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4           Electoral Legislation Amendment (Miscellaneous Measures) Bill 2020

Order of the day read for the further consideration of the bill in committee of the whole.

 

 

 

In the committee

Consideration resumed of the bill, as amended.

The Leader of the Australian Greens in the Senate (Senator Waters) moved the following amendment:

Page 45 (after line 20), at the end of the bill, add:

Schedule 3 Banning dirty donations

Commonwealth Electoral Act 1918

1  Subsection 287(1) (definition of gift )

Repeal the definition, substitute:

gift has the meaning given by section 287AAA.

2  After section 287

Insert:

287AAA   Meaning of gift

   (1)  A gift includes the following:

                       (a)  any disposition of property made by a person to another person, being a disposition made without consideration in money or money’s worth or with inadequate consideration;

                      (b)  the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration;

                       (c)  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 fundraising venture or function if the amount forms part of the proceeds of the venture or function;

                      (d)  an annual or other subscription paid to a registered political party, to a State branch or a division of a State branch of a political party, unless the subscription is for membership of the registered political party and the amount paid is less than $1,000 per year;

                       (e)  an annual or other subscription paid to an associated entity, unless the subscription is for membership of the associated entity and the amount paid is less than $1,000 per year;

                       (f)  an annual or other subscription paid to a political campaigner, unless the subscription is for membership of the entity and the amount paid is less than $1,000 per year;

                      (g)  uncharged interest on a loan to a political entity, being the additional amount that would have been payable by the political entity if:

                                     (i)  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

                                    (ii)  any interest payable had not been waived; and

                                   (iii)  any interest payments were not capitalised.

   (2)  Each of the following is taken not to be a gift:

                       (a)  a payment under Division 3;

                      (b)  any visit, experience or activity provided for the purposes of a political exchange program.

3  After Division 5A of Part XX

Insert:

Division 5B Prohibited donations

314AH   Simplified outline of this Division

This Division sets out the various types of business entities which are prohibited donors. It is unlawful for a prohibited donor to make a political donation. A political donation includes a gift or loan made to or for the benefit of a political entity, a member of the Commonwealth Parliament, an associated entity or a political campaigner.

Unlawful political donations may be recovered by the Commonwealth as a debt due to the Commonwealth.

314AI   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).

defence industry entity means:

                       (a)  a corporation engaged in a business undertaking that involves the development or provision of goods and services intended for the purposes of defence; or

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

electoral expenditure has the same meaning as in Division 5.

financial institution means:

                       (a)  an entity which carries on a business that consists of, or includes, the provision of financial services or financial products and which is:

                                     (i)  a bank ; or

                                    (ii)  a credit union ; or

                                   (iii)  a building societ y; or

                                   (iv)  any other entity registered under the Australian Financial Institutions Commission Codes as a special service provider; or

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

Note:    See section 111AZB of the Corporations Act 2001 for the Australian Financial Institutions Commission Codes.

liquor or gambling industry business entity means:

                       (a)  a corporation engaged in a business undertaking that 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 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 .

pharmaceutical entity means:

                       (a)  a corporation engaged in a business undertaking that involves any of the following activities for the ultimate purpose of making a profit:

                                     (i)  research into and testing of pharmaceutical products;

                                    (ii)  manufacture of pharmaceutical products;

                                   (iii)  sale, marketing or distribution of pharmaceutical products; or

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

political donation has the meaning given by section 314AJ.

prohibited donor means:

                       (a)  a property developer; or

                      (b)  a financial institution; or

                       (c)  a tobacco industry business entity; or

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

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

                       (f)  a defence industry entity; or

                      (g)  a pharmaceutical entity; or

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

property developer means:

                       (a)  a corporation engaged in a business that 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.

State branch includes a division of a State branch.

tobacco industry business entity means:

                       (a)  a corporation engaged in a business undertaking that involves the manufacture or sale of tobacco or inhaled nicotine 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 a political campaigner; or

                       (f)  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

                      (g)  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)  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).

   (3)  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 400 penalty unit s, 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 400 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 400 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 400 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 400 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).

Civil penalty

   (7)  A person is liable to a civil penalty in the person contravenes subsections (1) to (5).

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 of value, of the gift at the time the gift is made -3 times that amount or value.

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 2 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 writi ng, 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 .

Division 5C Capping donations

314AO   Simplified outline of this Division

This Division places a cap on political donations of $3,000 within a donation period. Political donations to the same registered political party, member of the Commonwealth Parliament, candidate (including a member of a group), political campaigner or associated entity are aggregated together for the purpose of calculating the donation cap.

Political donations are also attributed to the relevant registered political party for the purpose of aggregating political donations.

It is unlawful for a registered political party, member of the Commonwealth Parliament, candidate, group, associated entity or political campaigner to accept a political donation if the donation would exceed the donation cap individually or when aggregated with other relevant donations.

Unlawful political donations may be recovered by the Commonwealth as a debt due to the Commonwealth.

314AP   Definitions

          In this Division:

donation cap means $3,000.

donation period: the donation period begins on the day after the polling day for a general election and ends on the polling day of the next general election.

small contribution means an amount less than $50.

State branch includes a division of a State branch.

314AQ   Capping of political donations

          A political donation made to, or for the benefit of, any of the following:

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

                      (b)  a member of the Commonwealth Parliament;

                      (b)  a candidate (including a member of a group);

                       (c)  a political campaigner;

                      (d)  an associated entity;

must not exceed the donation cap for each donation period.

314AR   Aggregating political donations

   (1)  This section applies to the dollar amount mentioned in the definition of donation cap in section 314AP.

Aggregation of donations

   (2)  A political donation made by a donor of an amount equal to or less than the donation cap is to be treated as a political donation that exceeds the donation cap if that political donation and other separate political donations made by that donor within the donation period to the same:

                       (a)  registered political party; or

                      (b)  member of the Commonwealth Parliament; or

                       (c)  candidate (including a member of a group); or

                      (d)  political campaigner; or

                       (e)  associated entity;

would exceed the donation cap if aggregated together.

   (3)  For the avoidance of doubt, political donations made to the same person in their capacity as a member of the Commonwealth Parliament or in their capacity as a candidate in an election are to be aggregated for the purpose of calculating the donation cap.

Attribution of donations

   (4)  A political donation made to:

                       (a)  a member of the Commonwealth Parliament; or

                      (b)  a candidate (including a member of a group); or

                       (c)  a group that is endorsed by a registered political party; or

                      (d)  a State branch of a political party; or

                       (e)  an associated entity;

must also be included as a donation to the relevant registered political party for the purpose of aggregating political donations.

   (5)  A political donation to a candidate or a member of a group must also be included as a donation to the group for the purpose of aggregating political donations.

Excluded donations

   (6)  For the purpose of aggregating political donations, the following amounts are excluded from the calculation:

                       (a)  a gift that is accepted by an associated entity or political campaigner for a purpose that does not involve election expenditure;

                      (b)  any small contribution, unless the small contribution is made in contravention of section 314AM.

314AS   Exceeding donation cap unlawful

   (1)  Except as provided in this section, it is unlawful for a registered political party, member of the Commonwealth Parliament, candidate, group, associated entity or political campaigner to accept a political donation if:

                       (a)  the political donation; or

                      (b)  the political donation when aggregated in accordance with section 314AR;

would exceed the donation cap during a donation period.

   (2)  It is not unlawful for a registered political party, member of the Commonwealth Parliament, candidate, group, associated entity or political campaigner to accept a political donation if:

                       (a)  the political donation would exceed the donation cap only if aggregated with other political donations from the donor in the donation period; and

                      (b)  the registered political party, member of the Commonwealth Parliament, candidate, group, associated entity or political campaigner did not know and could not reasonably have known of the other political donation included in the aggregation; and

                       (c)  an amount equal to the amount by which the aggregated political donation exceeded the donation cap was returned by the recipient of the political donation to the donor within 5 business days of the recipient discovering the donation exceeded the donation cap.

   (3)  If a person receives a political donation that, under this section, it is unlawful for the person to receive, an amount equal to the amount or value of the political donation 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 political donation 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 the case of a political donation to or for the benefit of an associated entity or political campaigner:

                                     (i)  if the associated entity or political campaigner, as the case may be is a body corporate—the associated entity or political campaigner; or

                                    (ii)  in any other case—the agent of the associated entity or political campaigner, as the case may be; or

                       (c)  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.

4  Subsection 315A(1)

After “or subsection 301(3)”, insert “314AK(6) or 314AS(3)”.

Debate ensued.

Question—That the amendment be agreed to—put.

The committee divided—

AYES, 7

Senators—

Faruqi

Hanson-Young

McKim

Siewert*

Griff

Lambie

Patrick

 

 

 

NOES, 30

Senators—

Antic

Cormann

McGrath

Payne

Askew

Duniam

McLachlan

Polley*

Ayres

Farrell

McMahon

Pratt

Bilyk

Fawcett

Molan

Rennick

Bragg

Fierravanti-Wells

O’Neill

Scarr

Brockman

Henderson

O’Sullivan

Smith, Dean

Chandler

Hughes

Paterson

Van

Colbeck

Keneally

 

* Tellers

Question negatived.

Bill agreed to and reported with amendments.

 

 

 

On the motion of the Minister for Finance (Senator Cormann) the report from the committee was adopted.

Senator Cormann moved—That this bill be now read a third time.

Question put.

The Senate divided—

AYES, 30

Senators—

Antic

Cormann

Keneally

Paterson

Askew

Duniam

Lambie

Patrick

Ayres

Farrell

McGrath*

Payne

Bilyk

Fawcett

McLachlan

Rennick

Bragg

Fierravanti-Wells

McMahon

Scarr

Brockman

Gallagher

Molan

Smith, Dean

Chandler

Griff

O’Sullivan

Van

Colbeck

Henderson

 

 

 

NOES, 4

Senators—

Faruqi

Hanson-Young

McKim

Siewert*

* Tellers

Question agreed to.

Bill read a third time.