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2019-2020-2021
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE
EQUALITY) BILL 2021
EXPLANATORY MEMORANDUM
(Circulated by authority of Special Minister of State,
the Hon Ben Morton MP)
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum:
Abbreviation Definition
AEC Australian Electoral Commission
Bill Electoral Legislation Amendment (Annual
Disclosure Equality) Bill 2021
Candidate An individual seeking nomination in an
election as a Senator or as a member of the
House of Representatives
Electoral Act Commonwealth Electoral Act 1918
Federal purpose The purpose of incurring electoral
expenditure, or creating or communicating
electoral matter, as defined in section 287
of the Electoral Act
Group A group is taken to begin to be a group in
an election for the Senate on the day the
members of the group make a request
under section 168 for their names to be
grouped in the ballot papers for the
election
Item Refers to an item in the Bill
ICCPR International Covenant on Civil and
Political Rights
Regulatory Powers Act Regulatory Powers (Standard Provisions)
Act 2014
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ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE
EQUALITY) BILL 2021
GENERAL OUTLINE
The Bill amends the Electoral Act to harmonise the application of the financial disclosure
and foreign donations framework to more closely align the ongoing disclosure obligations
of elected representatives with those of candidates seeking election.
The Bill will:
• extend the application of the existing foreign donations framework to current
sitting members of the House of Representatives and Senators from the period in
which they have formally announced their intention to seek re-election, to the full
length of their parliamentary term;
• require parliamentarians who receive gifts for a federal purpose directly - that is,
for the purpose of incurring electoral expenditure, or creating or communicating
electoral matter - to lodge an annual return to the AEC relating to gifts received for
a federal purpose during the financial year; and
• extend the period for which a person is taken to be a candidate by an additional six
months, for the purpose of the disclosure period for candidate and Senate group
returns, and for restrictions on receiving foreign donations.
These proposals build on the reforms to the Electoral Act introduced by the Government
in recent years to increase transparency regarding gifts to political parties, candidates,
political campaigners and third parties, that are intended to preclude foreign donations
from influencing the outcome of Australian federal elections.
The amendments keep pace with changes in existing practices, closing a loophole
available to parliamentarians who collect donations for federal purposes directly, without
disclosing the collected funds. The amendments increase transparency and reduce the
opportunity for donations to be made to some parliamentarians at a different standard of
public scrutiny compared to the requirements that apply for political parties.
FINANCIAL IMPACT STATEMENT
The measures in the Bill are expected to be cost neutral. There are no significant costs or
savings associated with the Bill.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
A Statement of Compatibility with Human Rights has been completed in relation to the
amendments in this Bill. The amendments have been assessed as compatible with
Australia's human rights obligations.
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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 (Annual Disclosure Equality) Bill 2021
The Bill is compatible with the human rights and freedoms recognised or declared in the
international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Human rights implications
The impact of the Bill on the following rights of the ICCPR has been considered:
• the right to privacy under Article 17; and
• the right to political participation under Article 25.
Article 17 - right of citizens to take part in public affairs and elections
Annual returns and extended disclosure periods
1. The Bill engages the right to privacy under Article 17 of the ICCPR because it requires
members of the House of Representatives and Senators to lodge annual returns if they
receive donations for a federal purpose directly and extends the disclosure period for
candidate and group election returns. These returns will be published on the AEC's
Transparency Register.
2. Disclosure is required in a limited regulatory context, and only those who receive
donations directly, for a federal purpose will be required to provide a return. Consistent
with the current obligations of candidates, these returns will only need to include gifts
given to members of the House of Representatives and Senators for a federal purpose.
3. The right to privacy is subject to permissible limitations where these limitations are
authorised by law and not arbitrary, for a reason consistent with the ICCPR and
reasonable in the particular circumstances. The United Nations Human Rights
Committee has interpreted the requirement of reasonableness to imply that any
interference with privacy must be proportionate to the end sought, and necessary in the
circumstances of any given case.
4. The measures in this Bill further harmonise the disclosure requirements for political
actors. Elected parliamentarians are familiar with the obligation to furnish disclosure
returns to the AEC, due to the longstanding obligation of candidates to submit returns
following each election. It will promote the rights of citizens to participate meaningfully
in elections by providing greater transparency about actors seeking to influence political
and electoral outcomes.
5. The extended disclosure period for candidate and group returns does not change existing
requirements in relation to the information that must be disclosed, rather it extends the
period of time covered by the disclosure period to increase transparency of donations
made to candidates. This also promotes the rights of citizens to participate meaningfully
in elections by providing greater transparency about actors seeking to influence electoral
outcomes, regardless of whether amounts are received by a political party or by a
parliamentarian directly.
6. Individuals whose privacy is impacted have freely chosen to play a prominent role in
public debate and put themselves, or those they represent, forward for election to public
office. It is a reasonable assumption that where parliamentarians collect donations for
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the purpose of seeking re-election, or otherwise seeking to influence the outcome of a
federal election, that these donations should be disclosed on an annual basis similar to
the standards that apply to political parties.
7. The amendments in this Bill are therefore appropriate and proportionate to the end
sought, and necessary to provide the public with access to this disclosure information.
The limitation is therefore consistent with Article 17 of the ICCPR.
Article 25 - right of citizens to take part in public affairs and elections
Restrictions on foreign donations
8. The Bill engages the right of citizens to take part in public affairs and elections under
Article 25 of the ICCPR because it prevents members of the House of Representatives
and Senators from receiving foreign donations, and extends the period for which
candidates in an election are restricted from receiving foreign donations.
9. This right may be subject to permissible limitations, where these limitations are provided
by law and necessary for public order or respect of the rights or reputations of others.
Limitations must also have a legitimate objective, be reasonable and necessary to
achieve the desired purpose, and be proportionate to the need on which the limitation is
predicated.
10. Foreign-sourced political funds amount to undue influence in a domestic political
debate, both during an election and during the term of a sitting Parliament. Therefore it
is appropriate to require political donors to have a meaningful connection to Australia,
and to make it unlawful to knowingly retain or use foreign donations to finance political
expenditure in Australia.
11. The offences are necessary for protecting public order. Public order encompasses the
rules which ensure the peaceful and effective functioning of society, or the set of
fundamental principles on which society is founded. Accepting foreign donations
creates a conflict of interest, or the perception thereof, among key figures in electoral
debate and campaigning and can therefore undermine democracy. Elections serve not
only to select the winner but also to convince the unsuccessful candidates and their
supporters that they lost fairly. Therefore perceptions of fairness, integrity and accuracy
are important for elections to result in peaceful transitions of power in democracies.
12. Additionally, the disclosure provisions serve a genuine public interest by protecting free,
fair and informed voting, which is essential to Australia's system of representative
government, enhancing the transparency of the electoral system, and protecting national
security. The requirement for expenditure and gifts that meet the relevant disclosure
requirements to be made a matter of public record and open to public inspection serves
the public interest. As such, the civil penalties contemplated by the Bill are necessary to
ensure compliance with the disclosure provisions.
13. The right to take part in public affairs by donating to key political actors must be
balanced against the need for transparency and accountability in the political system and
the overarching importance of public confidence in, and the integrity of, political
institutions and the democratic system.
14. The limitation is therefore consistent with Article 25 of the ICCPR.
Conclusion
The Bill is compatible with human rights because, to the extent it may limit human rights,
those limitations are reasonable, necessary and proportionate.
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ELECTORAL LEGISLATION AMENDMENT (ANNUAL DISCLOSURE
EQUALITY) BILL 2021
NOTES ON CLAUSES
Clause 1 - Short title
1. Clause 1 is a formal provision specifying the title of the Bill when enacted will be the
Electoral Legislation Amendment (Annual Disclosure Equality) Act 2021.
Clause 2 - Commencement
2. Subclause 2(1) provides that the provisions in column 1 of the Commencement table
commence at the time set out in column 2.
3. Item 1 in the Commencement table provides that the whole of the Act commences on
the day after the Act receives the Royal Assent.
4. A note is inserted below the Commencement table stating that the table relates only
to the provisions of the Act as originally enacted and that the table will not be amended
to deal with any later amendments of the Act.
5. Subclause 2(2) provides that information in column 3 of the Commencement table is
not part of the Act. Information may be inserted into column 3, or information in
column 3 may be edited, in any published version of the Act.
Clause 3 - Schedules
6. Clause 3 provides that legislation specified in a Schedule to the Act is amended or
repealed as set out in the applicable items in the Schedule concerned, and any other
item in a Schedule to the Act has effect according to its terms.
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Schedule 1 - Amendments
Commonwealth Electoral Act 1918
1. Part XX of the Electoral Act provides for the funding of registered political parties,
candidates and Senate groups. It also deals with the financial disclosure obligations
relating to electoral expenditure incurred by individuals and entities involved in the
communication or creation of electoral matter.
2. The AEC is an independent statutory authority, established under the Electoral Act.
The AEC has published a range of guidance documents relating to funding and
disclosure under Part XX of the Electoral Act, which may also assist the reader of the
Explanatory Memorandum. These publications are available at www.aec.gov.au.
Part 1--Prohibiting foreign donations
3. The Electoral Act currently prohibits political parties, candidates, Senate groups and
political campaigners from receiving gifts of $1,000 or more from a foreign donor and
restricts them from receiving gifts of $100 or over from a foreign donor when the gift
is intended to be used to incur electoral expenditure or to create or communicate
electoral matter. Part 1 of the Bill amends the Electoral Act to include members of the
House of Representatives and Senators within these provisions.
4. Items 1, 2 and 3 amend section 286A, which is the simplified outline of Part XX,
Division 1 of the Electoral Act relating to election funding and disclosure. These
amendments apply the requirements of receipt and disclosure of gifts from foreign
donors to members of the House of Representatives and Senators.
5. Item 1 inserts "members of the House of Representatives, Senators," after "Generally,
gifts of at least $1,000 to".
6. Item 2 inserts "members of the House of Representatives, Senators," after "Broadly,
gifts to".
7. Item 3 inserts ''members of the House of Representatives, Senators," before
"registered political parties, State branches and political campaigners".
8. Items 4, 5 and 6 amend section 302A, which is the simplified outline of Division 3A,
to extend the application of the existing foreign donations framework to current sitting
members of the House of Representatives and Senators. This extension provides that
members of the House of Representatives and Senators are to comply with the
framework in the same manner as registered political parties, candidates, groups,
political campaigners and third parties.
9. Item 4 inserts "members of the House of Representatives, Senators," in the first
paragraph of the section after "This Division regulates gifts that are made to".
10. Item 5 omits "Gifts of over $1,000 to", and substitutes "Gifts of at least $1,000 to
members of the House of Representatives, Senators,".
11. Item 6 inserts "member of the House of Representatives, Senator," after "Broadly,
gifts must not be made to a".
12. Section 302D outlines the conditions for the offence provision relating to donations
to registered political parties, candidates, Senate groups and political campaigners by
foreign donors. Items 7, 8, 9, 10 and 11 insert references to members of the House of
Representatives and Senators throughout section 302D to ensure they are included in
all relevant provisions of the foreign donations regulatory framework.
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13. Item 7 amends the heading in section 302D by inserting "members of the House of
Representatives, Senators," after "Donations to".
14. Item 8 inserts new subparagraph 302D(1)(a)(ia). This provides that members of the
House of Representatives and Senators are 'gift recipients' for the purposes of section
302D.
15. Items 9, 10 and 11 are consequential amendments to include members of the House
of Representatives and Senators in the 'exception--obtaining information about
foreign donor status' provisions of existing subsection 302D(1A).
16. Items 12 and 13 amend subsection 302F(1) to extend subsection 302F(1) to members
of the House of Representatives and Senators.
17. Item 14 inserts new subparagraph 302F(2)(c)(ia) to include members of the House of
Representatives and Senators in the scope of subsection 302F(2), which sets out the
elements of an offence by a foreign donor under this subsection.
18. It is an offence under existing section 302H to establish arrangements to avoid the
foreign donations restrictions in sections 302D, 302E and 302F.
19. Items 15, 16 and 17 amend subparagraphs 302H(1)(b)(i), 302H(1)(b)(ii),
302H(1)(c)(i) and 302H(1)(c)(iii) to include members of the House of Representatives
and Senators in the scope of the anti-avoidance provision set out in section 302H.
Section 302H provides the Electoral Commissioner with the power to issue notices
where there are reasonable grounds to conclude that person has entered into a scheme
to avoid the restrictions on receiving foreign donations set out under sections 302D,
302E or 302F.
20. Items 18, 19 and 20 amend subsection 316(2A) of the Electoral Act to apply the
Electoral Commission's powers to investigate compliance with the funding and
disclosure requirements under Part XX of the Electoral Act to the obligations created
by the amendments in this Bill.
21. Item 18 inserts new subparagraph 316(2A)(aaa)(ia) after subparagraph
316(2A)(aaa)(i) to include a member of the House of Representatives or a Senator in
the list of persons and entities whose compliance with Part XX may be subject to
investigation.
22. Item 19 inserts new subparagraph 316(2A)(aac) to include members of the House of
Representatives and Senators in the notice provisions of section 316.
23. Item 20 inserts "member of the House of Representatives, Senator," into subsection
316(2A) after "as the case may be, require the" which relates to compliance with
notices issued under section 316.
24. These amendments ensure that parliamentarians are subject to the same foreign
donations regime as political parties, Senate groups, and political campaigners, which
is the same regime parliamentarians adhere to when standing as candidates for
election. This is necessary to support the ongoing integrity and transparency of
Australia's electoral system by ensuring foreign money is kept out of federal elections,
and cannot find its way in through exploitation of loopholes.
25. Item 21 relates to the application of the amendments. The amendments made to
sections 302D and 302F made by Part 1 apply in relation to gifts made on or after the
commencement of this item, being the day after the Act receives the Royal Assent.
The amendments made to sections 302H and 316 made by Part 1 apply in relation to
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notices given on or after the commencement of this item, being the day after the Act
receives the Royal Assent.
8
Part 2--Annual returns
26. Part 2 of the Bill creates a requirement for members of the House of Representatives
and Senators, and their respective donors, to lodge an annual return with the AEC,
each financial year they directly receive gifts for a federal purpose. A parliamentarian
who does not receive gifts for a federal purpose during a financial year will not be
required to submit an annual return.
27. Items 22 and 23 amend section 286A, which is the simplified outline of Division 1
of Part XX of the Electoral Act relating to election funding and disclosure. These
amendments expand the requirements to members of the House of Representatives
and Senators to disclose each financial year details relating to amounts received or
paid or incurred during the financial year.
28. Division 4 of Part XX of the Electoral Act regulates the disclosure of gifts to
candidates and members of groups in an election, as well as donors who make gifts
where the value or amount of the gifts is more than the disclosure threshold.
29. Item 24 amends section 302V to include members of the House of Representatives
and Senators in the list of persons and entities in the simplified outline of Division 4
- Disclosure of donations. Item 24 inserts the sentence "Gifts totalling more than the
disclosure threshold that are made by a single person to the same member of the House
of Representatives or the same Senator during a financial year for federal purposes
must also be disclosed in a return provided to the Electoral Commission." into the
outline.
30. Item 25 inserts new section 306. New subsection 306(1) requires persons or entities
to provide a return to the AEC if they have made a gift or gifts for a federal purpose
to the same member of the House of Representatives or Senator and the total amount
or value of the gifts is more than the disclosure threshold during the financial year.
This will require gift recipients and donors to provide corresponding returns, and is a
corollary to new section 314AED described in Item 28 below.
31. A Note is included after new subparagraph 306(1)(b) to direct the reader to the
definition of 'federal purpose' in subsection 287(1). This states that federal
purpose means the purpose of incurring electoral expenditure, or creating or
communicating electoral matter.
32. Persons or entities who fail to comply with the new return obligation under new
subsection 306(1) may be subject to a civil penalty, the higher of either 60 penalty
units or, where there is sufficient evidence for a court to determine or estimate the
amount or value of any gifts not disclosed in an annual return, three times the amount
of that value.
33. New subsection 306(2) requires a return furnished under the provision to include the
amount or value of each gift, the date on which it was made, and the name and address
of the member or Senator to whom the gift was made. This is consistent with the
existing return obligations for donors to political campaigners and political parties
under section 305B (unamended by this Bill).
34. New subsections 306(3) and (4) requires a return furnished under the provision to set
out the details of any gift received by the person or entity if it was used wholly or
partly to make another gift to a member of the House of Representatives or Senator
for federal purposes over the disclosure threshold. This is consistent with the existing
return obligations for donors to other political actors in section 305B (unamended by
this Bill).
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35. New subsection 306(5) requires a return under section 306 to be lodged in the
approved form before the end of 20 weeks after the end of the financial year,
consistent with timeframes for other annual returns.
36. New subsection 306(6) provides that section 306 does not apply gifts made to a
parliamentarian by a political entity or associated entity. These entities already lodge
annual returns with the AEC, and are excluded to avoid duplication in the disclosure
of gifts.
37. New subsection 306(7) provides that subsection 93(2) of the Regulatory Powers Act
does not apply in relation to a contravention of the requirement to submit a return
under new subsection 314AED(1). This means that a contravention of the civil penalty
provision under new section 306 will not be considered a separate contravention of
that provision in respect of each day during which the contravention occurs if the
timeframe for lodging an annual return passes.
38. Item 26 amends section 314AAA, which sets out a simplified outline of Division 5A
of the Electoral Act ('Annual returns by registered political parties and other
persons'). It inserts additional text to the outline to state "Members of the House of
Representatives and Senators also provide annual returns setting out details relating
to gifts made for federal purposes that were received by them during the year."
39. Item 27 inserts "member of the House of Representatives, Senator," into subsection
314AA(2), which will require a member of the House of Representatives or Senator
to provide a return in relation to the whole financial year, even if they cease to be a
member or Senator in that financial year.
40. Item 28 inserts new section 314AED which relates to annual returns for gifts received
by members of the House of Representatives or Senators. New subsection 314AED(1)
creates an obligation for members of the House of Representatives and Senators to
provide an annual return to the AEC covering the financial year if they receive any
gifts during that financial year that were made for federal purposes.
41. Note 1 to new subsection 314AED(1) refers the reader to the definition of 'federal
purpose' contained in subsection 287(1). This states that federal purpose means the
purpose of incurring electoral expenditure, or creating or communicating electoral
matter.
42. Note 2 to new subsection 314AED(1) clarifies that if the member of the House of
Representatives or Senator did not receive any gifts during the year that were made
for federal purposes, they do not need to provide a return.
43. Note 3 to new subsection 314AED(1) clarifies that, as with annual returns provided
to the AEC by political parties, political campaigners, associated entities and third
parties, annual returns provided by members of the House of Representatives or
Senators will be published on the AEC's Transparency Register.
44. New subsection 314AED(1) also establishes a civil penalty for failure to comply with
the annual return obligation, which is the higher of either 60 penalty units or, where
there is sufficient evidence for a court to determine or estimate the amount or value of
any gifts not disclosed in an annual return, three times the amount of that value.
45. New subsection 314AED(2) sets out what must be included in the annual return (the
content of the return). This will be reflected in the approved form created by the AEC
for members of the House of Representatives and Senators to complete. This includes
the total amount or value of all gifts received in the financial year that were received
10
for federal purposes (314AED(2)(a)) and total number of people who made those gifts
(314AED(2)(b)). Additional details are required for gifts made to a member or Senator
over an amount or value that is more than the disclosure threshold. New subparagraph
314AED(2)(c) requires that the following details of all gifts made for federal purposes
of a value or amount over the disclosure threshold to be included in the return:
• the amount or value of the gift;
• the date on which the gift was made; and
• details of the person or entity who made the gift, as set out in subparagraphs
314AED(2)(c)(iii)-(v).
46. For the avoidance of doubt, Item 28 applies to gifts received for the purpose of
incurring electoral expenditure, or creating or communicating electoral matter.
47. New subsection 314AED(3) requires that members of the House of Representatives
and Senators submit their annual return before the end of 20 weeks after the end of
the financial year, in the form published by the AEC.
48. New subsection 314AED(4) states that gifts already included in returns made under
section 304 of the Electoral Act (candidate returns), or section 314AB of the Electoral
Act (annual returns by a registered political party or political campaigner) do not need
to be included in a return under new subsection 314AED. This is to avoid duplication
in reporting the receipt of a gift.
49. New subsection 314AED(5) states that subsection 93(2) of the Regulatory Powers Act
does not apply in relation to a contravention of the requirement to submit a return
under new subsection 314AED(1). This means that a contravention of the civil penalty
provision under new subsection 314AED(1) will not be considered a separate
contravention of that provision in respect of each day during which the contravention
occurs if the timeframe for lodging an annual return passes.
50. New subsection 314AED(6) clarifies that a person may lodge a return with the AEC
under section 314AED on behalf of a member of the House of Representatives or a
Senator.
51. Item 29 inserts "or 306 (gifts to members of the House of Representatives or
Senators)" after "political campaigners)" in subparagraph 316(2A)(aaa)(i). This
expands the power of the authorised officer to find out whether a member of the House
of Representatives or Senator has complied with Part XX or the Criminal Code in
relation to gifts received.
52. Item 30 inserts paragraph 319A(2A)(aa) to include returns furnished by members of
the House of Representatives and Senators relating to claims and returns to be
amended by request of the Electoral Commissioner under section 319A.
53. Item 31 omits "or 305B" and substitutes ", 305B and 306" in the definition of
'disclosure entity' in subparagraphs 321B(g)(i) and (ii). This is a consequential
amendment to give effect to the amendments at Item 25.
54. Item 32 omits "and 305B" and substitutes ", 305B and 306" in the note to the
definition of 'disclosure entity' in section 321B, to reflect the amendments at Item 25.
55. Item 33 omits "and political campaigners" and substitutes ", political campaigners,
members of the House of Representatives, and Senators" in the note to the definition
11
of 'disclosure entity' in section 321B. This is a consequential amendment to reflect
the amendments in Item 25.
56. Item 34 sets out application and transitional provisions for the changes to annual
donor returns to include gifts to members of the House of Representatives and
Senators (section 306) and new annual returns requirement for Senators and members
of the House of Representatives (new section 314AED).
57. Subitem 34(1) provides that section 306 as inserted applies in relation to each
financial year following commencement of the Bill whether the gifts concerned are
made before, on or after the commencement of this item.
58. Subitem 34(2) provides that new annual return requirement under new section
314AED will apply in relation to the 2020-21 financial year and all following financial
years, whether the gifts concerned are received before, on or after the commencement
of this item.
59. Subitem 34(3) provides that members of the House of Representatives and Senators
who received gifts required to be disclosed under new section 314AED in the 2020-21
financial year will be required to provide the AEC with an annual return for the
2020-21 financial year before the end of the period of 30 days beginning on the day
on which the provisions commence.
60. Subitem 34(4) provides that AEC will be required to publish all 2020-21 member of
the House of Representatives and Senator annual returns on the Transparency Register
before 1 March 2022.
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Part 3--Candidates
61. Existing subsection 287(9) defines when a person begins to be a candidate or part of
a Senate group, and when they stop being so, for the purposes of Part XX. Under
subsection 287(9):
• a person who is a candidate in an election is taken to begin to be a candidate
on the earlier of:
o the day the person announced that the person would be a candidate in
the election; and
o the day the person nominated as a candidate in the election;
• a group is taken to begin to be a group in an election on the day the members
of the group make a request under section 168 for their names to be grouped
in the ballot papers for the election; and
• the candidate or group ceases to be a candidate or group at the end of 30 days
after the polling day in the election.
62. Item 35 adds a note at the end of subsection 287(9), "This subsection is subject to
subsections 302D(5) and (6), 302F(7) and (8), 304(10) and (11), 305A(6) and (7),
306A(7A) and (7B), 306B(3) and (4), 307(3), 309(6) and (7) and 313(3)." This note
alerts the reader that, for those sections referenced in the note, the period a person is
taken to be a candidate, or a group, will have a different meaning.
63. Item 36 inserts a new definition into section 302B, which sets out definitions of terms
used in Division 3A - Requirements relating to donations. Section 302B already
contains a definition of 'acceptable action', which is action that must be taken where
a person or entity receives a gift in contravention of Division 3A. An acceptable action
would be to:
• transfer an amount equal to the amount or value of the gift to the
Commonwealth for the purposes of this Division;
• return the gift to the donor or the person who made the gift; or
• transfer an amount equal to the amount or value of the gift to the donor or
the person who made the gift.
64. Item 36 inserts the new definition 'acceptable action period'. This sets out the time in
which the person or entity who received the gift from a foreign donor has to take
acceptable action. This is six weeks from the date of receipt of the gift from a foreign
donor, unless the gift was made to a candidate in an election or by-election or member
of a group for a Senate election.
• In the case of a gift made to a candidate, an acceptable action period will be
six weeks from whichever is the later of:
o the day the gift is made; or
o the earlier of the day the person announced that the person would be
a candidate in the election or by-election and the day the person
nominated as a candidate in the election or by-election.
• In the case of a gift made to a group for a Senate election, an acceptable
action period will be six weeks from whichever is the later of:
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o the day the gift is made;
o the day the members of the group make a request under section 168
for their names to be grouped in the ballot papers for the election.
65. This additional definition is necessitated by the extension of time for which a
candidate or group is taken to be a candidate or group in an election for the purposes
of Division 3A. This ensures that a candidate will have sufficient time to take
acceptable action in relation to any gift from a foreign donor they may have received,
including in relation to gifts received shortly before they announced their candidacy.
Examples of how this would apply follow below.
66. Items 37, 38, 39, 40, 42 and 43 are consequential amendments to Item 36 to insert
the new definition 'acceptable action period' into paragraphs 302D(1)(f),
302D(1A)(a), 302D(1A)(b), 302D(1A)(c), 302F(1)(f) and 302F(2)(e) of the Electoral
Act respectively.
67. Items 41, 44, 45, 46, 47, 48, 49, 50 and 51 amend sections 302D, 302F, 304, 305A,
306A, 306B, 307, 309 and 313 of the Electoral Act to provide that for those sections,
the date on which a person is taken to begin being a candidate is six months before
the earlier of the day the person announced they would be a candidate in the election
or the day they nominated as a candidate in the election. This six-month timeframe
applies notwithstanding the definition of when a person is a candidate or part of a
group set out in subsection 287(9) and is intended to ensure that an announcement of
candidacy by a candidate is not deliberately delayed for the purposes of avoiding
financial disclosure obligations.
68. These items also amend the disclosure period for Senate groups, where a disclosure
period will commence on the day that is six months before the day the members of the
group make a request under section 168 for their names to be grouped in the ballot
papers for the election.
69. How this additional six months is applied to sections 302D, 304 and 305A is set out
in further detail, with examples, below.
70. Section 302D restricts donations by foreign donors to candidates and other political
entities. Item 41 inserts new subsection 302D(5) that states that, for the purposes of
section 302D, a person is taken to be a candidate from the day that is six months before
the earlier of the day the person announced they would be a candidate in the election
or the day the person nominated as a candidate in the election. This six-month
timeframe applies notwithstanding the definition of when a person is a candidate or
part of a group set out in subsection 287(9).
71. Item 41 also inserts new subsection 302D(6), which states that, for the purposes of
section 302D, a group is taken to begin to be a group in an election on the day that is
six months before the day the members of the group made a request under section 168
for their names to be grouped in the ballot papers for the election.
72. This retrospective extension of a person's time as a candidate, or time as a group, for
the purposes of section 302D is accompanied by a change to the time period in which
a candidate has to take 'acceptable action' if they do receive a gift from a foreign
donor (Items 37 and 38 insert 'acceptable action period' provisions, and a definition
of acceptable action period is inserted by Item 36).
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73. This amended timeframe for taking acceptable action in relation to receiving a gift
from a foreign donor will ensure that no candidate or group will have committed an
offence against section 302D before they have announced their candidacy.
Example 1 - application of amended definition of candidate in section 302D
In the same year -
• Person A received a gift of $2,000 from a foreign donor on 20 August.
• On 25 August, Person A announces on the radio that they would be a
candidate in the next election.
• The writs for the election are issued on 1 October.
• Person A lodges their candidate nomination form on 12 October.
• Election day is held on 6 November.
Under new subsection 302D(5), Person A would be taken to begin being a
candidate on 25 February, being the day that is six months before the earlier of the
day they announced they would be a candidate in the election (25 August) and the
day they nominated as a candidate (12 October).
As the gift of $2,000 from a foreign donor was made during the time Person A is
considered to be a 'candidate' for the purposes of section 302D, Person A would
be in contravention of that section if they did not take acceptable action in relation
to the gift before the end of the acceptable action period.
Person A would have to take acceptable action in relation to the gift from a foreign
donor by 6 October, being the day that is six weeks from the later of:
• the day the gift was made (20 August); and
• the earlier of the day Person A announced they would be a candidate in the
election (25 August) and the day Person A nominated in the election
(12 October).
Example 2 - application of amended definition of candidate in section 302D
In the same year -
• Person B received a gift of $2,000 from a foreign donor on 30 August.
• The writs for the election are issued on 1 October.
• Person B lodges their candidate nomination form on 12 October.
• Election day is held on 6 November.
Under new subsection 302D(5) Person B would be taken to begin being a
candidate on 12 April, being the day that is six months from the earlier of the day
they announced they would be a candidate in the election (not applicable in this
case) and the day they nominated as a candidate (12 October).
In this example, Person B would have to take 'acceptable action' in relation to the
gift from a foreign donor by 23 November, being the day that is six weeks from
the later of:
• the day the gift was made (30 August); and
• the earlier of the day Person B announced they would be a candidate in the
election (not applicable in this case) and the day Person B nominated in
the election (12 October).
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74. An example of how the amendments to section 302D are intended to apply to
candidates follows below. The amendments to section 302F made at Item 44 will
apply similarly to these examples.
75. Section 304 of the Electoral Act already requires candidates to provide the AEC with
a return, within 15 weeks after polling day, setting out details of gifts received during
the time they were a candidate. Item 45 inserts new subsection 304(10) that provides
that, for the purposes of section 304, a person is taken to be a candidate from the earlier
of the day that is six months before the day the person announced they would be a
candidate in the election or the day the person nominated as a candidate in the election.
This six-month timeframe applies notwithstanding the definition of when a person is
a candidate or part of a group set out in subsection 287(9).
76. Item 45 also inserts new subsection 304(11) which provides that, for the purposes of
section 304, a group is taken to begin to be a group in an election on the day that is
six months before the day the members of the group make a request under section 168
for their names to be grouped in the ballot papers for the election.
77. An example of how the amendments to section 302D would apply to candidates
follows below.
Example 3 - application of amended definition of candidate in section 304
In the same year -
• Person C receives a gift of $10,000 on 20 March.
• On 25 August, Person C posts a media release on their website stating they will
be a candidate in the next election.
• On 30 August, Person C receives in-kind services to upgrade their website
valued at $500.
• The writs for an election are issued on 1 October.
• Person C lodges their candidate nomination form on 12 October.
• Election day is held on 6 November.
Under new subsection 304(10) Person C would be taken to begin being a candidate on
25 February, being the day that is six months from the earlier of the day they announced
they would be a candidate in the election (25 August) and the day they nominated as a
candidate (12 October).
Person C uses the $10,000 to pay for billboard signage advertising their candidacy, and
uses their website as their candidate webpage.
Person C will need to declare both gifts (a total of $10,500 value) as part of their
candidate return to the AEC.
78. Section 305A of the Electoral Act already requires persons or entities that make gifts
valued at more than the disclosure threshold (if a prescribed amount is not set) to any
candidate or member of a group in an election or by-election to provide a return to the
AEC disclosing these gifts.
79. Item 46 inserts new subsection 305A(6) that provides that, for the purposes of section
305A, a person is taken to be a candidate from the earlier of the day that is six months
before the day the person announced they would be a candidate in the election or the
day the person nominated as a candidate in the election. This six-month timeframe
applies notwithstanding the definition of when a person is a candidate or part of a
group as set out in subsection 287(9).
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80. Item 46 also inserts new subsection 305A(7) which provides that, for the purposes of
section 305A, a group is taken to begin to be a group in an election on the day that is
six months before the day the members of the group make a request under section 168
for their names to be grouped in the ballot papers for the election.
81. An example of how these amendments to section 305A would apply to donors follows
below.
Example 4 - application of amended definition of candidate in section 305A
In the same year -
• Donor A makes a gift of $16,000 to Person D on 20 April (this is over the
disclosure threshold at that time of $14,500). Donor A made this gift for
the benefit of Person A in relation to an election.
• The writs for an election are issued on 1 October.
• Person D lodges their candidate nomination form on 12 October.
• Election day is held on 6 November.
Under new subsection 305A(6), Person D would be taken to begin being a
candidate on 12 April for the purposes of section 305A because this is six months
from the earlier of the day Person D announced they would be a candidate in the
election (not applicable in this case) and the day they nominated as a candidate
(12 October).
As new subsection 305A(6) deems Person D to have been a candidate at the time
Donor A made their gift to Person D, Donor A must provide the AEC with a return
under section 305A.
Under subsection 305A(3), Donor A must provide this return to the Electoral
Commission before the end of 15 weeks after the polling day for the election (i.e.
15 weeks after 6 November).
82. Item 47 inserts new subsection 306A(7A) that states that, for the purposes of section
306A, a person is taken to be a candidate from the earlier of the day that is six months
before the day the person announced they would be a candidate in the election or the
day the person nominated as a candidate in the election.
83. Item 47 also inserts new subsection 306A(7B) which provides that, for the purposes
of section 306A, a group is taken to begin to be a group in an election on the day that
is six months before the day the members of the group make a request under
section 168 for their names to be grouped in the ballot papers for the election. This
six-month timeframe applies this section notwithstanding the definition of when a
person is a candidate or part of a group set out in subsection 287(9).
84. Section 306B relates to gifts received by a candidate or member of a group from a
corporation above the disclosure threshold, where the corporation is wound up in
insolvency, or by the court on other grounds, within a year of making the gift.
85. Item 48 inserts new subsection 306B(3) that states that, for the purposes of section
306B, a person is taken to be a candidate from the earlier of the day that is six months
before the day the person announced they would be a candidate in the election or the
day the person nominated as a candidate in the election.
86. Item 48 also inserts new subsection 306B(4) which provides that, for the purposes of
section 306B, a group is taken to begin to be a group in an election on the day that is
six months before the day the members of the group make a request under section 168
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for their names to be grouped in the ballot papers for the election. This six-month
timeframe applies to this section notwithstanding the definition of when a person is a
candidate or part of a group set out in subsection 287(9).
87. Item 49 amends the nil returns provisions for gifts in section 307, to provide that the
changes to the day on which a candidate or group are considered to begin being a
candidate in an election or a group as made by new subsections 304(10) and (11) and
305A(6) and (7) also apply to section 307. This is to ensure consistency between
returns provisions.
88. Item 50 amends section 309, which sets out requirements for candidates and members
to provide the AEC with returns for electoral expenditure in relation to the election
incurred by or with the authority of the candidate or group.
89. Item 50 inserts new subsection 309(6) that states that, for the purposes of section 309,
a person is taken to be a candidate from the earlier of the day that is six months before
the day the person announced they would be a candidate in the election or the day the
person nominated as a candidate in the election. This six-month timeframe applies
notwithstanding the definition of when a person is a candidate or part of a group set
out in subsection 287(9).
90. Item 50 also inserts new subsection 309(7) which provides that, for the purposes of
section 309, a group is taken to begin to be a group in an election on the day that is
six months before the day the members of the group make a request under section 168
for their names to be grouped in the ballot papers for the election.
91. This aligns the period of time a return under section 309 will cover with new
disclosure period for gifts received under section 304, and means candidate and group
returns under section 309 will need to disclose electoral expenditure incurred six
months prior to announcing or nominating their candidacy (whichever is the earlier)
and six months before the day the members of the group make a request under
section 168 for their names to be grouped in the ballot papers for the election.
92. Item 51 amends the nil returns provisions for electoral expenditure in section 313, to
provide that the changes to the day on which a candidate or group are considered to
begin being a candidate in an election or a group as made by new subsections 309(6)
and (7) also apply to section 313. This is to ensure consistency between returns
provisions.
93. For the avoidance of doubt, Items 50 and 51 extend the timeframe for the disclosure
of electoral expenditure, but not the reimbursement of electoral expenditure under
section 298 of the Electoral Act (which is still determined in accordance with
subsection 287(9)).
94. Item 52 sets out application and transitional provisions for the changes candidate and
group provision amended by Part 3 of the Bill.
95. Subitem 52(1) provides that the changes to sections 302D, 302F, 304, 305A and 307
apply in relation to elections the writs for which are issued on or after the
commencement of this item, whether the gifts are made before, on or after that
commencement.
96. Subitem 52(2) provides transitional provisions for the commencement of the
acceptable action period for candidates to address circumstances where a person may
have made an announcement that they would be a candidate in the upcoming federal
election before the commencement of this Bill, and that person had received a gift
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from a foreign donor before that announcement that would have required the person
to take acceptable action six weeks from the date of the announcement of their
candidacy (i.e. would be covered under the additional six month timeframe for being
a candidate). In these particular circumstances, the period of six weeks referred to in
paragraph (b) of the new definition of 'acceptable action period' in section 302B is
taken to begin on the day on which this item commences. This is to ensure that any
existing candidates have sufficient time to take acceptable action in relation to foreign
donations received before commencement of the Bill.
97. Subitem 52(3) provides that the changes to sections 306A apply in relation to
elections the writs for which are issued on or after the commencement of this item,
where the loan concerned is received on or after that commencement.
98. Subitem 52(4) provides that the changes to section 306B applies in relation to
elections the writs for which are issued on or after the commencement of this item,
where the gifts are made before, on or after that commencement.
99. Subitem 52(5) provides that the changes to sections 309 and 313 apply in relation to
elections the writs for which are issued on or after the commencement of this item,
whether the electoral expenditure concerned is incurred before, on or after that
commencement.
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