Lobbyists Bill

Second Reading

Adjourned debate on second reading.

(Continued from 8 September 2015.)

Ms CHAPMAN (Bragg—Deputy Leader of the Opposition) (15:58): I will be the lead speaker on the Lobbyists Bill 2015 which has been presented to the parliament yesterday for our consideration. The bill will be consented to by the opposition and we will support the passage in this house. However, there are a number of questions I do ask that the Attorney respond to, and I will outline the reasons why. Can I say though at the outset that we welcome, on this side of the house, the statutory provision in this bill for a registration procedure for lobbyists who operate in South Australia.

The bill follows a period of negotiation, of which there have been some proposals presented to the opposition for consideration. In reaching our conclusion to support this bill, we have had the opportunity to raise a number of questions, or at least our representative (Hon. Rob Lucas), in discussion with the Attorney, has done so. I would like to say, however, from the outset that in 2009, when the former premier (Hon. Mike Rann) acceded to public demand that there at least be some code of conduct to operate in respect of lobbyists, he published such a code, which was to be implemented, and in particular to establish a registration procedure essentially of the names, addresses and personnel who are members of lobbyist organisations, or indeed individuals.

Obviously, being a code of conduct, there were not penalties, other than a disciplinary manner as some tool or instrument of compliance. Whilst we welcomed that at the time, there were clearly deficiencies. For example, I give you just one occasion that came to my attention where there appeared to be no means by which there was enforcement by those who were supposed to be the keepers of the list in respect of their responsibility to do so.

After the introduction of the code of conduct there were a number of people, many of whom are well known, former members of parliament included, who signed up to be on the then premier's register, and they provided their name and disclosed the same for the purposes of complying with that code of conduct. One identified lobbyist, who was well known in the lobbyist field, was the former Labor minister, the Hon. Greg Crafter, and he did not appear on the list when we inquired as to identify his registration, when he had attended and was disclosed in certain documents to be the lobbyist on behalf of a certain company.

We made inquiry with the then premier's office to ascertain, 'What's the situation here? What's the process?' We were informed, with some communication back and forth, that there had been some error; that in fact Mr Crafter had forwarded an email, apparently, to the relevant office and, for whatever reason, it had disappeared into the ether of unattended to work and, accordingly, his name was not on the list. I hasten to add, in giving this example, that this is no personal reflection on Mr Crafter; I just use it as an example that the operation of what appeared to be a well-intentioned code was falling short by those who were supposed to be responsible for its implementation. I hope that will highlight at least the situation where there was some deficiency.

I am just reaching for my file called the 'Lobbyist Bill 2014', because I was ever hopeful that this might be a bill that would arrive last year but, as it did not, I will just refer to the 2009 agreement. That set out a registration procedure and identified lobbying activities as meaning:

…communications with a Government representative in an effort to influence Government decision-making, including the making or amendment of legislation, the development or amendment of Government policy or program, the awarding of a Government contract or grant or the allocation of funding...

But it specifically excluded a number of items including:

a. communications with a committee of the Parliament;

b. communications with a Minister or Parliamentary Secretary…in relation to non-ministerial [matters];

c. communications in response to a call for submissions;

d. petitions or communications [for a community campaign];

e. communications in response to a request for tender;

f. statements made in a public forum; or

g. responses to requests by Government representatives for information.

That code had a significant list of persons who were not included in the usual meaning of a lobbyist and they included: charitable, religious and other organisations; not-for-profit associations and organisations; individuals making representations on behalf of relatives or friends on personal matters; members of trade delegations visiting Australia; persons registered under the Australian government scheme regulating the activities of members of that profession, such as registered tax agents, customs brokers, company auditors, liquidators, and various others; members of professions such as doctors, lawyers, accountants, and other service providers, with some qualifications in respect of that; and representatives of other government or government agencies or inquiries.

I identify the lobbying activities and exemptions and the lobbyists and their exemptions because I note in the bill that is before us that we have a much leaner catchment that is to be defined in the statute in respect of the new regime. The meaning of lobbying which is proposed in clause 4 has a similar definition for lobbying, but the list which they might have influence over is now to be confined to:

…legislation or government decision or policy, application for any approval consent, licence, permit, exemption or other authorisation or entitlement or awarding of a contract or grant of allocating of funding or any other exercise official for his or her functions or powers.

The list of persons not to be taken to engage in lobbying is outlined to deal with people who are public officials and are operating in the ordinary course of their business, to legal practitioners to accountants and financial advisers and then if the person belongs to a class prescribed by regulation and acts in circumstances prescribed by regulation. So it is possible under the new regime that there are going to be significantly fewer numbers of exemptions. Accordingly, what I would ask is that the Attorney make provision or at least identify those whom he intends to be prescribing by regulation and to advise us of the list that he has to date under his consideration. When those draft regulations are available for consideration we would appreciate a copy of them at least between the houses.

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: The Attorney's interjection gives some helpful advice as to how we might progress the matter and so I will just mention a couple of other matters. The other aspect I want to point out is that the Independent Commissioner Against Corruption provided an annual report for the 2013-14 financial year on 14 October last year. In that, he made reference to lobbyists as one of a number of areas which he considered needed some attention. In his report, he outlined that he had been asked by the Deputy Premier to undertake a review of the Public Sector (Honesty and Accountability) Act 1995 for the purposes of determining whether that act should be amended to include a code of conduct for lobbyists. He went on to outline the merits which he felt would be important to be incorporated in standalone legislation, which was his preliminary view at the time of what would be the best solution, to use his words.

He stated, 'In my opinion, the public's concern about lobbyists' conduct would be alleviated if lobbyists seeking to influence government were obliged to expose their activities to public scrutiny,' and went on to outline some of the features of Queensland's Integrity Commissioner, who was appointed to administer lobbyists under legislation in which they had a registration and monitoring role and identified some aspects of that. He also said at that time, 'I will consider the issue further and report on it next year.'

In the course of committee, I would like some response on the question of where that report is and whether it has been received, and whether there have been any oral briefings on it if it has not been received. If it has been received, is it going to be tabled? We would certainly be wanting to see what the Independent Commissioner Against Corruption has to say about two things. One is whether, in fact, there is any aspect of this bill that he considers needs to be improved upon or, indeed, that he objects to or recommends against. It may be that we need to receive that if the government has not had any information about the view of Mr Lander QC before we finalise this process, but it should not hold up the house at this point.

We see, relative to other jurisdictions, the Lobbyists Bill before us as somewhat the skinny version. However, it does appear on the face of it to have aspects which are not repeated in other jurisdictions. Where the ideas for that have come from, I do not know—whether they are the thought bubbles of the Attorney, or whether they have had some deep, time-honoured and tested application in some other jurisdiction, we are yet to hear.

In essence, the Lobbyists Bill sets out a registration procedure. It sets out penalties—in fact, quite severe penalties—for someone who practices as a lobbyist in some manner without being registered. This bill requires there to be a significant disclosure of information which is not just the usual name and address or corporate entity which they are trading as but, in fact, to keep I think a fairly clear and specific diary of who they meet with, what the subject matter is of those meetings and communications and the like. I do not need to go through them: they are clear in the bill.

That, in a way, is protected by a web of confidentiality capacity, to be determined by the chief executive, who has power to declare that certain information that is disclosed is able to be kept confidential and not disclosed on the register; and power, in fact, for that to be cancelled. However, having made that determination, the protection of that confidentiality is to expire essentially within six months, and there does not appear to be any provision for extension of that. In any event, it is a little bit reversed, if I can say, to most other provisions because this is one where there is a capacity to keep something confidential (even though there is a sort of primary obligation to disclose but with the exemption capacity, as I have said), and that the information that is not disclosed is unable to be searched or revealed (or disclosed in particular) under freedom of information procedures.

I say that is a bit of a reverse situation because generally information that is created in most entities (departments and the like; registers, indeed), is in fact subject to FOI legislation, and the FOI Act makes provision and capacity for private information and commercial sensitive material against public interest-type clauses to protect it.

In this instance (this is the first time I have seen this type of regime; it might be novel, but nevertheless) it does seem a little odd because the list of exemptions to me does look particularly similar to what is in the FOI Act, that is, you really have some entitlement to have kept protected personal information of a confidential nature. The logical, usual one for most people in the Public Service, for example, or people on boards or employed by government, is to have their private residential address kept confidential for obvious reasons, and there is no reason why that would be disclosed. Sometimes their name is not made available, or that of associates.

Information that has a commercial or other value; information the disclosure of which would, or could reasonably be expected to, prejudice the commercial position of a person; information the disclosure of which would be contrary to the public interest—these all have a familiar ring of similarity to what is already in the FOI Act, but in this instance these particular groups of people have the privilege of secrecy for the first six months if they satisfy internally this process to the chief executive, and then it is open slather after that, although subject to some further order of it being kept secret. I do not understand why we have this exclusion of information from the register, and perhaps the Attorney will be able to enlighten us in response or in committee.

For obvious reasons there are a number of entities that are exempt under our FOI legislation, and for good reason—the DPP, various commissions, the police commissioner's information, for all the obvious reasons—and we do not take issue with that. However, if the government thought that this register should in some way be public as names but the information be exempt, then it should, it seems to me on the face of it, go through the normal exemption threshold considerations rather than us having what I would call a hybrid-type situation, where you get protection for a short time (I am not quite sure why), that it is time sensitive, apparently, to the extent that six months is supposed to resolve it all, or you have got to go back through some cumbersome process to reapply.

I do not understand why that is there. This register, like every other register—real estate agents, teachers, nurses; there are registers for just about everybody these days, including politicians—keeps records of these people and activities which they undertake. So, I would like some information to be provided on that.

The other aspect of this bill is to prohibit success fees. That is nothing new to us. When the Premier made a statement in the later part of 2014 in response to the ICAC annual report, he made statements to the parliament at that time indicating that this would be one of the issues that would be looked at arising out of the recommendations from the Independent Commissioner Against Corruption.

There were a number of others, like dealing with the statement of principles/code of conduct of members of parliament, which I think is about to come to us to be concluded, according to a recent announcement, and not before time, I would have to say. I will have a bit to say about that when it comes back before us eventually, but it seems like in a dim, dark past committee that I sat on with the Hon. Rob Lawson and the Attorney, we considered other regimes around the world and came up with the statement of principles that we were hoping at that stage would have some endorsement and would be promptly dealt with.

Several years later, the late Bob Such tried to advance it again but, it seemed, without any progress. About a decade later, we are now looking at it again and I will be glad when it does come before us. I will be very glad to look at some of the other issues, like dealing with emails which was another important aspect of consideration by the commissioner. He did in fact conduct a review, which he tabled either on the same day or shortly thereafter, outlining his recommendations for amendment to the whistleblowers act. That has not seen any light of day to date. Then of course we have—

The Hon. J.R. Rau interjecting:

Ms CHAPMAN: About a year ago, yes. Then we have the publication that, of course, predated even the Independent Commissioner Against Corruption, namely, by the then ombudsman, Mr Bingham, in respect of reforms that he recommended after a very specific inquiry into the freedom of information law.

There are a lot of things that need to be dealt with in this space of integrity which, if the government were genuine in their commitment to the open, transparent and accountable democratic process, particularly of the government, they will need to be adding on to this. But, at least we have the Lobbyists Bill; that is, at least, on the table.

I should just say, finally, there is also specific provision in the bill for prohibiting a person essentially being a lobbyist and a member of a government board or committee. You have to make a choice. It is not between the money and the box; it is between the money and the money, probably. Nevertheless, they have to make a choice. Again, we do not have the advice of the Independent Commissioner Against Corruption or any other report of inquiry before us to indicate where this has come from but, on the face of it, I have to say it seems logical that there should be some independence in that regard.

I am pleased to note that the prohibition against giving or receiving success fees has been included. That has had support in other jurisdictions. I think I may have said that the Premier did announce, subsequent to the annual report of the ICAC, that he would be making quite clear that any future legislation would include that prohibition, and he has honoured that commitment.

The application to members of the parliament and their staff has, I think, been resolved on the basis that there would be a prohibition on ministers doing any lobbying activity until two years after they leave ministerial office and, for parliamentary secretaries, ministerial staff and departmental executives, for a period of 12 months. That is the sort of light touch of exclusion relative, of course, to Queensland, where it is very much more extensive.

Obviously it is not unusual that we have restrictions on people going into business against each other when they have got out of a business; we have terms that apply, for good reason. We have clauses in contracts to prohibit, usually, the vendors from undertaking similar business activities for a period of five, six, seven or 10 years, or whatever. In this instance it is to protect the integrity of information that has come to the knowledge of these persons in the course of their ministerial role or support role to ministers. For obvious reasons that is protected, even protected against the inadvertent disclosure of information or action or failure to act, in certain circumstances, as a result of information they have.

We indicate our support for the bill. As far as the information being sought goes, it may be that if there has not been a report prepared by the commissioner to date consistent with his report to the parliament a year ago, or that there are aspects of this bill which he has recommended in any oral presentation, we would need to look at whether they should be included in this bill. That can be attended to between the houses. We support what is here, but what is concerning to us is that it comes with some endorsement by ICAC and an explanation, if there is any startling omission from his recommendations, that we give some consideration as to whether that can be included in another place. With those few words I indicate that the opposition will support the bill.

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:27): First, I would like to thank the speaker for the opposition, and I would like to thank her for the indication of support. Without going into too much detail, I think it is fair to say that this has been the subject of conversation between members of the opposition and the government, and I think it fairly reflects it. This is not something that we are bringing in here and surprising everyone with; it is something that we have tried to engage with people about. Hopefully, given the indication by the Deputy Leader of the Opposition, this will be passed through here; that is an indication that the bill will go through and that would be good, and it would be good that there is the enhanced regulation of this particular type of activity.

I can try to answer some of the matters that have just been raised, and it may be that we do not need to muck around with the committee stage. As to the exemptions, in particular I was taken to section 4(2)(d) and asked who we have in mind. At the moment, as far as I am concerned, I do not have anyone in mind. However, I did foresee the possibility that we did not necessarily foresee every circumstance in the preparation of this bill, and that we might inadvertently pull out some manifest unfairness to some group or other, and that there should be a facility to be able to accommodate that.

I would like to place on the record so that it is very clear, and I am talking here about the exemptions, the formula, which is basically this: 4(1) creates the blanket definition of lobbyist. Section 4(2) states that from that group you remove those people who 'holds office as a public official and communicates with the public official in the ordinary course of holding that office,' which is common sense. The next one did cause me a little bit of thinking but I hope I have captured there what we intended, which was:

If the person is a legal practitioner (holding a current practising certificate under the Legal Practitioners Act 1981) and communicates with the public official in the ordinary course of that person's profession as a legal practitioner.

What that was meant to capture was if somebody is a lawyer and their client says, 'I'm dealing with the government about some particular matter, I need some help,' then clearly they should be able to do that, if it is in the ordinary course of their servicing of that client, without necessarily having to be registered as a lobbyist. That, however, is not the same as a lawyer seeking out a whole bunch of clients specifically just to do that, and I think that is a distinction that should be borne in mind.

Paragraph (c) deals with the accounting world and we intend, in preparing the regulations, to have regard to whatever the appropriate qualifications are and we would speak to the accounting people about that. As I said, (d) is simply meant to be if we had missed an obvious group, or not so obvious group, and we would cause undue hardship by not having that facility—there it is. I think it is fair to say, as the deputy leader said in her remarks, there will be fewer exemptions caused by subsection (2) than in the present code. We intend the reach of this to be a little bit more extensive than the present code, that was part of the rationale for doing this.

Then, of course, at the end in subsection (4) we have a group of organisations, like charitable, educational, benevolent, employer organisations, employee organisations and such like, that you would expect not to be captured by this type of thing. What we have done is we have defined lobbying basically, then we have tried to exclude everybody from that definition except those people, in effect, whose business it is to be engaged on a project-specific basis to negotiate with government. So, hopefully, that is the effect of subsection (4), to draw a circle around that particular group of people.

As to the deputy leader's second question about ICAC, I have checked with departmental officers who are here to advise me and we do not presently have any further report from ICAC. I understand the commissioner would be presently in the process of preparing his annual report, which would in due course be produced to the parliament. If I remember correctly, it is a report to the parliament, not through me. The report would then, no doubt, in the ordinary course, be the subject of some communication between the Crime and Public Integrity Policy Committee and the commissioner.

Ms Chapman interjecting:

The Hon. J.R. RAU: I will come to that. The next point is that I can tell the deputy leader this: I have kept the commissioner appraised of the fact that we were working on this legislation. I have provided him with various copies as we have been drafting and working on it and I have invited him to provide me with feedback should he wish to offer any feedback about that. I am just checking but I do not believe he got back to us with any suggestions about things he would like us to change.

Ms Chapman interjecting:

The Hon. J.R. RAU: Or include, indeed. But I have definitely, on more than one occasion, discussed this matter with him, told him we were intending to do it and I have provided him with draft bills along the way. Without going into the detail of the conversation, I think it is fair to say that the commissioner was generally supportive of the proposal.

I am absolutely confident, having provided him with drafts, that if there were any matter about which he felt strongly he would have been able to write to me and advise me. Can I say that, if he subsequently comes to the view that this could be improved and he notifies me, he notifies the parliament through his annual report or he notifies the committee, then obviously I would look at that as well.

As to the next point raised by the deputy leader, which was to do with the register and the confidentiality, I will explain what the rationale here was. The way we have structured this, obviously, is that in order to be a lobbyist you must be on the register. The offence is to be behaving as a lobbyist without being on the register, so the register is an important thing, and there are things about how you get on and how you get off and suchlike. What happens as a result of being on the register is that you have to make an annual return, in effect, which provides, as the deputy leader indicated, a number of pieces of information.

The object of that exercise is that the register should be a public document. What we are basically trying to do is to elevate the transparency dimension of this so that any member of the public who has reason to be inquiring about either a lobbying individual or group, or indeed a corporate entity, should be able to search the register and ascertain what is going on. That would include, obviously, members of parliament and anybody else, so there is a strong transparency focus here.

The second point—and this is where the confidentiality aspect comes into it—is that, in doing this, I did actually engage with a couple of people who, in my view, are quite professional people who are presently involved in what you would have to describe as lobbying. In discussing the matter, a very good point was made to me, and I will make it to the Deputy Leader of the Opposition, and it is this: let's say that the deputy leader is a registered lobbyist and the deputy leader is engaged by a publicly listed company to do something. Let's say that it is, amongst the cognoscenti, known that, if that particular lobbying firm is engaged, it means something, if they know who the client is.

Potentially, not only could that be difficult, because it might be at a sensitive point in negotiations or whatever, but it could have the effect of odd impacts on the stock market, for instance, where you in effect wind up having what amounts to an early revelation of material, which really should be the subject of a trading halt and a statement to the Stock Exchange. The point I am trying to make is that there are many, many good reasons that, at a point in time, it is entirely justifiable, in the public interest and in the interests of commercial confidentiality, for the details of a particular record about a particular client not to be on that public register.

That said, my view was: 'That may well be the case at one point in time, but it's highly unlikely that that will continue indefinitely; in fact, it's almost impossible that it would continue indefinitely.' So the idea we have captured here is that you make the application to the chief executive and you say, 'Look, this is commercial-in-confidence; if people know we are lobbying for this company it is going to let cats out of the bag and there will be implications.' They make that application, it is accepted and then either the date on which the chief executive says that quarantine expires or 1 January next, whichever comes first, it is lifted, unless, of course, they were to make another application and then they would have to start the process all over again.

So this is not one of these situations where they get an exemption and the exemption travels ahead until somebody stops it. This is a case where they get an exemption which will disappear unless they take a step to reagitate and reinforce the grounds for the exemption. My expectation is that what will happen is we will have from time to time a few of these exemptions sought and granted, but that few of them would last very long and that at the end of a relatively short period these details would pop onto the register just as any others would, so that is really the point about that. I think they were really the only matters that the deputy leader raised, so with those few remarks that really concludes what I need to say about the matter.

Bill read a second time.

Third Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:41): I move:

That this bill be now read a third time.

Bill read a third time and passed.