Bill 44 - An Act to Amend the Lobbyists’ Registration Act

BILL 44

An Act to Amend the Lobbyists’ Registration Act

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

1 Section 1 of the Lobbyists’ Registration Act, chapter 11 of the Acts of New Brunswick, 2014, is amended

(a) by repealing the definition “undertaking”;

(b) by adding the following definition in alphabetical order:

“in-house lobbyist” means (lobbyiste salarié)

(a) in respect of a person or partnership that is not an organization, an individual whose duties include lobbying on behalf of the person or partnership as an employee or as an officer who is compensated for the performance of the officer’s duties or, if the person is a corporation, lobbying on behalf of any subsidiary or on behalf of any corporation of which the person or partnership is a subsidiary but does not include any individual or class of individual prescribed by regulation, and

(b) in respect of an organization, an individual whose duties include lobbying on behalf of the organization as an employee or as an officer who is compensated for the performance of the officer’s duties but does not include any individual or class of individual prescribed by regulation.

2 Section 4 of the Act is amended

(a) in subsection (1) in the portion preceding paragraph (a) by striking out “section 5, 10 or 15” and substituting “section 18.2 or 18.3”;

(b) in subsection (2) in the portion preceding paragraph (a) by striking out “section 5, 10 or 15” and substituting “section 18.2 or 18.3”.

3 The heading “Division A Consultant lobbyist” preceding section 5 of the Act is repealed.

4 Division A of the Act is repealed.

5 The heading “Division B In-house lobbyist (person or partnership that is not an organization)” preceding section 9 of the Act is repealed.

6 Division B of the Act is repealed.

7 The heading “Division C In-house lobbyist (organizations)” preceding section 14 of the Act is repealed.

8 Division C of the Act is repealed.

9 The Act is amended by adding before the heading “CERTIFICATION” preceding section 19 of the Act the following:

Registration required

18.1 A consultant lobbyist or an in-house lobbyist shall not lobby a public office holder unless the consultant lobbyist or in-house lobbyist is registered with respect to that lobbying in the registry of lobbyists established under section 32.

Submission of first return

18.2( 1) A consultant lobbyist shall submit a return to the Commissioner in the form and in the manner provided by the Commissioner within 15 days after entering into an undertaking to lobby on behalf of a client.

18.2( 2) An in-house lobbyist within the meaning of paragraph (a) of the definition “in-house lobbyist” in section 1 shall submit a return to the Commissioner in the form and in the manner provided by the Commissioner within two months after the date the in-house lobbyist commences any lobbying activity.

18.2( 3) A senior officer of an organization that employs an in-house lobbyist within the meaning of paragraph (b) of the definition “in-house lobbyist” in section 1 shall submit a return to the Commissioner in the form and in the manner provided by the Commissioner within two months after the date the in-house lobbyist commences any lobbying activity.

Requirements for monthly return

18.3( 1) The following individuals shall submit a return to the Commissioner in the form and in the manner provided by the Commissioner no later than 15 days after the end of each month:

(a) a consultant lobbyist who has submitted a return under subsection 18.2(1);

(b) an in-house lobbyist who has submitted a return under subsection 18.2(2); and

(c) a senior officer of an organization that employs an in-house lobbyist who has submitted a return under subsection 18.2(3).

18.3( 2) A return referred to in subsection (1) shall set out the following:

(a) with respect to every communication with a public office holder during that month related to a return submitted under section 18.2,

( i) the name of the public office holder who was the object of the communication,

( ii) the date of the communication,

( iii) the subject matter of the communication, and

( iv) any other information prescribed by regulation;

(b) with respect to previous returns,

( i) corrected information if any information contained in a previous return is no longer correct, and

( ii) additional information that comes to the knowledge of the individual after a return has been submitted that would have been required to be submitted in the return;

(c) with respect to an undertaking by a consultant lobbyist to lobby on behalf of a client, the date the undertaking has been completed or terminated; and

(d) with respect to the cessation of duties or employment of an in-house lobbyist, the date the individual ceases to be an in-house lobbyist or ceases to be employed by the employer.

18.3( 3) Despite subsection (1) and subject to subsection (4), no return is required to be submitted to the Commissioner if, during the relevant month,

(a) there is no communication with a public office holder related to a return submitted under section 18.2,

(b) there is no information to be corrected from a previous return, and

18.3( 4) If no returns have been submitted for five consecutive months after the last return was submitted, the individual must submit a return under subsection (1) stating that the individual named in the return has not carried on any lobbying in that period.

18.3( 5) An individual is not required to submit more than one return under subsection (1) for each return filed under section 18.2 despite communicating with more than one public office holder or communicating with one or more public office holders on more than one occasion.

18.3( 6) An individual referred to in paragraph (1)(a) is not required to submit a return under subsection (1) if the undertaking to lobby on behalf of a client for which a return under section 18.2 was submitted is completed or terminated and a return containing that information has been submitted.

Other information

18.4 An individual referred to in subsection 18.3(1) shall provide the Commissioner with any information requested by the Commissioner to clarify any information contained in a return submitted under section 18.2 or 18.3 within 30 days after the request is made.

10 The Act is amended by adding after section 32 the following:

Code of conduct

32.1( 1) The Commissioner shall develop a code of conduct for consultant lobbyists and in-house lobbyists which shall detail the expected ethical standards, behaviour and responsibilities of those lobbyists.

32.1( 2) In developing a code of conduct under subsection (1), the Commissioner shall consult the persons and organizations interested in the code that the Commissioner considers appropriate.

32.1( 3) The Commissioner shall submit the code of conduct to a committee of the Legislative Assembly.

32.1( 4) Once the code of conduct is submitted to a committee of the Legislative Assembly, it shall be published in The Royal Gazette.

32.1( 5) The Regulations Act does not apply to the code of conduct.

Compliance with code of conduct

32.2 A consultant lobbyist or an in-house lobbyist shall comply with the code of conduct referred to in section 32.1.

Conflict

32.3 If a provision of the code of conduct conflicts with a provision of this Act or the regulations, the provision of this Act or the regulations prevails.

11 Paragraph 35(1)(a) of the Act is amended by striking out “by section 7 within the period required by that subsection” and substituting “by paragraph 18.3(2)(c) within 30 days after the undertaking to lobby on behalf of a client has been completed or terminated”.

12 The Act is amended by adding after section 36 the following:

INVESTIGATIONS

Investigation by Commissioner

36.1( 1) The Commissioner, on the Commissioner’s own initiative or as a result of a complaint, may conduct an investigation to determine whether an individual has violated or failed to comply with the code of conduct, this Act or the regulations.

36.1( 2) Subject to subsection (3), no investigation under this Act may be commenced more than two years after the date that the facts on which the alleged violation or failure to comply is based first came to the knowledge of the Commissioner.

36.1( 3) An investigation under this Act may be commenced after the time set out in subsection (2) if the Commissioner is of the opinion that it is in the public interest to do so.

Powers under the Inquiries Act

36.11 While conducting any investigation under this Act, the Commissioner has all the powers, privileges and immunities of a commissioner under the Inquiries Act.

Refusing or ceasing to investigate

36.2 The Commissioner may refuse or cease to conduct an investigation if, in the opinion of the Commissioner,

(a) the subject matter of the investigation is trivial,

(b) the subject matter of the investigation could more appropriately be dealt with under another Act of the Province or of Canada,

(d) there is another valid reason for not investigating the matter.

Suspending an investigation

36.21 The Commissioner may suspend an investigation if the Commissioner discovers that

(a) the subject matter of the investigation is also the subject matter of an investigation to determine whether an offence has been committed under this Act or any other Act of the Province or of Canada, or

(b) a charge has been laid with respect to the alleged violation or failure to comply.

Referral to another body or person

36.3 The Commissioner may, before conducting an investigation or at any time during an investigation, refer a matter to another person or body to be dealt with as a law enforcement proceeding or in accordance with the procedure established under another Act of the Province or of Canada if the Commissioner is of the opinion that it would be more appropriate than conducting or continuing the investigation.

Notice following investigation

36.31( 1) If after conducting an investigation the Commissioner believes that an individual has violated or failed to comply with the code of conduct or a provision of this Act or the regulations, the Commissioner shall

(a) provide a notice to the individual that sets out

( i) the alleged violation or failure to comply,

( ii) the reasons why the Commissioner believes there has been a violation or failure to comply,

( iii) any measure that the Commissioner may take under section 36.41, and

( iv) the steps to be taken to make a request under paragraph (b), and

(b) give the individual an opportunity to request to be heard in a manner determined by the Commissioner with respect to the alleged violation or failure to comply and with respect to any measure that may be taken by the Commissioner under section 36.41.

36.31( 2) A notice provided under paragraph (1)(a) shall be in writing and shall be given to the individual

(a) by personal service,

(b) by registered mail, or

Finding of non-compliance

36.4( 1) If, after an investigation has been conducted and the individual has been given the opportunity to be heard under paragraph 36.31(1)(a), the Commissioner believes the individual has violated of failed to comply with the code of conduct or a provision of this Act or the regulations, the Commissioner may make a finding of non-compliance or take any measure under section 36.41 or both.

36.4( 2) If the Commissioner makes a finding of non-compliance, the Commissioner shall issue a notice that sets out the following:

(a) the finding of non-compliance;

(b) the measure taken under section 36.41, if any;

(d) a statement that an individual affected by the decision to make a finding or take a measure under section 36.41 or both may, within 15 days after receiving the notice, request that the Commissioner reconsider the decision under section 36.7.

36.4( 3) A notice issued under subsection (2) shall be in writing and shall be given to the individual

(a) by personal service,

(b) by registered mail, or

Measures taken after a finding of non-compliance

36.41( 1) Subject to subsection (4), if the Commissioner considers it to be in the public interest to do so, after making a finding of non-compliance in accordance with section 36.4, the Commissioner may take any of the following measures:

(a) publish the following information:

( i) the name of the individual against whom the finding was made;

( ii) a description of the violation or failure to comply; and

( iii) any other information that the Commissioner considers relevant to the finding of non-compliance;

(b) prohibit the individual from lobbying for a period of not more than two years after taking into consideration the following:

( i) the nature and seriousness of the violation or failure to comply;

( ii) the number of previous findings of non-compliance involving the individual, if any; and

( iii) the number of previous convictions for offences under this Act involving the individual, if any; or

36.41( 2) The Commissioner shall not publish any information under paragraph (1)(a) unless the time for making an application for judicial review under section 36.8 has elapsed and no application has been made.

36.41( 3) When imposing an administrative penalty under paragraph (1)(c), the Commissioner shall give notice to the individual by issuing a notice of administrative penalty in the form and manner considered appropriate by the Commissioner.

36.41( 4) Subsection (1) is of no effect until one year after the commencement of this section.

Payment of administrative penalty

36.5( 1) An individual who receives a notice of administrative penalty under subsection 36.41(3) shall pay the administrative penalty within 30 days after the notice is received.

36.5( 2) An administrative penalty constitutes a debt due to the Province.

Filing notice of administrative penalty

36.51 The Commissioner may file a certified copy of a notice of administrative penalty with a clerk of The Court of King’s Bench of New Brunswick, and, on being filed, that notice has the same force and effect as if it were a judgment of The Court of King’s Bench of New Brunswick.

Consolidated Fund

36.6 Any administrative penalty recovered under this Act shall be paid into the Consolidated Fund.

Reconsideration of Commissioner’s finding of non-compliance

36.7( 1) An individual who receives a notice under section 36.4 may make a written submission to the Commissioner within 15 days after receiving the notice requesting a reconsideration of the finding of non-compliance or of the measure taken under section 36.41 or of both.

36.7( 2) The written submission referred to in subsection (1) must identify the grounds on which the reconsideration is being requested.

36.7( 3) After receiving a request for reconsideration, the Commissioner shall reconsider and confirm, vary or set aside the finding of non-compliance, the measure taken or both.

36.7( 4) The Commissioner shall give written notice of the reconsideration, and notice shall be given to the individual

(a) by personal service,

(b) by registered mail, or

Judicial review

36.8( 1) An individual who receives a notice under section 36.4 or 36.7 may make an application for judicial review of

(a) a decision to make a finding of non-compliance under section 36.4,

(b) a decision to take a measure under section 36.41, or

36.8( 2) An application referred to in subsection (1) shall be made no later than 60 days after receiving a notice under section 36.4 or 36.7.

36.8( 3) To the extent that they are not inconsistent with this Act and the regulations, the Rules of Court apply to an application under subsection (1).

Request to delay measures taken

36.9( 1) An individual who requests a reconsideration under section 36.7 or makes an application for judicial review under section 36.8 may apply in writing to the Commissioner to delay the taking of any measure under section 36.41.

36.9( 2) If the Commissioner considers it appropriate, the Commissioner may delay the taking of any measure until the request for reconsideration or the application for judicial review is finally disposed of.

13 Subsection 37(1) of the Act is amended by striking out “section 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 17 or 18” and substituting “section 18.1, 18.2, 18.3, 18.4 or 32.2”.

14 The Act is amended by adding after section 37 the following:

Measures taken after conviction

37.1( 1) Subject to subsection (2), if an individual is convicted of an offence under section 37 and the Commissioner considers it to be in the public interest to do so, the Commissioner may take any of the following measures:

(a) publish the following information:

( i) the name of the individual who was convicted of the offence;

( ii) a description of the offence; and

( iii) any other information that the Commissioner considers relevant in relation to the offence; or

(b) prohibit the individual from lobbying for a period of not more than two years.

37.1( 2) The Commissioner shall take into consideration the following circumstances when taking the measures under subsection (1):

(a) the nature and seriousness of the offence;

(b) the number of previous convictions for offences under this Act involving the individual, if any; and

37.1( 3) Subsection (1) is of no effect until one year after the commencement of this section.

GENERAL

Prohibition against disclosure

37.2( 1) Except as provided for in this Act, the Commissioner shall not disclose

(a) whether the Commissioner is conducting an investigation under this Act, or

(b) any information, return, document or other thing obtained during the course of an investigation conducted under this Act.

37.2( 2) The Commissioner shall not disclose any information, return, document or other thing obtained during the course of an investigation conducted under this Act unless the disclosure is necessary

(a) to continue an investigation,

(b) to refer a matter to another person or body in accordance with section 36.3,

(d) to comply with the Commissioner’s reporting obligations under section 37.5.

37.2( 3) The Commissioner is not compellable in any proceeding of a judicial nature to

(a) give evidence concerning information that comes to the Commissioner’s knowledge during the course of an investigation conducted under this Act, or

(b) produce any file, information, report, correspondence or other document relating to an investigation conducted under this Act.

Immunity

37.3 No action or other proceeding lies or shall be instituted against any of the following persons for anything done or purported to be done in good faith by any of them or in relation to anything omitted in good faith by any of them in the exercise or intended exercise of a power or duty under this Act or the regulations:

(a) the Crown in right of the Province;

(b) the Commissioner or a former Commissioner;

(d) any other person acting or having acted under the authority of this Act.

Restriction on employment

37.4 A consultant lobbyist shall inform the Commissioner when they cease to be a consultant lobbyist and shall not be 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 for a six-month period after the date the Commissioner is informed.

Commissioner’s report

37.5 The Commissioner shall report annually to the Legislative Assembly on the performance of the Commissioner’s duties or the exercise of the Commissioner’s powers under this Act.

15 Section 38 of the Act is amended

(a) by adding after paragraph (a) the following:

(a.1) prescribing individuals or classes of individuals for the purposes of paragraph (a) of the definition “in-house lobbyist” in section 1;

(a.2) prescribing individuals or classes of individuals for the purposes of paragraph (b) of the definition “in-house lobbyist” in section 1;

(b) by adding after paragraph (c) the following:

(c.1) prescribing information for the purposes of subparagraph 18.3(2)(a)(iv);

(d) by adding before paragraph (e) the following:

(d.1) for the purpose of paragraph 36.41(1)(c), prescribing the amount of an administrative penalty or providing for the determination of the amount of an administrative penalty by prescribing the method of calculating the amount and the criteria to be considered in determining the amount;

TRANSITIONAL PROVISIONS, CONSEQUENTIAL AMENDMENT AND COMMENCEMENT

Transitional provisions

16( 1) A consultant lobbyist who immediately before the commencement of this subsection was required to submit a return under paragraph 5(1)(a) or (b) of the Lobbyists’ Registration Act is considered to be a consultant lobbyist for the purpose of paragraph 18.3(1)(a) of that Act, as enacted by section 9 of this Amending Act, with respect to any undertaking to lobby on behalf of a client that has not been completed or terminated.

16( 2) An in-house lobbyist who immediately before the commencement of this subsection was required to submit a return under paragraph 10(1)(a) or (b) of the Lobbyists’ Registration Act is considered to be an in-house lobbyist for the purpose of paragraph 18.3(1)(b) of that Act, as enacted by section 9 of this Amending Act.

16( 3) A senior officer of an organization that employs an in-house lobbyist who immediately before the commencement of this subsection was required to submit a return under paragraph 15(1)(a) or (b) of the Lobbyists’ Registration Act is considered to be a senior officer of an organization that employs an in-house lobbyist for the purpose of paragraph 18.3(1)(c) of that Act, as enacted by section 9 of this Amending Act.

Regulation under the Lobbyists’ Registration Act

17 Section 3 of New Brunswick Regulation 2017-11 under the Lobbyists’ Registration Act is repealed.

Commencement

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