Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021

Bill home page  


Download WordDownload Word


Download PDFDownload PDF

2019-2020-2021

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE EQUALITY) BILL 2021

                                                                                                               

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of Special Minister of State,

the Hon Ben Morton MP)

 



The following abbreviations and acronyms are used throughout this Explanatory Memorandum:

Abbreviation

Definition

AEC

Australian Electoral Commission

Bill

Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021

Candidate

An individual seeking nomination in an election as a Senator or as a member of the House of Representatives

Electoral Act

Commonwealth Electoral Act 1918

Federal purpose

The purpose of incurring electoral expenditure, or creating or communicating electoral matter, as defined in section 287 of the Electoral Act

Group

A group is taken to begin to be a group in an election for the Senate on the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election

Item

Refers to an item in the Bill

ICCPR

 

International Covenant on Civil and Political Rights

Regulatory Powers Act

Regulatory Powers (Standard Provisions) Act 2014

 

 



 

ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE EQUALITY) BILL 2021

GENERAL OUTLINE

The Bill amends the Electoral Act to harmonise the application of the financial disclosure and foreign donations framework to more closely align the ongoing disclosure obligations of elected representatives with those of candidates seeking election.

The Bill will:

·          extend the application of the existing foreign donations framework to current sitting members of the House of Representatives and Senators from the period in which they have formally announced their intention to seek re-election, to the full length of their parliamentary term;

·          require parliamentarians who receive gifts for a federal purpose directly - that is, for the purpose of incurring electoral expenditure, or creating or communicating electoral matter - to lodge an annual return to the AEC relating to gifts received for a federal purpose during the financial year; and

·          extend the period for which a person is taken to be a candidate by an additional six months, for the purpose of the disclosure period for candidate and Senate group returns, and for restrictions on receiving foreign donations.

These proposals build on the reforms to the Electoral Act introduced by the Government in recent years to increase transparency regarding gifts to political parties, candidates, political campaigners and third parties, that are intended to preclude foreign donations from influencing the outcome of Australian federal elections.

The amendments keep pace with changes in existing practices, closing a loophole available to parliamentarians who collect donations for federal purposes directly, without disclosing the collected funds. The amendments increase transparency and reduce the opportunity for donations to be made to some parliamentarians at a different standard of public scrutiny compared to the requirements that apply for political parties.

FINANCIAL IMPACT STATEMENT

The measures in the Bill are expected to be cost neutral. There are no significant costs or savings associated with the Bill.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A Statement of Compatibility with Human Rights has been completed in relation to the amendments in this Bill. The amendments have been assessed as compatible with Australia’s human rights obligations.



 

Statement of Compatibility with Human Rights

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

Electoral Legislation Amendment (Annual Disclosure Equality) Bill 2021

The 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 .

Human rights implications

The impact of the Bill on the following rights of the ICCPR has been considered:

·          the right to privacy under Article 17; and

·          the right to political participation under Article 25.

Article 17 - right of citizens to take part in public affairs and elections

Annual returns and extended disclosure periods

1.       The Bill engages the right to privacy under Article 17 of the ICCPR because it requires members of the House of Representatives and Senators to lodge annual returns if they receive donations for a federal purpose directly and extends the disclosure period for candidate and group election returns. These returns will be published on the AEC’s Transparency Register.

2.       Disclosure is required in a limited regulatory context, and only those who receive donations directly, for a federal purpose will be required to provide a return. Consistent with the current obligations of candidates, these returns will only need to include gifts given to members of the House of Representatives and Senators for a federal purpose.

3.       The right to privacy is subject to permissible limitations where these limitations are authorised by law and not arbitrary, for a reason consistent with the ICCPR and reasonable in the particular circumstances. The United Nations Human Rights Committee has interpreted the requirement of reasonableness to imply that any interference with privacy must be proportionate to the end sought, and necessary in the circumstances of any given case.

4.       The measures in this Bill further harmonise the disclosure requirements for political actors. Elected parliamentarians are familiar with the obligation to furnish disclosure returns to the AEC, due to the longstanding obligation of candidates to submit returns following each election. It will promote the rights of citizens to participate meaningfully in elections by providing greater transparency about actors seeking to influence political and electoral outcomes.

5.       The extended disclosure period for candidate and group returns does not change existing requirements in relation to the information that must be disclosed, rather it extends the period of time covered by the disclosure period to increase transparency of donations made to candidates. This also promotes the rights of citizens to participate meaningfully in elections by providing greater transparency about actors seeking to influence electoral outcomes, regardless of whether amounts are received by a political party or by a parliamentarian directly.

6.       Individuals whose privacy is impacted have freely chosen to play a prominent role in public debate and put themselves, or those they represent, forward for election to public office. It is a reasonable assumption that where parliamentarians collect donations for the purpose of seeking re-election, or otherwise seeking to influence the outcome of a federal election, that these donations should be disclosed on an annual basis similar to the standards that apply to political parties.

7.       The amendments in this Bill are therefore appropriate and proportionate to the end sought, and necessary to provide the public with access to this disclosure information. The limitation is therefore consistent with Article 17 of the ICCPR.

Article 25 - right of citizens to take part in public affairs and elections

Restrictions on foreign donations

8.       The Bill engages the right of citizens to take part in public affairs and elections under Article 25 of the ICCPR because it prevents members of the House of Representatives and Senators from receiving foreign donations, and extends the period for which candidates in an election are restricted from receiving foreign donations.

9.       This right may be subject to permissible limitations, where these limitations are provided by law and necessary for public order or respect of the rights or reputations of others. Limitations must also have a legitimate objective, be reasonable and necessary to achieve the desired purpose, and be proportionate to the need on which the limitation is predicated.

10.   Foreign-sourced political funds amount to undue influence in a domestic political debate, both during an election and during the term of a sitting Parliament. Therefore it is appropriate to require political donors to have a meaningful connection to Australia, and to make it unlawful to knowingly retain or use foreign donations to finance political expenditure in Australia.

11.   The offences are necessary for protecting public order. Public order encompasses the rules which ensure the peaceful and effective functioning of society, or the set of fundamental principles on which society is founded. Accepting foreign donations creates a conflict of interest, or the perception thereof, among key figures in electoral debate and campaigning and can therefore undermine democracy. Elections serve not only to select the winner but also to convince the unsuccessful candidates and their supporters that they lost fairly. Therefore perceptions of fairness, integrity and accuracy are important for elections to result in peaceful transitions of power in democracies.

12.   Additionally, the disclosure provisions serve a genuine public interest by protecting free, fair and informed voting, which is essential to Australia’s system of representative government, enhancing the transparency of the electoral system, and protecting national security. The requirement for expenditure and gifts that meet the relevant disclosure requirements to be made a matter of public record and open to public inspection serves the public interest. As such, the civil penalties contemplated by the Bill are necessary to ensure compliance with the disclosure provisions.

13.   The right to take part in public affairs by donating to key political actors must be balanced against the need for transparency and accountability in the political system and the overarching importance of public confidence in, and the integrity of, political institutions and the democratic system.

14.   The limitation is therefore consistent with Article 25 of the ICCPR.

Conclusion

The Bill is compatible with human rights because, to the extent it may limit human rights, those limitations are reasonable, necessary and proportionate.

ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE EQUALITY) BILL 2021

NOTES ON CLAUSES

Clause 1 - Short title

1.              Clause 1 is a formal provision specifying the title of the Bill when enacted will be the Electoral Legislation Amendment (Annual Disclosure Equality) Act 2021 .

Clause 2 - Commencement

2.              Subclause 2(1) provides that the provisions in column 1 of the Commencement table commence at the time set out in column 2.

3.              Item 1 in the Commencement table provides that the whole of the Act commences on the day after the Act receives the Royal Assent.

4.              A note is inserted below the Commencement table stating that the table relates only to the provisions of the Act as originally enacted and that the table will not be amended to deal with any later amendments of the Act.

5.              Subclause 2(2) provides that information in column 3 of the Commencement table is not part of the Act. Information may be inserted into column 3, or information in column 3 may be edited, in any published version of the Act.

Clause 3 - Schedules

6.              Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.

 



 

Schedule 1 - Amendments

Commonwealth Electoral Act 1918

1.              Part XX of the Electoral Act provides for the funding of registered political parties, candidates and Senate groups. It also deals with the financial disclosure obligations relating to electoral expenditure incurred by individuals and entities involved in the communication or creation of electoral matter.

2.              The AEC is an independent statutory authority, established under the Electoral Act. The AEC has published a range of guidance documents relating to funding and disclosure under Part XX of the Electoral Act, which may also assist the reader of the Explanatory Memorandum. These publications are available at www.aec.gov.au .

Part 1—Prohibiting foreign donations

3.              The Electoral Act currently prohibits political parties, candidates, Senate groups and political campaigners from receiving gifts of $1,000 or more from a foreign donor and restricts them from receiving gifts of $100 or over from a foreign donor when the gift is intended to be used to incur electoral expenditure or to create or communicate electoral matter. Part 1 of the Bill amends the Electoral Act to include members of the House of Representatives and Senators within these provisions.

4.              Items 1, 2 and 3 amend section 286A, which is the simplified outline of Part XX, Division 1 of the Electoral Act relating to election funding and disclosure. These amendments apply the requirements of receipt and disclosure of gifts from foreign donors to members of the House of Representatives and Senators.

5.              Item 1 inserts “members of the House of Representatives, Senators,” after “Generally, gifts of at least $1,000 to”.

6.              Item 2 inserts “members of the House of Representatives, Senators,” after “Broadly, gifts to”.

7.              Item 3 inserts ‘‘members of the House of Representatives, Senators,” before “registered political parties, State branches and political campaigners”.

8.              Items 4, 5 and 6 amend section 302A, which is the simplified outline of Division 3A, to extend the application of the existing foreign donations framework to current sitting members of the House of Representatives and Senators. This extension provides that members of the House of Representatives and Senators are to comply with the framework in the same manner as registered political parties, candidates, groups, political campaigners and third parties.

9.              Item 4 inserts “members of the House of Representatives, Senators,” in the first paragraph of the section after “This Division regulates gifts that are made to”.  

10.          Item 5 omits “Gifts of over $1,000 to”, and substitutes “Gifts of at least $1,000 to members of the House of Representatives, Senators,”.

11.          Item 6 inserts “member of the House of Representatives, Senator,” after “Broadly, gifts must not be made to a”.

12.          Section 302D outlines the conditions for the offence provision relating to donations to registered political parties, candidates, Senate groups and political campaigners by foreign donors. Items 7, 8, 9, 10 and 11 insert references to members of the House of Representatives and Senators throughout section 302D to ensure they are included in all relevant provisions of the foreign donations regulatory framework.

13.          Item 7 amends the heading in section 302D by inser ting “members of the House of Representatives, Senators,” after “Donations to”.

14.          Item 8 inserts new subparagraph 302D(1)(a)(ia). This provides that members of the House of Representatives and Senators are ‘gift recipients’ for the purposes of section 302D.

15.          Items 9, 10 and 11 are consequential amendments to include members of the House of Representatives and Senators in the ‘exception—obtaining information about foreign donor status’ provisions of existing subsection 302D(1A).

16.          Items 12 and 13 amend subsection 302F(1) to extend subsection 302F(1) to members of the House of Representatives and Senators. 

17.          Item 14 inserts new subparagraph 302F(2)(c)(ia) to include members of the House of Representatives and Senators in the scope of subsection 302F(2) , which sets out the elements of an offence by a foreign donor under this subsection. 

18.          It is an offence under existing section 302H to establish arrangements to avoid the foreign donations restrictions in sections 302D, 302E and 302F.  

19.          Items 15, 16 and 17 amend subparagraphs 302H(1)(b)(i), 302H(1)(b)(ii), 302H(1)(c)(i) and 302H(1)(c)(iii) to include members of the House of Representatives and Senators in the scope of the anti-avoidance provision set out in section 302H. Section 302H provides the Electoral Commissioner with the power to issue notices where there are reasonable grounds to conclude that person has entered into a scheme to avoid the restrictions on receiving foreign donations set out under sections  302D, 302E or 302F.

20.          Items 18, 19 and 20 amend subsection 316(2A) of the Electoral Act to apply the Electoral Commission’s powers to investigate compliance with the funding and disclosure requirements under Part XX of the Electoral Act to the obligations created by the amendments in this Bill.

21.          Item 18 inserts new subparagraph 316(2A)(aaa)(ia) after subparagraph 316(2A)(aaa)(i) to include a member of the House of Representatives or a Senator in the list of persons and entities whose compliance with Part XX may be subject to investigation.

22.          Item 19 inserts new subparagraph 316(2A)(aac) to include members of the House of Representatives and Senators in the notice provisions of section 316.

23.          Item 20 inserts “member of the House of Representatives, Senator,” into subsection 316(2A) after “as the case may be, require the” which relates to compliance with notices issued under section 316.

24.          These amendments ensure that parliamentarians are subject to the same foreign donations regime as political parties, Senate groups, and political campaigners, which is the same regime parliamentarians adhere to when standing as candidates for election. This is necessary to support the ongoing integrity and transparency of Australia's electoral system by ensuring foreign money is kept out of federal elections, and cannot find its way in through exploitation of loopholes.

25.          Item 21 relates to the application of the amendments. The amendments made to sections 302D and 302F made by Part 1 apply in relation to gifts made on or after the commencement of this item, being the day after the Act receives the Royal Assent. The amendments made to sections 302H and 316 made by Part 1 apply in relation to notices given on or after the commencement of this item, being the day after the Act receives the Royal Assent.



 

Part 2—Annual returns

26.          Part 2 of the Bill creates a requirement for members of the House of Representatives and Senators, and their respective donors, to lodge an annual return with the AEC, each financial year they directly receive gifts for a federal purpose. A parliamentarian who does not receive gifts for a federal purpose during a financial year will not be required to submit an annual return.

27.          Items 22 and 23 amend section 286A, which is the simplified outline of Division 1 of Part XX of the Electoral Act relating to election funding and disclosure. These amendments expand the requirements to members of the House of Representatives and Senators to disclose each financial year details relating to amounts received or paid or incurred during the financial year.

28.          Division 4 of Part XX of the Electoral Act regulates the disclosure of gifts to candidates and members of groups in an election, as well as donors who make gifts where the value or amount of the gifts is more than the disclosure threshold.

29.          Item 24 amends section 302V to include members of the House of Representatives and Senators in the list of persons and entities in the simplified outline of Division 4 - Disclosure of donations. Item 24 inserts the sentence “Gifts totalling more than the disclosure threshold that are made by a single person to the same member of the House of Representatives or the same Senator during a financial year for federal purposes must also be disclosed in a return provided to the Electoral Commission.” into the outline.

30.          Item 25 inserts new section 306. New subsection 306(1) requires persons or entities to provide a return to the AEC if they have made a gift or gifts for a federal purpose to the same member of the House of Representatives or Senator and the total amount or value of the gifts is more than the disclosure threshold during the financial year. This will require gift recipients and donors to provide corresponding returns, and is a corollary to new section 314AED described in Item 28 below.

31.          A Note is included after new subparagraph 306(1)(b) to direct the reader to the definition of ‘federal purpose’ in subsection 287(1). This states that federal purpose means the purpose of incurring electoral expenditure, or creating or communicating electoral matter.

32.          Persons or entities who fail to comply with the new return obligation under new subsection 306(1) may be subject to a civil penalty, the higher of either 60 penalty units or, where there is sufficient evidence for a court to determine or estimate the amount or value of any gifts not disclosed in an annual return, three times the amount of that value.

33.          New subsection 306(2) requires a return furnished under the provision to include the amount or value of each gift, the date on which it was made, and the name and address of the member or Senator to whom the gift was made. This is consistent with the existing return obligations for donors to political campaigners and political parties under section 305B (unamended by this Bill).

34.          New subsections 306(3) and (4) requires a return furnished under the provision to set out the details of any gift received by the person or entity if it was used wholly or partly to make another gift to a member of the House of Representatives or Senator for federal purposes over the disclosure threshold. This is consistent with the existing return obligations for donors to other political actors in section 305B (unamended by this Bill).

35.          New subsection 306(5) requires a return under section 306 to be lodged in the approved form before the end of 20 weeks after the end of the financial year, consistent with timeframes for other annual returns.

36.          New subsection 306(6) provides that section 306 does not apply gifts made to a parliamentarian by a political entity or associated entity. These entities already lodge annual returns with the AEC, and are excluded to avoid duplication in the disclosure of gifts.

37.          New subsection 306(7) provides that subsection 93(2) of the Regulatory Powers Act  does not apply in relation to a contravention of the requirement to submit a return under new subsection 314AED(1). This means that a contravention of the civil penalty provision under new section 306 will not be considered a separate contravention of that provision in respect of each day during which the contravention occurs if the timeframe for lodging an annual return passes.

38.          Item 26 amends section 314AAA, which sets out a simplified outline of Division 5A of the Electoral Act (‘Annual returns by registered political parties and other persons’). It inserts additional text to the outline to state “Members of the House of Representatives and Senators also provide annual returns setting out details relating to gifts made for federal purposes that were received by them during the year.”

39.          Item 27 inserts “member of the House of Representatives, Senator,” into subsection 314AA(2), which will require a member of the House of Representatives or Senator to provide a return in relation to the whole financial year, even if they cease to be a member or Senator in that financial year. 

40.          Item 28 inserts new section 314AED which relates to annual returns for gifts received by members of the House of Representatives or Senators. New subsection 314AED(1) creates an obligation for members of the House of Representatives and Senators to provide an annual return to the AEC covering the financial year if they receive any gifts during that financial year that were made for federal purposes.

41.          Note 1 to new subsection 314AED(1) refers the reader to the definition of ‘federal purpose’ contained in subsection 287(1). This states that federal purpose means the purpose of incurring electoral expenditure, or creating or communicating electoral matter.

42.          Note 2 to new subsection 314AED(1) clarifies that if the member of the House of Representatives or Senator did not receive any gifts during the year that were made for federal purposes, they do not need to provide a return.

43.          Note 3 to new subsection 314AED(1) clarifies that, as with annual returns provided to the AEC by political parties, political campaigners, associated entities and third parties, annual returns provided by members of the House of Representatives or Senators will be published on the AEC’s Transparency Register.

44.          New subsection 314AED(1) also establishes a civil penalty for failure to comply with the annual return obligation, which is the higher of either 60 penalty units or, where there is sufficient evidence for a court to determine or estimate the amount or value of any gifts not disclosed in an annual return, three times the amount of that value.

45.          New subsection 314AED(2) sets out what must be included in the annual return (the content of the return). This will be reflected in the approved form created by the AEC for members of the House of Representatives and Senators to complete. This includes the total amount or value of all gifts received in the financial year that were received for federal purposes (314AED(2)(a)) and total number of people who made those gifts (314AED(2)(b)). Additional details are required for gifts made to a member or Senator over an amount or value that is more than the disclosure threshold. New subparagraph 314AED(2)(c) requires that the following details of all gifts made for federal purposes of a value or amount over the disclosure threshold to be included in the return:

·          the amount or value of the gift;

·          the date on which the gift was made; and

·          details of the person or entity who made the gift, as set out in subparagraphs 314AED(2)(c)(iii)-(v).

46.          For the avoidance of doubt, Item 28 applies to gifts received for the purpose of incurring electoral expenditure, or creating or communicating electoral matter.

47.          New subsection 314AED(3) requires that members of the House of Representatives and Senators submit their annual return before the end of 20 weeks after the end of the financial year, in the form published by the AEC.

48.          New subsection 314AED(4) states that gifts already included in returns made under section 304 of the Electoral Act (candidate returns), or section 314AB of the Electoral Act (annual returns by a registered political party or political campaigner) do not need to be included in a return under new subsection 314AED. This is to avoid duplication in reporting the receipt of a gift.

49.          New subsection 314AED(5) states that subsection 93(2) of the Regulatory Powers Act does not apply in relation to a contravention of the requirement to submit a return under new subsection 314AED(1). This means that a contravention of the civil penalty provision under new subsection 314AED(1) will not be considered a separate contravention of that provision in respect of each day during which the contravention occurs if the timeframe for lodging an annual return passes.

50.          New subsection 314AED(6) clarifies that a person may lodge a return with the AEC under section 314AED on behalf of a member of the House of Representatives or a Senator.

51.          Item 29 inserts “or 306 (gifts to members of the House of Representatives or Senators)” after “political campaigners)” in subparagraph 316(2A)(aaa)(i). This expands the power of the authorised officer to find out whether a member of the House of Representatives or Senator has complied with Part XX or the Criminal Code in relation to gifts received.

52.          Item 30 inserts paragraph 319A(2A)(aa) to include returns furnished by members of the House of Representatives and Senators relating to claims and returns to be amended by request of the Electoral Commissioner under section 319A.

53.          Item 31 omits “or 305B” and substitutes “, 305B and 306” in the definition of ‘disclosure entity’ in subparagraphs 321B(g)(i) and (ii). This is a consequential amendment to give effect to the amendments at Item 25 .

54.          Item 32 omits “and 305B” and substitutes “, 305B and 306” in the note to the definition of ‘disclosure entity’ in section 321B, to reflect the amendments at Item 25 .

55.          Item 33 omits “and political campaigners” and substitutes “, political campaigners, members of the House of Representatives, and Senators” in the note to the definition of ‘disclosure entity’ in section 321B. This is a consequential amendment to reflect the amendments in Item 25 .

56.          Item 34 sets out application and transitional provisions for the changes to annual donor returns to include gifts to members of the House of Representatives and Senators (section 306) and new annual returns requirement for Senators and members of the House of Representatives (new section 314AED).

57.          Subitem 34(1) provides that section 306 as inserted applies in relation to each financial year following commencement of the Bill whether the gifts concerned are made before, on or after the commencement of this item.

58.          Subitem 34(2) provides that new annual return requirement under new section 314AED will apply in relation to the 2020-21 financial year and all following financial years, whether the gifts concerned are received before, on or after the commencement of this item.

59.          Subitem 34(3) provides that members of the House of Representatives and Senators who received gifts required to be disclosed under new section 314AED in the 2020-21 financial year will be required to provide the AEC with an annual return for the 2020-21 financial year before the end of the period of 30 days beginning on the day on which the provisions commence.

60.          Subitem 34(4) provides that AEC will be required to publish all 2020-21 member of the House of Representatives and Senator annual returns on the Transparency Register before 1 March 2022.

 

Part 3—Candidates

 

61.          Existing subsection 287(9) defines when a person begins to be a candidate or part of a Senate group, and when they stop being so, for the purposes of Part XX. Under subsection 287(9):

·          a person who is a candidate in an election is taken to begin to be a candidate on the earlier of:

o the day the person announced that the person would be a candidate in the election; and

o the day the person nominated as a candidate in the election;

·          a group is taken to begin to be a group in an election on the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election; and

·          the candidate or group ceases to be a candidate or group at the end of 30 days after the polling day in the election.

62.          Item 35 adds a note at the end of subsection 287(9), “This subsection is subject to subsections 302D(5) and ( 6), 302F(7) and (8), 304(10) and (11), 305A(6) and (7), 306A(7A) and (7B), 306B(3) and (4), 307(3), 309(6) and (7) and 313(3).” This note alerts the reader that, for those sections referenced in the note, the period a person is taken to be a candidate, or a group, will have a different meaning.

63.          Item 36 inserts a new definition into section 302B, which sets out definitions of terms used in Division 3A - Requirements relating to donations. Section 302B already contains a definition of ‘acceptable action’, which is action that must be taken where a person or entity receives a gift in contravention of Division 3A. An acceptable action would be to:

·          transfer an amount equal to the amount or value of the gift to the Commonwealth for the purposes of this Division;

·          return the gift to the donor or the person who made the gift; or

·          transfer an amount equal to the amount or value of the gift to the donor or the person who made the gift.

64.          Item 36 inserts the new definition ‘acceptable action period’. This sets out the time in which the person or entity who received the gift from a foreign donor has to take acceptable action. This is six weeks from the date of receipt of the gift from a foreign donor, unless the gift was made to a candidate in an election or by-election or member of a group for a Senate election.

·          In the case of a gift made to a candidate, an acceptable action period will be six weeks from whichever is the later of:

o the day the gift is made; or

o the earlier of the day the person announced that the person would be a candidate in the election or by-election and the day the person nominated as a candidate in the election or by-election.

·          In the case of a gift made to a group for a Senate election, an acceptable action period will be six weeks from whichever is the later of:

o the day the gift is made;

o the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election .

65.          This additional definition is necessitated by the extension of time for which a candidate or group is taken to be a candidate or group in an election for the purposes of Division 3A. This ensures that a candidate will have sufficient time to take acceptable action in relation to any gift from a foreign donor they may have received, including in relation to gifts received shortly before they announced their candidacy. Examples of how this would apply follow below.

66.          Items 37, 38, 39, 40, 42 and 43 are consequential amendments to Item 36 to insert the new definition ‘acceptable action period’ into paragraphs 302D(1)(f), 302D( 1A)(a), 302D(1A)(b), 302D(1A)(c), 302F(1)(f) and 302F(2)(e) of the Electoral Act respectively.

67.          Items 41, 44, 45, 46, 47, 48, 49, 50 and 51 amend sections 302D, 302F, 304, 305A, 306A, 306B, 307, 309 and 313 of the Electoral Act to provide that for those sections, the date on which a person is taken to begin being a candidate is six months before the earlier of the day the person announced they would be a candidate in the election or the day they nominated as a candidate in the election. This six-month timeframe applies notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9) and is intended to ensure that an announcement of candidacy by a candidate is not deliberately delayed for the purposes of avoiding financial disclosure obligations.

68.          These items also amend the disclosure period for Senate groups, where a disclosure period will commence on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election.

69.          How this additional six months is applied to sections 302D, 304 and 305A is set out in further detail, with examples, below.

70.          Section 302D restricts donations by foreign donors to candidates and other political entities. Item 41 insert s new subsection 302D(5) that states that , for the purposes of section 302D, a person is taken to be a candidate from the day that is six months before the earlier of the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election. This six-month timeframe applies notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9).

71.          Item 41 also inserts new subsection 302D(6), which states that, for the purposes of section 302D, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group made a request under section 168 for their names to be grouped in the ballot papers for the election.

72.          This retrospective extension of a person’s time as a candidate, or time as a group, for the purposes of section 302D is accompanied by a change to the time period in which a candidate has to take ‘acceptable action’ if they do receive a gift from a foreign donor ( Items 37 and 38 insert ‘acceptable action period’ provisions, and a definition of acceptable action period is inserted by Item 36 ).

73.          Example 1 - application of amended definition of candidate in section 302D
 In the same year - 
 • Person A received a gift of $2,000 from a foreign donor on 20 August.
 • On 25 August, Person A announces on the radio that they would be a candidate in the next election. 
 • The writs for the election are issued on 1 October. 
 • Person A lodges their candidate nomination form on 12 October.
 • Election day is held on 6 November.
 Under new subsection 302D(5), Person A would be taken to begin being a candidate on 25 February, being the day that is six months before the earlier of the day they announced they would be a candidate in the election (25 August) and the day they nominated as a candidate (12 October). 
 As the gift of $2,000 from a foreign donor was made during the time Person A is considered to be a ‘candidate’ for the purposes of section 302D, Person A would be in contravention of that section if they did not take acceptable action in relation to the gift before the end of the acceptable action period.
 Person A would have to take acceptable action in relation to the gift from a foreign donor by 6 October, being the day that is six weeks from the later of:
 • the day the gift was made (20 August); and
 • the earlier of the day Person A announced they would be a candidate in the election (25 August) and the day Person A nominated in the election (12 October).
 
 Example 2 - application of amended definition of candidate in section 302D
 In the same year - 
 • Person B received a gift of $2,000 from a foreign donor on 30 August.
 • The writs for the election are issued on 1 October. 
 • Person B lodges their candidate nomination form on 12 October.
 • Election day is held on 6 November.
 Under new subsection 302D(5) Person B would be taken to begin being a candidate on 12 April, being the day that is six months from the earlier of the day they announced they would be a candidate in the election (not applicable in this case) and the day they nominated as a candidate (12 October). 
 In this example, Person B would have to take ‘acceptable action’ in relation to the gift from a foreign donor by 23 November, being the day that is six weeks from the later of:
 • the day the gift was made (30 August); and
 • the earlier of the day Person B announced they would be a candidate in the election (not applicable in this case) and the day Person B nominated in the election (12 October). 
 This amended timeframe for taking acceptable action in relation to receiving a gift from a foreign donor will ensure that no candidate or group will have committed an offence against section 302D before they have announced their candidacy.

74.          An example of how the amendments to section 302D are intended to apply to candidates follows below. The amendments to section 302F made at Item 44 will apply similarly to these examples.

75.          Section 304 of the Electoral Act already requires candidates to provide the AEC with a return, within 15 weeks after polling day, setting out details of gifts received during the time they were a candidate. Item 45 insert s new subsection 304(10) that provides that , for the purposes of section 304, a person is taken to be a candidate from the earlier of the day that is six months before the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election. This six-month timeframe applies notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9).

76.          Item 45 also inserts new subsection 304(11) which provides that, for the purposes of section 304, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election.

77.          Example 3 - application of amended definition of candidate in section 304
 In the same year - 
 • Person C receives a gift of $10,000 on 20 March.
 • On 25 August, Person C posts a media release on their website stating they will be a candidate in the next election. 
 • On 30 August, Person C receives in-kind services to upgrade their website valued at $500. 
 • The writs for an election are issued on 1 October. 
 • Person C lodges their candidate nomination form on 12 October.
 • Election day is held on 6 November.
 Under new subsection 304(10) Person C would be taken to begin being a candidate on 25 February, being the day that is six months from the earlier of the day they announced they would be a candidate in the election (25 August) and the day they nominated as a candidate (12 October). 
 Person C uses the $10,000 to pay for billboard signage advertising their candidacy, and uses their website as their candidate webpage. 
 Person C will need to declare both gifts (a total of $10,500 value) as part of their candidate return to the AEC. 
 
 An example of how the amendments to section 302D would apply to candidates follows below.

78.          Section 305A of the Electoral Act already requires persons or entities that make gifts valued at more than the disclosure threshold (if a prescribed amount is not set) to any candidate or member of a group in an election or by-election to provide a return to the AEC disclosing these gifts.

79.          Item 46 inserts new subsection 305A(6) that provides that, for the purposes of section 305A, a person is taken to be a candidate from the earlier of the day that is six months before the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election. This six-month timeframe applies notwithstanding the definition of when a person is a candidate or part of a group as set out in subsection 287(9).

80.          Item 46 also inserts new subsection 305A(7) which provides that, for the purposes of section 305A, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election.

81.          Example 4 - application of amended definition of candidate in section 305A
 In the same year - 
 • Donor A makes a gift of $16,000 to Person D on 20 April (this is over the disclosure threshold at that time of $14,500). Donor A made this gift for the benefit of Person A in relation to an election. 
 • The writs for an election are issued on 1 October. 
 • Person D lodges their candidate nomination form on 12 October.
 • Election day is held on 6 November.
 Under new subsection 305A(6), Person D would be taken to begin being a candidate on 12 April for the purposes of section 305A because this is six months from the earlier of the day Person D announced they would be a candidate in the election (not applicable in this case) and the day they nominated as a candidate (12 October).
 As new subsection 305A(6) deems Person D to have been a candidate at the time Donor A made their gift to Person D, Donor A must provide the AEC with a return under section 305A.
 Under subsection 305A(3), Donor A must provide this return to the Electoral Commission before the end of 15 weeks after the polling day for the election (i.e. 15 weeks after 6 November).
 
 An example of how these amendments to section 305A would apply to donors follows below.

82.          Item 47 inserts new subsection 306A(7A) that states that, for the purposes of section 306A, a person is taken to be a candidate from the earlier of the day that is six months before the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election.

83.          Item 47 also inserts new subsection 306A(7B) which provides that, for the purposes of section 306A, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election. This six-month timeframe applies this section notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9).

84.          Section 306B relates to gifts received by a candidate or member of a group from a corporation above the disclosure threshold, where the corporation is wound up in insolvency, or by the court on other grounds, within a year of making the gift.

85.          Item 48 inserts new subsection 306B(3) that states that, for the purposes of section 306B, a person is taken to be a candidate from the earlier of the day that is six months before the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election.

86.          Item 48 also inserts new subsection 306B(4) which provides that, for the purposes of section 306B, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election. This six-month timeframe applies to this section notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9).

87.          Item 49 amends the nil returns provisions for gifts in section 307, to provide that the changes to the day on which a candidate or group are considered to begin being a candidate in an election or a group as made by new subsections 304(10) and (11) and 305A(6) and (7) also apply to section 307. This is to ensure consistency between returns provisions.

88.          Item 50 amends section 309, which sets out requirements for candidates and members to provide the AEC with returns for electoral expenditure in relation to the election incurred by or with the authority of the candidate or group.  

89.          Item 50 inserts new subsection 309 (6) that states that, for the purposes of section 309 , a person is taken to be a candidate from the earlier of the day that is six months before the day the person announced they would be a candidate in the election or the day the person nominated as a candidate in the election. This six-month timeframe applies notwithstanding the definition of when a person is a candidate or part of a group set out in subsection 287(9).

90.          Item 50 also inserts new subsection 309(7) which provides that, for the purposes of section 309, a group is taken to begin to be a group in an election on the day that is six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election.

91.          This aligns the period of time a return under section 309 will cover with new disclosure period for gifts received under section 304, and means candidate and group returns under section 309 will need to disclose electoral expenditure incurred six months prior to announcing or nominating their candidacy (whichever is the earlier) and six months before the day the members of the group make a request under section 168 for their names to be grouped in the ballot papers for the election.

92.          Item 51 amends the nil returns provisions for electoral expenditure in section 313, to provide that the changes to the day on which a candidate or group are considered to begin being a candidate in an election or a group as made by new subsections 309(6) and (7) also apply to section 313. This is to ensure consistency between returns provisions.

93.          For the avoidance of doubt, Items 50 and 51 extend the timeframe for the disclosure of electoral expenditure, but not the reimbursement of electoral expenditure under section 298 of the Electoral Act (which is still determined in accordance with subsection 287(9)).

94.          Item 52 sets out application and transitional provisions for the changes candidate and group provision amended by Part 3 of the Bill.

95.          Subitem 52(1) provides that the changes to sections 302D, 302F, 304, 305A and 307 apply in relation to elections the writs for which are issued on or after the commencement of this item, whether the gifts are made before, on or after that commencement.

96.          Subitem 52(2) provides transitional provisions for the commencement of the acceptable action period for candidates to address circumstances where a person may have made an announcement that they would be a candidate in the upcoming federal election before the commencement of this Bill, and that person had received a gift from a foreign donor before that announcement that would have required the person to take acceptable action six weeks from the date of the announcement of their candidacy (i.e. would be covered under the additional six month timeframe for being a candidate). In these particular circumstances, the period of six weeks referred to in paragraph (b) of the new definition of ‘ acceptable action period’ in section 302Bis taken to begin on the day on which this item commences. This is to ensure that any existing candidates have sufficient time to take acceptable action in relation to foreign donations received before commencement of the Bill. 

97.          Subitem 52(3) provides that the changes to sections 306A apply in relation to elections the writs for which are issued on or after the commencement of this item, where the loan concerned is received on or after that commencement.

98.          Subitem 52(4) provides that the changes to section 306B applies in relation to elections the writs for which are issued on or after the commencement of this item, where the gifts are made before, on or after that commencement.

99.          Subitem 52(5) provides that the changes to sections 309 and 313 apply in relation to elections the writs for which are issued on or after the commencement of this item, whether the electoral expenditure concerned is incurred before, on or after that commencement.