12 July 2011
Talking to the Department of Planning and Infrastructure
The NSW Department of Planning and Infrastructure has adopted (effective from 1 July) a new Registered Lobbyist Contact Protocol (available here).
This protocol applies to any communications about specific planning proposals and/or development matters between “registered lobbyists” and the Department. The protocol replaces the Department’s Meeting and Telephone Communications Code of Practice which was adopted in the dying days of the Rees Government when Kristina Keneally was still Planning Minister. The new document represents a further (part) response to the Independent Commission Against Corruption’s inquiry into lobbying practices last year (following-on from legislative reforms concerning the Planning Assessment Commission tucked into the Part 3A repeal bill that sped through Parliament last month).
In general term, “registered lobbyist” is a consultant who lobbies for clients on a professional basis (a more specific definition is available here).
The Urban Taskforce is not a registered lobbyist, as we are an industry group representing our members more generally. (A list of “registered lobbyists”, and who they act is for, is available here).
Under the new rules, each time a phone call, email or meeting is to take place with a registered lobbyist, the Department staff concerned will complete a “Registered Lobbyist Contact Form”. A sample of this form is available here.
This document, once approved internally by senior departmental staff, will be published on the Department’s website within 10 days of the date of the meeting (here). This includes details of the subject matter and the matters discussed.
In short, any liaison with the Department of Planning and Infrastructure by a registered lobbyist will be quickly published on the website. We can expect media organisations, councils and anti-development lobby groups to monitor these contacts closely.
Developers, planning consultants and objectors are not covered by the arrangements for “registered lobbyists”, but are covered by a separate “Business Contact Protocol” (available here).
Under this protocol:
- meetings about specific planning proposals and/or development matters should be held at government offices, council premises, or on site;
- at least two officers should attend a meeting;
- the details of discussions should be documented, recording key points, proposals or arguments (see the official form here);
- phone calls of substance should be documented in the same way as meetings;
- a list of “business contacts”, including the date and type, is to be included with assessment reports dealing with specific planning proposals and/or development matters.
The main difference between the arrangements for “registered lobbyists” and developers, etc is that:
- meetings with “registered lobbyists” cannot take place unless they are approved by more senior departmental staff; and
- the details of meetings with registered lobbyists will be published more or less as they occur, but meetings with developers will not be published unless and until an assessment report is publicly released by the Department.
Lobbying of Government Officials Act 2011
The Lobbying of Government Officials Act became law in NSW on 1 July.
As we advised in our member Alert on 13 May 2011, the object of this Act is “to prohibit the giving or receipt of success fees for lobbying by lobbyists who lobby Ministers, Parliamentary Secretaries and other Government officials”. However there may be legal issues about the definition of “success fees” and “lobbyists” under this new Act.
For example, the definition of “lobbyist” is not limited to registered lobbyists. While developers clearly lobby for their own interests, if an option agreement is in place, someone may argue that a developer is also lobbying for the benefit of a land owner and therefore is a “lobbyist” under the Act. If this view of the new law is accurate, then it is possible that the right to acquire or develop land is a “success fee” under the legislation.
The Department’s reply acknowledged that there may be need for a regulation to give “greater clarification” to the intent of the legislation, i.e. as to whether or not a developer is a lobbyist under the Act. Our reply to this letter is available here.
While we have had some subsequent positive discussions, the new legislation has commenced without a clarifying regulation (at this time), so there is a risk that some option agreements entered into landholders may no longer be valid. Developers should consider whether or not they wish to seek their own legal advice on this issue.