On 1 December 2014, new lobbying rules came into effect in NSW. These rules have particular significance for development proponents and their consultants.
The changes affect ‘third-party lobbyists’, but also any other person who ‘lobbies’ any ‘NSW Government official’ on behalf of others.
The changes are enshrined in amendments to the Lobbying of Government Officials Act 2011 and a new Lobbying of Government Officials (Lobbyists Code of Conduct) Regulation 2014.
What is ‘lobbying’?
Someone is regarded as ‘lobbying’ a NSW Government official if they communicate with the official for the purpose of representing the interests of others. The conduct is only lobbying if it relates to any of the following:
- legislation or proposed legislation;
- a government policy or proposed government policy;
- a government decision or proposed government decision;
- an application/request for a new or amended environmental planning instrument or plan under the Environmental Planning and Assessment Act 1979 in relation to a particular site; and
- an application/request for development consent/approval under that Act.
A communication is still lobbying even if:
- the communication is made by people who work for industry groups, trade associations, etc; or
- the communication is for the purpose of representing ‘community interests’.
Lobbying is not just activity undertaken by professional lobbyists. Conduct may be ‘lobbying’ even if it is incidental to other business activity or unpaid.
You are ‘communicating’ with NSW Government officials (and therefore lobbying them) if you are talking to them in person, speaking to them on the phone, writing to them or emailing them.
What are the new rules for lobbying activity?
If you are a ‘lobbyist’ (that is, someone who lobbies government officials) you have a legal duty to comply the new Lobbyists Code of Conduct.
In brief terms, the Code requires that:
- lobbyists who seek a meeting to lobby NSW Government officials must, before the meeting, disclose the nature of the matter to be discussed;
- lobbyists who meet NSW Government officials must, before the meeting, disclose any financial or other interest they have in the matter to be discussed;
- lobbyists must not engage in any misleading, dishonest, corrupt or other unlawful conduct in connection with a meeting or other communication; and
- lobbyists must use all reasonable endeavours to satisfy themselves of the truth and accuracy of material information that they provide in connection with a meeting or other communication.
While a breach of the Code is not, in itself, a criminal offence, the NSW Electoral Commission is empowered to investigate breaches of the Code. The Commission can name and shame offenders. It can do this by including the details of offenders on a publicly available ‘Lobbyist Watch List’. Additional procedural requirements will be triggered if a person on the Lobbyist Watch List meets with a government official.
There is no right to sue the Electoral Commission under the law of defamation as a consequence of being included in the Lobbyist Watch List. In effect, the punishment for breaching the Lobbyist Code of Conduct is the reputational damage that arises from being placed on the Watch List.
A ‘third-party lobbyist’ is an individual or body carrying on ‘the business’ of lobbying government officials on behalf of someone else.
Third-party lobbyists need to be registered and their details (and their clients) will be published (the current list is here). They must disclose their status to NSW Government officials when they lobby them.
Third-party lobbyists must not lobby on a matter that relates to the functions of a NSW Government board or committee of which they are members. Additionally, the Premier has put in place a policy that says a third-party lobbyist is ineligible for appointment to such bodies.
The Electoral Commission has published some guidance material on who and who are not ‘third-party lobbyists’. The Commission says the following are not third-party lobbyists:
- religious or charitable organisations;
- organisations constituted to represent the interests of their members (for example, professional organisations, peak industry bodies and trade unions);
- professionals (such as doctors, lawyers or accountants) who as part of their day-to-day professional services to a client, represent that client’s views to a Government representative; or
- individuals making representations to Government on behalf of their relatives or friends about their personal affairs.
These people or organisations can still be ‘lobbyists’ though. This means that they are still subject to the Lobbyists Code of Conduct when lobbying NSW Government officials (but they do not have to comply with the parts of the code that are specifically for third-party lobbyists).
Nonetheless, according to the Electoral Commission, professional services firms do not have a blanket exemption. The Commission provides the following example:
- there is a government relations team in a large law firm;
- that team regularly makes representations to Government on behalf of the firm’s clients; and
- those representations are in addition to the legal services offered to the firm’s clients.
The Electoral Commission says that, in this example, the law firm must be registered as a third-party lobbyist and the employees engaging in lobbying activities must be named on the register.
This example suggests that the Electoral Commission will regard any professional services consultancy as a third-party lobbyist where the consultancy has a team dedicated to ‘the business’ of lobbying.
NSW Government officials
You are only subject to the new regime if you lobby ‘NSW Government officials’.
This includes senior and junior public servants as well as Ministers and their staff. It includes contractors to the public service. It also includes members of NSW statutory bodies (eg joint regional planning panels).
However, the new regime does not apply to the lobbying of a local government official.