Lobbying and the NSW public sector - the regulation of lobbying, access and influence in NSW (Operation Eclipse)

Recommendations for corruption prevention

Recommendation 1

That the Lobbyists Code of Conduct be renamed the “Lobbying Code of Conduct” and imposes standards and obligations on public officials with regard to how lobbying proposals are received, considered and determined.

These standards and obligations will be consistent with the obligations at law that apply to the discharge of public functions and the exercise of public powers.

Recommendation 2

That the “Lobbying Code of Conduct” includes general principles that a public official must adhere to when receiving, considering and determining a lobbying proposal, including the obligations:

• to act honestly, impartially and disinterestedly
• to act in the public interest and not for any extraneous purpose
• not to act improperly, including by improper preferencing or favouritism.

Recommendation 3

That the “Lobbying Code of Conduct” also sets out some detailed standards and obligations including:

a) a prohibition on undocumented or secret meetings and communications with lobbyists, which entails obligations to:

i. document all communications with lobbyists, including those held away from government premises, apart from immaterial or ephemeral communications

ii. avoid discussing substantive matters with lobbyists in social settings

b) an expectation that a public official makes all reasonable efforts to seek the views of all parties whose interests are likely to be affected by the adoption of a lobbying proposal

c) a prohibition on improper preferential treatment of a lobbyist on the basis of any existing or former relationship (for example, a conflict of interest situation)

d) that a public official should discourage lobbying representations relating to proposals in situations where there are formal assessment procedures in place for determining the merits of the proposal, and that these procedures (for example, those relating to development applications, tenders, grants and unsolicited proposals) offer a more suitable channel through which representations can be made

e) that a public official must not divulge information to lobbyists that would provide them with an unfair advantage over other interested parties, including other lobbyists

f) a requirement to report any reasonably suspected breach of the “Lobbying Code of Conduct” to the lobbying regulator.

Recommendation 4

That, with respect to the proposed “Lobbying Code of Conduct”, the obligations on, and oversight of, government officials should extend to circumstances where an official is “lobbied” by a person or entity acting in their/its own interests; that is, not “representing the interests of others”.

Recommendation 5

That the lobbying regulator be empowered and resourced to:

• develop minimum standards and a model policy relating to interactions with lobbyists and others making representations to government, which should:
  • address recordkeeping, disclosure of records and protocols for organising and conducting meetings
  • prohibit undocumented or secret interactions with lobbyists or other persons making representations to government

• assess and report on agencies’ compliance with minimum standards
• give advice to agencies and individual government officials about compliance with minimum requirements and better practice
• liaise with organisations such as the State Archives and Records Authority and the Information and Privacy Commission
• direct an agency or public official to provide any lobbying-related documents or records. Such a direction would operate in a manner similar to the power in s 15 of the State Records Act 1998. In addition, the lobbying regulator should, subject to a public interest test, have the power to direct an agency to make public any document or record concerning lobbying communications.

Recommendation 6

That all public sector agencies subject to the Lobbying of Government Officials Act 2011 (the LOGO Act) be required to adopt policies and procedures that conform to minimum established standards issued by the lobbying regulator.

Recommendation 7

That all professional lobbyists (third-party lobbyists and in-house lobbyists) be required to register with the lobbying regulator and make entries into the NSW Lobbyists Register. Exemptions for organisations that are small or lobby infrequently should apply (based on the Scottish or Canadian systems). As is currently the case with third-party lobbyists, all lobbyists should:

• provide relevant details about their organisation and staff that engage in lobbying activities
• complete mandatory training
• disclose if they represent a foreign principal
• file statutory declarations with the lobbying regulator.

Recommendation 8

That all regulated lobbyists on the Lobbyists Register should disclose:

• date and location where face-to-face lobbying communications took place
• the name and role of the government official(s) being lobbied
• a description of their lobbying communications
• a description of the purpose and intended outcome of their lobbying communications
• whether lobbying was undertaken on behalf of another party.

Exemptions, similar to those in Scotland and Ireland, should be introduced.

Recommendation 9

That lobbyists should file information electronically that is then automatically published on the Lobbyists Register. The register should allow any person to alert the lobbying regulator of any information that is considered missing or inaccurate.

Recommendation 10

That the lobbying regulator should have powers to determine whether a person or entity is required to register and whether the information required for the Lobbyists Register is accurate and up-to-date. This could include issuing information notices and making use of the Lobbyists Watch List. Failure to register may require the lobbying regulator to provide an adequate opportunity to comply, as there is with third-party lobbyists.

Recommendation 11

That, in order to reduce the administrative burden, lobbyists required to be registered in NSW should be permitted to provide or rely on registration documentation filed with other jurisdictions, such as a jurisdiction under the Commonwealth. This could include relevant statutory declarations made in order to satisfy fit and proper person requirements.

Recommendation 12

That the diary and overseas travel information of ministers and parliamentary secretaries should be published:

• monthly, not quarterly
• in a single, searchable document or database formatted for easy access to enable public scrutiny
• displaying each minister’s name against his/her portfolio.

Recommendation 13

That the NSW Government creates a pre-set menu of options that must be used to indicate the purpose of each meeting disclosed in the diary summaries of ministers. These options could be based on the categories of lobbying set out in s 4(1) of the LOGO Act or another classification that adequately covers the types of disclosable meetings held by ministers. The individual ministers ultimately should be responsible for supplementing the indicated entry by adding a clear description of the specific purpose of the meeting.

Recommendation 14

That the LOGO Act be amended to improve oversight of post-separation employment provisions by providing that the lobbying regulator may require any relevant former public official during the cooling-off period, who has a role in an organisation that employs lobbyists (whether or not a lobbyist themselves), to provide it with information concerning:

a) the terms and conditions of any employment or engagements undertaken by former public officials in the cooling-off period

b) the nature of any employment or engagement referred to in (a)

c) whether any employment or engagement undertaken in the cooling-off period has or does involve information obtained during his/her period as a public official

d) whether any employment or engagement undertaken in the cooling-off period involves or relates to any former portfolio functions or responsibilities pertaining to his/her former position as a public official.

Recommendation 15

That the LOGO Act be amended to restrict ministerial and parliamentary secretary advisers of sufficient seniority from engaging in any lobbying activity relating to any matter that they had official dealings with in their last 12 months in office, for a period of 12 months after leaving office, except with the approval of the lobbying regulator. Based on criteria published by the lobbying regulator, the restriction period could be removed, modified or made subject to conditions.

Recommendation 16

That the LOGO Act be amended to mirror the provisions of s 16 of the Gaming and Liquor Administration Act 2007. This would provide secretaries and agency heads with authority to designate high-risk roles and associated “key officials” where appropriate.

Officials in such roles would be subject to a six-month restriction on employment in certain areas related to their public duties. Based on criteria published by the lobbying regulator, the restriction period could be removed, modified or made subject to conditions.

Recommendation 17

That, in the absence of any other new measures to reduce the risks associated with lobbying by former public officials, the LOGO Act be amended to introduce a “Former Public Officials” list, to be managed by the lobbying regulator. For a period of four years after leaving office, all former public officials involved in lobbying activities would be required to ensure they are named on this list, including those working for third-party lobbyists.

Recommendation 18

That the NSW Government:

• creates a dedicated NSW lobbying commissioner whose primary purpose is to regulate the LOGO Act. The lobbying commissioner could head a standalone lobbying commission, or serve within an existing oversight agency
• provides the lobbying regulator with additional resources and powers to carry out the expanded functions set out in this report.

Recommendation 19

That the role of the lobbying regulator be clarified by creating clear legislative provisions that allow it to:

• oversee the conduct of both public officials and lobbyists under the “Lobbying Code of Conduct” and LOGO Act, including the criminal, administrative and ethical aspects of the regulation
• establish formal processes for accepting complaints and referrals in relation to lobbying matters
• have powers with respect to auditing compliance
• investigate suspected breaches (including of its own initiative) and make referrals for further investigation or sanction (if required)
• publish and disseminate any relevant findings
• have an advice-giving and standard-setting function.

Recommendation 20

That the LOGO Act be amended to give the lobbying regulator responsibility for setting the conditions of the Lobbyists Watch List.

Recommendation 21

That the requirement for ministers and parliamentary secretaries to publish summaries from their diaries should be set out in the regulation to the LOGO Act rather than a Premier’s Memorandum. The lobbying regulator should be responsible for compliance.

Recommendation 22

That the NSW Government gives the lobbying regulator power to investigate and report on indirect lobbying that involves alleged unlawful and/or dishonest conduct.

Recommendation 23

That the NSW Parliament ensures that induction training for new members of Parliament is extended to existing members and addresses the administrative and ethical requirements of public officials in relation to lobbying. Such training should also be mandatory for parliamentary and ministerial staff.

Recommendation 24

That the Lobbyists Code of Conduct be amended to prohibit lobbyists (as defined in the LOGO Act) from offering, promising or giving gifts or other benefits to a public official who is, has been, or is likely to be lobbied.

Recommendation 25

That any fundraising event, where an attendee pays for any form of exclusive or private access to a minister, should be classified as a “scheduled meeting” for the purposes of Premier’s Memorandum M2015-05 and consequently be disclosed in published summaries of ministerial diaries – along with the fact that it was paid access. This information should be published irrespective of whether any lobbying takes place.

Recommendation 26

That clause 13 of the Lobbyists Code of Conduct applies to all classes of lobbyist. However, this should not prevent members and supporters of a political party from lobbying in relation to policy issues.

Recommendation 27

That the prohibition on paid advocacy – as outlined in clause 2(a) of the Members’ Code of Conduct (Legislative Assembly) and the Members’ Code of Conduct (Legislative Council) – be extended beyond the promotion of matters in the NSW Parliament or its committees, to any communication with any other public officials, and that clause 7A of the Constitution (Disclosure by Members) Regulation 1983 (relating to disclosure) be amended accordingly.

Recommendation 28

That the NSW Government establishes a “Lobbying Reform Panel” comprising appropriately qualified persons to examine and formulate proposed legislative reforms. Appropriate secretariat services for the panel should be provided.

Recommendation 29

That, over a 12-month period, the “Lobbying Reform Panel” undertakes the required work under recommendation 28 and, by the end of the 12-month period, the panel provides a report setting out the provisions it recommends be incorporated into revised legislation.

Responses to ICAC recommendations

The action plans posted below have been provided by the NSW Government in response to the ICAC’s recommendations. Their publication here is to show the status of the responses. It does not constitute approval or endorsement by the Commission.

Plan of Action - NSW Government