Senate Legal and Constitutional Affairs Legislation Committee, , 6:31:31 to 7:10:39
Discussion covers breaches of the Lobbying Code of Conduct, the Foreign Influence Transparency Scheme, and the management of high-risk terrorist offender orders.
Topics: Lobbying, National security, Integrity
Speakers: Senator Steph Hodgins-May, Senator Michaelia Cash, Susan McKeag, Sarah Chidgey, Katherine Jones, Senator Jana Stewart, Senator Nita Green, Speaker 31
flow of things over there. I'll now hand the call to Sen Senator Hundreds. >> Thank you, chair. Um, I've got some questions in relation to lobbying. >> Thank you. U Minister, earlier this year, Four Corners reported 12 substantiated lobbying code of conduct breaches since mid 2023. Can you tell me what consequences were imposed in those or minister or yourself? I think I'll
ask um uh my colleague um Miss McKeag to answer those questions.
>> Um thank you, Senator. Um Susan McC, Assistant Secretary, Transparency Uh in relation to those 12 breaches, uh my understanding is um that action was taken uh through engagement with the the breach was rectified by way of information that was missing on the register or other circumstances corrected.
>> Okay. So there was no penalty. It was just a discussion or
Uh there was no um further action taken is is my understanding.
>> Okay. And have there been any more substantiated breaches since this
>> Sorry to say. What was the date of the article?
>> Um so sorry it's for uh four corners earlier this year. like let me I I'll get the date and
>> we may need to take it on notice and just check the records.
>> Yeah, sure please. That would be good. and similarly about uh any alleged breaches or investigations that are going on in relation to the lobbying code of conduct.
>> I think I would need to take that on notice.
>> Take that on notice. Sure. Um has the attorney general's department considered publishing anonymized investigation outcomes and compliance statistics
the department doesn't usually disclose uh information in relation to um investigations for privacy reasons.
>> Yeah, that's so so anonymized investigation outcomes. Is that something you've considered that might be in the public interest and worth
>> Uh the department provides statistics in relation to breach information uh in the course of estimates. It's something that we could um take under consideration.
>> Thank you. Thank you. Um yeah, I suppose the just the nub of it is why the media sorry why the public should have to wait for the media to report um on these sorts of um investigations to understand whether the rules are or aren't being enforced. So any further information that would provided by um yourselves would be I suppose preferable to having to wait for those media uh um stories and articles. Um, how many AG staff are dedicated to administering and enforcing the code and Yeah, if you want to if that needs to be clarified on notice, feel free. Are you circumstances would lead um the AG to sanction or remove a lobbyist from the register rather than issue a warning?
Uh it depends on the nature of the breach. Um so there are a range of sanctions uh under the lobbying code. Um uh we also have mandatory reporting periods. So twice a year lobbyists are required to update information on the register. um and lobbyists that don't comply with those registrations uh requirements may be removed from the register. Um that's a regular process that the department undertakes in relation to ad hoc reports of suspected breaches of the lobbying code. Then we investigate them on a case-by case basis uh and take into consideration um the nature of the breach um whether it was uh inadvertent or intentional and consequences in assessing its seriousness. Um and it's those serious breaches um that may be referred to the attorney sorry to the secretary for consideration of whether um a person should be removed from the register or not registered.
And just in relation to my previous question about the five FTA is it possible to also outline what their roles are when you provide that on notice that >> we can different functions. Thank you. Um the code restricts lobby on lobbying on matters which former officials had uh with which former officials had official dealings. Um AG has described this as having its um as having its ordinary meeting. Is there a documented interpretation underpinning this interpretation? Sorry, that's a strange question. Um and have you ever sought legal advice on it?
>> Uh so um thank you Senator. There's a prohibition period as you've identified um that um prohibits u ministers or senior uh officials from engaging uh in lobbying in relation to matters that they had official dealings uh for specified periods of time after they u retire from that office. Um official dealings isn't defined in the code. So it it takes its ordinary meaning.
>> Okay. And how can um and sorry you've have you've sought legal advice on it?
>> uh No.
>> No. And um how can AG verify compliance when a former official works for a lobbying firm representing numerous clients and the register doesn't necessarily reveal which clients they work for or what
perhaps I can speak broadly to um the process um for investigation. I can't comment on particular matters or or hypotheticals. Um but we may receive information um in relation to a suspected breach of the code um that may contain um uh information that a person um has identified, you know, raises concerns. We would put that information to the lobbyists uh and seek a response. We'd consider um both sets of information together where appropriate um seek additional information and then we would uh finalize our assessment.
>> And so is it completely reliant on someone raising a concern? Um there's no proactive monitoring per se or
>> sorry I think um just to be clear somebody has to register a client is
>> well Senator I think your example was >> someone representing multiple clients but not making that clear on the register that is a requirement that they register in respect of each client. So not having done that would then be non-compliance which we might have brought to our attention um uh or become aware of it in some other way and then would take the steps that Miss McKeag has been talking about.
>> Okay. So every single client is listed on the register is documented on that register.
>> It should be yes
>> should be. Okay. Um, the ANAO's 2020 audit found deficiencies in governance, risk management, and evaluation. Perhaps briefly, could you give us an outline of what AGD has implemented since then to address those findings and how it measures whether the regime is working and if there's additional like detail to put on notice? Um, then please
>> Yes, we can. So um following the 2020 uh ANA audit of the code um the code was updated on the 28th of February 2022. Um those updates enhance the code's transparency objective and improved its practical operation by allowing the secretary to decide not to register or re-register a lobbyist who's committed a serious breach of the code on or after that date for a period of up to three months. Uh a serious breach would include unregistered lobbying uh and breaching the principles of engagement with government representatives. Um the changes also strengthen disclosure requirements for former government representatives by requiring them to provide the title of their most recent government position for inclusion on the register. and where they're subject to a temporary prohibition on conducting lobbing activities related to their former role. Um they're required to provide information about that previous role and confirm they meet their prohibition period obligations um at initial contact with government representatives. Uh furthermore, the changes required lobbyists to declare that they've not breached key parts of the code in their annual statutory declaration um which is part of that.
I'm about to be wrapped up. So, just maybe one final question on this. Um, have you done any work to advise on extending the code to cover in-house corporate lobbyists? And um, yeah, that's I'll probably have to pass the call after that.
>> So, the code only applies to third party um, >> and there's no work being done to extend
that to in-house corporate lobbyists. There's no consideration being given to to that.
>> Reform of the code would be a matter for
>> Okay. Thank you, Senator. Uh, Senator
Cash. Uh thank you very much chair. Uh just going back to the withdrawal of authorization in relation to a consent to prosecute where it's been given the consent by the attorney general. Um if the attorney general was to determine that she would withdraw or he would withdraw proceedings depending on who it is. Um do they have to provide reasons or is it solely for the attorney general to make that decision?
Uh, it's for the attorney general. There's no legal requirement for reasons.
>> Thank you very much. Could I now turn to the El Matari case? So, Mr. Matari of Greenacre declared himself ISIS's commander in Australia. He was jailed in Lebanon in 2017 for dry trying to join Islamic State. He was deported in 2018, arrested in Sydney in July 2019 for planning an insurgency and preparing to travel to Afghanistan. He did plead guilty of those crimes in October 2021. Was sentenced to 7 and a half to 7 years and 4 months non-parole period of 5 and 1/2 years. He was not parrolled. His full sentence expires on the 1st of November, 2026. Um, is the department aware of whether or not a continuing detention order has been
>> Senator uh Luke Brown, Assistant Secretary for International Cooperation and the Commonwealth Parole Task Force.
>> Oh, thank you, Mr. Brown. Sorry. Thank
Uh, Senator, the uh, Department of Home Affairs administers uh, that scheme and will be best placed to answer your questions.
>> No, I understand that, but you are the attorney general's department. Um, and I would have thought that the attorney general would want to know whether or not the department that administers the legal side of things, um, is all over whether or not a terrorist who admitted to his crimes and was jailed in Australia and is walking out free on the 1st of November was the government was actually attempting to keep him behind bars. Do you have any knowledge as to whether a continuing detention order has been lodged or is being sought to keep this man behind the terrorist? Let's call him the terrorist because he's a convicted terrorist. He admitted to it uh to keep him behind bars or will he walk free on the 1st of November?
>> Senator, I think that does need to be put to home affairs. We wouldn't be in a position to judge the appropriate disclosure of any sensitive legal or operational information. Um, so
>> how is that operational information? I would have thought the Australian public would actually want the government to say, "You're damn right. We're going to try and keep this terrorist behind bars."
>> Well, the the issue of where consideration of any such order is up to is a is a matter for the Department of
>> in relation to the process then which this department did administer. Is that correct?
>> Bruce. Yes.
>> Yeah. So in relation to the process, if no application is then on foot and he walks the terrorist walks free on the 1st of November, what happens? How long does it take to actually get the continuing detention order in place or to put in the application and get it turned around? Um
again that would need to be put to department of home affairs and the range of measures that might be available is
>> in your experience as the department that did administer this what is the normal turnaround time from application to keep a terrorist behind bars >> given that in but a few days he's walking free.
>> So I'm not able to answer that senator and and obviously there are a range of measures that sit within the home affairs portfolio. Um uh that would be uh for them and for the AFP to answer.
an article of the Sunday Telegraph of the 18th of October 2026, the Attorney General's office declined to comment on the ground that governments do not comment on parole matters. Is this a parole matter?
I think when it is a parole matter, the government doesn't comment.
>> Okay. But this is the attorney general's
>> I think that continuing detention orders as we've said are a matter for Department of Home Affairs.
>> Okay. Um has this department being the department that obviously um is in charge of the laws in the country had any discussions with home affairs offered to brief home affairs provide them with advice as to how to keep the terrorist behind bars? Um
>> so senator following the machinery of government changes the entirety of that responsibility including the expertise that we had uh transferred to the department of home affairs. So they have the expertise, they uh manage the the provisions of the legislation and it's their um minister who is the decision maker.
>> Okay. So secretary, you haven't had any secretary to secretary discussions in relation to keeping the terrorist behind
>> on this particular matter. I have not had a discussion with the secretary of the department of home affairs.
>> Okay. Um the alleged Bondi gunman has been reported as an associate of um Mr. Elmatari, the terrorist who pleaded guilty to those charges. Um, after Bondi, did the department review Mr. Elmatari's case or advise home affairs or the AFP to do so?
>> Uh, you would need to put that it would not be our responsibility to review the case. It's a matter for home affairs and um people
>> given 15 people were slaughtered on Bondi Beach and um these connections have arisen. Do you not think that perhaps even just morally the department might say to home affairs or the AFP, you might want to have a look at this
so senator, we operate consistently with our um responsibilities. uh and uh I think uh you would need to put that to the Department of Home Affairs and the AFP and AIO and and relevant agencies.
>> So just in relation to the Royal Commission on Anti-semitism and Social Cohesion, >> does that sit within this department?
>> Um well obviously the Royal Commission is independent um uh and um but um it sits within the portfolio so to speak
>> of the attorney general's department. So, a March 2026 submission to the Royal Commission named Mr. El Matari the terrorist as the most dangerous member of a 28 person network and alleged he was directing members from inside our country's highest security prison, including offering access to weapons and explosive supplies. Um given that the Royal Commission sits within the department as you've just stated, uh is the department aware of that submission?
>> Um I'm not personally aware. Um but you you you would expect if there was information, uh of that order that it would be brought to the attention of Azio and the AFP and the joint counterterrorism team.
>> Okay. And who would bring the information of that order to the attention of AIO? the AFP, etc.
>> Sorry. Did you describe it, Senator, as an order?
>> Uh, no. A submission to the Royal Commission.
>> Um, uh, I think, uh, we would need to take that on notice. We work closely with AIO, AFP and other national intelligence community agencies, uh, in relation to the Royal Commission and any evidence there. But um I I would um uh say that that would be a matter for AIO and AFP.
>> Okay. So can I just confirm then that in relation to the terrorist Mr. Elmatari sent it's expiring on the 1st of November. The department can't assist me in relation to any of my questions. the Attorney General's Department.
>> I I think it's appropriate to put those questions to the Department of Home Affairs, which has responsibility in relation to the questions that you're
>> Okay. Um, did the attorney general ask for a briefing in relation to this
>> What matter are you referring to?
>> The release of the terrorist in but a few days time onto the streets of Australia if we don't get a continuing
detention order. So the attorney general I think would be aware because we've provided advice over time on when parole decision making comes up that it's the end of the sentence but it would be home affairs providing advice to the minister for home affairs on um the high-risisk terrorist offender orders and also the AFP can consider measures it has at its disposal as well.
>> Okay. Um I finish with that topic because I know that we are
>> we are running uh quite over time by this point in the day I understand uh Senator Hodgins May has a very short block of questions.
>> Okay.
>> Thank you. And it's just um finishing on lobbying as well. And um just perhaps before I move on just uh to finish up on that last question I asked and um the official said it was best to ask the minister and I wonder minister if you could comment um as to whether the government is considering extending the code to cover in-house corporate lobbyists considering they do much the same work as third party lobbyists. Is this something your government's contemplating?
>> Um Senator, thank you for the question.
Um that's not um something I've got information about in front of me. I can certainly take that on notice for you. Um we expect everyone to comply with the rules of the code. Um and I think the officials have taken you through how that works. Um of course there's been work undertaken most recently around aligning the code with the um parliamentary pass procedures. Um and of course it sits within a framework of a number of other pieces of um rules and regulations. So can't be taken without context of the work that's been done there.
>> Yeah, sure. If there's anything on notice please from your um counterpart that would be useful. Um changing track but still on lobbying. Um, has your department issued any transparency notices or undertaken any compliance assessments under the foreign influence transparency scheme act concerning lobbying by entities in which the Japanese government holds a significant share such as impex or by Japanese state
>> So the question is in relation to the foreign influence transparency scheme.
>> Yes. and whether the department's issued any transparency notices or undertaken any compliance assessments under that act.
>> Uh the department has issued um five specific >> five transparency notices under the foreign influence transparency scheme. Um uh and they're published on the department's website. Um I think your question relates to uh a Japanese entity
uh impact or Japanese state agencies. >> Okay. So, so no um transparency notices or compliance assessments.
>> Uh compliance assessments we won't we don't disclose um any investigations or activities. Um
>> so the only thing disclosed are the transparency notices.
>> That's right. Or the obviously the register itself is public as well.
Impex Operations Australia is registered for parliamentary lobbying. Um, described as providing political analysis and engaging with ministers, shadow ministers, parliamentarians, and their staff. What activities and entities does that cover? Do you know?
>> I don't know. I'd have to take the
If these um entities are approaching ministers in relation to Australian energy policy, for example, gas tax design of the gas reservation scheme, funding or CCS projects for example, um and related trade um part relationships, would that constitute lobbying under the
>> I think I'd have to take the question on notice as to any uh activities information we can
>> Senator, we can't really provide specific advice that relates to uh a a particular entity. Um uh that would that would be us providing legal advice about the operation of the act.
>> Sorry. Yeah. So it's it's I'm not asking for specific advice about um a particular organization, but I'm what I'm wondering or company. I'm just wondering if um entities are approaching ministers during um in relation to energy policy during a significant policy development period. You don't need to mention specifics of of those corporations, but um in relation to trade agreements, would that constitute lobbying in that that scenario?
>> So the lobbyist code of conduct and register applies to third party lobbyists having to disclo to be registered and to disclose their clients. So if a third party lobbyist approached a minister, they would need to be a registered lobbyist in order to comply with the requirements of the code and the register.
So entities lobbying on behalf um so entities lobbying on behalf of foreign governments under any additional restrictions to Australians in the lobbyist register or
>> so I think uh there's the foreign influence transparency scheme on the one hand which has certain requirements separately there's a lobbyist code of conduct and register and uh we can go separately through the criteria for registration on the foreign influence transparency scheme. scheme but in that that foreign influence transparency scheme applies um if you're undertaking registerable activities on behalf of a foreign principle which the foreign government foreign political organization.
>> Okay. So I suppose just what I'm trying to understand is um if in practice they're in under any restrictions whether as part of the FITA or the lobbyist register. I well I think it
it's a little bit hard with the information you've given but I mean we can take we can either go through now or we can just take on notice to set out the criteria under each of those
>> look I think um
>> frameworks that would apply. Yeah, given
I understand the committee is short on time, then if you could provide those on notice and just finally final question um I hope does the commercial exemption under the FITA act apply to activities undertaken for a foreign government related entity where the purpose is to influence government policy such as gas
Uh I I think if I could take the question on notice um uh and the exemptions are quite um technical so I think I'd have to give consideration uh to the legislation and um uh set out what the legislation requires.
>> Okay. Um that's all from me chair.
>> Thank you Senator Hodgins May. Uh I think there were some other senators who had some questions but they aren't in the room. That means that we are in a position to release you from the program today. Uh we will go to our afternoon tea break just a couple of minutes early and return at 4:10 with the office of the Australian information commissioner.