Recommendations for corruption prevention
The ICAC has made 17 recommendations to improve the regulation of lobbying in NSW, as follows.
The Commission recommends that the NSW Government enacts legislation to provide for the regulation of lobbyists, including the establishment and management of a new Lobbyists Register.
The Commission recommends that the NSW Premier develops a model policy and procedure for adoption by all departments, agencies and ministerial offices concerning the conduct of meetings with lobbyists, the making of records of these meetings, and the making of records of telephone conversations. As a minimum, the procedure should provide for:
a. a Third Party Lobbyist and anyone lobbying on behalf of a Lobbying Entity to make a written request to a Government Representative for any meeting, stating the purpose of the meeting, whose interests are being represented, and whether the lobbyist is registered as a Third Party Lobbyist or engaged by a Lobbying Entity
b. the Government Representative to verify the registered status of the Third Party Lobbyist or Lobbying Entity before permitting any lobbying
c. meetings to be conducted on government premises or clearly set out criteria for conducting meetings elsewhere
d. the minimum number and designation of the Government Representatives who should attend such meetings
e. a written record of the meeting, including the date, duration, venue, names of attendees, subject matter and meeting outcome
f. written records of telephone conversations with a Third Party Lobbyist or a representative of a Lobbying Entity.
The Commission recommends that the NSW Premier requires all government agencies and ministerial offices to ensure that they have adequate measures in place to comply with the State Records Act 1998.
The Commission recommends that the NSW Government amends the definition of "open access information" in the Government Information (Public Access) Act 2009 to include records of Lobbying Activities for which there is no overriding public interest against disclosure.
The Commission recommends that all agencies subject to the operation of the Government Information (Public Access) Act 2009 proactively release lobbying information for which there is no overriding public interest against disclosure, including by publishing that information on their websites.
The Commission recommends that the NSW Government develops a new code of conduct for lobbyists, which sets out mandatory standards of conduct and procedures to be observed when contacting a Government Representative. The code should be based on the current NSW Government Lobbyist Code of Conduct, and include requirements that lobbyists must:
a. inform their clients and employees who engage in lobbying about their obligations under the code of conduct
b. comply with the meeting procedures required by Government Representatives with whom they meet, and not attempt to undermine these or other government procedures or encourage Government Representatives to act in breach of them
c. not place Government Representatives in the position of having a conflict of interest
d. not propose or undertake any action that would constitute an improper influence on a Government Representative, such as offering gifts or benefits.
The Commission recommends that the legislation, enacted in accordance with Recommendation 1 of this report, includes a provision that a Government Representative not permit any Lobbying Activity by a Third Party Lobbyist or any person engaged by a Lobbying Entity, unless the Third Party Lobbyist or the Lobbying Entity is registered on the proposed Lobbyists Register.
The Commission recommends that all Third Party Lobbyists and Lobbying Entities be required to register before they can lobby any Government Representative. This register would comprise two panels; one for Third Party Lobbyists and one for Lobbying Entities. Both Third Party Lobbyists and Lobbying Entities would disclose on the register the month and year in which they engaged in a Lobbying Activity, the identity of the government department, agency or ministry lobbied, the name of any Senior Government Representative lobbied, and, in the case of Third Party Lobbyists, the name of the client or clients for whom the lobbying occurred, together with the name of any entity related to the client the interests of which did derive or would have derived a benefit from a successful outcome of the lobbying activity.
The Commission recommends that an independent government entity maintains and monitors the Lobbyists Register, and that sanctions be imposed on Third Party Lobbyists and Lobbying Entities for failure to comply with registration requirements.
The Commission recommends that the new code of conduct for lobbyists contains a clear statement prohibiting a lobbyist or a lobbyist's client from offering, promising or giving any gift or other benefit to a Government Representative, who is being lobbied by the lobbyist, has been lobbied by the lobbyist or is likely to be lobbied by the lobbyist.
The Commission recommends that, consistent with restrictions currently contained in the Australian Government Lobbying Code of Conduct, the proposed lobbying regulatory scheme includes provisions that former ministers and parliamentary secretaries shall not, for a period of 18 months after leaving office, engage in any Lobbying Activity relating to any matter that they had official dealings with in their last 18 months in office. The Commission also recommends that former ministerial and parliamentary secretary staff and former Senior Government Representatives shall not, for a period of 12 months after leaving their public sector position, engage in any Lobbying Activity relating to any matter that they had official dealings with in their last 12 months in office.
The Commission recommends that the new lobbying regulatory scheme includes a prohibition of the payment to or receipt by lobbyists of any fee contingent on the achievement of a particular outcome or decision arising from a Lobbying Activity.
The Commission recommends that the NSW Government amends the Model Code of Conduct for Local Councils in NSW or otherwise introduces a protocol for the regulation of contact between council staff and applicants for development proposals (including those acting forapplicants), similar to that established by the NSW Department of Planning but taking into account the circumstances and resources of local government.
The Commission recommends that the NSW Government amends procedures for the making of applications to local councils that require council approval, determination or decision to include provision for a declaration by applicants of affiliation with any council officer. In this instance, affiliation means by way of family, close personal friendship, or business interest with the council officer in the previous six months. Applicants should have brought to their attention the existence of criminal sanctions for false declarations, and that the obligation to disclose an affiliation is ongoing until the conclusion of all council determinations, approvals or decisions with regard to the application.
The Commission recommends that sanctions should apply to applicants who submit a false declaration.
The Commission recommends that all local councils implement procedures that:
a. necessitate an assessment of whether an application, in which a declaration is made that an affiliation exists, requires management
b. require the management of such applications to avoid where possible, or supervise if necessary, the role of the affiliated council officer.
The Commission recommends that the NSW Government amends the Model Code of Conduct for Local Councils in NSW or otherwise introduces a protocol that council officers engage only with applicants who have submitted a declaration of affiliation.