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House of Assembly - Fifty-Third Parliament, Second Session (53-2)
2015-09-08 Daily Xml
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Bills

Lobbyists Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:00): Obtained leave and introduced a bill for an act to regulate the lobbying of public officials; and for other purposes. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Housing and Urban Development, Minister for Industrial Relations, Minister for Child Protection Reform) (16:01): I move:

That this bill be now read a second time.

This bill is part of a package of reforms to strengthen and improve the state's public integrity system. Another part of this package is the Parliamentary Remuneration (Determination of Remuneration) Amendment Bill 2015 to be introduced today.

Lobbying is a legitimate part of the democratic process. There is an expectation, however, that lobbying activities will be carried out transparently and with integrity. I seek leave to have the remainder of the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The Bill imposes post-separation rules to restrict the lobbying activities of Ministers, Parliamentary Secretaries, ministerial staff and departmental executives after they leave office. Ministers receive a complete ban on professional lobbying activities for two years after the Minister leaves Ministerial office. Parliamentary Secretaries, ministerial staff and departmental executives are banned from professional lobbying activities for 12 months after leaving office in relation to all matters the individual had official dealings with.

The Bill also provides that a person who is a member of a government board is prohibited from engaging in professional lobbying during the term of their appointment to that board. At the commencement of this Act, a registered lobbyist who wishes to continue as a government board member must surrender his or her registration as a lobbyist. Conversely, if the person wishes to continue as a professional lobbyist, he or she must resign from that Government board.

The Bill will prohibit the giving and receiving of success fees and imposes strict requirements for registration as a lobbyist (including requirements for the lodging of annual returns). Apart from the penalties imposed in relation to success fees and the giving of false or misleading information, penalties are also imposed for engaging in lobbying except in accordance with the registration requirements.

The register will be managed by the Chief Executive, Department of Premier and Cabinet, who may, on his or her own initiative or on application by a registered person, exempt some or all of a person's details provided in an annual return, for example, where such disclosure might prejudice the commercial position of a person or confer a commercial advantage on a person.

The Bill imposes a tough but fair scheme on professional lobbyists. It provides clear rules of engagement between lobbyists and government officials consistent with community expectations, best practise and the Government's undertaking to improve and build on the State's public integrity system.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

3—Interpretation

This clause sets out definitions of terms used in the Bill.

4—Meaning of lobbying

Subclause (1) sets out the meaning of lobbying (and in doing so defines the scope of the activities to be governed by the Bill). Under the Act, a person will be taken to engage in lobbying if the person, for money or other valuable consideration and whether as a principal or employee or agent of another, communicates with a public official on behalf of a third party for the purpose of influencing the outcome of—

legislation, or a government decision or policy, whether existing or proposed; or

an application for any approval, consent, licence, permit, exemption or other authorisation or entitlement under any Act or law of this State; or

the awarding of a contract or grant or the allocation of funding; or

any other exercise by the official of his or her functions or powers.

Subclause (2) sets out the circumstances in which a person will not be taken to engage in lobbying under the Act, namely—

if the person holds office as a public official and communicates with the public official in the ordinary course of holding that office; or

if the person is a legal practitioner (holding a current practising certificate under the Legal Practitioners Act 1981) and communicates with the public official in the ordinary course of that person's profession as a legal practitioner; or

if the person is an accountant or financial adviser (holding qualifications of a kind prescribed by regulation) and acts in circumstances prescribed by regulation; or

if the person belongs to a class prescribed by regulation and acts in circumstances prescribed by regulation.

Subclause (3) further qualifies subclause (1) by providing that a person will not be taken to communicate with a public official on behalf of a third party if the third party is a designated organisation and the person, being an employee of the organisation, communicates with the public official in the ordinary course of that employment.

Subclause (4) defines the term designated organisation (used in subclause (3)) as—

an employer organisation, employee organisation, professional organisation or some other organisation established to represent the industrial or professional interests of its members; or

an organisation established for a charitable, educational, benevolent, humanitarian, religious, recreational, sporting or philanthropic purpose; or

an organisation, or an organisation of a kind, prescribed by regulation.

Part 2—Registration

5—Lobbyists to be registered

A person must not engage in lobbying except in accordance with a registration under the Act. The maximum penalties for the offence are $150 000 for a body corporate or $30 000 or imprisonment for 2 years for a natural person.

In addition to a penalty payable under subclause (1), the amount or value of any payment received by a person for lobbying in contravention of subclause (1) is forfeited to the Crown unless the court determines that the amount or value not be forfeited, or if it has been forfeited, that it be returned to a specified person.

6—Entitlement to be registered

A person is entitled to be registered if—

the person is entitled to apply for registration under the Act (the Act prescribes circumstances in which a person is not entitled to apply for registration, for example, section 9(3) and section 13(1)(a)(ii) and (c)(ii); and

in addition—

(i) in the case of a natural person, the person—

(a) has not been convicted of an indictable offence; or

(b) has not, during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty; or

(ii) in the case of a body corporate, no director of the body corporate—

(a) has been convicted of an indictable offence; or

(b) has, during the period of 10 years preceding the application for registration, been convicted of a summary offence of dishonesty.

7—Application for registration

This clause sets out the procedure for applying for registration and gives the Chief Executive the power to require further information in relation to an application. The Chief Executive must refuse an application for registration if satisfied that the applicant is not entitled to be registered under section 6, and may refuse an application if the person does not comply with a notice requesting further information in relation to the application. The Chief Executive must notify the person in writing of the refusal of the person's application.

8—Annual fee and return

This clause requires a registered person to pay an annual fee and lodge an annual return. The details that the annual return must contain are—

the name of each person or body for or on behalf of whom the registered person has engaged in lobbying, or with whom the person has had an agreement to engage in lobbying;

the name of each public official who was lobbied by the registered person;

the subject matter of the lobbying engaged in;

the name of any person employed by or otherwise engaged by the registered person to engage in lobbying (whether or not the person in fact engaged in lobbying);

any other details prescribed by regulation.

The Chief Executive may require further information in relation to a return, and may require a person who has failed to pay the fee or lodge the return to do so, and in addition, to pay a penalty of an amount prescribed by regulation.

Subclause (3) clarifies that a registered person is not required to pay a fee and lodge a return if the person only engaged in lobbying as an employee of, or person otherwise engaged by, another registered person during the year to which the return relates.

9—Duration of registration and cancellation and surrender

A person's registration remains in force until it is cancelled or surrendered or the person dies or, in the case of a body corporate, is dissolved.

The Chief Executive must cancel a person's registration if satisfied that—

events have occurred such that the person is no longer entitled to be registered; or

the person was not, when first applying for registration, entitled to be registered.

The Chief Executive may cancel a person's registration if satisfied that—

the person has failed to comply with a requirement under the Act; or

the person has breached a condition of an exemption under section 12 or a condition of the person's registration under section 13.

A consequence of cancellation of a person's registration is that the person is disqualified from holding registration, and is not entitled to apply for registration, for 2 years.

10—Register of lobbyists

This clause requires the Chief Executive to keep a register of persons who engage in lobbying. The matters to be included on the register are:

the name, including any business name or trading name, of the person;

the business address of the person;

the ABN of the person;

the name of each owner of the person's business and any partners or major shareholders in the business;

the name of each employee of, or person otherwise engaged by, the person and their positions in the business;

any condition of registration applying in relation to the person under section 13;

each return provided by the person under section 8(1);

any details provided to the Chief Executive under section 11(1)(a) in relation to new lobbying agreements;

any other details considered appropriate by the Chief Executive or prescribed by regulation.

The register is available for inspection by members of the public at a public office, or on a website, determined by the Chief Executive.

11—Notification of change of details

This clause requires a registered person, within the time specified in that provision, to notify the Chief Executive of—

(a) any new lobbying agreements (but note that this notification requirement does not apply if the person engages in lobbying under the agreement as an employee of, or person otherwise engaged by, another registered person); and

(b) any conviction of an offence disentitling the person to be registered under section 6; and

(c) any change in the person's registered details referred to in section 10(2)(a) to (f).

Failure to comply with this provision attracts a maximum penalty of $5 000.

12—Exclusion of information from register

This clause enables the following kinds of information, provided in an annual return or notified to the Chief Executive under section 11, to be excluded from publication on the register, as determined by the Chief Executive:

(a) personal information of a confidential nature;

(b) information that has a commercial or other value that would be, or could reasonably be expected to be, destroyed or diminished if the information were disclosed;

(c) information the disclosure of which would, or could reasonably be expected to, prejudice the commercial position of a person or confer a commercial advantage on a person;

(d) information the disclosure of which would be contrary to the public interest for any other reason; or

(e) information the disclosure of which would be inappropriate for any other reason.

However once the exemption expires or is revoked, the information will be published on the register.

Exempt information is not liable to disclosure under the Freedom of Information Act 1991.

Part 3—Restrictions on lobbying

13—Certain former or current public officials must not engage in lobbying

This clause places restrictions on lobbying carried out by certain former public officials and by members of government boards.

First, a person who, after the commencement of the provision, ceases to hold office as a Minister must not, during the period of 2 years after ceasing to hold office, engage in lobbying.

Secondly, a person who, after the commencement of the provision, ceases to hold office as a Parliamentary Secretary, a member of SAES, or person engaged as a member of a Minister's personal staff must not, during the period of 12 months after ceasing to hold office, engage in lobbying in respect of matters dealt with by the person in that office. Any registration held by the person during that period is subject to a condition that the person must not engage in lobbying in respect of matters dealt with by the person in that office.

Thirdly, a member of a government board must not engage in lobbying whilst holding that position.

If more than 1 restriction applies in relation to a person under this clause, all restrictions apply concurrently, with the most stringent prevailing in the event of any inconsistency.

14—Success fees prohibited

This clause prohibits a person from giving or receiving, or agreeing to give or receive, a success fee for carrying on the business of lobbying. A success fee is defined as an amount of money or other valuable consideration the receipt of which is contingent on the outcome of lobbying. The maximum penalties for the offence are $150,000 for a body corporate or $30,000 or imprisonment for 2 years for a natural person.

In addition to a penalty payable under subclause (1), the amount or value of a success fee received by a person for lobbying in contravention of subclause (1) is forfeited to the Crown unless the court determines that it not be forfeited, or if it has been forfeited, that it be returned to a specified person.

Part 4—Reviews

15—Reviews

This clause enables a person whose application for registration has been refused, or whose registration has been cancelled, to seek a review of the decision by SACAT.

The clause further sets out the procedural requirements for applying in relation to such a review.

Part 5—Miscellaneous

16—Delegation by Chief Executive

This clause sets out the Chief Executive's delegation powers under the Act.

17—False or misleading information

This clause prohibits a person making a statement that is false or misleading in a material particular (whether by reason of the inclusion or omission of any particular) in any information provided under the Act. The maximum penalty for the offence is $10,000.

18—Service of notice

This clause sets out the ways in which a notice or document is regarded as having been given or served under the Act.

19—Regulations

This clause sets out the regulation making powers.

Schedule 1—Transitional provisions

1—Success fees

This clause provides a transitional provision relating to success fees payable pursuant to agreements entered into before the commencement of clause 14.

Debate adjourned on motion of Mr Pederick.

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