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Lobbyists gaining unfair access to ministers, says leading lawyer
By David Crowe
Lobbyists are gaining unfair access to federal ministers through a system that opens the door to corruption, a leading constitutional lawyer says in a warning to parliament to tighten its rules on who gains favoured status when seeking influence.
The finding comes as one of the top lobbying firms says authorities should reveal the names of hundreds of people who hold sponsored passes that give them unfettered access to the corridors of Parliament House.
Parliament House in Canberra. Credit: Alex Ellinghausen
The moves heighten the debate over undue influence at a time when a Senate committee is about to hold public hearings into whether to bring the lobbying regime into line with stricter rules in countries such as the United States and Canada.
University of Sydney law professor Anne Twomey warned the committee that the current rules were at odds with a High Court judgment that criticised favoured access to political leaders and endorsed state laws to cap political donations.
“Lobbying can be an important means of informing ministers and other parliamentarians about issues and the perspectives of particular groups in the community,” Twomey wrote.
“It involves political communication, which is, to a degree, protected by the Constitution. Lobbying can also, however, involve the exercise of undue influence and lead to corruption.”
University of Sydney law professor Anne Twomey.
At issue is a system that requires some lobbyists to disclose their names and clients on a public register but does not apply the same rule to executives who do the same work in-house for big companies.
This masthead revealed last May that the number of sponsored bright orange passes to Parliament House, which include those granted to lobbyists, reached 1791 at the beginning of last year and that 891 had been issued since the previous election.
Independent senator David Pocock called for more disclosure about who approved the passes for lobbyists and gained support in the upper house for the inquiry into the regime.
“Over 2000 people have unfettered, all-hours access to Parliament House’s private areas,” he said at the time. “We’ve also seen a real failure in the effective implementation of the lobbying code of conduct, with few investigations, even fewer established breaches and pretty paltry penalties.”
One of the sponsored passes to Parliament House.Credit:
Canberra lobbyist Simon Banks, who is managing director of Hawker Britton and was previously a senior adviser to several Labor leaders, backed the case for revealing the list of Parliament House pass-holders and the politicians who signed the passes.
Banks also said the regime should include corporate lobbyists as well as third-party firms such as Hawker Britton.
Monash University associate professor Yee-Fui Ng said the US and Canada applied their rules to in-house lobbyists as well as third-party firms and that Australia should do the same.
Ng, who has written extensively on political integrity, said lobbyists in the US and Canada were also obliged to file regular statements on their activity.
“To increase transparency, ministers, ministerial advisers and senior public servants should be statutorily obliged to proactively disclose their diaries,” she wrote.
“There should be an accompanying requirement for lobbyists to disclose each contact.”
A High Court case on political influence, McCloy v NSW, in 2015 was about donations rather than lobbying but led to a judgment that said the Constitution guaranteed “equality of opportunity” in political sovereignty.
Twomey noted that Justice Stephen Gageler – named chief justice last year – had found in the McCloy case that the elimination of preferential access to government was a compelling legislative objective.
“None of this is to say that parliament is constitutionally required to remove unequal access to politicians,” Twomey said in a submission to the committee.
“But it does illustrate the legitimate, indeed compelling, concern that granting some people favoured access to government decision-makers, by giving them unfettered access to Parliament House, when others do not have such access or opportunities to influence, is inconsistent with a fundamental constitutional principle of equal sharing in political power.
“Accordingly, there are good grounds to eliminate this unfair level of access altogether, so that lobbyists have to make formal appointments to see ministers and other parliamentarians, and are treated as visitors, obtaining a temporary escorted visitor pass, like everyone else.”
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