On April 1, 2017, the New Brunswick Lobbyists’ Registration Act (Act) came into force, creating the first regime in New Brunswick to regulate lobbyists and lobbying activity in the province. The proclamation of the Act fulfills a commitment made by the provincial government that a public lobbyist registry would be in place before the end of 2018.
The New Brunswick regime is similar to other provincial and federal regimes. It generally does not prohibit lobbying, but rather requires disclosure of advocacy of public office holders.
REGULATED LOBBYISTS AND LOBBYING ACTIVITIES
As with other regimes the Act regulates in-house and consultant lobbyists. The registration thresholds for in-house lobbyists are exceeded if the duties of all employees in the aggregate would constitute 20 per cent of the duties of one employee. Generally, the rule of thumb is that the thresholds for in-house lobbyists will be exceeded if the employees commit 35 hours a month to lobbying activities.
The lobbying activities regulated under the Act generally apply to both in-house and consultant lobbyists and include communications with a public office holder by the lobbyist in an attempt to influence:
- The development of any legislative proposal by the Government of New Brunswick or by a member of the Legislative Assembly
- The introduction of any public bill or any resolution in the Legislative Assembly or the passage, defeat or amendment of any public act or any resolution that is before the Legislative Assembly
- The making or amendment of a regulation as defined in the Regulations Act
- The development, amendment or termination of any policy or program of the Government of New Brunswick
- A decision by the Executive Council to transfer from the Crown for consideration all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown or to the public
- A decision by the Executive Council, a committee of the Executive Council or a minister of the Crown to have the private sector instead of the Crown provide goods or services to the Crown
- The awarding of any grant, contribution or other financial benefit by or on behalf of the Crown
The Act further regulates certain lobbying activities specific to consultant lobbyists, including arranging a meeting between a public office holder and any other person.
As with other federal and provincial legislation, the Act regulates communicating with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Crown but only in respect of advocacy by consultant lobbyists. Communications absent awarding or negotiating contracts by in-house personnel do not constitute lobbying.
WHO IS A PUBLIC OFFICE HOLDER?
A public office holder, as defined under the Act, includes ministers and their staff, as well as members of the Legislative Assembly and any person on his or her staff. A public office holder also includes most employees of the public service in New Brunswick (excluding “broader public sector” employees like hospitals, universities and municipalities), in addition to members of a District Education Council and members of the board of directors of a regional health authority.
LOBBYIST REGISTRY IN NEW BRUNSWICK
The New Brunswick regime requires that consultant and in-house lobbyists submit a return to the Registrar of Lobbyists (Registrar). Both consultant and in-house lobbyists must complete returns every six months and must submit these returns within 30 days of the previous return date. A consultant lobbyist must also submit a return within 15 days after beginning any lobbying activities and an in-house lobbyist must submit a return within two months after beginning this role. There is a July 1, 2017, deadline for existing lobbyists to submit a return.
EXEMPTIONS UNDER THE ACT
Similar to other jurisdictions, the Act exempts certain communications from the disclosure requirements and does not apply to the following types of communications:
- Oral or written submissions made in proceedings that are a matter of public record to a Legislative Assembly committee
- Oral or written submissions made to a public office holder in relation to the enforcement, interpretation or application of any Act or regulation made by that public office holder
- Oral or written submissions made to a public office holder with respect to the implementation or administration of any policy, program, directive or guideline by that public office holder
- Oral or written submissions made to a public office holder in direct response to a written request from the public office holder for advice or comment in respect of the regulated lobbying activities
- Oral or written submissions made to a member of the Legislative Assembly on behalf of a constituent of the member with respect to any personal matter of that constituent
- Any communication made to a public office holder by a trade union with respect to the administration or negotiation of a collective agreement or matters related to the representation of a member or former member of a bargaining unit who is or was employed in the public service
CONFLICTS OF INTEREST
Like other jurisdictions, lobbyists are prohibited from knowingly placing a public office holder in a position of real or potential conflict of interest. Unlike other provincial regimes, the Act does not define what constitutes a conflict of interest. However, lobbyists should consider gifting rules in New Brunswick and other types of political activity that could create a conflict of interest. For instance, lobbyists should be mindful of the Office of the Conflict of Interest Commissioner’s suggestion that gifts worth over C$250 that do not have a personal component may create the perception of, or a real conflict of interest.
PROHIBITED ACTIVITIES AND PENALTIES UNDER THE ACT
The Act establishes that lobbyists may be subject to monetary penalties for committing the following offences:
- Knowingly placing a public office holder in a position of real or potential conflict of interest
- Knowingly making a false or misleading statement in a return or other document submitted to the Registrar
- Violating or failing to comply with the provisions relating to filing a return in the Act
The Registrar may prosecute a lobbyist for any of the offences listed above within two years of the alleged offence. Where the lobbyist is convicted, a maximum monetary penalty of C$25,000 may be imposed for a first offence, and a maximum penalty of C$100,000 may be imposed for a second or subsequent offence.
OUTSTANDING ISSUES NOT ADDRESSED IN THE ACT
There are currently no provisions under the Act or regulations that address whether lobbyists are prohibited from accepting contingency fees for successful lobbying outcomes. Unlike some jurisdictions, the Act does not regulate the use of public funds as payment for lobbying services, or the extent to which former public servants can lobby.