A Bill for an Act to amend the Commonwealth Electoral Act 1918, and for related purposes
The Parliament of Australia enacts:
1 Short title
This Act is the Electoral Legislation Amendment (Fairer Contracts and Grants) Act 2023.
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. The whole of this Act | The day after 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Note: This table relates only to the provisions of this Act as originally enacted.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Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.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 1—Amendments
Commonwealth Electoral Act 1918
1 Subsection 120(2) (table item 14)
After “302H”, insert “, 302L”.
2 Section 302A
After:
Broadly, gifts must not be made to a member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party by a foreign donor for the purpose of incurring electoral expenditure or creating or communicating electoral matter.
insert:
Gifts over the disclosure threshold to prohibited gift recipients must not be made by corporations or close associates of the corporation for a period of 12 months after the corporation has made any application or entered into a contract for Commonwealth money, or applied for certain approvals under a law of the Commonwealth.
A corporation must not make any application or enter into a contract for Commonwealth money, or apply for certain approvals under a law of the Commonwealth for a period of 12 months after the corporation or close associate of the corporation has made a gift to a prohibited gift recipient.
A prohibited gift recipient is a political entity or associated entity where the related political party is in government at the time the gift is made.
3 Section 302B
Insert:
close associate, of a corporation, means any of the following persons:
(a) a related body corporate of the corporation;
(b) a director or other officer of the corporation;
(c) a person with more than 20% of the voting power in the corporation;
(d) a spouse of a person mentioned in paragraph (b) or (c);
(e) a lobbyist engaged to conduct lobbying activities on behalf of the corporation.
Commonwealth Grants Rules and Guidelines means the Commonwealth Grants Rules and Guidelines in force under subsection 105C(1) of the PGPA Act.
Commonwealth Procurement Rules means the Commonwealth Procurement Rules in force under subsection 105B(1) of the PGPA Act.
corporation has the same meaning as in the Corporations Act 2001.
director has the same meaning as in the Corporations Act 2001.
officer has the same meaning as in the Corporations Act 2001.
other CRF money has the same meaning as in the PGPA Act.
PGPA Act means the Public Governance, Performance and Accountability Act 2013.
prohibited donor: see section 302BA.
prohibited gift recipient: see section 302BB.
related body corporate has the same meaning as in the Corporations Act 2001.
relevant money has the same meaning as in the PGPA Act.
voting power has the same meaning as in the Corporations Act 2001.
4 After section 302B
Insert:
302BA Meaning of prohibited donor
(1) A corporation or a close associate of the corporation is a prohibited donor if the corporation:
(a) made a submission in relation to a limited tender or open tender process in accordance with the Commonwealth Procurement Rules; or
(b) is a party to a contract in relation to a standing offer, including the legal services panel, in accordance with the Commonwealth Procurement Rules; or
(c) submitted an application in relation to a grant opportunity in accordance with Commonwealth Grants Rules and Guidelines; or
(d) submitted an application for an approval, licence or permit (however described) under a prescribed law of the Commonwealth.
(2) A corporation or close associate of the corporation becomes a prohibited donor:
(a) if the corporation is a party to a contract referred to in paragraph (1)(b)—the day the corporation becomes a party to the contract; or
(b) otherwise—on the day the corporation made a submission or submitted an application referred to in subsection (1).
(3) A corporation or close associate of the corporation ceases to be a prohibited donor:
(a) if the corporation is notified they have been awarded, or not been awarded, a contract in relation to a limited tender or open tender process—12 months after the day the corporation is notified; or
(b) if the corporation is a party to a contract referred to in paragraph (1)(b)—the day after the corporation ceases to be a party to the contract; or
(c) if the corporation is notified of the outcome of an application in relation to a grant opportunity—12 months after the day the corporation is notified; or
(d) if the corporation is notified of the final outcome of an application referred to in paragraph (1)(d)—12 months after the day after the corporation is notified.
(4) For the purposes of paragraph (1)(d), a prescribed law is:
(a) the Environment Protection and Biodiversity Conservation Act 1999; or
(b) a law of the Commonwealth prescribed by the Finance Minister, by legislative instrument, for the purposes of this paragraph.
302BB Meaning of prohibited gift recipient
(1) A political entity or associated entity is a prohibited gift recipient if the related political party of the political entity or associated entity is in government at the time a gift referred to in paragraph 302J(1)(a) or paragraph 302K(1)(a) is made.
Note: If a political party forms government with a coalition of political parties, all political parties that form the coalition are considered to be in government.
(2) For the purpose of subsection (1), related political party means:
(a) in relation to a registered political party—the federal party of the registered political party; or
(b) in relation to a State branch of a registered political party—the federal party of the registered political party; or
(c) in relation to a candidate—the federal party of the registered political party of which the candidate is a member; or
(d) in relation to a group—the federal party of the registered political party of which a candidate of the group is a member; or
(e) in relation to an associated entity—the federal party of the registered political party with which the entity is associated.
5 Section 302C
Repeal the section, substitute:
302C Objects of this Division
(1) The objects of the Division are to secure and promote the actual and perceived integrity of the Australian electoral process by:
(a) reducing the risk of foreign persons and entities exerting (or being perceived to exert) undue or improper influence in the outcomes of elections; and
(b) reducing the risk of corporations and close associates of corporations exerting (or being perceived to exert) undue or improper influence over decisions to award Commonwealth money, contracts or approvals.
(2) This Division aims to achieve these objects by:
(a) restricting the receipt and use of political donations made by foreign persons or entities that do not have a legitimate connection to Australia; and
(b) prohibiting political donations by corporations and close associates of corporations for a certain period following an application for the award of Commonwealth money or for an approval, licence or permit (however described) under a law of the Commonwealth; and
(c) prohibiting the award of Commonwealth money or an approval, licence or permit (however described) under a law of the Commonwealth to a corporation for a certain period of time following a political donation.
6 After Subdivision B of Division 3A of Part XX
Insert:
Subdivision C—Prohibition of certain donations
302J Gifts by prohibited donors
(1) A corporation or close associate of the corporation contravenes this subsection if:
(a) a gift is made to, or for the benefit of, a prohibited gift recipient during a financial year; and
(b) the gift is made by, or on behalf of, a corporation or close associate of the corporation (the donor); and
(c) the donor is a prohibited donor; and
(d) at the time the gift is made either:
(i) the amount or value of the gift is at least equal to the disclosure threshold; or
(ii) the cumulative amount or value of gifts made in the preceding 12‑month period are at least equal to the disclosure threshold.
Civil penalty
(2) A corporation or close associate of the corporation is liable to a civil penalty if the corporation or close associate contravenes subsection (1).
Civil penalty:
The higher of the following amounts:
(a) 200 penalty units;
(b) if there is sufficient evidence for the court to determine the amount or value, or an estimate of the amount or value, of the gift at the time the gift is made—3 times that amount or value.
Arrangements and approvals to be void
(3) An arrangement (within the meaning of the PGPA Act) that caused a corporation to become a prohibited donor under section 302BA is void if a corporation or a close associate of the corporation:
(a) contravenes subsection (1); and
(b) at the time the arrangement was entered into, the corporation or close associate was a prohibited donor.
(4) An approval, licence or permit (however described) that caused a corporation to become a prohibited donor under section 302BA is revoked if a corporation or a close associate of the corporation:
(a) contravenes subsection (1); and
(b) at the time the approval, licence or permit (however described) was given, the corporation or close associate was a prohibited donor.
(5) The amount or value of any relevant money or other CRF money paid to a corporation in contravention of subsections (3) and (4) may be recovered by the Commonwealth as a debt due to the Commonwealth by action in a court of competent jurisdiction.
302K Prohibiting an award of Commonwealth money after donation
(1) This section applies if:
(a) a gift is made to, or for the benefit of, a prohibited gift recipient during a financial year; and
(b) the gift is made by, or on behalf of, a corporation or close associate of the corporation; and
(c) at the time the gift is made either:
(i) the amount or value of the gift is at least equal to the disclosure threshold; or
(ii) the cumulative amount or value of gifts made in the preceding 12‑month period are at least equal to the disclosure threshold.
(2) A corporation must not make a submission, submit an application or enter into an arrangement (within the meaning of the PGPA Act) in relation to:
(a) a limited tender or open tender process in accordance with the Commonwealth Procurement Rules; or
(b) a standing offer, including the legal services panel, in accordance with the Commonwealth Procurement Rules; or
(c) a grant opportunity in accordance with Commonwealth Grants Rules and Guidelines; or
(d) an application for an approval, licence or permit (however described) under a prescribed law of the Commonwealth;
for a period of 12 months, commencing on the day the corporation or a close associate of the corporation made a gift.
(3) For the purposes of paragraph (2)(d), a prescribed law is:
(a) the Environment Protection and Biodiversity Conservation Act 1999; or
(b) a law of the Commonwealth prescribed by the Finance Minister, by legislative instrument, for the purposes of this paragraph.
Arrangements and approvals to be void
(4) An arrangement entered into in contravention of subsection (2) is void.
(5) An approval, licence or permit (however described) provided in contravention of subsection (2) is revoked.
(6) The amount or value of any relevant money or other CRF money paid to a corporation in contravention of subsection (2) may be recovered by the Commonwealth as a debt due to the Commonwealth by action in a court of competent jurisdiction.
302L Anti‑avoidance
(1) The Electoral Commissioner may give a person or entity (the relevant person) a written notice if:
(a) the relevant person, whether alone or together with one or more other persons or entities, enters into, begins to carry out or carries out a scheme; and
(b) there are reasonable grounds to conclude that the relevant person did so for the sole or dominant purpose of avoiding section 302J or 302K prohibiting, in particular circumstances:
(i) a gift being made to or for the benefit of a prohibited gift recipient by, or behalf of, a prohibited donor; or
(ii) a corporation making a submission, submitting an application or entering into an arrangement after a gift is made to or for the benefit of a prohibited gift recipient; and
(c) as a result of the scheme or part of the scheme:
(i) the prohibited donor engages in a course of conduct of giving the gift, and one or more other gifts, to or for the benefit of the prohibited gift recipient in those circumstances, where the amount or value of each of those gifts is below the amount specified in the provision but the total amount or value of the gifts is more than that amount; or
(ii) the making of the gift by the prohibited donor to, or for the benefit of, the prohibited gift recipient in those circumstances is otherwise facilitated; or
(iii) the making of the submission, the submitting of an application or the entering into an arrangement by a corporation in those circumstances is otherwise facilitated; and
(d) as a result of the scheme or part, the provision does not prohibit:
(i) the making, receipt, retention or use of the gift in those circumstances; or
(ii) the making of the submission, the submitting of an application or the entering into an arrangement in those circumstances.
Note 1: A decision to give a notice is a reviewable decision (see section 120).
Note 2: For the definition of scheme, see subsection 287(1).
(2) The notice must:
(a) specify the conduct constituting the scheme; and
(b) require the relevant person:
(i) not to enter into the scheme; or
(ii) not to begin to carry out the scheme; or
(iii) not to continue to carry out the scheme.
Offence
(3) A person or entity commits an offence if:
(a) the person or entity is given a notice under subsection (1); and
(b) the person or entity engages in conduct; and
(c) the conduct contravenes the notice.
Penalty: 200 penalty units.
Civil penalty
(4) A person or entity is liable to a civil penalty if:
(a) the person or entity is given a notice under subsection (1); and
(b) the person or entity engages in conduct; and
(c) the conduct contravenes the notice.
Civil penalty:
The higher of the following amounts:
(a) 200 penalty units;
(b) if there is sufficient evidence for the court to determine the amount or value, or an estimate of the amount or value, of the gift—3 times that amount or value.
7 Application of amendments
Sections 302J and 302K of the Commonwealth Electoral Act 1918, as inserted by this Schedule, apply in relation to gifts made on or after the commencement of this item.