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Commonwealth Electoral Amendment (Donations Reform) Bill 2014
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Schedule 1 Amendments »

   

Commonwealth Electoral Act 1918

1  After Division 5A of Part XX

Insert:

Division 5B Prohibited donations

314AH   Definitions

                   In this Division:

close associate of a corporation means each of the following:

                     (a)  a director or officer of the corporation or the spouse of such a director or officer;

                     (b)  a related body corporate of the corporation;

                     (c)  a person whose voting power in the corporation or a related body corporate of the corporation is greater than 20%, or the spouse of such a person;

                     (d)  if the corporation or a related body corporate of the corporation is a stapled entity in relation to a stapled security—the « other » stapled entity in relation to that stapled security;

                     (e)  if the corporation is a trustee, manager or responsible entity in relation to a trust—a person who holds more than 20% of the units in the trust (in the case of a unit trust) or is a beneficiary of the trust (in the case of a discretionary trust).

electoral expenditure has the same meaning as in Division 5.

gift has a meaning affected by subsections 314AJ(2), (3) « and » (4).

liquor or gambling industry business entity means:

                     (a)  a corporation engaged in a business undertaking that regularly involves either or both of the following, but only if it is for the ultimate purpose of making a profit:

                              (i)  the manufacture or sale of liquor products;

                             (ii)  wagering, betting or « other » gambling (including the manufacture of machines used primarily for that purpose); or

                     (b)  a person who is a close associate of a corporation referred to in paragraph (a).

mineral resources or fossil fuel extraction industry business entity means:

                     (a)  a corporation engaged in a business undertaking that regularly involves the exploration, prospecting, discovery, development or extraction of mineral resources or fossil fuels; or

                     (b)  a person who is a close associate of a corporation referred to in paragraph (a).

officer , in relation to a corporation, has the same meaning as in the « Corporations » Act 2001 .

political donation has the meaning given by section 314AJ.

prohibited donor means:

                     (a)  a « property » developer; or

                     (b)  a tobacco industry business entity; or

                     (c)  a liquor or gambling industry business entity; or

                     (d)  a mineral resources or fossil fuel extraction industry business entity; or

                     (e)  an industry representative organisation, if the majority of the organisation’s members are prohibited donors referred to in any of paragraphs (a) to (d).

« property » developer means:

                     (a)  a corporation engaged in a business that regularly involves the making of planning applications (however described) under State or Territory laws, by or on behalf of the corporation, in connection with the residential or commercial development of land, with the ultimate purpose of the sale or lease of the land for profit; or

                     (b)  a person who is a close associate of a corporation referred to in paragraph (a).

Any activity engaged in by a corporation for the dominant purpose of providing commercial premises at which the corporation or a related body corporate of the corporation will carry on business is to be disregarded for the purpose of determining whether the corporation is a « property » developer, unless that business involves the sale or leasing of a substantial part of the premises.

related body corporate has the same meaning as in the « Corporations » Act 2001 .

spouse of a person includes a de facto partner of that person.

Note:          For de facto partner , see section 21 of the Acts Interpretation Act 1901 .

stapled entity means an entity the interests in which are traded along with the interests in another entity as stapled « securities » « and » (in the case of a stapled entity that is a trust) includes any trustee, manager or responsible entity in relation to the trust.

tobacco industry business entity means:

                     (a)  a corporation engaged in a business undertaking that regularly involves the manufacture or sale of tobacco products; or

                     (b)  a person who is a close associate of a corporation referred to in paragraph (a).

voting power has the same meaning as in the « Corporations » Act 2001 .

314AJ  Meaning of political donation

             (1)  For the purposes of this Division, a political donation is:

                     (a)  a gift made to or for the benefit of a political party or a State branch of a political party; or

                     (b)  a gift made to or for the benefit of a member of the Commonwealth Parliament; or

                     (c)  a gift made to or for the benefit of a candidate (including a member of a group); or

                     (d)  a gift made to or for the benefit of an associated entity of a registered political party; or

                     (e)  a gift made to or for the benefit of an entity or « other » person (not being a party, elected member, group or candidate), the whole or part of which was used or is intended to be used by the entity or person:

                              (i)  to enable the entity or person to make, directly or indirectly, a political donation or to incur electoral expenditure in relation to an election; or

                             (ii)  to reimburse the entity or person for making, directly or indirectly, a political donation or incurring electoral expenditure in relation to an election; or

                      (f)  a loan:

                              (i)  that, if it had been a gift, would have been a political donation under this section; « and »

                             (ii)  that was not made by a financial institution (within the meaning of section 306A).

             (2)  An amount paid by a person as a contribution, entry fee or « other » payment to entitle that or any « other » person to participate in or otherwise obtain any benefit from a fund-raising venture or function is, if the amount forms part of the proceeds of the venture or function, taken to be a gift for the purposes of this Division.

             (3)  Despite paragraph (b) of the definition of gift in subsection 287(1), an annual or « other » subscription paid to a political party, to a State branch of a political party or to a division of a State branch of a political party by:

                     (a)  a member of the party, branch or division; or

                     (b)  a person or entity for affiliation with the party, branch or division;

is taken to be a gift to the party for the purposes of this Division, unless:

                     (c)  the subscription is paid by an individual as a member of the party or for the individual’s affiliation with the party, branch or division; « and »

                     (d)  the amount of the subscription paid during a financial year is less than $1,000.

             (4)  Uncharged interest on a loan to an entity or « other » person is taken to be a gift to the person for the purposes of this Division. For this purpose, uncharged interest is the additional amount that would have been payable by the person if:

                     (a)  the loan had been made on terms requiring the payment of interest at the generally prevailing interest rate for a loan of that kind; « and »

                     (b)  any interest payable had not been waived; « and »

                     (c)  any interest payments were not capitalised.

             (5)  The following are not political donations:

                     (a)  a gift to an individual that was made in a private capacity to the individual for his or her « personal » use « and » that the individual has not used, « and » does not intend to use, solely or substantially for a purpose related to an election or to his or her duties as an elected member;

                     (b)  a payment under Division 3 (election funding).

             (6)  However, if any part of a gift referred to in paragraph (5)(a) is subsequently used to incur electoral expenditure in relation to an election, that part of the gift is taken to be ( « and » to always have been) a political donation.

314AK   Political donations by prohibited donors unlawful

             (1)  It is unlawful for a prohibited donor to make a political donation.

             (2)  It is unlawful for a person to make a political donation on behalf of a prohibited donor.

             (3)  It is unlawful for a person to accept a political donation that was made (wholly or partly) by a prohibited donor or by a person on behalf of a prohibited donor.

             (4)  It is unlawful for a prohibited donor to solicit another person to make a political donation.

             (5)  It is unlawful for a person to solicit another person on behalf of a prohibited donor to make a political donation.

             (6)  If a person receives a gift that, under this section, it is unlawful for the person to receive, an amount equal to the amount or value of the gift is payable by that person to the Commonwealth « and » may be recovered by the Commonwealth as a debt due to the Commonwealth by action, in a court of competent jurisdiction, against:

                     (a)  in the case of a gift to or for the benefit of a political party or a State branch of a political party:

                              (i)  if the party or branch, as the case may be is a body corporate—the party or branch, as the case may be; or

                             (ii)  in any « other » case—the agent of the party or branch, as the case may be; or

                     (b)  in any « other » case—the candidate or a member of the group or the agent of the candidate or of the group, as the case may be.

314AL   Offences—political donations

             (1)  A person (the defendant ) commits an offence if:

                     (a)  the defendant is a prohibited donor; « and »

                     (b)  the defendant makes a gift; « and »

                     (c)  the gift is a political donation.

Penalty:  Imprisonment for 2 years or 800 penalty units, or both.

             (2)  A person (the defendant ) commits an offence if:

                     (a)  the defendant makes a gift on behalf of another person; « and »

                     (b)  the gift is a political donation; « and »

                     (c)  the « other » person is a prohibited donor.

Penalty:  Imprisonment for 2 years or 800 penalty units, or both.

             (3)  A person (the defendant ) commits an offence if:

                     (a)  the defendant accepts a gift; « and »

                     (b)  the gift is a political donation; « and »

                     (c)  the gift was given (wholly or partly) by, or by a person on behalf of, a prohibited donor.

Penalty:  Imprisonment for 2 years or 800 penalty units, or both.

             (4)  A person (the defendant ) commits an offence if:

                     (a)  the defendant is a prohibited donor; « and »

                     (b)  the defendant solicits another person to make a gift; « and »

                     (c)  the gift is, or would be, a political donation.

Penalty:  Imprisonment for 2 years or 800 penalty units, or both.

             (5)  A person (the defendant ) commits an offence if:

                     (a)  the defendant solicits another person to make a gift; « and »

                     (b)  the defendant does so on behalf of another person (the donor ); « and »

                     (c)  the donor is a prohibited donor; « and »

                     (d)  the gift is, or would be, a political donation.

Penalty:  Imprisonment for 2 years or 800 penalty units, or both.

Fault element

             (6)  The fault element for the following paragraphs is knowledge by the defendant:

                     (a)  paragraphs (1)(a) « and » (c);

                     (b)  paragraphs (2)(b) « and » (c);

                     (c)  paragraphs (3)(b) « and » (c);

                     (d)  paragraphs (4)(a) « and » (c);

                     (e)  paragraphs (5)(c) « and » (d).

314AM   Offence—scheme to circumvent prohibitions

             (1)  A person commits an offence if the person enters into or carries out a scheme (whether alone or with others) for the purpose of circumventing a prohibition or requirement of this Division.

Penalty:  Imprisonment for 10 years.

             (2)  It does not matter whether the person also enters into or carries out the scheme for « other » purposes.

             (3)  In this section:

scheme includes an arrangement, an understanding or a course of conduct.

314AN   Electoral Commission may determine that a person is presumed not to be a prohibited donor

             (1)  The Electoral Commission may determine, in writing, that a person (the donor ) is presumed not to be a prohibited donor for the purposes of this Division if:

                     (a)  a donor or another person (the applicant ) applies to the Commission for the determination to be made; « and »

                     (b)  the Commission is satisfied that it is more likely than not that the donor is not a prohibited donor.

             (2)  The Electoral Commission is to decide whether or not to make a determination under subsection (1) solely on the basis of information provided by the applicant.

             (3)  A determination under subsection (1) remains in force for 12 months after it is made, unless it is revoked earlier.

             (4)  The Electoral Commission may, by written notice to the applicant, revoke a determination under subsection (1) if the Commission is no longer satisfied of the matter in paragraph (1)(b). Subsection (2) does not apply to a decision of whether or not to revoke a determination under this subsection.

Effect of presumption

             (5)  If a person is, under a determination made under subsection (1), presumed not to be a prohibited donor, then sections 314AK, 314AL « and » 314AM do not apply in relation to a gift made by or on behalf of the person.

             (6)  However, subsection (5) does not apply to a person who knows that information provided to the Electoral Commission in connection with the making of the determination was false or misleading in a material particular.

             (7)  The onus of proving that a person is not presumed not to be a prohibited donor under a determination made under subsection (1) is born by:

                     (a)  in proceedings under section 314AK—the Commonwealth; or

                     (b)  in proceedings for an offence against section 314AL or 314AM—the prosecution.

Register of determinations

             (8)  The Electoral Commission must maintain, « and publish on the Commission’s website, a register of determinations made under subsection (1).

Determination is not a legislative instrument

             (9)  A determination made under subsection (1) is not a legislative instrument.

2  Subsection 315A(1)

Omit “or 306(5)”, substitute “, 306(5) or 314AK(6)”.