Integrity (Lobbyists) Act 2016

The Act defines several key concepts that structure its operation. “Lobbying activity” is defined in s 4(1) as communicating with a government representative for the purpose of influencing, whether directly or indirectly, State government decision-making. “Communicate” is defined broadly in s 3(1) to include meeting in person, post, facsimile, telephone, email or any other form of electronic communication. A lobbying activity need not be undertaken for any commission, payment or other reward to be a lobbying activity (s 4(2)). The Act then excludes a list of activities from being lobbying activities: petitioning Parliament or the Governor (s 4(3)(a)-(b)), communicating with a parliamentary committee (s 4(3)(c)), communicating with a Minister or Parliamentary Secretary in their capacity as a member of Parliament on a matter outside ministerial responsibilities (s 4(3)(d)), grassroots campaign activities subject to an exception for paid communication (s 4(3)(e) and (4)), responding to calls for submissions or requests for tender (s 4(3)(f)), providing information in response to a request from a government representative (s 4(3)(g)), making an application under a written law (s 4(3)(h)), making a public statement (s 4(3)(i)), communicating about a personal matter on behalf of oneself or a friend or relative (s 4(3)(j) and (5)), and any activity prescribed by regulation (s 4(3)(k)). “Government representative” is defined in s 3(1) to mean a Minister, Parliamentary Secretary, public sector employee, a person engaged by a public sector body under a contract for services, a person employed by an entity listed in the PSM Act Schedule 1 column 2 if prescribed, a person employed by a prescribed body established for a public purpose, or the holder of a prescribed office, but excludes persons performing functions outside Australia and non-Executive ministerial officers. “State government decision-making” is defined broadly in s 3(1) to include decisions relating to legislation, Bills, policy, appointments, contracts, grants, funding allocation, and exercise of discretionary powers. “Senior public sector executive” is a person holding an office in the Public Sector with salary at or above a prescribed amount, or holding certain prescribed offices, including ministerial contractors meeting prescribed criteria, but excludes non-Executive ministerial officers and persons exempted by the Commissioner (s 3(1)). The concept of “registrant” and “lobbyist” are distinct: a registrant is a person registered in the register (s 3(1)); a lobbyist is a person listed in the register in respect of a registrant (s 3(1)). A lobbyist may be a registrant itself, a partner in a firm that is a registrant, a director, manager, secretary or similar officer of a registrant, or a person employed, contracted or engaged by a registrant to provide lobbying activity services (s 13(1)). While listed, the person is taken to be accredited as a lobbyist (s 13(3)). “Success fee” is defined in s 20 as any commission, payment or reward (pecuniary or otherwise) if the giving or receiving depends directly or indirectly on the outcome of the lobbying activity or the matter about which the lobbying activity is undertaken. The Act also creates the “code of conduct” as a creature of delegated legislation (s 19).

The Act primarily affects three categories of actors. First, it affects private sector persons who are in the business of lobbying: those whose business consists of or includes undertaking lobbying activities on behalf of others, those who employ or engage others to do so, and those who are employed or engaged to do so (s 8(2)). These persons cannot undertake lobbying activities unless accredited as a lobbyist (s 8(1)). However, the Act expressly excludes several categories from the requirement to register (s 9): non-profit organisations; organisations constituted to represent the interests of their members (e.g. trade unions, employer organisations, professional bodies) and their employees or contractors to the extent they lobby for members’ interests; businesses whose principal purpose is a technical or professional occupation (e.g. engineering, accountancy, town planning, medicine, law) where lobbying is occasional only and incidental, and persons providing such services; in-house lobbyists employed by an employer to lobby only for the interests of that employer or related body corporate; members of trade delegations visiting the State; and any person or body prescribed by regulation. Second, the Act affects government representatives, defined broadly to include Ministers, Parliamentary Secretaries, public sector employees, ministerial contractors, and certain other persons prescribed (s 3(1)). The Act does not impose duties on them directly - they are not required to deal with lobbyists (s 7(a)) - but their interactions with lobbyists are the subject of the transparency regime. Lobbyists must be registered before contacting them for lobbying purposes. Third, the Act affects the Public Sector Commissioner, who is given significant administrative and decision-making powers. The Commissioner must establish and maintain the register (s 10(1)), make its information publicly available free of charge (s 11(1)), decide all matters relating to registration and listing including conditions, suspension, or cancellation (s 15(1)(a)-(b)), determine all related procedures (s 15(2)), issue and amend the code of conduct (s 16(1)), and estimate monetary value of success fees for recovery purposes (s 22(3)). The Commissioner also has power to exempt persons from the definition of senior public sector executive (s 3(1) definition paragraph (c)(ii)). Fourth, the Act affects persons who hold or have held a “relevant office”: a member of either House of Parliament, a senator for Western Australia, a member of the House of Representatives for a Western Australian division, a senior public sector executive, or an office prescribed. Such persons cannot be registered or listed as a lobbyist if they currently hold the office, or if less than one year has elapsed since ceasing to hold the office (s 14(2)), though the Commissioner may decide otherwise (s 14(3)). Transitional provisions (ss 26-27) automatically carried over persons on the pre-existing WA Register of Lobbyists as registrants and lobbyists on the commencement day, overriding the one-year cooling-off period (s 27(4)). Finally, the Act affects anyone who contracts with a registrant for lobbying services, since success fee arrangements are void and unenforceable (s 21(5)) and the Treasurer can recover any success fee received (s 22(1)).

The Act imposes several duties and grants certain rights. The central duty is found in s 8(1): a person who is in the business of lobbying must not undertake lobbying activities on behalf of another person unless that person is accredited as a lobbyist. This duty is backed by a penalty of $10,000. A person becomes accredited by being listed as a lobbyist in the register (s 13(3) - while listed the person is taken to be accredited). The process of registration and listing is controlled by the Commissioner, who decides all matters relating to or connected with registration and listing, including conditions, suspension, and cancellation (s 15(1)). The duty of compliance with the code of conduct falls on registrants and lobbyists (s 17(1)). Breach does not of itself attract civil or criminal liability, but the Commissioner may take it into account in performing functions under the Act (s 17(2)), subject to the offence provisions for false or misleading information under s 24. The duty to provide accurate information is absolute in the context of applications, responses to Commissioner requirements, written representations, and notifications under the code or regulations: a person must not give information known to be false or misleading in a material particular, fail to give materially relevant information, or omit information that makes a notification, document or representation false or misleading (s 24(2)). The penalty is a fine of $10,000. There is a duty on registrants and lobbyists not to agree to receive a success fee (s 21(1)-(2)). This prohibition does not apply to remuneration or bonuses paid by an employer to an employee for work done in the course of employment (s 21(3)). A lobbyist must not agree that the lobbyist or the registrant under which the lobbyist is listed receive a success fee. A registrant must not agree that the registrant or a listed lobbyist receive a success fee. A contract provision in breach is void and unenforceable but does not affect other provisions (s 21(5)). The right to disclose information to the Commissioner is protected: if a registrant discloses information to the Commissioner in connection with carrying out the Commissioner’s functions, neither the registrant nor any lobbyist incurs civil or criminal liability, no duty of confidentiality or secrecy is breached, and it is not regarded as unprofessional conduct (s 23(a)-(c)). Persons disqualified under s 14(2) because they have ceased to hold a relevant office and less than one year has elapsed have a right to apply for the Commissioner to decide to register or list them despite the disqualification period (s 14(3)). There is a right to have the register made publicly available free of charge (s 11(1)). The Commissioner has a duty to consult before issuing, amending or repealing a code of conduct, consulting those persons the Commissioner considers desirable and practicable (s 16(2)). The Commissioner must also publish the code in the Gazette and make it publicly available free of charge (s 18(1)-(2)).

The Act contains two direct criminal penalty provisions. Section 8(1) imposes a penalty of a fine of $10,000 for undertaking lobbying activities on behalf of another person without being accredited as a lobbyist. Section 24(1) similarly imposes a fine of $10,000 for supplying false or misleading information in connection with registration, listing, responses to Commissioner requirements, written representations, or notifications under the code or regulations. The fine amount is specified in the provision itself; it is not expressed in penalty units. The Act does not create imprisonment penalties. Enforcement of these offences is by prosecution; the Act does not specify who may prosecute, but ordinarily this would be the Commissioner or another State prosecuting authority. Beyond criminal penalties, the Act provides for administrative enforcement through the Commissioner’s powers under s 15(1): the Commissioner decides when and on what grounds a person’s registration is to be suspended or cancelled, or a lobbyist’s listing removed. The Commissioner may take into account any breach of the code of conduct in performing any function under the Act (s 17(2)), which would include decisions on suspension or cancellation. For success fee prohibition breaches, the Act provides a civil recovery mechanism. Section 21(4) states that no civil or criminal liability attaches to a person only because of a breach of the success fee prohibition. However, s 22(1) allows the Treasurer to sue in a court of competent jurisdiction to recover the monetary value of a success fee received in breach, as a civil debt owing to the State. The court may decline to order recovery if it would be unfair or unjust (s 22(2)). If the success fee was not a specific sum of money, the Commissioner estimates the monetary value, and that estimate is taken to be correct unless the recipient shows a different value (s 22(3)). This provision shifts the evidentiary burden onto the recipient. Additionally, s 21(5) renders void any contract provision that breaches the success fee prohibition, which itself is a civil consequence. For breaches of the code of conduct, s 17(2) explicitly provides that no civil or criminal liability attaches only because of the breach, but the Commissioner may use the breach in administrative decisions. The Act does not create a private right of action for third parties affected by lobbying misconduct. The Commissioner’s determinations on registration and listing are not subject to merits review under the Act, though judicial review principles would apply. The Act binds the Crown (s 6), so the State is subject to its provisions, but the enforcement mechanisms are directed at lobbyists and registrants. There is no provision for infringement notices or on-the-spot fines; only court-imposed fines apply.

The Act interacts with several other statutory regimes. First, it binds the Crown (s 6) and so applies to the State and, so far as legislative power permits, the Crown in all other capacities. This means that employees and contractors of the Crown who are government representatives are covered by the definitions, but the duty to register applies only to persons in the business of lobbying, not to government representatives themselves. Section 7(b) provides that nothing in the Act limits communication by a person (whether personally or through a lobbyist) with a government representative if the law requires the government representative to take account of the views advanced by the person. This preserves statutory consultation requirements under other legislation. The Act expressly references the Interpretation Act 1984: the code of conduct is subsidiary legislation for the purposes of that Act, and s 42 of the Interpretation Act applies to the code as if it were regulations (s 19(1)-(2)). This means the code must be tabled in Parliament and is subject to disallowance, and it must be published in the Gazette. The Act also interacts with the Public Sector Management Act 1994 (PSM Act): many defined terms (public sector employee, public sector body, Public Sector, ministerial officer, etc.) are drawn from the PSM Act definitions (s 3(1)). The Corporations Act 2001 (Cth) definitions of “corporation” (s 57A) and “related body corporate” (s 9) are incorporated (s 3(1)), linking State lobbying regulation to Commonwealth corporate law. The Act overrides duties of confidentiality and secrecy imposed by law: s 23(a)-(b) protects registrants disclosing information to the Commissioner from civil or criminal liability and from breach of professional ethics or standards. This would prevail over conflicting confidentiality obligations in other Acts or contracts. In case of inconsistency between a code of conduct and regulations made under the Act, the regulations prevail (s 25(2)). This is expressed directly. The Act does not contain an express inconsistency clause with other State laws, but as a later Act it would impliedly repeal inconsistent provisions to the extent of inconsistency. The prohibition on success fees (s 21) may interact with contract law: a provision in breach is void and unenforceable, but the remainder of the contract continues (s 21(5)). This preserves the law of severance. The recovery mechanism under s 22 operates as a statutory debt, not a breach of contract action. The transitional provisions (Part 6) deal with the relationship between the pre-commencement WA Register of Lobbyists and the new statutory register, automatically converting entries without requiring fresh applications (s 27). The Act also contemplates that certain bodies and offices may be prescribed by regulation for inclusion in the definition of government representative (s 3(3)), allowing flexibility to extend coverage without amending the principal Act. There is no direct interaction with the Commonwealth Lobbying Code of Conduct or the Register of Lobbyists at the federal level, as this is a State Act. However, a person may be subject to both regimes if they lobby both State and Commonwealth government representatives.

The Integrity (Lobbyists) Act 2016 (WA) is an original Act, being Act No. 15 of 2016, assented to on 11 July 2016. The compilation table in the Notes indicates that the Act has not been amended. It is a single compilation. Part 1 (preliminary) commenced on the day of Royal Assent (11 July 2016) per s 2(a). The remainder of the Act (Parts 2-6) commenced on 12 December 2016 by proclamation published in the Gazette on 9 December 2016 at page 5558, as provided by s 2(b). The Act was enacted as a stand-alone statute, not as an amendment to another Act. There is no record of any subsequent amending Acts in the compilation table. This means the Act as originally passed is the current version. There are no regulations referred to in the compiled text, though s 25 authorises the Governor to make regulations. It is possible that regulations have been made under s 25 (e.g. prescribing amounts for senior public sector executive salary thresholds, prescribing bodies for government representative definition, prescribing offices for disqualification, or prescribing classes of persons exempt from registration), but they are not included in the compilation provided. Any such regulations would be found in the Western Australian legislative information system. The Act also contemplates that the code of conduct may be issued, amended or repealed from time to time by the Commissioner (s 16(1)-(2)). The code is subsidiary legislation (s 19) and would be published in the Gazette. The compilation table indicates that the Act is a “compilation” which suggests that any subsequent amendments up to the compilation date would be noted, but none appear. Therefore, as at the date of the compilation (which is the version provided), there have been no amendments to the principal Act. Future amendments could occur, and any such changes would be recorded in subsequent compilation tables.

The provided text of the Integrity (Lobbyists) Act 2016 does not include any information about cases that have interpreted or applied the Act. The compilation table and defined terms list are the only supplementary materials; there is no annotation of litigation. The Act itself contains provisions that may shape the likelihood or nature of litigation. Section 17(2) explicitly provides that no civil or criminal liability attaches to a person only because the person has committed a breach of a code of conduct. This would limit the ability to sue for damages based solely on a code breach. Similarly, s 21(4) provides that no civil or criminal liability attaches only because of a breach of the success fee prohibition. This directs that the primary remedy for a prohibited success fee agreement is not tort or contract damages but the statutory recovery mechanism under s 22 and the voidness of the provision under s 21(5). Section 24 provides for a criminal penalty for false or misleading information, which could give rise to prosecutions. Any such prosecution would be in the Magistrates Court or higher, depending on jurisdiction. Section 22(1) contemplates civil proceedings in a “court of competent jurisdiction” at the suit of the Treasurer to recover a success fee. Such proceedings would be civil debt claims. The court may decline recovery if unfair or unjust (s 22(2)), which invites judicial discretion and potential appeals on that ground. Section 22(3) involves an evidentiary shift: the Commissioner’s estimate of monetary value is taken as correct unless the recipient shows a different value. This may be challenged in court as to the reasonableness of the estimate. The Commissioner’s decisions on registration, listing, suspension, and cancellation under s 15 are administrative decisions subject to judicial review under the Judicial Review Act (WA) or common law certiorari. The Act does not provide for internal merits review or a tribunal appeal. The transitional provisions (s 27(4)) override the one-year cooling-off period, so no litigation is expected on that issue for the initial transition. In summary, while no specific cases are cited, the Act creates several potential litigation topics: prosecutions under ss 8 and 24, civil recovery under s 22, and judicial review of Commissioner decisions. A user would need to search Western Australian case law databases (e.g. AustLII, WA Supreme Court and Magistrates Court decisions) for actual cases. There is no indication of any reported litigation in the provided material.

Several less-obvious provisions contain traps for the unwary. First, the definition of “lobbying activity” in s 4(1) is extremely broad: any communication with a government representative for the purpose of influencing State government decision-making qualifies. Section 4(2) makes clear that the activity need not be for any commission, payment or reward. This means even voluntary, unpaid advocacy for a client could be a lobbying activity if the person is in the business of lobbying. The exclusions in s 4(3) are narrow and should be read strictly. For example, the grassroots campaign exemption (s 4(3)(e)) does not apply to any communication by a person for any commission, payment or other reward (s 4(4)). So if a registered lobbyist organises a letter-writing campaign and is paid a fee, that communication is a lobbying activity. Second, section 8(2) defines “in the business of lobbying” to include a person who employs or engages one or more persons to undertake lobbying activities. This could capture an organisation that has in-house lobbyists, even if lobbying is not its principal purpose. However, s 9(f) exempts a person employed by another person to undertake lobbying activities only for the purpose of representing the interests of the employer or related body corporate. That exemption applies to the employee, not to the employer. The employer may still be considered in the business of lobbying under s 8(2)(b) because it employs or engages a person to do lobbying activities, but it may not itself be undertaking lobbying activities. The Act does not require the employer to register unless it also itself undertakes lobbying activities on behalf of another person. The structure is that the “person who is in the business of lobbying” must be accredited; the employer may be able to register as a registrant and list the employee as a lobbyist. There is a trap: the employer might think it falls under the exemption but needs to check the precise wording. Third, the one-year cooling-off period in s 14(2)(b) applies to any person who has ceased to hold a relevant office (including senior public sector executives and MPs). The Commissioner may decide to register or list such a person despite the disqualification (s 14(3)), but this is discretionary. The transitional provision in s 27(4) overrides this period for those automatically transferred from the old register, but for new applicants it applies strictly. Fourth, the success fee prohibition in s 21(1) and (2) binds both registrants and lobbyists. Section 21(3) exempts employer-to-employee remuneration or bonuses. However, a contractor arrangement may not fall within the exemption. A lobbyist who receives a bonus tied to a successful outcome from a client would be caught. Section 21(5) makes the offending clause void, but the rest of the contract stands. This means a lobbyist cannot rely on the success fee clause, but the client could still be liable for the base fee if the contract is otherwise enforceable. Fifth, s 24(2)(b) makes it an offence to “fail to give information that the person knows is materially relevant” in an application or response. This imposes a positive duty of disclosure, not just a duty not to lie. An omission that the person knows makes the information misleading is also caught (s 24(2)(c)). This is a strict liability offence (no mental element beyond knowledge of the omitted fact). Sixth, s 23 overrides duties of confidentiality, but only if the registrant discloses information to the Commissioner in connection with carrying out the Commissioner’s functions. It does not override confidentiality for disclosures to third parties. Registrants should be careful about what information they provide; once provided, it becomes part of the publicly accessible register (s 11). Seventh, the Commissioner’s powers under s 15 are broad and largely unfettered: the Commissioner decides whether and on what conditions a person is registered or listed, and when registration is suspended or cancelled. The Act does not set out criteria or grounds, giving the Commissioner wide discretion. This can be a trap for applicants who assume entitlement to registration. Finally, the Act binds the Crown (s 6), but s 7(a) says nothing in the Act requires a government representative to have dealings with a particular lobbyist. So even if registered, there is no guarantee of access.

To comply with the Integrity (Lobbyists) Act 2016, a person in the business of lobbying must take several steps. First, determine whether the Act applies. A person is in the business of lobbying if their business consists of or includes undertaking lobbying activities on behalf of another person, or if they employ or engage someone to do so, or if they are employed or engaged to do so (s 8(2)). The exclusions in s 9 must be checked: non-profit organisations, member-representative organisations (trade unions, professional bodies) and their employees, professional service firms where lobbying is occasional only, in-house lobbyists for the employer, trade delegations, and any prescribed persons are not required to be accredited. If none of the exclusions apply, the person must register with the Commissioner and be listed as a lobbyist (or if a company, register and list individual employees as lobbyists). Registration and listing are decided by the Commissioner, who may impose conditions and can suspend or cancel (s 15). An application must be made in the form and manner determined by the Commissioner (s 15(2)). The applicant must not be disqualified under s 14: a current holder of a relevant office cannot register, and a former office holder cannot register until one year has elapsed since ceasing that office, unless the Commissioner decides otherwise. The applicant must supply accurate information; s 24 makes it an offence to give false or misleading information or omit materially relevant information, punishable by a $10,000 fine. Once registered, the registrant and any listed lobbyists must comply with the code of conduct issued by the Commissioner (s 17(1)). The code is subsidiary legislation published in the Gazette and available free of charge (s 18). Breach of the code does not directly attract liability but can be used by the Commissioner in administrative decisions (s 17(2)), so compliance is essential to avoid suspension or cancellation. The registrant must not agree to accept a success fee (s 21(1), (2)). Any existing contracts that include success fee clauses should be reviewed; such clauses are void and unenforceable (s 21(5)), and if a success fee was received after the commencement of s 21 (relevant date in s 28), the Treasurer may recover its monetary value as a civil debt (s 22). The exemption for employer-employee remuneration (s 21(3)) applies only to genuine employment relationships, not to independent contractors. The registrant should ensure all lobbying activities are undertaken by listed lobbyists only; unlisted persons cannot undertake lobbying activities on behalf of the registrant (s 8(1)). If the Commissioner requests information under any procedure determined under s 15, the registrant must respond accurately and completely; failure to give materially relevant information is an offence (s 24(2)(b)). The registrant may voluntarily disclose information to the Commissioner without fear of breaching confidentiality (s 23). The register is publicly available, so information provided may be visible to the public. The registrant should keep records of communications with government representatives, the purpose thereof, and the clients on whose behalf lobbying occurs. The Commissioner may require this information under s 15 or the code. There is no statutory limitation period for compliance, but the Commissioner can act on past breaches. Transitional provisions (s 27) automatically transitioned persons from the prior WA Register of Lobbyists, so those persons are already registrants and lobbyists and need not reapply unless they wish to change details. However, the Commissioner retains power to vary conditions or cancel registration (s 15). For any change in circumstances (e.g. new clients, new lobbyists, ceasing business), the registrant should update the register promptly. The Commissioner may keep the register accurate and up-to-date (s 10(4)(b)). If a person ceases to be in the business of lobbying, they may request cancellation of registration; otherwise the Commissioner may cancel if grounds exist.