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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
THE SENATE
ELECTORAL LEGISLATION AMENDMENT (POLITICAL CAMPAIGNERS)
BILL 2021
REVISED EXPLANATORY MEMORANDUM
(Circulated by authority of the Special Minister of State,
the Hon Ben Morton MP)
THIS MEMORANDUM TAKES ACCOUNT OF AMENDMENTS MADE BY THE
HOUSE OF REPRESENTATIVES TO THE BILL AS INTRODUCED
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum:
Abbreviation Definition
AEC Australian Electoral Commission
Bill Electoral Legislation Amendment
(Political Campaigners) Bill 2021
Electoral Act Commonwealth Electoral Act 1918
ICCPR International Covenant on Civil and
Political Rights
Item Refers to an item in the Bill (as amended
by the Parliamentary Amendments)
JSCEM Joint Standing Committee on Electoral
Matters
Parliamentary Amendments Amendments in sheet ZD132
Regulatory Powers Act Regulatory Powers (Standard Provisions)
Act 2014
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ELECTORAL LEGISLATION AMENDMENT (POLITICAL CAMPAIGNERS)
BILL 2021
GENERAL OUTLINE
The Bill reduces the thresholds for electoral expenditure that can be incurred by an
individual or organisation before they are required to register as a political campaigner.
The Bill will also expand the criteria for registration and disclosure requirements for
political actors who are political campaigners. These amendments also expand the criteria
and list of entities that can be 'associated' with an associated entity, to include political
campaigners and other disclosure entities. This will ensure there is a consistent approach to
the application of regulation for persons or entities who participate to a material extent in
federal electoral activities.
The amendments will enhance public confidence in Australia's political processes by
aligning transparency requirements for political actors who seek to influence the outcome
of an election to more closely resemble those for political parties, candidates, and members
of the Australian Parliament.
The amendments in this Bill build on the Electoral Legislation Amendment (Electoral
Funding and Disclosure Reform) Act 2018 and the Electoral and Other Legislation
Amendment Act 2017 to improve the consistency of regulation applying to political actors.
Part XX - Election funding and financial disclosure
The Bill will:
• reduce the thresholds for electoral expenditure that can be incurred by an individual
or organisation before they are required to register as a political campaigner;
• expand the circumstances in which a person or entity is required to register as a
political campaigner or an associated entity;
• expand the application of the existing restrictions on foreign donations to further
align the obligations of political campaigners and associated entities, as these entities
influence elections to a material extent;
• require a person or entity who has registered as a political campaigner in a financial
year to provide a return under section 314AB that covers the financial year prior to
their registration as a political campaigner; and
• require an entity who has registered as an associated entity in a financial year to
provide a return under section 314AEA that covers the financial year prior to their
registration, to align with new requirements for political campaigners.
FINANCIAL IMPACT STATEMENT
Funding of $8.4 million over the forward estimates from 2021-22 will be provided to
implement the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the Bill.
The Bill has been assessed as compatible with Australia's human rights obligations.
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Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act
2011
Electoral Legislation Amendment (Political Campaigners) Bill 2021
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Human rights implications
The impact of the Bill on the following right from the ICCPR has been considered:
• the right to freedom of expression under Article 19.
Article 19 - Freedom of Expression
1. The Bill engages the right to freedom of expression under Article 19 of the ICCPR,
because it requires political campaigners to register from a lower electoral expenditure
threshold and it expands when a person or entity is required to register as a political
campaigner or an associated entity. This means that more persons or entities who are
involved in the political process will be required to report and disclose financial
information relating to expenditure and income during a financial year. This assists the
Australian electorate in making informed decisions in the conduct of electoral processes,
by aligning transparency requirements for all significant political actors seeking to
influence electoral outcomes.
2. The reduction in the threshold for registration requirements is intended to assist electors
by providing more information about the increasingly complex environment of political
and electoral advocacy. The new threshold of expenditure by an entity or individual is
not insignificant, and targeted localised campaigns have the ability to affect electoral
outcomes.
3. Greater requirements will be placed on those who previously were not required to
register as either a political campaigner or an associated entity. However, the expansion
provided by the Bill is limited to only those persons or entities that operate for the benefit
of disclosure entities or operate for the dominant purpose of creating or communicating
electoral matter. These amendments place limitations on, but do not prohibit the right
to, the freedom of expression.
4. Given that Article 19 of the ICCPR carries special duties and responsibilities, it may be
subject to certain restrictions required by law. The proposed limitation on the right to
freedom of expression is proportionate to the legitimate end sought, as transparency,
accountability and public confidence in the political system enables the Australian
electorate to make informed decisions in the exercise of their franchise.
5. The limitation of the right is therefore consistent with Article 19 of the ICCPR.
Conclusion
6. The Bill is compatible with human rights because, to the extent it may limit human
rights, those limitations are reasonable, necessary, and proportionate.
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ELECTORAL LEGISLATION AMENDMENT (POLITICAL
CAMPAIGNERS) BILL 2021
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the title of the Bill when enacted will be the
Electoral Legislation Amendment (Political Campaigners) Act 2021 (the Act).
Clause 2 - Commencement
2. Subclause 2(1) provides that the provisions in column 1 of the Commencement table
commence at the time set out in column 2.
3. Clause 1 in the Commencement table provides that the whole Act commences the day
after the Act receives the Royal Assent.
4. A note is inserted below the Commencement table stating that the table relates only
to the provisions of the Act as originally enacted. The table will not be amended to
deal with any later amendments of the Act.
5. Subclause 2(2) provides that information in column 3 of the Commencement table is
not part of the Act. Information may be inserted into column 3, or information in it
may be edited, in any published version of the Act.
Clause 3 - Schedules
6. Clause 3 provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to the Act has effect according to its terms.
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Schedule 1-- Amendments
Commonwealth Electoral Act 1918
1. Item 1 omits "$500,000" in subparagraph 287F(1)(a), and substitutes it with
"$100,000".
2. Item 2 omits "$100,000 or more" in subparagraph 287F(1)(b)(i) and substitutes it with
"at least equal to the disclosure threshold".
3. Item 3 replaces "two-thirds" in subparagraph 287F(1)(b)(ii) with "one-third".
4. These amendments are intended to reduce the expenditure threshold at which a person
or entity must register as a political campaigner for a financial year, not including a
member of Australian Parliament or a "political entity" as defined in existing subsection
4(1) of the Electoral Act. The purpose of this reduction is to assist electors in making
informed choices during the electoral process, by aligning the transparency of political
actors with a significant purpose of influencing elections.
5. These amendments implement Recommendation 18 from the JSCEM Report on the
conduct of the 2019 federal election and matters related thereto, and are unlikely to
create significant regulatory or administrative burden for affected political actors, as
any political actor affected by this amendment already has mandatory disclosure
obligations as a "third party" under the Electoral Act, or would be required to make
such disclosures if similar electoral expenditure were incurred in future. The additional
reporting requirements reflect that organisations which incur electoral expenditure
above the thresholds outlined in Items 1, 2 and 3 are significant political actors or that
electoral expenditure and activity represents a significant component of the
organisation's activity, and should be subject to transparency requirements that align
with their political influence.
6. Item 4 is an application provision that provides that, upon commencement of the Act,
for the purposes of Part XX of the Electoral Act, a reference to "financial years" in
subsection 287F(1) of the Electoral Act includes financial years beginning before the
commencement of the Act. This provision is intended to ensure that financial years that
pre-date the commencement of the Act are not excluded from the effect of the
amendments.
7. Item 4 also has a note that alerts the reader that the effect of Item 4 means that a person
or entity may be required to register as a political campaigner before the end of 90 days
after commencement of the Act.
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Schedule 2 -- Other Amendments
Commonwealth Electoral Act 1918
8. Item 1 inserts ", associated entities" before the words "or third parties must not be made
by foreign donors" in section 286A, to align foreign donation requirements between
political campaigners and associated entities. This section provides a simplified outline
of Part XX of the Electoral Act relating to election funding and financial disclosure. The
inclusion of associated entities ensures that foreign donors are unable to provide gifts
for the purposes of incurring electoral expenditure or creating or communicating
electoral matter. It therefore strengthens existing safeguards against foreign interference
in Australian elections, by ensuring that foreign donors cannot raise, transfer, or expend
funds to influence the outcome of Australian federal elections. It ensures that associated
entities cannot be exploited as avoidance vehicles.
9. The amendments being made by Items 12 to 16 below will extend those provisions to
associated entities. The amendment being made by Item 1 ensures the simplified outline
remains accurate with respect to foreign donation provisions.
10. Existing subsection 287AB(3) provides that any expenditure incurred by or with the
authority of a political entity, a member of the House of Representatives or a Senator in
relation to an election is 'electoral expenditure' for the purposes of the Electoral Act.
11. Item 2 inserts "a person or entity that is (or is required to be registered as) a political
campaigner or an associated entity," after "political entity" in subsection 287AB(3).
This will have the effect of providing that the expenditure incurred by or with the
authority of political campaigners and associated entities in relation to an election will
be 'electoral expenditure' for the purposes of the Electoral Act.
12. Item 3 replaces "two-thirds" in subparagraph 287F(1)(b)(ii) with "one-third".
13. These amendments are intended to reduce the expenditure threshold at which a person
or entity must register as a political campaigner for a financial year, not including a
member of Australian Parliament or a "political entity" as defined in existing subsection
4(1) of the Electoral Act. The purpose of this reduction is to assist electors in making
informed choices during the electoral process, by aligning the transparency of political
actors with a significant purpose of influencing elections.
14. These amendments implement Recommendation 18 from the JSCEM Report on the
conduct of the 2019 federal election and matters related thereto, and are unlikely to
create significant regulatory or administrative burden for affected political actors, as
any political actor affected by this amendment already has mandatory disclosure
obligations as a "third party" under the Electoral Act, or would be required to make
such disclosures if similar electoral expenditure were incurred in future. The additional
reporting requirements reflect that organisations which incur electoral expenditure
above the thresholds outlined in Items 1, 2 and 3 are significant political actors or that
electoral expenditure and activity represents a significant component of the
organisation's activity, and should be subject to transparency requirements that align
with their political influence.
15. Item 3A adds new paragraph 287F(1)(c), which provides an additional circumstance in
which a person or entity (except a political entity, a member of the House of
Representatives or a Senator) must be registered for a financial year as a political
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campaigner. This new circumstance is satisfied if, during that financial year, the person
or entity operates for the dominant purpose of fundraising amounts:
• the aggregate of which is at least equal to the disclosure threshold; and
• that are for the purpose of incurring electoral expenditure or that are to be
gifted (that is, donated) to another person or entity for the purpose of
incurring electoral expenditure.
16. Item 4 is an application provision that provides that, upon commencement of the Act,
for the purposes of Part XX of the Electoral Act, a reference to "financial years" in
subsection 287F(1) of the Electoral Act includes financial years beginning before the
commencement of the Act. This provision is intended to ensure that financial years that
pre-date the commencement of the Act are not excluded from the effect of the
amendments.
17. Item 4 also has a note that alerts the reader that the effect of Item 4 means that a person
or entity may be required to register as a political campaigner before the end of 90 days
after commencement of the Act.
18. Item 4A amends subsection 287F(3) and omits "must not incur further electoral
expenditure in that financial year if the person or entity is not registered as a political
campaigner" and substitutes:
must not:
(a) incur any, or any further, electoral expenditure; or
(b) fundraise any, or any further, amounts for the purpose of incurring electoral
expenditure:
in that financial year, after becoming required to be so registered, if the person or
entity is not registered as a political campaigner.
19. This amendment will prevent a person or entity required to register as a political
campaigner in a financial year, from fundraising or incurring any further electoral
expenditure until they register as a political campaigner, or face a civil penalty.
20. Item 5 amends subsection 287F(3)(b) and inserts "(if any), or the amount, or an estimate
of the amount, fundraised in contravention of this subsection (if any), or both" after "this
subsection".
21. This will enable the civil penalty, when determined by a court, to include the new
political campaigner condition regarding fundraising amounts. Where a political
campaigner breaches the section, a penalty is proportionate to the magnitude of activity
undertaken contrary to the disclosure requirements of the Electoral Act.
22. Item 6 adds new paragraph 287H(1)(g), which adds an additional condition to
determine if an entity is required to be registered as an associated entity. This
amendment provides that an entity (except a political entity) must be registered for a
financial year as an associated entity if the entity operates wholly, or to a significant
extent, for the benefit of one or more disclosure entities, such as a political campaigner
(as defined by new subsection 287H(4), which is inserted by Item 7 below) and the
benefit relates to one or more electoral activities (whether or not the electoral activities
are undertaken during an election period).
23. New paragraph 287H(1)(g) is intended to provide greater transparency. Currently,
existing section 287H is limited to entities that have some relation with registered
7
political parties. This fails to capture many entities that are working for the benefit of
other entities that are not registered political parties but are active in electoral activities,
such as political campaigners. Expanding subsection 287H(1) will ensure that the public
has a better understanding of the role that these entities are playing in the electoral
process.
24. Item 6 also includes a Note at the end of subsection 287H(1). The Note explains that
the meaning of 'disclosure entity' in paragraph 287H(1)(g) is found in new subsection
287H(4) (which is inserted by Item 7 below).
25. Item 7 inserts new subsections 287H(4) and (5). New subsection 287H(4) provides a
modified form of the definition of 'disclosure entity' found in existing section 321B to
apply. The modification limits, for the purpose of new paragraph 287H(1)(g), apply the
meaning of 'disclosure entity' to the following:
• a political campaigner;
• a senator or a member of the House of Representatives;
• a candidate in an election or by-election;
• a person who was a candidate in an election or by-election of a member of
the House of Representatives in the previous 4 years;
• a person who was a candidate in an election of Senators for a State or
Territory in the previous 7 years; or
• a group of 2 or more candidates nominated for election to the Senate who
have their names grouped in the ballot papers in accordance with existing
section 168.
26. New subsection 287H(5) provides that, for the avoidance of doubt, the reference in new
paragraph 287H(1)(g) to a benefit that relates to an electoral activity includes:
• fundraising amounts, of at least equal to the disclosure threshold, for the
purpose of incurring electoral expenditure;
• assisting in the creation or communication of electoral matter; and
• otherwise facilitating the interests of a disclosure entity with respect to
preparing for, or participating in, an election.
27. This amendment provides a clear understanding of the term 'benefit' and the types of
electoral activities it includes. The amendment removes ambiguity and enhances the
transparency of activities that are considered as electoral activities.
28. Item 8 inserts "and any disclosure entity referred to in paragraph 287H(1)(g)" after
"registered political party" in subparagraph 287K(2)(b)(ii) and after "registered political
parties" in paragraph 287N(2)(c).
29. Item 9 inserts "and any disclosure entities referred to in paragraph 287H(1)(g)" after
"registered political parties" in paragraph 287N(2)(c).
30. Items 8 and 9 amend the information that is reported for both the application for
registration as a political campaigner or an associated entity and the Transparency
Register to include any of the disclosure entities referred to in Item 6 above.
8
31. This amendment enhances the transparency of entities who participate in electoral
activities that previously were not required to be registered as an associated entity.
32. Item 10 amends existing subparagraph 287S(1)(c)(v) so that references to "registered
political party" in that subparagraph are followed by a reference to "a disclosure entity
referred to in paragraph 287H(1)(g)". Existing section 287S relevantly provides the
Electoral Commissioner the power to notify an entity to register as an associated entity
if the entity is part of a suspected scheme to avoid the requirement to register under
existing section 287H. By making this amendment, section 287S can capture an entity
that attempts to avoid the application of new paragraph 287H(1)(g) by extending the
operation of that section to the disclosure entities covered by that paragraph. This helps
strengthen existing safeguards against foreign interference in Australian elections.
33. Item 11 replaces "; and" in subparagraph 287S(1)(c)(v) with "; or". This is a
consequential amendment to the insertion by Item 12 of new subparagraph
287S(1)(c)(vi).
34. Item 12 inserts new subparagraph 287S(1)(c)(vi), which adds a new circumstance in
which a notice under existing section 287S may be given to a person or entity in relation
to a suspected avoidance scheme. This new circumstance is satisfied if the scheme (or
part of the scheme) results in the person or entity not operating wholly, or to a significant
extent, for the dominant purpose of fundraising amounts that are for the purpose of
incurring electoral expenditure or that are to be gifted to another person or entity for the
purpose of incurring electoral expenditure.
35. This is intended to deal with a scheme that results in Item 3 new paragraph 287F(1)(c)
not applying to require a person or entity from registering as a political campaigner.
New subparagraph 287S(1)(c)(vi) will mean that the Electoral Commissioner has the
power under existing section 287S to ensure the effectiveness of new paragraph
287F(1)(c). This covers conduit activity, such as passing funds through intermediaries
to avoid reporting obligations. The amendment applies the anti-avoidance rule to an
entity that receives donations exceeding the disclosure threshold for the dominant
purpose of incurring electoral expenditure, to convey it to another entity to spend on an
election. For example:
• An associated entity raises money for an election. The associated entity then
sends significant funds to Quokka Co, which is a company with no genuine
business activities. Quokka Co then pays a significant amount to a political
campaigner, purporting that this settles an invoice for indeterminate
'consultancy services'.
• The AEC will be able to:
o determine if the transactions reveal a scheme to avoid Quokka Co
registering as an associated entity or political campaigner, and;
o issue a notice specifying that Quokka Co is required to be registered as
an associated entity or political campaigner (as the case requires) from
the day specified in the notice.
36. Items 13, 14 and 15 amend section 302A, which provides a simplified outline of
Division 3A the requirements relating to donations. These amendments are to align the
new registration requirements for political campaigners and associated entities with the
9
donation regulations to ensure there is a consistent application of disclosure and
reporting requirements for political actors.
37. Item 13 omits "political campaigners and third parties" and substitutes "political
campaigners, associated entities and third parties" where the outline refers to regulating
gifts to the categories of political actors.
38. Item 14 omits "or political campaigners" and substitutes "political campaigners or
associated entities" where gifts over $1,000 must not be made by foreign donors.
39. Item 15 omits "political campaigner or third party" and substitutes "political
campaigner, associated entity or third party" where gifts in general must not be made by
a foreign donor for the purpose of incurring electoral expenditure or creating or
communicating electoral matter.
40. Item 16 amends the heading to section 302D to reflect that the section now deals with
associated entities alongside political campaigners and other political entities.
41. Item 17 inserts "or an associated entity" after "political campaigner" in subparagraph
302D(1)(a)(ii). This section will extend the criminal offence and civil penalty provision
for an agent of a political entity or a financial controller to include associated entities if
a donation is made to the agent or controller by a foreign donor that contravenes
subsection 302D(1).
42. This amendment is subject to the existing exceptions in section 302D.
Subsection 302D(1C) (which has not been amended) allows recipients to receive foreign
donations intended to be used for purposes unrelated to federal elections. For example,
this would permit an Australian not-for-profit who is a registered political campaigner
to receive $120 million from an Icelandic trust to plant trees as part of an environmental
remediation project. This is because using the gift to incur electoral expenditure, or to
create or communicate electoral matter would be inconsistent with the terms of the gift.
43. Item 18 amends existing paragraph 302D(1A)(a) to ensure this exception applies to a
financial controller of an associated entity as it would for the financial controller of a
political campaigner. Existing subsection 302D(1A) provides for an exception for an
agent or financial controller contravening subsection 302D(1). Where the donor has
stated they are not a foreign donor, steps were taken to determine whether the donor is
a foreign donor, or the agent or controller did not know or have reasonable grounds to
believe the donor was a foreign donor in the 6 week period after the donation was
received.
44. Items 19 and 20 amend existing subsection 302F(1), which deals with receiving foreign
donations for the purposes of incurring electoral expenditure, and carries both criminal
and civil penalties if contravened. Existing subsection 302F(1) does not apply to
associated entities. The amendments made by Items 19 and 20 will provide that
subsection 302F(1) will apply to associated entities, to align the disclosure requirements
for this category of political actor with requirements for political entities, political
campaigners and third parties.
45. Item 21 inserts a new subparagraph 302F(2)(c)(iia) to ensure that a donation by a foreign
donor to a financial controller of an associated entity will be covered by subsection
302F(2). This amendment is intended to place associated entities in the same position as
10
political entities, political campaigners and third parties. A contravention of subsection
302F(2) carries criminal and civil penalties.
46. Item 22 amends existing paragraphs 302H(1)(b) and (c) to include references to
"associated entity" after "political campaigner" to ensure that existing section 302H can
address schemes attempting to avoid the application of sections 302D and 302F with
respect to associated entities. Section 302H provides a means by which the Electoral
Commissioner can address schemes that are suspected of being used to avoid the
prohibition on foreign donations.
47. Item 23 replaces "subparagraph (2)(b)(ii)" in subsection 314AB(1) with "(b)". This
corrects a typographical error from the Electoral Legislation Amendment (Electoral
Funding and Disclosure Reform) Act 2018, as there is no subparagraph 314AB(2)(b)(ii).
48. Item 24 inserts new subsection 314AB(3A). This subsection provides that, if a person
or entity becomes registered as a political campaigner in a given financial year and was
not required to be registered (and was not) a political campaigner the previous financial
year, their financial controller must nonetheless provide an annual return for the
previous financial year. This ensures appropriate transparency about the financial affairs
of an entity in the financial year immediately prior to its transition to 'political
campaigner' status, because its subsequent political activities may be financed using
previously accumulated funds. This annual return for the previous financial year must
set out the amounts and benefits that existing subsection 314AB(2) requires. The return
required under new subsection 314AB(3A) is in addition to the existing requirement in
section 314AB to provide an annual return for the financial year(s) in which they become
or are a political campaigner.
49. This amendment is not intended to require the financial controller to submit the same
annual return for the same financial year twice. The return required under new
subsection 314AB(3A) must be provided by the end of the period of 30 days after the
person or entity is registered as a political campaigner for a financial year. A failure to
provide a return attracts a civil penalty.
50. Item 24 also inserts new subsection 314AB(3B). That new subsection provides that, if
a return required under new subsection 314AB(3A) would include no amounts or details,
the return provided must include a statement to that effect (a 'nil return').
51. Item 24 also inserts new subsection 314AB(3C). That subsection provides that a return
required under section 314AB by a political campaigner who is an individual does not
have to include:
• any amounts received or debts incurred by, or on behalf of, the political
campaigner in a purely personal capacity;
• any amounts paid by, or on behalf of, the campaigner for personal purposes
and not solely or substantially for a purpose related to an election.
52. The purpose of new subsection 314AB(3C) is to ensure that the return that such a
political campaigner is providing is focused only on those amounts or debts that are
relevant to why the person has been required to register as a political campaigner.
53. Item 25 amends existing subsection 314AB(4) to include a reference to new subsection
314AB(3A) so that the disapplication of subsection 93(2) of the Regulatory Powers
11
(Standardisation Reform) Act 2021 (Regulatory Powers Act) also applies for
contraventions of new subsection 314AB(3A). Existing subsection 314AB(4) provides
that subsection 93(2) of the Regulatory Powers Act does not apply to a contravention of
existing subsection 314AB(1). That subsection of the Regulatory Powers Act provides
that, if an act or thing required to be done within a period or before a particular time is
not done, each day it is not done is taken to be a separate contravention.
54. Item 26 repeals and replaces subsection 314AEA(2). This amendment will require a
newly registered associated entity who did not meet the registration requirements for the
previous year to submit a return to the Electoral Commissioner by the end of the period
of 30 days after the entity has registered as an associated entity for a financial year, in
alignment with the requirement for political campaigners. This ensures appropriate
transparency about the financial affairs of an entity in the financial year immediately
prior to its transition to 'associated entity' status, because its subsequent political
activities may be financed using previously accumulated funds.
55. The amendment will require the associated entity to provide the following information
in the return:
• total amounts received and paid by, or on behalf of the entity during the previous
financial year;
• total outstanding amount of all debts incurred by, or on behalf of the entity as at
the end of the previous financial year; and
• any discretionary benefits received by, or on behalf of, the entity from the
Commonwealth, a State or Territory during the previous financial year.
56. This amendment is not intended to require the financial controller to submit the same
annual return for the same financial year twice. A failure to provide a return attracts a
civil penalty.
57. Items 27 and 28 amends existing subsection 314AEA(3), which currently sets out the
details that a return required under subsection 314AEA(1) must provide with respect to
the total amount paid by, or on behalf of, the entity during the financial year (see existing
paragraph 314AEA(1)(d)). Items 27 and 28 extend this requirement by inserting a
reference to subsection 314AEA(2) and new paragraph 314AEA(2)(d) in the chapeau of
subsection 314AEA(3).
58. Item 29 amends existing subsection 314AEA(4). That subsection provides that a return
does not have to set out contributions that have been set out in a previous return. This
amendment provides that existing subsection 314AEA(4) applies to both returns under
subsections 314AEA(1) and 314AEA(2).
59. Item 30 amends existing subsection 314AEA(5). The purpose of existing section
314AEA(5) is to address how existing subsection 314AEA(1) relies on existing sections
314AC and 314AE. Under subsection 314AEA(1), a return must include:
• the details required under section 314AC (which requires certain particulars
about sums received from a person or organisation that is more than the
disclosure threshold); and
12
• the details required under section 314AE (which requires certain particulars
about outstanding debts to a person or organisation that is more than the
disclosure threshold).
60. However, sections 314AC and 314AE relate to registered political parties and political
campaigners. To make those sections work for returns by associated entities under
section 314AEA, existing subsection 314AEA(5) provides that sections 314AC and
314AE apply to a return for an associated entity in the same way as they apply for the
purposes of subparagraphs 314AB(2)(a)(i), (ii) and (iii) (which are the equivalents of
paragraphs 314AEA(1)(a), (b) and (c)) to a return for a registered political party or a
political campaigner. The effect of the amendment being made by Item 30 is to ensure
that subsection 314AEA(5) applies to new paragraphs 314AEA(2)(c), (d) and (e) as
those paragraphs are to operate for the purposes of a return under new subsection
314AEA(2) in the same way as paragraphs 314AB(2)(a)(i), (ii) and (iii) operate for a
return under existing subsection 314AEA(1).
61. Existing subsection 314AEA(6) provides that an associated entity is not required to
provide a return under existing 314AEA(1) for a financial year if the entity was also a
political campaigner and had made a return under section 314AB. Item 31 amends
subsection 314AEA(6) so that this extends to a return required under new subsection
314AEA(2).
62. Item 32 inserts new subsection 314AEA(6A). That new subsection provides that, if a
return required under subsection 314AEA(2) would include no amounts or details, the
return provided must include a statement to the effect that there are no amounts or details
to be included.
63. Item 33 amends subsection 314AEA(7) to include a reference to new subsection
314AEA(2) so that the disapplication of subsection 93(2) of the Regulatory Powers Act
also applies for contraventions of new subsection 314AEA(2). Existing subsection
314AEA(7) provides that subsection 93(2) of the Regulatory Powers Act does not apply
to a contravention of existing subsection 314AEA(1). That subsection of the Regulatory
Powers Act provides that, if an act or thing required to be done within a period or before
a particular time is not done, each day it is not done is taken to be a separate
contravention.
64. Item 34 inserts new subsection 316(2AB). Existing subsection 316(2A) provides that a
notice may be served on (among others) political parties, candidates, political
campaigners and associated entities to find out whether Part XX of the Electoral Act has
been complied with or whether to give a notice under section 287S or 302H (both of
which deal with anti-avoidance). That notice may require the person it is served on must
produce documents or other things specified in the notice within a period specified by
the notice. New subsection 316(2AB) provides that the period specified in such a notice
must be no longer than 30 days after the date of the notice.
65. Subitem (1) of Item 35 provides that, upon commencement of the Bill, for the purposes
of Part XX of the Electoral Act, a reference to "financial years" in subsections 287F(1)
and 287H(1) of the Electoral Act includes financial years beginning before the
13
commencement of the Bill. This provision is intended to ensure that financial years that
pre-date the Bill's commencement are not excluded from the effect of the amendments.
66. Subitem (2) of Item 35 provides that, subject to subitem (3) of Item 35, upon
commencement of the Bill, new subsection 314AB(3A) of the Electoral Act applies to
the financial year in which the Bill commences. This provision is intended to ensure that
the financial year that pre-dates the Bill's commencement is not excluded from the effect
of the amendment.
67. Subitem (3) of Item 35 is a transitional provision to address a potential issue with the
commencement of new subsection 314AB(3A). That subsection requires a person or
entity that became a political campaigner in a financial year to provide a return for the
previous financial year. The return must be provided by the end of the period of 30 days
after the person or entity is registered as a political campaigner.
68. However, it is possible a person or entity may have become a political campaigner more
than 30 days before the Bill commenced. Because of subitem (2) of Item 35, new
subsection 314AB(3A) applies to a financial year before the Bill's commencement. This
means without providing for some sort of transitional arrangement such a person or
entity would contravene new subsection 314AB(3A) the moment it commences since
the 30-day period to provide the return would already have elapsed.
69. Subitem (2) of Item 35 avoids this by providing that, for those persons or entities who
are political campaigners immediately before the Bill's commencement, the reference
in new subsection 314AB(3A) to "30 days after the person or entity is registered as a
political campaigner for the current financial year" is to be treated as though it said
"30 days after the commencement of this subsection". This political campaigners will
have 30 days after the commencement of new subsection 314AB(3A) to provide the
return required by that new subsection.
70. Subitem (4) of Item 35 provides that, subject to subitem (5) of Item 35, upon
commencement of the Act, new subsection 314AEA(2) of the Electoral Act applies to
the financial year in which the Act commences. This provision is intended to ensure that
the financial year that pre-dates the Act's commencement is not excluded from the effect
of the amendment.
71. Subitem (5) of Item 35 addresses a transitional issue similar to the one being addressed
by subitem (3) of Item 35.
72. New subsection 314AEA(2) requires returns about the previous financial year from
entities that become associated entities in a financial year. But those returns are required
to be provided 30 days after an entity becomes an associated entity, and it is possible
that an associated entity may have become such an entity more than 30 days before new
subsection 314AEA(2) commenced.
73. To avoid an associated entity being in contravention of new subsection 314AEA(2) the
moment it commences, subitem (5) of Item 35 has effect of providing that the reference
in new subsection 314AEA(2) to "30 days after the entity is registered as an associated
entity for the current financial year" were replaced with "30 days after the
14
commencement of this subsection". This means that an entity that is an associated entity
immediately before new subsection 314AEA(2) commences has 30 days after that
commencement to provide the return that new subsection requires.
15
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