Bill 2 - Lobbyists’ Registration Act

BILL 2

Lobbyists’ Registration Act

Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

DEFINITIONS

Definitions

1 The following definitions apply in this Act:

“client” means a person or organization on whose behalf a consultant lobbyist undertakes to lobby. (client)

“consultant lobbyist” means an individual who, for any form of remuneration or other benefit, undertakes to lobby on behalf of a client. (lobbyiste-conseil)

“Crown” means Her Majesty in right of the Province. (Couronne)

“lobby” means (lobbyisme)

(a) in relation to a consultant lobbyist or an in-house lobbyist, to communicate with a public office holder in an attempt to influence

( i) the development of any legislative proposal by the Government of New Brunswick or by a member of the Legislative Assembly,

( ii) the introduction of any public bill or any resolution in the Legislative Assembly or the passage, defeat or amendment of any public Act or any resolution that is before the Legislative Assembly,

( iii) the making or amendment of a regulation as defined in the Regulations Act,

( iv) the development, amendment or termination of any policy or program of the Government of New Brunswick,

( v) a decision by the Executive Council to transfer from the Crown for consideration all or part of, or any interest in or asset of, any business, enterprise or institution that provides goods or services to the Crown or to the public,

( vi) a decision by the Executive Council, a committee of the Executive Council or a minister of the Crown to have the private sector instead of the Crown provide goods or services to the Crown, and

( vii) the awarding of any grant, contribution or other financial benefit by or on behalf of the Crown;

(b) in relation to a consultant lobbyist,

( i) to arrange a meeting between a public office holder and any other person, and

( ii) to communicate with a public office holder in an attempt to influence the awarding of any contract by or on behalf of the Crown.

“organization” means (organisation)

(a) a business, trade, industry, professional or voluntary organization,

(b) a trade union or a labour organization,

(d) an association, a charitable organization, a coalition or an interest group,

(e) a government, other than the Government of New Brunswick, and

(f) a body corporate, wherever or however incorporated, without share capital incorporated to pursue, without financial gain to its members, objects of a national, provincial, territorial, patriotic, religious, philanthropic, charitable, educational, agricultural, scientific, artistic, social, professional, fraternal, sporting or athletic character or other similar objects.

“public office holder” means (titulaire de charge publique)

(a) a member of the Legislative Assembly and any person on his or her staff,

(b) a member of the Executive Council and any person on his or her staff,

(d) a member of the board of directors of a regional health authority,

(e) an employee of any portion of the public service of the Province as specified in Part 1, 2, 3 or 4 of the First Schedule of the Public Service Labour Relations Act, and

(f) any other person or category of person prescribed by regulation.

“Registrar” means the person appointed as Registrar of Lobbyists under section 22. (registraire)

“undertaking” means an undertaking by a consultant lobbyist to lobby on behalf of a client. (engagement)

PURPOSE OF ACT

Purpose of Act

2 The purpose of this Act is to recognize that

(a) free and open access to government is an important matter of public interest,

(b) lobbying public office holders is a legitimate activity when appropriately conducted,

(c) it is desirable that public office holders and the public be able to know who is attempting to influence government, and

(d) a system for registering paid lobbyists should not impede access to government.

APPLICATION OF ACT

This Act binds the Crown

3 This Act binds the Crown.

Restriction on application

4( 1) The following persons are not required to submit a return under section 5, 10 or 15 when acting in their official capacity:

(a) members of the Legislative Assembly and any person on their staff;

(b) members of the Executive Council and any person on their staff;

(d) members of the legislative assembly of another province of Canada or the council or legislative assembly of a territory of Canada or persons on the staff of these members;

(e) employees of any portion of the public service of the Province as specified in Part 1, 2, 3 or 4 of the First Schedule of the Public Service Labour Relations Act and any other person or class of persons prescribed by regulation as an employee of the Province;

(f) employees of the Government of Canada or of another province or of a territory;

(g) members of a council or other statutory body charged with the administration of the municipal affairs of a municipality or a rural community as defined in the Municipalities Act, the staff of the council or body, as well as officers or employees of a municipality or rural community;

(h) members of an advisory committee for a local service district established under the Municipalities Act;

(i) officers, directors or employees of a municipal association;

(j) officers, directors or employees of any body that represents governmental interests of a group of aboriginal people, including

( i) the council of a band as defined in the Indian Act (Canada), and

( ii) any body representing one or more bands;

(k) diplomatic agents, consular officers or official representatives in Canada of a foreign government;

(l) officials of a specialized agency of the United Nations in Canada or officials of any other international organization to whom privileges and immunities are granted by or under an Act of the Parliament of Canada;

(m) any other person or class of persons prescribed by regulation.

4( 2) An individual is not required to submit a return under section 5, 10 or 15 in respect of

(a) any oral or written submission made in proceedings that are a matter of public record to a committee of the Legislative Assembly or to any body or person having jurisdiction or powers conferred by or under an Act,

(b) any oral or written submission made to a public office holder by an individual on behalf of a person, partnership or other body, in relation to

( i) the enforcement, interpretation or application of any Act or regulation made under any Act by that public office holder with respect to that person, partnership or other body, or

( ii) the implementation or administration of any policy, program, directive or guideline by that public office holder with respect to that person, partnership or other body,

(c) any oral or written submission made to a public office holder by an individual on behalf of a person, partnership or organization in direct response to a written request from a public office holder for advice or comment in respect of any matter referred to in paragraph (a) or subparagraph (b)(ii) of the definition “lobby” in section 1,

(d) any oral or written submission made to a member of the Legislative Assembly by an individual on behalf of a constituent of the member with respect to any personal matter of that constituent, and

(e) any communication made to a public office holder by a trade union with respect to the administration or negotiation of a collective agreement or matters related to the representation of a member or former member of a bargaining unit who is or was employed in the public service as defined in the Public Service Labour Relations Act.

4( 3) This Act does not require identifying information about a person to be disclosed if the Registrar is satisfied that disclosure could reasonably be expected to threaten the person’s safety.

REGISTRATION OF LOBBYISTS

Division A

Consultant lobbyist

Duty to submit return, consultant lobbyists

5( 1) A consultant lobbyist shall submit a return to the Registrar

(a) within 15 days after commencing performance of an undertaking on behalf of a client, or

(b) within 30 days after the expiration of each six-month period after the date the previous return was filed.

5( 2) If, on the coming into force of this section, a consultant lobbyist is performing an undertaking, the consultant lobbyist shall submit a return to the Registrar not later than three months after this section comes into force.

Changes to return

6 If any information contained in his or her return is no longer correct, the consultant lobbyist shall inform the Registrar within 30 days after he or she becomes aware of the change.

Completion of undertaking

7 Within 30 days after an undertaking for which a return was filed is completed or terminated, the consultant lobbyist who submitted the return shall inform the Registrar that the undertaking has been completed or terminated.

Other information

8 A consultant lobbyist shall provide the Registrar with any information requested by the Registrar to clarify any information contained in his or her return within 30 days after the request is made.

Division B

In-house lobbyist (person or partnership that is not an organization)

Definitions

9 The following definitions apply in this Division:

“employee” includes an officer who is compensated for the performance of the officer’s duties. (employé)

“in-house lobbyist” means an individual who is employed by a person or partnership that is not an organization, (lobbyiste salarié)

(a) a significant part of whose duties as an employee, as determined in accordance with the regulations, is to lobby on behalf of the employer or, if the employer is a corporation, on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary, or

(b) a part of whose duties as an employee is to lobby on behalf of the person or partnership or, where the person is a corporation, on behalf of any subsidiary of the corporation or any corporation of which the corporation is a subsidiary, if the employee’s duties to lobby together with the duties of other employees to lobby would constitute a significant part of the duties of one employee, as determined in accordance with the regulations, if those duties to lobby were performed by only one employee.

Duty to submit return, in-house lobbyists

10( 1) An in-house lobbyist shall submit a return to the Registrar

(a) within two months after the day on which he or she becomes an in-house lobbyist, or

(b) within 30 days after the expiration of each six-month period after the date the previous return was filed.

10( 2) If, on the coming into force of this section, an individual is an in-house lobbyist employed by a person or partnership that is not an organization, he or she shall submit a return to the Registrar not later than three months after this section comes into force.

Changes to return

11 If any information contained in his or her return is no longer correct, the in-house lobbyist shall inform the Registrar within 30 days after he or she becomes aware of the change.

Ceasing duties or employment

12 If an in-house lobbyist ceases to be an in-house lobbyist or to be employed by his or her employer, the employer shall advise the Registrar of that not later than 30 days after it occurs.

Other information

13 An in-house lobbyist shall provide the Registrar with any information requested by the Registrar to clarify any information contained in his or her return within 30 days after the request is made.

Division C

In-house lobbyist (organizations)

Definitions

14 The following definitions apply in this Division:

“employee” includes an officer who is compensated for the performance of the officer’s duties. (employé)

“in-house lobbyist” means an individual who is employed by an organization (lobbyiste salarié)

(a) a significant part of whose duties as an employee, as determined in accordance with the regulations, is to lobby on behalf of the organization, or

(b) a part of whose duties as an employee is to lobby on behalf of the organization if the employee’s duties to lobby together with the duties of other employees to lobby would constitute a significant part of the duties of one employee, as determined in accordance with the regulations, if those duties to lobby were performed by only one employee.

Duty to submit return, in-house lobbyists

15( 1) The senior officer of an organization that employs an in-house lobbyist shall submit a return to the Registrar

(a) within two months after the day on which the person becomes an in-house lobbyist for the organization, or

(b) within 30 days after the expiration of each six-month period after the date the previous return was filed.

15( 2) If, on the coming into force of this section, an organization employs an in-house lobbyist, the senior officer of the organization shall submit a return to the Registrar not less than three months after the day on which this section comes into force.

Changes to return

16 If any information contained in a return of a senior officer of an organization is no longer correct, the senior officer of the organization shall inform the Registrar within 30 days after he or she becomes aware of the change.

Ceasing duties or employment

17 If an in-house lobbyist ceases to be employed by an organization, the senior officer of the organization shall advise the Registrar of that not later than 30 days after it occurs.

Other information

18 The senior officer of an organization shall provide the Registrar with any information requested by the Registrar to clarify any information in his or her return within 30 days after the request is made.

CERTIFICATION

Certification of returns or documents

19 A person who submits a return or other document to the Registrar shall certify on the return or document itself, in the manner specified by the Registrar, that the information contained in it is true to the best of the person’s knowledge and belief.

DOCUMENTS AND EVIDENCE

Submitting returns or other documents

20( 1) A return or other document or information that is required to be submitted to the Registrar under this Act shall be provided in the form and on the terms and conditions specified by the Registrar.

20( 2) On payment of the fee prescribed by regulation, the Registrar shall file a return in the registry of lobbyists.

20( 3) A return or other document or information shall be deemed to have been provided to the Registrar at the time the Registrar receives the return, document or information.

Evidence

21 In any prosecution for an offence under a provision of this Act, a copy of a return or other document that is certified by the Registrar as a true copy is admissible in evidence without proof of the certification or official capacity of the certifier and, in the absence of any evidence to the contrary, has the same probative force as the original return or document would have if it were proved in the usual way provided by law.

OFFICE OF THE REGISTRAR OF LOBBYISTS

Registrar of Lobbyists

22( 1) There shall be an office of the Registrar of Lobbyists, as well as a Registrar of Lobbyists.

22( 2) Subject to subsection (3), the person holding office as Ombudsman shall hold office as Registrar of Lobbyists.

22( 3) Subject to subsections (6) to (9), the Legislative Assembly or, if the Legislature is not in session, the Lieutenant-Governor in Council may appoint another officer of the Legislative Assembly or any other person as Registrar.

22( 4) If an appointment is made under subsection (3) by the Lieutenant-Governor in Council, the appointment shall be ratified by the Legislative Assembly within 30 days of the beginning of its next sitting.

22( 5) If an appointment made under subsection (3) is not ratified by the Legislative Assembly before the time limit in subsection (4), the appointment comes to an end and the office of the Registrar becomes vacant.

22( 6) Before the Legislative Assembly appoints a person under subsection (3), other than a person who is an officer of the Legislative Assembly, a selection committee shall be established for the purpose of identifying persons as potential candidates to be appointed Registrar.

22( 7) The selection committee shall be composed of

(a) the Clerk of the Executive Council or a person designated by the Clerk of the Executive Council,

(b) the Clerk of the Legislative Assembly or a person designated by the Clerk of the Legislative Assembly,

(d) a member of the university community.

22( 8) The selection committee shall develop a roster of qualified candidates and submit a list of names of qualified candidates to the Lieutenant-Governor in Council.

22( 9) The Premier shall consult with the Leader of the Opposition and the leaders of the other political parties having representation in the Legislative Assembly during the most recent sitting with respect to one or more qualified candidates from the selection committee’s list of qualified candidates.

22( 10) The Registrar is an officer of the Legislative Assembly.

22( 11) Subject to subsection (12), a person appointed Registrar is not eligible for reappointment and shall hold office,

(a) in the case of a person who holds office as Ombudsman or as any other officer of the Legislative Assembly, for a term that coincides with his or her term of office as Ombudsman or other officer of the Legislative Assembly, as the case may be, and

(b) in the case of any other person, for a term of seven years.

22( 12) The Lieutenant-Governor in Council may extend the term of the Registrar for a period of not more than 12 months.

Salary and benefits

23( 1) The Registrar shall be paid an annual salary as determined by the Lieutenant-Governor in Council, as well as an allowance for travelling and other expenses incurred in the performance of the duties of the Registrar at a rate approved by the Lieutenant-Governor in Council.

23( 2) The Registrar may participate in and receive benefits under any health, life, disability or any other insurance or retirement plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the Registrar.

Eligibility for appointment

24( 1) The Registrar shall not be a member of the Legislative Assembly and shall not hold any other office of trust or profit, other than his or her office as Registrar, without the prior approval by the Legislative Assembly or, if it is not sitting, by the Lieutenant-Governor in Council.

24( 2) Despite subsection (1), the Registrar may hold more than one office given to him or her by the Legislative Assembly or the Lieutenant-Governor in Council.

Resignation of Registrar

25( 1) The Registrar may resign from office by notice in writing addressed to the Speaker of the Legislative Assembly or, if there is no Speaker or the Speaker is absent from the Province, to the Clerk of the Legislative Assembly.

25( 2) The Speaker or the Clerk of the Legislative Assembly, as the case may be, shall immediately inform the Lieutenant-Governor in Council of the Registrar’s resignation.

Suspension or removal of Registrar

26( 1) The Registrar shall hold office during good behaviour and may only be removed by the Lieutenant-Governor in Council for incapacity, neglect of duty or misconduct upon an address in which two-thirds of the members of the Legislative Assembly concur.

26( 2) Upon an address in which a majority of the members of the Legislative Assembly voting concur, the Lieutenant-Governor in Council may suspend the Registrar, with or without pay, pending an investigation that may lead to removal under subsection (1).

26( 3) If the Legislature is not in session, a judge of The Court of Queen’s Bench of New Brunswick, on an application by the Lieutenant-Governor in Council, may suspend the Registrar, with or without pay, for incapacity, neglect of duty or misconduct.

26( 4) If the Lieutenant-Governor in Council makes an application under subsection (3), the practice and procedure of The Court of Queen’s Bench of New Brunswick respecting applications applies.

26( 5) If a judge of The Court of Queen’s Bench of New Brunswick suspends the Registrar under subsection (3), the judge shall do the following:

(a) appoint an acting Registrar to hold office until the suspension has been dealt with by the Legislative Assembly; and

(b) table a report on the suspension with the Legislative Assembly within ten days after the commencement of the next session of the Legislature.

26( 6) No suspension under subsection (3) shall continue beyond the end of the next session of the Legislature.

Acting Registrar

27( 1) If the Registrar has been suspended under subsection 26(2), the Lieutenant-Governor in Council may appoint an acting Registrar to hold office until the suspension has elapsed.

27( 2) An acting Registrar, while in office, has the powers and duties of the Registrar and shall be paid such salary or other remuneration and expenses as the Lieutenant-Governor in Council may fix.

27( 3) The Premier shall consult with the Leader of the Opposition before an appointment is made under subsection (1).

27( 4) An appointment under subsection (1) or 26(5) shall not impede a person’s subsequent appointment under section 22.

Filling vacancies

28( 1) If the office of the Registrar becomes vacant and

(a) the office of the Registrar was held by the Ombudsman or another officer of the Legislative Assembly, the acting Ombudsman or the other acting officer of the Legislative Assembly, as the case may be, shall be appointed acting Registrar, or

(b) the office of the Registrar was held by a person other than an officer of the Legislative Assembly,

( i) subject to subparagraph (ii), the Ombudsman shall be appointed acting Registrar, or

( ii) the Legislative Assembly or, if the Legislature is not in session, the Lieutenant-Governor in Council may appoint a person other than the Ombudsman as acting Registrar.

28( 2) If an appointment is made under subparagraph (1)(b)(ii) by the Lieutenant-Governor in Council, the appointment shall be ratified by the Legislative Assembly within 30 days of the beginning of its next sitting.

28( 3) If an appointment made under subparagraph (1)(b)(ii) is not ratified by the Legislative Assembly before the time limit in subsection (2), the appointment comes to an end and the office of the Registrar becomes vacant.

28( 4) An acting Registrar shall be appointed for a term of up to one year.

28( 5) The appointment of the acting Registrar comes to an end when a new Registrar is appointed under section 22.

28( 6) If the Registrar is unable to act because of illness, the Lieutenant-Governor in Council may appoint an acting Registrar, whose appointment comes to an end when the Registrar is again able to act or when the office becomes vacant.

28( 7) An appointment under subsection (1) or (6) shall not impede a person’s subsequent appointment under section 22.

28( 8) The Premier shall consult with the Leader of the Opposition before an appointment is made under subparagraph (1)(b)(ii) or subsection (6).

Powers and duties

29 In addition to the other powers conferred or other duties imposed under this Act, the Registrar’s duties and functions include developing and implementing educational programs to foster public awareness of the requirements of this Act, particularly on the part of lobbyists, their clients and public office holders.

Staff of the office of the Registrar

30( 1) The Registrar may appoint such assistants and employees as the Registrar considers necessary for the efficient carrying out of the Registrar’s powers and duties under this Act.

30( 2) All persons employed in the office of the Registrar may participate in and receive benefits under any health, life, disability or other insurance or retirement plan available to employees within the public service, in accordance with the terms upon which the right to participate and receive benefits may from time to time be extended to the persons employed in the office of the Registrar.

30( 3) The Registrar may share employees and the cost of such employees with other officers of the Legislative Assembly.

Delegation of powers

31( 1) The Registrar may delegate in writing any of his or her powers or duties under this Act to a person employed in the Registrar’s office and may authorize him or her to delegate any of those powers or duties to another person employed in the Registrar’s office.

31( 2) A delegate or subdelgate may impose such terms and conditions as he or she considers appropriate on a delegation.

REGISTRY OF LOBBYISTS

Registry of lobbyists

32( 1) The Registrar shall establish and maintain a registry of lobbyists in which a record of all returns and other documents submitted to the Registrar under this Act are to be kept.

32( 2) The registry of lobbyists shall be organized and kept in the form that the Registrar determines.

32( 3) The registry of lobbyists shall be available for public inspection in the manner and at the reasonable times the Registrar determines.

32( 4) The Registrar shall make the registry of lobbyists available electronically, including through the Internet.

Registrar may verify information

33 The Registrar may verify the information contained in a return or other document submitted under this Act.

Registrar may refuse to accept a return or other document

34( 1) The Registrar may refuse to accept a return or other document that does not comply with this Act or the regulations, or that contains information not required to be supplied or disclosed.

34( 2) If the Registrar refuses to accept a return or other document, the Registrar shall inform the person who submitted it of the refusal and the reason for the refusal and, if the individual cannot reasonably submit another return or document by the time set out in this Act for submitting the return or the document, shall provide the person with a reasonable extension of time to submit another return or document.

34( 3) If the Registrar accepts another return or document within the extension of time referred to in subsection (2), the return or document is deemed to have been submitted on the day on which the return or other document that was refused by the Registrar was received.

Registrar may remove return

35( 1) The Registrar may remove a return from the registry of lobbyists if the individual who submitted the return

(a) fails to advise the Registrar of the matters required by section 7 within the period required by that subsection, or

(b) fails to give the Registrar any requested information relating to the return within the period specified by this Act.

35( 2) If a return under subsection (1) is removed from the registry of lobbyists, the Registrar shall inform the person who submitted it of the removal and the reason for the removal and the individual who submitted it is deemed, for the purposes of the individual’s existing and future obligations under this Act, not to have submitted the return.

Advisory opinions and interpretation bulletins

36( 1) The Registrar may issue and publish in any manner the Registrar considers appropriate advisory opinions and interpretation bulletins with respect to the enforcement, interpretation or application of this Act or the regulations.

36( 2) The Regulations Act does not apply to the advisory opinions and interpretation bulletins issued by the Registrar under subsection (1).

36( 3) Advisory opinions and interpretation bulletins are not binding.

OFFENCES AND PENALTIES

Offences with respect to returns

37( 1) An individual who violates or fails to comply with section 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17 or 18 commits an offence.

37( 2) A person who knowingly makes a false or misleading statement in a return or other document submitted to the Registrar in accordance with this Act or the regulations commits an offence.

37( 3) A consultant lobbyist who in the course of lobbying a public office holder knowingly places the public office holder in a position of real or potential conflict of interest commits an offence.

37( 4) An in-house lobbyist who in the course of lobbying a public office holder knowingly places the public office holder in a position of real or potential conflict of interest commits an offence.

37( 5) A person convicted of an offence under this section is liable to a fine of not more than $25,000, and for a second or subsequent offence is liable to a fine of not more than $100,000.

37( 6) A prosecution under this Act may be commenced within two years after the commission of the alleged offence.

REGULATIONS

Regulations

38 The Lieutenant-Governor in Council may make regulations

(a) prescribing a person or classes of persons for the purposes of the definition “public office holder” in section 1;

(b) for the purposes of paragraph 4(1)(e), prescribing a person or classes of persons as employees of the Province;

(d) for the purpose of sections 9 and 14, respecting the circumstances or conditions in which an individual’s lobbying activities or duty to lobby constitute a significant part of his or her duties;

(e) requiring a fee to be paid for the filing of a return or a return of a class or subclass of returns;

(f) prescribing the fee referred to in paragraph (e) or establishing the manner of determining it and providing for a difference in or the waiver of the fee in specified circumstances or for specified persons or classes of persons;

(g) defining any word or expression used in this Act but not defined in this Act;

(h) respecting any other matter the Lieutenant-Governor in Council considers necessary or advisable for the purpose of this Act.

CONSEQUENTIAL AMENDMENTS AND COMMENCEMENT

Elections Act

39 Section 5 of the Elections Act, chapter E-3 of the Revised Statutes, 1973, is amended by adding the following after subsection (1.5):

5( 1.51) The Chief Electoral Officer shall not be a member of the Legislative Assembly and shall not hold any other office of trust or profit, other than his or her office as Chief Electoral Officer, without the prior approval by the Legislative Assembly.

Members’ Conflict of Interest Act

40 The Members’ Conflict of Interest Act, chapter M-7.01 of the Acts of New Brunswick, 1999, is amended by adding the following after section 26:

Conditions of appointment

26.1 The Commissioner shall not be a member of the Legislative Assembly and shall not hold the office of the Registrar of Lobbyists without the prior approval by the Legislative Assembly.

Ombudsman Act

41 Subsection 5(2) of the Ombudsman Act, chapter O-5 of the Revised Statutes, 1973, is repealed and the following is substituted:

5( 2) Despite subsection (1), the Ombudsman may also hold the office of Child and Youth Advocate, the office of the Access to Information and Privacy Commissioner and the office of the Registrar of Lobbyists.

Regulation under the Public Service Superannuation Act

42 Schedule B of New Brunswick Regulation 84-105 under the Public Service Superannuation Act is amended by adding after

Office of the Consumer Advocate for Insurance for New Brunswick

the following:

Office of the Registrar of Lobbyists

Right to Information and Protection of Privacy Act

43 Section 1 of the Right to Information and Protection of Privacy Act, chapter R-10.6 of the Acts of New Brunswick, 2009, is amended in the definition “officer of the Legislative Assembly” by striking out “and the Auditor General” and substituting “, the Auditor General and the Registrar of Lobbyists”.

Commencement

44 This Act or any provision of it comes into force on a day or days to be fixed by proclamation.