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Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016

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2013-2014-2015-2016

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES) BILL 2016

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Rhiannon)



COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES) BILL 2016

 

OUTLINE

 

The Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016 (the Bill) amends the funding and disclosure provisions of the Commonwealth Electoral Act 1918 (the Electoral Act).

 

The Bill contains provisions that will:

 

•          reduce the disclosure threshold from ‘more than $10,000’ (indexed to the Consumer Price Index annually) to $1,000 (non-indexed);

 

•          require people who make gifts at or above the threshold to candidates and members of groups during the election disclosure period to furnish a return within

8 weeks of polling day. Agents of candidates and groups have the same timeframe to furnish a return in relation to gifts received during the disclosure period;

 

•          require people who make gifts, agents of registered political parties, the financial controller of an associated entity, or people if they fall within the relevant provision, who have incurred political expenditure to furnish a return within

8 weeks after 31 December and 30 June each year;

 

•          prevent ‘donation splitting’ by ensuring that for the purposes of the $1,000 disclosure threshold, related political parties are treated as the one entity;

 

•          make unlawful the receipt of a gift of foreign property by political parties, candidates and members of a Senate group. It will also be unlawful in some situations for associated entities and people incurring political expenditure to receive a gift of foreign property;

 

•          extend the ban on anonymous gifts to encompass all anonymous gifts except where the gift is $50 or less and received at a ‘general public activity’ or a ‘private event’ as defined;

 

•          provide for the recovery of the financial value of gifts of foreign property that are not returned, anonymous gifts that are not returned and undisclosed gifts; and

 

•          introduce new offences and penalties related to these new measures and increase the penalties for existing offence provisions.

 

 

NOTES ON CLAUSES

Clause 1: Short Title

1.           This clause provides for the Act to be cited as the Commonwealth Electoral Amendment (Political Donations and Other Measures) Act 2016.

Clause 2: Commencement

2.           Sections 1 - 3 and Schedule 2 commence upon Royal Assent. Schedule 1 commences on 1 July 2016.

Clause 3 - Schedules

3.         Each Act specified in a Schedule to this Act is amended or repealed as is set out in the applicable items in the Schedule.  Any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendment of the Commonwealth Electoral Act 1918

Part 1 - Amendments

Commonwealth Electoral Act 1918

Items 1 and 2 - Subsection 4(1)

4.         Item 1 inserts a definition of related into section 4 of the Electoral Act. The definition is based on subsection 123(2) of the Electoral Act which is repealed by item 6. The concept of related parties is now relevant for Part XI and Part XX of the Electoral Act. In the application of this definition to Part XX of the Act, it applies so that the total value of the gifts made by donors to related parts of a political party will be subject to the $1,000 disclosure threshold.

 

5.         Item 2 inserts a definition of reporting period into section 4 of the Electoral Act. A definition of reporting period is required due to the amendments made by items 48, 69 to 72, 76, 78, 80 to 83, 86 to 90, 92, 93 and 96. The reporting period relies on the existing financial year reporting obligations and overlays the new six-monthly reporting obligations.

 

Items 3 and 4 - Subsection 17A(1)

 

6.         Item 3 omits ‘(1)’ from subsection 17A(1) which is necessary due to the repeal of subsection 17A(2) described below at item 5. Section 17 of the Electoral Act requires the Electoral Commission to publish various reports, including reports about the operation of Part XX of the Electoral Act. Section 17A provides that those reports must not contain certain particulars of information obtained from compliance with a notice to produce powers contained in subsection 316(2A).

 

7.         Item 4 extends the application of new section 17A so that it now also applies to additional categories of persons who are required to furnish returns under sections 305A, 305B, 314AEB and 314AEC, including persons acting on their behalf and their officers.

 

Item 5 - Subsection 17A(2)

 

8.         Item 5 repeals a redundant provision. Subsection 17A(2) of the Electoral Act contains a definition of prescribed person for the purposes of section 17A. However, section 17A is amended by item 4 to remove the reference to prescribed person making the definition of prescribed person at subsection 17A(2) redundant.

 

Item 6 - Subsection 123(2)

 

9.         This item repeals subsection 123(2) which provided for a definition of related parties only for the purposes of the registration of political parties in Part XI of the Electoral Act. The definition of related parties has been moved to subsection 4(1) by item 1 and applies to the whole Electoral Act.

 

Items 7-11 - Subsection 287(1)

 

10.       Item 7 inserts a definition of electoral expenditure into subsection 287(1) of the Electoral Act. This subsection defines many of the terms used in Part XX of the Electoral Act. The new definition sets out the categories of electoral expenditure that may be the subject of a claim for public election funding.

 

a.        Paragraph (a) of this definition is similar to the existing definition of electoral expenditure in subsection 308(1) of the Electoral Act that is used for the basis of the returns of electoral expenditure by candidates and groups under section 309. Expenditure may be incurred on the categories specified in paragraph (a) at any time, but the activity must take place during the election period. The ‘election period’ is defined by subsection 287(1) to be the period from the issue of a writ to the close of polling.

 

b.       Paragraphs (b) and (c) of this definition provide for additional categories of electoral expenditure that may be the subject of a claim for public election funding. These amendments include reasonable costs incurred for the rental of dedicated campaign premises, the hiring and payment of dedicated campaign staff, and office administration.

 

c.        To encourage transparency and to maintain the nexus between public election funding and legitimate campaign expenses, limitations are imposed on the categories of electoral expenditure set out in paragraphs (b) and (c). This is because unlike ‘How to Vote Cards’, for example, these new categories of electoral expenditure may be used for many more purposes than conducting an election campaign.

 

d.       The first limitation is that the expenditure must be incurred during the election period. In this way the relationship between election campaigning and these categories of electoral expenditure is made clearer.

 

                                i.             Dedicated campaign premises, are limited to any house, building or premises used for the primary purpose of conducting an election campaign. The rent of premises that were, for example, leased before the issue of a writ could come within the definition of electoral expenditure if the premises were leased for that primary purpose. Only rent that was incurred during the election period may be claimed.

 

                              ii.             The payment of dedicated campaign staff will be limited to those additional staff employed or contracted for the primary purpose of conducting an election campaign. Staff employed under the Members of Parliament (Staff) Act 1984 cannot be the subject of a claim for electoral expenditure.

 

                            iii.             General office administration will be limited to the purchase, lease, hire or hire-purchase of office equipment for the primary purpose of conducting an election campaign.

 

                            iv.             The costs of running and maintaining the equipment may also be claimed as electoral expenditure. To provide some level of administrative certainty and to prevent an endless variety of equipment being claimed, item 9 defines office equipment ’ to include telephones, faxes, computers, personal digital assistants, personal organisers, photocopiers and printers and other equipment that can be used for the purposes of communication.

 

e.        Travel, or accommodation in connection with travel, may also be the subject of a claim for electoral expenditure. This category is limited to the extent that the expenditure could reasonably be expected to have been incurred for the primary purpose of conducting an election campaign.

 

f.        Paragraphs (d) and (e) introduce provisions to clarify that if allowances, entitlements or benefits received by a Member of Parliament in his or her capacity as a member are used to meet electoral expenditure, then that electoral expenditure cannot be claimed for the purposes of public election funding. Allowances relating to remuneration are not covered by this provision so that a sitting member may use what could be thought of as his or her ‘salary’ to contribute to election campaigns.

 

11.       These provisions are intended to prevent ‘double dipping’. As sitting Members of Parliament may be able to meet some electoral expenditure by way of allowances, entitlements or benefits paid by the Commonwealth in some circumstances, it is not appropriate that this electoral expenditure is claimed for public election funding purposes. The amendment does not affect the legitimate use of these allowances, entitlements and benefits.

 

12.       Item 8 inserts into subsection 287(1) of the Electoral Act a reference to general public activity . The concept of general public activity is used to distinguish one of the two situations when a permitted anonymous gift may be received.

 

13.       Item 9 inserts a definition of office equipment into subsection 287(1) for the purposes of one of the categories of electoral expenditure that may be claimed. Office equipment is discussed under item 7.

 

14.       Items 10 and 11 insert into subsection 287(1) of the Electoral Act references to permitted anonymous gift and private event . A permitted anonymous gift described in Item 10 is an anonymous gift that is received in the circumstances set out in section 306AF. The concept of private event in Item 11 is used to distinguish one of two situations when a permitted anonymous gift may be received.

 

Item 12 - Subsection 287(2)

 

15.       This item repeals the existing subsection 287(2) of the Electoral Act and inserts a new subsection 287(2). The substance of the subsection has not changed. The new subsection 287(2) requires that a claim, return or thing that is required to be lodged under Part XX of the Electoral Act must be lodged at the principal office of the Electoral Commission in Canberra.

 

16.       This subsection makes it clear that compliance with the requirements of Part XX can only be met by lodging the claim, return or other thing with the Electoral Commission in Canberra. The lodging of such claims, returns and other things at a Divisional or State Office of the Electoral Commission will not satisfy the requirements of the Part.

 

Items 13 and 14 - Subsection 287(4) and After subsection 287(4A)

 

17.       These items insert a new subsection 287(4B) into the Electoral Act. This new subsection is similar to existing section 309 of the Electoral Act and makes it clear that electoral expenditure incurred by, or on behalf of, a division of a State branch of a political party is to be regarded as having been incurred by the State branch.

 

18.       This provision enables State branches of political parties to lodge returns and claims for public election funding based on the expenditure that has been incurred by their various divisions or by other persons who have the authority to incur expenditure on their behalf. This facilitates the lodging of a single claim from a State branch of a political party.

 

Item 15 - After subsection 287(6)

 

19.       This item makes it clear that subsection 287(6) does not apply to a political party that is a body corporate. New subsection 287(6A) operates so that the new concept of related parties in item 1 is not altered by the principles contained in the Corporations Act 2001 .

 

Item 16 - Subsection 287A(1)

 

20.       This item provides that subsection 287A(1) applies to the new requirements of

Division 4A dealing with the ban on the receipt of gifts of foreign property and the ban on anonymous gifts. Subsection 287A(1) now provides that Division 4, 4A, 5 and 5A apply as if the campaign committee of an endorsed candidate or endorsed group was a division of the relevant State branch of the political party that endorsed the candidate or members of the group.

 

Item 17 - At the end of Division 1 of Part XX

 

21.       This item inserts a new section 287C into the Electoral Act. New provisions in relation to gifts of foreign property, anonymous gifts or undisclosed gifts give the Commonwealth the power to recover the amount or value of certain unlawful gifts under several provisions. For example, a gift might be a gift of foreign property and also anonymous and so both would be recoverable by the Commonwealth. This item ensures that the Commonwealth may only recover the amount or value of the gift once.

 

Item 18 - Paragraph 292B(a)

 

22.       This item provides that section 292B(a) applies to the new Division 4A.

Section 292B(a) ensures that where an obligation is imposed on an agent of a political party or a State branch of the party, and there is no agent, the obligation rests on each member of the executive committee of the party or branch.

 

Item 19 - After section 303

 

23.       This item inserts a new section 303A into the Electoral Act to provide for the treatment of gifts of foreign property that are returned within six weeks after their receipt or, in the case of anonymous gifts, returned or the amount or value of the gift is paid to the Commonwealth within six weeks after receipt. Gifts that are returned in this period do not have to be disclosed for the purposes of Division 4 unless that gift was a gift of foreign property or an anonymous gift and it was $1,000 or more. The disclosure of information about attempts to make unlawful gifts to political parties and others involved in the political process is an important part of the transparency and accountability measures of this Bill.

 

Item 20 - Subsection 304(2)

 

24.       This item reduces the period in which a return must be made under this subsection from 15 weeks to 8 weeks. Subsection 304(2) provides for returns by agents of candidates and members of groups to be made disclosing, amongst other things, the total amount or value of all gifts received by the candidate or member during the disclosure period.

 

Item 21 - Subsection 304(2)

 

25.       Item 21 introduces a new disclosure requirement under subsection 304(2) of the

Electoral Act for the agents of candidates, including members of a group, to provide details of anonymous gifts received by candidates and members of a group during the disclosure period for the election.

Item 22 - Subsection 304(3)

 

26.       Item 22 reduces the period in which a return must be made under this subsection from 15 weeks to 8 weeks. Subsection 304(3) provides for returns by agents of groups to be made disclosing, amongst other things, the total amount or value of all gifts received by the group during the disclosure period

 

Item 23 - Subsection 304(3)

 

27.       Item 23 inserts a similar requirement into subsection 304(3) of the Electoral Act for agents of groups as that inserted by item 30 for the agents of candidates.

 

Item 24 - Subsection 304(4)

 

28.       With the amendments to subsections 304(2) and (3), it is no longer necessary to have subsection 304(4) apply to the whole section. This is especially the case as the details required to be disclosed in relation to anonymous gifts are set out at new paragraphs 304(2)(c) and 304(3)(c). Accordingly, item 24 amends subsection 304(4) of the Electoral Act so that it only applies to new paragraphs 304(2)(b) and 3(b).

 

Items 25 - 30 - Subparagraph 304(5)(b)(ii), Paragraph 304(5)(c), Subsection 304(5) (note), Paragraph 304(6)(b), Paragraph 304(6)(c) and Subsection 304(6) (note)

 

29.       These items amend the threshold at which an agent of a candidate or group is required to disclose a gift. A gift does not have to be disclosed under subsections 304(2) or (3) if it is less than $1,000. Previously, gifts of $10,000 (indexed under section 321A) or less did not have to be disclosed.

 

Item 31 - At the end of section 304

 

30.       This item inserts new subsections 304(9) and 304(10) to provide for nil returns under the section. These new subsections are essentially a relocation of existing section 307 with minor wording changes. Due to the creation of a new Division 4A, dealing with unlawful gifts and other gifts and loans, the section providing for nil returns is better placed with section 304.

 

Items 32 - 37 - Subparagraph 305A(1)(b)(ii), Subsection 305A(1) (note), Subparagraph 305A(1A)(b)(ii), Subsection 305A(1A) (note), Paragraph 305A(2)(b) and Subsection 305A(2) (note)

 

31.       These items amend the threshold at which gifts must be disclosed. A gift does not have to be disclosed under subparagraphs 305A(1)(b)(ii) and 305A(1A)(b)(ii), or paragraph 305A(2)(b) if the sum of the gifts is less than $1,000. Previously, gifts totaling $10,000 (indexed under section 321A) or less did not have to be disclosed. As the threshold figure is no longer indexed, following the repeal of section 321A, the corresponding notes are also repealed.

 

Item 38 - Paragraph 305A(3)(a)

 

32.       This item amends the time from 15 weeks to 8 weeks in which a return under section 305A must be provided to the Electoral Commission.

 

Item 39 - Subsections 305B(1) and (2)

 

33.       This item repeals subsections 305B(1) and (2) and substitutes new subsections 305B(1), (1A), (2), (2A) and (2B). These amendments allow for rules about related parties and changes to the reporting period for when returns must be made and the information that must be included in those returns.

 

Item 40 - Paragraph 305(3)(c)

 

34.       This item amends what is required to be disclosed by a person who made a gift to a political party. Due to the operation of the related party provisions in subsections 4(1) and 305B(1A), a donor is also required to furnish details of gifts made to all political parties, not just registered political parties. A political party is defined in subsection 4(1) to mean, in short, an organisation of which the object or activity is the promotion of the election of candidates endorsed by it to the Senate or House of Representatives.

 

Item 41 - Subsection 305B(3A)

 

35.       This item repeals existing subsection 305B(3A) and substitutes a new subsection 305B(3A) to clarify the operation of the provision and substitute the new threshold of ‘$1,000 or more’ in place of the references to ‘more than $10,000’ and ‘exceeds $10,000’. To prevent the use of intermediaries to avoid disclosure obligations under 305B(1), the provision also requires a donor to include in a return details of gifts which enable a person to make a gift to a political party to be disclosed. The intention of this new subsection is to ensure that donors are not able to use intermediaries to circumvent the operation of the new reporting obligations.

 

Item 42 - Section 306

 

36.       This item repeals section 306 and inserts a new Division 4A into the Electoral

Act made up of Subdivisions A, B and C. Subdivision A generally prohibits gifts of foreign property and is a new prohibition. Subdivision B generally prohibits anonymous gifts and is an extension of the existing prohibition in previous section 306. Subdivision C relates to other gifts and loans, and is essentially unchanged from existing provisions.

 

Division 4A - Rules about certain gifts and loans

 

Subdivision A - Gifts of foreign property

 

Section 306 - Interpretation

 

37.       New section 306 defines a number of words and terms for the purposes of Subdivision A. This interpretive section is required due to the new provisions dealing with gifts of foreign property which are specific to this subdivision.

 

a.        Section 306AA - Subdivision does not apply to gifts that are returned within 6 weeks

 

                                i.             This section clarifies that the subdivision does not apply to a gift that is returned within six weeks after its receipt. This provision ensures that if a person receives a gift of foreign property and returns it within six weeks, no offence or penalty would apply for the purposes of sections 306AC or 306AD.

 

b.       Section 306AB - Determining whether a gift or transfer is of Australian or foreign property

 

                                i.             Taking into account the definitions of Australian property and foreign property in section 306, subsection 306AB(1) defines what is Australian property, and what is foreign property, for the purposes of the Subdivision.

 

                              ii.             To ensure that Subdivision A is not avoided by using intermediaries, subsection 306AB(2) deems gifts of foreign property to include gifts made using foreign property where the original donor’s main purpose is to enable a person to make a gift to another person or entity. Similarly, subsection 306AB(3) deems certain transfers or gifts to be transfers or gifts of foreign property.

 

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

 

                                i.             Subsection 306AC(1) provides that it is unlawful for a registered political party, a State branch of a registered political party, a candidate or a member of a group to receive a gift of foreign property. It is also unlawful for a person to receive a gift acting on behalf of one of these political parties or persons.

 

                              ii.             For candidates and members of groups, the prohibition only applies during the candidacy or group period. These periods are defined in new section 306. The ‘candidacy period’ is the period from when a candidate announces that he or she will be a candidate in an election or when the person nominates as a candidate, and ending 30 days after polling day. The ‘group period’ is the period from the time when a request to be grouped is made under section 168 of the Electoral Act and ending 30 days after polling day.

 

                            iii.             Subsection 306AC(2) provides that if a person or entity receives a gift that is unlawful under subsection 306AC(1), an amount equal to the amount or value of the gift is payable to the Commonwealth. A table in subsection 306AC(2) sets out who is liable to pay the amount.

 

                            iv.             Subsection 306AC(3) provides that if, under subsection 306AC(2), an amount is payable to the Commonwealth by two or more persons, these persons are jointly and severally liable for payment of the amount. This means that while all persons are individually responsible for the debt, just one person may satisfy the debt by paying the amount.

 

                              v.             Subsection 306AC(4) provides that if the amount under subsection 306AC(2) is not paid, the Commonwealth may recover the amount as a debt due to the Commonwealth in a court of competent jurisdiction. The Commonwealth may take action against one person, or if two or more are liable, any one or more of those persons.

 

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

 

                                i.             Unlike section 306AC that places a prohibition on some people or entities simply receiving a gift of foreign property, section 306AD is directed towards the use of gifts of foreign property for political expenditure or the purpose behind such gifts. Political expenditure is defined in subsection 306(1) as expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

 

                              ii.             Subsection 306AD(1) provides that it is unlawful for a person to incur political expenditure when four circumstances apply. The first of these is that the person is not a candidate, a member of a group or an associated entity. These are excluded as separate provisions apply, including to persons who at any time have been a candidate or a member of a group. The second circumstance is that the foreign property enabled the person to incur the expenditure. The third is that the purpose of the person who made the gift was to enable the political expenditure. The fourth circumstance is that the recipient of the gift is required by section 314AEB to provide a return to the Electoral Commission setting out the details of the expenditure. Section 314AEB operates so that a person is not required to make a return unless the total amount of political expenditure incurred by the person during the reporting period was $1,000 or more.

 

                            iii.             Subsection 306AD(2) applies to persons who at any time have been a candidate or a member of a group. This subsection makes it unlawful for such a person to incur political expenditure if a gift of foreign property enabled the person to incur political expenditure and the main purpose of making the gift was to enable the recipient to incur political expenditure.

 

                            iv.             Subsection 306AD(3) applies to associated entities. An associated entity is defined in subsection 287(1) and generally means an entity that has a close relationship with a registered political party. This subsection makes it unlawful for an associated entity to receive a gift of foreign property if the main purpose of making the gift was to enable the associated entity to incur political expenditure.

 

                              v.             Some associated entities are bodies corporate and can receive gifts or incur political expenditure in their own right. To address situations where an associated entity is not a legal person, subsection 306AD(4) deems that a person receives the gift or incurs the expenditure on behalf of the entity.

 

                            vi.             Subsection 306AD(5) provides that if a person incurs an amount of political expenditure that is unlawful under subsections 306AD(1) or (2), an amount equal to the amount or value of the gift is payable to the Commonwealth. Subsection 306AD(7) provides that if the amount under subsection 306AD(5) is not paid, the Commonwealth may recover the amount from the person as a debt due to the Commonwealth in a court of competent jurisdiction.

 

                          vii.             In the situation where an associated entity receives a gift that under subsection 306AD(3) it is unlawful to receive, subsection 306AD(6) provides for two persons that might be liable to pay to the Commonwealth an amount equal to the amount or value of the gift. This caters for the possibility that the associated entity is not a legal person. Paragraph 306AD(6)(a) provides that if the associated entity is a body corporate or the trustee of a trust, the amount is payable by the associated entity. Paragraph 306AD(6)(b) provides that if the associated entity is not a body corporate, the amount is payable by the financial controller of the associated entity. The financial controller is defined in section 287 as the person responsible for maintaining the financial records of the entity.

 

                        viii.             Subsection 306AD(7) provides that if the amount under subsection 306AD(6) is not paid, the Commonwealth may recover the amount from the person as a debt due to the Commonwealth in a court of competent jurisdiction.

 

Subdivision B - Anonymous gifts

 

e.        Section 306AE - Interpretation

 

                                i.             New section 306AE defines a number of words and terms for the purposes of Subdivision B. This interpretive section is required due to the new provisions dealing with anonymous gifts which are specific to this subdivision.

 

f.        Section 306AF - Meaning of permitted anonymous gift 156.

 

                                i.             Subsections 306AF(1) and (4) define a permitted anonymous gift which is used in new section 306AH. A permitted anonymous gift  may only be received in two situations. The first of these is at a general public activity such as a fete, where people passing by might, for example, place a donation into a tin. The second situation is at a private event such as a trivia night, where attendees might donate small sums of money. At both general public activities and private events, a gift would not be a permitted anonymous gift  unless records specified at paragraphs 306AF(1)(c) and 306AF(4)(c) were kept of the activity or event.

 

                              ii.             For both general public activities and private events, paragraphs 306AF(1)(a) and (4)(a) provide that single donations of more than $50 may not be received. In addition, subsections 306AF(2) and (5) provide that collectors of gifts cannot knowingly receive more than $50 from the same person. A further requirement imposed upon private events by paragraph 306AF(4)(d) is the total amount of anonymous gifts collected may not be more than an amount calculated by multiplying $50 by the number of people who attended the event. If the total collected exceeds the amount calculated by this formula, the excess has to be returned or, if not possible or practicable to return the excess, it has to be paid to the Commonwealth. For greater administrative simplicity, subsection 306AF(7) limits the operation of the section to gifts of money.

 

g.       Section 306AG - Subdivision does not apply to gifts that are returned or paid to the Commonwealth within 6 weeks

 

                                i.             This section clarifies that the subdivision does not apply to a gift that is returned within six weeks after its receipt. This provision ensures that if a person receives an anonymous gift and returns it within six weeks, no offence or penalty would apply for the purposes of sections 306AH, 306AI or 306AJ. Where it is not possible or practicable to return the gift, the amount or value of the gift can be paid to the Commonwealth.

 

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

 

                                i.             Subsection 306AH(1) provides that it is unlawful for a registered political party, a State branch of a registered political party, a candidate or a member of a group to receive an anonymous gift that is not a permitted anonymous gift. It is also unlawful for a person to receive an anonymous gift acting on behalf of one of these political parties or persons.

 

                              ii.             For candidates and members of groups, the prohibition only applies during the candidacy or group period. These periods are defined in new section 306AE. The candidacy period is the period from when a candidate announces that he or she will be a candidate in an election or when the person nominates as a candidate, and ending 30 days after polling day. The group period is the period from the time when a request to be grouped is made under section 168 of the Electoral Act and ending 30 days after polling day.

 

                            iii.             Subsection 306AH(2) provides that if a person or entity receives a gift that is unlawful under subsection 306AG(1), an amount equal to the amount or value of the gift is payable to the Commonwealth. A table in subsection 306AH(2) sets out who is liable to pay the amount.

 

                            iv.             Subsection 306AH(3) provides that if, under subsection 306AH(2), an amount is payable to the Commonwealth by two or more persons, these persons are jointly and severally liable for payment of the amount. This means that while all persons are individually responsible for the debt, just one person may satisfy the debt by paying the amount.

 

                              v.             Subsection 306AH(4) provides that if the amount under subsection 306AH(2) is not paid, the Commonwealth may recover the amount as a debt due to the Commonwealth in a court of competent jurisdiction. The Commonwealth may take action against one person, or if two or more are liable, any one or more of those persons.

 

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

 

                                i.             Section 306AI seeks to prevent the use of intermediaries to avoid the prohibition in 306AH to receive an anonymous gift that is not a permitted anonymous gift . Similar to subsection 306AB(2) in relation to gifts of foreign property, subsection 306AI(1) provides that it is unlawful for a registered political party, State branch of a registered political party, a candidate or member of a group to receive a gift if an anonymous gift received by the donor (that is not a permitted anonymous gift) enabled the donor to make the gift.

 

                              ii.             Subsection 306AI(2) provides that if a person or entity receives a gift that is unlawful under subsection 306AI(1), an amount equal to the amount or value of the gift is payable to the Commonwealth. A table in subsection 306AI(2) sets out who is liable to pay the amount.

 

                            iii.             Subsection 306AI(3) provides that if, under subsection 306AI(2), an amount is payable to the Commonwealth by two or more persons, these persons are jointly and severally liable for payment of the amount. This means that while all persons are individually responsible for the debt, just one person may satisfy the debt by paying the amount.

 

                            iv.             Subsection 306AI(4) provides that if the amount under subsection 306AH(2) is not paid, the Commonwealth may recover the amount as a debt due to the Commonwealth in a court of competent jurisdiction. The Commonwealth may take action against one person, or if two or more are liable, any one or more of those persons.

 

 

 

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

 

                                i.             Unlike section 306AH that places a prohibition on some people or entities simply receiving an anonymous gift, section 306AJ is directed towards the use of anonymous gifts for political expenditure. Political expenditure is defined in subsection 306AE(1) as expenditure incurred for any of the purposes specified in paragraph 314AEB(1)(a).

 

                              ii.             Subsection 306AJ(1) provides that it is unlawful for a person to incur political expenditure when four circumstances apply. The first of these is that the person is not a candidate or a member of a group. These are excluded as separate provisions apply to persons who at any time have been a candidate or a member of a group. The second circumstance is that the anonymous gift received by the person enabled the person to incur the expenditure. The third is that the anonymous gift is not a permitted anonymous gift. The fourth is that the recipient of the gift is required by section 314AEB to provide a return to the Electoral Commission setting out the details of the expenditure. Section 314AEB operates so that a person is not required to make a return unless the total amount of political expenditure incurred by the person during the reporting period was $1,000 or more.

 

                            iii.             Subsection 306AJ(2) applies to persons who at any time have been a candidate or a member of a group. This subsection makes it unlawful for such a person to incur political expenditure if an anonymous gift (that is not a permitted anonymous gift) enabled the person to incur political expenditure.

 

                            iv.             Subsection 306AJ(3) provides that if a person incurs an amount of political expenditure that is unlawful under subsections 306AJ(1) or (2), an amount equal to the amount or value of the gift is payable to the Commonwealth. Subsection 306AJ(4) provides that if the amount under subsection 306AJ(3) is not paid, the Commonwealth may recover the amount from the person as a debt due to the Commonwealth in a court of competent jurisdiction.

 

Subdivision C - Other gifts and loans

 

Items 43 - 46 - Subsection 306A(1), Subsection 306A(1) (note), Subsection 306A(2) and Subsection 306A(2) (note)

 

38.       These items amend the threshold at which it becomes unlawful for a loan to be received unless it is disclosed. A loan is unlawful above the threshold of $1,000 unless details required by subsection 306A(3) of the loan are recorded. Previously, loans totaling $10,000 (indexed under section 321A) or less did not have to be disclosed. As the threshold figure is no longer indexed, following the repeal of section 321A, the notes are also repealed.

 

Items 47 and 48 - Paragraph 306B(a) and Section 306B (note 3)

 

39.       Item 47 amends the threshold at which a gift by a corporation that is wound up within a year of making the gift may be recovered by a liquidator from gifts exceeding $10,000 to a gift of $1,000 or more. As the threshold figure is no longer indexed, following the repeal of section 321A, the note is also repealed by item 48.

 

Item 49 - Section 307

 

40.       Section 307 provided for nil returns under Division 4. With the creation of new

Division 4A, and the fact that nil returns were only applicable to section 304, item 49 repeals existing section 307 as the substance of this section 307 has been relocated to subsections 304(9) and (10).

 

Item 50 - Section 308

 

41.       As the provisions relating to ‘electoral expenditure’ have now been placed in subsection 287(1), item 50 repeals section 308 as it is redundant.

 

Item 51 - Subsections 309(1A)

 

42.       Section 309 of the Electoral Act requires candidates and members of a Senate group that are not endorsed by the same registered political party to furnish a return to the Electoral Commission setting out details of all electoral expenditure in relation to an election. As item 7 expands the categories of electoral expenditure, without a consequential amendment to subsection 309(1A) of the Electoral Act, the provision would cover the four new categories of electoral expenditure. Accordingly, item 51 amends subsection 309(1A) of the Electoral Act to limit the provision to electoral expenditure specified at paragraph (a) of the definition in subsection 287(1).

 

Items 52 and 53 - Subsection 309(2)

 

43.       Item 52 reduces the period in which a return must be made under subsection 309(2) from 15 weeks to 8 weeks. Subsection 309(2) provides for returns by agents of candidates to be made disclosing details of all electoral expenditure incurred by or with the authority of the candidate.

 

44.       Item 53 will limit a return furnished under subsection 309(2) of the Electoral Act to details of electoral expenditure specified at paragraph (a) of the definition in subsection 287(1).

 

Items 54 and 55 - Subsection 309(3)

 

45.       Item 54 reduces the period in which a return must be made under subsection 309(3) from 15 weeks to 8 weeks. Subsection 309(3) provides for returns by agents of groups to be made disclosing details of all electoral expenditure incurred by or with the authority of members of the group.

 

46.       Item 55 will limit a return furnished under subsection 309(3) of the Electoral

Act to details of electoral expenditure specified at paragraph (a) of the definition in subsection 287(1).

 

Items 56 and 57 - Subsection 311A(2) and Subsection 311A(2) (note)

 

47.       Item 56 reduces the threshold from ‘$10,000 or less’ to ‘less than $1,000’ at which particulars of a payment by a Commonwealth Department in a financial year to advertising agencies, market research organisations, polling organisations, direct mail organisations and media advertising organisations must be included in the Department’s annual report. As the threshold figure is no longer indexed, following the repeal of section 321A, the note is also repealed by item 57.

 

Item 58 - Division 5A of Part XX (heading)

 

Division 5A - Returns for reporting periods by registered political parties and other persons

 

48.       The heading to Division 5A of Part XX refers to ‘annual returns’. This item amends the heading to Division 5A due to the amendments by the following items that change the requirement for annual returns to returns on a six-month and full financial year basis.

 

Item 59 - After section 314AA

 

49.       This item inserts a new section 314AAA into the Electoral Act to require the disclosure of gifts of foreign property and anonymous gifts that are returned or the amount or value of the gift is paid to the Commonwealth within six weeks after receipt. The disclosure of information about such gifts is an important part of the transparency and accountability measures of this Bill.

 

Item 60 - Subsection 314AB(1)

 

50.       This item amends the timeframe in which agents of registered political parties or agents of State branches of registered political parties must submit a return to the Electoral Commission setting out the total amount received and paid by the party and the total of outstanding debts. Previously, such a return had to be submitted within 16 weeks after the end of each financial year. The item amends the subsection so that a return must be furnished within 8 weeks after the end of each reporting period. ‘Reporting period’ is defined in subsection 4(1) to mean the first six months of a financial year or a full financial year.

 

Items 61 and 62 - Paragraph 314AB(1)(b) and Subsection 314AB(2)

 

51.       These items are consequential to the change from annual to six-monthly reporting and amend the terminology from ‘annual’ or ‘financial year’ to reporting period.

 

Items 63 and 64 - Subsection 314AC(1) and Subsection 314AC(1) (note)

 

52.       Item 63 amends both the reporting period and the threshold amount. Previously, particulars of all sums had to be included in a return if the party received more than $10,000 from one person or organisation during a financial year. The amendments made by the item will require particulars of all sums to be included in a return if the party received $1,000 or more from one person or organisation during a reporting period. As the threshold figure is no longer indexed, following the repeal of section 321A, the note is also repealed by item 64.

 

Item 65 - Subsection 314AC(2)

 

53.       By repealing subsection 314AC(2), this item requires all gifts to be included when calculating, for the purposes of 314AC(1), whether particulars of gifts must be disclosed. Existing subsection 314AC(2) provided that only particulars of gifts above $10,000 needed to be disclosed.

 

Item 66 - At the end of section 314AC

 

54.       Item 66 amends section 314AC of the Electoral Act to require registered political parties to include in the annual return furnished to the Electoral Commission specified details in relation to the receipt of anonymous gifts if a permitted anonymous gift was received during a reporting period.

 

Items 67 and 68 - Subsection 314AE(1) and Subsection 314AE(1) (note)

 

55.       Item 67 amends both the reporting period and the threshold amount. Previously, particulars of all sums had to be included in a return if a party had outstanding debts of more than $10,000 to a person or an organisation during a financial year. The amendments made by the item will require particulars of all sums to be included in a return if a party had outstanding debts of $1,000 or more during a reporting period. As the threshold figure is no longer indexed, following the repeal of section 321A, the note is also repealed by item 68.

 

Item 69 - Subsection 314AEA(1)

 

56.       This item is consequential to the change from annual to six-monthly reporting and amends the terminology from ‘financial year’ to reporting period in relation to returns by associated entities.

 

Item 70 - Subsection 314AEA(1)

 

57.       This item amends the timeframe in which the financial controller of an associated entity must submit a return to the Electoral Commission setting out the total amount received and paid by the associated entity and the total of outstanding debts. Previously, such a return had to be submitted within 16 weeks after the end of each financial year. This item amends the subsection so that a return must be furnished within 8 weeks after the end of each reporting period. ‘Reporting period’ is defined in subsection 4(1) to mean the first six months of a financial year or a full financial year.

 

Items 71 - 73 - Paragraph 314AEA(3)(d), Subsection 314AEB(1) and Paragraph 314AEB(1)(a)

 

58.       These items are consequential to the change from annual to six-monthly reporting and amend the terminology from ‘financial year’ and ‘year’ to ‘reporting period’ in relation to returns by associated entities and persons incurring political expenditure.

 

Items 74 and 75 - Paragraphs 314AEB(1)(b) and (c) and Subsection 314AEB(1) (note)

 

59.       Item 74 repeals paragraphs 314AEB(1)(b) and (c) and substitutes a new paragraph 314AEB(1)(b) that provides a return must be furnished to the Electoral  Commission if a total of $1,000 or more was incurred on the kinds of expenditure set out in paragraph 314AEB(1)(a). The previous threshold was ‘more than $10,000’. As the threshold figure is no longer indexed following the repeal of section 321A, the note is also repealed by item 75.

Item 76 - After subsection 314AEB(1)

 

60.       This item inserts new subsection 314AEB(1A) which essentially duplicates paragraph 314AEB(1)(c) that was repealed by item 74. The new subsection provides that subsection 314AEB(1) does not apply to expenditure incurred by a registered political party, a State branch of a registered political party, the Commonwealth, a member of the House of Representatives or the Senate, a candidate or a member of a group.

 

Item 77 - Subsection 314AEB(2)

 

61.       This item is consequential to the change from annual to six-monthly reporting and amends the terminology from ‘financial year’ to reporting period in relation to returns by persons incurring political expenditure.

 

Item 78 - Paragraph 314AEB(3)(a)

 

62.       This item amends the timeframe in which a return under 314AEB(1) must be provided to the Electoral Commission. Previously, such a return had to be submitted within 20 weeks after the end of the financial year. This item amends the subsection so that a return must be furnished within 8 weeks after the end of the reporting period. ‘Reporting period’ is defined in subsection 4(1) to mean the first six months of a financial year or a full financial year.

 

Items 79 and 80 - Subsection 314AEC(1) and Paragraphs 314AEC(1)(a) and (b)

 

63.       These items are consequential to the change from annual to six-monthly reporting and amend the terminology from ‘financial year’ and ‘year’ to reporting period in relation to returns detailing gifts that enabled political expenditure.

 

Items 81 - 83 - Paragraph 314AEC(1)(c), Subsection 314AEC(1) (note) and After subsection 314AEC(1)

 

64.       Item 81 repeals paragraph 314AEC(1)(c) which operated so that, if a person must provide a return to the Electoral Commission under section 314AEB, and the person received a gift of more than $10,000 which enabled the political expenditure, the person must also provide a return under section 314AEC. Item 81 substitutes a new paragraph 314AEC(1)(c) to provide that, if a person must provide a return to the Electoral Commission under section 314AEB, a person must also provide a return under section 314AEC if there is at least one major donor in relation to the person and the reporting period.

 

65.       A major donor is defined by new subsection 314AEC(1A), which is inserted by item 83. A major donor is a person who provides gifts totaling $1,000 or more in a reporting period. As the threshold figure is no longer indexed, following the repeal of section

321A, the note is repealed by item 82.

 

Items 84 and 85 - Subsection 314AEC(2) and Subsection 314AEC(2) (note)

 

66.       Item 84 is consequential to the change from annual to six-monthly reporting and amends the terminology from ‘financial year’ to reporting period in relation to returns by persons receiving gifts enabling political expenditure. Item 85 also amends subsection 314AEC(2) as a consequence of introducing the new $1,000 threshold. Rather than providing details of each gift of more than $10,000, the item amends 314AEC(2) to require that details of each gift made by a major donor in a reporting period are provided. A major donor is defined by new subsection 314AEC(1A).

 

67.       As the threshold figure is no longer indexed, following the repeal of section 321A, the note is repealed by item 85.

 

Item 86 - After subsection 314AEC(2)

 

68.       Item 86 provides for the disclosure of the receipt of anonymous gifts by persons incurring political expenditure. The details of the receipt of anonymous gifts will be disclosed in a two-step process. First, a person must have incurred electoral expenditure of a kind specified in paragraph 314AEB(1)(a) and that expenditure must be above the proposed $1,000 threshold. If that step is satisfied, a return under 314AEC must include specified details of permitted anonymous gifts if any permitted anonymous gifts were received during a reporting period.

 

Item 87 - Paragraph 314AEC(3)(a)

 

69.       This item amends the timeframe in which a return under 314AEC(1) must be provided to the Electoral Commission. Previously, such a return had to be submitted within 20 weeks after the end of the financial year. This item amends the subsection so that a return must be furnished within 8 weeks after the end of the reporting period. ‘Reporting period’ is defined in subsection 4(1) to mean the first six months of a financial year or a full financial year.

 

Item 88 - Subsection 314AEC(4)

 

70.       This item repeals subsection 314AEC(4) which is redundant following the amendments made to subsections 314AEC(1) and 314AEC(2). This is because details of all gifts made by a major donor are now required in the return.

 

Item 89 - Subsections 315(1) to (4)

 

71.       This item repeals subsections 315(1) to (4) and substitutes new offence and penalty provisions. The offence and penalty provisions of Part XX have generally not been revised since before 1983, with the penalties inadequate to reflect the level of public money involved. The penalty levels have been set to encourage appropriate transparency in the political process.

 

a.        Subsection 315(1)

 

                                i.             This subsection provides that a person commits an offence if the person is required to furnish a return under Division 4, 5 or 5A and the person fails to furnish the return by the time required by the applicable Division. The maximum penalty is 120 penalty units. Section 4AA of the Crimes Act 1914 currently provides that one penalty unit equates to $180.

 

                              ii.             While this offence is based on the previous offence in subsection 315(1), the repeal of subsection 315(1A) means that subsection 315(1) is no longer an offence of strict liability. This means that all elements of the offence have to be proven.

 

b.       Subsection 315(2)

 

                                i.             This subsection provides that a person commits an offence if the person is required to furnish a return under Division 4, 5 or 5A, the person furnishes a return which purports to be a return under the applicable Division and the return is incomplete. The maximum penalty is 120 penalty units.

 

                              ii.             While this offence is based on the previous offence in subsection 315(2), the repeal of subsection 315(2A) means that subsection 315(2) is no longer an offence of strict liability. This means that all elements of the offence have to be proven.

 

c.        Subsection 315(3)

 

                                i.             This subsection provides an interpretation of incomplete for the purposes of subsection 315(2). A return will be incomplete if it does not contain all the information that is required to be included in the return by the relevant Division, or by the approved form produced by the Electoral Commission that must be used for the return.

 

d.       Subsection 315(4)

 

                                i.             This subsection provides that a person commits an offence if the person is required by section 317 to retain records and the person fails to retain the records as required by that section. The maximum penalty is 120 penalty units.

 

                              ii.             This subsection is based upon repealed subsection 315(2), however it is now located in its own subsection rather than combined with the offence of furnishing an incomplete return. The offence of furnishing an incomplete return is located in subsection 315(2). The repeal of subsection 315(2A) by item 98 means that the failure to keep records is no longer an offence of strict liability. This means that all elements of the offence have to be proven.

 

a.             Subsection 315(4A)

 

                                                                                i.             This subsection provides that a person commits an offence if the person lodges a purported claim under Division 3 and the person knows that the claim is false or misleading in a material particular or the claim omits a matter or thing without which the claim is misleading in a material particular. The maximum penalty is imprisonment for 2 years or 240 penalty units, or both.

 

                                                                              ii.             This offence is based upon repealed subsections 315(3) and (4), however the penalty has been significantly increased to reflect the large amount of public money involved with claims under Division 3. The requirement for the person to have knowledge that the claim is false or misleading is a higher fault element than, for example, recklessness.

 

b. Subsection 315(4B)

 

                                                                                i.             This subsection provides that a person commits an offence if the person lodges a purported return under Division 4, 5 or 5A and the person knows that the return is false or misleading in a material particular or the claim omits a matter or thing without which the return is misleading in a material particular. The maximum penalty is imprisonment for 12 months or 120 penalty units, or both.

 

                                                                              ii.             This offence is based upon repealed subsections 315(3) and (4), however the penalty has been increased to reflect the importance of a transparent political process. The requirement for the person to have knowledge that the claim is false or misleading is a higher fault element than, for example, recklessness.

 

c.             Subsection 315(4C)

 

                                                                                i.             This subsection provides for a new offence of making a record that is required to be kept for the purposes of receiving a permitted anonymous gift that is false or misleading in a material particular. The maximum penalty for breaching this offence is imprisonment for 12 months or 120 penalty units, or both. The proposed penalty is the same as for the offence at subsection 315(4B).

 

Item 90 - Subsection 315(5)

 

72.       This amendment repeals references in subsection 315(5) to subsections 315(3) and (4) and inserts a reference to subsection 315(4A). This amendment is a consequence of new subsection 315(4A) dealing solely with claims under Division 3. Repealed subsections 315(3) and (4) both contained provisions dealing with Division 3 claims.

 

Item 91 - Subsection 315(6A) (penalty)

 

73.       As this provision relates to claims under Division 3, this amendment increases the penalty so that it is consistent with the offence under subsection 315(4A).

 

Item 92 - Subsection 315(7) (penalty)

 

74.       As this provision relates to returns under Division 4, 5 and 5A, this amendment increases the penalty so that it is consistent with the offence under subsection 315(4B).

 



 

Item 93 - After subsection 315(10)

 

75.       This item inserts new offences into section 315 to provide offences for the new provisions dealing with gifts of foreign property and anonymous gifts.

 

a.        Subsection 315(10A) provides for an offence when a gift of foreign property or an anonymous gift is received by specified legal entities. The maximum penalty is imprisonment for 12 months or 240 penalty units, or both.

 

b.       Subsection 315(10B) provides for an offence when a gift of foreign property or an anonymous gift is received by specified non-legal entities. The maximum penalty is imprisonment for 12 months or 240 penalty units, or both.

 

                                i.             As the gift is received by a non-legal entity, a table in subsection 315(10B) sets out who is liable for the offence if a particular entity receives the gift.

 

c.        As subsection 315(10B) deems a person or persons liable for an offence by a non-legal entity, subsection 315(10C) provides that a person does not commit an offence against subsection 315(10B) in two situations. These are if the person does not know of the circumstances because of which the receipt of the gift is unlawful, or the person takes all reasonable steps to avoid those circumstances occurring.

 

d.       Subsection 315(10D) provides for an offence when a person acting on behalf of a group receives specified unlawful gifts of foreign property or specified unlawful anonymous gifts. The maximum penalty is 12 months imprisonment or 240 penalty units, or both. Subsection 315(10A) excludes from its operation a person acting on behalf of a group as subsection 315(10D) specifically addresses such people.

 

e.        Subsection 315(10E) provides for an offence when a person incurs expenditure and the expenditure is unlawful because it was enabled by a specified unlawful gift of foreign property or specified unlawful anonymous gift. The maximum penalty is 12 months imprisonment or 240 penalty units, or both.

 

Item 94 - After section 315

 

76. This item inserts a new subsection 315AA to provide for the recovery of undisclosed gifts.

 

a.        Subsection 315AA(1) provides that an undisclosed gift is defined as a gift whose details should be included in a return under subsection 304(2) or (3), section 314AC, section 314AC as it applies for the purpose of section 314AEA, and section 314AEC, and the return was not furnished or the details of the gift were not included.

 

b.       Subsection 315AA(2) provides for a method of extending the period in which details may be provided, and if those details are provided before the end of the extension period, it is as if the details were provided in the return.

 

c.        Subsection 315AA(3) provides that for each disclosure provision specified in the table, an amount equal to the amount or value of the gift is payable to the Commonwealth by the person or persons specified in the table.

 

d.       Subsection 315AA(4) provides that if the amount under subsection 315AA(3) is not paid, the Commonwealth may recover the amount as a debt due to the Commonwealth in a court of competent jurisdiction.

 

Item 95 - Subsection 315A(1)

 

77.       This item repeals subsection 315A(1) and substitutes a new subsection which refers to recovery of amounts under Part XX, rather than the two previously specified subsections. This is because there are now several provisions in Part XX that provide for an amount to be recovered by the Commonwealth.

 

Item 96 - Subsections 316(2A) and (2B)

 

78.       This item repeals subsections 316(2A) and (2B) and substitutes a reworked provision that expands the range of persons or entities that may be asked to produce documents or appear to give evidence to determine compliance with Part XX or if something has been done that is unlawful under Part XX.

 

a.        New subsection 316(2AA) is based on repealed subsection 316(2A) and provides that a notice to a person is to be served personally or by post on the person.

 

b.       New subsection 316(2AB) clarifies that for the people identified at item 6 of the table in subsection 316(2A), compliance is not limited to that return or the period to which that return relates.

 

Item 97 - Subsection 316(2C)

 

81.       This item amends subsection 316(2C) to refer to a political party or branch due to the extension of 316(2A) to include State branches of registered political parties.

 

Items 98 - 100 - Subsection 316(5) (penalty), Subsection 316(5A) (penalty) and Subsections 316(5B) and (5C)

 

82.       Items 98 and 99 increase the penalties under subsections 316(5) and 316(5A) from $1,000 to imprisonment for 12 months or 60 penalty units, or both.

 

83.       Item 100 repeals subsection 316(5B) to remove strict liability from an offence against 316(5A). Item 100 also repeals subsection 316(5C) which provided that subsections 316(5) and (5A) do not apply if the person has a reasonable excuse. The Commonwealth Criminal Code will now govern the application of the offence provisions.

 

Item 101 - Subsection 316(6) (penalty)

 

84.       Consistent with the amendments to subsections 316(5) and (5A) as provided for by items 107 and 108 above, this item increases the penalty under subsection 316(6) from $1,000 or imprisonment for 6 months, or both, to imprisonment for 12 months or 60 penalty units, or both.

 



 

Item 102 - Subsection 319A(4)

 

85.       This item amends the existing powers in section 319A of the Electoral Act that deal with the amendment of claims and returns. The proposed amendment makes it clear that it is only the final claim for public election funding that can be amended under section 319A, as the final claim itself is able to vary the interim claim for public election funding.

99. This amendment makes it clear that it is only the final claim for public election funding that can be amended under section 319A as the final claim itself is able to vary the interim claim for public election funding (see subsection 297(4)).

 

Item 103 - Subsection 319A(9)

 

86.       This item corrects the references to the relevant offences in section 315 due to the new offence provisions inserted in that section.

 

Item 104 - Subsections 320(4) and (5)

 

87.       This item amends subsections 320(4) and (5) to provide that a claim or return may be available for inspection or perusal as soon as practicable after it is lodged. It is anticipated that advances in technology might enable claims or returns to be available sooner than the current fixed time of 24 weeks after polling day for Division 4 or Division 5 claims (with the exception on section 305B) or February in the calendar year after the return is furnished under Division 5A or section 305B.

 

Item 105 - Section 321A

 

88.       Section 321A provided for the indexation of the previous threshold of ‘more than $10,000’. This item repeals section 321A as the threshold amount of $1,000 for

Part XX is no longer indexed.

 

Item 106 - Section 384

 

89.       This item repeals section 384 which specified two offences as indictable offences and provided that a court of summary jurisdiction may determine the matter in specified circumstances. By repealing section 384, sections 4G, 4H, 4J and 4JA of the Crimes Act 1914 will provide for indictable offence proceedings.

 

Part 2 - Application and savings provisions

 

Item 107 - Amendments applying to reporting periods starting on or after 1 July 2016

 

90.       This item specifies that items 39-41 and 60-88 of this Bill apply on, or after, 1 July 2016.

 

Item 108 - Amendments applying to financial years starting on or after 1 July 2016

 

91.       The amendments in items 56 and 57 apply to financial years that start on or after July 2016.

 



 

Item 109 - Amendments applying to elections the writs for which are issued on or after 1 July 2016

 

92.       This item sets out that items 7, 9, 12, 14, 20-38, 50-55, and 102 will apply for elections held after 1 July 2016.

 

Item 110 - Amendments applying to gifts etc. made on or after 1 July 2016

 

93.       Sets out that items 8, 10, 11, 19, 42-48 and 59 apply on or after 1 July 2016, including gifts made before 1 July 2016 for anonymous gifts.

 

Item 111 - Amendments applying to acts or omissions occurring on or after 1 July 2016

 

94.       This item sets out that the provisions of items 89-93, 98-101, 103 and 106 apply for acts and omissions that occur on or after commencement of the Bill on 1 July 2016.

 

Item 112 - Amendment applying to returns a person becomes required to furnish on or after 1 July 2016

 

95.       This item sets out that the provisions of Item 94 relating to recovery of undisclosed gifts come into effect on or after 1 July 2016.

 

Item 113 - Saving of notices under subsection 316(2A)

 

96.       This item ensures that a notice given before 1 July 2016 under subsection 316(2A) as then in force has effect after that commencement as if it had been given under that subsection as amended by item 96.

 

Schedule 2—Amendments relating to misleading or deceptive publication

 

Item 1 - Subsection 329(1)

 

97.       This item provides for the specific circumstances under which a person is considered to have committed an offence in relation to misleading and deceptive publications.

 

Item 2 - Subsection 329(5)

 

98.       This item sets out what can be considered a defence in a court of law under the prosecution of a person against subsection 329(4).

 

Item 3 - Subsection 329(6)

 

99.       This item repeals the existing subsection 329(6), and inserts a new subsection that includes additional definitions of advertiser and electoral advertisement , as well as publish .

 

Item 4 - At the end of section 329

 

100.     Item 329(7) (a) and (b) provide for the Electoral Commissioner to request advertisers to withdraw advertisements and publish retractions for misleading statements. Item 329(8) provides for courts to take into account the advertiser’s response to requests under Item 329(a) and (b) during court proceedings for an offence under this schedule. Item 329(9) sets out the orders available to the court if they find an advertiser guilty of an offence under Subsection 329 of the Act. Item 329(10) sets out additional documents that can be considered as evidence in such cases.

 

Item 5 - Application of amendments

 

101.     This item sets out that the amendments in this schedule apply for elections which are issued on or after 1 July 2016.

 

 



 

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

 

Overview of the Bill

The Commonwealth Electoral Amendment (Political Donations and Other Measures) Bill 2016 amends the disclosure and advertising provisions of the Commonwealth Electoral Act 1918 . It contains provisions that will reduce the donations disclosure threshold, prevent donation splitting, make foreign donations unlawful, and extend the ban on anonymous donations to all gifts and donations over $50. It also introduces new offences and penalties for failure to comply with the Act, and sets out additional requirements relating to truth in political advertising.

 

Human rights implications

This Bill engages the right to take part in public affairs and elections, as contained in article 25 of the International Covenant on Civil and Political Rights.

 

The Bill enforces this right by creating greater transparency within our electoral donations system, enabling voters to gain greater insight into those individuals and corporations that donate and influence political parties.

 

In addition, the Bill, through making unlawful the receipt of foreign gifts by political parties, creates greater integrity in our electoral system, reducing influence of foreign funding on Australian political parties. This enhances representative democracy by creating a level playing field.

 

The Bill also enhances and protects the public interest by creating more stringent requirements for truth in political advertising, and does not unduly limit freedom of speech.

 

 

Conclusion

 

The Bill is compatible with human rights as it seeks to strengthen and enforce the right to take part in public affairs and elections by improving the current electoral donations system.

 

 

 

Senator Rhiannon