Operation Eclipse: What ICAC's Latest Probe Means for Advocates

Almost a decade after Operation Halifax, the NSW Independent Commission Against Corruption's initial look into advocacy, the Commission has launched another investigation '“ Operation Eclipse.

On April 12 ICAC released a discussion paper outlining its reasons for launching the new probe. Chief Commissioner Peter Hall (pictured) has pointed to a failure to implement previous recommendations, changes in advocacy practices, and regulatory advancements outside NSW as the main motivations for Operation Eclipse.

The investigation is set to be broad in scope and comprehensive, aiming to raise industry standards rather than examine any individuals or specific incidents. The discussion paper includes a review of current advocacy practices in NSW as well as consultation questions to guide stakeholder submissions, before public hearings begin in July and the final report is released in October.

The Commission is focusing on four key areas to expand on its existing recommendations:

1) Measures to improve transparency

This area examines the existing Register of Third-Party Lobbyists, looking at what type of advocates should be registered and whether to differentiate between 'ad-hoc', in-house and other advocates. It also questions what level of record-keeping and disclosure is needed regarding meetings and other contact and whether certain industries need stricter regulations.

2) Measures to improve integrity

This looks at the scope of who classifies as a 'government official' subject to the code of conduct, as well as what procedures should be in place when conducting meetings and other contact.

3) Measure to improve fairness

This examines whether there should be guidelines for 'fair' consultation processes and considers how to support disadvantaged groups to gain access and engage in advocacy in order to improve diversity of interests.

4) Measure to improve freedom

This asks how to strike the right balance between promoting consultation between government and stakeholders while putting in place regulations to prevent negative outcomes from unbridled lobbying. It looks at how regulations can be designed to achieve a proper balance and whether current or new legislation is having a chilling effect on beneficial advocacy.

The investigation is also examining ways to improve compliance and enforcement of regulations.

Implications for advocates

Based on these four areas, depending on the final report's recommendations advocates could see a range of new measures. This could include more stringent constraints on how they conduct day-to-day contact with government officials and what information they have to record and disclose.

Conduct

If the final report recommends stricter protocols on contact and meetings, advocates may see a more formalised process for engaging in discussion with Government officials. This could mean constraints similar to those the NSW Electoral Commission currently imposes on some individuals, such as attendance by multiple government officials and a note-taker at all meetings.

Disclosure and record-keeping

Advocates may be required to record and disclose comprehensive details, including financial records of their income and amounts spent on lobbying activities, as well as detailing the specific Bills or issues they are seeking to influence.

Compliance resources

The Commission is also looking to help advocates and those within government understand and meet their obligations under current and new regulations. There may be improved resources providing information on expected conduct, as well as educational programs on how to comply.

Making submissions

The discussion paper and consultation questions are outlined on the ICAC website here. Submissions close on the 24 May 2019, with private follow-up consultations throughout June. The Commission will invite key stakeholders to public hearings to be held in July and August before completion of the final report in October.

For tips on how to write a submission, you can refer to Advoc8's latest White Paper, Writing Strategic Submissions to Parliamentary Inquiries.