On December 1, 2015, the Lobbyists' Code of Conduct
(2015) (Code) came into force, replacing the Lobbyists'
Code of Conduct (1997) (1997 Code). The new Code imposes
additional restrictions on lobbyists, including restricting
lobbying of close friends and others with a sense of obligation to
The process of updating the Code began in May 2014, when the
commissioner of lobbying (Commissioner) announced a full review of
the 1997 Code. Consultations provided an opportunity for written
submissions and roundtable discussions from a variety of
stakeholders, and resulted in a scale back of the draft language of
the preferential access section and the release of guidance on the
application of these rules.
The rules on confidentiality were changed from the 1997 Code, in
order to require a lobbyist to only use and disclose information
provided by a public office holder in the manner consistent with
the purpose it was shared. A lobbyist is not to use or disclose a
government document he or she should not have received.
CONFLICTS OF INTEREST
In the 1997 Code, a lobbyist could not represent conflicting or
competing interests without informed consent. The new Code,
however, says a lobbyist is not to propose or take any
action that would place a public office holder in a real
or apparent conflict of interest.
The new Code also outlines the conflict of interest rules
regarding preferential access. Generally, a conflict of interest
will arise when there is tension between a public office
holder's duty to serve the public interest and his or her
private interest or sense of obligation created by the lobbyist.
Under the preferential access rules specifically, a lobbyist is not
to arrange a meeting with, or to lobby a public office holder with
whom he or she shares a relationship that could reasonably
be seen to create a sense of obligation, thereby
creating a conflict of interest.
In order to adhere to the Code, a lobbyist should not lobby or
arrange a meeting with a public office holder who is family, a
business colleague or a friend. A familial relationship, in this
context, is the lobbyist's immediate family by blood or by
marriage. A business relationship, in this context, is a business
partner of the lobbyist. A friendship is based on the
interpretation of friends under the Conflict of Interest
Act, articulated in the 2009 Watson Report: 'friends'
is a relationship between the lobbyist and the public office holder
that is a close bond of friendship, a feeling of affection or a
special kinship that extends beyond simple kinship. A friend
relationship will not extend to members of the lobbyist's broad
social or business circle, where there is little emotional
The new Code provides specific guidance for a lobbyist who
engages in political activities, on behalf of a person, that could
reasonably be seen to create a sense of obligation. If a lobbyist
engages in this type of activity he or she cannot lobby that person
or their staff for a specified period of time, if that person is,
or becomes a public office holder.
A lobbyist still cannot provide a gift, favour or other benefit
to a public office holder who they are lobbying or will lobby, as
it will create a sense of obligation. A gift is defined by the
Commissioner as anything of value, given for free or at a reduced
rate, when there is no obligation to repay.
CONSEQUENCES OF BREACH
The Code is a non-statutory instrument; therefore there are no
fines or terms of imprisonment for breaching the Code. An alleged
breach of the Code will be investigated by the Commissioner. At the
end of the investigation the Commissioner will present a report to
the houses of Parliament with the findings and conclusions.
Typically, the reputational damage associated with a report is the
most significant impact of a breach.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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