Cleaning up the lobbying pond
Given that the word “lobbyist” is often a euphemism for “pond scum” in the public vernacular, any efforts to improve the transparency of the lobbying sector must be welcomed.
To this end, the South Australian Parliament has enacted the Lobbyist Act 2015, as part of a package of laws designed to strengthen the state’s public integrity system. The Act provides welcome structure to the lobbying sector and assists in legitimising lobbying as a professional service through the proposed regulatory framework.
Notable aspects of the Act include:
- A fine of up to $150,000 for lobbying without being registered.
- Legislated requirements for registration as a lobbyist along with payment of an annual fee and lodgement of an annual return.
- Prevention from registration as a lobbyist if a person has certain criminal convictions.
- An outright ban of success fees with a fine of $30,000 or two years imprisonment for an individual; and fine of $150,000 or two years imprisonment for a body corporate for receiving or agreeing to receive a success fee.
- A two-year exclusion period for former government ministers from lobbying.
- A 12-month exclusion period for former parliamentary secretaries, government executives and ministerial staff from lobbying on matters they dealt with whilst in their former office.
- Prohibition of government board members from engaging in any lobbying activity.
These measures mirror the approach taken in other jurisdictions and reflect a consistency in approach to regulation among state governments.
The ban on success fees is particularly welcome as they represent an unacceptable integrity risk and are historically linked to examples of gross corruption and abuse of public office.
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The vast majority of lobbyists are ethical operators with great respect for governmental institutions and the law, however, lobbyists as a class are caricatured as irreparably corrupt by the general public. They are seen as slick and tricky middlemen ever-ready to leverage advantage for wealthy corporate clients through their connections and party political influence.
This perception is unfortunately grounded in fact, with New South Wales and Western Australia providing particularly egregious examples.
The likes of disgraced former politicians Brian Burke and Eddie Obeid continue to cast long shadows over the profession of lobbying. Their activities represent the reason why State Governments have sought safeguards through laws like the Lobbyist Act.
Despite these high-profile concerns, anti-corruption bodies have consistently found that lobbying is an activity of value with the potential to provide benefit through provision of succinct, well-reasoned, well-researched professional advice that can assist government decision-making.
The New South Wales Independent Commission Against Corruption’s ‘Investigating Corruption Risks Involved in Lobbying’ Report (2010) sets out the rationale underpinning legislation for regulation of lobbyists:
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"Any regulatory system for lobbying needs to address relevant corruption risks and public perceptions while recognising the general value of lobbying of government. This requires a balancing act between creating greater transparency and integrity, and ensuring that any system is not so onerous as to unnecessarily restrict the flow of information and representations to decision-makers."
Government is large, complex, distracted and sometimes myopic. It is often bogged down in process and subject to regular personnel change. Lobbying assists government to consult widely in a timely manner, and better understand the potential implications of its decisions.
Lobbying passes a public benefit test, provided it is conducted ethically. Transparency is fundamental to ethical lobbying and, as a broad statement of principle, any citizen should be able to know who is speaking to government and the reason for those discussions.
Rather than conspiring against the public, the work of lobbyists reflects the complexity of modern democratic governments and ministerial portfolios.
Lobbyists advocate for specific and vested interests but this of itself does not render their activity illegitimate or anti-democratic. Given the importance of business to the public sector for a range of reasons (tax, employment, service provision to name a few) it often makes sense to employ specialist government relations services and, in my experience, government is often pleased to deal with lobbyist due to being able to speak a common language with a shared understanding of how government works.
Through the Lobbyist Act 2015, the rules for interaction between lobbyists and government will become much clearer. It is entirely right that those who take up the profession of lobbying should be regulated in the same manner as other professional service providers, including hefty fines and possible prison sentences for breaching the law.
Despite the cynicism attached to political activity and the low public standing in which lobbyists and politicians are generally held, these changes will create greater transparency and guard against corrupt behaviour. This is good law which will materially improve public integrity measures in our State.
Here’s to a cleaner pond.
David Scotland is director of lobbying firm, Outcome Advisory.
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