LOBBYING AND MINISTERIAL ACCOUNTABILITY BILL

Introduction and First Reading

The Hon. R.B. SUCH (Fisher) (10:31): Obtained leave and introduced a bill for an act to provide for the disclosure of lobbying of senior public officials; to make unlawful the holding and trading of certain property by serving ministers; to regulate the post-ministerial employment of ministers and ministerial advisers; and for other purposes. Read a first time.

Second Reading

The Hon. R.B. SUCH (Fisher) (10:32): I move:

That this bill be now read a second time.

The rationale behind this bill is that in a democracy—and I would argue that we have something approximating a democracy—the electors are entitled to know the detail of who is seeking to influence the outcome of decisions made by government and, indeed, decisions made by this parliament. I say what I have said before in this place. I think in South Australia we have had a very high standard of behaviour by public officials over time—and, as far as I know, by lobbyists—but the point is we cannot always be sure in regard to the latter. However, I think South Australians can be justly proud that, irrespective of which party or group has been in power, we have a fantastic record of a high standard of behaviour and public integrity.

I look with sadness at what has happened and is happening in Western Australia in regard to governmental activities and what is happening in Victoria in relation to some aspects of their police force, but I think it is fair to say—and it should be said—that we should be proud of the collective record here in South Australia. Having said that, I think there is a case to create a register of people who are lobbyists. The bill has drawn upon the experience in Western Australia and also a bill that was put forward by Bob Brown in the Senate; and other actions around the world have guided the drafting of this bill.

It is important to define the lobbyists, of which there are two categories in the bill. One is an employed lobbyist who clearly works for an employer and who lobbies on behalf of the employer. There are various categories relating to that: if the employer is a body corporate, profession, business, trade, vocational group or the like. The other category is what is called a consultant lobbyist, and that is a person who (directly or indirectly) received remuneration for engaging in lobbying activity on behalf of any other person (the client), and is obviously engaged particularly for that purpose of lobbying.

As I said before, I am not suggesting the lobbyists in this state are necessarily doing things which are bad, but I think we are entitled to know the extent to which they are involved in activities. It is important—in fact, it is vital—that in a democracy there is free and open access to institutions of government. Lobbyists can improve the functioning of our democracy by assisting individuals in organisations with advice on public policy processes and facilitating contact with relevant government representatives.

So there is no assumption that simply being a lobbyist or engaging in lobbying is necessarily a bad thing—as I say, it can enhance the workings of our democratic system—but I believe there is a strong expectation amongst members of the public that lobbyists are individuals who reflect high standards, high ethical standards and who behave in ways which accord with the high standards of professional conduct.

I looked at the list of registered lobbyists in Western Australia, and I will not read it now but it is quite an amazing list. Something like 74 lobbyists are registered in Western Australia, and that is a requirement under their Contact with Lobbyists Code which was introduced in Western Australia on 16 April this year. The way in which the registration of lobbyists would work under my bill is that it would come under the aegis of the Auditor-General, who would be required to keep and maintain a register of lobbying activity.

I should say at the outset that there are categories of people who are exempt from the definition of lobbying. Prior to spelling that out, I will define the lobbying activity. Clause 10(1) provides:

...if the person communicates with a senior public official—

and that means a public servant or a minister—

in any manner intended to influence—

(a) the development of any legislative proposal by the state government or by a member of either house of parliament; or

(b) the introduction of any bill in either house of parliament or the passage or amendment of any bill that is before either house of parliament; or

(c) the making, disallowance or variation of any subordinate legislation; or

(d) the introduction of or change to any state government policy or program; or

(e) the exercise of any authority or power conferred under any act or law or the expenditure of public money...

Lobbying activity does not include—

(a) a communication that is—

(i) made by a senior public official, or by any other person holding office under any act or law, in his or her official capacity; or

(ii) made on behalf of the government of the state, or the commonwealth or another state or territory; or

(ii) made on behalf of the government of a foreign country; or

(iii) constituted by any application required or authorised by any act or law; or

(iv) made in response to a written request from a senior public official acting in his or her official capacity; or

(v) made by a representative or employee of a media organisation for the purposes of gathering and disseminating news and information to the public; or

(vi) made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, or other medium of mass communication; or

(vii) made in a petition to either house of parliament or in evidence or submissions to a committee of either of those houses, or a joint committee of both houses of parliament; or

(viii) made in the course of any judicial proceedings; or

(b) arranging or attending a meeting with a senior public official—

(i) that is open to members of the public; or

(ii) by a representative or employee of a media organisation for the purposes of gathering and disseminating news and information to the public.

The bill clearly sets out what is lobbying and what is not. It also requires the minister who has responsibility ultimately for legislation to prepare a code of conduct to be observed by senior public officials when dealing with lobbyists. Clause 11(2) provides:

The code of conduct must contain the following provisions:

(a) a provision prohibiting a senior public official from permitting himself or herself to be lobbied other than by a lobbyist registered on the register;

(b) a provision prohibiting a senior public official from permitting himself or herself to be lobbied other than in accordance with the code of conduct;

(c) a provision requiring a senior public official to disclose lobbying activity in accordance with the code of conduct;

(d) a provision requiring a lobbyist engaged in lobbying activity to disclose whether any remuneration is payable to the lobbyist in respect of the lobbying activity (and, if so, whether such remuneration is wholly or partly contingent on the lobbyist's degree of success);

(e) any other provision required by the regulations.

The Auditor-General would have responsibility for maintaining a register of the lobbyists and lobbying activity. Importantly—and there are specific inclusions that I want in the bill—the bill provides:

(4) A person is entitled to inspect (without charge) the register at the Auditor-General's office during ordinary office hours.

(5) A person may, on payment of the prescribed fee, obtain a copy of any part of the register.

(6) The Auditor-General must cause a copy of the register to be published on a website established by the minister for that purpose.

It is important that, if we have a register of the lobbyists and their lobbying activity, then it is vital that any member of the public, through the web or by inspection at the Auditor-General's office, can access that register at a suitable time during working hours.

Other provisions in the bill relate to the behaviour of ministers. We have a Ministerial Code of Conduct, so there is no point in duplicating it, but the bill strengthens provisions in relation to a minister having to divest himself or herself of all control of all securities and derivatives, including any legal or equitable rights in such securities or derivatives that he or she controls; so within 28 days of becoming a minister they must divest themselves. Clause 16(2) provides that a minister must not, during the period of his or her ministry, purchase any securities or derivatives in the category to which I have just alluded. There are other provisions relating to what a minister must do in relation to notifying residual interests in any securities, and so on.

The bill specifically provides that the Australian Crime Commission may investigate lobbying activity, and the bill makes quite clear what the ACC can do about investigating and taking action in relation to lobbying activity. It also makes provision for the police and the Auditor-General to take action. Clause 18 provides that a minister or a ministerial adviser must not undertake or give advice for personal profit or commercial advantage on any aspect of work undertaken by an administrative unit for which they had responsibility as a minister or involvement as an adviser during the preceding two years. There is a cooling-off period so that ministers (and advisers) cannot go straight from being a minister in a portfolio to receiving payment for advice on matters relating to that former portfolio responsibility.

That is the nub of the bill. It obviously contains penalties, and members can have a look at those themselves under part 5. I think this is a reasonable and balanced measure. I am not in any way suggesting that our society and government or the lobbyist area is full of bad activity. However, I think that it is appropriate, and I think we should learn from the experiences in Western Australia and elsewhere that it is important that members of the public have confidence in the system and do not come to be so cynical as to believe that everything associated with government, or even a part of government, is corrupted by a process where we have people giving advice, paid lobbyists involved in altering the outcome of decisions.

It is best, in my view, to have an open, accountable and transparent system. If a lobbyist is doing the right thing, according to this proposal in my bill, he or she will have nothing to fear, because all it is doing is making clear to the wider community—to the electors—that our system of government is operating in a way that is less likely to have any corrupt behaviour. I think it is a measure that the wider community is very keen to see implemented.

I trust that members will give this measure thoughtful consideration (as they always do). I would ask them, if they have any concerns or doubts about the need for this measure, to reflect on what has happened in Western Australia, even in the last few days, and in some of the other states. I believe that this avoids, or helps to deal with, some of the issues that people advocate in relation to a crime and corruption commission, and that it would help to make things clear and transparent. I commend the bill to the house.

Debate adjourned on motion of the Hon. M.J. Atkinson.