Posted on August 30, 2022 by Lindsay Taylor 2

Consultation on Proposed Guidelines and Model Policy on the Lobbying of Councillors

The Office of Local Government (OLG) is currently seeking the input of councils into the development of guidelines under s 23A of the Local Government Act 1993 to promote transparency around the lobbying of councillors. The OLG has also requested the input of councils on whether the Lobbying of Government Officials Act 2011 (LOGO Act) should be amended to extend its operation to local government.

Lobbying Guidelines

Recommendation 8 of the ICAC report titled ‘Investigation into the Conduct of Councillors of the Former Canterbury City Council and Others‘, known as Operation Dasha (Operation Dasha Report), recommended that the Department of Planning, Industry and Environment (now the Department of Planning and Environment (DPE)), following consultation, issue guidelines under s 23A of the Local Government Act 1993 to introduce measures to enhance transparency around the lobbying of councillors.

The Operation Dasha Report recommended that the guidelines should require that:

• councils provide meeting facilities to councillors (where practical) so that they may meet in a formal setting with parties who have an interest in a development matter,
• councils make available a member of council staff to be present at such a meeting and to prepare an official file note of that meeting to be kept on the council’s files (any additional notes made by the member of council staff and/or the councillor should also be kept as part of the council’s records),
• all councillors be invited when a council conducts formal onsite meetings for controversial rezonings and developments,
• council officers disclose in writing to the general manager any attempts by councillors to influence them over the contents or recommendations contained in any report to council and/or relating to planning and development in the local government area.

The Operation Dasha Report concluded that the guidelines are required to improve public confidence in decision-making, and that a sector-wide approach should be taken, similar to the Model Code of Conduct for Local Councils in NSW.

Further recommendations were made in the ICAC report titled ‘Investigation into the Conduct of the Local Member for Drummoyne‘, known as Operation Whitney (Operation Whitney Report), including that the DPE ensure that the guidelines provide advice about:

• the nature and frequency of meetings between councillors and interested parties, including the need to ensure transparency around these interactions
• how and where to report concerns about lobbying practices
• the receipt of submissions outside of formal processes, including the transmission of material to specific councillors in a way that excludes other councillors and staff
• councillors’ attendance at staff meetings with parties interested in an outcome
• councillor representations to staff arising from lobbying interactions, and
• the lobbying of councillors by interested parties with whom they have a preexisting relationship.

The Operation Whitney Report also recommended that the DPE update the Model Code of Conduct for Local Councils in NSW to refer to the guidelines, and reflect the substantive advice contained in those guidelines.

The OLG is now proposing to develop the guidelines, following consultation with councils on the proposed content. The OLG is also proposing to develop a model policy to implement the guidelines which, if adopted by councils, will supplement the provisions of their adopted codes of conduct.

Amendment of the Lobbying of Government Officials Act 2011

The OLG is also seeking the input of councils on whether the LOGO Act should be amended to ensure that all provisions apply to local government.

The LOGO Act regulates the lobbying of ‘government officials’, of which local government officials are currently excluded (see s 3 of the LOGO Act).

Previous ICAC investigations have concluded that while a lobbying problem exists at the local government level, the problem differs from that that exists at the state level, and accordingly it shouldn’t be subject to the same regulatory regime.

However, the Operation Dasha Report notes that since these previous findings, the power to make local environmental plans has been handed to local councils, potentially increasing lobbying activities and increasing incentives for corrupt conduct to occur.

Recommendation 7 of the Operation Dasha Report therefore recommends that the NSW Government amend the LOGO Act to extend it to local government.

Key Finding 5 of the ICAC Report titled ‘Investigation into the Regulation of Lobbying, Access and Influence in NSW‘, known as Operation Eclipse, also supports extending the provisions of the LOGO Act to local government.

Consultation 

The consultation period has commenced, and submissions can be made to the OLG via email until COB Monday 5 September 2022.

Submissions can be made to the OLG via email, in accordance with the instructions in Circular 22-22 The development of guidelines and a model policy on the lobbying of councillors.

The ICAC reports relevant to the above consultation are available here:

• Operation Dasha
• Operation Eclipse
• Operation Whitney

If you want to discuss the issues raised in this post, please contact Dr Lindsay Taylor or Alex Rutherford.