Lobbyists (Restrictions on Lobbying) Amendment Bill

Committee Stage

In committee (resumed on motion).

Clause 5.

Mr PICTON: Before we were rudely interrupted by the education people, I was about to ask: will the Attorney-General confirm whether she is in possession of advice that indicates that in-house lobbyists in private firms, such as mining companies, banks or consultancy companies, are required to be registered under the current unamended lobbyists legislation? If so, what is the date of that advice and when do you intend to start enforcing that advice in relation to the current legislation?

The Hon. V.A. CHAPMAN: I am advised that the advice was received in relation to the parties that you have identified. That was remedied. They do not apply in relation to this bill, so I think that has resolved the matter.

Mr PICTON: I think we might take that up further in the upper house. I am wondering if the Attorney-General can take us through the elements of what constitutes lobbying—for instance, communication with a member of parliament or communication on behalf of a third party for valuable consideration. Also, does the Attorney-General consider that such practices would apply to the Liberal Party's organisation, FutureSA?

The Hon. V.A. CHAPMAN: To the second matter, for obvious reasons my adviser does not have a clue what FutureSA is, but if the member is referring to the entity that I would expect, within the definition of the Electoral Act, to be an associated entity of the Liberal Party, I expect that it would apply. The first question has now escaped me. You wanted me to redefine for you what the meaning of 'lobbying' is other than what is there in new section 4(3)?

Mr Picton: What are the elements?

The Hon. V.A. CHAPMAN: The adviser has just pointed out that, in relation to the act rather than the amendment at this point, current section 4 provides:

…a person will be taken to engage in lobbying if the person, for money or other valuable consideration—

that is one—

communicates with a public official—

and there is detail there about whether it is in writing, on the phone or other electronic means—

on behalf of a third party for the purpose of influencing the outcome of—

I think that is the third critical area, and it relates to legislation, approvals, awarding of contracts or other exercise by the official of his or her functions or powers. That is currently in the act, and the member might want to have a look at that. For the purposes of the amendment under the clause that we are considering, clause 5, the amendment does two things: delete subsection (3) and substitute explanatory subsections, as illustrated there for the avoidance of any doubt. So it is adding to the specific in or out of application.

Mr PICTON: Can the Attorney-General outline what the difference is between a client and a third party, and does the Attorney-General consider that a member of a union is either a third party or a client?

The Hon. V.A. CHAPMAN: I am not sure that I actually understand fully the question of whom, I suppose is the logical further extension of that, because again I think that the member is under the misapprehension that I am somehow or other able to identify to whom you might be referring as the third party or client. I am not sure I can answer that, but perhaps if you could just make it a little bit clearer we will see how we go.

The CHAIR: Member for Kaurna, we have had three questions.

Mr PICTON: I was invited by the Attorney-General to clarify—

The CHAIR: The Attorney is happy, so you have the call.

Mr PICTON: The Attorney is happy; we are all happy. What I am really trying to get at is that you have definitions of a client and you have definitions of a third party. How do you define those? I know that the Attorney-General is trying to say, 'Well, I can't say who is who. They've got to work themselves out.' I think it is actually quite important that the parliament has a clear idea in its head of what it is defining these terms as because, if we cannot work it out, then there is no way anybody else can work it out.

I do not think we should just be handballing this all to the courts and say, 'Well, the courts should have to define this,' because I think that proves that we do not really have a clear definition of what we are legislating for here, particularly given that we know that the confusion in this legislation is about unions and union membership. Could you be a client if you are a member of a union, or could you be a third party if you are a member of a union? We seek some clarification on that.

The Hon. V.A. CHAPMAN: Perhaps the member for Kaurna can have a look at the original act again. Under section 4(4), there is already a definition of a designated organisation, and I will refer back to that in a minute. The provision that we are making in this bill is to add in a definition of 'client'. Let me first go to what a designated organisation is. Subsection (4) provides:

(a) an employer organisation, employee organisation, professional organisation or some other organisation established to represent the industrial or professional interests of its members; or

(b) an organisation established for a charitable, educational, benevolent, humanitarian, religious, recreational, sporting or philanthropic purpose; or

(c) or an organisation, or an organisation of a kind, prescribed by regulation.

The insertion under this bill, if passed, will add a definition of 'client', which the member will realise I have just read out—it is already in the bill—which is proposed to be 'of a designated organisation, means a person who is being assisted or represented by the designated organisation'. That is the connection that I think is relevant for the purposes of understanding that. I think 'client' is very clearly defined. The applicability of the new 4(3) states:

For the purposes of subsection (1), a person will not be taken to communicate with a public official on behalf of a third party if the third party is a client of a designated organisation and the person, being an office holder within the organisation, communicates with the public official in the ordinary course of holding that office.

I am not sure whether that makes it clearer or not; I hope it does. It may not be crystal clear. Obviously the member had the opportunity to ask at the briefing and perhaps he did not understand at that stage, but when the member is looking at this legislation I urge him to follow through that and it will identify that within the 'Meaning of lobbying' there is a provision under subsection (3) which deals with this question of client and/or third party as to when a person will not be taken to have communicated.

Clause passed.

Clause 6 passed.

Clause 7.

Mr PICTON: In regard to clause 7(2) of the bill, which inserts a new subsection (4), does the Attorney-General consider that a union is an 'associated entity'?

The Hon. V.A. CHAPMAN: I hope this helps the member to understand this and one of the important reasons why there is consistency proposed in the definitions in this bill with the Electoral Act. The list of associated entities that are already identified on the Electoral Commission website is very interesting, but some unions are named on it. Some associated parties of the Liberal Party of Australia, SA Division, are also named on it.

The items that the Electoral Commissioner has identified as an associated entity, if this helps, listed up to 2017, are the Australian Rail Tram and Bus Industry Union SA/NT Branch, the Australian Services Union SA/NT Branch, the Australian Workers' Union SA Branch, the Australasian Meat Industry Employees' Union SA and WA Branch, the Automotive Food Metals Engineering Printing and Kindred Industries Union SA Branch, the Construction, Forestry, Mining and Energy Union—Forestry and Furnishing Products Division SA District, the Construction, Forestry, Mining and Energy Union—Construction and General Division SA Branch—

Mr PICTON: I get the gist. You do not have to read it all.

The Hon. V.A. CHAPMAN: There are only a few more that I think are all in your category for your party. They include the Communications Electrical Plumbing Union—Communications SA Division, the Communications Electrical Plumbing Union—Electrical Division SA Branch, the Community and Public Sector Union—PSU Group, the Finance Sector Union SA/NT Branch, and the Health Services Union SA/NT Branch. Then there are a number of other entities which relate to other parties, I would expect.

I notice SA Progressive Business Inc. is there. I think that is one of yours. The list also includes the Shop Distributive and Allied Employees' Association SA Branch—now we are getting to the powerful lot—the Textile, Clothing and Footwear Union of Australia, New South Wales/South Australia/Tasmania Branch, the Transport Workers' Union of Australia SA/NT Branch the United Fire Fighters Union of SA and the United Voice SA Branch. The top people are at the bottom. Anyway, as at 2017, they were published by the Electoral Commission on their website as to what they had identified as associated entities.

Mr Picton interjecting:

The Hon. V.A. CHAPMAN: Yes, because we are applying the same definition. I hope that helps. I do not know whether the Australian Labor Party have any other unions that since 2017 have voting rights or positions of influence in relation to the South Australian division of the Australian Labor Party. I do not know that I can help anymore in that regard. I suggest the member keeps an eye on the list from time to time. One would hope, though, that in relation to setting laws that are consistent with the same definitional pathways, that will assist those to be able to identify if, of course, they want to be a lobbyist.

Mr PICTON: In relation to clause 7 and with the benefit of the Attorney-General's confirmation in regard to associated entities, say if I were the chair of one of those associated entities, whether it be FutureSA, as the Attorney-General has outlined, or one of the other ones, if you are in that position of an associated entity and you make representations to the government, does that constitute lobbying?

What if you happen to feel strongly about something entirely removed from the ordinary interests of that body, for instance, a conscience issue—and the Attorney-General is bringing into the house a bill in relation to sex work—if you are making representations in relation to that issue that you feel strongly about, that has no relation to the associated entity, say FutureSA, that you are involved in, and you made representations to your local MP or another representative or public official, would that constitute lobbying? In that case, who would be the third party and what would be the valuable consideration that applied there?

The Hon. V.A. CHAPMAN: I refer the member again to section 4 of the current act, which sets out the meaning of lobbying. What the member is referring to is a member who is the chair of an organisation, an associated entity, and would therefore be captured and need to be registered for the purpose of lobbying, which is where, for money or other valuable consideration, they do certain things to influence contracts, legislation, etc.

If the chairman in that example wants to present a view on something for which they are not receiving money or valuable consideration—they might be a consumer of services of sex workers and want to be able to put their view to me in relation to the decriminalisation of that industry—then it would be my view that I do not think that would apply. They would not be doing it for money or other valuable consideration unless, of course, they own a brothel.

All these things have to be taken into account as to what they are actually doing. We do not expect that any act of any communication at any time necessarily fits into the meaning of lobbying. That is what has to qualify. People have to want to do that job for that benefit in those circumstances to have an obligation to be registered, and then are disqualified from being able to be registered if they hold other office. That is the process.

The member seems to be a bit confused about that, but I have tried to make it crystal clear. I might say for the purpose of the record that I do not have any knowledge whatsoever of whether the chairman of FutureSA, assuming we even have one, is a user of sex work services. I make the point that, if he or she had the desire to convey to me their view on the sex work decriminalisation bill, I would be happy to hear from them.

Mr PICTON: That was an unexpected turn. I would like to extrapolate that point to another particular scenario. A more realistic proposition might be that somebody from an associated entity, let's say the chair of FutureSA, might go to the government and say, 'Person X would be a great person to be on the board of Infrastructure SA,' for instance. They try to lobby the government to appoint that person to be on a board. Does that lobbying fall within the definition of lobbying in terms of the act? Is there a third party? Is there valuable consideration that would apply to such an action?

The Hon. V.A. CHAPMAN: I hope I have this clear. As you have indicated, if that person proposing the nomination is acting on behalf of a third party, they would be prohibited from doing that if that was outside their role as the chairman of FutureSA.

Mr PICTON: What is the valuable consideration about that?

The Hon. V.A. CHAPMAN: For the benefit of this example, I do not think that it is part of the usual operations of FutureSA to give advice in relation to boards.

The Hon. S.C. MULLIGHAN: Also in relation to clause 7, could the Deputy Premier advise what union activities are captured by the bill and why they would be captured by the bill?

The Hon. V.A. CHAPMAN: I am not sure whether the member missed the list of different unions. He probably knows more about what they do in their normal course of business than I do. If they are purporting to act outside the business of the union to lobby government, they would not be able to do so. I do not know the particulars of the charter or current usual work of the Australian Transport Workers Union; the member might.

The Hon. S.C. MULLIGHAN: Protesting against privatisation.

The Hon. V.A. CHAPMAN: All sorts of things, no doubt. I am saying that they are obviously in a position to present on behalf of the union, just as the member for Cheltenham, who was formerly the head of SA Unions, used to put submissions to me as the advocate on behalf of that body's member unions in relation to proposals that we were presenting. That is an important role to have. That is not barred. What is barred is to lobby outside the charter of the organisation.

The Hon. S.C. MULLIGHAN: Just to clarify the Deputy Premier's rationale for my benefit, was that because those regular activities of a trade union are protected by what I understand to be section 5—the ordinary activities captured by the charter of the unions—so it would require a union to be communicating with a decision-maker of government where there is a third party and there is some valuable consideration involved or at stake potentially as a result of those communications?

The Hon. V.A. CHAPMAN: Yes and yes.

The Hon. S.C. MULLIGHAN: Could I ask what organisations the Attorney-General is considering capturing via regulation?

The Hon. V.A. CHAPMAN: I do not have any proposed at this point.

The Hon. S.C. MULLIGHAN: Does that mean the capacity to do so is superfluous?

The Hon. V.A. CHAPMAN: No, it does not mean that it is superfluous because there is no identified base for granting a regulation to prescribe a particular entity. I know that the member has been concerned about this in the past and suggested that there should not be some catch-all legislation to cover other entities by prescription. Previously, the member has presented that on the basis that we need to know exactly what is covered and that there should not be any opportunity for the extension of that.

As the member well knows, the purpose of such an addition is to ensure that there is the capacity to capture and be flexible for the development of other bodies if we were to introduce a new definition of organisation or a new entity. Obviously, we have trust companies and bodies and we might invent another one, in which case we need to add to the definition the entity to be captured for what is an organisation. It allows for the flexibility of that. I do not believe there is any other reason for it. I will just check with my adviser. She is shaking her head, so I do not think I can add anything further.

The Hon. S.C. MULLIGHAN: I am just going to avail myself of a brief personal explanation to clarify the unfortunately ill-put—

The CHAIR: Are you seeking clarification?

The Hon. S.C. MULLIGHAN: —comments of the Deputy Premier. I think she refers to a previous committee stage of a previous bill that we discussed regarding the establishment of and access to a database for child protection purposes. In that context, indeed I did raise those concerns, but that is not the same context in which we are raising this. I think this is more just the capacity. In case we have failed to think of something up-front and think of something later on, we do not have to come back to the parliament; would that be correct, Deputy Premier?

The Hon. V.A. CHAPMAN: Correct.

Clause passed.

Title passed.

Bill reported without amendment.

Third Reading

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General) (16:49): I move:

That this bill be now read a third time.

Bill read a third time and passed.