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2010
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES)
BILL 2010
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
the Hon Gary Gray AO MP)
COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES)
BILL 2010
OUTLINE
The Commonwealth Electoral Amendment (Political Donations and Other
Measures) Bill 2010 (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 after polling day. Agents of candidates and groups
have a similar 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;
. tie public election funding to reported and verified electoral
expenditure. In other words, unendorsed candidates, registered political
parties and unendorsed Senate groups, who receive at least four percent
of formal first preference votes in an election, will receive the lesser
amount of either:
i. the 'electoral expenditure' that was actually incurred in an
election period; or
ii. the amount of $2.31191 (indexed to CPI every 6 months) per formal
first preference vote received;
. provide for the recovery 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 the new measures and
increase the penalties for existing offence provisions.
FINANCIAL IMPACT STATEMENT
There may be additional costs for the Australian Electoral Commission,
however the exact magnitude is difficult to quantify. Public funding for
elections may be reduced due to the new requirement to claim electoral
expenditure. There may be increased revenue as a result of recovering
unlawful gifts or undisclosed gifts.
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 2010.
Clause 2 - Commencement
2. Sections 1 to 3 commence upon Royal Assent. Schedule 1 commences
on 1 July 2011.
Clause 3 - Schedule(s)
3. This clause specifies that each Act specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the
Schedule, and 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
Item 1 - Subsection 4(1)
4. This item inserts a definition of 'related' into the Interpretation
section of the Electoral Act. The definition of 'related' 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.
Item 2 - Subsection 4(1)
5. This item inserts a definition of 'reporting period' into the
Interpretation section 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.
Item 3 - Subsection 17A(1)
Item 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 the notice to
produce powers contained in subsection 316(2A). 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)
7. 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)
8. 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.
Item 7 - Subsection 287(1)
9. This item 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. The entitlement to
public election funding is discussed under item 23. This definition is
an exhaustive list of the types of expenditure that can be claimed to
obtain public election funding.
10. 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.
11. 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.
12. 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.
13. 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.
14. 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
the rent that was incurred during the election period may be claimed.
15. 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.
16. 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. 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 12 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.
17. 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.
18. 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.
19. 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.
Item 8 - Subsection 287(1) (definition of eligible vote)
20. This item repeals the definition of 'eligible vote' in subsection
287(1) of the Electoral Act. This definition is redundant as the new
entitlement provisions in item 23 provide for the scheme of public
election funding.
Item 9 - Subsection 287(1) (definition of entitlement)
21. This item repeals the definition of 'entitlement' in subsection 287(1)
of the Electoral Act. This definition is redundant as the new
entitlement provisions in item 23 provide for the scheme of public
election funding.
Item 10 - Subsection 287(1)
22. This amendment 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. The definition refers to
subsection 306AF(3) which is discussed under item 51.
Item 11 - Subsection 287(1)
23. This item inserts a definition of 'group vote' that is necessary for
part of the calculation of the entitlement to public election funding
for Senate groups. A Senate group is one that comprises candidates
which have made a request under section 168 of the Electoral Act to the
Australian Electoral Officer at the time of nomination, to be grouped
on the ballot paper.
24. This definition specifies that a 'group vote' means a first preference
vote given to a candidate who is a member of the group and which has
been counted for the purposes of section 273 of the Electoral Act.
Section 273 sets out the rules for the scrutiny of Senate votes.
Item 12 - Subsection 287(1)
25. This item 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.
Item 13 - Subsection 287(1)
Item 14 - Subsection 287(1)
26. These items insert into subsection 287(1) of the Electoral Act
references to 'permitted anonymous gift' and 'private event'. A
'permitted anonymous gift' is an anonymous gift that is received in the
circumstances set out in section 306AF and is discussed under item 51.
The concept of 'private event' is used to distinguish one of two
situations when a permitted anonymous gift may be received. The
definition refers to subsection 306AF(6) which is discussed under item
51.
Item 15 - Subsection 287(1)
27. Item 15 inserts into subsection 287(1) of the Electoral Act a
definition of 'single claim'. A 'single claim' is one means of making
a claim for electoral expenditure under new section 297. A single
claim may cover the electoral expenditure of the federal branch of the
registered political party and one or more related State branches of
the registered political party. In this way, the electoral expenditure
of the federal branch may be included in a claim for electoral
expenditure even though it might not have endorsed any candidates.
Item 16 - Subsection 287(2)
28. 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.
29. 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.
Item 17 - Subsection 287(4)
30. Existing subsection 287(4) operates so that, for the purposes of all of
Part XX, a reference to 'political party' (other than a reference to
the endorsement of a candidate or group in an election) does not
include a reference to a part of the political party. Item 17 amends
subsection 287(4) to make it clear that, for the purposes of the
reporting of gifts made to political parties, the donor is required to
disclose the total value of the gifts made to 'related' parts of a
political party where the total is $1,000 or more. Accordingly,
section 305B is required to be specifically exempted from the operation
of subsection 287(4).
Item 18 - After subsection 287(4A)
31. This item inserts 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.
32. 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 19 - After subsection 287(6)
33. 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 20 - Subsection 287A(1)
34. 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 21 - At the end of Division 1 of Part XX
35. 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 22 - Paragraph 292B(a)
36. This item provides that section 292B applies to the new Division 4A.
Section 292B 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 23 - Sections 294 and 297
37. Item 23 contains measures that tie public election funding to reported
and verified electoral expenditure. In other words, unendorsed
candidates, registered political parties and unendorsed Senate groups,
who receive at least four percent of formal first preference votes in
an election, will receive the lesser amount of either:
i. the 'electoral expenditure' that was actually incurred in an
election period; or
ii. the amount of $2.31191 (indexed to CPI every 6 months) per formal
first preference vote received.
38. The intention behind the new provisions is to ensure that unendorsed
candidates, political parties or unendorsed Senate groups do not make a
financial gain from the public election funding system.
39. This item repeals sections 294 and 297 of the Electoral Act and inserts
new sections 293 to 298H. New sections 293 to 298H replace the
existing public election funding scheme and contain provisions that
establish the new entitlement to public election funding, the making of
claims, the determination of claims and a review process.
Subdivision A - Entitlement to election funding
40. This subdivision sets out how any entitlement to public election
funding is to be calculated.
Section 293 - Entitlement to election funding - registered political
parties
41. This new section sets out the entitlement to public election funding
for registered political parties. One of the requirements for applying
for registration of a political party under section 126 of the
Electoral Act is that the application must state whether or not the
party wishes to receive public election funding.
42. Subsection 293(1) provides that a registered political party is
entitled to public election funding for elections where the total
number of formal first preference votes for endorsed candidates is at
least four per cent of the overall total of formal first preference
votes cast in the election for either the House of Representatives or
the Senate.
43. Subsection 293(2) provides that once a registered political party meets
the threshold requirements in subsection 293(1), the amount of the
public election funding that can be paid is the lesser of:
i. $2.31191 for each formal first preference vote received; and
ii. the amount of 'electoral expenditure' incurred in the 'election
period' that has been claimed and accepted by the Electoral
Commission.
44. Items 116, 117, 122 and 127 ensure that the rate at which public
election funding is paid per formal first preference vote given to a
candidate or group will be correct on and from 1 July 2011. There will
be no change to the rate of public election funding that applies to
each vote from the amount that has been increased every six months by
the indexation formula contained in section 321 of the Electoral Act
since the $1.50 amount was inserted into the Electoral Act in 1995.
45. Subsection 293(3) provides for the entitlement to public election
funding for related registered political parties making a single claim.
Modelled on subsection 293(2), the entitlement to public election
funding for registered political parties making a single claim is the
lesser of the dollar amount for each formal first preference vote given
to a candidate endorsed by any of the parties and the amount of
electoral expenditure claimed in respect of the parties covered by the
claim.
46. A note following new subsection 293(3) draws attention to the operation
of new section 296 which provides for how formal first preference group
votes are divided between two or more registered political parties that
have endorsed candidates who are members of a Senate group.
Section 294 - Entitlement to election funding - unendorsed candidates
47. An unendorsed candidate is a candidate who has lodged a nomination with
either the Australian Electoral Officer or the Divisional Returning
Officer under Part XIV of the Electoral Act and the nomination form
does not include the required notification of the party endorsement and
the verification of this endorsement under sections 169 and 169B of the
Electoral Act. An unendorsed candidate includes a candidate who has
requested the word 'Independent' to be printed on the ballot papers
next to his or her name under section 169A of the Electoral Act. An
unendorsed candidate does not include a candidate who is a member a
group of unendorsed Senate candidates who have made a joint request, at
the time of nomination, to the Australian Electoral Officer under
section 168 of the Electoral Act. Applications from a Senate group
with no members endorsed by a registered political party are dealt with
in new section 295.
48. Subsection 294(1) provides that a candidate is entitled to public
election funding for all elections where the total number of formal
first preference votes for the candidate is at least four per cent of
the overall total of formal first preference votes cast in the election
for either the House of Representatives or the Senate.
49. Subsection 294(2) provides that once a candidate meets the threshold
requirements in subsection 294(1), the amount of the public election
funding that can be paid is the lesser of:
i. $2.31191 for each formal first preference vote received; and
ii. the amount of 'electoral expenditure' incurred in the 'election
period' that has been claimed and accepted by the Electoral
Commission.
Section 295 - Entitlement to election funding - unendorsed groups
50. An unendorsed group is a grouping of Senate candidates who have made a
joint request under section 168 of the Electoral Act, at the time of
nomination, to the Australian Electoral Officer and who are not
endorsed by any registered political party. This enables such a group
to have a box above the line on the Senate ballot paper.
51. Subsection 295(1) provides that an unendorsed group is entitled to
public election funding for all elections where the total number of
formal first preference votes for the group is at least four per cent
of the overall total of formal first preference votes cast in the
election for the Senate.
52. Subsection 295(2) provides that once an unendorsed group meets the
threshold requirements in subsection 295(1), the amount of the public
election funding that can be paid is the lesser of:
i. $2.31191 for each formal first preference vote received; and
ii. the amount of 'electoral expenditure' incurred in the 'election
period' that has been claimed and accepted by the Electoral
Commission.
Section 296 - Entitlement to election funding - special rule for joint
Senate groups
53. A joint Senate group is a grouping of candidates for the Senate who are
endorsed by different registered political parties and who have made a
joint request under section 168 of the Electoral Act, at the time of
nomination, to the Australian Electoral Officer. This enables such a
group to have a box above the line on the Senate ballot paper.
54. Subsection 296(1) provides for the candidates who are to be regarded as
members of a joint Senate group.
55. Subsection 296(2) provides that an agent of one of the registered
political parties which have endorsed the candidates under sections 169
and 169B must give to the Electoral Commission a copy of the agreement
as to how the parties have agreed to the division of the first
preference votes received by the joint Senate group. This agreement is
necessary for the Electoral Commission to calculate the amount of any
public election funding that may be payable to the agent of the
registered political party in accordance with the requirements of
subsections 293(2) and 293(3).
56. Subsection 296(3) requires that each party agent of the registered
political parties which have endorsed the candidates who are members of
the joint Senate group must sign the original agreement.
57. Subsection 296(4) requires that a copy of the agreement for the
division of first preference votes must be given to the Electoral
Commission before polling day.
58. Subsection 296(5) provides the Electoral Commission with the discretion
to determine the division of the first preference votes between the
registered political parties in the absence of any written agreement
having been given to the Electoral Commission before polling day. This
subsection reflects a number of provisions in existing
subsection 299(4) of the Electoral Act that require the Electoral
Commission to determine the shares of electoral funding in the absence
of any agreement.
Subdivision B - Claims for election funding
59. This subdivision sets out how claims for public election funding can be
made to the Electoral Commission.
Section 297 - Need for a claim
60. One of the major changes that is introduced by this Bill is the
requirement for claims to be lodged with details of the electoral
expenditure that has been incurred to be made to the Electoral
Commission for any payment of the public election funding entitlement.
61. Subsection 297(1) requires that, in order to be entitled to be paid an
amount of public election funding, the agent of the party, candidate or
group must make a claim. The party agents are persons who are
appointed in accordance with the processes and requirements contained
in sections 288 to 290 of the Electoral Act. Paragraph 297(1)(b)
provides that if a single claim is made, an agent of one of the
registered political parties covered by the claim must make the claim.
62. Subsection 297(2) provides that an agent may make an interim claim, or
both an interim claim and a final claim, or a final claim. Interim
claims are dealt with in subsection 298B(1) and a final claim in
subsection 298B(2).
63. Subsection 297(3) provides that a final claim for public election
funding must specify all of the electoral expenditure against which the
claim is to be assessed, even if it has been included in an interim
claim.
64. Subsection 297(4) provides that a final claim is able to incorporate,
by reference, electoral expenditure that has been included in the
interim claim. Subsection 298E(2) makes it clear that the electoral
expenditure that is claimed twice in an interim and a final claim does
not result in two entitlements based on the same expenditure.
65. Subsection 297(5) provides that only one interim claim and one final
claim for public election funding can be made.
Section 298 - Electoral expenditure incurred
66. This provision sets out what is required in a claim for public election
funding. The various categories of registered political parties,
candidates and Senate groups must specify in their claims 'electoral
expenditure' that falls within the scope of the definition in
subsection 287(1). The agent is not required to specify all electoral
expenditure that may have been incurred, only that expenditure that is
to be claimed against which the entitlement to public election funding
is to be calculated. The six-monthly returns that are required to be
lodged under other provisions in Part XX of the Electoral Act address
the need to have transparency and accountability in the expenditure
incurred by candidates and registered political parties.
67. Subject to subsection 298(2), subsection 298(1) provides that a claim
for public election funding made by the agent of a registered political
party must specify the electoral expenditure incurred by the party and
its endorsed candidates in relation to the election for which public
election funding is sought.
68. Subsection 298(2) provides that if a single claim is made, the claim
must specify electoral expenditure incurred by the party, or by
candidates endorsed by the party, in relation to all elections held on
the same day and for which public election funding is sought. In this
way, for example, the electoral expenditure of the federal branch may
be included in a claim for electoral expenditure even though it might
not have endorsed any candidates.
69. Subsection 298(3) provides that a claim for public election funding
made by the agent of a candidate must specify the electoral expenditure
incurred by the candidate in relation to the election for which public
election funding is sought.
70. Subsection 298(4) provides that a claim for public election funding
made by the agent of a Senate group must specify the electoral
expenditure incurred by the group or the candidates who are members of
the group for which public election funding is sought.
Section 298A - Form of claim
71. Section 298A requires that any claim for public election funding must
be made on the 'approved form'. The 'approved forms' are required to
be approved by the Electoral Commissioner in writing and published (see
subsection 4(1) of the Electoral Act). This process is similar to all
other approved forms made under the Electoral Act.
72. The form is likely to require an agent to specify whether the claim is
an interim or a final claim the types of electoral expenditure, the
companies/persons to whom the payments were made or the liability
incurred and the basis on which the amounts are calculated.
73. Sufficient information will need to be provided to enable the Electoral
Commission to verify the amount claimed and to conduct compliance
audits into the accuracy of the amounts claimed. Some documents may be
required to be provided to the Electoral Commission to support the
amount of electoral expenditure that has been claimed to have been
incurred.
Section 298B - Lodging of claim
74. Section 298B sets out the two types of claims for public election
funding that can be lodged with the Electoral Commission and the timing
for lodging these claims.
75. Subsection 298B(1) provides for the lodging of an interim claim. Such
a claim can be made commencing on the twentieth day after polling day.
Any claim for interim funding must be received by the Electoral
Commission within six months of polling day. Subsection 298D(2) makes
it clear that an interim claim is to be assessed by the Electoral
Commission against the known vote count as at the twentieth day after
polling day. The intent of this provision is similar to the
entitlement to the early payment of public election funding contained
in existing subsection 299(5D) of the Electoral Act.
76. Subsection 298B(2) provides for the lodging of a final claim. Such a
claim can be made commencing on the day on which the writ or the last
writs for the election are returned. At the time of the return of the
writs, the majority of the votes will have been counted. Any final
claim for funding must be received by the Electoral Commission within
six months of polling day.
77. Subsection 298B(3) makes it clear that any claim lodged outside the
periods specified in subsections 298B(1) and (2) will not be valid and
will not be processed by the Electoral Commission or attract any public
election funding.
Section 298C - Determination of claim
78. The intention of this section is to provide some certainty in the
processing of claims for public election funding that have been validly
lodged. Existing subsection 299(5D) of the Electoral Act provides that
the Electoral Commission make payments of public election funding 'as
soon as possible after' the twentieth day after polling day, or after
the full amount of entitlement is known. An end date for the Electoral
Commission's consideration of a claim has been included to enable
candidates and political parties to properly plan their financial
affairs in relation to the receipt of public election funding.
79. Subsection 298C(1) provides that any claim for public election funding
must be decided by the Electoral Commission within 20 days of receipt.
This time period includes the actual making of the payment.
80. Subsection 298C(2) provides that, in deciding whether or not to accept
the claim, the Electoral Commission must only have regard to whether an
amount claimed is 'electoral expenditure' and whether the claimed
expenditure was actually incurred. With the possibility of confusion
arising over what expenditure is claimed by which registered political
party when a single claim is made, the Electoral Commission may also
have regard to whether electoral expenditure has been specified in a
claim made by another agent.
81. Subsection 298C(3) deals with the situation where an interim claim is
lodged under subsection 298B(1) and no final claim is lodged under
subsection 298B(2). In this situation, the interim claim will be
deemed to be the final claim. This process will finalise any claim for
public election funding. It also enables the Electoral Commission to
rely on the variation power in amended section 301 of the Electoral Act
to vary the decision, based on the results of compliance audits and
monitoring activities in relation to claims for public election
funding.
Section 298D - Accepting an interim claim
82. The intention of this provision is similar to the entitlement to the
early payment of public election funding contained in existing
subsection 299(5D) of the Electoral Act. Under that subsection, the
payment of public election funding to a person with an entitlement is
made in two stages. The first payment of 95 per cent of the
entitlement is made as soon as possible after the twentieth day after
polling day. The remaining 5 per cent of the entitlement is paid as
soon as possible after the full entitlement is known. This is usually
shortly after the return of the writs.
83. Subsection 298D(1) provides that this provision applies where an
interim claim for public election funding has been made under
subsection 298B(1) and the Electoral Commission has accepted that claim
as complying with the requirements of the Electoral Act and the
'approved form' in relation to the provision of information about the
incurring of 'electoral expenditure'.
84. Subsection 298D(2) provides that, in relation to an interim claim, the
Electoral Commission must pay the lesser amount of 95 per cent of the
relevant amount for each formal first preference vote based on the vote
count as at day 20 after polling day and the amount of 'electoral
expenditure' that the Electoral Commission has accepted to have been
incurred.
Section 298E - Accepting a final claim
85. This provision deals with the payment of a final claim for public
election funding. A final claim can be made at any time after the
return of the writ and up to six months after polling day. A final
claim can be made on its own or after the making of an interim claim.
The intention of this provision is to set out how the final claim
amounts are to be calculated, with any amount that has been paid
pursuant to an interim claim being deducted from that final amount.
86. Subsection 298E(1) provides that this provision applies to the
provision of information about the incurring of 'electoral expenditure'
where a final claim for public election funding has been made under
subsection 298B(2) and the Electoral Commission has accepted that claim
as complying with the requirements of the Electoral Act and is in the
'approved form'.
87. Subsection 298E(2) provides that, in relation to a final claim, the
Electoral Commission must pay the lesser amount of 100 per cent of the
relevant amount for each formal first preference vote based on the
final vote count and the amount of 'electoral expenditure' that the
Electoral Commission has accepted to have been incurred. If any amount
has been paid by the Electoral Commission under section 298D after
determining an interim claim, that amount is to be deducted from the
overall amount to which a person is entitled as part of the final
claim.
Section 298F - Refusing a final claim
88. This section provides that if a final claim is refused, in whole or in
part, the Electoral Commission must notify the agent that the claim has
been refused and provide reasons for the refusal to the agent.
89. The intention of this provision is to ensure that it is the decision on
a final claim that is the operative decision that attracts review
rights and that the Electoral Commission is required to provide reasons
for any decision refusing the payment of amounts claimed in a final
claim. As a final claim is required to incorporate amounts of
'electoral expenditure' contained in the interim claim (see subsection
297(4)), it is the decision on the final claim that is effectively the
reviewable decision.
Section 298G - Application for reconsideration of decision refusing a final
claim
90. This section provides for the reconsideration of decisions made by
delegates of the Electoral Commission on a final claim for public
election funding. Reconsideration will be undertaken by the full
Commission in a review process that is similar to the review of other
administrative decisions made under the Electoral Act.
91. Subsection 298G(1) provides that where a final claim has been refused,
the agent may apply to the Electoral Commission for a reconsideration
of the delegate's decision.
92. Subsection 298G(2) provides that an application for a reconsideration
of a decision on a final claim must be in writing and set out the
reasons for the application.
93. Subsection 298G(3) provides that an application for reconsideration
must be made within 28 days of the agent being notified of the
delegate's decision, or any extension of that time that has been
granted by the Electoral Commission. In deciding whether or not to
grant an extension of time, the Electoral Commission intends to have
regard to the principles outlined in the case of Hunter Valley
Developments v Cohen [1984] FCA 176 where appropriate.
Section 298H - Reconsideration by Electoral Commission
94. This section sets out how the Electoral Commission is to deal with an
application for the reconsideration of a decision on a final claim.
95. Subsection 298H(1) provides that the Electoral Commission is to
reconsider the delegate's decision that refused all or part of a final
claim for public election funding and has the power to affirm, vary,
set aside and replace that decision with another decision.
96. Subsection 298H(2) provides that the Electoral Commission is required
to give the agent written reasons for its decision on the application.
97. Subsection 298H(3) provides that if the Electoral Commission's decision
results in any additional payment of public election funding, that
payment is to be made within 20 days of its decision.
98. Subsection 298H(4) provides that the Electoral Commission is unable to
delegate its power to undertake a reconsideration of a final claim for
public election funding where it has received a reconsideration
application.
Subdivision C - Payments of election funding
Item 24 - Subsection 299(1)
99. This item amends subsection 299(1) to reflect the new structure of Part
XX of the Electoral Act by omitting the previous reference to the
Division and substitutin wording that reflects the new claims process.
Item 25 - Subsections 299(2) to (5)
100. Item 25 repeals subsections 299(2) to (5) to reflect the new claims
process and make it clear who is to receive the payment of public
election funding.
101. Subsection 299(2) provides that if a single claim is made by an agent
of a registered political party the public election funding is paid to
that agent.
102. Subsection 299(3) provides that any payment of public election funding
in respect of an unendorsed candidate is to be made to the candidate's
agent.
103. Subsection 299(4) provides that any payment of public election funding
in respect of a Senate group of unendorsed candidates is to be paid to
the group's agent.
Item 26 - Subsections 299(5D) and (6)
104. These amendments repeal redundant provisions due to the new claims
process.
Item 27 - Sections 300 and 301
Subdivision D - Miscellaneous
105. These amendments repeal sections 300 and 301 and substitute new
sections to reflect the new claims process and simplify the process for
dealing with the situation where there has been a death of a candidate
or a member of a group.
106. Item 27 also inserts this new heading in the Electoral Act dealing
with miscellaneous matters relating to the payment of public election
funding.
Section 300 - Death of candidates or group members
107. Subsection 300(1) provides that a payment of public election funding
may be made even if the candidate dies.
108. Subsection 300(2) provides that where a candidate was his or her own
agent (for example because he or she was not endorsed by a political
party and not a member of a group), the payment of public election
funding may be made to the candidate's legal personal representative,
for example the Executor to the deceased candidate's estate.
109. Subsection 300(3) provides that where a candidate who is a member of a
Senate group dies, a payment of public election funding may be made for
the group.
110. Subsection 300(4) provides that where the candidate who died was the
agent of the unendorsed Senate group, the payment of public election
funding may be made to another member of the group.
Section 301 - Varying decisions accepting claims
111. New section 301 provides the Electoral Commission with a post-payment
variation power to vary the previous decision, based on the results of
compliance audits and monitoring activities in relation to claims for
public election funding. With the repeal of existing subsection 299(6)
of the Electoral Act (item 26) new section 301 contains the power for
the recovery of any overpayment.
112. Subsection 301(1) provides that the Electoral Commission is able to
vary decisions previously made on claims for public election funding.
Given the timeframes specified in the Act for the making of decisions
and payments of public election funding, it is highly likely that
situations will arise where the basis of claims will be questioned due
to a lack of supporting documentary evidence. Accordingly, the
Electoral Commission is given a specific power to be able to revisit
previous decisions and to vary the amount of payments that had
previously been approved.
113. Subsection 301(2) provides that where the Electoral Commission makes a
decision to vary the amount of public election funding under subsection
301(1), the agent is able to make an application to have that decision
reviewed by the full Commission.
114. Subsection 301(3) provides that where the decision under subsection
301(1) results in a decrease in the amount of the entitlement to public
election funding, the amount of the previous overpayment can be
recovered as a debt due to the Commonwealth.
115. Subsection 301(4) provides that where an amount previously paid for an
interim claim is to be taken into account in the variation decision.
This means that the varied decision will in effect be the decision on
the final claim.
301A - References to the agent of a registered political party if single
claim made
116. As a single claim may encompass the expenditure of a number of
registered political parties, each with its own agent, new section 301A
provides that the agent who submitted a single claim may receive any
funding payable under the single claim and deal with the single claim.
Item 28 - After section 303
117. 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 29 - Subsection 304(2)
118. This item reduces the period in which a return must be made under
these subsections 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.
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. The
disclosure period is defined in subsection 287(1) and varies depending
upon the circumstances of the candidate, member or group.
Item 30 - Subsection 304(2)
119. Item 30 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 31 - Subsection 304(3)
120. Item 31 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 32 - Subsection 304(3)
121. Item 32 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 33 - Subsection 304(4)
122. 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 paragraphs 304(2)(c) and
304(3)(c). Accordingly, item 33 amends subsection 304(4) of the
Electoral Act so that it only applies to new paragraphs 304(2)(b) and
3(b)
Item 34 - Subparagraph 304(5)(b)(ii)
Item 35 - Paragraph 304(5)(c)
Item 36 - Subsection 304(5) (note)
123. 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. As the threshold figure is no longer indexed
following the repeal of section 321A, the note is also repealed.
Item 37 - Paragraph 304(6)(b)
Item 38 - Paragraph 304(6)(c)
Item 39 - Subsection 304(6) (note)
124. These items amend the threshold for the total amount of gifts made by
one person to a candidate or a group which can be made during the
period to which the return relates without disclosure. A gift does not
have to be disclosed under subsection 304(6) if the sum of the gifts is
less than $1,000. Previously, gifts totalling $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
note is also repealed.
Item 40 - At the end of section 304
125. 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. Section 307 is repealed by item 58.
Item 41 - Subparagraph 305A(1)(b)(ii)
Item 42 - Subsection 305A(1) (note)
Item 43 - Subparagraph 305A(1A)(b)(ii)
Item 44 - Subsection 305A(1A) (note)
Item 45 - Paragraph 305A(2)(b)
Item 46 - Subsection 305A(2) (note)
126. 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 totalling $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 47 - Paragraph 305A(3)(a)
127. 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 48 - Subsections 305B(1) and (2)
128. 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.
Subsection 305B(1)
129. New subsection 305B(1) imposes an obligation on a person to furnish a
return to the Electoral Commission disclosing all gifts if, in a
reporting period, the person makes gifts totalling $1,000 or more to
the same registered political party. The 'reporting period' is defined
at item 2 to be the first six months of a financial year or a full
financial year. The return must be lodged eight weeks after the
reporting period.
Subsection 305B(1A)
130. Using the definition of 'related' at item 1, new subsection 305B(1A)
operates so that if a person makes a gift to a number of related
parties, one of which is a registered political party, the gifts are
deemed to be made to the single registered political party. The
intention of this subsection is to prevent a person giving multiple
gifts under the new $1,000 threshold to various divisions or branches
of the same political party which are then not required to be disclosed
by the donor.
Subsection 305B(2)
131. Similar to 305B(1A), new subsection 305B(2) operates so that, if a
person makes a gift to any person or body with the intention of
benefiting a political party, subsection 305B(2) deems the gift to have
been made directly to that political party for the purposes of the
section. The intent of the provision is to ensure that donors cannot
avoid disclosure obligations by using intermediaries.
Subsection 305B(2A)
132. To reduce any unnecessary duplication of reporting by donors, new
subsections 305B(2A) and (2B) operate as exceptions to the requirement
imposed by 305B(1). New subsection 305B(2A) provides that if a person
has furnished a return disclosing gifts to a registered political party
in the first six months of a financial year, and makes no further gifts
to that registered political party during the remainder of the
financial year, the person does not have to furnish a return in respect
of the second reporting period that finishes at the end of the full
financial year.
Subsection 305B(2B)
133. New subsection 305B(2B) provides that if a person making a gift
furnishes a return for the second reporting period that finishes at the
end of the full financial year, the person does not have to disclose
any gift made by the person that has already been disclosed in a return
for the first six months of that financial year.
Item 49 - Paragraph 305B(3)(c)
134. 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 50 - Subsection 305B(3A)
135. This item amends 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 51 - Section 306
136. 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
137. 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.
Section 306AA - Subdivision does not apply to gifts that are returned
within 6 weeks
138. 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.
Section 306AB - Determining whether a gift or transfer is of Australian or
foreign property
139. 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.
140. 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.
Section 306AC - Gifts of foreign property: when unlawful for political
party, candidate etc. to receive gift
141. 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.
142. 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.
143. 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.
144. 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.
145. 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.
Section 306AD - Gifts of foreign property made to enable incurring of
political expenditure: when unlawful to use or receive gift
146. 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).
147. 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.
148. 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.
149. 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.
150. 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.
151. 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.
152. 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.
153. 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.
154. 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
Section 306AE - Interpretation
155. 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.
Section 306AF - Meaning of permitted anonymous gift
156. 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.
157. 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.
Section 306AG - Subdivision does not apply to gifts that are returned or
paid to the Commonwealth within 6 weeks
158. 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.
Section 306AH - Anonymous gifts: when unlawful for political party,
candidate etc. to receive gift
159. 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.
160. 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.
161. 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.
162. 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.
163. 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.
Section 306AI - Anonymous gifts: when unlawful for political party,
candidate etc. to receive gift made using anonymous gift
164. 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.
165. 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.
166. 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.
167. 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.
Section 306AJ - Anonymous gifts: when unlawful for person to incur
political expenditure using anonymous gift
168. 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).
169. 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.
170. 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.
171. 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
Item 52 - Subsection 306A(1)
Item 53 - Subsection 306A(1) (note)
Item 54 - Subsection 306A(2)
Item 55 - Subsection 306A(2) (note)
172. 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 totalling $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.
Item 56 - Paragraph 306B(a)
Item 57 - Section 306B (note 3)
173. Item 57 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 57.
Item 58 - Section 307
174. 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 40 relocates the substance of section
307 to subsections 304(9) and (10).
Item 59 - Section 308
175. As the provisions relating to 'electoral expenditure' have now been
placed in subsection 287(1), item 59 repeals section 308 as it is
redundant.
Item 60 - Subsections 309(1A)
176. 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 60 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).
Item 61 - Subsection 309(2)
177. This item 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.
Item 62 - Subsection 309(2)
178. Similar to item 60, item 62 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).
Item 63 - Subsection 309(3)
179. Item 63 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.
Item 64 - Subsection 309(3)
180. Item 64 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).
Item 65 - Subsection 311A(2)
Item 66 - Subsection 311A(2) (note)
181. Item 65 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 66.
Item 67 - Division 5A of Part XX (heading)
Division 5A - Returns for reporting periods by registered political parties
and other persons
182. 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 68 - After section 314AAA
183. 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 69 - Subsection 314AB(1)
184. 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.
Item 70 - Paragraph 314AB(1)(b)
Item 71 - Subsection 314AB(2)
185. 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.
Item 72 - Subsection 314AC(1)
Item 73 - Subsection 314AC(1) (note)
186. Item 72 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
73.
Item 74 - Subsection 314AC(2)
187. 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 75 - At the end of section 314AC
188. Item 75 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.
Item 76 - Subsection 314AE(1)
Item 77 - Subsection 314AE(1) (note)
189. Item 76 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 77.
Item 78 - Subsection 314AEA(1)
190. 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 79 - Subsection 314AEA(1)
191. 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 and item 78 above amend 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.
Item 80 - Paragraph 314AEA(3)(d)
Item 81 - Subsection 314AEB(1)
Item 82 - Paragraph 314AEB(1)(a)
192. 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.
Item 83 - Paragraphs 314AEB(1)(b) and (c)
Item 84 - Subsection 314AEB(1) (note)
193. Item 83 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'. The substance of existing paragraph
314AEB(1)(c) is moved to new subsection 314AEB(1A) by item 85. As the
threshold figure is no longer indexed following the repeal of section
321A, the note is also repealed by item 84.
Item 85 - After subsection 314AEB(1)
194. This item inserts new subsection 314AEB(1A) which essentially
duplicates paragraph 314AEB(1)(c) that was repealed by item 83. 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 86 - Subsection 314AEB(2)
195. 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 87 - Paragraph 314AEB(3)(a)
196. 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.
Item 88 - Subsection 314AEC(1)
Item 89 - Paragraphs 314AEC(1)(a) and (b)
197. 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.
Item 90 - Paragraph 314AEC(1)(c)
Item 91 - Subsection 314AEC(1) (note)
Item 92 - After subsection 314AEC(1)
198. Item 90 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 90 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.
199. A major donor is defined by new subsection 314AEC(1A), which is
inserted by item 92. A major donor is a person who provides gifts
totalling $1,000 or more in a reporting period.
200. As the threshold figure is no longer indexed, following the repeal of
section 321A, the note is also repealed by item 91.
Item 93 - Subsection 314AEC(2)
Item 94 - Subsection 314AEC(2) (note)
201. Item 93 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 93 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).
202. As the threshold figure is no longer indexed, following the repeal of
section 321A, the note is also repealed by item 94.
Item 95 - After subsection 314AEC(2)
203. Item 95 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 96 - Paragraph 314AEC(3)(a)
204. 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 97 - Subsection 314AEC(4)
205. 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.
Item 98 - Subsections 315(1) to (4)
206. 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.
Subsection 315(1)
207. 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 $110.
208. While this offence is based on the previous offence in subsection
315(1), the repeal of subsection 315(1A) by item 98 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.
Subsection 315(2)
209. 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.
210. 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.
Subsection 315(3)
211. 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.
Subsection 315(4)
212. 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.
213. 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.
Subsection 315(4A)
214. 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.
215. 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.
Subsection 315(4B)
216. 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.
217. 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.
Subsection 314(4C)
218. 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 99 - Subsection 315(5)
219. 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 100 - Subsection 315(6A) (penalty)
220. 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 101 - Subsection 315(7) (penalty)
221. 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 102 - After subsection 315(10)
222. This item inserts new offences into section 315 to provide offences
for the new provisions dealing with gifts of foreign property and
anonymous gifts.
Subsection 315(10A)
223. This subsection 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.
Subsection 315(10B)
224. This subsection 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.
225. 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.
Subsection 315(10C)
226. 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.
Subsection 315(10D)
227. 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.
Subsection 315(10E)
228. 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 103 - After section 315
229. This item inserts a new subsection 315AA to provide for the recovery
of undisclosed gifts. An undisclosed gift is defined for the purposes
of the section 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.
230. 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.
231. 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.
232. 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 104 - Subsection 315A(1)
233. 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 105 - Subsections 316(2A) and (2B)
234. 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.
235. 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.
236. 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 106 - Subsection 316(2C)
237. 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.
Item 107 - Subsection 316(5) (penalty)
Item 108 - Subsection 316(5A) (penalty)
Item 109 - Subsections 316(5B) and (5C)
238. Items 107 and 108 increase the penalties under subsections 316(5) and
316(5A) from $1,000 to imprisonment for 12 months or 60 penalty units,
or both.
239. Item 109 repeals subsection 316(5B) to remove strict liability from an
offence against 316(5A). Item 109 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 110 - Subsection 316(6) (penalty)
240. 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 111 - Subsection 319A(1)
241. This item amends the existing power in section 319A of the Electoral
Act that deals 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 (see subsection 297(4)).
Item 112 - Subsection 319A(2)
242. 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 113 - After subsection 319A(4)
243. New subsection 319A(4A) makes it clear that any amendment or variation
of a claim for public election funding that is made under this section
is not able to result in an increase in the payment. This subsection
links back to the requirements of new subsection 297(5) that only one
interim and one final claim may be made. The intention of this
subsection is that candidates and political parties should be able to
correct any formal errors and mistakes but not so that they can obtain
an increase in public election funding payments. This process is to
assist in the transparency and accountability of candidates and
political parties but not to allow repeated amendments of claims for
public election funding to attempt to increase those payments.
Item 114 - Subsection 319A(9)
244. Due to the substitution of new offence provisions in section 315, this
item corrects the references to the relevant offences in section 315.
Item 115 - Subsections 320(4) and (5)
245. 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 116 - Subsection 321(1) (definition of relevant amount)
246. Section 321 is the indexation section. It applies to the amount per
vote that can be paid as part of public election funding once a
political party, candidate or Senate group obtains at least 4% of the
first preference votes in an election. The amount per vote of $2.31191
specified in sections 293, 294 and 295 is based on the existing amount
contained in the current section 294 of the Electoral Act that has been
indexed since 1995. The amendment will ensure that the amount per vote
that can be used in the calculation of public election funding will
continue to be indexed.
Item 117 - Subsection 321(1) (definition of relevant period)
247. This item amends the definition of 'relevant period' in subsection
321(1) so that the indexation of the current $2.31191 amount per vote
commences from 1 July 2011. This is a mechanical provision that is
necessary given the amendments to the above amount reflect the current
value resulting from the indexation of the previous $1.50 that has
occurred in accordance with the Electoral Act since 1995.
Item 118 - Section 321A
248. 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 119 - Section 384
249. 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 120 - Amendments applying to reporting periods starting on or after
1 July 2011
250. This item provides that the amendments made by items 48 to 50
(obligation to furnish returns disclosing gifts made during a reporting
period) and items 69 to 97 (Division 5A returns for reporting periods
by registered political parties and other persons) apply to reporting
periods that start on or after 1 July 2011.
Item 121 - Amendments applying to financial years starting on or after
1 July 2011
251. This item provides that amendments made by items 65 and 66 (disclosure
of expenditure by Commonwealth Departments) apply in relation to
financial years that start on or after 1 July 2011.
Item 122 - Amendments applying to elections the writs for which are issued
on or after 1 July 2011
252. This item provides that amendments made by the listed items relating
to public election funding for elections the writs for which are issued
on or after 1 July 2011.
Item 123 - Amendments applying to gifts etc made on or after 1 July 2011
253. This item provides that the amendments made by the listed items apply
to gifts, transfers or loans made or received, or expenditure incurred
on or after 1 July 2011.
Item 124 - Amendments applying to acts or omissions occurring on or after
1 July 2011
254. This item provides that the amendments made by the listed items apply
to acts or omissions that occur after 1 July 2011.
Item 125 - Amendment applying to returns a person becomes required to
furnish on or after 1 July 2011
255. This item provides that the amendment made by item 103 of this
Schedule applies in relation to returns a person becomes required to
furnish on or after 1 July 2011.
Item 126 - Saving of notices under subsection 316(2A)
256. This item ensures that a notice given before 1 July 2011 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 105.
Item 127 - Indexation of per-vote amount for election funding
257. Item 127 provides for the indexation of the current public election
funding rate to ensure that the correct rate of public election funding
will be paid from 1 July 2011. In order to ensure the correct rate is
paid once the provisions commence, the Bill provides for the current
funding rate of $2.31191 to be indexed. Item 127 provides for the rate
to be indexed twice using September 2010 and March 2011 All Groups
Consumer Price Index (CPI) information.