When is a secret meeting for lobbying not a secret meeting?

Jul 8, 2021

ICAC urges ban on secret meetings with lobbyists.  In other words, ICAC practitioners imagine a new system for governing…or do they?   What is ‘their system’s’ purpose and how might it work out in the long run?  Some general features pertain.

The professional lobbyist turns up for a conversation with a minister or civil servant. From the ‘credible threat’ to some hard facts and figures, the lobbyist will be case-making for the client – putting the best foot forward. Under these proposed rules, all this would be recorded and made public. Compared to now, how much difference would this make to the government’s decision?

 

Transparency is undoubtedly good for good government. Secrecy is the enemy of success (but not of successful politicians of course, there’s a rub), except in war. The more the company seeking preferential treatment from the tax, subsidy, contract, environmental regulation, employment practice or other regimes has to put its cards on the table the less onerous it is for the tax-payers, the polluted, the precariat and the ripped-off consumers to counter these cards. Albeit, with a fraction of the lobbying budget.

 

But, such transparency rules, whilst welcome, will come up against what might be termed the flagrancy culture of today’s politics, where obfuscation, spin, and indeed straight lying is the norm to which voters have become acclimatized. Yes, the minister has bent to a lobby, but he simply denies it.

 

Second, the deals done today behind closed doors are never explicit verbally in a ‘government decision for company donation’ manner. It’s in the eyes. This will continue. Thirdly, transparency won’t enable generalist politicians and civil servants to have sufficient understanding of an industry to interrogate its assertions effectively. So, whilst it will be good to see the guilty parties squirm more and more often, and the odd decision may change, transparency on its own is far from sufficient to counter the scourge of lobbying. Indeed, tactically, it’s the equivalent of the long grass of a royal commission.

 

The key to ending preferential lobbying is to remove the incentives on people in government to accede to it. Why does Rupert Murdoch have no influence in Brussels with the EU – because he has no leverage via his media empire. The decision-makers – mainly the officials – are here today, tomorrow and the next day regardless. A pluralist political party structure makes any attempt to capture a majority impossible. Right. So how can these conditions be replicated in Australia? And without the non-media-mogul lobbying that is ubiquitous in the EU?

 

At a local governance level (not necessarily traditional councils), the human race has got well beyond the need for political parties. These are holding us all back. Participative and deliberative democracy – alongside uber transparency – should be the new normal that would liberate us all from corporate wealth stealing. Yes, it works, the Swiss are at it constantly. It’s an excellent way to put significant decisions on the public table that today the flagrancy keep to themselves.

 

At all levels, proper Proportional Representation keeps many a power-addict at bay (think of NZ or possibly Germany, not Australia). Zero funding of political parties or candidates by companies and the wealthy is de rigueur for any functioning polity. Then there’s feedback – the biggest hole in every system of government in the world at every level. At present, the lobbyist can rely on their preferences for action becoming concealed in the wall of political noise. This has many ramifications, but feedback represents a strong check through exposure – a form of institutional police officer waiting round the corner at the end of the road. Thus, the outcomes of a lobbied regulation would be monitored, publicly. If found to be unjustified it would be abandoned or revised.

 

More than this, without feedback on its decisions and operations, how does any organization know if it’s working? We are not talking about endless metrics here, largely used to beat up those below in the ‘belief’ that highly complex public acts – like schooling – can be systematically controlled from the centre to perform. We all know that’s nutty but kept going by the high control needs and inadequate education of those typically attracted to today’s faulty systems of governing.

 

Feedback comes in many forms. It is always against purpose, or the point of a governmental act. For example, the purpose of fish quotas is not, of itself, to limit the quantity of fish caught but to produce sustainable fish stocks. The purpose of governance free from preferential lobbying is to govern in the best interests of citizens inhabiting a world new to human history brought about by major disruptions to the key cycles (carbon, nitrogen, phosphorus, water, ‘air’) that make a quality life on this planet possible.

 

For feedback to happen, it must be institutionalized, be totally independent of government, aimed at organizational learning and not blame, and with the teeth of abandonment powers. Feedback has to go into a tamper-proof constitution, placed where politicians can’t manipulate it, but amenable to change by the citizenry. It’s the fourth separation of powers – after the judiciary, legislature and executive separations on which most current intentionally democratic constitutions are built.

 

Clearly ICAC staff recognise that the current system is not fit for purpose – in its Operation Eclipse report, just released, arguments are made for a legislative overhaul, saying ‘current safeguards were weak and administered by the NSW Electoral Commission, an agency ill-suited to monitoring transparency of decision-making’. A dedicated lobbying commissioner and office with oversight responsibilities is proposed.  ICAC makes 29 recommendations to address identified shortfalls in earlier legislation, and to further improve the regulation of lobbying in NSW. Is it enough though?  Must NSW lead the way?  What are the cost and logistical implications of expanding consideration to local government (as recommended) as well as monitoring and compliance enforcement?  And what if the NSW model were expanded to other state, territory and federal jurisdictions?  More regulations inadequately enforced, policies with no feedback or learning and adaptation come to mind. Is decadal incremental progress all that is on offer to combat this most insidious of social problems? Seems like effort to do the wrong thing righter.  First-order change when second-order change is needed.

 

Yes, to transparency of course, but that’s merely a start. And its danger in being a bit more than a token but far less than a solution is that it will put the genie back in the bottle for another 10 years. Our sense and hope is that it is time to change the conversation. We are well beyond making the case for transparency and institutionalized feedback and ending inherently bent funding of parties. These are all in the ‘bleeding obvious’ category. So, sort it out. Propose a design for a system that will be effective in meeting its social purpose.

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