LOBBYING AND MINISTERIAL ACCOUNTABILITY BILL 2007

2004-2005-2006-2007

The Parliament of the

Commonwealth of Australia

THE SENATE

Presented and read a first time

Lobbying and Ministerial Accountability Bill 2007

No. , 2007

(Senator B Brown)

A Bill for an Act to provide for the disclosure of lobbying activities intended to inform and influence members of Parliament and ministers, to make unlawful the holding and trading of shares by ministers, to regulate the post-ministerial employment of ministers and ministerial advisers, and for related purposes

Contents

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Lobbying and Ministerial Accountability Act 2007.

2 Commencement

This Act commences on the day after the day on which it receives the Royal Assent.

3 Objects of the Act

The objects of this Act 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

(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.

4 Simplified outline of Act

The following is a simplified outline of this Act:

(a) Part 2 provides for the disclosure of lobbying activities intended to inform and influence ministers and members of Parliament and public servants;

(b) Part 3 provides for the control over shares and other securities and trading in them by ministers;

Part 2--Lobbying

Division 1--Simplified outline of this Part

5 Simplified outline of this Part

The following is a simplified outline of this Part:

This Part provides for effective controls over those lobbying activities intended to influence the activities and decisions of ministers in the course of their ministerial duties and members of Parliament in the course of their parliamentary activities.

This Part does this by:

(a) defining what lobbying activity is; and

(b) providing for the disclosure of lobbying activities; and

(d) providing for the investigation of offences.

This Part is not intended to limit normal political discourse or representations by a person.

Division 2--Lobbying disclosure and accountability

6 Interpretation

In this Act, unless the contrary intention appears:

agency has the same meaning as in the Financial Management and Accountability Act 1997.

appropriate authority means a person, body or organisation who or which is empowered by law to take investigatory or other action and includes:

(a) a member of the Australian Federal Police; or

(b) the Director of Public Prosecutions; or

Commissioner means the Public Service Commissioner appointed under the Public Service Act 1999.

consultant lobbyist has the meaning given by section 12.

Corporations Act means the Corporations Act 2001.

employed lobbyist has the meaning given by section 9.

judicial proceeding includes any proceeding had or taken in or before any court, tribunal or person, in which evidence may be given on oath.

lobbying activity has the meaning given by section 7.

lobbyist means a person who is an employed lobbyist, a consultant lobbyist or both.

minister means a minister appointed in accordance with section 64 of the Constitution and includes a parliamentary secretary.

person includes a body corporate or association or body of persons, whether incorporated or unincorporated.

public money has the same meaning as in the Financial Management and Accountability Act 1997.

public official includes:

(a) a minister;

(b) a member of either House of Parliament;

(d) an SES employee within the meaning of the Public Service Act 1999;

(e) an agency head within the meaning of the Public Service Act 1999;

(f) a head within the meaning of the Public Service Act 1999;

(g) the holder of such other office, post or position as is prescribed.

related entity has the same meaning as in the Corporations Act.

remuneration means any form of payment by way of salary, pay, allowances, contract or otherwise, in return for the service rendered.

7 Lobbying activity defined

(1) For the purposes of this Act, but subject to this section, lobbying activity means:

(a) any oral or written communication (including an electronic communication) with a public official intended to influence:

(i) the development of any legislative proposal by the Commonwealth Government or by a member of either House of Parliament; or

(ii) the introduction of any bill in either House of Parliament or the passage or amendment of any bill that is before either House of Parliament; or

(iii) the making or amendment of any delegated legislation; or

(iv) introduction of or change to any Commonwealth Government policy or programme; or

(v) the exercise of any authority or power conferred under a written law; or

(vi) the expenditure of public money; and

(b) arranging or attending a meeting between a public official and any other person.

(2) Lobbying activity does not include oral or written communication (including an electronic communication) that is:

(a) made by a public official, an agency, or any other person holding office under a written law in his, her or its official capacity; or

(b) made on behalf of the government of the Commonwealth or of a State or Territory; or

(d) constituted by any application required or authorised by a written law; or

(e) made in response to a written request from a public official acting in his or her official capacity; or

(f) made by a representative or employee of a media organisation for the purposes of gathering and disseminating news and information to the public; or

(g) made in a speech, article, publication or other material that is distributed and made available to the public, or through radio, television, or other medium of mass communication; or

(h) made in a petition to either House of Parliament or in evidence or submissions to a committee of either of those Houses, or a joint committee of both Houses of Parliament; or

(i) made in the course of any judicial proceedings.

(3) Lobbying activity does not include arranging or attending a meeting with a public official:

(a) that is open to members of the public; or

(b) by a representative or employee of a media organisation for the purposes of gathering and disseminating news and information to the public.

8 Act not to affect personal lobbying activity

Nothing in this Act is to be interpreted so as to apply to lobbying activity engaged in by a natural person on his or her own behalf.

Division 3--Disclosure of lobbying

Subdivision A--Employed lobbyists

9 Application of Subdivision A

(1) This Subdivision applies to any natural person (referred to in this Act as an employed lobbyist):

(a) who is employed by another person (referred to in this Division as the employer); and

(b) whose duties or activities with the employer include lobbying activity on behalf of:

(i) the employer; or

(ii) if the employer is a corporation within the meaning of the Corporations Act--the employer and any related entity of the employer; or

(iii) any profession, business, trade, vocation or calling in relation to which the employer is a representative body.

(2) Without limiting subsection (1), an employee of a trade union within the meaning of the Workplace Relations Act 1996 who engages in lobbying activity is deemed to be an employed lobbyist.

10 Employed lobbyists to lodge returns

(1) An employed lobbyist must, by the last day of a quarter (or such other time as the Commissioner allows under subsection (4)), lodge a return with the Commissioner setting out the information referred to in subsection (3).

Penalty: 100 penalty units, and a daily penalty of 10 penalty units for each day after the relevant time limit that the return has not been lodged.

(2) For the purpose of this section, quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

(3) A return lodged in accordance with subsection (1) must set out the following information in relation to all of the lobbying activity carried out by the employed lobbyist in that quarter:

(a) the name and business address of the employed lobbyist;

(b) the name and business address of the employer;

(c) if the employer is a corporation within the meaning of the Corporations Act, the name and business address of any related entity of the employer that, to the knowledge of the employed lobbyist, has a direct interest in the outcome of the employed lobbyist's lobbying activity;

(d) any other person that, to the knowledge of the employed lobbyist, has a direct interest in the outcome of the employed lobbyist's lobbying activity;

(e) a description in summary form of the employer's business or activities and such other information to identify the nature of the employer's business or activities as is prescribed;

(f) a description, in summary form, of the subject matter of the lobbying activity, and such other information regarding the subject matter as is prescribed;

(g) particulars to identify any legislative proposal, bill, delegated legislation, policy, programme, authority, power or expenditure to which the lobbying activity related;

(h) if the public officials in relation to whom lobbying activity was directed are persons within paragraph (a), (b) or (c) of the definition of public official, the names of the public officials;

(i) if the public officials in relation to whom lobbying activity was directed are persons within paragraph (d), (e), (f), (g) or (h) of the definition of public official, the titles of the public officials;

(j) such other information in relation to the lobbying activity as is prescribed.

(4) The Commissioner may, on the application of an employed lobbyist, extend the time within which a quarterly return required by subsection (1) must be lodged by not more than 14 days.

(5) If an employed lobbyist has not engaged in any lobbying activity in a particular quarter, the employed lobbyist must lodge a return stating that he or she has not engaged in any lobbying activity in that quarter.

11 Commissioner may require further information

(1) The Commissioner may, by notice in writing served on the employed lobbyist, require an employed lobbyist to provide such further written information in relation to a return lodged pursuant to section 10 as the Commissioner considers is necessary to clarify the information set out in that return.

(2) A notice under subsection (1) must:

(a) be in writing; and

(b) specify the nature of the further information required; and

(d) state that the person receiving the notice is required by this Act to comply with the notice.

(3) A person who, without reasonable excuse (proof of which lies on him or her), fails to comply with a notice served on the person under subsection (1) is guilty of an offence.

Penalty: 100 penalty units, and a daily penalty of 10 penalty units for each day after the relevant time limit that the written information is not provided.

Subdivision B--Consultant lobbyists

12 Application of Subdivision B

(1) This Division applies to any natural person (referred to in this Act as a consultant lobbyist) who, directly or indirectly, receives money or other remuneration for engaging in lobbying activity on behalf of any other person (referred to in this Division as the client), other than as an employed lobbyist.

(2) To avoid doubt, a consultant lobbyist need not carry on a business of engaging in lobbying activity, or engage in lobbying activity on more than one occasion, for this Division to apply to him or her.

(3) If a person acts as an employed lobbyist and a consultant lobbyist, that person must comply with both Subdivision A and this Subdivision.

13 Consultant lobbyists to lodge returns

(1) A consultant lobbyist must, by the last day of a quarter (or such other time as the Commissioner allows under subsection (4)), lodge a return with the Commissioner setting out the information referred to in subsection (3).

Penalty: 100 penalty units, and a daily penalty of 10 penalty units for each day after the relevant time limit that the return has not been lodged.

(2) For the purposes of this section, quarter means a period of 3 months beginning on 1 January, 1 April, 1 July or 1 October.

(3) A return lodged in accordance with subsection (1) must set out the following information in relation to each instance of lobbying activity carried out by the consultant lobbyist in that quarter:

(a) the name and business address of the consultant lobbyist;

(b) if applicable, the name and business address of any firm, corporation or other entity through which the consultant lobbyist carried out the lobbying activity (whether as an employee or otherwise);

(c) the name and business address of the client and the name and business address of any person that, to the knowledge of the consultant lobbyist, controls or directs the activities of the client and has a direct interest in the outcome of the consultant lobbyist's lobbying activity;

(d) if the client is a corporation within the meaning of the Corporations Act, the name and business address of any related entity of the client that, to the knowledge of the consultant lobbyist, has a direct interest in the outcome of the consultant lobbyist's lobbying activity;

(e) particulars to identify the subject matter of the lobbying activity, and such other information regarding the subject matter as is prescribed;

(f) particulars to identify any legislative proposal, bill, delegated legislation, policy, programme, authority, power or expenditure to which the lobbying activity related;

(g) the date on which the lobbying activity occurred;

(h) if the public officials in relation to whom the lobbying activity was directed are persons within paragraph (a), (b) or (c) of the definition of public official, the names of the public officials;

(i) if the public officials in relation to whom the lobbying activity was directed are persons within paragraph (d), (e), (f), (g) or (h) of the definition of public official, the titles of the public officials;

(j) if applicable, whether the money or other remuneration payable in respect of the lobbying activity is wholly or partly contingent on the consultant lobbyist's degree of success in influencing the matters referred to in subparagraphs 7(1)(a)(i) to (vi);

(k) such other information in relation to the lobbying activity as is prescribed.

(4) The Commissioner may, on the application of a consultant lobbyist, extend the time within which a quarterly return required by subsection (1) must be lodged by not more than 14 days.

(5) If a consultant lobbyist has not engaged in any lobbying activity in a particular quarter, the employed lobbyist must lodge a return stating that he or she has not engaged in any lobbying activity in that quarter.

14 Commissioner may require further information

(1) The Commissioner may, by notice in writing served on the consultant lobbyist, require a consultant lobbyist to provide such further written information in relation to a return lodged pursuant to section 13 as the Commissioner considers is necessary to clarify the information set out in that return.

(2) A notice under subsection (1) must:

(a) be in writing; and

(b) specify the nature of the further information required; and

(d) state that the person receiving the notice is required by this Act to comply with the notice.

(3) A person who, without reasonable excuse (proof of which lies on him or her), fails to comply with a notice served on the person under subsection (1) is guilty of an offence.

Penalty: 100 penalty units, and a daily penalty of 10 penalty units for each day after the relevant time limit that the written information is not provided.

Subdivision C--Register of Lobbying Activity

15 Register established

(1) The Commissioner must compile and maintain a register to be called the Register of Lobbying Activity.

(2) The register is to comprise all of the information set out in returns lodged under this Act and all of the information provided to the Commissioner pursuant to notices served under subsections 11(1) and 14(1).

(3) The register may be compiled in such manner and form as the Commissioner considers convenient, except that the register must be available and up-to-date for inspection on the Internet.

(4) The register must be open to inspection by any person at such place and at such reasonable times as the Commissioner may determine.

Division 4--Investigation and offences

Subdivision A--Investigations by Australian Crime Commission

16 Australian Crime Commission may investigate lobbying activity

(1) The Australian Crime Commission (ACC) may investigate any matter relating to any lobbying activity carried out by a lobbyist.

(2) In particular, without limiting subsection (1), the ACC may investigate whether a lobbyist has, in the course of any lobbying activity:

(a) adequately disclosed to the relevant public officials the person on whose behalf the lobbying activity was being conducted; or

(b) provided accurate and factual information to the relevant public official; or

(d) attempted to apply any improper influence on the relevant public officer; or

(e) represented competing or conflicting interests without the consent of those whose interests were involved.

(3) In this section, the relevant public official means the public official to whom the lobbying activity was directed.

(4) If, during the course of an investigation under this section, the ACC suspects that a person has committed an offence, a breach of discipline or otherwise engaged in conduct which may be the subject of further action, the ACC may refer that conduct to an appropriate authority for further action.

17 Report on completion of investigation or generally

(1) If the ACC conducts an investigation under section 16, the ACC must within a reasonable period and in any event, not longer than 6 months after commencing the investigation, prepare a written report with conclusions, and the reasons for those conclusions, in relation to the matter the subject of the investigation.

(2) The ACC must, within 5 sitting days of the completion of a report in accordance with subsection (1), cause to be laid before each House of Parliament any report prepared under subsection (1) or (3).

(3) The ACC may, if appropriate, prepare a report in relation to any matter arising out of the administration of this Act generally.

(4) If neither House of Parliament is sitting at the time when the ACC completes a report in accordance with subsection (1) or (3), the ACC must send copies of the report to the Presiding Officers of both Houses of Parliament who may make the report available to the public in accordance with any rules or orders made by the Houses.

Subdivision B--Offences and legal proceedings

18 False or misleading information

A person who:

(a) includes any information in a return lodged under this Act that the person knows is false or misleading in a material particular; or

(b) omits any information in a return lodged under this Act without which the return is, to the person's knowledge, false or misleading in a material particular; or

(c) includes any information in a response to a notice served under subsection 11(1) or 14(1) that the person knows is false or misleading in a material particular; or

(d) omits any information in a response to a notice served under subsection 11(1) or 14(1) without which the response is, to the person's knowledge, false or misleading in a material particular;

is guilty of an offence.

Penalty: 500 penalty units.

19 Proof of returns and information

In any prosecution for an offence against this Act, a copy of:

(a) a return lodged under this Act; or

(b) a response to a notice served under subsection 11(1) or 14(1), purporting to be certified by the Australian Crime Commission as a true copy;

is admissible in evidence.

20 Proof that a person is a public official

In any proceedings for an offence against this Act, an averment in the complaint that a person was a public official within the meaning of this Act must be taken to be proved, unless the contrary is proved.

Subdivision C--Review

21 Review of Act

(1) The Minister is to carry out a review of the operation and effectiveness of this Act as soon as practicable after the expiry of 5 years from its commencement, having regard to all matters that appear to the Minister to be relevant to the operation and effectiveness of this Act.

(2) The Minister is to prepare a report based on the review and, as soon as is practicable after the report is prepared, is to cause it to be laid before each House of Parliament.

Part 3--Divestiture of shares etc. by ministers

22 Simplified outline of this Part

The following is a simplified outline of this Part:

This Part provides controls over the holding of shares, options, futures, debentures, stocks, bonds or any like security and the trading of these by ministers.

This Part does this by providing that:

(a) ministers must divest themselves of all shares, options, futures, debentures, stocks, bonds or any like security within 28 days of taking office under section 64 of the Constitution; and

(b) ministers must place beyond their control for the duration of their ministry any shares and securities of the kind mentioned in paragraph (a).

23 Purpose of this Part

The purpose of this Part 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.

24 Interpretation

In this Part, unless the contrary intention appears:

asset means shares, options, futures, debentures, stocks, bonds or any like security.

blind trust means an arrangement where the assets of a person are transferred to a trustee who, without consulting the person and being expressly prohibited by the terms of the trust from consulting the person, deals with those assets in an ordinary commercial manner (including sales of assets and purchase of further assets), on behalf of the person. For the purposes of this definition, a person must not be able to exercise any control over the assets placed in the blind trust.

futures has the same meaning as in the Corporations Act.

residual interest means an interest in the shares, options, futures, debentures, stocks, bonds or like security which a person had placed in the hands of a professional nominee or in a blind trust after the person was sworn in as a minister.

share has the same meaning as in the Income Tax Assessment Act 1997 and includes stocks and options to purchase or obtain shares.

securities has the same meaning as in the Corporations Act.

25 Ministers to divest ownership of all shares etc.

(1) A minister commits an offence if, within 28 days of becoming a minister, the minister does not divest himself or herself of all control of:

(a) all securities (including, but not limited to, all stocks, shares, debentures or bonds, interests in managed investment schemes and units of such shares); and

(b) all derivatives (including, but not limited to, all options, futures and warrants); and

(2) The transfer by a minister to a spouse, de facto partner or family member does not constitute a divestiture within the terms of subsection (1).

(3) A minister may transfer control of any interest in any matter mentioned in subsection (1) to a professional nominee or a blind trust providing the minister or any member of the minister's family exercises no control over the operation of the nominee or the blind trust.

Penalty: Revocation of commission as a minister and a fine of 2000 penalty units.

26 Ministers prohibited from purchasing shares etc.

A minister commits an offence if the minister, during the period of his or her ministry:

(a) purchases:

(i) any securities (including, but not limited to, all stocks, shares, debentures or bonds, interests in managed investment schemes and units of such shares); or

(ii) any derivatives (including, but not limited to, all options, futures and warrants); or

(iii) any legal or equitable rights or interests in such securities or derivatives; or

(b) instructs any person to purchase:

(i) any securities (including, but not limited to, all stocks, shares, debentures or bonds, interests in managed investment schemes and units of such shares); or

(ii) any derivatives (including, but not limited to, all options, futures and warrants); or

(iii) any legal or equitable rights or interests in such securities or derivatives.

Penalty: Revocation of commission as a minister and a fine of 2000 penalty units.

27 Ministers to declare shareholding interest

A minister commits an offence if the minister does not notify cabinet in writing as part of a cabinet submission of his or her residual interest in a matter which is the subject matter of, or related to, the cabinet submission.

Penalty: Revocation of commission as a minister and a fine of 2000 penalty units.

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

28 Simplified outline of this Part

This Part implements measures:

(a) to ensure that ministers and ministerial advisers do not act after they leave office in such a manner as to take improper advantage of their previous office; and

(b) to enhance public confidence in the integrity of ministerial office holders and the independence of the decision-making processes of government by establishing clear rules of conduct respecting conflict of interest for, and post-separation practices applicable to, ministers and ministerial advisers; and

(c) to eliminate the possibility of preferential treatment or privileged access to government being obtained from or through ministers and ministerial advisers after they have left office.

29 Interpretation

In this Part, unless the contrary intention appears:

ceasing to be a minister in relation to a minister means ceasing to be a minister in accordance with section 64 of the Constitution.

department or agency includes any body for which the minister had ministerial responsibility during his or her term as minister.

former minister means a minister who has ceased to be a minister in accordance with section 64 of the Constitution.

former ministerial adviser means a person who has ceased to be employed as a ministerial adviser in accordance with the Members of Parliament (Staff) Act 1984.

ministerial adviser means a person appointed as a member of staff of an office-holder in accordance with Part III of the Members of Parliament (Staff) Act 1984, if that appointment is to the level, or is remunerated at the level equivalent to, persons appointed as Senior Executive Service employees in accordance with Part 4, Division 2 of the Public Service Act 1999.

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

Ministers and ministerial advisers must not allow themselves to be influenced in the conduct of their official duties and responsibilities by plans for or offers of employment or other remuneration proposed for a time after they cease to be ministers or ministerial advisers.

31 Conduct after ceasing to be a minister

A former minister must not, within two years after ceasing to be a minister:

(a) provide advice for personal profit or for commercial advantage on any aspect of the work of any department or agency for which the former minister had ministerial responsibility for any period of time during the last two years of service as a minister; or

(b) accept employment with a person or entity, association or union or an appointment to the board of directors or equivalent body of an entity that had significant dealings with a department or agency for which the former minister had ministerial responsibility for any period of time during the last two years of service as a minister; or

(c) enter into a contract for services with any commercial entity which had significant commercial dealings with any department or agency for which the former minister had ministerial responsibility for any period of time during the last two years of service as a minister; or

(d) make representations in return for any consideration for or on behalf of any other person or entity to a department or agency for which the former minister had ministerial responsibility for any period of time during the last two years of service as a minister.

32 Conduct after ceasing to be a ministerial adviser

A former ministerial adviser must not, within two years after ceasing to be employed as a ministerial adviser:

(a) provide advice for personal profit or for commercial advantage on any aspect of the work of any department or agency for which the ministerial adviser's minister had ministerial responsibility for any period of time during the ministerial adviser's last two years of employment with the minister; or

(b) accept employment with a person or entity, association or union or an appointment to the board of directors or equivalent body of an entity that had significant dealings with a department or agency for which the former ministerial adviser's minister had ministerial responsibility for any period of time during the ministerial adviser's last two years of employment with the minister; or

(c) enter into a contract for services with any commercial entity which had significant commercial dealings with any department or agency for which the former ministerial adviser's minister had ministerial responsibility for any period of time during the ministerial adviser's last two years of employment with the minister; or

(d) make representations in return for any consideration for or on behalf of any other person or entity to a department or agency for which the former ministerial adviser's minister had ministerial responsibility for any period of time during the ministerial adviser's last two years of employment with the minister.

33 Exceptions

Sections 31 and 32 do not prevent a former minister or a former ministerial adviser from taking action on behalf of or engaging in the service of:

(a) a charitable organisation; or

(b) official duties on behalf of the Commonwealth; or

(c) duties on behalf of an international organisation in which the Commonwealth participates, if the Minister for Foreign Affairs certifies that such duty is in the interests of the Commonwealth; or

(d) duties on behalf of a foreign government or an instrumentality of a foreign government, if the Minister for Foreign Affairs certifies that such duty is in the interests of the Commonwealth; or

(e) a political party.

34 Offences and penalties

A person who contravenes section 30, 31 or 32 is guilty of an offence.

Penalty: Imprisonment for two years or a fine not exceeding 2500 penalty units.

Lobbying and Ministerial Accountability Bill 2007 No. , 2007

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LOBBYING AND MINISTERIAL ACCOUNTABILITY BILL 2007