As has been recognised by the Independent Commission Against Corruption, lobbying is an acceptable and normal part of our society and in many cases is a part of a healthy democratic process. Decision-makers can be provided with valuable information during the lobbying process.
Lobbying covers a wide variety of activities. Generally it involves the making of representations to Ministers, ministerial staff and other public officials on particular issues by special interest groups, individuals and professional advocates acting on behalf of others. Lobbying can also include representations from Members of Parliament.
Where Ministers or public officials are exercising statutory decision-making functions, particular care needs to be taken to ensure that any lobbying which occurs does not undermine public confidence in objective government decision-making.
The attached Guidelines for Ministers, ministerial staff and public officials in dealing with lobbyists (Attachment A) have been prepared to maintain the integrity of government decision-making processes. The Guidelines apply to all Ministers, ministerial staff and public officials who are lobbied in relation to the making of a statutory decision.
Also attached is the Protocol for the management of allegations made to Ministers, ministerial staff or public officials during lobbying (Attachment B). The Protocol sets out procedures for dealing with certain allegations which are made to a Minister, ministerial staff or a public official about another person (including public officials) involved in or affected by the exercise of a statutory decision-making function. It is important that such allegations do not affect the integrity of the decision-making process and are appropriately investigated where required.
Ministers should ensure that the Guidelines and Protocol are complied with.
GUIDELINES FOR MINISTERS, MINISTERIAL STAFF AND PUBLIC OFFICIALS IN DEALING WITH LOBBYISTS
Application of Guidelines
The Guidelines apply where lobbying occurs in respect of a decision which is proposed to be made under statute (a statutory decision) where the decision-maker is required to adhere to the principles of administrative law.
These Guidelines have been prepared to maintain the integrity of government decision-making processes.
The Guidelines apply to all Ministers, ministerial staff and public officials who are lobbied in respect of a proposed statutory decision. They apply where the person who is lobbied is the actual decision-maker as well as in those cases where the person who is lobbied is not the decision-maker and another Minister or public official is responsible for making the decision.
The Guidelines apply to lobbying by any person, including principals seeking or resisting the making of the proposed statutory decision, special interest groups, professional advocates, Members of Parliament and any other person.
While the principles set out in these Guidelines are not required to be complied with where lobbying occurs on other issues (such as lobbying which occurs in relation to legislative changes), the principles may still provide some useful guidance.
Principles to be observed
Ministers, ministerial staff and public officials should ensure that lobbying in relation to a statutory decision:
(a) is undertaken in accordance with appropriate practices; and
(b) does not undermine the integrity of decision-making processes.
In some cases, it might even be wise for Ministers, ministerial staff and public officials to consider taking such reasonable steps as are available to them to try to ensure that lobbying does not occur at all while the proposed statutory decision is being made.
In particular, Ministers, ministerial staff and public officials who are lobbied should:
(i) be alert to the motives and interests of those who seek to lobby in relation to a statutory decision; (ii) be aware of which person, organisation or company a lobbyist is representing;
(iii) ensure that the making of a statutory decision is not prejudiced by the giving of undertakings to an interested party prior to the decision-maker considering all relevant information;
(iv) avoid doing or saying anything which could be viewed as granting a lobbyist preferential treatment;
(v) ensure as a decision-maker that, as far as possible, competing parties are treated fairly and consistently - for example, it may be necessary to provide a group with an opportunity to make submissions in relation to a proposed decision in circumstances where another group with a different view has been afforded an opportunity to make representations on the proposed decision;
(vi) ensure that confidential information is not disclosed to a lobbyist;
(vii) be alert to attempts by lobbyists to encourage decision-makers to consider matters which are extraneous or irrelevant to the merits of the decision under consideration;
(viii) consider keeping records of meetings with lobbyists, and if necessary having another person attend the meeting as a witness or to take notes; and
(ix) ensure that no action is taken which involves a breach of a relevant code of conduct (such as the Ministerial Code of Conduct), for example, by accepting inappropriate hospitality or gifts from lobbyists.
PROTOCOL FOR THE MANAGEMENT OF CORRUPTION ALLEGATIONS MADE TO MINISTERS, MINISTERIAL STAFF OR PUBLIC OFFICIALS DURING LOBBYING
Application of the Protocol
This Protocol applies to lobbying in relation to decisions which are proposed to be made under statute (a statutory decision) where the decision-maker is required to adhere to the principles of administrative law.
This Protocol has been prepared to maintain the integrity of government decision-making processes.
The Protocol applies to all Ministers, ministerial staff and public officials who are lobbied in respect of a proposed statutory decision. It applies where the person who is lobbied is the actual decision-maker as well as in those cases where the person who is lobbied is not the decision-maker and another Minister or public official is responsible for making the decision.
The Protocol applies to lobbying by any person, including principals seeking or resisting the making of the proposed statutory decision, special interest groups, professional advocates, Members of Parliament and any other person.
The protocol also applies where any person makes an allegation to which the Protocol applies (described in the next paragraph), even if that person might not be characterised as a "lobbyist", in circumstances where the Minister, ministerial staff member or public official is aware that the allegation relates to a person who has an interest in or will be affected by a proposed statutory decision.
The Protocol applies to an allegation made by a lobbyist (in the broader sense described in the preceding paragraphs) that another person who has an interest in or will be affected by a statutory decision has engaged in criminal, corrupt or other improper conduct.
Where a lobbyist who is lobbying in relation to a statutory decision, makes an allegation to which this protocol applies to a Minister, ministerial staff or a public official, the allegation should be documented and forwarded (together with any material which has been provided in support of the allegation) to the head of the agency which is making the relevant decision or which is advising the Minister who is to make the relevant decision (the relevant agency head). Where the allegation is made to a public official who is also the relevant agency head, the allegation should simply be documented.
When documenting and forwarding the allegation to the relevant agency head, no comment should be made on the substance of the allegation (such as whether the alleged conduct is considered to constitute improper or corrupt conduct or whether the alleged conduct in fact occurred).
The purpose of referring the allegation is to enable the relevant agency head to consider and, if he or she is not the decision-maker, advise the decision-maker on the steps (if any) that need to be taken as a result of the allegation having been made in order to protect the integrity of the decision-making process.
This should include consideration of whether the allegation is relevant to the statutory decision which is to be made. The consideration given to this issue (including advice that no consideration should be given to the allegation) should be documented.
If the allegation is relevant to the statutory decision, the relevant agency head should also advise on how (if at all) the decision-making process should be adjusted as a result of the allegation having been made.
For example, after considering all relevant factors (such as the impact on any investigation of the allegation of which the agency head is aware), it may be necessary to afford the person against whom the allegation is made an opportunity to respond to the allegation.
It may be necessary to arrange for the agency or another body, having regard to the evidence (if any) which has been provided, to investigate the allegation. The agency head should consider and advise on whether the decision-making process should be altered so that the results of any investigation can be taken into account.
If the allegation is of a type to which section 11 of the ICAC Act applies, namely the allegation contains reasonable grounds causing the agency head to suspect corrupt conduct does, or may, exist, the agency head should refer the allegation to ICAC in accordance with that section. The public official who refers the allegation to the agency head will also be subject to the duty in section 11 if that section applies to him or her.