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the lobbying by the fossil fuel industry and by military "experts" cost us dearly.....

The major obstacle to lobbying reform is that for members of parliament, their staff and senior officials, lobbying provides a very lucrative income when they leave parliament, the military or the public service. So they refuse to act on the lobbying scourge.

 

The lobbying scourge    By John Menadue

 

Submission to Senate Finance and Public Administration References Committee re Lobbying, February 8, 2024.

Regulation of the way we manage lobbying in Australia is an even more important issue than a National Integrity Commission.

The lobbying of governments around the world by the fossil fuel industry is a major reason for the Climate Emergency we now face. There is a revolving door between our senior military officers and the arms industry, the gun runners who offer them lucrative retirement jobs.

The major parties have shown themselves to be disinterested in the lobbying scourge. The ranks of lobbyist are filled with ex Ministers, ex political staffers and former party officials.

There is an urgent need and opportunity for political parties to cooperate to force legislation for the effective regulation of lobbyists so that the public interest is always paramount

A major reason for the loss of trust in governments and parliaments is the way powerful special interests with their lobbyists have come to dominate the public debate and skew decisions in their favour. The fossil fuel sector is the most blatant and recent example.

The widespread problem

Lobbying has grown dramatically in recent years, particularly in Canberra. It now represents a growing and serious corruption of good governance and the development of sound public policy. In referring to the so called ‘public debate’ on climate change, Professor Ross Garnaut highlighted the “diabolical problem” that vested interests brought to bear on public discussion on climate change.

Martin Parkinson, a former secretary of the Department of the Prime Minister and Cabinet, has warned about “vested interests” who seek concessions from government at the expense of ordinary citizens. In referring to opposition to company tax and carbon pollution reform policies, Ross Gittins in the SMH said “industry lobby groups [have] become less inhibited in pressing private interests at the expense of the wider public interest. [They] are ferociously resistant to reform proposals.”

The problem is growing

There are about 280 lobbying entities registered in Canberra with the Department of Prime Minister and Cabinet. They lobby on behalf of over 3600 clients and employ close to 900 staff as lobbyists.

On top of these “third party” lobbyists, there are the special interests who conduct their own lobbying, such as the Minerals Council of Australia, the Australian Pharmacy Guild and the Business Council of Australia.

These lobbyists encompass a range of interests including mining, clubs, hospitals, private health insurance funds, business and hotels that have all successfully challenged government policy and the public interest in many ways.

Just think what the Minerals Council of Australia did to defeat the mining super profits tax and bring down Kevin Rudd as prime minister. That same council led the campaign to defeat the carbon tax which remains the most sensible way to cut carbon pollution by taxing “externalities”.

There are the activities of Clubs Australia to thwart gambling reform. With its non stop advertising campaign the gambling industry pretends to have a social conscience but telling victims in small print to ‘gamble responsibly’.

We saw the socially damaging role of the Beverage Council of Australia in undermining expert opinion on sugar on ways to address the growing epidemic of obesity and diabetes.

Before the 2007 election the private health insurance industry received a confidential letter from Kevin Rudd that in government the subsidy would continue. We learned about it years later.

It is estimated that over 2000 lobbyists in Canberra have ‘orange passes’ that give them unescorted access to the private areas of Parliament House. It is also easy walking to Parliament House from their many offices in Barton and Kingston such as the Minerals Council of Australia, the Pharmacy Guild, AMA, Lockheed Martin, Northrop Grumman and the Business Council of Australia to mention just a few. They are also located in easy walking distance to Prime Minister and Cabinet, Treasury, Finance and the National Press Club. A real Lobbyland!

Lobbying is about winning political favours that corrupt markets and prevent competition.

Land rezoning is the most blatant example. Get a favourable re-zoning and dramatically increase the value of the property.

Secret lobbying is pervasive and insidious. It must be made transparent and drastically curbed but without limiting the right to be heard by such important organisations as ACOSS, Red Cross and World Vision.

With journalism under-resourced, the media depends increasingly on the propaganda and promotion put into the public arena by lobby groups. Many of the so-called economic and business economists we read, hear and see on our media are in the employ of the banks and accounting firms with their own self-interested agendas. It was no surprise that they gave us no inkling of the malaise and corruption of the banks. Only a royal commission exposed what was really happening

The wealthy private schools with their lobbying and political clout are obstacles to needs-based funding, which is necessary for both equity and efficiency reasons.

Much of the policy skills in Canberra departments have been downgraded and “policy” work is contracted out to accounting and consultancy firms with poor policy skills and no corporate memory. This handing out of work is done in the name of downsizing government but it gives a major advantage to those accounting and business associates and their lobbyists who work for large and powerful corporations. That makes it harder for the public service to safeguard the public interest against lobbyists with their incessant demands for favourable treatment. Inexperienced and young ministerial staffers are much more likely to listen to vested interests with their lobbyists.

So what reforms are necessary?

Some States are beginning to address the scourge of lobbying but the Commonwealth Government is a laggard.

Federal lobbyists have to be registered with the Department of Prime Minister and Cabinet, but this is grossly inadequate. They should also be obliged to promptly, publicly and accurately disclose the discussions and meetings they have had with ministers, shadow ministers and senior public servants. That same rule should apply to vested interests such as the Minerals Council of Australia, which lobbies directly on its own behalf. They are the most blatant and anti social lobbyists of all.

All lobbyists with their orange passes should be banned from parliament houses across Australia. Let them lobby MPs elsewhere.

All proposals by special interest groups should be accompanied by a public interest impact statement prepared by an independent and professional body. This statement should be made public and would be attached to representations from the interest group. Major private consulting firms and the four large accounting firms should be excluded from this process as many of them have shown themselves to be compromised in the interests of their clients.

Think tanks such as the Institute of Public Affairs and the Sydney Institute, which are secretly funded and act as fronts for vested interests, should not receive tax benefits.

Government departments such as Health, which are especially influenced by special interests, should have different governance arrangements. The traditional minister/department model in the Health Department is a happy hunting ground for lobbyists and vested interests, significantly undermining and sabotaging urgent health reforms. The Reserve Bank, composed of independent and professional persons, has shown the benefit of governance arrangements in keeping vested interests at bay and promoting an informed public debate. We need such an arrangement in other important policy areas as well.

No minister or senior official should work with a vested interest group that they have been associated with for at least three years after retirement or resignation. It is estimated that more than 50 per cent of registered lobbyists have previously worked in government, for the Coalition and Labor.

Adequate funding of the ABC, to ensure it can assert the public interest and promote public debate, is now more important than ever. The ABC, despite its obvious shortcomings, is still the most trusted media institution in the country. News Corp is the least trusted.

Major reform of election funding to stop powerful groups buying political favours is essential.

Citizen assemblies of randomly selected people who are fully informed on key public issues could assert the public interest and help governments counter powerful vested interests.

The problem of vested interests and their corruption of public debate must be tackled. This is urgent if we are to have democratic renewal, restore some faith in our public institutions and develop sound public policies.

The scourge of lobbying and the undermining of good and open government must be dealt with urgently. A great deal is at risk.

But a major obstacle to reform is that for members of parliament, their staff and senior officials, lobbying provides a very lucrative income when they leave parliament or the public service.

Powerful lobby groups not only promote their own interests but compromise those who should be supervising them — members of Parliament.

An earlier version of this post appeared, Sep 14, 2022 in P&I and is available here.

https://johnmenadue.com/the-lobbying-scourge/

 

it's time for being earnest.....

hiding emissions....

How accurately are methane emissions reported and whose estimates can you believe? Who should be the last producers of oil and gas? What are Australia’s commonest birds? 

 

How well do you know our Aussie birds?

1          Which of the following are among Australia’s commonest ten birds:

  • Rainbow Lorikeet
  • Red Wattlebird
  • Sulphur-crested Cockatoo
  • Australian White Ibis
  • Silver Gull

2          Name one of the three commonest bird species in your state or territory.

Drilling into oil and gas (3)

The histogram below displays three different estimates of the global methane emissions (in million tonnes, Mt) from the production and use of oil and gas in 2023. The IEA’s estimate is 77 Mt. The estimate produced by the UNFCCC, based on nations’ reporting of their emissions, is 38 Mt.

But the estimate of methane emissions produced by the industry themselves (the right-hand column in the histogram) is only 5 Mt, although this needs a little explanation. The Oil and Gas Methane Partnership (OGMP 2.0) covers about a third of oil and gas producers and their estimate of their own methane emissions in 2023 is the lower, dark blue part of the column (2 Mt). This estimate has been extrapolated to cover the other two-thirds of producers (3 Mt), the green part on top – hence the total of 5 Mt. Accepting for just one moment that the OGMP reporting is accurate, it’s possible that the OGMP members are better at reducing their methane emissions than the non-members and that the green part of the column should be even larger.

Possible reasons for the large discrepancy between the OGMP and IEA estimates are that the industry is failing to report fugitive emissions from accidental methane leaks (which are known to be huge in some cases), flaring of gas, and the burning of gas by companies themselves to power their own activities.

Fundamentally, the companies either have little idea of where their emissions are coming from and how big they are (wilful incompetence) or they know very well and dissemble (dishonesty). Either way, it’s not a good idea to let the oil and gas industry (any industry for that matter) self-monitor unless the results are independently audited and made public.

Just for the record, the IEA estimates that all fossil fuels produced almost 120 Mt of methane emissions during 2023.

That all said, wetlands naturally produce almost 200 Mt of methane emissions each year, a topic I touched on a couple of weeks ago.

READ MORE:

https://johnmenadue.com/environment-oil-and-gas-producers-underreport-methane-emissions/

 

 

 

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orange access.....

 

Access, undue influence and the Constitution    By Anne Twomey

 

The sponsored pass system for lobbyists to access Parliament House opens the door to undue influence and potentially corrupt behaviour. Facilitating such opportunities is both unwise and inappropriate.

Lobbying can be an important means of informing Ministers and other parliamentarians about issues and the perspectives of particular groups in the community. 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. For this reason, it is important that there are appropriate measures in place to protect governmental integrity and public trust in the system of government.

Transparency of arrangements relating to the lobbyist register

The current Lobbyist Register only applies to those who engage in lobbying on behalf of third party clients – not in-house lobbyists for corporations or peak bodies. This has a flow-on effect to the ‘Lobbying Code of Conduct’, which only applies to lobbyists for third parties and therefore does not extend to most lobbyists. Clause 4(4) of the Code states that ‘this Code does not apply to any person, company or organisation, or the employees of such a person, company or organisation, engaging in lobbying activities on their own behalf rather than for a third party client’.

Yet the preamble to the Code refers to the ‘public expectation that lobbying activities will be carried out ethically and transparently’ and states that the Code is ‘intended to promote trust in the integrity of government processes and ensure that contact between lobbyists and Government representatives is conducted in accordance with public expectations of transparency, integrity and honesty’. It is unclear to me why such a public expectation does not extend to lobbying by in-house lobbyists and why their behaviour should not also be the subject of a Code requiring ethical behaviour and transparency.

The Lobbying Code of Conduct also provides in clause 12 that the lobbyist ‘must not engage in any conduct that is corrupt, dishonest or illegal, or unlawfully cause or threaten any detriment to a person’. The lobbyist ‘must use all reasonable endeavours to satisfy themselves of the truth and accuracy of all statements and information’ they provide to Government representatives. When making initial contact with a Government representative with the intention of conducting lobbying, the lobbyist must inform the Government representative whether they are on the Register of Lobbyists and for whom they are conducting the lobbying activities. It is unclear why these requirements do not extend to in-house lobbyists, who surely should also be subject to requirements of both ethical behaviour and transparency.

As a matter of transparency, the Register and the Code should be extended to include those who are paid to lobby governments on behalf of their employer. This is of particular importance if the current system of providing sponsored passes to in-house lobbyists continues so that such persons can have informal interaction and lobbying opportunities with Members of Parliament without the name or business of their employer necessarily being known.

The sponsored pass system for lobbyists to access Parliament House

According to recent press reporting, at least 1791 orange sponsored passes have been issued which allow the holder full access to the non-public areas of Parliament House.

While some of these are issued to family members of parliamentarians, the vast majority are issued to registered lobbyists and others such as representatives of businesses, peak bodies, charities, non-profit organisations, universities, and religious groups, who seek to influence Members and Senators – i.e. to lobby them.

This gives them a greater advantage over other organisations or members of the public who may want to influence Members and Senators, because the holders of the orange pass have much greater access and can ‘drop-in’ to a parliamentarian’s office without an appointment or casually run-in to them at Aussies when drinking coffee, or catch them as they return from a division in the chamber. It allows lobbying to occur in an informal and undocumented way, without a formal appointment recorded in a diary and without the attendance or knowledge of a staffer or official. In short, it opens the door to undue influence and potentially corrupt behaviour. Facilitating such opportunities is both unwise and inappropriate.

Access, undue influence and the Constitution

The relationship between preferential access to politicians, undue influence and corruption was considered by the High Court in the case of McCloy v New South Wales (2015) 257 CLR 178. It arose in the context of political donations being paid as a means of acquiring access to Ministers to seek to influence them. An orange pass is a less expensive manner of achieving similar access.

The judgments referred to the great underlying principle of the Constitution that the rights of individuals are secured by ‘ensuring each an equal share in political power’. French CJ, Kiefel, Bell and Keane JJ noted at [34] that a parliamentary committee report had acknowledged that ‘the purchase of access to politicians through large donations, which is not available to ordinary citizens, can result in “actual or the perception of undue influence”’ and that reform was needed to ‘restore public confidence in the integrity of the system’. Their Honours concluded at [45]:

Equality of opportunity to participate in the exercise of political sovereignty is an aspect of the representative democracy guaranteed by our Constitution. In ACTV, the law which was struck down was inimical to equal participation by all the people in the political process and this was fatal to its validity. The risk to equal participation posed by the uncontrolled use of wealth may warrant legislative action to ensure, or even enhance, the practical enjoyment of popular sovereignty.

Justice Gageler noted at [172] that the ‘influence which comes with the preferential access to government resulting from the making of political donations does not necessarily equate to corruption’, but he thought the line was ‘not always easy to discern’. He concluded at [184] that the elimination of preferential access to government is a compelling legislative objective.

None of this is to say that Parliament is constitutionally required to remove unequal access to politicians. 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. This would improve equity of access and eliminate the undue influence that might be exercised through informal contact within the parliamentary precincts that is facilitated by the orange pass. This should be combined with the publication of ministerial diaries, so that there is greater transparency about meetings involving lobbyists, as has occurred in New South Wales.

If, however, the lobbyists are so effective in their lobbying that they persuade parliamentarians to maintain their access to an orange pass, at the very least access to an orange pass should be limited to those lobbyists who are registered (with an expanded obligation to register, as discussed above) and the Register should also record which lobbyists have such a pass and who sponsored it.

Risks

I note that in the past, the excuse for denying such transparency has been that such a record could amount to a security risk. However, anyone with malicious intent who wished to steal or duplicate a parliamentary pass could surely do so from the large number of others who hold such passes, including parliamentary staff (white passes), ministerial staff (blue passes), public servants (green passes) and press gallery journalists (yellow passes), most of whose identity is public known or easily found out. There would be no need to publish the names of other orange pass holders, such as family members, or alternatively they could be provided with a different coloured pass

The other reason that has previously been given for not publicly revealing who holds an orange pass – that it would potentially impede access by parliamentarians to information provided by lobbyists – is nonsense. Lobbyists are paid to influence parliamentarians, and will seek to do so regardless of whether or not it is revealed publicly that they hold an orange pass. If they do not want to be publicly known to hold such a pass, then they can choose not to hold one and instead make an appointment to see the relevant parliamentarian and be treated as an escorted visitor.

A version of this article was first published as a submission to the Senate Finance and Public Administration References Committee review into Access to Australian Parliament House by lobbyists, February 2, 2024.

https://johnmenadue.com/access-undue-influence-and-the-constitution/

 

 

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