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A Bill for an Act to amend the Commonwealth Electoral Act 1918 to improve donation transparency and accountability, and for related purposes
For authoritative information on the progress of bills and on amendments proposed to them, please see the House of Representatives Votes and Proceedings, and the Journals of the Senate as available on the Parliament House website.
Registered 29 Nov 2016
Introduced Senate 28 Nov 2016
Table of contents.

2016

 

The Parliament of the

Commonwealth of Australia

 

THE SENATE

 

 

 

 

Presented and read a first time

 

 

 

 

 

 

 

Commonwealth Electoral Amendment (Donation Reform and Transparency) Bill 2016

 

No.      , 2016

 

(Senator Farrell)

 

 

 

A Bill for an Act to amend the Commonwealth Electoral Act 1918 to improve donation transparency and accountability, and for related purposes

  

  


Contents

1............................ Short title............................................................................ 1

2............................ Commencement.................................................................. 1

3............................ Schedules............................................................................ 2

Schedule 1—Amendment of the Commonwealth Electoral Act 1918   3

Part 1—Amendments                                                                                                    3

Commonwealth Electoral Act 1918                                                                         3

Part 2—Application and saving provisions                                                      59

 

 


A Bill for an Act to amend the Commonwealth Electoral Act 1918 to improve donation transparency and accountability, and for related purposes

The Parliament of Australia enacts:

1  Short title

                   This Act is the Commonwealth Electoral Amendment (Donation Reform and Transparency) Act 2016.

2  Commencement

             (1)  Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

 

2.  Schedule 1

The first 1 July to occur after the day this Act receives the Royal Assent.

 

Note:          This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

             (2)  Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

                   Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1Amendment of the Commonwealth Electoral Act 1918

Part 1Amendments

Commonwealth Electoral Act 1918

1  Subsection 4(1)

Insert:

related: a political party is related to another political party if:

                     (a)  one of the parties is part of the other party; or

                     (b)  both parties are parts of the same political party.

2  Subsection 4(1)

Insert:

reporting period means:

                     (a)  the first 6 months of a financial year; or

                     (b)  a full financial year.

3  Subsection 17A(1)

Omit “(1)”.

4  Subsection 17A(1)

Omit all the words after “compliance with a notice under subsection 316(2A),”, substitute “unless, in the opinion of the Electoral Commission, the information relates to an offence that has, or may have been, committed against section 315”.

5  Subsection 17A(2)

Repeal the subsection.

6  Subsection 123(2)

Repeal the subsection.

7  Subsection 287(1)

Insert:

electoral expenditure, in relation to an election, means:

                     (a)  expenditure incurred (whether or not incurred during the election period) on:

                              (i)  the broadcasting, during the election period, of an advertisement relating to the election; or

                             (ii)  the publishing in a journal, during the election period, of an advertisement relating to the election; or

                            (iii)  the display, during the election period, at a theatre or other place of entertainment, of an advertisement relating to the election; or

                            (iv)  the production of an advertisement relating to the election, being an advertisement that is broadcast, published or displayed as mentioned in subparagraph (i), (ii) or (iii); or

                             (v)  the production of any material (not being material referred to in subparagraph (i), (ii) or (iii)) that is required under section 328, 328A or 328B to include the name and address of the author of the material or of the person authorising the material and that is used during the election period; or

                            (vi)  the production and distribution of electoral matter that is addressed to particular persons or organisations and is distributed during the election period; or

                           (vii)  the carrying out, during the election period, of an opinion poll, or other research, relating to the election; and

                     (b)  expenditure incurred during the election period on:

                              (i)  the rent of any house, building or premises used for the primary purpose of conducting an election campaign; or

                             (ii)  paying additional staff employed, or a person contracted, for the primary purpose of conducting an election campaign; or

                            (iii)  office equipment purchased (including by way of hire‑purchase), leased or hired for the primary purpose of conducting an election campaign; or

                            (iv)  the costs of running and maintaining that office equipment; and

                     (c)  expenditure incurred during the election period on:

                              (i)  travel; or

                             (ii)  travel and accommodation in connection with the travel;

                            to the extent that the expenditure could reasonably be expected to have been incurred for the primary purpose of conducting an election campaign.

However, expenditure is not electoral expenditure if:

                     (d)  a member of either House of the Parliament incurs expenditure of a kind mentioned in paragraph (a), (b) or (c) of this definition; and

                     (e)  the expenditure has been, or will be, met by allowances (other than those relating to remuneration), entitlements or benefits received by the member in his or her capacity as a member.

8  Subsection 287(1) (definition of eligible vote)

Repeal the definition.

9  Subsection 287(1) (definition of entitlement)

Repeal the definition.

10  Subsection 287(1)

Insert:

general public activity: see subsection 306AF(3).

11  Subsection 287(1)

Insert:

group vote, in relation to a group of candidates in a Senate election, means a first preference vote:

                     (a)  given in the election for any candidate who is a member of the group; and

                     (b)  counted for the purposes of section 273.

12  Subsection 287(1)

Insert:

office equipment means:

                     (a)  telephones, faxes, computers, personal digital assistants, personal organisers and other equipment used, or that can be used, for the purpose of communication; and

                     (b)  photocopiers, printers, and other things used in aid of the equipment mentioned in paragraph (a).

13  Subsection 287(1)

Insert:

permitted anonymous gift: see section 306AF.

14  Subsection 287(1)

Insert:

private event: see subsection 306AF(6).

15  Subsection 287(1)

Insert:

single claim means a claim:

                     (a)  by registered political parties that are related to each other; and

                     (b)  for electoral expenditure that covers:

                              (i)  the federal branch of the registered political party; and

                             (ii)  one or more State branches of the registered political party.

16  Subsection 287(2)

Repeal the subsection, substitute:

             (2)  If this Part requires something to be lodged, given or furnished to the Electoral Commission, the thing is taken to be so lodged, given or furnished if it is lodged at the principal office of the Electoral Commission in Canberra.

17  Subsection 287(4)

After “an election”, insert “or a reference in section 305B”.

18  After subsection 287(4A)

Insert:

          (4B)  For the purposes of this Part, electoral expenditure incurred by or with the authority of a division of a State branch of a political party is treated as being incurred by that State branch.

19  After subsection 287(6)

Insert:

          (6A)  Subsection (6) does not apply in relation to a political party that is a body corporate.

20  Subsection 287A(1)

After “Divisions 4,”, insert “4A,”.

21  At the end of Division 1 of Part XX

Add:

287C  Commonwealth may not recover the amount of a gift twice

                   Despite anything in this Part, if the Commonwealth has recovered the amount or value of a gift as a debt due to the Commonwealth under a provision of this Part, the Commonwealth may not recover the amount or value of that gift as a debt due to the Commonwealth under another provision of this Part.

22  Paragraph 292B(a)

After “Division 4,”, insert “4A,”.

23  Sections 294 and 297

Repeal the sections, substitute:

Subdivision AEntitlement to election funding

293  Entitlement to election funding—registered political parties

             (1)  A registered political party is entitled to election funding under this section for all elections held on the same day if any of the following apply:

                     (a)  in respect of a candidate who the party endorses in a House of Representatives election—the total number of formal first preference votes given for the candidate is at least 4% of the total number of formal first preference votes cast in the election;

                     (b)  in respect of a candidate who the party endorses in a Senate election and who is not a member of a group—the total number of formal first preference votes given for the candidate is at least 4% of the total number of formal first preference votes cast in the election;

                     (c)  in respect of candidates who the party endorses in a Senate election and who are members of a group—the total number of formal first preference group votes is at least 4% of the total number of formal first preference votes cast in the election.

             (2)  Subject to subsection (3), the amount of election funding to which the registered political party is entitled is the lesser of:

                     (a)  the total of the following:

                              (i)  $2.24851 for each formal first preference vote given for a candidate in relation to whom paragraph (1)(a) or (b) is satisfied;

                             (ii)  subject to section 296, $2.24851 for each formal first preference group vote in respect of a group in relation to which paragraph (1)(c) is satisfied; and

                     (b)  the amount of electoral expenditure:

                              (i)  claimed in respect of the registered political party for all elections held that day; and

                             (ii)  accepted by the Electoral Commission under section 298C.

Note:          Subparagraph (a)(ii)—if the candidates in the group are endorsed by 2 or more registered political parties, section 296 affects the way formal first preference votes are divided for the purposes of attributing a portion of election funding to each party.

             (3)  If a single claim is made, the amount of election funding to which the registered political parties are entitled is the lesser of:

                     (a)  the total of the following:

                              (i)  $2.24851 for each formal first preference vote given for a candidate endorsed by any of the parties covered by the claim and in relation to whom paragraph (1)(a) or (b) is satisfied;

                             (ii)  subject to section 296, $2.24851 for each formal first preference group vote in respect of a group comprising candidates endorsed by any of the parties covered by the claim and in relation to which paragraph (1)(c) is satisfied; and

                     (b)  the amount of electoral expenditure:

                              (i)  claimed in respect of the parties covered by the claim, for all elections held that day; and

                             (ii)  accepted by the Electoral Commission under section 298C.

Note:          Subparagraph (a)(ii)—if the candidates in the group are endorsed by 2 or more registered political parties, section 296 affects the way formal first preference votes are divided for the purposes of attributing a portion of election funding to each party.

294  Entitlement to election funding—unendorsed candidates

             (1)  A candidate in an election is entitled to election funding under this section if:

                     (a)  the candidate is neither:

                              (i)  endorsed by a registered political party; nor

                             (ii)  in the case of a Senate election—a member of a group; and

                     (b)  the total number of formal first preference votes given for the candidate in the election is at least 4% of the total number of formal first preference votes cast in the election.

             (2)  The amount of election funding to which the candidate is entitled is the lesser of:

                     (a)  $2.24851 for each formal first preference vote given for the candidate in the election; and

                     (b)  the amount of electoral expenditure:

                              (i)  claimed in respect of the candidate for the election; and

                             (ii)  accepted by the Electoral Commission under section 298C.

295  Entitlement to election funding—unendorsed groups

             (1)  A group in a Senate election is entitled to election funding under this section if:

                     (a)  none of the group’s members are candidates endorsed by a registered political party; and

                     (b)  the total number of formal first preference group votes is at least 4% of the total number of formal first preference votes cast in the Senate election.

             (2)  The amount of election funding to which the group is entitled is the lesser of:

                     (a)  $2.24851 for each formal first preference group vote in the Senate election; and

                     (b)  the amount of electoral expenditure:

                              (i)  claimed in respect of the group for the Senate election; and

                             (ii)  accepted by the Electoral Commission under section 298C.

296  Entitlement to election funding—special rule for joint Senate groups

             (1)  This section applies if 2 or more registered political parties endorse candidates who are members of a group in a Senate election.

             (2)  An agent of one of the registered political parties must, before the polling day for the Senate election, give the Electoral Commission a copy of an agreement made between the parties that sets out, for the purposes of applying subparagraphs 293(2)(a)(ii) and (3)(a)(ii), how the parties agree to divide the formal first preference group votes.

             (3)  The original agreement must have been signed by the agent of each of the parties.

             (4)  If a copy of an agreement is given to the Electoral Commission before the polling day for the Senate election, the formal first preference group votes are to be divided in accordance with the agreement.

             (5)  However, if a copy of an agreement is not given to the Electoral Commission before that day, the formal first preference group votes are to be divided in whatever way the Electoral Commission determines.

Subdivision BClaims for election funding

297  Need for a claim

             (1)  To be paid an amount of election funding, a claim must be made by:

                     (a)  subject to paragraph (b), the agent of a registered political party; or

                     (b)  if the claim is a single claim—an agent of one of the registered political parties covered by the claim; or

                     (c)  the agent of a candidate or group.

             (2)  The agent may make:

                     (a)  an interim claim; or

                     (b)  both an interim claim and a final claim; or

                     (c)  a final claim.

Note:          If an interim claim only is made, see subsection 298C(3).

             (3)  A final claim must specify all electoral expenditure for which election funding is sought, even if some or all of the electoral expenditure has been specified in an interim claim.

             (4)  A final claim may specify electoral expenditure already specified in an interim claim by making reference to the interim claim.

             (5)  Only one interim claim and one final claim may be made.

298  Electoral expenditure incurred

             (1)  Unless subsection (2) applies, a claim made by the agent of a registered political party must specify electoral expenditure:

                     (a)  incurred by the party, or by candidates endorsed by the party, in relation to all elections held on the same day; and

                     (b)  for which election funding is sought.

             (2)  A single claim made by an agent of one of the registered political parties covered by the claim must specify electoral expenditure:

                     (a)  incurred by the parties covered by the claim, or by candidates endorsed by any of those parties, in relation to all elections held on the same day; and

                     (b)  for which election funding is sought.

             (3)  A claim made by the agent of a candidate in an election must specify electoral expenditure:

                     (a)  incurred by the candidate in relation to the election; and

                     (b)  for which election funding is sought.

             (4)  A claim made by the agent of a group in a Senate election must specify electoral expenditure:

                     (a)  incurred by the group, or by candidates who are members of the group, in relation to the election; and

                     (b)  for which election funding is sought.

298A  Form of claim

                   A claim must:

                     (a)  specify whether the claim is an interim claim or final claim; and

                     (b)  be in the approved form; and

                     (c)  provide all the information, and be accompanied by any documents, required by the form.

298B  Lodging of claim

Interim claim

             (1)  If an interim claim is made in relation to an election or elections, the claim must be lodged with the Electoral Commission during the period:

                     (a)  beginning on the 20th day after the polling day for the election or elections; and

                     (b)  ending 6 months after the polling day for the election or elections.

Final claim

             (2)  A final claim in relation to an election or elections must be lodged with the Electoral Commission during the period:

                     (a)  beginning on the day after:

                              (i)  if the claim relates to only one election—the day on which the writ for the election is returned; or

                             (ii)  if the claim relates to 2 or more elections—the day on which the writs for the elections are returned (or, if the writs are returned on different days, the last of those days); and

                     (b)  ending 6 months after the polling day for the election or elections.

Claim cannot be lodged at any other time

             (3)  A claim is taken not to have been made if it is lodged:

                     (a)  before the days mentioned in paragraph (1)(a) or (2)(a); or

                     (b)  after the 6 month period mentioned in paragraphs (1)(b) and (2)(b).

298C  Determination of claim

             (1)  The Electoral Commission must, within 20 days of the Electoral Commission receiving a claim:

                     (a)  decide whether to accept or refuse the claim, in whole or in part; and

                     (b)  to the extent that the Electoral Commission accepts the claim—pay the amount required by section 298D or 298E.

             (2)  In deciding whether to accept or refuse a claim, in whole or in part, the Electoral Commission must only consider:

                     (a)  whether expenditure claimed is electoral expenditure; and

                     (b)  if expenditure claimed is electoral expenditure—both:

                              (i)  whether the electoral expenditure was incurred; and

                             (ii)  whether the electoral expenditure has been specified in a claim made by another agent.

             (3)  If an interim claim is accepted, in whole or in part, under section 298D and a final claim is not lodged:

                     (a)  no further election funding is payable; and

                     (b)  the interim claim is taken to be a final claim accepted by the Electoral Commission for the purposes of subsection 301(1).

298D  Accepting an interim claim

             (1)  Subsection (2) applies if:

                     (a)  an interim claim is made by the agent of a registered political party, candidate or group in relation to an election or elections; and

                     (b)  the Electoral Commission accepts the claim, in whole or in part.

             (2)  The Electoral Commission must pay the lesser of:

                     (a)  95% of the amount calculated under paragraph 293(2)(a) or (3)(a), 294(2)(a) or 295(2)(a), as applicable, based on formal first preference votes and formal first preference group votes counted as at the 20th day after the polling day for the election or elections; and

                     (b)  the amount of electoral expenditure accepted.

298E  Accepting a final claim

             (1)  Subsection (2) applies if:

                     (a)  a final claim is made by the agent of a registered political party, candidate or group in relation to an election or elections; and

                     (b)  the Electoral Commission accepts the claim, in whole or in part.

             (2)  The Electoral Commission must pay the lesser of:

                     (a)  the amount calculated under paragraph 293(2)(a) or (3)(a), 294(2)(a) or 295(2)(a), as applicable; and

                     (b)  the amount of electoral expenditure accepted;

reduced by any amount that has been paid in accordance with section 298D.

298F  Refusing a final claim

                   If a final claim is refused, in whole or in part, the Electoral Commission must cause to be served on the agent of the registered political party, candidate or group to which the claim relates, a notice that states that the claim has been refused, in whole or in part, and sets out the reasons for the refusal.

298G  Application for reconsideration of decision refusing a final claim

             (1)  If a final claim is refused, in whole or in part, the agent of the registered political party, candidate or group to which the claim relates may apply to the Electoral Commission for the Electoral Commission to reconsider the decision.

             (2)  The application must:

                     (a)  be in writing; and

                     (b)  set out the reasons for the application.

             (3)  The application must be made within:

                     (a)  28 days after the day on which the relevant agent is notified of the refusal; or

                     (b)  if, either before or after the end of that period of 28 days, the Electoral Commission extends the period within which the application may be made—the extended period for making the application.

298H  Reconsideration by Electoral Commission

             (1)  Upon receiving such an application, the Electoral Commission must:

                     (a)  reconsider the decision; and

                     (b)  decide to:

                              (i)  affirm the decision; or

                             (ii)  vary the decision; or

                            (iii)  set aside the decision and make another decision.

             (2)  The Electoral Commission must give to the relevant agent a notice stating the decision on the reconsideration together with a statement of the reasons for the decision.

             (3)  If the Electoral Commission’s decision on the reconsideration would require an amount, or an additional amount, of election funding to be paid, the Electoral Commission must pay the amount within 20 days of the day of its decision.

             (4)  The Electoral Commission may not delegate its power under subsection (1).

Subdivision CPayments of election funding

24  Subsection 299(1)

Omit all the words before paragraph (a), substitute:

             (1)  Subject to subsection (2), if an amount of election funding is payable in respect of a candidate or candidates endorsed by a registered political party, the Electoral Commission must:

25  Subsections 299(2) to (5)

Repeal the subsections, substitute:

             (2)  If an amount of election funding is payable in respect of a single claim, the Electoral Commission must pay the amount to the agent who makes the single claim.

             (3)  If subsections (1) and (2) do not apply and an amount of election funding is payable in respect of a candidate, the Electoral Commission must pay the amount to the candidate’s agent.

             (4)  If subsections (1) and (2) do not apply and an amount of election funding is payable in respect of a group, the Electoral Commission must pay the amount to the group’s agent.

26  Subsections 299(5D) and (6)

Repeal the subsections.

27  Sections 300 and 301

Repeal the sections, substitute:

Subdivision DMiscellaneous

300  Death of candidates or group members

Death of candidate

             (1)  If formal first preference votes were given for a candidate in an election, a payment may be made in respect of the candidate even if the candidate dies.

             (2)  If the candidate was neither:

                     (a)  endorsed by a registered political party; nor

                     (b)  a member of a group;

and was his or her own agent for the purposes of this Part, the payment may be made to the candidate’s legal personal representative.

Death of member of group

             (3)  If group votes were given in a Senate election in relation to a group of candidates, a payment may be made for the group even if a candidate who was a member of the group dies.

             (4)  If:

                     (a)  none of a group’s members were candidates endorsed by a registered political party; and

                     (b)  the member of the group who died was the group’s agent for the purposes of this Part;

the payment may be made to another member of the group as if that other member were the group’s agent for the purposes of this Part.

301  Varying decisions accepting claims

             (1)  If:

                     (a)  the Electoral Commission has made a decision (the claim decision) under section 298C to accept an amount of electoral expenditure specified in a final claim; and

                     (b)  the Electoral Commission becomes satisfied that:

                              (i)  the amount of electoral expenditure should not have been accepted; or

                             (ii)  only a lesser amount of electoral expenditure should have been accepted;

the Electoral Commission may vary the claim decision accordingly.

             (2)  If the Electoral Commission makes a decision (the variation decision) to vary the claim decision, sections 298F, 298G and 298H apply in relation to the variation decision as if it were, to the extent of the variation, a decision of the Commission to refuse the claim.

             (3)  If:

                     (a)  the Electoral Commission varies the claim decision; and

                     (b)  the total amount of election funding that has been paid to a person in respect of the final claim, and any interim claim, exceeds the amount that, under the claim decision as varied, should have been paid to the person in respect of the final claim;

the amount of the excess is an overpayment, and may be recovered by the Commonwealth as a debt due to the Commonwealth by action against the person.

             (4)  If an interim claim has been made, then in working out the amount that, under the claim decision as varied, should have been paid to the person as mentioned in subsection (3), the amount paid to the person in respect of the interim claim is not to be deducted.

301A  References to the agent of a registered political party if single claim made

                   If a single claim has been made, a reference in sections 298D, 298E, 298F and 298G to the agent of a registered political party is taken to include a reference to the agent who makes the single claim.

28  After section 303

Insert:

303A  How Division applies to gifts that are returned etc. within 6 weeks

Division generally does not apply to gifts returned within 6 weeks of receipt

             (1)  Subject to subsections (2) to (5), this Division does not apply to a gift that is returned within 6 weeks after its receipt.

Division applies to gifts of foreign property, whether or not returned

             (2)  This Division applies to a gift of foreign property within the meaning of Subdivision A of Division 4A, whether or not the gift is returned within 6 weeks as mentioned in section 306AA.

             (3)  If the gift is so returned, any return under this Division that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned.

Division applies to anonymous gifts, whether or not returned or paid to the Commonwealth

             (4)  This Division applies to an anonymous gift within the meaning of Subdivision B of Division 4A, whether or not the gift is returned, or the amount or value of the gift is paid to the Commonwealth, within 6 weeks as mentioned in section 306AG.

             (5)  If the gift is so returned, or the amount or value of the gift is so paid to the Commonwealth, any return under this Division that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned, or that the amount or value of the gift was so paid to the Commonwealth.

29  Subsection 304(2)

Omit all the words after “in an approved form,”, substitute:

                   setting out:

                     (a)  the total amount or value of all gifts received by the person during the disclosure period for the election; and

                     (b)  for gifts other than permitted anonymous gifts received by the person during the disclosure period for the election—the number of persons who made the gifts, and the relevant details of each gift; and

                     (c)  for each general public activity or private event at which permitted anonymous gifts were received by the person during the disclosure period for the election:

                              (i)  the date and nature of the activity or event; and

                             (ii)  the total amount of permitted anonymous gifts received at the activity or event; and

                            (iii)  for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

30  Subsection 304(3)

Omit all the words after “in an approved form,”, substitute:

                   setting out:

                     (a)  the total amount or value of all gifts received by the group during the disclosure period for the election; and

                     (b)  for gifts other than permitted anonymous gifts received by the group during the disclosure period for the election—the number of persons who made the gifts, and the relevant details of each gift; and

                     (c)  for each general public activity or private event at which permitted anonymous gifts were received by the group during the disclosure period for the election:

                              (i)  the date and nature of the activity or event; and

                             (ii)  the total amount of permitted anonymous gifts received at the activity or event; and

                            (iii)  for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

31  Subsection 304(4)

Omit “the purposes of this section”, substitute “the purposes of paragraphs (2)(b) and (3)(b)”.

32  Subparagraph 304(5)(b)(ii)

Omit “$10,000 or less”, substitute “less than $1,000”.

33  Paragraph 304(5)(c)

Omit “$10,000 or less”, substitute “less than $1,000”.

34  Subsection 304(5) (note)

Repeal the note.

35  Paragraph 304(6)(b)

Omit “exceeds $10,000”, substitute “is $1,000 or more”.

36  Paragraph 304(6)(c)

Omit “exceeds $10,000”, substitute “is $1,000 or more”.

37  Subsection 304(6) (note)

Repeal the note.

38  At the end of section 304

Add:

Nil returns

             (9)  If no details are required to be included in a return under this section in respect of a candidate, the return must still be lodged and must include a statement to the effect that no gifts of a kind required to be disclosed were received.

           (10)  If no details are required to be included in a return under this section in respect of a group, the return must still be lodged and must include a statement to the effect that no gifts of a kind required to be disclosed were received.

39  Subparagraph 305A(1)(b)(ii)

Omit “more than $10,000”, substitute “$1,000 or more”.

40  Subsection 305A(1) (note)

Repeal the note.

41  Subparagraph 305A(1A)(b)(ii)

Omit “more than $10,000”, substitute “$1,000 or more”.

42  Subsection 305A(1A) (note)

Repeal the note.

43  Paragraph 305A(2)(b)

Omit “more than $10,000”, substitute “$1,000 or more”.

44  Subsection 305A(2) (note)

Repeal the note.

45  Section 305B

Repeal the section, substitute:

305B  Gifts to political parties

Obligation to provide returns for reporting periods

             (1)  Subject to subsections (4) and (5), if, in a reporting period, a person makes gifts totalling $1,000 or more to the same registered political party, the person must furnish a return to the Electoral Commission within 20 weeks after the end of the reporting period, disclosing all the gifts that the person made to the registered political party during the reporting period.

How section applies to political parties that are related

             (2)  If:

                     (a)  2 or more political parties are related to each other; and

                     (b)  at least one of those parties is a registered political party;

subsection (1) applies as if:

                     (c)  those parties together constituted a single registered political party (rather than being separate political parties); and

                     (d)  a gift made by a person to any of those parties were a gift made by that person to the single registered political party referred to in paragraph (c).

How section applies to gifts made with intention of benefiting a party

             (3)  If a person makes a gift to any person or body with the intention of benefiting a particular political party, the person is taken for the purpose of this section (including paragraph (2)(d)) to have made that gift directly to that political party.

Half‑year returns: effect on obligation to furnish full year return

             (4)  If a person:

                     (a)  has furnished a return to the Electoral Commission disclosing a gift or gifts that the person made to a registered political party during a reporting period that is the first 6 months of a financial year; and

                     (b)  has not made any further gifts to the registered political party during the remainder of the financial year;

the person is not required to furnish a return to the Electoral Commission under subsection (1) in respect of the reporting period that is the full financial year.

             (5)  A return furnished by a person under subsection (1) in respect of a reporting period that is a full financial year does not have to disclose any gift made by the person that has already been disclosed in a return under subsection (1) in respect of the reporting period that is the first 6 months of that financial year.

Content of return

             (6)  For each gift, the return must set out the following:

                     (a)  the amount of the gift;

                     (b)  the date on which it was made;

                     (c)  the name and address of the political party that received the gift.

Disclosure of receipt of gifts in certain circumstances

             (7)  If:

                     (a)  a person is required to disclose a gift (the ultimate gift) in a return under subsection (1); and

                     (b)  the person received a gift of $1,000 or more (the enabling gift) which the person used to make all or a substantial part of the ultimate gift;

the person must also disclose the relevant details of the enabling gift in the return under subsection (1).

             (6)  Relevant details for the purpose of subsection (7), in relation to a gift, are:

                     (a)  the amount or value of the gift; and

                     (b)  the date on which the gift was made; and

                     (c)  in the case of a gift made on behalf of the members of an unincorporated association, other than a registered industrial organisation:

                              (i)  the name of the association; and

                             (ii)  the names and addresses of the members of the executive committee (however described) of the association; and

                     (d)  in the case of a gift purportedly made out of a trust fund or out of the funds of a foundation:

                              (i)  the names and addresses of the trustees of the fund or of the funds of the foundation; and

                             (ii)  the title or other description of the trust fund or the name of the foundation, as the case requires; and

                     (e)  in any other case—the name and address of the person who made the gift.

Return to be in approved form

             (7)  The return must be in the approved form.

Gifts to which section does not apply

             (8)  This section does not apply to gifts made by any of the following:

                     (a)  a registered political party;

                     (b)  a State branch of a registered political party;

                     (c)  an associated entity;

                     (d)  a candidate in an election;

                     (e)  a member of a group.

46  Section 306

Repeal the section, substitute:

Division 4ARules about certain gifts and loans

Subdivision AGifts of foreign property

306  Interpretation

             (1)  In this Subdivision:

Australian property means:

                     (a)  money standing to the credit of an account kept in Australia; or

                     (b)  other money (for example, cash) that is located in Australia; or

                     (c)  property, other than money, that is located in Australia.

Note:          For how this Subdivision applies to gifts or transfers made using a credit card, see subsection 306AB(4).

candidacy period, in relation to a candidate, means the period:

                     (a)  starting on the earlier of the day on which the person announces that he or she will be a candidate in an election, or the day on which the nomination of the person as a candidate in the election is made; and

                     (b)  ending 30 days after the polling day in the election.

credit card means:

                     (a)  any article of a kind commonly known as a credit card; or

                     (b)  any similar article intended for use in obtaining cash, goods or services on credit;

and includes any article of a kind that persons carrying on business commonly issue to their customers or prospective customers for use in obtaining goods or services from those persons on credit.

enables: a gift or other transfer enables a person or entity to do a particular thing if all or a substantial part of the gift or transfer enables the person or entity:

                     (a)  to do all or a substantial part of that thing; or

                     (b)  to be wholly or substantially reimbursed for having done that thing.

foreign property means:

                     (a)  money standing to the credit of an account kept outside Australia; or

                     (b)  other money (for example, cash) that is located outside Australia; or

                     (c)  property, other than money, that is located outside Australia.

Note:          For how this Subdivision applies to gifts or transfers made using a credit card, see subsection 306AB(4).

gift:

                     (a)  in relation to a candidate, has a meaning affected by subsection (2); and

                     (b)  in relation to a member of a group, has a meaning affected by subsection (3).

group period, in relation to a group, means the period:

                     (a)  starting on the day on which the persons constituting the group make a request under section 168 in relation to an election; and

                     (b)  ending 30 days after the polling day in the election.

political expenditure means expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

             (2)  A reference in this Subdivision to a gift, in relation to a candidate (or a person acting on behalf of a candidate), does not include:

                     (a)  a gift made for the benefit of a group of which the candidate is a member; or

                     (b)  a gift made in a private capacity to (or for the benefit of) the candidate if the candidate has not used, and will not use, the gift solely or substantially for a purpose related to an election.

             (3)  A reference in this Subdivision to a gift, in relation to a member of a group (or a person acting on behalf of a group), is a reference to a gift made for the benefit of the group.

             (4)  A reference in this Subdivision to a thing done by a person includes a reference to a thing done by a person on behalf of the members of an unincorporated association.

306AA  Subdivision does not apply to gifts that are returned within 6 weeks

                   This Subdivision does not apply to a gift that is returned within 6 weeks after its receipt.

306AB  Determining whether a gift or transfer is of Australian or foreign property

Status of property as Australian or foreign to be determined by reference to position immediately before gift or transfer

             (1)  For the purpose of this Subdivision (but without limiting the effect of subsections (2) and (3)):

                     (a)  a gift or transfer of property is a gift or transfer of Australian property if the property was Australian property immediately before the gift or transfer was made; and

                     (b)  a gift or transfer of property is a gift or transfer of foreign property if the property was foreign property immediately before the gift or transfer was made.

Transferring foreign property to enable another person to make a gift

             (2)  For the purpose of this Subdivision, if:

                     (a)  a person (the donor) transfers foreign property (the primary transfer) to another person (the first recipient); and

                     (b)  the donor’s main purpose in making the primary transfer is to enable (directly or indirectly) the first recipient, or another person, to make a gift to another person or entity (the ultimate recipient); and

                     (c)  the first recipient, or another person, makes a gift (the ultimate gift) to the ultimate recipient; and

                     (d)  the primary transfer enabled (directly or indirectly) the first recipient, or the other person, to make the ultimate gift;

the ultimate gift is taken to be a gift of foreign property.

Changing location of foreign property etc. prior to making a gift or transfer

             (3)  For the purpose of this Subdivision, if:

                     (a)  a person:

                              (i)  changes the location of property so that it becomes Australian property; or

                             (ii)  uses foreign property to acquire Australian property; and

                     (b)  the person’s main purpose in changing the location of the property, or in acquiring the Australian property, was to enable the person to make a gift or transfer of property that would be Australian property rather than foreign property; and

                     (c)  the person makes a gift or transfer of Australian property in accordance with that purpose;

the gift or transfer is taken to be a gift or transfer of foreign property.

How Subdivision applies to gifts or transfers made by credit card

             (4)  This Subdivision applies to a gift or transfer of money made by use of a credit card as if the gift or transfer were of money standing to the credit of an account kept in the country in which the credit card is based.

306AC  Gifts of foreign property: when unlawful for political party, candidate etc. to receive gift

When receiving gift is unlawful

             (1)  It is unlawful for a person or entity to receive a gift of foreign property in any of the following circumstances:

                     (a)  the gift is received by a registered political party (or by a person acting on behalf of a registered political party);

                     (b)  the gift is received by a State branch of a registered political party (or by a person acting on behalf of a State branch of a registered political party);

                     (c)  the gift is received by a candidate (or by a person acting on behalf of a candidate) during the candidacy period;

                     (d)  the gift is received by a member of a group (or by a person acting on behalf of a group) during the group period.

Liability for unlawful receipt of gift

             (2)  If a person or entity specified in column 1 of an item in the following table receives a gift that, under subsection (1), it is unlawful for the person or entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in column 2 of that item.

 

Liability for unlawful receipt of gift

Item

Column 1

If the recipient is...

Column 2

the amount is payable by...

1

a registered political party that is a body corporate (or a person acting on behalf of such a party)

the registered political party.

2

a registered political party that is not a body corporate (or a person acting on behalf of such a party)

the agent of the registered political party.

3

a State branch of a registered political party, being a State branch that is a body corporate (or a person acting on behalf of such a branch)

the State branch.

4

a State branch of a registered political party, being a State branch that is not a body corporate (or a person acting on behalf of such a branch)

the agent of the State branch.

5

a candidate (or a person acting on behalf of a candidate)

the candidate and the agent of the candidate.

6

a member of a group (or a person acting on behalf of a group)

the members of the group and the agent of the group.

 

             (3)  If, under subsection (2), an amount is payable to the Commonwealth by 2 or more persons, those persons are jointly and severally liable for the payment of the amount.

             (4)  An amount that, under subsection (2), is payable by a person or persons to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person or any one or more of those persons.

306AD  Gifts of foreign property made to enable incurring of political expenditure: when unlawful to use or receive gift

Persons other than candidates and members of groups (current and former) and associated entities: when incurring expenditure is unlawful

             (1)  It is unlawful for a person (the recipient) to incur an amount of political expenditure if:

                     (a)  the recipient:

                              (i)  is not, and has not at any time been, a candidate or a member of a group; and

                             (ii)  is not an associated entity; and

                     (b)  a gift of foreign property received by the recipient from another person (the donor) enabled the recipient to incur the expenditure; and

                     (c)  the donor’s main purpose in making the gift of foreign property was to enable the recipient to incur political expenditure; and

                     (d)  the recipient is required by section 314AEB to provide a return setting out details of the expenditure (whether or not that return has been provided).

Candidates and members of groups (current and former): when incurring expenditure is unlawful

             (2)  It is unlawful for a person (the recipient) to incur an amount of political expenditure if:

                     (a)  the recipient is, or has at any time been, a candidate or a member of a group; and

                     (b)  a gift of foreign property received by the recipient from another person (the donor) enabled the recipient to incur the expenditure; and

                     (c)  the donor’s main purpose in making the gift of foreign property was to enable the recipient to incur political expenditure.

Associated entities: when receiving gift is unlawful

             (3)  It is unlawful for an associated entity to receive a gift of foreign property from a person (the donor) if the donor’s main purpose in making the gift is to enable the associated entity to incur political expenditure.

             (4)  In subsections (3) and (6), a reference to an associated entity receiving a gift or incurring expenditure is, if the entity is not a body corporate, a reference to a person receiving a gift or incurring expenditure on behalf of the entity.

Liability for unlawful incurring of expenditure or receipt of gift

             (5)  If a person incurs an amount of political expenditure that is unlawful under subsection (1) or (2), an amount equal to the amount of the expenditure is payable to the Commonwealth by the person.

             (6)  If an associated entity receives a gift that, under subsection (3), it is unlawful for the associated entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth in accordance with whichever of the following paragraphs applies:

                     (a)  if the associated entity is a body corporate, or is the trustee of a trust—the amount is payable to the Commonwealth by the associated entity;

                     (b)  if the associated entity is not a body corporate—the amount is payable to the Commonwealth by the financial controller of the associated entity.

             (7)  An amount that, under subsection (5) or (6), is payable by a person to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person.

Subdivision BAnonymous gifts

306AE  Interpretation

             (1)  In this Subdivision:

anonymous gift: a gift is an anonymous gift if the gift is not made by a known donor.

candidacy period, in relation to a candidate, means the period:

                     (a)  starting on the earlier of the day on which the person announces that he or she will be a candidate in an election, or the day on which the nomination of the person as a candidate in the election is made; and

                     (b)  ending 30 days after the polling day in the election.

enables: a gift enables a person or entity to do a particular thing if all or a substantial part of the gift enables the person or entity:

                     (a)  to do all or a substantial part of that thing; or

                     (b)  to be wholly or substantially reimbursed for having done that thing.

gift:

                     (a)  in relation to a candidate, has a meaning affected by subsection (2); and

                     (b)  in relation to a member of a group, has a meaning affected by subsection (3).

group period, in relation to a group, means the period:

                     (a)  starting on the day on which the persons constituting the group make a request under section 168 in relation to an election; and

                     (b)  ending 30 days after the polling day in the election.

known donor: a gift is made by a known donor if:

                     (a)  at the time when the gift is made:

                              (i)  the person making the gift (the donor) gives the donor’s name and address to the person receiving the gift; and

                             (ii)  the person receiving the gift has no grounds to believe that the name and address so given are not the donor’s true name and address; or

                     (b)  the name and address of the donor are otherwise known to the person receiving the gift.

political expenditure means expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

             (2)  A reference in this Subdivision to a gift, in relation to a candidate (or a person acting on behalf of a candidate), does not include:

                     (a)  a gift made for the benefit of a group of which the candidate is a member; or

                     (b)  a gift made in a private capacity to (or for the benefit of) the candidate if the candidate has not used, and will not use, the gift solely or substantially for a purpose related to an election.

             (3)  A reference in this Subdivision to a gift, in relation to a member of a group (or a person acting on behalf of a group), is a reference to a gift made for the benefit of the group.

             (4)  A reference in the definition of known donor in subsection (1) to the donor’s name and address is:

                     (a)  in the case of a gift made on behalf of the members of an unincorporated association, other than a registered industrial organisation—a reference to:

                              (i)  the name of the association; and

                             (ii)  the names and addresses of the members of the executive committee (however described) of the association; and

                     (b)  in the case of a gift purportedly made out of a trust fund or out of the funds of a foundation—a reference to:

                              (i)  the names and addresses of the trustees of the fund or of the funds of the foundation; and

                             (ii)  the title or other description of the trust fund or the name of the foundation, as the case requires.

             (5)  A reference in this Subdivision to a thing done by a person includes a reference to a thing done by a person on behalf of the members of an unincorporated association.

306AF  Meaning of permitted anonymous gift

Anonymous gifts made at general public activities

             (1)  An anonymous gift received by or on behalf of a person or entity (the recipient) is a permitted anonymous gift if:

                     (a)  the amount of the gift is $50 or less; and

                     (b)  the gift is received at a general public activity (see subsection (3)); and

                     (c)  a person involved in the organisation of the activity makes a record, for the purpose of this section, of:

                              (i)  the date, location and nature of the activity; and

                             (ii)  the names and addresses of the people involved in the collection or receipt of gifts at the activity; and

                            (iii)  the total amount of anonymous gifts received by or on behalf of the recipient at the activity.

             (2)  If:

                     (a)  a particular person makes 2 or more gifts for the recipient at the activity; and

                     (b)  a person involved in the collection or receipt of gifts at the activity knows that the gifts are from the same person, and that the total of the gifts exceeds $50;

then, despite subsection (1), so much of those gifts as equals the excess is not a permitted anonymous gift.

             (3)  A general public activity is an activity that is conducted in a public place or in some other place to which members of the public have ready access.

Note:          General public activities include, for example, street stalls and stalls at fetes.

Anonymous gifts made at private events

             (4)  An anonymous gift received by or on behalf of a person or entity (the recipient) is a permitted anonymous gift if:

                     (a)  the amount of the gift is $50 or less; and

                     (b)  the gift is received at a private event (see subsection (6)); and

                     (c)  a person involved in the organisation of the event makes a record, for the purpose of this section, of:

                              (i)  the date, location and nature of the event; and

                             (ii)  the number of people who attended the event; and

                            (iii)  the names and addresses of the people involved in the collection or receipt of gifts at the event; and

                            (iv)  the total amount of anonymous gifts received by or on behalf of the recipient at the event; and

                     (d)  if the total amount of anonymous gifts received by or on behalf of the recipient at the event exceeds the amount worked out by multiplying $50 by the number of people who attend the event—within 6 weeks of the event:

                              (i)  the excess is returned; or

                             (ii)  if it is not possible or practicable to return the excess—the amount of the excess is paid to the Commonwealth.

             (5)  If:

                     (a)  a particular person makes 2 or more gifts for the recipient at the event; and

                     (b)  a person involved in the collection or receipt of gifts at the event knows that the gifts are from the same person, and that the total of the gifts exceeds $50;

then, despite subsection (4), so much of those gifts as equals the excess is not a permitted anonymous gift.

             (6)  A private event is a function, meeting or other event that is not a general public activity.

Section only applies to gifts of money

             (7)  This section only applies in relation to gifts of money.

306AG  Subdivision does not apply to gifts that are returned or paid to Commonwealth within 6 weeks

                   This Subdivision does not apply to a gift if, within 6 weeks of the receipt of the gift:

                     (a)  the gift is returned; or

                     (b)  if it is not possible or practicable to return the gift—the amount or value of the gift is paid to the Commonwealth.

306AH  Anonymous gifts: when unlawful for political party, candidate etc. to receive gift

When receiving gift is unlawful

             (1)  It is unlawful for an anonymous gift that is not a permitted anonymous gift to be received in any of the following circumstances:

                     (a)  the gift is received by a registered political party (or by a person acting on behalf of a registered political party);

                     (b)  the gift is received by a State branch of a registered political party (or by a person acting on behalf of a State branch of a registered political party);

                     (c)  the gift is received by a candidate (or by a person acting on behalf of a candidate) during the candidacy period;

                     (d)  the gift is received by a member of a group (or by a person acting on behalf of a group) during the group period.

Liability for unlawful receipt of gift

             (2)  If a person or entity specified in column 1 of an item in the following table receives a gift that, under subsection (1), it is unlawful for the person or entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in column 2 of that item.

 

Liability for unlawful receipt of gift

Item

Column 1

If the recipient is...

Column 2

the amount is payable by...

1

a registered political party that is a body corporate (or a person acting on behalf of such a party)

the registered political party.

2

a registered political party that is not a body corporate (or a person acting on behalf of such a party)

the agent of the registered political party.

3

a State branch of a registered political party, being a State branch that is a body corporate (or a person acting on behalf of such a branch)

the State branch.

4

a State branch of a registered political party, being a State branch that is not a body corporate (or a person acting on behalf of such a branch)

the agent of the State branch.

5

a candidate (or a person acting on behalf of a candidate)

the candidate and the agent of the candidate.

6

a member of a group (or a person acting on behalf of a group)

the members of the group and the agent of the group.

 

             (3)  If, under subsection (2), an amount is payable to the Commonwealth by 2 or more persons, those persons are jointly and severally liable for the payment of the amount.

             (4)  An amount that, under subsection (2), is payable by a person or persons to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person or any one or more of those persons.

306AI  Anonymous gifts: when unlawful for political party, candidate etc. to receive gift made using anonymous gift

When receiving gift is unlawful

             (1)  It is unlawful for a person or entity to receive a gift (the political gift) from a person (the donor) if:

                     (a)  the political gift is received in any of the following circumstances:

                              (i)  the gift is received by a registered political party (or by a person acting on behalf of a registered political party);

                             (ii)  the gift is received by a State branch of a registered political party (or by a person acting on behalf of a State branch of a registered political party);

                            (iii)  the gift is received by a candidate (or by a person acting on behalf of a candidate) during the candidacy period;

                            (iv)  the gift is received by a member of a group (or by a person acting on behalf of a group) during the group period; and

                     (b)  an anonymous gift received by the donor enabled the donor to make the political gift; and

                     (c)  the anonymous gift is not a permitted anonymous gift.

Liability for unlawful receipt of gift

             (2)  If a person or entity specified in column 1 of an item in the following table receives a gift that, under subsection (1), it is unlawful for the person or entity to receive, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in column 2 of that item.

 

Liability for unlawful receipt of gift

Item

Column 1

If the recipient is...

Column 2

the amount is payable by...

1

a registered political party that is a body corporate (or a person acting on behalf of such a party)

the registered political party.

2

a registered political party that is not a body corporate (or a person acting on behalf of such a party)

the agent of the registered political party.

3

a State branch of a registered political party, being a State branch that is a body corporate (or a person acting on behalf of such a branch)

the State branch.

4

a State branch of a registered political party, being a State branch that is not a body corporate (or a person acting on behalf of such a branch)

the agent of the State branch.

5

a candidate (or a person acting on behalf of a candidate)

the candidate and the agent of the candidate.

6

a member of a group (or a person acting on behalf of a group)

the members of the group and the agent of the group.

 

             (3)  If, under subsection (2), an amount is payable to the Commonwealth by 2 or more persons, those persons are jointly and severally liable for the payment of the amount.

             (4)  An amount that, under subsection (2), is payable by a person or persons to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person or any one or more of those persons.

306AJ  Anonymous gifts: when unlawful for person to incur political expenditure using anonymous gift

Persons other than candidates and members of groups (current and former): when incurring expenditure is unlawful

             (1)  It is unlawful for a person to incur an amount of political expenditure if:

                     (a)  the person is not, and has not at any time been, a candidate or a member of a group; and

                     (b)  an anonymous gift received by the person enabled the person to incur the expenditure; and

                     (c)  the anonymous gift is not a permitted anonymous gift; and

                     (d)  the person is required by section 314AEB to provide a return setting out details of the expenditure (whether or not that return has been provided).

Candidates and members of groups (current and former): when incurring expenditure is unlawful

             (2)  It is unlawful for a person to incur an amount of political expenditure if:

                     (a)  the person is, or has at any time been, a candidate or a member of a group; and

                     (b)  an anonymous gift received by the person enabled the person to incur the expenditure; and

                     (c)  the anonymous gift is not a permitted anonymous gift.

Liability for unlawful incurring of expenditure

             (3)  If a person incurs an amount of political expenditure that is unlawful under subsection (1) or (2), an amount equal to the amount of the expenditure is payable to the Commonwealth by the person.

             (4)  An amount that, under subsection (3), is payable by a person to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person.

Subdivision COther gifts and loans

47  Subsection 306A(1)

Omit “more than $10,000”, substitute “$1,000 or more”.

48  Subsection 306A(1) (note)

Repeal the note.

49  Subsection 306A(2)

Omit “more than $10,000”, substitute “$1,000 or more”.

50  Subsection 306A(2) (note)

Repeal the note.

51  Paragraph 306B(a)

Omit “exceeds $10,000”, substitute “is $1,000 or more”.

52  Section 306B (note 3)

Repeal the note.

53  Section 307

Repeal the section.

54  Section 308

Repeal the section.

55  Subsections 309(1A), (2) and (3)

After “electoral expenditure”, insert “, of a kind mentioned in paragraph (a) of the definition of that expression,”.

56  Subsection 311A(2)

Omit “$10,000 or less”, substitute “less than $1,000”.

57  Subsection 311A(2) (note)

Repeal the note.

58  Division 5A of Part XX (heading)

Repeal the heading, substitute:

Division 5AReturns for reporting periods by registered political parties and other persons

59  After section 314AA

Insert:

314AAA  How Division applies to gifts that are returned etc. within 6 weeks

Division generally does not apply to gifts returned within 6 weeks of receipt

             (1)  Subject to subsections (2) to (5), this Division does not apply to a gift that is returned within 6 weeks after its receipt.

Division applies to gifts of foreign property, whether or not returned

             (2)  This Division applies to a gift of foreign property within the meaning of Subdivision A of Division 4A, whether or not the gift is returned within 6 weeks as mentioned in section 306AA.

             (3)  If the gift is so returned, any return under this Division that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned.

Division applies to anonymous gifts, whether or not returned or paid to the Commonwealth

             (4)  This Division applies to an anonymous gift within the meaning of Subdivision B of Division 4A, whether or not the gift is returned, or the amount or value of the gift is paid to the Commonwealth, within 6 weeks as mentioned in section 306AG.

             (5)  If the gift is so returned, or the amount or value of the gift is so paid to the Commonwealth, any return under this Division that includes the amount or value of the gift must also include a statement to the effect that the gift was so returned, or that the amount or value of the gift was so paid to the Commonwealth.

60  Section 314AB (heading)

Repeal the heading, substitute:

314AB  Returns for reporting periods by registered political parties

61  Subsection 314AB(1)

Omit “within 16 weeks after the end of each financial year beginning on or after 1 July 1992”, substitute “within 16 weeks after the end of each reporting period”.

62  Paragraph 314AB(1)(b)

Omit “audited annual accounts”, substitute “audited accounts, for the reporting period,”.

63  Subsection 314AB(2)

Omit “financial year” (wherever occurring), substitute “reporting period”.

64  Subsection 314AC(1)

Omit “financial year is more than $10,000”, substitute “reporting period is $1,000 or more”.

65  Subsection 314AC(1) (note)

Repeal the note.

66  Subsection 314AC(2)

Repeal the subsection.

67  At the end of section 314AC

Add:

             (4)  If the total amount received by, or on behalf of, the party during a reporting period includes one or more permitted anonymous gifts, the return must include, for each general public activity or private event at which the gifts were received:

                     (a)  the date and nature of the activity or event; and

                     (b)  the total amount of permitted anonymous gifts received at the activity or event; and

                     (c)  for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

68  Subsection 314AE(1)

Omit “financial year is more than $10,000”, substitute “reporting period is $1,000 or more”.

69  Subsection 314AE(1) (note)

Repeal the note.

70  Section 314AEA (heading)

Repeal the section, substitute:

314AEA  Returns for reporting periods by associated entities

71  Section 314AEA

Omit “financial year” (wherever occurring), substitute “reporting period”.

72  Section 314AEB (heading)

Repeal the heading, substitute:

314AEB  Returns for reporting periods relating to political expenditure

73  Subsection 314AEB(1)

Omit “financial year”, substitute “reporting period”.

74  Paragraph 314AEB(1)(a)

Omit “the year”, substitute “the reporting period”.

75  Paragraphs 314AEB(1)(b) and (c)

Repeal the paragraphs, substitute:

                     (b)  the total amount of expenditure of all of the kinds referred to in paragraph (a) incurred by the person during the reporting period was $1,000 or more.

76  Subsection 314AEB(1) (note)

Repeal the note.

77  After subsection 314AEB(1)

Insert:

          (1A)  An amount of expenditure incurred with the authority of a person is not counted in the total amount referred to in paragraph (1)(b) if, at the time the person gave authority to incur the amount of expenditure, the person was:

                     (a)  a registered political party; or

                     (b)  a State branch of a registered political party; or

                     (c)  the Commonwealth (including a Department of the Commonwealth, an Executive Agency or a Statutory Agency (within the meaning of the Public Service Act 1999)); or

                     (d)  a member of the House of Representatives or the Senate; or

                     (e)  a candidate in an election; or

                      (f)  a member of a group.

78  Subsection 314AEB(2)

Omit “financial year”, substitute “reporting period”.

79  Paragraph 314AEB(3)(a)

Omit “financial year”, substitute “reporting period”.

80  Section 314AEC (heading)

Repeal the heading, substitute:

314AEC  Returns for reporting periods relating to gifts received for political expenditure

81  Subsection 314AEC(1)

Omit “financial year”, substitute “reporting period”.

82  Paragraphs 314AEC(1)(a) and (b)

Omit “the year”, substitute “the reporting period”.

83  Paragraph 314AEC(1)(c)

Repeal the paragraph, substitute:

                     (c)  either or both of the following applies:

                              (i)  there is at least one major donor in relation to the person and the reporting period;

                             (ii)  the gifts referred to in paragraph (b) include one or more permitted anonymous gifts.

84  Subsection 314AEC(1) (note)

Repeal the note.

85  After subsection 314AEC(1)

Insert:

          (1A)  For the purpose of this section, a person (the donor) is a major donor in relation to the person and the reporting period referred to in subsection (1) if the total amount of the gifts referred to in paragraph (1)(b) that were made by the donor to the person is $1,000 or more.

86  Subsection 314AEC(2)

Omit all the words from and including “The person” to and including “paragraph (1)(b):”, substitute:

                   If there is at least one major donor in relation to the person and the reporting period, the return for the reporting period must include the following details in relation to each gift referred to in paragraph (1)(b) that was made by a major donor:

87  Subsection 314AEC(2) (note)

Repeal the note.

88  After subsection 314AEC(2)

Insert:

          (2A)  If the gifts referred to in paragraph (1)(b) include one or more permitted anonymous gifts, the return for the reporting period must include, for each general public activity or private event at which the gifts were received:

                     (a)  the date and nature of the activity or event; and

                     (b)  the total amount of permitted anonymous gifts received at the activity or event; and

                     (c)  the total amount of permitted anonymous gifts received at the activity or event that the person used for a purpose referred to in paragraph (1)(b); and

                     (d)  for a private event in relation to which an excess was returned, or the amount of an excess was paid to the Commonwealth, as mentioned in paragraph 306AF(4)(d)—the amount of the excess, and a statement to the effect that the excess was so returned or so paid to the Commonwealth.

89  Paragraph 314AEC(3)(a)

Omit “financial year”, substitute “reporting period”.

90  Subsection 314AEC(4)

Repeal the subsection.

91  Subsections 315(1) to (4)

Repeal the subsections, substitute:

Failing to furnish a Division 4, 5 or 5A return

             (1)  A person commits an offence if:

                     (a)  the person is required to furnish a return under Division 4, 5 or 5A; and

                     (b)  the person fails to furnish the return to the Electoral Commission by the time required by that Division.

Penalty:  120 penalty units.

Furnishing a Division 4, 5 or 5A return that is incomplete

             (2)  A person commits an offence if:

                     (a)  the person is required to furnish a return under Division 4, 5 or 5A; and

                     (b)  the person furnishes a return to the Electoral Commission; and

                     (c)  the return purports to be a return under that Division; and

                     (d)  the return is incomplete.

Penalty:  120 penalty units.

             (3)  For the purpose of subsection (2) a return is incomplete if it does not contain all the information that is required to be included in the return by Division 4, 5 or 5A (as the case requires) or by the approved form for the return.

Failing to retain records as required by section 317

             (4)  A person commits an offence if:

                     (a)  the person is required by section 317 to retain records; and

                     (b)  the person fails to retain the records as required by that section.

Penalty:  120 penalty units.

Furnishing a Division 3 claim that is false or misleading

          (4A)  A person commits an offence if:

                     (a)  the person lodges a claim with the Electoral Commission; and

                     (b)  the claim purports to be a claim under Division 3; and

                     (c)  the person knows that:

                              (i)  the claim is false or misleading in a material particular; or

                             (ii)  the claim omits a matter or thing without which the claim is misleading in a material particular.

Penalty:  Imprisonment for 2 years or 240 penalty units, or both.

Furnishing a Division 4, 5 or 5A return that is false or misleading

          (4B)  A person commits an offence if:

                     (a)  the person furnishes a return to the Electoral Commission; and

                     (b)  the return purports to be a return under Division 4, 5 or 5A; and

                     (c)  the person knows that:

                              (i)  the return is false or misleading in a material particular; or

                             (ii)  the return omits a matter or thing without which the return is misleading in a material particular.

Penalty:  Imprisonment for 12 months or 120 penalty units, or both.

Making a section 306AF record that is false or misleading

          (4C)  A person commits an offence if:

                     (a)  the person makes a record in relation to an activity or event; and

                     (b)  the record purports to be made for the purpose of section 306AF; and

                     (c)  the person knows that:

                              (i)  the record is false or misleading in a material particular; or

                             (ii)  the record omits a matter or thing without which the record is misleading in a material particular.

Penalty:  Imprisonment for 12 months or 120 penalty units, or both.

92  Before subsection 315(5)

Insert:

Additional orders if person convicted of offence against subsection (4A)

93  Subsection 315(5)

Omit “subsection (3) or (4)”, substitute “subsection (4A)”.

94  Before subsection 315(6A)

Insert:

Giving another person false or misleading information for a Division 3 claim

95  Subsection 315(6A) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 2 years or 240 penalty units, or both.

96  Before subsection 315(7)

Insert:

Giving another person false or misleading information for a Division 4, 5 or 5A return

97  Subsection 315(7) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 12 months or 120 penalty units, or both.

98  Before subsection 315(8)

Insert:

Effect of continued failure to furnish a Division 4, 5 or 5A return

99  After subsection 315(10)

Insert:

Unlawful receipt of gift: situations other than when political party, State branch or associated entity is not a body corporate, or when gift is received by person on behalf of group

        (10A)  A person commits an offence if:

                     (a)  the person (or a person acting on behalf of the person, but not a person acting on behalf of a group) receives a gift; and

                     (b)  the receipt of the gift is unlawful under subsection 306AC(1), 306AD(3), 306AH(1) or 306AI(1); and

                     (c)  the person is:

                              (i)  a registered political party that is a body corporate; or

                             (ii)  a State branch of a registered political party, being a State branch that is a body corporate; or

                            (iii)  a candidate; or

                            (iv)  a member of a group; or

                             (v)  an associated entity that is a body corporate.

Penalty:  Imprisonment for 12 months or 240 penalty units, or both.

Unlawful receipt of gift: registered political parties, State branches and associated entities that are not bodies corporate

        (10B)  A person commits an offence if:

                     (a)  a gift is received by (or by a person acting on behalf of) any of the following (the recipient):

                              (i)  a registered political party that is not a body corporate;

                             (ii)  a State branch of a registered political party, being a State branch that is not a body corporate;

                            (iii)  an associated entity that is not a body corporate; and

                     (b)  the receipt of the gift is unlawful under subsection 306AC(1), 306AD(3), 306AH(1) or 306AI(1); and

                     (c)  the recipient is specified in column 1 of an item in the following table, and the person is specified in column 2 of that item.

 

Liability for unlawful receipt of gift

Item

Column 1

If the recipient is...

Column 2

the person is liable for the offence if the person is...

1

a registered political party

the registered officer of the party, the secretary of the party (as defined in section 123), or the agent of the party.

2

a State branch of a registered political party, being a State branch that itself is a registered political party

the registered officer of the party that is the State branch, the secretary of that party (as defined in section 123), or the agent of that party.

3

a State branch of a registered political party, being a State branch that is not itself a registered political party

a member of the executive committee of the State branch.

4

an associated entity

the financial controller of the associated entity.

Penalty:  Imprisonment for 12 months or 240 penalty units, or both.

        (10C)  A person does not commit an offence against subsection (10B) if:

                     (a)  the person does not know of the circumstances because of which the receipt of the gift is unlawful; or

                     (b)  the person takes all reasonable steps to avoid those circumstances occurring.

Note:          A defendant bears an evidential burden of proof in relation to the matters in subsection (10C) (see subsection 13.3(3) of the Criminal Code).

Unlawful receipt of gift: person acting on behalf of group

        (10D)  A person commits an offence if:

                     (a)  the person receives a gift; and

                     (b)  in receiving the gift, the person is acting on behalf of a group; and

                     (c)  the receipt of the gift is unlawful under subsection 306AC(1), 306AH(1) or 306AI(1).

Penalty:  Imprisonment for 12 months or 240 penalty units, or both.

Unlawful incurring of expenditure

        (10E)  A person commits an offence if:

                     (a)  the person incurs expenditure; and

                     (b)  the incurring of the expenditure is unlawful under subsection 306AD(1) or (2) or 306AJ(1) or (2).

Penalty:  Imprisonment for 12 months or 240 penalty units, or both.

100  Before subsection 315(11)

Insert:

Prosecutions to be brought within 3 years

101  After section 315

Insert:

315AA  Recovery of undisclosed gifts

             (1)  Subject to subsection (2), for the purpose of this section, a gift is an undisclosed gift if:

                     (a)  any of the following provisions (the disclosure provision) requires details (however described) of the gift to be included in a return:

                              (i)  subsection 304(2) or (3);

                             (ii)  section 314AC;

                            (iii)  section 314AC, as it applies for the purpose of section 314AEA;

                            (iv)  section 314AEC; and

                     (b)  either:

                              (i)  the return has not been furnished by the time required by this Part; or

                             (ii)  the return has been furnished by that time, but it does not include the required details of the gift.

             (2)  If:

                     (a)  a notice is served on a person under subsection 318(2) in relation to a return; and

                     (b)  the notice requires the person to furnish certain particulars in relation to a gift within a specified period (the extension period);

then:

                     (c)  paragraph (1)(b) of this section has effect in relation to the return as if it referred to the end of the extension period (rather than the time by which the return is required to be furnished); and

                     (d)  if the particulars are furnished as required by the notice at or before the end of the extension period, subsection (1) has effect as if those particulars had been included in the return.

             (3)  If the disclosure provision in relation to an undisclosed gift is specified in column 1 of an item in the following table, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in column 2 of that item.

 

Liability for receipt of undisclosed gifts

Item

Column 1

If the disclosure provision is...

Column 2

the amount is payable by...

1

subsection 304(2)

the agent who is required to furnish the return.

2

subsection 304(3)

the agent who is required to furnish the return.

3

section 314AC

the agent who is required to furnish the return.

4

section 314AC, as it applies for the purpose of section 314AEA

the financial controller who is required to furnish the return.

5

section 314AEC

the person who is required to furnish the return.

 

             (4)  An amount that, under subsection (3), is payable by a person or persons to the Commonwealth may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against that person.

102  Section 315A (heading)

Repeal the heading, substitute:

315A  Recovery of amounts due to Commonwealth

103  Subsection 315A(1)

Repeal the subsection, substitute:

             (1)  If, under a provision of this Part, an amount may be recovered by the Commonwealth as a debt due to the Commonwealth, an action to recover the amount may be brought in the name of the Commonwealth by the Electoral Commissioner.

104  Subsections 316(2A) to (2C)

Repeal the subsections, substitute:

          (2A)  An authorised officer may, for the purpose of finding out whether a person or entity specified in column 1 of an item in the following table has complied with this Part or has done something that is unlawful under this Part, by notice to a person who is, or has at any time been, a person specified in column 2 of that item, require the person:

                     (a)  to produce, within the period and in the manner specified in the notice, the documents or other things referred to in the notice; or

                     (b)  to appear, at a time and place specified in the notice, before the authorised officer to give evidence, either orally or in writing, and to produce the documents or other things referred to in the notice.

 

Use of compliance powers

Item

Column 1

For compliance by these persons and entities...

Column 2

requirements may be made of these persons...

1

a registered political party or the agent of a registered political party

the agent of the party, any officer of the party, any person acting on behalf of the party, or any candidate endorsed by the party.

2

a State branch of a registered political party or the agent of a State branch of a registered political party

the agent of the branch, any officer of the branch, any person acting on behalf of the branch, or any candidate endorsed by the branch.

3

a candidate or the agent of a candidate

the candidate, the agent of the candidate, or any person acting on behalf of the candidate.

4

a member of a group or the agent of a group

any member of the group, the agent of the group, or any person acting on behalf of the group.

5

an associated entity or the financial controller of an associated entity

the financial controller of the associated entity, any officer of the associated entity, or any person acting on behalf of the associated entity.

6

a person who has furnished a return under section 305A, 305B, 314AEB or 314AEC

the person, any person acting on behalf of the person or (if the person is a body corporate) any officer of the person.

7

a prescribed person

the prescribed person, any person acting on behalf of the prescribed person or (if the prescribed person is a body corporate) any officer of the prescribed person.

 

       (2AA)  A notice to a person under subsection (2A) is to be served personally or by post on the person.

       (2AB)  Subsection (2A), as it applies in relation to a person who has furnished a return under section 305A, 305B, 314AEB or 314AEC, is not limited just to compliance in relation to that return or the period to which that return relates.

          (2B)  If a notice under subsection (2A) requires an officer of a political party or branch (other than an agent) to appear before an authorised officer under paragraph (2A)(b), then the agent of the political party or branch is entitled:

                     (a)  to attend at the proceeding under paragraph (2A)(b); or

                     (b)  to nominate another person, in writing, to attend on behalf of the agent.

          (2C)  Failure of the agent or nominee to attend under subsection (2B) does not affect the powers of the authorised officer to conduct the proceeding under paragraph (2A)(b).

105  Subsection 316(5) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

106  Subsection 316(5A) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

107  Subsections 316(5B) and (5C)

Repeal the subsections.

108  Subsection 316(6) (penalty)

Repeal the penalty, substitute:

Penalty:  Imprisonment for 12 months or 60 penalty units, or both.

109  Section 319A (heading)

Repeal the heading, substitute:

319A  Amendment of final claims and returns

110  Subsection 319A(1)

Omit “a claim or”, substitute “a final claim or a”.

111  Subsection 319A(2)

After “lodged a”, insert “final”.

112  After subsection 319A(4)

Insert:

          (4A)  However, if the amendment of the claim would increase the overall amount of electoral expenditure claimed, election funding for the amount of the increase is not payable.

113  Subsection 319A(9)

Omit “subsection 315(2), (3) or (4)”, substitute “subsection 315(2), (4A) or (4B)”.

114  Subsections 320(4) and (5)

Repeal the subsections, substitute:

             (4)  Nothing in this section requires the Electoral Commission to make a copy of a claim or return available for inspection or perusal, or to provide a copy of a claim or return, sooner after lodgement of the claim or return than is reasonably practicable.

115  Subsection 321(1) (definition of relevant amount)

Repeal the definition, substitute:

relevant amount means the amount specified in:

                     (a)  subparagraphs 293(2)(a)(i) and (ii) and 293(3)(a)(i) and (ii); and

                     (b)  paragraphs 294(2)(a) and 295(2)(a).

116  Subsection 321(1) (definition of relevant period)

Omit “1 July 1995”, substitute “the commencement of Schedule 1 to the Commonwealth Electoral Amendment (Donation Reform and Transparency) Act 2016”.

117  Section 321A

Repeal the section.

118  Section 384

Repeal the section.

Part 2Application and saving provisions

119  Amendments applying to reporting periods starting on or after commencement of this Schedule

The amendments made by the following items of this Schedule apply in relation to reporting periods that start on or after the commencement of this Schedule:

                     (a)  item 45;

                     (b)  items 60 to 90.

120  Amendments applying to financial years starting on or after the commencement of this Schedule

The amendments made by the items 56 and 57 of this Schedule apply in relation to financial years that start on or after the commencement of this Schedule.

121  Amendments applying to elections the writs for which are issued on or after the commencement of this Schedule

(1)       The amendments made by the following items of this Schedule apply in relation to elections the writs for which are issued on or after the commencement of this Schedule:

                     (a)  items 7 to 9;

                     (b)  items 11 and 12;

                     (c)  items 15 and 16;

                     (d)  item 18;

                     (e)  items 23 to 27;

                      (f)  items 29 to 44;

                     (g)  items 54 to 55;

                     (h)  items 109 to 112;

                      (i)  items 115 and 116.

(2)       The amount specified in:

                     (a)  subparagraphs 293(2)(a)(i) and (ii) and 293(3)(a)(i) and (ii) of the Commonwealth Electoral Act 1918 (as inserted by item 23 of this Schedule); and

                     (b)  paragraphs 294(2)(a) and 295(2)(a) of that Act (as inserted by that item);

must be indexed, to have effect on and from the commencement of this Schedule, in accordance with section 321 of that Act (as amended by items 115 and 116 of this Schedule), before the amendments mentioned in subitem (1) apply in relation to elections the writs for which are issued on or after the commencement of this Schedule.

122  Amendments applying to gifts etc. made on or after the commencement of this Schedule

(1)       The amendments made by the following items of this Schedule apply to gifts, transfers or loans made or received, or expenditure incurred, on or after the commencement of this Schedule:

                     (a)  item 10;

                     (b)  items 13 and 14;

                     (c)  item 28;

                     (d)  items 46 to 52;

                     (e)  item 59.

(2)       To avoid doubt, a gift made before the commencement of this Schedule is not a permitted anonymous gift (including for the purpose of section 314AEC of the Commonwealth Electoral Act 1918 (as amended by this Schedule)).

123  Amendments applying to acts or omissions occurring on or after the commencement of this Schedule

The amendments made by the following items of this Schedule apply in relation to acts and omissions that occur on or after the commencement of this Schedule:

                     (a)  items 91 to 99;

                     (b)  items 105 to 108;

                     (c)  item 113;

                     (d)  item 118.

124  Amendment applying to returns a person becomes required to furnish on or after the commencement of this Schedule

The amendment made by item 101 of this Schedule applies in relation to returns a person becomes required to furnish on or after the commencement of this Schedule.

125  Saving of notices under subsection 316(2A)

A notice given before the commencement of this Schedule under subsection 316(2A) of the Commonwealth Electoral Act 1918 as then in force has effect on and after that day as if it had been given under that subsection as amended by item 104 of this Schedule.