of lobbyists, and it requires that a person be identified as a professional lobbyist, an in- house lobbyist and/or a former Government representative. 3. It enhances transparency by prohibiting lobbying by an unregistered lobbyist. It makes it an offence for a person who is not registered to engage in lobbying activities with a Government representative, if that person is a professional lobbyist, or employed or engaged by a professional lobbyist. 4. It enhances transparency and accountability by requiring lobbyists to prepare a quarterly return that must be uploaded to the publicly searchable online Register of Lobbyists. It must detail all meetings with members of parliament and their senior advisers must, note the key issues discussed, and specify those persons in attendance.


5. It promotes the integrity of lobbying activities by requiring lobbyists to disclose details such as the ownership structure and major shareholders of the entities being represented, and ordinarily (with some exceptions) the names of the third-party clients. 6. It restricts the giving of gifts and hospitality by lobbyists to Government representatives. 7. It restricts lobbying activities in circumstances where a lobbyist has a close relationship with the Government representative being lobbied, and, a sense of obligation towards the lobbyist could reasonably be expected to subsist because of that close relationship. 8. It requires the publication of Ministers' diaries, such that meetings with both registered and non-registered lobbyists are disclosed. All meetings with stakeholders, external organisations and lobbyists that relate to the Minister's responsibilities must be listed. This includes meetings held at office and offsite, scheduled phone calls, and events where a Minister attends in an official capacity. All events and functions attended by the Minister (or Parliamentary Secretary) that relate to their Ministerial responsibilities must also be included in their diaries. (This clause extends the publication requirement to Parliamentary Secretaries because a Parliamentary Secretary is a Minister under s4 of the Ministers of State Act 1952.) 9. It extends the post-employment cooling off period for former Ministers and senior government officials and advisers to three years, in keeping with international best practice. 10. It provides the National Anti-Corruption Commission with the ability to investigate alleged breaches of the legislation. 11. It imposes sanctions for breaches including fines and suspension or revocation of registration.


Human rights implications 1. The amendments proposed in this Bill may engage the following rights under the International Covenant on Civil and Political Rights (ICCPR): • the right to freedom of expression (Part III, Article 19, Section 2); and • the right to take part in public affairs (Part III, Article 25). The right to freedom of expression 2. The right to freedom of expression is contained in Article 19 of the ICCPR. It includes the 'freedom to seek, receive and impart information and ideas of all kinds,' regardless of medium (Article 19(1), ICCPR). 3. This right may be engaged because the Bill seeks to limit freedom of expression by: a. imposing limitations on the ability of parties to undertake lobbying activities -- and thereby impart and receive information -- in circumstances where they are not registered to do so; and b. otherwise, by imposing limits on the giving of gifts and hospitality which may reduce the influence that might otherwise be exerted. 4. It is well established at law that the right to freedom of expression is not absolute and may be limited by law. 5. The right of a person to express their view, in circumstances where those views may influence government decision-making in such a way that is not transparent, must be balanced against the need to protect the public from a diminution in confidence in the political system, a perception of a lack of integrity in Government, and an actual lack of transparency in the decision-making of Government. Each of these factors contributes to the corrosion of democracy and faith in democratic principles and must be avoided.


6. The lobbying measures in the Bill -- whilst imposing reporting requirements upon parties who meet with Government representatives -- do not limit the ability of those parties to express their views in circumstances where they meet those reporting requirements. Neither do they otherwise impose restrictions on individuals expressing political views or contributing to public discourse. 7. The registration and reporting requirements imposed by the Bill, to the extent that they limit a party's freedom of expression, are reasonable and proportionate. The right to take part in public affairs 8. The right to take part in public affairs is contained in Article 25 of the ICCPR. This right provides that 'every citizen shall have the right and the opportunity, without any of the distinctions mentioned in Article 2 and without unreasonable restrictions, to take part in the conduct of public affairs directly or through freely chosen representatives.' None of the distinctions mentioned in Article 2 of the IPCC are relevant to the provisions of this Bill. 9. This right is closely related to the right to freedom of expression. This Bill seeks to limit the right to take part in public affairs to the extent that it prohibits certain parties from lobbying -- which is to say meeting with Government representatives if they are not registered or do not otherwise comply with the initial and ongoing requirements of registration. 10. It does not otherwise impose restrictions on individuals expressing political views or contributing to public discourse on elections. 11. As is the case with a limitation on the freedom of expression, this limitation is necessary because the right to take part in public affairs must be balanced against the need to protect the public from a diminution in confidence in the political system, a perception of a lack of integrity in Government, and a lack of transparency in governmental decision-making. Each of these factors contributes to the corrosion of democracy and a loss of belief in democratic principles.


12. When balanced against these factors, the registration and reporting requirements imposed by the Bill which create limitations on the ability of parties to freely take part in the conduct of public affairs, are reasonable and proportionate. Conclusion This Bill is compatible with human rights because to the extent that it may limit human rights, those limitations are reasonable, necessary, and proportionate. Dr Monique Ryan, MP


 


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