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4. Defences

The Act states that it is a defence for anyone charged with an offence under the Act to show that they exercised all due diligence to avoid committing the offence and that:

(6) A person is taken to have shown [due diligence] if:

(a) sufficient evidence of the fact is adduced to raise an issue with respect to it; and

(b) the contrary is not proved beyond reasonable doubt.

For registrants, this could take into account that the organisation:

  • Has made themselves familiar with the guidance/FAQs available and if unsure, has contacted the Office to confirm points of clarification;
  • Genuinely believes that the guidance is incorrect in its interpretation of the Act or does not apply to their business;
  • Has attempted to access the online registration system and make a payment, and that in the instance that the Register is unavailable they have contacted the Office to make a paper payment;
  • Has organisational procedures/company policies in place of sufficiency to satisfy the Registrar that all personnel were enabled to identify and report instances of consultant lobbying.

It may be that an organisation is acting in accordance with legal advice, on which they may choose to waive legal professional privilege and share it with the Registrar, but they are not obliged to do so to support their defence.