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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Lobbying and Ministerial Accountability
Bill 2010
A BILL FOR
An Act to provide for the disclosure of lobbying of senior public
officials, to make unlawful the holding and trading of certain property by
serving Ministers, to regulate the post-ministerial employment of Ministers and
ministerial advisers; and for other purposes.
Contents
Part 1—Preliminary
1Short title
2Commencement
3Interpretation
Part 2—Lobbying of senior public
officials
Division 1—Preliminary
4Application of Part
5Part not to
affect personal lobbying activity
Division 2—Register of Lobbying
Activity
6Register of lobbying
activity
7Application for registration
8Removal from register and
reinstatement
9Reinstatement on register
Division 3—Lobbying
activity
10Lobbying
activity
11Lobbyists to lodge
returns
12Auditor-General may
require further information
Division 4—Investigation and
offences
13Australian Crime
Commission may investigate lobbying activity
14Report on
completion of investigation or generally
Part 3—Divestiture of shares etc. by
ministers
15Offences by Ministers
Part 4—Restrictions on employment of
former Ministers and ministerial advisers
16Prohibited
conduct before ceasing to be a Minister or ministerial adviser
17Prohibited conduct after ceasing to be a
Minister or ministerial adviser
Part 5—Miscellaneous
18False or misleading statement
19Continuing offence
20Service
21Evidentiary
provision
22Regulations
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Lobbying and Ministerial Accountability
Act 2010.
This Act will come into operation 3 months after the date of
assent.
(1) In this Act—
ACC means the Australian Crime Commission;
administrative unit has the same meaning as in the Public
Sector Act 2009;
consultant lobbyist—see
subsection (2);
employed lobbyist—see
subsection (4);
lobbying activity—see
section 10;
lobbyist means a person who is an employed lobbyist, a
consultant lobbyist or both;
Minister means a Minister appointed in accordance with Part 3
of the
Constitution
Act 1934 (and a reference in this Act to a Minister includes a
reference to a Parliamentary Secretary appointed under that Act);
ministerial adviser means a member of a Minister's personal
staff appointed under section 71 of the
Public
Sector Act 2009;
register—means the register of lobbying activity under
section 6;
related entity has the same meaning as in the Corporations
Act 2001 of the Commonwealth;
remuneration includes salary, allowances and other monetary
benefits payable to a person;
senior public official means—
(a) a Minister;
(b) a Member of either House of Parliament;
(c) a ministerial adviser;
(d) the chief executive of an administrative unit;
(e) a statutory office holder with the powers and functions of a chief
executive of an administrative unit;
(f) a chief executive of a public sector agency other than an
administrative unit;
(g) the holder of any other office or position brought within the ambit of
this definition by the regulations,
and includes a person for the time being holding or acting in a particular
office or position.
(2) For the purposes
of this Act, an employed lobbyist means a person who is employed
by another person (the employer) and whose duties or activities
with the employer include lobbying activity on behalf of—
(a) the employer; or
(b) if the employer is a body corporate—any related entity of the
employer; or
(c) any profession, business, trade, vocation or calling in relation to
which the employer is a representative body.
(3) Without limiting
subsection (2), an
employee of an association within the meaning of the Fair
Work Act 1994 who engages in lobbying activity will be taken to be
an employed lobbyist.
(4) For the purposes
of this Act, a consultant lobbyist means a person (other than an
employed lobbyist) who, directly or indirectly, receives remuneration for
engaging in lobbying activity on behalf of any other person (the
client) (and includes, to avoid doubt, a person who does not
engage in lobbying activity on more than 1 occasion).
(5) To avoid doubt, a person may be an employed lobbyist and a consultant
lobbyist at the same time or in relation to the same matter.
Part 2—Lobbying
of senior public officials
This Part applies to any person who is an employed lobbyist or consultant
lobbyist.
5—Part
not to affect personal lobbying activity
Nothing in this Part applies to lobbying activity engaged in by a natural
person on his or her own behalf.
Division 2—Register
of Lobbying Activity
6—Register
of lobbying activity
(1) The Auditor-General must keep and maintain a register of lobbying
activity.
(2) The register must contain the following information:
(a) the name and business address of each lobbyist registered on the
register;
(b) the information provided in returns lodged under this Act;
(c) the information provided to the Auditor-General pursuant to notices
served under
section 12;
(d) any other information required by the regulations,
and may contain any other information the Auditor-General thinks
fit.
(3) Subject to this section, the register may be kept in such manner and
form as the Auditor-General considers convenient.
(4) A person is entitled to inspect (without charge) the register at the
Auditor-General's office during ordinary office hours.
(5) A person may, on payment of the prescribed fee, obtain a copy of any
part of the register.
(6) The Auditor-General must cause a copy of the register to be published
on a website established by the Minister for that purpose.
7—Application
for registration
(1) A natural person
is eligible to apply for registration on the register.
(2) However, the Auditor-General may refuse to register a person on the
register if, in the opinion of the Auditor-General, the person is not a fit and
proper person to be so registered.
(3) An application for registration must—
(a) be made to the Auditor-General in the manner and form approved by the
Auditor-General; and
(b) be accompanied by the fee fixed under this Act.
8—Removal
from register and reinstatement
(1) The Auditor-General must, on application by a person registered on
register, remove the person from the register.
(2) The Auditor-General may remove a person from the
register—
(a) if the person is convicted of an offence against this Act;
or
(b) if the person is, in the opinion of the Auditor-General, not a fit and
proper person to be registered; or
(c) if the details of the person as recorded on the register are
inaccurate.
(3) Nothing in this section prevents a person from applying for
reinstatement on the register.
(1) An applicant for reinstatement on the register must, if the
Auditor-General so requires, provide the Auditor-General with specified
information to enable the Auditor-General to determine the
application.
(2) The Auditor-General may refuse to reinstate the applicant on the
register until all complaints (if any) laid against the applicant under this
Act, or a law of another State or a Territory of the Commonwealth providing for
the registration of lobbyists, or arising out of the applicant's lobbying
activities (whether in this State or elsewhere) have been finally disposed
of.
(3) An application for reinstatement must—
(a) be made to the Auditor-General in the manner and form approved by the
Auditor-General; and
(b) be accompanied by the reinstatement fee fixed under this
Act.
(1) For the purposes
of this Act, a person engages in lobbying activity if the person
communicates with a senior public official in any manner intended to
influence—
(a) the development of any legislative proposal by the State Government or
by a Member of either House of Parliament; or
(b) the introduction of any Bill in either House of Parliament or the
passage or amendment of any Bill that is before either House of Parliament;
or
(c) the making, disallowance or variation of any subordinate legislation;
or
(d) introduction of or change to any State Government policy or programme;
or
(e) the exercise of any authority or power conferred under any Act or law;
or
(f) the expenditure of public money,
and includes arranging or attending a meeting between a senior public
official and any other person for a purpose related to such
communication.
(2) However, lobbying activity does not include—
(a) a communication that is—
(i) made by a senior public official, or by any other person holding
office under any Act or law, in his or her official capacity; or
(ii) made on behalf of the government of State, or the Commonwealth or
another State or Territory; or
(iii) made on behalf of the government of a foreign country; or
(iv) constituted by any application required or authorised by any Act or
law; or
(v) made in response to a written request from a senior public official
acting in his or her official capacity; or
(vi) made by a representative or employee of a media organisation for the
purposes of gathering and disseminating news and information to the public;
or
(vii) made in a speech, article, publication or other material that is
distributed and made available to the public, or through radio, television, or
other medium of mass communication; or
(viii) made in a petition to either House of Parliament or in evidence or
submissions to a committee of either of those Houses, or a joint committee of
both Houses of Parliament; or
(ix) made in the course of any judicial proceedings; or
(b) arranging or attending a meeting with a senior public
official—
(i) that is open to members of the public; or
(ii) by a representative or employee of a media organisation for the
purposes of gathering and disseminating news and information to the
public.
(1) Each employed
lobbyist, and each consultant lobbyist who carried out lobbying activity in the
relevant quarter, must, on or before the last day of each quarter, prepare and
provide a return with the Auditor-General setting out the information set out in
subsection (3).
Maximum penalty: $5 000.
(2) Subject to this section, a return must be in the prescribed
form.
(3) A return lodged
under this section must set out the following information:
(a) in the case of a
return for an employed lobbyist—
(i) the name and business address of the employed lobbyist;
(ii) the name and business address of the employer of the employed
lobbyist;
(iii) if the employer
is a body corporate—the name and business address of any related entity of
the employer that has a direct interest in the outcome of the employed
lobbyist’s lobbying activity;
(iv) any other person
that has a direct interest in the outcome of the employed lobbyist’s
lobbying activity;
(v) a description of the employer’s principal businesses or
activities;
(vi) a description of the subject matter of the lobbying
activity;
(vii) particulars to identify any matter referred to in
section 10(1) to
which the lobbying activity related;
(viii) if a senior
public official in relation to whom lobbying activity was directed was a
Minister, a Member of either House of Parliament or a ministerial
adviser—the name of the senior public official;
(ix) if a senior public official in relation to whom lobbying activity was
directed is other than a person referred to in
paragraph (viii)—the
name of the office or position held by the senior public official;
(x) any other information required by the regulations;
(b) in the case of a
return for a consultant lobbyist in relation to each instance of lobbying
activity carried out in the quarter—
(i) the name and business address of the consultant lobbyist;
(ii) the name and business address of any business, corporation or other
entity (if any) through which the consultant lobbyist carried out the lobbying
activity;
(iii) the name and business address of the client;
(iv) the name and
business address of any person that controls or directs the activities of the
client and has a direct interest in the outcome of the consultant
lobbyist’s lobbying activity;
(v) if the client is
a body corporation—the name and business address of any related entity of
the client that has a direct interest in the outcome of the consultant
lobbyist’s lobbying activity;
(vi) a description of the subject matter of the lobbying
activity;
(vii) particulars to identify any matter referred to in
section 10(1) to
which the lobbying activity related;
(viii) the date on which the lobbying activity occurred;
(ix) if a senior
public official in relation to whom lobbying activity was directed was a
Minister, a Member of either House of Parliament or a ministerial
adviser—the name of the senior public official;
(x) if a senior public official in relation to whom lobbying activity was
directed is other than a person referred to in
paragraph (ix)—the
name of the office or position held by the senior public official;
(xi) whether any remuneration payable in respect of the lobbying activity
is wholly or partly contingent on the consultant lobbyist’s degree of
success in influencing the matters referred to in the preceding
subparagraphs;
(xii) any other information required by the regulations.
(4) It is a defence to a charge of an offence under
subsection (1)
related to a failure to disclose a person or an interest of a kind referred to
in
subsection (3)(a)(iii)
or
(iv), or
subsection (3)(b)(iv)
or
(v), that the lobbyist
did not know, and could not reasonably have been expected to know, of the
existence of the person or interest.
(5) The Auditor-General may, on the application of a lobbyist, extend the
time within which a quarterly return required by
subsection (1)
must be lodged by not more than 14 days.
(6) If an employed lobbyist has not engaged in any lobbying activity in a
particular quarter, the employed lobbyist must lodge a return stating that he or
she has not engaged in any lobbying activity in that quarter.
(7) The Auditor-General may, without further notice, remove from the
register a person who refuses or fails to provide the required return by the due
date.
(8) In this section—
quarter means the 3 month period beginning on 1 January,
1 April, 1 July or 1 October in each year;
relevant quarter means the quarter to which a particular
return under this section relates.
12—Auditor-General
may require further information
(1) The
Auditor-General may, by notice in writing served on a lobbyist, require the
lobbyist to provide such further written information in relation to a return
lodged pursuant to
section 11 as the
Auditor-General thinks fit.
(2) A person who, without reasonable excuse, refuses or fails to comply
with a notice under
subsection (1) is
guilty of an offence.
Maximum penalty: $5 000.
Division 4—Investigation
and offences
13—Australian
Crime Commission may investigate lobbying activity
(1) The ACC may
investigate any matter relating to any lobbying activity carried out by a
lobbyist.
(2) Without limiting
subsection (1),
the ACC may investigate whether a lobbyist has, in the course of any lobbying
activity—
(a) adequately disclosed to the relevant senior public official the person
on whose behalf the lobbying activity was being conducted; or
(b) provided accurate and factual information to the relevant senior
public official; or
(c) been accorded any unfairly preferential or discriminatory treatment by
the relevant senior public official; or
(d) attempted to apply any improper influence on the relevant public
officer; or
(e) represented competing or conflicting interests without the consent of
those whose interests were involved.
(3) If, during the course of an investigation under this section, the ACC
suspects that a person has committed an offence, a breach of discipline or
otherwise engaged in conduct which may be the subject of further action, the ACC
may refer that conduct to an appropriate authority for further action.
(4) In this section—
appropriate authority means—
(a) if the matter involves an allegation of fraud or corruption—the
Anti-Corruption Branch of the police force; or
(b) in any other case—the Auditor-General;
relevant senior public official means the senior public
official to whom the lobbying activity was directed.
14—Report
on completion of investigation or generally
(1) If the ACC
conducts an investigation under
section 13,
the ACC must within a reasonable period and in any event, not longer than 6
months after commencing the investigation, prepare and provide to the
Auditor-General a written report in relation to the matter the subject of the
investigation.
(2) The Auditor-General must, within 6 sitting days of receiving a report
under this
subsection (1),
cause a copy of the report to be laid before each House of Parliament.
Part 3—Divestiture
of shares etc. by ministers
(1) Subject to this
Act, a Minister must, within 28 days of becoming a Minister, divest himself or
herself of all control of all securities and derivatives (including any legal or
equitable rights in such securities or derivatives) that he or she
controls.
Maximum penalty: $20 000.
(2) A Minister must not, during the period of his or her
ministry—
(a) purchase any securities or derivatives (including any legal or
equitable rights or interests in such securities or derivatives); or
(b) instruct any person to purchase any securities or derivatives
(including any legal or equitable rights or interests in such securities or
derivatives).
Maximum penalty: $20 000.
(3) Without derogating from any other Act or law, a Minister must notify
Cabinet in writing of his or her residual interest (if any) in any securities or
derivatives formerly controlled by the Minister which are the subject matter of,
or related to, a submission before Cabinet.
Maximum penalty: $20 000.
(4) A Minister will be taken not to have divested himself or herself of
all control of the matters referred to in
subsection (1) if
he or she divests them to an associate.
(5) Nothing in this
section prevents a Minister from entering an arrangement where securities or
derivatives controlled by the Minister are transferred to a trustee who, without
consulting the Minister or an associate of the Minister and being expressly
prohibited by the terms of the trust from consulting the Minister or an
associate of the Minister, deals with the trust property in an ordinary
commercial manner (including sales of assets and purchase of further assets), on
behalf of the Minister.
(6) In this section—
associate has the same meaning as in the Public
Sector (Honesty and Accountability) Act 1995;
residual interest, in relation to securities or derivatives
formerly controlled by a Minister, means any interest retained by the Minister
in the securities or derivatives once they have been placed in a trust of a kind
contemplated by
subsection (5).
Part 4—Restrictions
on employment of former Ministers and ministerial advisers
16—Prohibited
conduct before ceasing to be a Minister or ministerial
adviser
(1) A Minister must not allow himself or herself to be influenced in the
conduct of official duties and responsibilities by plans for or offers of
employment or other remuneration proposed for a time after he or she ceases to
be a Minister.
Maximum penalty: Imprisonment for 2 years.
(2) A ministerial adviser must not allow himself or herself to be
influenced in the conduct of official duties and responsibilities by plans for
or offers of employment or other remuneration proposed for a time after he or
she ceases to be a ministerial adviser.
Maximum penalty: Imprisonment for 2 years.
17—Prohibited
conduct after ceasing to be a Minister or ministerial
adviser
(1) A former Minister must not—
(a) provide advice for personal profit or for commercial advantage on any
aspect of work undertaken by an administrative unit of the Public Service for
which the former Minister had ministerial responsibility during the preceding
2 years; or
(b) accept employment with a person or body, or accept an appointment to
the board of directors or equivalent body of an entity, that had significant
dealings with an administrative unit of the Public Service for which the former
Minister had ministerial responsibility during the preceding 2 years;
or
(c) enter into a contract for services with any commercial entity which
had significant commercial dealings with an administrative unit of the Public
Service for which the former Minister had ministerial responsibility during the
preceding 2 years; or
(d) undertake lobbying activities for or on behalf of any other person or
body to an administrative unit of the Public Service for which the former
Minister had ministerial responsibility during the preceding 2 years.
Maximum penalty: Imprisonment for 2 years.
(2) A former ministerial adviser must not—
(a) provide advice for personal profit or for commercial advantage on any
aspect of work undertaken by an administrative unit of the Public Service for
which the former ministerial adviser's Minister had ministerial responsibility
during the preceding 2 years; or
(b) accept employment with a person or body, or accept an appointment to
the board of directors or equivalent body of an entity, that had significant
dealings with an administrative unit of the Public Service for which the former
ministerial adviser's Minister had ministerial responsibility during the
preceding 2 years; or
(c) enter into a contract for services with any commercial entity which
had significant commercial dealings with an administrative unit of the Public
Service for which the former ministerial adviser's Minister had ministerial
responsibility during the preceding 2 years; or
(d) undertake lobbying activities for or on behalf of any other person or
body to an administrative unit of the Public Service for which the former
ministerial adviser's Minister had ministerial responsibility during the
preceding 2 years.
Maximum penalty: Imprisonment for 2 years.
(3) However, nothing in this section prevents a former Minister or a
former ministerial adviser from taking action on behalf of or engaging in the
service of—
(a) a charitable organisation; or
(b) official duties on behalf of the State, or the Commonwealth or another
State or territory; or
(c) a political party.
(4) In this section—
former Minister means a Minister who has ceased to be a
Minister in accordance with the
Constitution
Act 1934;
former ministerial adviser means a ministerial adviser who
has ceased to be a ministerial adviser in accordance with section 71 of the
Public
Sector Act 2009.
18—False
or misleading statement
A person must not make a statement that is false or misleading in a
material particular (whether by reason of the inclusion or omission of any
particular) in any information kept or provided under this Act.
Maximum penalty: $20 000.
(1) A person convicted of an offence against a provision of this Act in
respect of a continuing act or omission—
(a) is liable, in addition to the penalty otherwise applicable to the
offence, to a penalty for each day during which the act or omission continued of
not more than one-tenth of the maximum penalty prescribed for that offence;
and
(b) is, if the act or omission continues after the conviction, guilty of a
further offence against the provision and liable, in addition to the penalty
otherwise applicable to the further offence, to a penalty for each day during
which the act or omission continued after the conviction of not more than
one-tenth of the maximum penalty prescribed for the offence.
(2) If an offence consists of an omission to do something that is required
to be done, the omission will be taken to continue for as long as the thing
required to be done remains undone after the end of the period for compliance
with the requirement.
(1) A notice, order
or other document required to be given or sent to, or served on, a person for
the purposes of this Act may—
(a) be given to the person personally; or
(b) be posted in an envelope addressed to the person at the person's last
known residential or (in the case of a corporation) registered address;
or
(c) be left for the person at the person's last known residential or (in
the case of a corporation) registered address with someone apparently over the
age of 16 years; or
(d) be transmitted by fax or email to a fax number or email address
provided by the person (in which case the notice or document will be taken to
have been given or served at the time of transmission).
(2) Without limiting the effect of
subsection (1), a
notice, order or other document required to be given or sent to, or served on, a
person for the purposes of this Act may, if the person is a company or
registered body within the meaning of the Corporations Act 2001 of the
Commonwealth, be served on the person in accordance with that Act.
In proceedings for an offence against this Act an allegation in the
complaint that a person was or was not at a specified time a senior public
official will be accepted as proved in the absence of proof to the
contrary.
(1) The Governor may
make such regulations as are contemplated by, or necessary or expedient for the
purposes of, this Act.
(2) Without limiting the generality of
subsection (1),
the regulations may—
(a) create offences punishable by a fine not exceeding
$5 000;
(b) fix expiation fees for alleged offences against the
regulations;
(c) make provision facilitating proof of the commission of offences
against the regulations.