Who Needs to Register?

From 1 February 2009, Lobbyists who act on behalf of a third party client and who wish to lobby Government officials must be registered before they contact a Government official for the purpose of lobbying activities. 

Under clause 3 of the Code, a ’Lobbyist’ is any person, company or organisation whose business includes being contracted or engaged to represent the interests of a third party to a Government representative.

The term ‘Lobbyist’ does not include:

• religious or charitable organisations;
• organisations constituted to represent the interests of their members (for example, professional organisations, peak industry bodies and trade unions);
• professionals (such as doctors, lawyers or accountants) who as part of their day to day professional services to a client, represent that client’s views to a Government representative;
• individuals making representations to Government on behalf of their relatives or friends about their personal affairs.

A detailed definition is contained in clause 3 of the NSW Government Lobbyist Code of Conduct.

The following examples provide guidance on whether you need to register before making contact with a Government representative. They relate in particular to the definition of ‘Lobbyist’ in clause 3 of the Lobbyist Code of Conduct.

A person in the community volunteers to help a fellow community member or organisation by meeting with relevant NSW MPs.

Persons who are not carrying on a lobbying business and volunteer their time to represent the interests of non-profit or other organisations do not fall within the definition of ‘Lobbyist’ and are therefore not required to register under the Code.

A not-for-profit environmental organisation that does not have charitable status is represented by a member.

Non-profit associations or other organisations constituted to represent the interests of their members do not fall within the definition of ‘Lobbyist’, regardless of whether or not they have charitable status. Members, employees, supporters or board members of such organisations would not have to be registered before representing the interests of the organisation to a Government representative.

A doctor has a patient with a medical condition who is not eligible to receive equipment under the Program of Appliances for Disabled People. The doctor wishes to contact the Minister for Health to argue for changes to the eligibility criteria.

The doctor does not need to register as a Lobbyist. This is because the doctor’s business does not ordinarily include being contracted or engaged to represent the interests of a third party to Government. Further, medicine is a recognised technical or professional occupation. A doctor who, as part of the day to day services provided to a patient, represents that patient’s views to a Government representative, is not covered by the Code.

A lawyer has a practice that specialises in workers’ compensation cases in the course of which she communicates with WorkCover on behalf of her clients.

In these circumstances, the lawyer does not need to be registered because the lawyer is engaged in a recognised professional occupation and communicates with WorkCover as part of the legal services that she provides to her clients.

The government relations team in a large legal firm regularly makes representations to Government on behalf of the firm’s clients in addition to the legal services offered to the firm’s clients.

The government relations team is a business whose principal activity is being contracted or engaged to represent the interests of clients to Government representatives. It is not part of the day to day legal services provided by the firm to its clients; it is an extra service which is provided whether or not legal services are also provided.

Accordingly, the firm should be registered as a Lobbyist and the employees who engage in lobbying activities must be included on the Register as employees of the Lobbyist.

A lobbyist is engaged by a charity to make representations on its behalf to the Government.

Charitable organisations are not required to register as Lobbyists.

If, however, a charity or other non-profit organisation engages a Lobbyist to make representations to the Government on its behalf, the Lobbyist will need to register and list the charity or non-profit organisation as a client.

A non-profit organisation is engaged for a fee by a company that is not a member of that organisation to make representations on behalf of the company to Government representatives.

An association or organisation is only exempt from the need to register as a Lobbyist if it is constituted to represent the interests of its members. In this scenario, therefore, the non-profit organisation is required to register as a Lobbyist and list the company as its client as it is lobbying on behalf of a company which is not one of its members.

A part-time employee of a lobbying firm regularly provides paid and unpaid lobbying services to community groups and other organisations outside the course of her normal employment as a lobbyist.

In this scenario, the employee is carrying on her own lobbying business outside the course of her normal employment with the lobbying firm. This means that the employee is a Lobbyist in her own right and must register under the Code before contacting a Government representative on behalf of one of her paid or unpaid clients.

Where, for example, an employee of a lobbying firm volunteers his or her lobbying services to a community group on a one-off basis for no fee, or lobbies a Government representative for personal reasons, then the employee is unlikely to be regarded as carrying on his or her own lobbying business. Such persons are not required to register before making contact with a Government representative.

A large company with several wholly and partially owned subsidiaries has a policy that requires government relations staff employed by one of the corporate entities in the group to conduct all lobbying activities on behalf of itself and all of the other corporate entities in the group.

In keeping with the intention of the Code to apply to ‘third party’ Lobbyists, it is the Department’s view that a wholly owned company within a corporate group is not a ‘third party’ client of either the parent holding company or of any other wholly owned company in the group.

(Note: A wholly owned company is a company in which 100 percent of the issued share capital is wholly owned either by the holding company itself, by a wholly owned subsidiary of that holding company, or by a wholly owned subsidiary of that wholly owned subsidiary and so on down the line of the corporate group structure).

Accordingly, government relations staff (or other staff who contact Government representatives) employed by a wholly owned company within the corporate group will be regarded as ‘in-house’ Lobbyists who do not need to register, provided that they are lobbying on behalf of either:

1. the company that employs them;
2. the group holding company; or
3. another wholly owned company (as defined above) within the group.

Company A is a 50 percent shareholder in Company B. Company B pays Company A fees for professional services in government relations because Company B does not have its own internal government relations staff.

In these circumstances, Company A needs to be registered on the Register of Lobbyists. The Code applies to Lobbyists, being a person or organisation whose business includes being contracted or engaged to represent the interests of a third party to a Government Representative.

A company which is not wholly owned by Company A has different individuals or companies who stand to benefit from any lobbying undertaken on its behalf.

Accordingly, if Company A is engaged to lobby on behalf of a company which is not wholly owned by it, such as Company B, then Company A will be regarded as lobbying on behalf of a third party.  In these circumstances:

1. Company A should be registered as a Lobbyist;
2. the relevant staff of Company A should be registered as employees who undertake lobbying activities; and
3. the non-wholly owned company, Company B, should be listed as a client.

An employee or officer of a company which is in a joint venture with another company lobbies the Government on behalf of the joint venture.

For the purposes of the Code, the joint venture will be treated in the same way as the non-wholly owned subsidiary in the example above.