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Commonwealth Electoral Amendment (Transparency Measures—Real Time Disclosure) Bill 2019

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2019

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

SENATE

 

 

 

 

 

COMMONWEALTH ELECTORAL AMENDMENT (TRANSPARENCY MEASURES—REAL TIME DISCLOSURE) BILL 2019

 

 

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

(Circulated by authority of Senator Farrell)

 



COMMONWEALTH ELECTORAL AMENDMENT (TRANSPARENCY MEASURES—REAL TIME DISCLOSURE) BILL 2019

 

OUTLINE

 

This Bill seeks to amend the Commonwealth Electoral Act 1918 by introducing a real time disclosure regime for political donations and gifts.

 

At present, political parties, associated entities and political campaigners are only required to provide an annual donations disclosure return to the Australian Electoral Commission 16 weeks after the end of the financial year. The returns are then not published by the Electoral Commission until the first working day of February in the following year.

 

There is a pressing need to improve transparency in the political system in order that our democracy is strengthened. Voters are entitled to know who is seeking to influence government policy and election outcomes at the time that donations are made.

 

This Bill will require political parties and their associated entities, candidates, and senate groups to disclose donations or gifts received valued at or above the disclosure threshold within seven days of receipt. Political campaigners will be required to disclose gifts within seven days of using any part of them for the purposes of electoral expenditure. This information will be published by the Electoral Commissioner as soon as reasonably practicable.

 

The Bill seeks to aggregate donations so that multiple donations from the same donor which are below the disclosure threshold will be captured.

 

The real time disclosure regime will be in addition to the requirement for political parties, associated entities and political campaigners to provide an annual return which details total income, expenses and debts. Candidates and senate groups will still be required to provide a return to the Electoral Commissioner 15 weeks after polling day.

 

The Bill does not change the disclosure requirements for donors or third parties.

 

NOTES ON CLAUSES

Clause 1: Short Title

1.                        Clause 1 is a formal provision specifying the short title of the Bill.

Clause 2: Commencement

2.                        For administrative convenience, the Bill will commence on the first 1 July after it receives royal assent.

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—Amendments

Commonwealth Electoral Act 1918

Item 1

4.                        Item 1 inserts a new Division 4A ‘Disclosure of Receipt of Donations’ after Division 4 of Part XX of the Commonwealth Electoral Act 1918 (‘the Act’).

Section 307AA

5.                        This section is an interpretation section for the new Division 4A and defines three terms:

·          ‘Disclosure gift’ is a gift whose value is equal to or above the disclosure threshold, which for 2019/20 is $14,000.

·          ‘Disclosure sum’ is the sum of gifts from the same donor which in total are equal to or more than the disclosure threshold. The definition is designed to capture multiple, smaller gifts which would not on their own require disclosure, but which when aggregated would be greater than the disclosure threshold.

·          ‘Gift recipient’ is defined as including:

·          a registered political party and its state branches;

·          a candidate in an election or a by-election (including a member of a group);

·          a group of two or more candidates who have their names grouped on a Senate ballot paper; and

·          an associated entity which is defined in the Act as an entity:

o    that is controlled by one or more registered political parties; or

o    that operates wholly or to a significant extent for the benefit of one or more registered political parties; or

o    that is a financial member of a registered political party; or

o    on whose behalf another person is a financial member of a registered political party; or

o    that has voting rights in a registered political party; or

o    on whose behalf another person has voting rights in a registered political party.

6.                        The Bill also captures political campaigners which are dealt with separately in section 307AC.

Subsection 307AB(1)

7.                        This subsection requires gifts received during a financial year which are equal to or above the disclosure threshold to be disclosed by the gift recipient within 7 days of receipt.

Subsection 307AB(2)

8.                        This subsection requires a recipient to disclose a gift which is lower than the disclosure threshold if it has the effect of making the sum of all gifts received from that donor during the financial year equal to or greater than the disclosure threshold (the ‘trigger gift’). Disclosure must occur within 7 days of receipt of the ‘trigger gift’.

9.                        Once the disclosure threshold is reached, each subsequent gift (regardless of value) must be disclosed by the recipient within 7 days of receipt.

Subsections 307AB(3) and (4)

10.                    These subsections set out the particulars which must be included in the return which is provided to the Australian Electoral Commission.

11.                    The return must be in the approved form and must include:

·          the amount or value of a gift which is equal to or greater than the disclosure threshold and the date on which the gift was received;

·          the amount or value of gifts which are below the disclosure threshold but which, when aggregated, are equal to or above the disclosure threshold. The total sum must be set out as well as the value of each individual gift and the dates on which each individual gift was received;

·          once the disclosure threshold is reached, t he amount or value of each subsequent gift received and the date on which each gift was received.

12.                    If the donor was an unincorporated association (except a registered industrial organisation) the return must list the name of the association and the names and addresses of the members of its executive committee.

13.                    If the disclosure gift was paid from a trust fund or the funds of a foundation, the return must provide the title of the trust fund or the name of the foundation, and the names and addresses of the trustees.

Subsection 307AB(5)

14.                    This subsection provides that the penalty for non-disclosure is 60 penalty points or three times the value of the gift.

Subsection 307AB(6)

15.                    This subsection provides that a separate contravention is not committed for each day that passes that a gift recipient does not make a return.

Subsections 307AC(1)-(6)

16.                    This section requires political campaigners to provide a return within 7 days of using any part of a disclosure gift or disclosure sum for the purposes of incurring, or being reimbursed for, electoral expenditure.

17.                     A political campaigner is defined in the Act as an entity whose electoral expenditure is:

·          $500,000 or more during that financial year, or any one of the previous three financial years; or

·          $100,000 or more during that financial year, and electoral expenditure during the previous financial year was at least two-thirds of the revenue of the person or entity for that year.

18.                    Once the first disclosure return has been provided under this section, a political campaigner is required to provide a return within 7 days of using any part of each subsequent gift received for the purposes of electoral expenditure.

19.                    The specific provisions for political campaigners are designed to ease the administrative burden on persons and entities which receive gifts for multiple purposes, not just electoral purposes. This section means that political campaigners only need to disclose gifts once a part of the gift has been used for electoral expenditure, rather than at the time of receipt of the gift when it may not be known what the gift will be used for.

20.                    The form of the return is the same as for returns provided by political parties, associated entities, candidates and groups under subsections 307AB(3) and (4) except that political campaigners must also set out how the gift was used.

Subsection 307AC(7)

21.                    This subsection provides that the penalty for non-disclosure is 60 penalty points or three times the value of the gift.

Subsection 307AC(8)

22.                    This subsection provides that a separate contravention is not committed for each day that passes that a gift recipient does not make a return.

Item 2 - Subsection 320(1) (after table item 4)

23.                    This item amends subsection 320(1) of the Act by inserting table item 4A which requires the Electoral Commissioner to publish a return as soon as reasonably practicable after receipt of the return.



 

Statement of Compatibility with Human Rights

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

 

Commonwealth Electoral Amendment

(Transparency Measures—Real Time Disclosure) Bill 2019

 

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

This Bill seeks to amend the Commonwealth Electoral Act 1918 by introducing a real time disclosure regime for political donations and gifts.

 

This Bill will require political parties and their associated entities, candidates, and senate groups to disclose donations or gifts received valued at or above the disclosure threshold within seven days of receipt. Political campaigners will be required to disclose donations within seven days of using any part of them for the purposes of electoral expenditure. This information will be published by the Electoral Commissioner as soon as reasonably practicable.

 

The Bill seeks to aggregate donations so that multiple donations from the same donor which are below the disclosure threshold will be captured.

 

Human rights implications

The Bill engages the following rights as provided for in the International Covenant on Civil and Political Rights (ICCPR):

·          the right of citizens to take part in public affairs and elections, as contained in Article 25;

·          the right of freedom of opinion and expression, as contained in Article 19.

 

The Bill is compatible with the above rights. The Bill does not prevent citizens making political donations, it only increases transparency which is healthy for democracy.

Article 19 states that the right of freedom of opinion and expression includes the freedom to seek, receive and impart information. This Bill will ensure that citizens know who is seeking to influence government policy and election outcomes at the time that donations are made.

 

Conclusion

This Bill is compatible with human rights as it does not raise any human rights issues.

Senator Don Farrell