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Lobbying and Ministerial Accountability Bill 2007

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2004-2005-2006-2007

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

THE SENATE

 

 

 

 

 

LOBBYING AND MINISTERIAL ACCOUNTABILITY BILL 2007

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by Greens Senator Bob Brown)

 



LOBBYING AND MINISTERIAL ACCOUNTABILITY BILL 2007

 

EXPLANATORY MEMORANDUM

 

 

GENERAL OUTLINE

 

This bill aims to restore the public’s trust and confidence in the government and its ministers and to ensure that openness, honesty and integrity form the basis of dealings between Members of Parliament and lobbyists.

 

This bill will restore confidence in government accountability by:

 

·          Requiring Ministers to divest themselves of all shares or move them to a blind trust within 28 days of becoming a Minister;

·          Requiring the public registration and regulation of lobbyists;

·          Placing limits on the post-separation employment of ministers and ministerial advisers for up to two years after leaving the Parliament.

 

FINANCIAL IMPACT

 

The Bill will have a financial impact. Additional resources would be required by the Public Service Commissioner and the Australian Crime Commission to fulfil their duties under the Bill.

 

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1 - Short title

 

This clause provides for the Act to be cited as the Lobbying and Ministerial Accountability Act 2007 .

 

Clause 2 - Commencement

 

This clause provides that the Bill will commence on the day which the Bill receives the Royal Assent.

 

Clause 3 - Objects of the Act

 

This clause sets out the objects of the bill, which are to enhance public confidence in the integrity of public office holders and the decision-making process in government by:

 

(a) requiring ministers to divest themselves of all shares or move them to a blind trust within 28 days of becoming a minister; and

 

(b) requiring the public registration and regulation of lobbyists; and



(c) placing limits on the post-separation employment of:

(i) ministers for up to two years after leaving Parliament; and

(ii) ministerial advisers for up to two years after ceasing to be employed as a ministerial adviser.

 

Clause 4 - Simplified outline of Act

 

This clause sets out a simplified outline of the bill.

 

Part 2 - Lobbying

 

Clause 5 - Simplified outline of this Part

 

This clause sets out a simplified outline of Part 2 of the bill.

 

Clause 6 - Interpretation

 

Clause 6 sets out the various definitions used in the Bill

 

Division 2 - Lobbying disclosure and accountability

 

Clause 7 - Lobbying activity defined

 

This clause defines lobbying broadly ensuring that oral, written and electronic communication are included and ensures the matters that lobbying may be directed towards include the range of Parliamentary and government activity.

 

An important exemption at subsection 7(2) excludes members of the media engaged in their roles of disseminating information to the public and anyone who has contact with an official in public capacity such as public meeting.

 

Clause 8 - Act not to affect personal lobbying activity

 

The bill excludes lobbying that is conducted by someone in their personal capacity defined as 'lobbying activity engaged in by a natural person on his or her own behalf'.

 

Division 3 - Disclosure of lobbying

 

Subdivision A - Employed Lobbyists

 

Clause 9 - Application of Subdivision

 

This clause sets out the definition of employed lobbyists including those employed by a corporation and importantly also includes lobbying on behalf of employer or professional associations and trade unions.

 

Clause 10 - Employed lobbyists to lodge returns

 

This clause requires lobbyists to submit quarterly returns, to the Public Service Commissioner, outlining their lobbying activity for the preceding three months.

Subsection 10 (3) sets out the detailed requirements for the content of the return.

The Commissioner may grant an extension of time for lodgement of the return of up to 14 days.

 

Clause 11 - Commissioner may require further information

 

This clause empowers the Commissioner to require lobbyists to provide further information. As the aim of the bill is to ensure transparency rather than restrict legitimate lobbying activity, it is envisaged that the Commissioner and lobbyists would work cooperatively to ensure the maximum clarity of information and openness regarding lobbying activity.

 

An offence of failing to provide further information will ensure compliance with the requirements to assist the Commissioner. A reverse onus of proof applies to the requirement to show reasonable excuse as a defence to an offence of failing to comply.

 

Subdivision B - Consultant Lobbyists

 

Clause 12 - Application of Subdivision B

 

Clause 12 sets out a further definition of a consultant lobbyist which ensures that those persons not employed by lobbyist organisations but engaging in lobbying are covered by the Bill. The clause is required as a significant amount of lobbying is conducted by individuals who may not be full-time professional lobbyists or employed by a lobbying organisation.

 

Clause 13 - Consultant lobbyists to lodge returns

 

Clause 13 sets out the requirements to lodge returns by a consultant lobbyist and mirrors the requirements in Clause 10.

 

Clause 14 - Commissioner may require further information

 

Clause 14 allows the Commissioner to require further information from consultant lobbyists and mirrors the requirements and process set out in Clause 11.

 

Subdivision C - Register of Lobbying Activity

 

Clause 15 - Register established

 

Clause 15 requires the Commonwealth Public Service Commissioner to make publicly available reports on the information contained in the lobbyist returns, including a requirement that the information be available on the internet.

 

Division 4 - Investigation and offences

 

Subdivision A - Investigation by Australian Crime Commission

 

Clause 16 - Australian Crime Commission may investigate lobbying activity

 

Clause 16 empowers the Australian Crime Commission to investigate inappropriate activity by lobbyists including not providing factual information and applying improper influence to officials.

The ACC is able to refer any findings of its investigations to an appropriate authority which could include the Australian Federal Police.

 

Clause 17 - Report on completion of investigation or generally

 

Clause 17 sets out the reporting requirements of the Australian Crime Commission and requires the Commission to report within six months of the commencement of an investigation. The report must be laid before each House of Parliament.

 

Subdivision B - Offences and legal proceedings

 

Clause 18 - False or misleading information

 

Clause 18 creates a penalty of 500 penalty units for providing false and misleading information in relation to lobbyist returns.

 

Clause 19 - Proof of returns and information

 

Clause 19 makes returns and notices issued by the Public Service Commissioner admissible as evidence in legal proceedings in relation to offences under the Bill.

 

Clause 20 - Proof that a person is a public official

 

Clause 20 ensures that in any proceedings in relation to an offence under the Bill an averment in the complaint that a person is a public official is taken to be proved, unless the contrary is proved.

 

Subdivision C - Review

 

Clause 21 - Review of Act

 

Clause 21 requires the Minister to review the act within five years of its commencement and report to Parliament.

 

Part 3 - Divestiture of shares by ministers

 

Clause 22 - Simplified outline of this part

 

This clause sets out a simplified outline of Part 3 of the bill.

 

Clause 23 - Purpose of this Part

 

This clause sets out the purpose of this Part of the bill which is to require ministers to:



(a) divest themselves of all shares, options, futures, debentures, stocks, bonds or any like security; or

(b) place their shares and securities of the kind mentioned in paragraph (a) with a professional nominee or in a blind trust within 28 days of becoming a minister.

 



 

Clause 24 - Interpretation

 

Clause 24 sets out additional definitions not contained in clause 6 relating to shares and other financial products.

 

Clause 25 - Ministers to divest ownership of all shares etc.

 

Clause 25 creates an offence of continuing to control shares, stocks, options, futures and similar interests by a Minister, if such control is not divested within 28 days of a person becoming a Minister. The penalty is significant including the revocation of the commission of Minister and a fine of 2000 penalty units.

 

Subsection 25 (2) excludes transfer to a spouse, de facto partner or family member from the meaning of divestiture.

 

Subsection 25 (3) enables a minister to transfer control of shares to a blind trust.

 

Clause 26 - Ministers prohibited from purchasing shares etc.

 

Clause 26 prohibits a Minister from purchasing shares, stocks, options, futures and similar interests or from instructing someone to do so on his or her behalf. Penalties are the same as in Clause 25.

 

Clause 27 - Ministers to declare shareholding interest

 

Clause 27 requires the Minister to notify the Cabinet of any past holdings of shares, stocks, options, futures and similar interests and therefore a residual interest in a matter which is the subject of, or related to a submission, by the Minister to Cabinet.

 

Part 4 - Post-separation restrictions on employment of ministers and ministerial advisers

 

Clause 28 - Simplified outline of this Part

 

This clause sets out a simplified outline of Part 4 of the bill.

 

Clause 29 - Interpretation

 

Clause 29 sets out additional definitions not contained in clause 6.

 

Clause 30 - Conduct before ceasing to be a minister or ministerial adviser

 

This clause prohibits Ministers and Ministerial advisers from allowing the conduct of their official duties to be influenced by their plans for future employment or remunerations after they cease to be Ministers or Ministerial advisers.

 

Clause 31 Conduct after ceasing to be a minister

 

This clause creates a two year prohibition on certain conduct after ceasing to be a Minister including: providing advice for personal profit or remuneration on any matter related to their former ministerial responsibility; employment or contract with any organisation that had significant dealings with the Minister’s former department; lobbying or representation to a department or agency within their former ministerial responsibility.

 

Clause 32 - Conduct after ceasing to be a ministerial adviser

 

This clause creates a similar ban for Ministerial advisers as that outlined for Ministers in Clause 31.

 

Clause 33 - Exceptions

 

This clause creates exceptions to the prohibitions in clause 31 and 32. The exceptions include those for lobbyists: on behalf of a charitable organisation, official duties for the Commonwealth and international organisations or foreign governments when certified by the Foreign Minister. An additional exception includes action on behalf of political parties.

 

Clause 34 - Offences and Penalties

 

Clause 34 sets out the offences and penalties for breaching the requirements of this Part: imprisonment for two years or a fine not exceeding 2500 penalty units. The penalties mirror those for breaches of directors’ duties under the Corporations Act 2001 .