Once again the Auditor-General has exposed the low priority the government gives to issues of public integrity. This time the focus is on the administration of the lobbying code of conduct and the associated register of lobbyists.
The code was established in 2008, as part of the integrity agenda championed by Senator John Faulkner in the Rudd Labor government. The purpose, in the words of the code, was "to promote trust in the integrity of government processes" and to ensure that dealings between lobbyists and government follow "public expectations of transparency, integrity and honesty".
The code requires third party lobbyists to register, giving the name of their business and its owners, the names of those employed to carry out the lobbyist's functions and the names of clients for whom the lobbyist is acting. Registered lobbyists are obliged to follow certain principles, such as behaving openly and honestly with government representatives. The code also includes rules about the "revolving door", banning former government employees from lobbying on any matter they dealt with while in office, the "cooling-off" period to last for 18 months for ministers and parliamentary secretaries and 12 months for senior members of the Australian Public Service and defence forces.
Given the power that wealthy interests exercise over government, the code and register marked a small, but not insignificant, means of regulating the steady flow of back-room influence. However, compared with the best international exemplars, the policy has always had major limitations.
First, it applies to third party lobbyists only, that is professional lobbyists who lobby on behalf of clients. It excludes the many in-house lobbyists employed by large companies and organisations. (The one exception is for former ministers and senior officials where the cooling-off period covers all forms of lobbying activity, not just third party lobbying.)
The minimalist approach to administration of the code taken by PM&C can no longer be tolerated.
Secondly, the code and register exist simply as administrative orders and are not enacted in any legislation. They therefore lack the backing of legal penalties for non-compliance. The only effective sanction is de-registration. Thirdly, few resources have been devoted to implementing the policy.
For its first 10 years, the code was administered by the Department of the Prime Minister and Cabinet. PM&C was always a reluctant host for the code, having been assured by Prime Minister Kevin Rudd that its role would not be "significant".
In 2017, the prime minister announced an intention to move responsibility for the code to the Attorney-General's Department. The move was part of a machinery of government change intended to consolidate various integrity policies under the Attorney-General who was to focus on protecting the rule of law and ensuring integrity in the Commonwealth.
Responsibility was formally transferred in May 2018, though PM&C retained administration of the register for a further year as it was in the process of redeveloping the relevant IT system. When AGD eventually took over responsibility, the IT system still required further remedial work.
In the meantime, in early 2018, just before the formal move, the Australian National Audit Office had completed a performance audit of PM&C's administration of the code, which it found seriously deficient. The report recommended that the department take a more proactive role in monitoring the effectiveness of the code, for example by forming a strategy to raise awareness of the code, by assessing risks to compliance with the code, and by developing performance indicators and an evaluation framework to measure success in achieving the code's broader policy objectives.
This last recommendation opened the way for the department to consider whether the code itself needed to be broadened or strengthened, a view that the ANAO clearly favoured. PM&C agreed to these recommendations within the limits imposed by its insistence that its role had always been "administrative rather than regulatory". At the same time, the then secretary, Martin Parkinson, hinted at support for basing the code and register in legislation.
In June this year, the ANAO published a "follow-up audit" that examines what AGD has done towards implementing the earlier recommendations made to PM&C. As a matter of general policy, the ANAO is keen to make the point that reports and recommendations made to one department still remain in force even if responsibility for administration has shifted to another department under machinery of government changes. In this case, the ANAO argues that AGD has made little progress so far.
In its response, AGD claims to have accepted the recommendations but to have been forced to give priority to the still unresolved IT difficulties with the register.
The department has a case, given the relatively short time it has been in effective control of the register and the typical complexity of the IT issues. However, the ANAO is right to remind the department of its ongoing commitment to improving the register's effectiveness. If the move to AGD is genuinely part of a program to enhance the Attorney-General's integrity role, as the government stated, the minimalist approach to administration of the code taken by PM&C can no longer be tolerated.
Instead, AGD should be using the ANAO's recommendations as a springboard for strengthening the code and register, including a greater emphasis on compliance. It should also follow the ANAO in keeping on the public agenda the possibility of major improvements to the policy, such as extending its scope to cover in-house lobbying and grounding it in legislation.
- Richard Mulgan is an emeritus professor at the ANU's Crawford School of Public Policy. firstname.lastname@example.org.