It rather looks as if the lobbyists have got to the Government over plans to regulate the activities of lobbyists. The exposure draft of a code of conduct for lobbyists issued by "Minister for Integrity" John Faulkner this week is the very model of a brightly coloured bitter-tasting medicine for a disease other than the one which brought the patient to the doctor.
Not that there was anything wrong with lobbyists approaching Government on the issue; they would have been generally speaking common sense, with advice and experience well worth listening to. Most professional lobbyists in this parish, whether freelancers for hire, paid and known advocates for particular causes, or people who occasionally give businessmen or interests good advice about having their voice heard in government, are decent and honourable people, whose conduct on their client's behalf will usually survive scrutiny. On one level, in short, there is no great need to regulate them.
But it is not so much the regulation of them that many members of the public want. It is the regulation of politicians, their minders, advisers and urgers, and even public servants and others whom they are seeking to influence. Only at the margins is the public worried about lobbyists bribing or blackmailing decision-makers, or trading favours, party donations or information though they would like to be reassured that if such things happened, there are mechanisms for exposing and punishing it.
The public concern which Faulkner ought to be addressing, and which his white paper does not is about the idea of special access and undue influence, about an uneven playing field in the battle of ideas, and about the public's not even knowing about who is blowing in the decision-maker's ear, let alone what is being said. All the more so when many crucial decisions are made in ministerial offices, rather than in the more process-oriented public service, and where ministers' offices are so consciously and protectively careless about a paper trail, documentation, or discussion about what the minister knew or was told, and by whom, and when.
Lobbyists are usually careful about facts, especially in written submissions. Not surprising given the experience of most lobbyists in practical and political government. But such presentations, interested or disinterested, may be as nothing compared with the undocumented and unrecorded assertions of someone with insider access to the minister, or a senior adviser, particularly when it is done after other advice is in, and not cross-checked or tested against the advice of others without the privileged, and late, access.
In many such cases, moreover, lobbyists will not even be directly involved. A good many of the best lobbyists do very little direct lobbying for their clients. Their first expertise is in their knowledge of how government works, and which levers are best pulled. Their second expertise is in knowing what sort of arguments are likely to work. And their third bit of expertise is in setting up a meeting between the client and the person likely to be most influential in making the decision. It will be the client making the representations, perhaps with materials prepared by the lobbyist, but not with the lobbyist present.
Likewise, a key type of service provided by many lobbying groups is what might be called the watching brief keeping a close eye on government for things which might affect the interests of a client. Relationships like that are not sought to be regulated by Faulkner perhaps they need not be, though, if they were, it might cast some light on decision-making. Likewise, he apparently sees no need whatever to regulate one-issue lobby groups such as the Australian Medical Association or the Australian Hotels Association; public interest groups or associations such as the Australian Conservation Foundation, the Lone Fathers or Animal Liberation; or people or businesses who lobby through "professional" groups such as lawyers and accountants. A number of big law and accountancy firms have "government relations" units that behave exactly like professional lobbyists, and there is no reason why they should be treated differently.
Any citizen or body of citizens and any business has a right to lobby government. There is nothing wrong with anyone listening to any representations made and, if they are sound enough, acting on them. Any efforts to regulate lobbying should not undercut such citizen access or right to be heard.
Regulation is needed to cope with the perception or the reality that there are those with special access, insiders whose knowledge of the players and the system gives them an unfair advantage. A good deal of private-enterprise Canberra indeed turns on that perception: its stock is information, intimate knowledge of processes and players, the way governments go about making decisions, capacity to intervene at early stages of processes, ability to track decisions, instincts for the sorts of arguments which work, and personal relationships which can ease access, including casual access, to key decision-makers.
Faulkner is sound in his instinct to use the draft code to reiterate new rules which would bar ex-politicians, staffers, senior military officers and top bureaucrats from trading on their "insiderness" for at least 12 months after leaving government. He is also right to exclude "open" representations such as making submissions to parliamentary committees, going to public meetings and responses to public calls for submissions.
As well, petitions and grass-roots campaigns, requests to government for information and communications about tenders are not covered.
What would be nice would be to have simple lists, available to the public, about all those who made representations and to whom. In cases where the representations were made through third parties, such lists should include the actual client. In my ideal legislation, there would be a running, online, list for each major decision of government. It would record all representations made by people with financial interests in the outcome and, briefly, who was seen and on whose behalf.
Archives legislation could be amended to reiterate the need for recording such contacts, and their substance. The point might be underlined for politicians, minders and public servants perhaps as much as lobbyists by the development of a tendency to regard unrecorded meetings as improper, perhaps suggesting corruption or a voidable decision.
Throw in a watchdog with teeth the secretary of PM&C is too loyal to the interests of whatever government to be such a beast and I think the "problem" could be filed away for a while.
Jack Waterford is Editor-at-Large.