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ICAC seeks comment on lobbying conduct and regulation in NSW
Kate Schwager

ICAC seeks comment on lobbying conduct and regulation in NSW

The NSW Independent Commission Against Corruption (ICAC) is seeking public input as part of a new investigation it is conducting into the regulation of lobbying, access and influence in NSW (Operation Eclipse).

The Commission released a discussion paper today, Enhancing the democratic role of direct lobbying in NSW, which, amongst other matters, addresses principles of transparency, integrity and fairness concerning or associated with lobbying practices in NSW. The Commission engaged academics Dr Yee-Fui Ng, Senior Lecturer, Monash University Faculty of Law, and Professor Joo-Cheong Tham, Melbourne Law School, University of Melbourne, to prepare the discussion paper, which invites respondents to address questions based around the main principles.

The discussion paper is appended to an introductory paper, The regulation of lobbying access and influence in NSW: a chance to have your say, which also explains how to make a submission. In this paper, ICAC Chief Commissioner the Hon Peter Hall QC notes that lobbying, when conducted on proper lines, can have beneficial outcomes. However, it could also be argued that “lobbying might lead to decisions by government and/or public officials in circumstances of unjustified secrecy, where processes are sometimes criticised as lacking transparency or accountability, while particular groups or the public generally are denied the opportunity of being heard.”

“These criticisms appear to be based on two concerns. First, that secret lobbying by certain individuals or organisations, in their nature, undermines democratic processes. Secondly, such secret activities carry the risk of inappropriate or improper decision-making and, hence, a risk of corruption. Measures already in place in NSW go some way towards providing transparency of lobbying activities and decision-making, and safeguarding against undue influence and self-interest. However, there is an arguable case that they do not go far enough,” Chief Commissioner Hall said.

Operation Eclipse follows the Commission’s 2010 lobbying investigation, Operation Halifax, which resulted in recommendations published in the report, Investigation into corruption risks involved in lobbying, to tighten the lobbying legislative and regulatory framework in NSW. While some of the key elements from Operation Halifax were implemented (see Appendix B to the discussion paper for more details), the failure to adopt all the recommendations has left open the issue of transparency and accountability in government decision-making.

“Although the Commission regards the implementation of the recommendations made at that time as a step in the right direction, regulatory practice in other jurisdictions suggests that a review of lobbying practices in NSW is now overdue,” Chief Commissioner Hall said.

“Given the importance of trust and confidence in government and public administration, it is timely for the Commission to: consult further on lobbying practices; examine whether the interrelated principles of transparency, fairness, integrity and freedom of political communication are being upheld or not; and examine the options that are available for lifting standards of probity so as to ensure integrity in official decision-making.”

Like Operation Halifax, Operation Eclipse differs from investigations usually conducted by the Commission in that it is not concerned with examining whether any particular individual may have engaged in corrupt conduct, but rather seeks to examine particular aspects of lobbying activities and the corruption risks involved in the lobbying of public authorities and officials. 

The closing date for consultation responses is 24 May 2019. The Commission will then conduct analysis and follow up with respondents and experts, with a view to holding a public inquiry in late July/early August 2019.

Media enquiries: ICAC Manager Communications and Media, Nicole Thomas, 0417 467 801.

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