Constitution (Disclosures by Members) Regulation 1983

The Regulation defines several key terms in clause 3(1). “Member” means a Member of either House of Parliament. “Clerk” refers to the Clerk of the relevant House. A “primary return” is a return in or to the effect of Section 2 of Form 1. An “ordinary return” is a return in or to the effect of Section 2 of Form 2. A “supplementary ordinary return” is in or to the effect of Section 2 of Form 3. A “discretionary return” is in or to the effect of Form 4. The “ordinary return period” for a Member whose last return was an ordinary return is the 12 months ending on 30 June in the relevant year; if the last return was a primary return, the period commences on the primary return date and ends on 30 June (clause 3(1)). The “primary return date” is the date on which the person takes the pledge of loyalty required by section 12 of the Act. A “re-elected Member” is a person returned at a general election who had ceased to be a Member by reason of dissolution or expiry of the Legislative Assembly immediately preceding that election (clause 3(1)). The “register” means the Register of Disclosures by Members of the Legislative Council or the Legislative Assembly, as relevant (clause 3(1)). Part 3 contains its own interpretation clause (clause 7), which defines terms used in the disclosure obligations. “Income” means assessable income under the Commonwealth Income Tax Assessment Act 1936 or 1997, but excludes remuneration payable under the Parliamentary Remuneration Tribunal Act 1975 (clause 7(1)). “Gift” is broadly defined as any disposition of property otherwise than by will, without full consideration, but excludes financial or other contributions to travel (clause 7(1)). “Debt” includes debts arising from loans of money or from the supply of goods or services (clause 7(1)). “Disposition of property” is defined extensively and includes conveyances, transfers, allotment of shares, creation of trusts, leases, mortgages, releases, and any transaction intended to diminish the value of one’s property and increase another’s (clause 7(1)). “Relative” is defined in relation to a Member and includes parents, grandparents, siblings, children, adopted children, lineal descendants, and spouses or de facto partners of the Member or of those persons (clause 7(1); note that “de facto partner” is defined in section 21C of the Interpretation Act 1987). “Political party” means a body having as one of its objects the promotion of election of endorsed candidates to the NSW Parliament (clause 7(1)). “Professional or business association” means a body promoting the economic interests of its members in any occupation. Clause 7(2) provides that disclosures extend to real property situated, income derived, corporations incorporated, or other things arising or received outside New South Wales. Clause 7(3) treats gifts, loans, or goods supplied by related corporations (within the meaning of section 50 of the Corporations Act 2001) as having been made by a single corporation for the purpose of applying aggregation thresholds. Clause 7(4) states that a description “reasonably sufficient to identify a matter” means one that would enable a reasonable person to identify the nature or kind of matter.

The Regulation directly affects every Member of the New South Wales Legislative Council and Legislative Assembly. It imposes ongoing disclosure obligations on them from the moment they take the pledge of loyalty until they cease to be Members, and applies irrespective of whether they are newly elected (other than re-elected Members) or re-elected after a dissolution or expiry. The Regulation does not apply to Commonwealth Members, local government councillors, or non-parliamentary public officers. The Clerks of each House are affected because they bear the administrative burden of compiling and maintaining the registers (clauses 17 and 18), receiving returns, and tabling or publishing copies in accordance with clause 21. The Clerks also have the power to delete certain materials from copies prepared for tabling, such as notes and directions or irrelevant page numbers (clause 21(5)). Parliamentary committees are affected because the “appropriate parliamentary committee” for a Member can issue or approve guidelines for completing forms (clause 3A(4)). The public is affected as users of the registers: any person may inspect the registers at the Clerk’s office during business hours (clause 20). Political parties, donors, employers, corporations, trade unions, and professional or business associations are indirectly affected because Members must disclose the names, addresses, and other details of entities that provide income, gifts, travel contributions, debts, or that engage the Member to provide client services. The disclosure thresholds and aggregation rules mean that multiple small transactions from the same person can trigger reporting obligations. The Regulation also affects persons who are “relatives” of Members, because certain thresholds exempt debts and gifts from relatives (clauses 10(2)(c), 11(2)(b), 14(3)(b)). The Election Funding Act 1981 is referenced for exemptions of political contributions (clauses 10(2)(b), 11(2)(e)), so campaign finance disclosure regimes interact with this Regulation.

The central duty under the Regulation is the obligation to lodge returns on time. A person who becomes a Member (other than a re-elected Member) must lodge a primary return within three months after the primary return date (clause 4). Each Member must lodge an ordinary return before 1 October each year, unless the primary return date falls after 30 April in that year, in which case no ordinary return is due for that year (clause 6(1)). A Member who has lodged an ordinary return (or a primary return with a primary return date after 30 April but before 1 October) must also lodge a supplementary ordinary return by 31 March of the following year (clause 6A(1)). The supplementary return covers the period 1 July to 31 December, but only matters not already disclosed in the previous return for certain categories (real property, interests in corporations, positions in unions, debts) must be new; for income, gifts, travel contributions, dispositions of property, and client services, the Member must disclose all such matters occurring during the supplementary period regardless of whether they were disclosed in the previous return (clause 6A(4)). A Member may lodge a discretionary return at any time before the next required ordinary or supplementary return (clause 6B). The content of returns is prescribed by Part 3. Members must disclose real property interests (clause 8), sources of income (clause 9), gifts (clause 10), contributions to travel (clause 11), interests and positions in corporations (clause 12), positions in trade unions and professional or business associations (clause 13), debts (clause 14), dispositions of property where the Member retains a benefit or obtains a benefit through arrangements (clause 15), and client services that involve the use of the Member’s parliamentary position (clause 15A). Each disclosure category has thresholds and exemptions. For example, income sources need not be disclosed if the amount received or expected is $500 or less (clause 9(3)). Gifts under $500 need not be disclosed unless aggregated with other gifts from the same person exceeding $500 (clause 10(2)). Travel contributions under $250 need not be disclosed unless aggregated (clause 11(2)(d)). Debts under $500 need not be disclosed unless aggregated, and debts to relatives, to money lenders in the ordinary course, or for goods/services supplied within the preceding 12 months are exempt (clause 14(3)). Real property used for residential purposes may be disclosed by stating it is the principal or secondary place of residence and the suburb or area, instead of the full address (clause 8(1A)). Members have the right to make discretionary disclosures of any other benefits or liabilities they consider might appear to raise a conflict (clause 16). Members also have a right to inspect the register at any time it is open for public inspection and, for their own House, while the House is sitting (clause 20(2)). The public has a right to inspect the registers during stated hours (clause 20(1)). Members are not excused from disclosing in an ordinary return any matter previously disclosed in a supplementary ordinary return for a period that occurred during the ordinary return period (clause 6A(5)). A nil return must still be lodged if no disclosures are made (clause 22).

Clause 23 is the sole enforcement provision within the Regulation itself. It provides that a contravention of the Regulation shall not attract any criminal or civil liability except to the extent expressly provided by section 14A of the Constitution Act 1902. This means that the Regulation creates no independent offences or civil penalties. Any legal consequences for non-compliance must flow from the Act. Section 14A of the Constitution Act is not reproduced in the Regulation, but the Regulation relies on it for any enforcement teeth. The practical enforcement mechanism is therefore primarily reputational and political: the registers are tabled in Parliament and open to public inspection (clauses 20 and 21). The Clerk must table copies of the register (or parts not previously tabled) within 21 sitting days after the last day for lodgment of primary and ordinary returns (clause 21). This ensures that any failure to lodge or any incomplete or inaccurate disclosure is exposed to parliamentary and public scrutiny. The Regulation does not prescribe any investigation, audit, or prosecution powers. It does not mandate declarations of truth or independent verification. However, the forms in Schedule 1 include signature blocks and certificates (e.g. Form 3 Division B requires a certificate that the additional interests are those required to be disclosed). The absence of substantial penalties under the Regulation itself places a heavy reliance on the integrity of Members and the oversight of parliamentary committees and the public. The reference to section 14A of the Act suggests that the Act may contain specific offences for false or misleading disclosures, but the Regulation does not elaborate. There is no provision in the Regulation for the Clerks to reject or require amendment of a return, nor for any internal disciplinary process.

The Regulation explicitly references several other statutes. For the definition of “income”, it adopts the concept of assessable income under the Income Tax Assessment Act 1936 or 1997 of the Commonwealth, but excludes Parliamentary Remuneration Tribunal Act 1975 remuneration (clause 7(1)). This means the tax definition is incorporated by reference, but not the tax rates or collection mechanisms. For “interest” in a corporation, the Regulation uses the definition of “relevant interest” from the Corporations Act 2001 (Cth) (clause 7(1)). “Listed public company”, “securities”, and “officer” (for client services) are also defined by reference to the Corporations Act (clauses 7(1), 15A(6)). Gifts and contributions to travel that are political contributions disclosed or required to be disclosed under Part 6 of the Election Funding Act 1981 are exempt from disclosure in the Regulation (clauses 10(2)(b), 11(2)(e)). This prevents double reporting for campaign finance. Part 6 of the Election Funding Act deals with disclosure of political donations and expenditure. The Regulation also interacts with the Interpretation Act 1987 by using the defined term “de facto partner” from section 21C of that Act (clause 7(1) note). The Regulation itself is made under the Constitution Act 1902 (see clause 1). The relationship with the Constitution Act is fundamental: the Regulation’s enforcement depends on section 14A of that Act (clause 23). The Regulation does not purport to override parliamentary privilege or the law of defamation. The loose-leaf register provisions (clause 19) and the requirement for the Clerk to delete notes and directions from tabled copies (clause 21(5)) operate as a practical measure but do not affect the legal status of the returns. The Regulation does not interact with privacy laws in any express way; the registers are expressly open to public inspection, overriding any expectation of confidentiality.

The Regulation was originally made in 1983 and has been amended multiple times. The most significant amendments occurred in 2007 and 2008. The 2007 amendments were made by the Constitution (Disclosures by Members) Amendment Regulation 2007 (SL 2007 No 112). These amendments inserted clause 3A (Forms), substituted clause 4 (Primary returns), repealed clause 5, inserted clause 6A (Supplementary ordinary returns) and clause 6B (Discretionary returns), amended clause 7 (Interpretation: Part 3), inserted clause 7A (Use of Member’s parliamentary position to provide services), amended clauses 8, 9, 11, 12, 13, 14, and 16, inserted clause 15A (Provision of client services), amended clause 19 (Form of registers), and substituted Schedule 1 (Forms) entirely. The 2008 amendments were made by the Constitution (Disclosures by Members) Amendment Regulation 2008 (SL 2008 No 371) and further refined the forms and definitions, including adjustments to clauses 3, 3A, 8, 12, and Schedule 1. Other amendments include changes in 2001, 2002, and 2008 to clause 7 to update references to the Corporations Act and the Interpretation Act (see clause 7(1) amendment notes). Clause 24 was inserted in 2007 to summarise the operation of the Regulation in 2007, providing transitional guidance for the 2007 general election and the introduction of supplementary returns. The amendment history is recorded in the footnotes to each clause. The current forms in Schedule 1 date from the 2008 substitution. The Regulation retains a savings provision in clause 3(2) that recognises returns lodged under earlier versions of the forms as valid for determining the “last return lodged” for calculating ordinary return periods. This prevents discontinuity when forms change.

The Regulation does not cite any case law, and the text of the Regulation does not reference any litigation. Clause 23’s limitation on liability suggests that the drafters intended to minimise the risk of legal proceedings against Members for disclosure failures, channelling any consequences through political mechanisms rather than courts. There is no mention of prosecutions, appeals, or judgments in the Regulation. As a subordinate instrument, the Regulation may have been considered in judicial review proceedings concerning the validity of disclosure requirements, but the Regulation itself does not record such history. The absence of express enforcement provisions further reduces the likelihood of litigation. The reference to section 14A of the Act implies that any court action would need to be brought under that section, which is not reproduced here. Practitioners should be aware that the Regulation’s operation may be affected by parliamentary privilege issues if a Member’s disclosure is used in proceedings outside Parliament, but the Regulation does not address this directly.

Several features of the Regulation can catch Members and their advisers off guard. The supplementary ordinary return (clause 6A) requires a Member to re-disclose all income, gifts, travel contributions, dispositions of property, and client services for the July-December period even if those same items were already disclosed in the ordinary return covering the full year to 30 June. This duplication is explicit in clause 6A(4)(b)(iii) and is reiterated in the guidance notes to Form 3. The overarching prohibition on excusal in clause 6A(5) makes it clear that the supplementary return does not reduce the obligation to disclose the same matter again in the next ordinary return. The aggregation rules for gifts and debts are easily overlooked. For gifts, items each under $500 must be aggregated with other gifts from the same person in the return period; if the aggregate exceeds $500, all gifts must be listed (clause 10(2)(a)). Similarly for debts (clause 14(3)(a)) and travel contributions (clause 11(2)(d)). The definition of “gift” is broad: it includes any disposition of property without full consideration, but expressly excludes “any financial or other contribution to travel” (clause 7(1)), meaning travel contributions are dealt with separately under clause 11 and are not also reportable as gifts. However, if a travel contribution also meets the gift definition, the Member must consider both clauses. The “client services” disclosure in clause 15A applies even if the Member receives no direct payment from the client (clause 15A(3)). The trigger is that the Member is engaged by a principal who receives or expects consideration from the client. This catches consultants, directors, and employed Members providing lobbying or policy advice to third parties through their employer. The “relative” exemption for debts (clause 14(3)(b)) and gifts (clause 10(2)(c)) uses the broad definition in clause 7(1) which includes de facto partners and their relatives, so loans from an unrelated person who is a de facto partner’s relative may be exempt only if that person falls within the definition. The debt disclosure obligation applies to all debts, even if not due and payable (clause 14(2)), and debts for goods/services supplied in the preceding 12 months are exempt (clause 14(3)(d)(i)) but only in the primary return context; for ordinary returns, the exemption is for goods/services supplied during the ordinary return period (clause 14(3)(d)). The distinction between returns periods is critical. Clause 22 requires that a nil return must still be lodged, so simply not filing is a contravention even if there is nothing to disclose. The register retains returns for only eight years (clause 19(1)), but Members should keep personal copies indefinitely for reference.

Compliance begins with understanding the return cycle. On becoming a Member (other than a re-elected Member), the Member must lodge a primary return within three months of taking the pledge of loyalty, using Form 1 (primary return). The primary return must include disclosures as at the primary return date for real property, interests in corporations, positions in unions, debts, and also sources of income and client services reasonably expected during the remainder of the financial year (clauses 4, 8-15A). The Member should immediately establish a system for tracking interests and changes. For each financial year ending 30 June, an ordinary return using Form 2 must be lodged before 1 October. The ordinary return covers the 12 months ending 30 June, or from the primary return date if the Member’s last return was a primary return (clause 6, definition of ordinary return period). The Member must review each category in Part 3 and complete the relevant tables in Section 2 of Form 2. The guidance notes and examples in Section 1 of each form are instructive but do not have legal force (clause 3A(3) provides that examples and notes in a form are for assistance only). However, clause 3A(2) requires that the relevant portion of a form must be completed in accordance with any directions specified in the form and any guidelines issued or approved by the appropriate parliamentary committee. Members should obtain and follow those guidelines. For the supplementary ordinary return, Form 3 must be lodged by 31 March each year, covering the period 1 July to 31 December. The Member must complete either Division A (no new disclosures) or Division B (listing additional matters). For income, gifts, travel contributions, dispositions of property, and client services, all such matters during the supplementary period must be disclosed regardless of prior disclosure. For other categories (real property, interests in corporations, positions in unions, debts), only matters not already disclosed in the most recent return need to be added (clause 6A(4)). Discretionary returns (Form 4) can be used at any time to update disclosures if the Member considers it appropriate. Practical compliance steps include: maintaining a register of all relevant interests, income sources, gifts, travel contributions, debts, and client engagements; tracking aggregation thresholds ($500 for gifts and debts, $250 for travel contributions); documenting valuations for non-money gifts; and retaining records for at least eight years. Members should be careful to disclose client services even if no direct payment is received (clause 15A(3)). For real property used as a residence, the alternative disclosure method of describing it as “principal place of residence” plus suburb or area is available (clause 8(1A)). All forms must be lodged with the Clerk of the relevant House (clauses 17-18). If space on a form is insufficient, an appendix signed by the Member and properly identified must be attached (Form 1 directions). The Member must sign and date the return. Even if there are no disclosures in a primary, ordinary, or supplementary ordinary return, the return must still be lodged with “NIL” appropriately placed (clause 22). Failure to comply does not attract civil or criminal liability under the Regulation itself (clause 23), but may have political consequences or expose the Member to action under section 14A of the Constitution Act.