Circular No 2008/4: Requirements relating to the Lobbying Code of Conduct and post separation contact with Government

The purpose of this circular is to set out new 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 (Attachment A) on 13 May 2008.

2. The circular 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

3. 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.

4. 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.

5. Other elements of the Code include:

the establishment by the Department of the Prime Minister and Cabinet of a Register of Lobbyists that will be available on-line. Lobbyists will be 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 will come 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

6. 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.

7. 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.

8. 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.

9. 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 Code.

10. 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

11. Public servants 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.

12. 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 (see commission Circular 2007/1 of 4 June 2007, available at www.apsc.gov.au/circulars/circular071.htm) 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 of conflicts of interest is contained in Chapter 9 of the Commission’s publication APS Values and Code of Conduct in Practice: A guide to official conduct for APS Employees and Agency Heads. (available at www. apsc.gov.au/values/conductguidelines.htm).

Post APS employment as a lobbyist

13. 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 will apply to members of the ADF at the level of Colonel and above.

14. 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.

15. 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. Lobbyist who gave 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.

16. 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.

17. 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.

18. 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.

19. Management of these and other types of post separation employment issues is addressed in the guidelines issued with Commission Circular 2007/3 of 13 July 2007, Post Separation Employment. The guidelines attached to that circular have been expanded slightly to incorporate the policies on post separation employment as lobbyists, and a copy of the revised guidelines is at Attachment B.

Further information

20. The main ethical guidelines for the APS, APS Values and Code of Conduct in Practice: A guide to official conduct for APS Employees and Agency Heads, are being updated to reflect these changes. In the meantime, questions on this circular should be directed, in the first instance, to agencies’ central corporate areas. Agencies’ central corporate areas with questions on this circular should contact the APS Commission’s Employment Policy Adviceline—by phone on (02) 6202 3859 or e-mail employmentadvice@apsc.gov.au. It may be appropriate for more complex or sensitive queries to be dealt with in writing.

Georgia Tarjan
Group Manager
Policy Group
14 May 2008