Regulation of lobbying

General

Is lobbying self-regulated by the industry, or is it regulated by the government, legislature or an independent regulator? What are the regulator’s powers?

At a federal level, lobbying activities in Australia are administered and regulated by the Secretary of the Department of the Prime Minister and Cabinet through the Lobbying Code of Conduct (the Code) and the Register of Lobbyists (the Register). Lobbying activities at a state and territory level are regulated by the respective state or territory government authority.

The Code does not grant the Secretary of the Department of the Prime Minister and Cabinet express powers to investigate or penalise breaches of the Code. Rather, the Code states that a government representative who becomes aware of a breach of the Code must report details of the breach to the Secretary. The effectiveness of the Code is enforced not through penalties and investigatory powers but instead through the presumption that government representatives will not willingly engage with a person who is known to be in breach of the Code.

Although government officials administer the Code and Register, there is not a public perception that political interests conflict with the intended goal of transparency of the regime.

The Australian government enacted the Foreign Influence Transparency Scheme Act 2018 (Cth) (the Scheme) on 29 June 2018, which requires registration by persons undertaking registrable activities ‘on behalf of’ a foreign principal for the purpose of political or governmental influence, and for those registrants to meet ongoing reporting obligations, including disclosing information about the nature of their relationship with the foreign principal and activities undertaken pursuant to that relationship. The requirement to register will commence on a date to be proclaimed or by 29 June 2019 and will be in addition to lobbyists’ existing obligations under the Code.

Definition

Is there a definition or other guidance as to what constitutes lobbying?

Code

Lobbying activities are defined under the Code as communications with a government representative in an effort to influence government decision-making, including the making or amendment of legislation, the development or amendment of a government policy or programme, the awarding of a government contract, or the grant or allocation of funding.

The definition of lobbying activities does not include:

  • communications with a committee of Parliament;
  • communications with a minister or parliamentary secretary in his or her capacity as a local member or senator in relation to non-ministerial responsibilities;
  • communications in response to a call for submissions, petitions or communications of a grassroots campaign nature in an attempt to influence a government policy or decision;
  • communications in response to a request for tender;
  • statements made in a public forum; or
  • responses to requests by government representatives for information.

Scheme

‘Parliamentary lobbying’ in Australia for the purpose of political influence on behalf of a foreign government, entity, foreign political organisation or foreign government related individual is registerable under the Scheme. ‘Parliamentary lobbying’ means lobbying a member of the Parliament or a person employed under section 13 or 20 of the Members of Parliament (Staff) Act 1984, and ‘general political lobbying’ means lobbying any one or more of the following: a Commonwealth public official, a department, agency or authority of the Commonwealth, a registered political party, a candidate in a federal election that is not Parliamentary lobbying. ‘Lobby’ is defined to include to communicate, in any way, with a person or a group of persons for the purpose of influencing any process, decision or outcome and represent the interests of a person, in any process. Also defined under the Scheme as registrable activities are ‘communications activities’ and ‘disbursement activities’.

Registration and other disclosure

Is there voluntary or mandatory registration of lobbyists? How else is lobbying disclosed?

Code

Persons undertaking lobbying activities on behalf of a client with a government representative must be recorded on the Register. The Register is a public document that is published on the website of the Department of the Prime Minister and Cabinet. Its purpose is to promote transparency of influences acting within Australia’s political system.

Scheme

Following commencement, registration under the Scheme is mandatory, unless certain exemptions apply. It is a criminal offence for a person who is liable to register not to be registered under the Scheme.

Activities subject to disclosure or registration

What communications must be disclosed or registered?

Code

As noted in question 7, the definition of lobbying activities under the Code is limited to ‘communications with a government representative’, which is defined as including oral, written and electronic communications.

A government representative is defined as: a minister; a parliamentary secretary; a person employed or engaged by a minister or a parliamentary secretary; an agency head or a person employed under the Public Service Act 1999; a person engaged as a contractor or consultant by a government agency whose staff are employed under the Public Service Act 1999; or a member of the Australian Defence Force.

Scheme

A person becomes liable to register in relation to a foreign principal if the person:

  • undertakes an activity on behalf of a foreign principal that is a registrable activity in relation to the foreign principal; or
  • enters into a registrable arrangement with a foreign principal (even if they do not yet engage in any registrable activities).

A registrable arrangement is an arrangement between a person and a foreign principal for the person to undertake, on behalf of the foreign principal, one or more activities that, if undertaken by the person on behalf of the foreign principal, would be registrable in relation to the foreign principal. As noted in question 7, registrable activities include parliamentary lobbying, general political lobbying, communications activities and disbursement activities.

Entities and persons subject to lobbying rules

Which entities and persons are caught by the disclosure rules?

Code

The Code applies to lobbyists and government representatives.

The Code defines a lobbyist as any person, company or organisation that conducts lobbying activities on behalf of a third-party client or whose employees conduct lobbying activities on behalf of a third-party client.

For the purposes of the Code, a lobbyist does not include:

  • charitable, religious and other organisations or funds that are endorsed as deductible gift recipients;
  • non-profit associations or organisations constituted to represent the interests of their members that are not endorsed as deductible gift recipients;
  • individuals making representations on behalf of relatives or friends about their personal affairs;
  • members of trade delegations visiting Australia;
  • persons who are registered under an Australian government scheme regulating the activities of members of that profession, such as registered tax agents, customs brokers, and company auditors and liquidators, provided that their dealings with government representatives are part of the normal day-to-day work of people in that profession; and
  • members of professions, such as doctors, lawyers, accountants and other service providers, who make occasional representations to the government on behalf of others in a way that is incidental to the provision to them of their professional or other services. However, if a significant or regular part of the services offered by a person employed or engaged by a firm of lawyers, doctors, accountants or other service providers involves lobbying activities on behalf of clients of that firm, the firm and the person offering those services must register and identify the clients for whom they carry out lobbying activities.

The Code does not apply to persons or organisations engaging in lobbying activities on their own behalf. These persons are not required to be recorded in the Register (unless that person also engages in lobbying activities on behalf of a client or clients).

Scheme

A person becomes liable to register under the Scheme in relation to a foreign principal if the person undertakes a registrable activity ‘on behalf of’ a foreign principal, or enters into a registrable arrangement with a foreign principal. ‘Person’ is defined to include, among other things, an individual, a body corporate, a partnership and an organisation whether or not resident in, formed or created in, or carrying on business in, Australia and whether constituted under an Australian or foreign law or not constituted under a law at all.

Lobbyist details

What information must be registered or otherwise disclosed regarding lobbyists and the entities and persons they act for ? Who has responsibility for registering the information?

Code

A lobbyist must record the following details for inclusion on the Register:

  • the business registration details (including trading names) of the lobbyist (including where the business is not a publicly listed company), the names of owners, partners or major shareholders, as applicable;
  • the names and positions of persons employed, contracted or otherwise engaged by the lobbyist to carry out lobbying activities;
  • whether a person employed, contracted or otherwise engaged by the lobbyist is a former government representative, and if so, the date the person became a former government representative; and
  • a list of any clients who have engaged the person on a retainer to provide services or any other clients for whom the person has provided lobbying services (paid or unpaid) in the past three months.

The lobbyist must also lodge a statutory declaration for each person listed as conducting lobbying activities under the application stating that the person: has never been sentenced to a term of imprisonment of 30 months or more; has not been convicted, as an adult, in the past 10 years, of an offence, one element of which involves dishonesty, such as theft or fraud; and is not a member of a state or federal political party executive, state executive or administrative committee (or the equivalent body).

Registration is achieved by completing the online registration form located on the website of the Department of the Prime Minister and Cabinet.

A lobbyist is not required to list a client on the Register where that might result in speculation about a pending transaction involving the client. Where a lobbyist relies upon this exemption, the lobbyist must advise the government representative with whom they are meeting of that reliance and must also provide the anticipated date upon which they will add their client to the Register. The lobbyist must promptly record their client on the Register once market sensitivity has passed.

A lobbyist must submit updated details to the Secretary of the Department of the Prime Minister and Cabinet in the event of any change to the lobbyist’s details as soon as practicable and within 10 business days. This includes when the lobbyist begins to act for a new client.

Scheme

In relation to the Scheme, the secretary of the Attorney General’s Department must keep a register of information in relation to the Scheme. The secretary must include on the register the following information and documents for each person who is registered in relation to a foreign principal:

  • the name of the person and the foreign principal;
  • the application for the registration and any accompanying information or documents;
  • any notices given by the person in accordance with Division 2 of Part 3 (reporting to the secretary) and any accompanying information or documents;
  • any renewal of the registration and any accompanying information or documents;
  • a record of any other communications between the person and the Secretary;
  • any information prescribed by the rules for the purposes of paragraph 43(1)(c) in relation to registrants; and
  • any other information or documents the secretary considers appropriate.
Content of reports

When must reports on lobbying activities be submitted , and what must they include?

Code

Lobbyists must submit updated lobbyist details to the Secretary of the Department of the Prime Minister and Cabinet in the event of any change to the lobbyist’s details as soon as practicable and within the 10 business days after the change occurs. Each year, within 10 business days of 31 January, lobbyists must provide the Secretary with confirmation that the lobbyist’s details are up to date.

The lobbyist must also provide statutory declarations for all persons employed, contracted or otherwise engaged by the lobbyist to carry out lobbying activities on behalf of a client stating that the person: has never been sentenced to a term of imprisonment of 30 months or more; has not been convicted, as an adult, in the past 10 years, of an offence, one element of which involves dishonesty, such as theft or fraud; and is not a member of a state or federal political party executive, state executive or administrative committee (or the equivalent body).

A lobbyist’s registration will lapse if confirmations and updated statutory declarations are not provided within the specified time frame.

Scheme

Under the Scheme, a registrant has various responsibilities with regard to reporting including to:

  • promptly report any material changes affecting the registration and any disbursement activity undertaken on behalf of the foreign principal;
  • during the voting period for a federal election or designated vote - review the currency of information provided by the registrant and promptly report on certain registrable activities undertaken during the voting period;
  • make disclosures when undertaking communications activity on behalf of the foreign principal; and
  • renew registration annually for so long as the person remains liable to register under the Scheme.
Financing of the registration regime

How is the registration system funded?

Administration of the Code, the Register and the Scheme is financed by the government. There are no fees payable to register as a lobbyist.

Public access to lobbying registers and reports

Is access to registry information and to reports available to the public?

Code

The Register is publicly available on the website of the Department of the Prime Minister and Cabinet, and is maintained by the staff of that Department.

Scheme

In relation to the Scheme, the secretary must make available to the public, on a website, the following information in relation to each person registered in relation to a foreign principal:

  • the name of the person and the foreign principal;
  • a description of the kind of registrable activities the person undertakes on behalf of the foreign principal; and
  • any other information prescribed by the rules.
Code of conduct

Is there a code of conduct that applies to lobbyists and their practice?

Under the Code, when engaging with government representatives lobbyists must:

  • not engage in any conduct that is corrupt, dishonest or illegal, or unlawfully cause or threaten any detriment;
  • use all reasonable endeavours to satisfy themselves of the truth and accuracy of all statements and information provided by them to clients whom they represent, the wider public and government representatives;
  • not make misleading, exaggerated or extravagant claims about, or otherwise misrepresent, the nature or extent of their access to government representatives, members of political parties or to any other person;
  • keep strictly separate from their duties and activities as lobbyists any personal activity or involvement on behalf of a political party; and
  • when making initial contact with government representatives, inform the government representatives:
    • that they are lobbyists or employees of, or contractors or persons engaged by, lobbyists;
    • of whether they are currently listed on the Register;
    • of the name of their relevant client or clients; and
    • of the nature of the matters that their clients wish them to raise.

Details of these principles, along with the rest of the Code, are available on the website of the Department of the Prime Minister and Cabinet.

Breaches of the Code, including the above principles of engagement, may result in the Secretary of the Department of the Prime Minister and Cabinet removing a lobbyist or an employee or contractor of a lobbyist from the Register.

Media

Are there restrictions in broadcast and press regulation that limit commercial interests’ ability to use the media to influence public policy outcomes?

Australian media laws impose broadcasting and advertising standards relating to the content and delivery of broadcast material, as well as regulating the concentration of media ownership in Australia. The Broadcasting Services Act 1992 states that when broadcasting political matter at the request of another person, a broadcaster must arrange for an announcement to be made at the end of the broadcast that sets out details of the person authorising the political matter to be broadcast. The purpose of this requirement is to provide transparency to the public regarding the person or organisation promoting a certain political issue.

In addition to political authorisation announcements, the Broadcasting Services Act 1992 sets out requirements regarding access to and timing of the broadcast of a political matter during an election period. For example, if any election matter is broadcast during an election period by a broadcaster, then the broadcaster must give all political parties contesting the election a reasonable opportunity to have the matter broadcast during the election period provided that they are represented in Parliament at that time. Additionally, blackout periods for election advertising apply from the Wednesday before an election.

The Australian Press Council, the industry association for newspapers, magazines and associated digital outlets, sets out general principles with which its members are expected to abide by, including the obligation to ensure that conflicts of interests are avoided or adequately disclosed, and that they do not influence published material. Although the Australian Press Council has no legal or legislative powers to fine or penalise the press, its charter states that the press has a responsibility to the public to commit itself to self-regulation that provides a mechanism for dealing with the concerns of members of the public and the maintenance of the ethical standards and journalistic professionalism of the press.

Australian media, broadcasting and press laws do not specifically restrict the use of commercial interests in media to influence public policy outcomes.