Lobbying of Government Officials Act 2011

The Act defines several core concepts. “Lobbying” is defined in section 4 as communicating with a Government official for the purpose of representing the interests of others in relation to legislation or proposed legislation, a government decision or policy, a planning application (as defined in section 3), or the exercise by the official of his or her official functions. Lobbying extends to communications whether or not done in the course of carrying on the business of lobbying, communications by a person who works for an organisation representing the organisation or its members, and communications representing community interests. This means a wide range of advocacy activities - including those of in-house representatives and community advocates - may constitute lobbying. However, lobbying expressly excludes communications by a member of Parliament in the ordinary course of duties, communications by a constituent seeking electorate advice or assistance, communications by a Government official acting in the ordinary course of duties of a Government official, and any communication excluded by the regulations.

A “Government official” is defined in section 3 and includes a Minister or Parliamentary Secretary, their staff members (including electorate office staff), heads of Public Service agencies, persons employed in the NSW Public Service, Transport Service or other Crown service, individuals engaged under contract to provide services to those services, and members of the governing body of a statutory body. Local government officials are excluded from the definition except in Parts 5 and 6 (the ban on success fees and the cooling-off period). There is also a separate definition of “Commonwealth public official” used in the cooling-off provisions.

A “lobbyist” means a third-party lobbyist or any other individual or body that lobbies Government officials (including an individual engaged to undertake lobbying for a third-party lobbyist). A “third-party lobbyist” is defined as an individual or body carrying on the business (generally for money or other valuable consideration) of lobbying Government officials on behalf of another individual or body. The definition can be expanded or narrowed by regulation.

The “Lobbyists Code” is the code of conduct prescribed by regulations under Part 2. It sets ethical standards of conduct to be observed by lobbyists and may cover meeting procedures and other matters. The “Lobbyists Register” is the Register of Third-Party Lobbyists established under Part 3, a public document published on the Electoral Commission’s website (sections 8 and 11). The “Lobbyists Watch List” is a separate public list of lobbyists placed there by the Electoral Commission because of contraventions of the Code or the Act (section 12).

“Success fee” is defined in section 14 as an amount of money or other valuable consideration the giving or receipt of which is contingent on the outcome of lobbying or a matter about which lobbying is carried out. Planning application is defined in section 3 as an application or request by a non-public authority to initiate an environmental planning instrument or for consent or approval under the Environmental Planning and Assessment Act 1979.

“Officer of a registered political party” means a person occupying or acting in an office or position concerned with the management of a party registered under Part 6 of the Electoral Act 2017. Such persons are ineligible to be registered as third-party lobbyists (section 9(3)).

The Act directly affects several categories of persons and organisations. First, third-party lobbyists - individuals or bodies carrying on the business of lobbying Government officials on behalf of others - are required to be registered in the Lobbyists Register (section 9(1)). This includes any individual engaged by a third-party lobbyist to undertake lobbying; they too must be registered in respect of that third-party lobbyist (section 9(2)). Registration is a prerequisite to lawful activity, and operating without registration exposes the lobbyist to being declared ineligible for a specified period (section 9(8)). The Act also affects any individual or body that lobbies Government officials, even if not a third-party lobbyist, because the definition of lobbyist in section 3 includes any such person. While in-house lobbyists and community advocates may not need to register, they are still bound by the Lobbyists Code (section 7) and subject to the Watch List provisions (section 12) and the ban on success fees.

Former Ministers and Parliamentary Secretaries are directly restricted by the 18-month cooling-off period in section 18. They cannot lobby a Government official on an official matter that was dealt with in the course of carrying out portfolio responsibilities in the 18 months before ceasing office. This restriction does not apply if the former officeholder is acting as a member of Parliament (NSW or Commonwealth) or as a Government official or Commonwealth public official.

Government officials themselves are affected indirectly. The Act requires them to be aware of the Register and Watch List, and any code of conduct or official rules applying to officials may include special procedures for communicating with lobbyists on the Watch List (section 12(2)). Officials are also the targets of lobbying and may be subject to duties under other legislation to report or manage contacts with lobbyists.

Clients of lobbyists - the third parties who retain lobbyists - are not required to register but their names must be disclosed in the Register (section 10(1)(d)). Those who give a success fee to a lobbyist commit an offence under section 15(1). Persons other than lobbyists who receive a success fee also commit an offence (section 15(3)), though fees for technical professional services (lawyers, accountants, financial advisors and other technical specialists) provided primarily for professional advice other than lobbying are excluded from Part 5 (section 17).

The Electoral Commission is the central enforcement body. It must establish and publish the Register (sections 8, 11), maintain the Watch List (section 12), process registration applications, cancel or suspend registrations (section 9(7)), determine ineligibility periods (section 9(8)), and give notice and reasons for certain decisions (section 19A). It has investigative functions cross-referenced from the Electoral Funding Act 2018 (section 19). Directors and persons concerned in the management of corporations that contravene the Act may also be personally liable under section 23.

The Act imposes a number of specific duties. A lobbyist has a duty to comply with the Lobbyists Code in connection with lobbying (section 7). This duty is enforceable by the Electoral Commission. A third-party lobbyist is required to be registered in the Lobbyists Register (section 9(1)), and each individual engaged to undertake lobbying for a third-party lobbyist must also be registered (section 9(2)). Non-compliance can lead to cancellation or suspension of registration (section 9(7)(a)). A registered third-party lobbyist must update the information in the Register in writing to the Electoral Commission at times or periods required by the regulations (section 10(2)). Failure to do so is a ground for cancellation of registration (section 9(7)(b)).

A person must not give or agree to give a success fee for lobbying to a lobbyist or to any other person at the direction or with the agreement of the lobbyist (section 15(1)). A lobbyist must not receive or agree to receive a success fee, or agree that another person is to receive one (section 15(2)). A person other than a lobbyist must not receive or agree to receive a success fee (section 15(3)). A former Minister or Parliamentary Secretary must not, during the 18-month cooling-off period, lobby a Government official on matters dealt with in the course of portfolio responsibilities in the 18 months before ceasing office (section 18(1)). This duty does not apply if the former officeholder is acting in certain exempt capacities listed in section 18(2).

The Act also confers rights. An applicant for registration may apply to the Electoral Commission for registration as a third-party lobbyist (section 9(4)). The Electoral Commission must register a duly made application unless satisfied the person is not eligible (section 9(6)). A person subject to an adverse decision - refusal to register, cancellation or suspension of registration, determination of ineligibility, or placement on the Watch List - has a right to receive written notice of the decision and reasons from the Electoral Commission (section 19A(1)). The Commission must also publish notice and reasons on its website unless there is an overriding public interest against disclosure (section 19A(2)). A lobbyist may request that information in the Register or Watch List be excluded from public availability if the Electoral Commission is satisfied there is an overriding public interest against disclosure within the meaning of the Government Information (Public Access) Act 2009 (sections 10(3) and 13(2)). A person found guilty of an offence under Part 5 may apply to the court for an order that a success fee not be forfeited or that it be returned (section 16(2)).

The Act establishes a range of penalties and enforcement mechanisms. The most significant monetary penalties are for offences under Part 5: a person who gives or receives a success fee faces a maximum penalty of 500 penalty units if a corporation, or 200 penalty units if an individual (section 15). The penalty for a former Minister or Parliamentary Secretary who breaches the cooling-off period is 200 penalty units (section 18(1)). Offences under the Act are dealt with summarily before the Local Court (section 22). The value of a penalty unit in NSW is currently $110 (under the Crimes (Sentencing Procedure) Act 1999), so maximum fines reach $55,000 for corporations and $22,000 for individuals.

In addition to fines, a court must order forfeiture of a success fee to the Crown if a person is found guilty of an offence under Part 5, unless the court otherwise orders (section 16(1)). The court may, on proceedings or appeal, order that a success fee not be forfeited or be returned to a specified person (section 16(2)).

The Electoral Commission has civil enforcement functions under section 19. It may investigate alleged breaches of the Lobbyists Code and the Act using the investigative powers it has under the Electoral Funding Act 2018, with Part 9 of that Act applied to the Lobbyists Code and this Act (section 19(2)-(3)). These powers may include requiring production of documents, entering premises, and examining witnesses, as set out in that Act. The Commission may also cancel or suspend the registration of a third-party lobbyist or an individual engaged to undertake lobbying if the lobbyist contravenes the Code or Act, ceases to be eligible to be registered, fails to update Register information, no longer carries on business, or is no longer engaged (section 9(7)). The Commission may determine that an unregistered lobbyist who has carried on the business of lobbying while unregistered is ineligible to be registered for a specified period (section 9(8)). It may also place a lobbyist on the Lobbyists Watch List because of contraventions (section 12(1)), and may later remove them if satisfied they should no longer be on the list (section 12(4)). The Watch List is public; being listed may trigger special procedures for communication with Government officials under other codes or rules (section 12(2)).

Corporate liability is extended by section 23: if a corporation contravenes the Act, each director or person concerned in the management of the corporation is taken to have contravened the same provision if they knowingly authorised or permitted the contravention. Proceedings can be brought against individuals regardless of whether the corporation has been proceeded against or convicted.

The Act also includes a specific protection from defamation and breach of confidence claims for the Electoral Commission and its members when they act in good faith in making decisions about inclusion or removal of information from the Register or Watch List (section 20).

The Act does not operate in isolation. It expressly links to several other New South Wales statutes. The definition of “planning application” in section 3 refers to the Environmental Planning and Assessment Act 1979; lobbying in relation to planning applications is a core activity caught by the definition of lobbying in section 4. The definition of “Electoral Commission” refers to the New South Wales Electoral Commission constituted under the Electoral Act 2017. The definition of “officer of a registered political party” refers to Part 6 of the Electoral Act 2017; being such an officer makes a person ineligible for registration as a third-party lobbyist (section 9(3)).

The enforcement provisions cross-reference the Electoral Funding Act 2018. Section 19(2) allows the Electoral Commission to exercise investigative or other functions it has under that Act for the purpose of enforcing compliance with the Lobbyists Code and this Act, applying Part 9 of that Act to these purposes. This means the Commission’s powers of investigation, document production, and examination from the funding law are imported for lobbying regulation.

The Act also interacts with the Government Information (Public Access) Act 2009 in two critical ways. When a lobbyist requests exclusion of information from the Lobbyists Register or the Watch List, the Electoral Commission must be satisfied that there is an overriding public interest against disclosure within the meaning of that Act (sections 10(3) and 13(2)). Similarly, when the Commission decides not to publish notice and reasons for certain decisions on its website, the same test applies (section 19A(2)). This embeds the GIPA framework into the transparency/confidentiality balancing under the Act.

The Crimes Act 1900 is referenced in a note to section 10: knowingly providing false or misleading information or producing false or misleading documents in purported compliance with a law of the State is an offence under Part 5A of that Act. The note serves as a warning to those making applications or updates to the Register.

The Schedule contains transitional provisions linking to repealed Acts, including the Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014, which inserted key parts. It also references the Subordinate Legislation Act 1989, granting a six-month window for regulatory impact statements for initial regulations under the Act. The Act’s regulation-making power in section 21 enables further cross-referencing and specification. The Act also provides that notes do not form part of the Act (section 3(2)), so the note regarding the Crimes Act is informational only.

The Lobbying of Government Officials Act 2011 was originally enacted as Act No 5 of 2011. Its commencement was to be by proclamation (section 2). The Act underwent significant amendment by the Electoral and Lobbying Legislation Amendment (Electoral Commission) Act 2014 (2014 No 30). That amending Act substantially restructured the legislation. It inserted new Parts 2 (Lobbyists Code of Conduct), 3 (Register of Third-Party Lobbyists), and 4 (Lobbyists Watch List), and renumbered the original Parts: the original Part 2 (Ban on success fees) became Part 5, the original Part 3 (Other restrictions on lobbying) became Part 6, and the original Part 4 (Miscellaneous) became Part 7. Section 3 (Definitions) was substituted in its entirety. The definition of “lobbying” was inserted as a new section 4. The previous definitions of “Government official” and “third-party lobbyist” were revised. The Electoral Commission was given the function of enforcing the Lobbyists Code and the Act under the new section 19.

Further amendments were made by the Electoral Act 2017 (2017 No 66), which updated references to the Electoral Commission: the name of the Electoral Commission was changed from a reference to the “Electoral Commission” under the old Parliamentary Electorates and Elections Act 1912 to the body constituted under the new Electoral Act 2017. Sch 8.15 of that Act amended section 3 and other provisions accordingly.

The most recent substantive amendments came with the Electoral Funding Act 2018 (2018 No 20), Sch 3.6. These amendments inserted the objects of the Act in new section 2A. They amended the eligibility criteria for registration in section 9, adding that a person ceases to be eligible and that the Commission may cancel or suspend registration on that ground, and also added the explicit disqualification for persons sentenced to 30 months imprisonment or convicted of a fraud/dishonesty offence within 10 years (section 9(9)). A new section 19A was inserted requiring the Electoral Commission to give notice of and reasons for certain decisions (refusal to register, cancellation/suspension, ineligibility determination, placement on Watch List) and to publish those reasons unless an overriding public interest prevents disclosure. The amendment also updated the cooling-off provision in section 18 to apply to matters dealt with in the period of 18 months before ceasing office (rather than simply the portfolio responsibilities held). The Act’s schedule contains savings and transitional provisions, including clauses preserving existing agreements on success fees and deeming persons on the former Register of Lobbyists (kept by the Department of Premier and Cabinet) as registered under the new Part 3.

The text of the Act as provided does not refer to any specific litigation or judicial decisions. Section 20 provides protections from actions for defamation or breach of confidence in respect of decisions regarding the Register and Watch List, which suggests the drafters anticipated the possibility of such claims. The Act contains no express reference to administrative law review rights beyond the requirement for written reasons under section 19A; judicial review under the common law or the Administrative Decisions Review Act 1997 (NSW) would generally be available for decisions of the Electoral Commission that affect rights and interests, but no cases are cited in the source material. The Local Court has jurisdiction to hear summary proceedings for offences under the Act (section 22). In the absence of any case references in the source, it is not possible to provide an account of judicial interpretation of the Act’s provisions. The material provided does not mention any decided cases, appeals, or reported interpretations. Practitioners should therefore treat the Act as having limited judicial construction, and may need to rely on the text itself, the objects in section 2A, and comparable lobbying legislation in other Australian jurisdictions for guidance. The Act’s mandatory review provision in section 24 (requiring a review after five years from assent) may have produced a report that includes discussion of any enforcement actions or litigation outcomes, but that report is not part of the source text.

Several features of the Act may trip up those who are not alert to the breadth of its definitions and the strictness of its prohibitions. The definition of “lobbying” in section 4 is expansive. It covers communications not only by professional lobbyists but also by employees or members of organisations representing the interests of the organisation or its members, and community representatives. An in-house legal or government affairs officer who communicates with a Minister on policy could be a “lobbyist” without being a third-party lobbyist, meaning they are still bound by the Lobbyists Code and subject to the Watch List. However, the Act creates an important carve out: communications by a Government official acting in the ordinary course of duties are excluded (section 4(3)(b)). This means that officials discussing matters within their role are not lobbying. Similarly, a member of Parliament or a constituent seeking assistance is excluded, protecting ordinary constituency work.

Another trap is the extension of “lobbying” in section 4(2) to communications “whether or not in the course of carrying on the business of lobbying”. This means even a one-off contact by an individual who is not a professional lobbyist can constitute lobbying for the purposes of the Act, subjecting them to the Lobbyists Code and the ban on success fees, but only a third-party lobbyist (carrying on the business) must register. The distinction between a lobbyist (anyone who lobbies) and a third-party lobbyist is critical: only the latter need be on the Register, but both are subject to the Code and the Watch List.

The ineligibility criteria for registration in section 9(3) and (9) are strict. A person who is an officer of a registered political party cannot be registered. The “fit and proper person” test in section 9(9) deems a person not fit and proper if they have been sentenced to imprisonment of 30 months or more, or have been convicted of an adult fraud or dishonesty offence within the previous 10 years. This is not exhaustive, so the Electoral Commission can find other grounds for unfitness. The consequence of being found not fit and proper is disqualification from registration, which effectively ends the lobbyist’s business.

The ban on success fees in Part 5 applies to all persons, not just lobbyists. A client who agrees to pay a success fee commits an offence (section 15(1)). A lobbyist who receives one commits an offence (section 15(2)). A non-lobbyist who receives a success fee (for example, a referral fee from a lobbyist) also commits an offence (section 15(3)). The only carve-out is for fees primarily for professional advice or services other than lobbying, such as legal or accounting work (section 17). Importantly, the ban applies to agreements in force before the Act’s commencement, but only for work carried out after commencement (Schedule 1, Part 2, clause 2). Pre-commencement agreements are void to the extent they cover post-commencement work.

The cooling-off period in Part 6 is limited in scope. It does not apply to all lobbying by a former Minister or Parliamentary Secretary, only to lobbying on “an official matter that was dealt with by the former Minister or Parliamentary Secretary in the course of carrying out portfolio responsibilities in the period of 18 months immediately before ceasing to hold office” (section 18(1)). A former Minister could lobby on matters outside their former portfolio or outside that 18-month window. The exemption for acting as a member of Parliament (state or Commonwealth) or as a Government official (section 18(2)) means that re-entering Parliament or the public service ends the restriction.

Local government officials are not “Government officials” for most purposes - the definition in section 3 excludes them except in Parts 5 and 6. This means the ban on success fees and the cooling-off period apply even when lobbying local government officials, but the registration and Code obligations do not extend to lobbying those officials.

Compliance with the Act requires a systematic approach for anyone who engages in lobbying as defined. The most important threshold is to determine whether the person or entity is a third-party lobbyist - that is, carrying on the business of lobbying Government officials on behalf of another person for money or valuable consideration. If so, the lobbyist must apply for registration in the Lobbyists Register under section 9(4). The application must be in the form approved by the Electoral Commission, contain the names of individuals engaged to undertake lobbying, and may require disclosure of criminal records (section 9(5)). The Electoral Commission must register unless the applicant is not eligible, including not being a fit and proper person (section 9(6)). All individuals who are engaged to undertake lobbying for that third-party lobbyist must also be registered in respect of that lobbyist (section 9(2)). Those individuals include employees and contractors whose duties involve communicating with Government officials on behalf of clients.

Once registered, the lobbyist must ensure that the information in the Register is kept up to date. Section 10(2) requires updating at times or periods prescribed by the regulations. This includes changes to business details, the list of engaged individuals, persons with management or financial interests, and the names of third parties who have retained the lobbyist (section 10(1)). Failure to update can result in cancellation of registration (section 9(7)(b)).

All lobbyists - whether or not they are third-party lobbyists - must comply with the Lobbyists Code of Conduct (section 7). The Code is prescribed by regulation and sets ethical standards. Practitioners should obtain the current version of the Code from the Electoral Commission’s website and ensure that all relevant staff are trained on its requirements, including any procedures for meetings or contact with Government officials.

The ban on success fees in Part 5 must be strictly observed. No agreement to give or receive a fee contingent on the outcome of lobbying should be entered into. If there is an existing agreement covering future work, it should be revised to remove the contingency element or terminated. Fees that are primarily for technical professional services (legal, accounting, financial advisory) are excluded, but only if they are not for lobbying services (section 17). Careful documentation is needed to demonstrate that such fees are for genuine professional advice independent of lobbying outcomes.

Former Ministers and Parliamentary Secretaries must identify the matters they dealt with in their portfolio responsibilities in the 18 months before ceasing office and avoid all lobbying contacts with Government officials on those specific matters for the 18 months after leaving office. This may require maintaining a list of matters and briefing external representation on the restriction.

All persons subject to the Act should monitor the Electoral Commission’s decisions and respond promptly to any notice of refusal, cancellation, suspension, or placement on the Watch List, making use of the reasons provided under section 19A. Information that the lobbyist considers sensitive may be requested for exclusion from public access under sections 10(3) and 13(2) by demonstrating an overriding public interest against disclosure under the GIPA Act.

Finally, corporate entities must ensure that directors and persons concerned in management are aware of their personal exposure under section 23, which imposes liability for knowingly authorising or permitting a contravention by the corporation. Regular compliance audits and training are prudent. The Act’s regulation-making power (section 21) may introduce specific forms, fees, or procedures, so practitioners must keep up to date with subordinate legislation.