This week Federal Treasurer Wayne Swan railed against the power of a "wildly irresponsible few" mining magnates who lobbied against the mining tax. The shallowness and hypocrisy of Swan’s attack is underlined by his government’s failure to seize the opportunity presented by a recent Senate inquiry to tighten the regulation of lobbyists.
While Canada and the US have quite rightly legislated to ensure that the way that lobbyists seek to influence politicians is made public, Labor and the Coalition have baulked at following the lead of these countries.
When the Senate inquiry brought down its report Labor and the Coalition made not one recommendation for reform.
The existing federal lobbyist scheme, introduced in 2008, is widely recognised as ineffective. It allows the great mass of lobbying that occurs to continue behind closed doors, unregulated and beyond the reach of public and media scrutiny.
One critic of the scheme, the Queensland Integrity Commissioner Dr David Solomon AM, summed up the flaws last month in public hearings of the Senate inquiry:
"The problem simply is that we have a system that suggests that lobbying is being regulated, but the amount of lobbying that is being regulated is a relative small amount of the lobbying that goes on. The risk is that people will think that there is proper regulation of lobbying, when the fact is that that is not what the system is designed to give us."
Thanks to evidence supplied by the Department of Prime Minister and Cabinet in hearings we now know that approximately 4000 in-house lobbyists remain outside the scheme. This figure was released to scare the horses about the costs of regulating an expanded scheme. Instead it served to highlight the enormous failures of the existing regime.
Corporate giants such as BHP Billiton and Telstra, influential interest groups and donors like the Australian Hotels Association and the Minerals Council and other non-profit organisations active in Canberra remain free to lobby with the lights turned off.
This is ideal for lobbyists. As one industry insider recently explained, "Lobbying should be quiet… You shouldn’t see a lobbyist."
The government runs the disingenuous argument that because MPs know who they are meeting with when in-house lobbyists turn up at their door, there is no need to regulate them.
This conveniently overlooks one of the stated objectives in introducing the scheme: the right of "the public to know who stands to benefit from the efforts of lobbyists", as John Faulkner put it in 2008.
Despite the fact that cross-benchers and opposition MPs can hold great sway in the minority Gillard government, there is still no lobbying regulation. This ignores the reality that it is those with the power to allow or disallow a bill who are often the target of the most intense lobbying.
Even "gun for hire" lobbyists who must be registered are not obliged to record the who, what, when and why of their lobbying activity. This contrasts with Canada where lobbyists must submit monthly communication reports with details of who they met, when and subjects covered. In the UK the Prime Minister’s website has a record that’s plainly titled — "Who Ministers are Meeting".
A special challenge for the regulation of lobbyists arose this month when former NSW premier-turned-lobbyist Bob Carr was promised elevation straight to cabinet.
While there is an 18-month cooling off period in place before retiring MPs can become lobbyists, there is no regulation of those passing through the revolving door in the opposite direction.
Carr, who spent seven years as a high profile lobbyist, working for Macquarie Bank and law firm Mallesons Stephen Jaques, can sit at the cabinet table and make decisions which may benefit the operations of former clients without restriction. This is despite the new foreign minister having been hired by Macquarie Bank to provide advice, among other things, on strategic issues with a focus on the US and China and Mallesons’ strong presence in Asia.
When I challenged Carr to disclose the clients for whom he lobbied during the past five years in his work for Macquarie Bank and Mallesons, and to absent himself from Cabinet decision-making which could benefit these clients, he responded with a promise that, "If I’ve been intimately involved with a commercial matter I would seek advice on declaration or abstention but it simply won’t arise."
Carr and many other Labor and Coalition MPs remain confident that the public can trust them to properly self-regulate when it comes to their relationship with corporate Australia.
The Senate inquiry into lobbying regulation was an opportunity lost to make the scheme more robust and useful in regulating this multi-billion dollar a year industry. It was evident right from the start that the government had no appetite for reform. When I put the motion that forced the inquiry Senator Ludwig argued in parliament that there was no need as "to date [there’s] no evidence of any problems with the operation of the code".
This ignores the fact the scheme has been heavily criticised for its lack of depth and capture. And that Australians rightly expect that the government will make decisions based on merit, after considering a broad range of views, not because of relationships the public is not privy to.
The Greens will continue to campaign for our eight reform proposals set out in the inquiry’s dissenting report, including establishing a Commissioner for Lobbying, regulating in-house lobbyists and the lobbying of all MPs, more detailed disclosure requirements and tougher sanctions.
A culture of "policy capture" is on show in recent decisions to walk away from the original mining tax and poker reforms, with the government favouring lobbyists’ interests over those of the Australian public. Sadly, it may take a major corruption scandal similar to high profile affairs involving lobbyists in the US and UK, to spur the Gillard government on to tighten lobbyist regulation. By sticking with the status quo the major parties are allowing those with the deepest pockets and the most power and connections to retain the best chance of influencing government policy.
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