Lobbying obligations as a public board director

What lobbying is

Clause 3.3 of the Lobbyists Code says lobbying activity means any contact with a government representative in an effort to influence government decision-making.

For example, decisions relating to:

making or amending of legislation
developing or amending government policies or programs
awarding government contracts, grants or funding.

Lobbying activity is conducted by:

a lobbyist – a person, company or organisation who works on behalf of a third-party client to influence government outcomes (under the Lobbyist Code)
a government affairs director – an individual employed in a private organisation, business or professional or trade association to do the same kind of work as a lobbyist for that organisation (under the Lobbyist Code)
others – also be aware that lobbying activity can be conducted by others who aren’t lobbyists or government affairs directors if their actions meet the definition of lobbying activity.

You may fall into this ‘other’ category if you occasionally contact government representatives in an effort to influence government decisions.

Although you're not required to be registered on the Victorian Register of Lobbyists, restrictions apply to lobbying activity due to your position as a public board director.

What lobbying isn't

Lobbying activity doesn’t include all activities, such as:

communications in response to a call for submissions
petitions or communications of a grassroots campaign nature in an attempt to influence a government policy or decision (for example campaigns that are community-based and rely on collective action at a local level to try and influence or implement change)
responses to requests by government representatives for information.

For example, it’s not lobbying activity if you:

campaign on behalf of a grassroots organisation, such as being a committee member of a local campaign to protect an area of biodiversity significance from development
provide a submission to government on proposed policy development, such as a submission on behalf of an organisation that aims to prevent homelessness
advocate in a public forum on behalf of a not-for-profit organisation, such as advocating for greater funding for domestic violence support services.

Your role as a board director

As a board director, you must work in the best interests of your public entity.

As part of your board duties, you may need to meet with government representatives (including ministers and members of parliament) to advocate for and discuss how your public entity operates.

When doing this as a board director, you’re also acting as a government representative. Therefore, it isn’t ‘lobbying activity’ under the Lobbyist Code and you’re not restricted from doing this as part of your board role.

Directors Code obligations

The Directors Code sets out your integrity obligations.

As a board director, you must:

act in good faith in the best interests of the public entity (item 3.5)
only use your position to promote the best interests of the public entity (item 3.6)
only use the information you gain during your board duties for its intended purpose (item 3.7).

You must also comply with the obligations in the Directors Code about conflicts of interest (item 3.12):

where possible, you should avoid conflicts of interest
if an actual, potential or perceived conflict of interest arises, you must declare the conflict so your board can manage it in the public interest in line with your board’s policy.

In addition, item 3.13 of the code imposes extra conflict of interest obligations on current or previous lobbying activities.

Previous lobbying activity obligations

Under item 3.12 of the Directors Code, your usual conflict of interest obligations apply.

Item 3.13 includes an extra requirement relating to conflicts of interest:

If you were previously engaged in lobbying activity that may relate to the functions of your public entity (including activities undertaken in other jurisdictions), you must declare this as soon as practicable.

This applies whether you were engaged in the lobbying activity:

before your appointment to the board, or
before the commencement of item 3.13 on 1 March 2024.

At the start of a meeting, you must declare if the board’s meeting agenda relates to any lobbying activity you were previously engaged in.

Board actions for previous lobbying declarations

If a board director declares they were previously engaged in lobbying activity, the board must assess whether this is an ongoing conflict of interest.

If it is a conflict of interest, the board must determine a strategy to manage the conflict as set out in the board’s policy.

The board must record the declaration and outcome in the meeting’s minutes.

Current lobbying activity obligations

Your usual conflict of interest obligations under item 3.12 of the Directors Code apply.

Due to the high risk of conflict of interest in lobbying activity by directors, item 3.13 includes an extra conflict of interest requirement that:

you must not engage in any lobbying activity (including activities undertaken in other jurisdictions) that may relate to the functions of the public entity
you must confirm at the start of each board meeting that you’re not engaged in any such activity.

If you believe you’re engaged in lobbying activity that may relate to the functions of your organisation, you must declare this to your board as soon as practicable.

Board actions for current lobbying declarations

A board should ask the questions listed for each of these steps to determine the best course of action.

Following a declaration the board should determine if the activity meets the definition of ‘lobbying activity’ in clause 3.3 of the Lobbyist Code.
Lobbying activity means any contact with a government representative in an effort to influence government decision-making. It is conducted by:
- lobbyists and government affairs directors
- others who aren’t lobbyists or government affairs directors if their actions meet the definition of ‘lobbying activity’.
Lobbying activity doesn’t include all activities, such as:
- communications in response to a call for submissions
- petitions or communications of a grassroots campaign nature in an attempt to influence a government policy or decision
- responses to requests by government representatives for information.
These exclusions may be relevant for public entities who have appointed board members based on their specialist or technical expertise and/or lived experience.
If it’s not lobbying activity
If it’s not lobbying activity, the board will need to:
- advise and record that the director is not in breach of item 3.13 of the Directors Code
- determine if a conflict of interest exists
- if a conflict exists, manage the conflict in line with its policy
- record these findings in the minutes.
If it is lobbying activity, the board must assess if it relates to the public entity’s functions.
The board should assess this by:
- referring to the public entity’s functions prescribed in legislation or documentation
- seeking more information from the director about their lobbying activities.
The board may want to consider:
- What is the nature, purpose or intent of the lobbying activity?
- What are the public entity’s functions as described in its establishing documentation (for example, the establishing Act or terms of reference)?
- How does the lobbying activity intersect with the public entity’s functions (if at all)? For example, does the lobbying activity directly relate to an activity in the entity’s annual or strategic plan?
If the lobbying activity relates to the public entity’s functions, the board will need to:
- advise the director that they are in breach of item 3.13 of the Directors Code
- advise that the lobbying activity is a conflict of interest
- determine that the board director either:
  - relinquish the private interest and cease engaging in the lobbying activity (this can only happen if the board can manage the residual conflict of interest), or
  - resign from the board
- record the findings in the minutes.
If the lobbying activity is unrelated or only indirectly related to the public entity’s functions, the board will need to:
- record in the minutes that the director is not in breach of item 3.13 of the Directors Code
- determine if a conflict of interest exists
- if a conflict exists, manage the conflict in line with its policy.

Future lobbying activity obligations

If you’re considering undertaking an activity and are unsure if it would be lobbying activity that relates to the public entity’s functions, ask your board for advice.

Board actions for advice on future lobbying

A board should ask the questions listed for each of these steps to provide the director with appropriate advice.

Following a request for advice, the board should determine if the proposed activity meets the definition of lobbying activity in clause 3.3 of the Lobbyist Code.
Lobbying activity means any contact with a government representative in an effort to influence government decision-making. It is conducted by:
- lobbyists and government affairs directors
- others who aren’t lobbyists or government affairs directors if their actions meet the definition of ‘lobbying activity’.
Lobbying activity doesn’t include all activities, such as:
- communications in response to a call for submissions
- petitions or communications of a grassroots campaign nature in an attempt to influence a government policy or decision
- responses to requests by government representatives for information.
These exclusions may be relevant for public entities who have appointed board members based on their specialist or technical expertise and/or lived experience.
If it’s not lobbying activity
If it’s not lobbying activity, the board will need to:
- advise that the director will not be in breach of item 3.13 of the Directors Code if they proceed
- advise whether the action would raise a conflict of interest and if so, how it would be dealt with under the board’s policy
- record these findings in the minutes.
If it is lobbying activity, the board must assess if it relates to the public entity’s functions.
The board should assess this by:
- referring to the public entity’s functions prescribed in legislation or documentation
- seeking more information from the director about their proposed lobbying activities.
The board may want to consider:
- What is the nature and purpose of the proposed lobbying activity?
- What are the public entity’s functions as described in its establishing documentation (for example, the establishing Act or terms of reference)?
- How does the proposed lobbying activity intersect with the public entity’s functions (if at all)? For example, does the lobbying activity directly relate to an activity in the entity’s annual or strategic plan?
If the proposed lobbying activity relates to the public entity’s functions, the board will need to:
- advise that the lobbying activity would raise a conflict of interest that breaches item 3.13 of the Directors Code and that the director should not proceed with it
- record these findings in the minutes.
If the proposed lobbying activity is unrelated or only indirectly related to the public entity’s functions, the board will need to:
- advise the director that they would not be in breach of item 3.13 of the Directors Code if they proceed
- advise whether the lobbying activity would raise a conflict of interest and if so whether and how it could be managed in line with the board’s policy
- record these findings in the minutes.

Membership of a peak industry body or similar

If you represent your board on a peak body, your actions in representing your public entity form part of your duties as a director of the public entity. This means your actions on the peak body aren’t ‘lobbying activity’ under item 3.13 of the Directors Code.

In representing your public entity on the peak body, you must always act in good faith in the best interests of your public entity (item 3.5).

For example, if the peak body proposes a decision that isn’t in the best interests of your public entity:

you would need to vote ‘no’ to any such decisions by the peak body (to act in the best interests of your public entity)
you must declare the conflict to your public entity board at the earliest possible opportunity
your public entity board will need to deal with the conflict of interest that arises, and
your public entity board can decide if on balance it is best to have you remain on the board of the peak body as a representative of your public entity’s interests.

Being on multiple boards and lobbying

If you sit on another public, private or not-for-profit board, you have a duty to another organisation. This is a private interest that may raise a conflict of interest.

As a public entity board director, you must avoid conflicts of interest where possible.

If a conflict occurs, you must declare the conflict to your public entity board as soon as practicable.

The board will determine how to manage the conflict in the public interest as per item 3.12 of the Directors Code and the board’s conflict of interest policy.

When sitting on the board of another organisation, you must also ensure you comply with the extra conflict of interest obligation in item 3.13 of the Directors Code.

Before engaging in lobbying activity that may relate to the functions of your public entity, check with your public entity board.

This is because you must not engage in lobbying activity that relates to your public entity.

You must declare the matter to the board as soon as practicable. Your board will determine what actions to take after you declare current lobbying.

More information

For more information, read:

If you’re unsure if other work you or are involved in is considered lobbying activity, you should:

discuss with your board chair, secretary or other board members
seek advice from your portfolio department.

If you need more advice after this, email the Victorian Public Sector Commission at integrity@vpsc.vic.gov.au.

Working in government

Updated 23 July 2024