Lobbyists (Restrictions on Lobbying) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 16 May 2019.)

Mr PICTON (Kaurna) (15:47): I rise to indicate that I am the lead speaker on the Lobbyists (Restrictions on Lobbying) Amendment Bill 2019. I also indicate that, as per the previous bill, for reasons I will outline, the opposition will be reserving our position at this stage, as we go between the houses. Unfortunately, we believe there have been some difficulties encountered by the Attorney-General in relation to this bill. Perhaps she has outsmarted herself. The Liberal Party took a commitment to the last election, and I quote:

…amend the Lobbyists Act to prevent any office bearer of the state governing body of a registered political party or an associated entity such as a union from becoming a registered lobbyist in [South Australia].

The reference for that is on the Strong Plan website. In May last year, it was reported that this legislation was only weeks away. That was published in InDaily: 'Marshall's lobbyist crackdown'. Around 12 months later, the legislation finally arrived in parliament, so it was not quite weeks away—maybe 52 weeks away.

I think that gives members a sense of just how slowly this Liberal government is moving. On 16 May 2019, a whole year later, InDaily published an article entitled, 'Crackdown backdown: unions escape net in lobbyist reforms'. I think it is useful to refer members to that article, which contains some very carefully crafted quotes from the Attorney-General. I would like to read out some very key passages for members. The article states:

However, she conceded today the Bill would take a different form after extensive legal advice and consultation.

'We had to look at questions of constitutional rights of communication,'

she told InDaily. The article then goes on to say:

She said the legislation would carry the same definition of associated entities as under the Electoral Act, which—while it identifies organisations that are 'financial members of a registered political party' or having voting rights within them—does not stipulate trade unions.

'We've had to look really clearly at constitutional questions [and] we've come back within the parameters of that advice…we have to ensure we're producing legislation that is enforceable,' Chapman said.

Towards the end of the article are the following paragraphs:

But Chapman insists the Bill still represents a 'strengthening of SA lobbying laws', saying: 'Our prohibition will make it clear that a person can be an official of a political party or a lobbyist, but not both.'

'Our election commitment was to prevent any office bearer of a political party, and of associated entities of parties, to lobby government officials—and that's exactly what these amendments do.'

I would now like to draw the house's attention to clause 7(2) of the bill, which inserts a new subsection (4) that appears to ban associated entities from lobbying unless they are registered. I would have thought that would capture many unions.

What is going on here? Has the Attorney-General been misleading in terms of her comments to the InDaily journalist? Has she allowed them to make a mistake and not corrected it? I am not sure what it is, but clearly there is an issue here that we seek the Attorney-General's correction on. It seems that it was always the Attorney-General's intention to capture unions, despite her false change of heart. The Attorney-General's own second reading explanation proves it. The first paragraph of her second reading explanation says, and I quote:

Today, I introduce a bill that relates to the government's election commitment to ban any office bearer of the state governing body of a registered political party, or an associated entity such as a union, from becoming a registered lobbyist in South Australia.

Let me just highlight a particular part of that paragraph: 'or an associated entity such as a union'. I am not sure whether it was a poor staffer who forgot to update the speech or the Attorney-General did not read it properly, but clearly there is a difference between her public statements in this regard, what the bill is saying and what her second reading explanation is saying. In summary, we have a bill that is 12 months late, a sloppy, at best, second reading explanation and an article where incorrect statements seem to have been made.

It is an absolute mess. Who knows how many other errors are littered through the bill? I would like to return to the briefing that the opposition received on the bill, which is obviously being led again by the shadow attorney-general in the other place, the Hon. Kyam Maher. It was abundantly clear that the government had not done their work properly and that they had not fully understood how their own bill worked.

Let me be very clear: we support a comprehensive lobbyist licencing regime—in fact, of course, we led the work on this during our time in government—but we cannot form a position on the bill without the additional information and follow-up briefing that we were promised. The things that we are after are a full list of the current associated entities, whether or not union shop stewards are captured, exactly how the bill applies to volunteers and what the government's working definition is of valuable consideration.

In that briefing, we also heard revelations that the Attorney-General is in possession of advice that indicates that in-house lobbyists in private firms, such as mining companies, banks or other large organisations and corporations, are required to be registered under the current lobbyist legislation. Given that the Treasurer, Rob Lucas in the other place, who we all know is running the government, has said that the law is the law and legislation should be enforced, private companies should be concerned that this means that the government might be coming after them.

The fine in section 5 of the act for engaging in lobbying without registration is $150,000 for a body corporate, $30,000 for a natural person or imprisonment for two years. Clearly, we have some advice that the Attorney-General is in possession of on this front that would mean that a whole range of different employees and a whole range of different corporations would be captured by the current act, and we need some clarification on what the government's approach to that is going to be.

I conclude by once again indicating that Labor will reserve our position on the bill until we receive the information and the follow-up briefing from the Attorney-General that we have been promised. It is disappointing that this has come here. It is another bill that we were promised more information on but that has been brought before the house without that information being provided, information that could lead the opposition to form an opinion properly on this matter, particularly when there are so many glaring contradictions between the statements of the government and what appears in the bill.

I hope that we get some clarity on these issues through the debate in this chamber or, if not, between the houses. We will certainly wait on that information before we form a detailed opinion on this bill.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (15:55): I thank the member for Kaurna for his contribution on behalf of the opposition, notwithstanding that it appears that, even with briefings, he is reserving the opposition's determination on whether they support this bill or not. The briefings have been provided. I note that the member raises what he claims are apparent inconsistencies between the contribution to the parliament and the recordings of Mr Tom Richardson in InDaily articles on 31 May 2018 to 16 May 2019. We do not accept those claims of inconsistency.

What I think the member answered in his own contribution is that advice had been taken on the implementation of the reform of the Lobbyists Act since coming to government. Accordingly, in the bill presented here for consideration there is a very specific and deliberate inclusion of the associated entities for which there is application of this legislative registration process to be consistent with that which is defined in the Electoral Act. Clearly, that enables there to be consistency for the purposes of interpretation.

The indication by the member for Kaurna that his party is contributing and is supportive of a comprehensive lobbyist register procedure is based on the fact that his side of the parliament, when in government, had initiated the process. I would like to remind the member for Kaurna that, whilst the former premier in this parliament had announced a lobbyist register protocol in relation to a registration arrangement, it took years for that to be converted to a statutory-based obligation.

That was very disappointing because, in light of the lobbyist laws around the country and the progression of statutory-based obligations in this regard, it seemed that the previous Labor administration in this state was not too happy to make provision on a statutory basis. Ultimately, that came to pass, but under considerable pressure. It was a little bit like the torturous development, approval and implementation of an Independent Commission Against Corruption.

Nevertheless, there is no question that, on our side of the house, prior to the election we made it absolutely clear, and we maintain our position, that you cannot hold office in a political party and be a lobbyist. We acted on coming into government to implement that obligation. The confusion or otherwise of the member for Kaurna or other members of his party is a matter for him. I do not know how much clearer we could have been in the briefings; nevertheless, we promote for the consideration and approval of this house this bill consistent with that promise to the people of South Australia. We are proud to present the bill to the parliament for its approval.

Bill read a second time.

Committee Stage

In committee.

Clause 1.

Mr PICTON: I have a question on clause 1 for the Attorney-General. Why was there such a delay between the Attorney-General's previous statements last year in May that this bill was weeks away and the eventual production of this some 12 months later? What was going on over those 12 months between the promise of this bill and the eventual production of this bill?

The Hon. V.A. CHAPMAN: I am advised, and I am personally familiar with the fact, that there had been a presentation for the drafting of legislation. There was a period in which there was advice, as I have indicated, in relation to constitutional validity that you referred to that has been reported in media publications and that went back and forth. Essentially, that is what occurred. Shortly after coming into government, this was a matter that was presented for development, along with our long list of legislative reforms consistent with our election promises.

Mr PICTON: In relation to this bill, who did the Attorney-General consult with and what was the summary of their different positions, understanding her usual provisos about internal stakeholders, etc.?

The Hon. V.A. CHAPMAN: Starting in the first round of consultation in 2018, each political party registered in South Australia, which I assume includes the Australian Labor Party—

Mr Picton: I would hope so.

The Hon. V.A. CHAPMAN: —you are a registered party—was invited to contribute to the bill. This includes all current lobbyists registered in South Australia as at that time: the Australian Industry Group, the Australian Professional Government Relations Association, Business SA, Crown Solicitor, Director of Public Prosecutions, Department of the Premier and Cabinet Lobbyist Register, Law Society of South Australia, SA Bar Association and SA Unions. I note that I did not have any response from him, but now that he is a member of the parliament, I suppose you can ask him.

I also sought contributions from SAPOL, and more recently on this last bill, the Australian Professional Government Relations Association, the Law Society of South Australia, all current lobbyists registered in South Australia (some of whom provided a response) and the Department of the Premier and Cabinet's SA Lobbyist Register, for reasons which I have previously explained. Obviously, you can follow those up if you want to get some information from somewhere other than the government agencies.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

Mr PICTON: In relation to the definition of 'office bearer', it is currently drafted as 'by whatever name called and whether or not validly appointed to occupy'. I am wondering why the Attorney-General has drafted it to capture people who have not been validly elected or appointed to a position, and what is the rationale behind invalid appointments and elections being captured?

The Hon. V.A. CHAPMAN: The definition of 'office bearer', which relates to whether someone is validly or not validly appointed to occupy the position, is important because it ensures that someone cannot escape liability by later claiming that there had been no valid appointment or election—i.e. there was not a quorum at the meeting—and make some argument as a defence to being excluded from any obligation in respect of this legislation.

As I think the Hon. Kyam Maher was advised at the briefing—I am not sure whether the member for Kaurna was also present—a list of other legislation with a similar provision to stop people from avoiding responsibility in relation to this matter, or being captured, is as follows:

the definition of 'officer' in section 3 of the Associations Incorporation Act 1985;

the Building Work Contractors Act 1995;

the Construction Industry Long Service Leave Act 1987;

the Conveyancers Act 1994;

the Criminal Assets Confiscation Act 2005;

the Environment Protection Act 1993;

the Explosives (Fireworks) Regulations 2016;

the Farm Debt Mediation Act 2018;

the Firearms Act 2015;

the Fisheries Management Act 2007;

the Hydroponics Industry Control Act 2009;

the Land Agents Act 1994;

the Land Valuers Act 1994;

the Lottery and Gaming Act 1936;

the Plumbers, Gas Fitters and Electricians Act 1995;

the Second-hand Dealers and Pawnbrokers Act 1996;

the Second-hand Vehicle Dealers Act 1995;

the Security and Investigation Industry Act 1995; and

the Tattooing Industry Control Act 2015.

Except for the first item, these all relate to sections identifying the definition of 'director'. For the reasons we have pointed out, these are items that serve to protect against the avoidance of the application of the act.

A good number of these were passed at a time when the member for Kaurna was a member of this place, a minister or an adviser to a minister. I know I was here in the parliament at a time when a number of these pieces of legislation were passed. Personally, I did not ever challenge the need for or the validity of this type of legislation because obviously it is important that we do not let people wriggle out of responsibility or application, as is consistent with all the other legislation replicated in this bill, for good reason.

Mr PICTON: Can the Attorney-General outline whether a union shop steward is captured in the definitions under clause 4 of the bill?

The Hon. V.A. CHAPMAN: I think this is perhaps where the confusion is in the member for Kaurna's mind. Just because someone is employed as a shop steward in a union does not of itself attract application. If the shop steward is a member of an associated entity in relation to the application of this act, or the union is a member of the associated entity, then we would expect that would occur.

The reason we cannot say such and such a union or every employee or people who are shop stewards in a particular union is that we do not know the particulars of that. It would have to be identified by them whether that applies to them or not. I expect there would be some people in the community who may be employed as shop stewards in one or another union who may have some association with one of the affiliated entities under the Electoral Act that would be brought into application. However, I am not here to make that judgement. That is a matter for the law to be applied and then for someone, if it applies to them, to register.

Mr PICTON: With respect, the Attorney-General says this is a matter for the law: we are drafting the law here, so I think it is quite important that we think through how this will apply to different groups of people and whether or not it is the parliament's intention to apply this to particular groups of people. As we have outlined, the government seems a bit confused on this front as to whether it will.

Can the Attorney-General outline an example of where she thinks a shop steward would have application under this, what the situations and prerequisites would be for it to apply to such a person and whether she thinks there is a situation where they would not? I think it is quite important—I am sure this may well even be reflected on in statutory interpretation, if it ever got to that point—that we know what the intent of the parliament is in regard to who this bill should apply to.

The Hon. V.A. CHAPMAN: The clue in relation to this is 'office holder'. That means if the particular person—and the member is using as an example a person who is a shop steward—is an office bearer or an employee of the organisation, or a volunteer who is authorised to act on behalf of the organisation, that is the first aspect that needs to be considered. If we assume that the same shop steward, who you have used as the example, then seeks to undertake work as a lobbyist, he or she clearly needs to then self identify whether they are required, according to those provisions, to register.

This is not a law which is prescribed where we can provide a list of all those who are in and all those who are out: it is a law that applies for anyone who wants to be a lobbyist. They have to register. If they are excluded from the opportunity to be a lobbyist by virtue of the status of other positions that they may hold, then they need to identify that; otherwise, they break the law.

Clause passed.

Progress reported; committee to sit again.