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Sect 2.8 Working with lobbyists: the Lobbying Code of Conduct and post separation lobbying contacts with Government

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, that came into effect on 1 July 2013. Agencies may continue to use the
guidance for reference, but should be aware that it may not reflect current legislative requirements.

Relevant Values and elements of the Code of Conduct

APS Values

  • The APS is openly accountable for its actions, within the framework of Ministerial responsibility to the Government, the Parliament and the Australian public.
  • The APS is responsive to the Government in providing frank, honest, comprehensive, accurate and timely advice and in implementing the Government's policies and programs.

APS Code of Conduct

  • An APS employee must disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment.

The purpose of this chapter is to set out policies for public servants in relation to contacts with professional lobbyists and post-separation employment as lobbyists. It follows the release by the Special Minister of State and Cabinet Secretary of the Lobbying Code of Conduct on 13 May 2008.

It begins with a description of the Lobbying Code of Conduct (the Code) which applies to Ministers, Parliamentary Secretaries, staff employed under the Members of Parliament (Staff) Act 1984 (MOPS Act), APS employees, consultants and contractors engaged by an APS agency and members of the Australian Defence Force. The
Code refers collectively to these groups as 'Government representatives'.

The Lobbying Code of Conduct

The Code is intended to ensure that individuals or organisations that act on the behalf of others to seek to influence Government representatives are required to adhere to appropriate standards of probity and transparency. A main aim of the Code is to ensure that Government representatives who deal
with lobbyists are able to establish which interests the lobbyist represents in order to make appropriate judgments about their motives. The Code therefore defines a lobbyist as any person, company or organisation that conducts lobbying activities on behalf of a third party client.

The Code does not apply to people who are directly employed within a company or organisation to make representations to Government, since this does not involve the issue of the need to establish or disclose third party interests. It also it does not apply to charitable or religious organisations or
to associations or oganisations constituted to represent the interests of their members. A full list of the exemptions is set out in Section 3 of the Code.

Other elements of the Code include:

  • the establishment by the Department of the Prime Minister and Cabinet of an online Register of Lobbyists. Lobbyists are required to register and update their details (including the names of third parties by whom the lobbyist is retained) on the Register before seeking access to Government representatives.
    The Register came into operation on 1 July 2008
  • the requirement for lobbyists to inform Government representatives that they are lobbyists, that they are currently registered, the third party interests they represent and the issues that the third party wishes the lobbyist to raise
  • the establishment of a set of principles (Section 8) requiring lobbyists not to engage in corrupt, dishonest or illegal activity, to make all reasonable effort to establish the truth of the information provided by the parties they represent, not to misrepresent or exaggerate the extent of their access
    to Government and to avoid personal and political conflicts of interest
  • restrictions on former Government representatives engaging in lobbying activities.

Application of the Code to the APS

Lobbyists seek to influence Government not only by direct approaches to Ministers and their offices, but also through contacts with public servants. These contacts normally focus on introducing their clients' views and related information into policy and programme development processes. While this
is a legitimate activity that can improve the quality of advice to Government, it must be subject to similar standards of probity and transparency as lobbying contacts with Ministers.

For this reason the Lobbying Code of Conduct will apply to all APS employees. This means, in short, that:

  • public servants will only be able to deal with registered lobbyists
  • the lobbyists will be obliged to inform public servants of the third party interests they represent and the issues that the third party wishes the lobbyist to raise.

It also means that agencies should have frameworks and processes in place for managing contacts with lobbyists. These should include measures to ensure that agency staff are aware of:

  • the Lobbying Code of Conduct and their obligations in dealing with lobbyists
  • the Register of Lobbyists and how they may access it, and
  • the requirement, in section 9 of the Code, to report breaches to the Secretary of the Department of the Prime Minister and Cabinet (PM&C). Agencies should have an internal point of contact for any such reports which could then be passed at agency level to PM&C.

The restrictions on public servants dealing with lobbyists also apply to a person engaged as a contractor or consultant by an APS agency where they are required to or likely to be required to have contacts with lobbyists. Agencies will need to include clauses in contracts to ensure that contractors
and consultants are aware of and comply with the Lobbying Code.

As indicated above, the Code applies only to professional lobbyists who represent the interests of a third party. It does not apply to contacts with people who are directly employed by a company or an organisation and who make representations on behalf of that company or organisation. Nor does it apply
to technical, professional, or programme management contacts or co-operation between the APS and outside companies or organisations.

Avoidance of conflict of interest

APS employees need to be aware of and to manage any actual or perceived conflict of interest between their official duties and their relationships with lobbyists. This could include personal, financial or other interests in the organisations the lobbyist is representing or some sort of personal or
social relationship with the lobbyist.

The APS Code of Conduct requires public servants to disclose, and take reasonable steps to avoid, any conflict of interest (real or apparent) in connection with APS employment, and agencies should remind public servants of their responsibilities in relation to lobbyists. SES and other public servants
covered by the requirement to formally declare personal interests should ensure that they include in their declaration any actual or potential conflicts of interest in their relationship with lobbyists. Detailed guidance on the management and declaration of conflicts of interest is contained in Chapter
11 of this guide.

Post APS employment as a lobbyist

SES employees and equivalents who leave the APS after 1 July 2008 shall not, for a 12 month period, engage in lobbying Government representatives on any matters on which they have had official dealings as public servants over their last 12 months of employment. Similar rules apply to members of the ADF at the level of Colonel and above.

The Code also places post separation employment restrictions on other categories of Government representatives:

  • former Commonwealth Ministers, and Parliamentary Secretaries who left office after 6 December 2007 must not engage in lobbying activities for a 18 month period after they leave on any matters on which they have had official dealings over the last 18 months in office
  • former MOPS Act staff employed in the Offices of Ministers or Parliamentary Secretaries at Adviser level and above who leave after 1 July 2008 must not engage in lobbying activities for a 12 month period after they leave on any matters on which they have had official dealings over their last 12 months
    in employment.

Agencies will need to ensure that the systems they put in place to manage contacts with lobbyists include a requirement for staff to seek assurances from the lobbyists who approach them that they are not subject to any of these post employment restrictions. Lobbyists who give false or misleading information
in response to this request could be in breach of the Code. The Register of Lobbyists itself will not hold past employment details of lobbyists including ex-APS employees.

Agencies could reinforce this system by seeking assurances from staff on separation that they will adhere to the restrictions, but such assurances would rely primarily on goodwill and may not be legally binding. Obtaining declarations from staff when they join an agency would have greater legal force,
but agencies may need to consider any extra administrative burden that this might involve.

The restrictions on post separation employment as lobbyists do not apply to former APS employees who are directly employed by outside companies or organisations and who may undertake representational work on their behalf. Nor do they prevent former APS employees who obtain employment in private sector
areas closely aligned to their former APS responsibilities from exchanging technical and professional advice with APS staff where they are mutually involved in projects or programmes.

Former public servants are, however, still covered by the provisions of the Crimes Act 1914 and other legislation that prohibits the unauthorised disclosure or use of information they became aware of while employed by the Commonwealth. Some agencies, such as Defence, have specific protocols in place for managing the movement of former public servants into the private
sector where security and other issues are a factor.

Management of these and other types of post separation employment issues is addressed in Chapter 14 of this guide.