MS. CAROLE JAMES

BILL M 202 — 2009

LOBBYIST REGISTRY REFORM ACT, 2009

This Act makes amendments to the Lobbyists Registration Act that establish clear rules to ensure that lobbying is done ethically and transparently. It amends the definition of "lobby" to remove restrictions on recognized lobbying activities, establishes clear reporting responsibilities, and protects the public interest by ensuring that British Columbians have access to adequate information about lobbyists.

Contents
1  Definitions
2  Restrictions on application of Act
3  Requirement to file return
4  Public office holders obligated to verify registration
5  Form and content of return
6  Investigations
7  Limit on liability
8  Report
9  Special Report
10  Contingency fees prohibited
11  Designated public office holders
12  Administrative penalties
13  Two year prohibition on lobbying

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Definitions

1 Section 1 (1) of the Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended:

(a) by adding the following definition:

"designated public office holder" means

(a) a minister of the Crown or a minister of state, or a parliamentary secretary,

(b) a ministerial assistant,

(c) a ministerial advisor,

(d) any other public office holder who, in a ministry within the meaning of the definition "ministry" in section 1 of the Financial Administration Act,

(i) occupies the senior executive position, whether by the title of deputy minister, chief executive officer or by some other title, or

(ii) is an associate deputy minister or an assistant deputy minister or occupies a position of comparable rank, and

(e) any individual who occupies a position that has been designated by regulation under section 18.1.

(b) in the definition of "lobby",

(i) by striking out "in relation to either a consultant lobbyist or an in house lobbyist",

(ii) by adding "or the termination of any program of the government of British Columbia" to the end of clause (iv),

(iii) by adding "grant, contribution" after "any contract" to clause (vi), and (iv) by adding the following clause:

(vii) 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.

and

(c) by adding the following definition:

"ministerial adviser" means a person, other than a public servant, who occupies a position in the office of a minister, and who provides policy, program or financial advice to that person on issues relating to his or her powers, duties and functions as a minister, whether or not the advice is provided on a full-time or part-time basis and whether or not the person is entitled to any remuneration or other compensation for the advice.

Restrictions on application of Act

2 Section 2 of the Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended:

(a) in subsection (1), by striking out "This Act", and replacing it with "The definition of 'lobbying' in section 1 of this Act",

(b) in subsection (1) by adding the following clause:

(h) employees or other representatives of non-profit associations not constituted to serve management, union or professional interests, nor composed of a majority of members that are profit-seeking enterprises or representatives of profit-seeking enterprises.

and

(c) in subsection (2) by striking out "This Act", and replacing it with "The definition of `lobbying' in section 1 of this Act".

Requirement to file return

3 Section 3 of the Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended:

(a) in subsection (1) (a) striking out "by a consultant lobbyist, within 10 days after entering into an undertaking to lobby on behalf of a client" and replacing it with "by a person who lobbies a public office holder, within 10 days after entering into an undertaking to lobby",

(b) by repealing subsection 1 (c) and replacing it with the following:

(c) by a person, other than an organization, that employs any in-house lobbyist,

(i) within 2 months after the date the employer first employs an in-house lobbyist or the date an employee becomes an in-house lobbyist, and

(ii) 2 months after the end of each financial year of the employer or, if the employer does not have a financial year, within 2 months after the end of each calendar year, beginning with the financial year or calendar year, as the case may be, in which the in-house lobbyist is required to file a return under clause (i).

(c) by repealing subsection (2) and replacing it with the following:

Where, on the coming into force of this Section, a person is lobbying a public office holder, that person shall file a return not later than 10 days after this Section comes into force.

and

(d) by adding the following subsection:

(3) The individual responsible for filing a return under subsection (1) shall file a monthly return, in the prescribed form and manner, pursuant to sections 4 (2) and 4 (3).

Public office holders obligated to verify registration

4 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

3.1  Having regard to the public expectation that public office holders perform their duties in a manner that affirms the integrity and dignity of public office, public office holders who

(a) receive communication that constitutes lobbying within the meaning of section 1, or

(b) attend a meeting arranged by a consultant lobbyist within the meaning of section 1,

are obligated to verify that the lobbyist is registered and to ascertain the intended outcome of any communication that constitutes lobbying.

Form and content of return

5 Section 4 of the Lobbyists Registration Act, S.B.C. 2001 c. 42 is repealed, and substituted by the following text:

(1) Each return filed under section 3 must include the following information as applicable:

(a) the name and business address of the individual and, if applicable, the name and business address of:

(i) the firm where the individual is engaged in business;

(ii) the individual's employer; or

(iii) the public office held by the individual, and the name of any member of the Legislative Assembly or of any minister to whom the individual is responsible;

(b) if the individual is a former public officer holder, a description of the offices held, which of those offices, if any, qualified the individual as a designated public office holder and the date on which the individual last ceased to hold such a designated public office;

(c) if the individual is the senior officer of an organization,

(i) a description of the organization's business or activities and any other information that is prescribed by the regulations in respect to the organization's business or activities;

(ii) the name of each in-house lobbyist employed by the organization;

(iii) where any in-house lobbyist is lobbying at the time the return is filed, the subject-matter in respect of which the in-house lobbyist is lobbying and any other prescribed information respecting the subject matter, and

(iv) the name of any government or government agency that funds or partly funds the organization and the amount of the funding;

(d) if the individual is an employer,

(i) a description of the employer's business or activities and any other information that is prescribed by the regulations in respect to the organization's business or activities;

(ii) if the employer is a corporation, the name and business address of each subsidiary of the corporation that, to the knowledge of the employer, has a direct interest in the outcome of the employee's activities on the employer's behalf;

(iii) if the employer is a corporation that is the subsidiary of another corporation, the name and business address of that other corporation, and

(iv) the name of any government or government agency that funds or partly funds the employer and the amount of the funding;

(e) the name and business address of the client and the name and business address of any person, partnership or organization that, to the knowledge of the individual, controls or directs the activities of the client and has a direct interest in the outcome of the individual's activities on behalf of the client;

(f) where the client is a corporation, the name and business address of each subsidiary of the corporation that, to the knowledge of the individual, has a direct interest in the outcome of the individual's activities on behalf of the client;

(g) where the client is a corporation that is a subsidiary of any other corporation, the name and business address of that other corporation;

(h) where the client is a coalition, the name and business address of each partnership, corporation or organization that is a member of the coalition;

(i) where the client is funded, in whole or in part, by a government or a government agency, the name of the government or government agency, as the case may be, and the amount of funding received by the client from that government or government agency;

(j) the name and business address of any entity or organization, other than a government or government agency, that, to the knowledge of the individual, contributed, during the entity's or organization's fiscal year that precedes the filing of the return, seven hundred fifty dollars or more toward the lobbying for which the return is filed;

(k) the name and business address of any individual who, to the knowledge of the individual filing the return, made a contribution described in clause (j) on behalf of an entity or organization described in that clause;

(1) the subject-matter in respect of the lobby for which the individual is filing the return and any other prescribed information respecting the subject-matter;

(m) the fact that the undertaking does not provide for any payment that is in whole or in part contingent on the outcome of any lobbying communication or activity as described in section 1;

(n) particulars to identify any relevant legislative proposal, bill, resolution, regulation, policy, program, decision, grant, contribution, financial benefit or contract;

(o) the name of any ministry of the government of British Columbia or other governmental institution in which is employed or serves any public office holder whom the individual lobbies;

(p) if the individual undertakes to lobby a public office holder, particulars to identify any communication technique that the individual uses in connection with the communication with the public office holder, including any appeals to members of the public through the mass media or by direct communication that seek to persuade those members of the public to communicate directly with a public office holder in an attempt to place pressure on the public office holder to endorse a particular opinion; and

(q) such other information relating to the identity of the individual, the client, any person or organization referred to in paragraph (e), any subsidiary referred to in paragraph (f), the other corporation referred to in paragraph (g), any member of a coalition referred to in paragraph (h) or any department or institution referred to in paragraph (o) as is prescribed.

(2) The individual shall file a return, in the prescribed form and manner, not later than 15 days after the end of every month, beginning with the one in which the return is filed under section 3, that

(a) sets out, with respect to every lobbying communication or activity as described in section 1 that was made in that month involving a designated public office holder and relating to the lobbying for which the return is filed,

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

(ii) the date of the communication,

(iii) particulars, including any prescribed particulars, to identify the subject-matter of the communication, and

(iv) any other information that is prescribed;

(b) if any information contained in the return filed under section 3 is no longer correct or additional information that the individual would have been required to provide under that subsection has come to the knowledge of the individual after the return was filed, provides the corrected or additional information; and

(c) if the lobbying has been completed or terminated, advises the registrar of that fact.

(3) The first return filed under subsection (2) shall, despite paragraph (2) (a), set out the information required by that paragraph in respect of communications made between the day on which the lobbying referred to in section 3 was entered into and the end of the month immediately before the filing of the return.

(3.1) Subject to subsection (3.2), no return is required under subsection (2) if no communication referred to in paragraph (2) (a) was made during the period with respect to which the return is to set out information, and if the circumstances referred to in paragraphs (2) (b) and (c) have not arisen.

(3.2) In any case, no more than five months shall have elapsed since the end of the month in which a return was last filed without a return being filed by the individual under subsection (2), even if, since the last return, no communication was made as referred to in paragraph (2) (a) and the circumstances referred to in paragraphs (2) (b) and (c) have not arisen, in which case the report shall so state.

(3.3) The obligation to file a return under subsection (2) terminates when the lobbying has been completed or is terminated and a report has been filed under that subsection advising of that fact in accordance with paragraph (2) (c).

(4) An individual who files a return shall provide the registrar, in the prescribed form and manner, with such information as the registrar may request to clarify any information that the individual has provided to the registrar pursuant to this section, and shall do so not later than thirty days after the request is made.

(5) This section does not apply in respect of anything that an employee undertakes to do on the sole behalf of their employer or, where their employer is a corporation, in respect of anything that the employee, at the direction of the employer, undertakes to do on behalf of any subsidiary of the employer or any corporation of which the employer is a subsidiary.

(6) For greater certainty, an individual who undertakes to lobby as described in section 1 is not required to file more than one return with respect to the undertaking, even though the individual, in connection with that undertaking, communicates with more than one public office holder or communicates with one or more public office holders on more than one occasion.

6 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended

(a) by repealing section 10, and substituting the following:

Investigations

10  (1) The registrar shall conduct an investigation if the registrar has reason to believe, including on the basis of information received from a member of the Legislative Assembly or a member of the public, that an investigation is necessary to ensure compliance with this Act.

(2) The registrar may refuse to conduct or may cease an investigation with respect to any matter if the registrar is of the opinion that

(a) the matter is one that could more appropriately be dealt with according to a procedure provided for under another enactment,

(b) the matter is minor or trivial,

(c) dealing with the matter would serve no useful purpose because of the length of time that has elapsed since the matter arose, or

(d) there is any other valid reason for not dealing with the matter.

(3) For the purpose of conducting an investigation, the registrar may

(a) in the same manner and to the same extent as a justice of the Supreme Court,

(i) summon and enforce the attendance of individuals before the Registrar and compel them to give oral or written evidence on oath, and

(ii) compel persons to produce any documents or other things that the Registrar considers relevant to the investigation,

(b) administer oaths and receive and accept information, whether or not it would be admissible as evidence in a court of law.

(4) An investigation must be conducted in private.

(5) Evidence given by an individual in an investigation and evidence of the existence of an investigation are inadmissible against the individual in a court or in any other proceeding, other than in proceedings for perjury in respect of a statement made to the registrar.

(6) The registrar shall not make adverse findings against an individual unless that individual has had reasonable notice of the substance of the allegations against him or her and a reasonable opportunity to present his or her views.

(7) The registrar, and every individual acting on behalf of or under the direction of the registrar, may not disclose any information that comes to their knowledge in the performance of their duties and functions under this section, unless

(a) the disclosure is, in the opinion of the registrar, necessary for the purpose of conducting an investigation under this section or establishing the grounds for any findings or conclusions contained in a report under section 12,

(b) the information is disclosed in a report under section 12 or in the course of a proceeding for perjury in respect of a statement made to the registrar, or

(c) the registrar believes on reasonable grounds that the disclosure is necessary for the purpose of advising a peace officer having jurisdiction to investigate an alleged offence under this Act or any other enactment of British Columbia or under an Act of Parliament.

(8) The registrar shall immediately suspend an investigation under this section if the Registrar discovers that the subject-matter of the investigation is also the subject-matter of an investigation to determine whether an offence under this Act or any other enactment of British Columbia or under an Act of Parliament has been committed or that a charge has been laid with respect to that subject-matter.

(9) The registrar may not continue an investigation under this section until any investigation or charge regarding the same subject-matter has been finally disposed of.

(10) A member of the Legislative Assembly or a member of the public who has reasonable grounds to believe that a public office holder or fom1er public office holder has contravened this Act may, in writing, request that the registrar examine the matter.

(b) by re-enacting section 10 at section 17, and

(c) in section 17 by:

(a) striking out "3 (1), or 4", and replacing it with "3, 4, 14 or 15" in subsection (1),

(b) striking out "$25 000" and replacing it with "$100 000" in subsection (4),

(c) repealing subsection (5) and replacing it with the following:

(5) A person who acts to obstruct the registrar in the registrar's carrying out of his or her duties under this Act commits an offence.

(d) re-enacting subsection (5) as subsection (6)

Limit on liability

7 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended:

(a) by repealing section 11 and substituting the following:

11  (1) No action lies against the registrar or any former registrar or any other individual who is or was employed or engaged by the registrar for anything done in good faith under this Act.

(2) No action lies against an individual who in good faith provides information or gives evidence in an investigation under this Act or to an individual employed or engaged by the registrar.

(b) by re-enacting section 11 at section 18, with the following heading:

Power to make regulations

(c) by repealing clause 18(2)(b) and replacing it with the following:

(b) designating, individually or by class, any position occupied by a public office holder as a position occupied by a designated public office holder for the purposes of paragraph (c) of the definition `designated public office holder' in section 1 if, in the opinion of the Lieutenant Governor in Council, doing so is necessary for the purposes of this Act;

(d) by repealing clause 18(2)(c) and replacing it with the following:

(c) regarding administrative penalties that may be issued pursuant to this Act, including prescribing one or more of the following:

(i) the form and content of notices of administrative penalties for the purposes of section 16;

(ii) the contraventions in respect of which an administrative penalty may be imposed and, subject to section 16 (2), prescribing the amounts, or the manner of determining the amounts, of the administrative penalties that may be imposed;

(iii) procedures regarding appeals from notices of administrative penalties issued under section 16.

(e) by striking out "4 (1) (c) (ii), (d) (ii) or (h)" in subsection 18 (2) (d), and replacing it with "4 (1) (c), (d), (l), or (q)"

Report

8 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

12  (l) After conducting an investigation, the registrar shall prepare a report of the investigation, including the findings, conclusions and reasons for the registrar's conclusions, and submit the report to the Speaker of the Legislative Assembly, who shall immediately lay the report before the Assembly if it is then sitting or, if it is not then sitting, within 15 days after the commencement of the next sitting.

(2) The report may contain details of any payment received, disbursement made or expense incurred by an individual who is named in a return required to be filed under section 3 in respect of any lobbying communication or activity, if the Registrar considers publication of the details to be in the public interest.

Special report

9 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

13  (1) The registrar may, at any time, prepare a special report concerning any matter within the scope of the powers, duties and functions of the registrar.

(2) The registrar shall submit the special report to the Speaker of the Legislative Assembly, who shall lay the report before the Assembly if it is then sitting or, if it is not then sitting, within 15 days after the commencement of the next sitting.

Contingency fees prohibited

10 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

14  (1) An individual who is required to file a return under section 3 shall not receive any payment that is in whole or in part contingent on the outcome of any lobbying communication or activity as described in section 1.

(2) The client of an individual referred to in subsection (1) shall not make any such payment to the individual.

Designated public office holders

11 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

15  (1) No individual shall, during a period of two years after the day on which the individual ceases to be a designated public office holder,

(a) carry on any lobbying communications or activities; and

(b) if the individual is employed by an organization or corporation, carry on any lobbying communication or activities on behalf of that organization or corporation.

(2) On application, the registrar may, on any conditions that the registrar specifies, exempt an individual from the application of subsection (1) if the registrar is of the opinion that the exemption would not be contrary to the purposes of this Act having regard to any circumstance or factor that the registrar considers relevant, including whether the individual

(a) was a designated public office holder for a short period;

(b) was a designated public office holder on an acting basis;

(c) was employed under a program of student employment; or

(d) had administrative duties only.

(3) The registrar shall without delay cause every exemption and the registrar's reasons for it to be made available to the public.

Administrative penalties

12 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended:

(a) by repealing section 16 and substituting the following:

16  (1) Where the registrar is of the opinion that a person has contravened a provision of this Act or the regulations, the registrar may, subject to regulatory guidance, by notice in writing served on the person personally or by mail, require that person to pay to the Crown an administrative penalty in the amount set out in the notice for each contravention.

(2) The maximum amount of an administrative penalty that may be imposed under subsection (1) is $25 000.

(3) A person who pays an administrative penalty in respect of a contravention may not be charged under this Act with an offence in respect of that contravention.

(4) A notice under subsection (1) may not be issued more than 2 years after the date on which the contravention occurred.

(5) A person who has been served with a notice of administrative penalty pursuant to this section shall pay the amount of the penalty within 30 days from the date of service of the notice.

(6) A person who has been served with a notice of administrative penalty may appeal the imposition of the penalty in accordance with the regulations.

(7) Subject to the right to appeal, where a person fails to pay an administrative penalty in accordance with the notice of administrative penalty and the regulations, the registrar may file a copy of the notice of administrative penalty with the clerk of the Court of the Supreme Court of British Columbia and, on being filed, the notice has the same force and effect and may be enforced as if it were a judgment of the Court.

(8) An appeal panel established under this section may for the purpose of carrying out its duties and functions collect, use and disclose personal information.

(b) by re-enacting section 16 at section 19, with the following heading:

Commencement

Two year prohibition on lobbying

13 The Lobbyists Registration Act, S.B.C. 2001 c. 42 is amended by adding the following section:

17  If a person is convicted of an offence under this Act, or an offence under the Canadian Criminal Code that is related to activities under this Act, the registrar shall prohibit the person who has committed the offence from engaging in any lobbying communication activity for a period of two years.

 
Explanatory Note

This Act makes amendments to the Lobbyists Registration Act that establish clear rules to ensure that lobbying is done ethically and transparently. It amends the definition of "lobby" to remove restrictions on recognized lobbying activities, establishes clear reporting responsibilities, and protects the public interest by ensuring that British Columbians have access to adequate information about lobbyists.