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2022-2023-2024
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL REFORM)
BILL 2024
EXPLANATORY MEMORANDUM
(Circulated by the authority of Senator the Hon Don Farrell, Special Minister of State)
Glossary
The following abbreviations and acronyms are used throughout this Explanatory
Memorandum:
Abbreviation Definition
ACNC Act Australian Charities and Not-for-profit
Commission Act 2012
Acts Interpretation Act Acts Interpretation Act 1901
AEC Australian Electoral Commission
APPs Australian Privacy Principles
Banking Act Banking Act 1959
Bill Electoral Legislation Amendment
(Electoral Reform) Bill 2024
Criminal Code Criminal Code Act 1995
CPI Consumer Price Index
DRO Divisional Returning Officer
Electoral Act Commonwealth Electoral Act 1918
ICCPR Internation Covenant on Civil and
Political Rights
ICESCR International Covenant on Economic,
Social and Cultural Rights
Item Refers to an Item in the Bill
JSCEM Joint Standing Committee on Electoral
Matters
JSCEM Final Report Final report on the Conduct of the 2022
federal election and other matters
JSCEM Interim Report Interim report on the Conduct of the
2022 federal election and other matters
Referendum Act Referendum (Machinery Provisions) Act
1984
Regulatory Powers Act Regulatory Powers (Standard
Provisions) Act 2014
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ELECTORAL LEGISLATION AMENDMENT (ELECTORAL REFORM)
BILL 2024
GENERAL OUTLINE
This Bill makes amendments to the Electoral Act and the Referendum Act to financial
disclosure laws, including introducing gift caps, requiring expedited disclosure of
gifts and reducing the 'disclosure threshold' to $1,000 (indexed).
It will also make amendments to introduce electoral expenditure caps and increase
public funding of parties and candidates, as well as streamline and modernise
administrative processes to support the AEC's delivery of electoral events.
This Bill implements recommendations made by JSCEM in its reports on the Conduct
of the 2022 federal election and other matters.
This Bill also implements commitment 7 of Australia's Third Open Government
Partnership National Action Plan 2024-2025, in relation to transparency of political
donations.
Overview of the Bill
Schedule 1--Key definitions
Part 1 of Schedule 1 amends the Electoral Act to update key definitional terms
including the meaning of 'gift', 'disclosure threshold' and 'candidate'.
This includes lowering the 'disclosure threshold' to $1,000. The value of the
disclosure threshold will be subject to indexation by CPI after each general election to
ensure the value of the threshold remains appropriate over time. This is in addition to
review by the JSCEM as is convention after every federal election.
The Schedule will introduce a new definition of 'third party threshold', meaning
$20,000 (indexed annually). This new threshold will be applied to the key entity
definitions, including the definition of when a person or entity becomes a 'third party'
or is required to register as a 'significant third party'. The Bill will amend the
Referendum Act to insert the term 'third party threshold' and make consequential
changes to the definition of 'referendum entity'.
The Schedule amends the definition of 'associated entity' to remove the requirement
for an entity to register as an associated entity where it operates wholly or to a
significant extent for the benefit of certain disclosure entities, and the benefit relates
to one or more electoral activities.
This Schedule will also make changes to ensure that only associated entities and
significant third parties that meet the registration criteria are registered as such on the
Transparency Register.
Part 2 of Schedule 1 amends the Electoral Act to introduce the category of 'nominated
entity'. A registered political party can apply to the AEC to register an entity as its
nominated entity.
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Schedule 2--Expedited disclosure
Schedule 2 amends the Electoral Act to require gifts for a 'federal purpose' valued
over the disclosure threshold to be disclosed in 'real-time' as recommended by
recommendation 2 of the JSCEM Interim Report.
Gifts received by relevant entities outside election periods will be required to be
disclosed within 21 days following the month the gift was received. Generally, gifts
received during the election period by relevant entities will be required to be disclosed
within 7 days of receipt, and in the week commencing the Saturday before polling day
and the week following gifts will be required to be disclosed within 24 hours of
receipt.
Donors will also be required to disclose gifts within 21 days of the month after the gift
was given.
These obligations will apply to donors, registered political parties, State branches of
registered political parties, members of the House of Representatives, Senators,
significant third parties, associated entities, third parties and nominated entities, with
special rules for significant third parties and third parties that are registered charities.
Significant third parties, associated entities and third parties that credit amounts to
their federal account that were derived from subscription fees, affiliation fees of
annual levies will also be required to provide a donation disclosure notice in relation
to those amounts (when credited to a federal account, such amounts will be
considered 'gifts').
'Gift caps' apply to gifts disclosed under Schedule 2.
Schedule 3--Gift cap
Schedule 3 amends the Electoral Act to establish annual caps on gifts for a federal
purpose made by the same donor to the same registered political party, State branch of
a registered political party, candidate, member of the House of Representatives,
Senator, associated entity, significant third party, nominated entity or third party. The
Schedule also establishes separate gift caps for by-elections and Senate-only elections.
Schedule 3 will also limit the total value of gifts for a federal purpose an individual
donor can make nationally, and to persons or entities connected to a State or Territory
in a calendar year. The overall gift cap and State and Territory gift cap operate
alongside the annual gift cap.
A registered political party and its endorsed candidates, members of the House of
Representatives and Senators who are members of the party, and the party's
nominated entity (if registered), share a common gift cap.
Exceeding the gift caps may result in a civil penalty. An exception to the civil penalty
applies where the individual or entity did not know, and could not reasonably have
known, that the gift cap had been exceeded, and takes acceptable donor or recipient
action within 6 weeks of becoming aware the gift cap has been exceeded.
The annual gift cap, overall gift cap and State and Territory gift cap will reset after a
general election for the remainder of the calendar year.
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Schedule 4--Expenditure cap
Schedule 4 amends the Electoral Act to establish annual caps on electoral expenditure
incurred by registered political parties, candidates, members of the House of
Representatives, Senators, associated entities, significant third parties, nominated
entities and third parties. Within this annual cap, there are also annual caps on the
amount of electoral expenditure certain individuals and entities can incur targeted to a
Division, and in relation to a State and Territory (in relation to a Senate election).
The Schedule also establishes separate caps on electoral expenditure for the purpose
of each by-election and Senate-only election. This expenditure is capped during the
election period (from issue of the writ to polling day) for that by-election or
Senate-only election. Where electoral expenditure counts towards a by-election cap or
Senate-only election cap, it does not count towards an individual or entity's annual
electoral expenditure cap, Divisional cap or Senate cap.
Electoral expenditure by a registered political party and its 'expenditure group' will
be aggregated for the purposes of the expenditure caps.
An exception to the civil penalty for exceeding an expenditure cap applies where the
individual or entity exceeds the relevant cap and did not know, and could not
reasonably have known, that the expenditure cap had been exceeded, and the
individual or entity cancels the expenditure or returns an amount equal to the amount
of expenditure that exceeds the cap to the Commonwealth within 6 weeks of
becoming aware of the breach.
Cap values vary by entity type across States and Territories.
Schedule 5--Annual returns
Schedule 5 amends Part XX of the Electoral Act to consolidate financial reporting
obligations for registered political parties, State branches of registered political
parties, candidates, members of the House of Representatives, Senators, associated
entities, significant third parties and third parties. It also adds a return requirement for
nominated entities. These entities will submit an annual return on a calendar year
basis within 8 weeks of the end of the year.
New significant third parties must provide annual returns to the AEC in respect of the
previous calendar year. New associated entities (including nominated entities) must
provide annual returns to the AEC in respect of the previous calendar year
The amended annual returns will support monitoring of compliance with the new
electoral expenditure caps. For example, by requiring individuals and entities to report
electoral expenditure targeted to a Division, a State and a Territory.
Registered political parties, and independent members of the House of
Representatives and Senators, that receive administrative assistance funding will also
be required to provide a statement about their administrative expenditure over the
year, accompanied by a certificate from a registered company auditor.
The Schedule will repeal the requirement to submit election returns. Candidates will
instead submit annual returns on a calendar year basis. Donors to candidates will
report gifts for a federal purpose under the expedited disclosure obligations.
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Schedule 6--Commonwealth campaign accounts
Schedule 6 amends the Electoral Act to require registered political parties, State
branches of registered political parties, candidates, members of the House of
Representatives, Senators, associated entities, significant third parties, nominated
entities and third parties to maintain a federal account.
This expands on existing obligations in sections 302CA of the Electoral Act for
regulated entities to deposit monetary gifts in a federal account and use the money for
a federal purpose, by creating a consistent obligation across all Part XX entities to
maintain a federal account for the period in which they are politically active. This will
support disclosure and monitoring, as recommended by the JSCEM in
recommendation 7 of the JSCEM Interim Report.
The provisions require all electoral expenditure to be paid from a federal account and
gifts received for a federal purpose to be credited to a federal account. With limited
exceptions, no other amounts may be credited to a federal account.
Schedule 7--Administrative assistance funding and election funding
Part 1 of Schedule 7 amends the Electoral Act to establish a framework of quarterly
administrative assistance funding for registered political parties that are parliamentary
parties and for independent members of the House of Representatives and Senators.
This is payable at rate of $7,500 per quarter for a member of the House of
Representatives and $3,750 per quarter for a Senator (indexed annually).
Part 2 of Schedule 7 amends the Electoral Act to increase election funding payable to
registered political parties, candidates and groups that receive at least 4% of the total
formal first preference votes in an election to $5.00 per vote (indexed annually).
Part 3 of Schedule 7 amends the Electoral Act to provide a regulation-making power
to provide for advance payment of election funding in Division 3 of the Electoral Act.
This Schedule implements recommendations 8 and 9 of the JSCEM Interim Report
and Recommendation 16 of the Senate Legal and Constitutional Affairs References
Committee's report on Nationhood, national identity and democracy.
Schedule 8--Senate groups
Schedule 8 amends the Electoral Act to streamline and simplify reporting obligations
for Senate groups. These amendments support other amendments in this Bill, as well
as the efficacy of Senate group operations and compliance with obligations under the
Electoral Act.
Schedule 9--Compliance and enforcement
Schedule 9 makes technical amendments to streamline and modernise the AEC's
compliance and enforcement powers in relation to Part XX of the Electoral Act. This
is to support the effective operation of the Part XX amendments made by the other
Schedules to the Bill.
Part 1 of Schedule 9 amends the AEC's investigative powers to support compliance
with Part XX. Authorised officers may issue information-gathering notices and may
seek and execute search warrants from a magistrate, in relation to information or
documents relevant to enforcing Part XX.
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Part 2 of Schedule 9 amends the AEC's powers to prevent persons engaging in
schemes that seek to avoid the application of Part XX obligations and increases the
penalties for engaging in such an avoidance scheme.
Schedule 10--Machinery provisions
Schedule 10 amends the Electoral Act and the Referendum Act to modernise and
streamline electoral and referendum operations. These amendments enhance
enfranchisement for electors with disability, create a new offence to prevent
temporary election workers being filmed without permission at polling places,
streamline the counting of declaration votes, and modernise the availability of public
inspection documents related to elections and referendums.
This Schedule responds to recommendations 5, 6 and 10 of the JSCEM Final Report.
Schedule 11--Transitional rule
Schedule 11 enables the Minister to make a legislative instrument prescribing matters
of a transitional, application or saving nature relating to amendments made by this
Act. This instrument must not specify an application date that ends later than 30 June
2027.
This complements other amendments in this Bill to support the transition between the
existing reporting arrangements in the Electoral Act and the operation of provisions
under the amended Act.
FINANCIAL IMPACT
In the context of the AEC's constitutional and legal obligations to undertake and
administer elections, it is not possible to accurately estimate the total cost of any
election in advance. Once true costs are known, the AEC will be in a position to work
with the Department of Finance to finalise the financial implications of the measures
in this Bill.
REGULATORY IMPACT
Consistent with the Government's Impact Analysis requirements, the report of the
JSCEM into the conduct of the 2022 federal election has been certified by the
Department of Finance as meeting the requirements of an Impact Analysis Equivalent.
A copy of the JSCEM report to which the measures in this Bill respond is available at
www.aph.gov.au/Parliamentary_Business/Committees/Joint/Electoral_Matters.
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 (Electoral Reform) Bill 2024
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.
Overview of the Bill
The Bill amends the Electoral Act and the Referendum Act to enhance the
transparency and integrity of Australia's electoral processes.
The JSCEM Interim Report and the JSCEM Final Report recommended changes to
the Electoral Act to better meet community expectations of transparency and
accountability, and to support public confidence that Australian elections are
safeguarded against real or perceived corruption and undue influence. This Bill will
implement recommendations from these reports and makes a number of similar
amendments to the Referendum Act.
Human rights implications
1. The Bill engages the following rights under the International Covenant on Civil
and Political Rights (ICCPR):
• the right to privacy under Article 17 of the ICCPR;
• the right to freedom of opinion and expression under Article 19 of the
ICCPR;
• the right to political participation under Article 25 of the ICCPR; and
• the right of trade unions to function freely, subject only to limits prescribed
by law and which are necessary under Article 8 of the International Covenant
on Economic, Social and Cultural Rights (ICESCR).
2. The amendments made by this Bill, addressed in turn in the sections below, are
objective, legitimate and proportional because they:
• are provided for by law;
• serve a genuine public interest by protecting free, fair and informed voting,
essential to Australia's system of representative government; and
• apply to an objectively defined group of entities who freely choose to play a
prominent role in political debate or provide financial or administrative
support to those who do.
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Right to privacy under Article 17 of the ICCPR
3. The right to privacy contained in Article 17 of the ICCPR includes the right to be
free from arbitrary or unlawful interference with someone's privacy. It provides
that persons have the right to the protection of the law against such interference
or attacks. Any arbitrary interferences with privacy must be in accordance with
the provisions, aims and objectives of the ICCPR, and should be reasonable in
the particular circumstances.
4. The term unlawful means that no interference can take place except as authorised
under domestic law. The law should be precise, and not give decision-makers too
much discretion in authorising interferences with privacy.
Publication of registration of nominated entities
5. This Bill engages the right to privacy under Article 17 of the ICCPR by requiring
the collection and publication on the AEC's online Transparency Register of
personal information about the association of a nominated entity, and its financial
controller, with a registered political party. This includes the name of the
financial controller and the nominated entity.
6. Registration as a nominated entity, and any subsequent publication of registration
details, is voluntary. Registration as a nominated entity is done under law and
subject to specific requirements. An entity cannot be registered without the
consent of its financial controller, its registered political party, and the entity
itself. Being unregistered does not prevent the entity, its financial controller or
the party from engaging with the electoral process as guaranteed to people and
entities under the Electoral Act.
7. Requiring the publication of information about the nominated entity, its financial
controller and registered political party is reasonable and necessary to achieve the
legitimate purpose of protecting the integrity of the Australian electoral process.
A nominated entity is an entity who operates solely (or to a significant extent) for
the benefit of the party, and who has been chosen by the party to be its nominated
entity. Transparency of this relationship promotes the rights of citizens to
participate meaningfully in elections by assisting citizens to better understand the
relationship of the entity and the party.
Donations disclosure
8. The Bill engages the right to privacy under Article 17 of the ICCPR as it would
require the publication of the names of donors who make donations for the
purposes of incurring electoral expenditure, or creating or communicating
electoral matter, with a total value greater than the disclosure threshold ($1,000,
indexed) in a calendar year (Schedule 2).
9. This limitation on the right to privacy supports voters in the informed exercise of
their franchise by ensuring relevant donation information is available to voters
before they cast their vote in an election. This supports the right to political
participation under Article 25 by enabling voters to access information about
political financing when exercising their right to vote.
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10. The Electoral Act already provides for the name of donors and recipients to be
published on the AEC Transparency Register. This Bill lowers the disclosure
threshold to $1,000 which will result in the information of a larger group of
donors being published. Requiring timely publication is reasonable and necessary
to support the policy objective of increasing public transparency of political
donations, particularly in the election period. Publication of donor information at
equivalent values is a widely accepted practice in other Australian and
international jurisdictions. NSW, Queensland and the ACT all require disclosure
of political donations of $1,000 or more during a relevant reporting period.
11. The disclosure and reporting requirements are not designed to prevent individuals
and entities from taking part in election campaigns or standing for public office.
The donation disclosure requirements are not arbitrary, only applying to actors
engaged in political campaigning. The only amounts required to be disclosed are
those made for the purpose of incurring electoral expenditure or creating or
communicating electoral matter. As such, the limitation on the right to privacy is
appropriately contained to amounts that are relevant to influencing electoral
outcomes.
12. The Bill promotes the right to privacy. It includes amendments that would serve
to strengthen privacy protections for persons and entities who engage in political
financing. The Bill will allow the AEC to publish information provided in a
return, rather than the return itself, on the Transparency Register. This is an
important safeguard to protect the privacy of persons and entities that provide
information such as personal addresses, clarifying that this information is not to
be published in the Register.
13. Further, the Bill provides for a specific power for the Electoral Commissioner to
redact or remove personal information from the Transparency Register, as well as
to exclude certain information, if they are satisfied that the publication could put
people's safety at risk.
Financial reporting
14. The Bill also requires certain political actors (political parties, associated entities,
nominated entities and significant third parties) to publish details of amounts
received over the disclosure threshold (including the name of the person or entity
from whom the amount was received) via an annual return (Schedule 5). This is a
current requirement of the Electoral Act and supports transparency of the
financing of political actors seeking to influence electoral outcomes.
15. The right to privacy includes respect for information provided, including in
respect of storing, using and sharing private information, and the right to control
the dissemination of personal and private information. The Bill includes
amendments that would serve to strengthen privacy protections for donors and
recipients. This includes provisions to remove the current requirement to publish
addresses to ensure such personal information, including personal addresses, are
not published.
16. Further, the Bill clarifies that the Electoral Commissioner is to publish the
information in the donation disclosure notice or annual return, not the notice or
return itself. This allows the AEC to appropriately assess the suitability of
releasing certain information that may not be in the public interest. These
protections are supported by the provision of a specific power for the Electoral
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Commissioner to redact or remove personal information from the Transparency
Register, as well as to not include certain information, if they are satisfied that
the publication could put people's safety at risk.
17. The financial reporting reforms in this Bill are consistent with the APPs,
particularly that only information that is necessary to support the operation and
enforcement of the financial disclosure regime is disclosed. The Electoral
Commissioner is currently required to publish donation information provided on
annual and election returns. Information disclosed to the AEC under this regime
is collected and used consistently with the APPs. The APPs set out the standards,
rights and obligations that the AEC are bound by when handling and maintaining
personal information, including the collection, storage, use, disclosure, quality
assurance and security of personal information, for primary and secondary
purposes.
Compliance and enforcement powers
18. Schedule 9 to this Bill engages the right to privacy in Article 17 of the ICCPR
because Schedule 9 authorises the AEC to:
• issue a notice requiring a person to give information, documentation or
answers to the AEC that may contain personal information;
• seek a search warrant for the search and seizure of documents or things that
may contain personal information; and
• retain or copy such information, documents and things.
19. Ensuring compliance with Part XX of the Electoral Act, and related provisions in
the Criminal Code, is essential to ensuring the integrity of elections. It promotes
the right in Article 25 of the ICCPR to take part in public affairs and elections.
20. Schedule 9 is sufficiently circumscribed and specific so as not to constitute an
arbitrary interference with the right to privacy.
21. The authority for the AEC to require a person to produce information,
documentation or answers is subject to the following constraints:
• the authority is available only to a person who has been authorised by the
AEC and has issued the necessary notice to the recipient;
• the authorised person must first reasonably believe that the recipient is
capable of giving information, documentation or answers that are relevant to
ensuring compliance with Part XX of the Electoral Act (or the Criminal Code
insofar as it applies to Part XX of the Electoral Act); and
• the recipient can seek merits review of the authorised person's decision.
22. The authority for the AEC to seek and execute a search warrant is also subject to
the following constraints:
• it is available only to a person who has been authorised by the AEC;
• the authorised person must first have reasonable grounds to suspect that
information relevant to ensuring compliance with Part XX will be at a
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particular place for the next 24 hours and that, were a production notice
issued, the information may be concealed, lost, mutilated or destroyed;
• the authorised person must provide an affidavit to a magistrate setting out the
grounds on which the warrant is sought;
• the authorised person cannot use force against a person in executing the
warrant;
• the warrant can only be issued by a magistrate and must cease to be in force
within seven days;
• the warrant must specify the location it applies to, the reasons for its issue,
the name of the executing officer(s), and a description of the information
sought;
• a copy of the warrant must be given to the occupier or owner (or their
apparent representative) of the location being searched, if they are present at
the location when the search is conducted; and
• any documents seized under search warrant may be retained by the AEC only
for as long as is reasonably necessary. This cannot be longer than 60 days
unless the document is evidence in proceedings.
23. The authority for the AEC to retain a document produced under an
information-gathering notice, or to retain a document or thing seized pursuant to
a search warrant, is constrained in that the retention can only be for as long as is
reasonably necessary. This cannot be for longer than 60 days, unless the
document is evidence in proceedings. The AEC must provide the owner with a
certified copy or, for the duration of the AEC's retention, permit the owner to
inspect and copy the original.
24. Accordingly, the limitations to the right to privacy present in Schedule 9 are
reasonable, necessary and proportionate to the legitimate end of promoting
Article 25 of the ICCPR and upholding the integrity of Australian elections.
Temporary opening of certain postal vote envelopes
25. This Bill engages the right to privacy in limited circumstances where it permits
an AEC officer to open a voter's postal vote envelope. The explicit purpose of
permitting the AEC officer to open the envelope is to enable the officer to record
certain details from the postal vote certificate that must be recorded for the
purposes of the preliminary scrutiny. This permission will only arise where the
postal voter has incorrectly packaged their postal vote envelope such that the
postal vote certificate is not readable by the AEC officer without opening the
envelope.
26. The ability for an AEC officer to open a postal vote envelope is necessary to
preserve the franchise of the postal voter who has incorrectly packaged their
envelope. This express provision provides clear authority to open the postal vote
envelope to correct the error to enable to vote to be subject to preliminary
scrutiny. The prohibition therefore seeks to achieve a legitimate objective and
promotes the right to take part in public affairs and elections in Article 25 of the
ICCPR.
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27. The potential for the voter's privacy to be impacted is further reduced by existing
protections in the Electoral Act for the secrecy of the ballot. AEC officers and
scrutineers are subject to penalties if they directly or indirectly communicate any
information about a vote that could enable the voter to be identified.
28. The limitation on the postal voter's privacy in Article 17 of the ICCPR is
reasonable, necessary and proportionate. It is necessary for ensuring that postal
voters are not disenfranchised if they make a minor procedural error, and it is
reasonable and proportionate because any personal information about the voter's
choice of vote would be viewed incidentally, for a very brief period, and would
not be recorded or communicated in a way that could identify the voter.
Right to freedom of opinion and expression under Article 19 of the ICCPR
29. The right to freedom of opinion and expression contained in Article 19 of the
ICCPR includes the freedom to seek, receive and impart information and ideas of
all kinds, either orally, in writing or in print, or through any other media.
30. Under Article 19(3) of the ICCPR, the right to freedom of expression may be
limited as provided for by law and when necessary to protect public order or to
respect the rights of others. Such limitations must be prescribed by legislation
necessary to achieve the desired purpose and proportionate to the need on which
the limitation is predicated.
'Nominated entity' naming requirements
31. This Bill engages the right to freedom of opinion and expression under Article 19
of the ICCPR because of the restrictions it places on the names of entities that
can be registered as a nominated entity.
32. The provision serves the legitimate end of safeguarding public order, by reducing
voter and donor confusion as to which registered political party a nominated
entity is affiliated. This promotes transparency, public understanding and the free
and informed choice of the electorate.
33. The amendments will only affect entities that seek to register their name as
something that is obscene or, in the opinion of the AEC, is similar enough to an
unrelated political party to cause confusion. These restrictions are subject to the
reasonable exceptions applicable to party registrations, which seek to avoid
unnecessarily preventing the use of generic words that are unlikely to cause
confusion, such as the collective nouns 'Party' and 'Group', geographical places,
and function words. The amendments also provide a mechanism for a party to
consent to the use of a word in their name by a nominated entity.
34. While these naming requirements may restrict the freedom of certain entities to
hold or express their opinions under Article 19 of the ICCPR, they pursue the
legitimate objective of preventing confusion to voters and donors.
Limits on electoral expenditure
35. The Bill engages the right to freedom of opinion and expression under Article 19
of the ICCPR as it would limit the amount of electoral expenditure a person can
incur, which includes expenditure to create or communicate electoral matter. The
legitimate objectives of this limitation and the reasonable, necessary and
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proportionate nature of the limitations are the same as those discussed below at
Article 25 of the ICCPR below.
Registration of certain persons or entities
36. The Bill engages the right to freedom of expression under Article 19 of the
ICCPR by requiring the Electoral Commissioner to refuse to register, or in
certain cases to deregister, a person or entity under the significant third party and
associated entity registration provisions if they do not meet the requirement to
register.
37. The limitations imposed on a person or entity's right to freedom of expression
are proportionate and necessary to ensure that any obligations, including those
that may result in a beneficial status, are applied to persons or entities that fulfil
the registration criteria and entity characteristics as established in the provisions
of the Electoral Act.
38. This provision does not limit a person or entity's ability to be registered as a
significant third party or associated entity, if they meet the registration
requirements provided for under the Electoral Act. Any decision by the Electoral
Commissioner under this section is a reviewable decision under the Electoral
Act, providing persons and entities with a pathway to contest decisions by the
Commissioner to refuse an application or deregister an entity.
Prohibition on publishing certain recordings at polling premises
39. This Bill engages the freedom of expression by prohibiting the publication of
audio and video recordings made in a polling booth or a pre-poll voting office if
the recording was made in a manner that contravenes the existing prohibition on
misconduct in a polling booth or a pre-poll voting office.
40. The purpose of the prohibition is to prevent the harassment (via unwanted
recording and publication) of voters, polling officials, and candidates' scrutineers
who are fulfilling their legal duties in a polling booth, counting centre, or a
prepoll voting office. In evidence before the Senate Committee on Finance and
Public Administration, the AEC advised that there has been an increase in
incidents involving the filming of voters and officials. In some instances, these
recordings are then uploaded to social media alongside accusations or threats
directed to those voters and officials.1
41. The prohibition also seeks to promote the privacy of persons in the polling booth,
counting centre and pre-poll voting offices, as well as the secrecy of the ballot,
particularly for voters who are fulfilling their compulsory duty to vote and will
likely still be holding their ballot paper when being recorded without consent.
42. The prohibition is proportionate as it only applies to recordings made in
particular circumstances within premises of the voting area during voting hours.
The prohibition is lawful as it will only apply where specific legislative criteria
are met. The prohibition does not prevent publication of such a recording if the
recording was made with the permission (explicit or implicit) of the AEC officer
in charge or in a manner that does not constitute misconduct.
1
Evidence to Senate Estimates Committee on Finance and Public Administration, Parliament of
Australia, Canberra, 29 May 2024, 103 (Tom Rogers, Australian Electoral Commissioner).
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Wearing campaign symbols at certain polling premises
43. This Bill engages the freedom of expression by extending the prohibition on
officers and scrutineers wearing any badge or emblem of a candidate or political
party to pre-poll voting offices.
44. The purpose of the prohibition is to promote free and informed voting by
preventing campaigning, or any form of political pressure, from occurring within
a pre-poll voting office. The prohibition is reasonable and necessary to protect
public order.
45. The prohibition restricts the freedom of expression by no more than is necessary,
and to a similar extent as the existing prohibition. The extended prohibition is
permitted by law and will only apply in where particular criteria are satisfied.
The prohibition will not prevent the wearing of campaign symbols outside of
those areas at any time.
Right to political participation under Article 25 of the ICCPR
46. Article 25(a) of the ICCPR provides that 'every citizen shall have the right and
opportunity ... without unreasonable restrictions: to take part in the conduct of
public affairs, directly or through freely chosen representatives.' Any restriction
on the right to take part in public life and elections must be based on objective
and reasonable criteria.
47. This right may be subject to permissible limitations, where these limitations are
provided for by law and are necessary for public order or maintaining respect for
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.
Registration requirements for non-party political actors
48. This Bill engages the right to political participation by establishing a framework
for certain entities to become registered as a nominated entity.
49. Registration of key non-party political actors promotes the rights of citizens to
participate meaningfully in elections by assisting citizens to identify actors in the
political process. It has been recognised both internationally and within Australia
that those with significant political interests should publicly register with the
electoral management body. Registration facilitates a compliance approach based
on education rather than enforcement, allowing electoral laws to be implemented
in the least rights-restrictive way possible.
50. Registration of these types of entities is reasonable, necessary and proportionate
to protecting effective voter choice. This registration is voluntary, and lack of
registration does not prevent entities from otherwise engaging in the political
process in Australian elections. Registration of entities that are closely associated
with a registered political party promotes the rights of citizens to participate
meaningfully in elections by improving transparency regarding entities and their
political affiliations.
Limits on gifts
51. The Bill engages the right to political participation under Article 25 of the
ICCPR through the implementation of caps on gifts for a 'federal purpose'
15
(political donations), being gifts made for the purpose of including electoral
expenditure or creating or communicating electoral matter.
52. The United Nations Human Rights Committee has stated that 'reasonable
limitations on election campaign expenditure may be justified where necessary to
ensure that the democratic process is not distorted by disproportionate
expenditure on behalf of any candidate or party.2
53. The gift caps are intended to promote equal opportunity for all individuals and
other entities to participate in political debate and prevent Australian elections
from being unfairly skewed by organisations or individuals with large amounts of
money.
54. The gift cap provisions recognise that the right to take part in public affairs by
donating to political actors must be balanced against the need for transparency
and accountability in the political system, particularly regarding transparency of
political financing. This need for balance is particularly acute when addressing
the increasingly disproportionate value of donations from a small number of
donors as an overall proportion of all donations. An overview of the increasing
value of donations from a small number of wealthy donors is included in
Schedule 3.
55. The Bill would place a cap on the value of a gift for a federal purpose that a
person or entity can give to the same recipient over a calendar year or, in the case
of a by-election or Senate-only election, over an election period. Offences and
penalties are included to support compliance with the gift caps.
56. The Bill would limit the overall value of federal purpose gifts that a donor can
make to certain persons and entities, and to persons or entities connected to a
State and Territory in a calendar year. A donor may otherwise donate to multiple
individuals or entities in a calendar year, so long as the donors are not 'related'
(within the meaning of Schedule 3) and similarly, a recipient may receive
donations from an unlimited number of donors, so long as the donors are not
'related' (within the meaning of Schedule 3).
57. The limits on political donations established by the Bill are proportionate to the
benefit that will be gained by the public from the improved public confidence in
the political system resulting from the proportional limits on political donations.
Limits on electoral expenditure
58. The Bill engages the right to political participation under Article 25 of the
ICCPR because it would place a cap on the amount of election-related
expenditure a person or entity can incur over a calendar year or, in the case of a
by-election or Senate-only election, over an election period.
59. The UN Human Rights Committee noted in General Comment No.25 (on
participating in public affairs and the right to vote) that 'reasonable limitations on
campaign expenditure may be justified where this is necessary to ensure that the
2
UN Human Rights Committee, General comment adopted by the Human Rights Committee under
Article 40, paragraph 4 of the International Covenant on Civil and Political Rights, UN Doc
CCPR/C/21/Rev.1/Add.7 (27 August 1996) annex V [19].
16
free choice of voters is not undermined, or the democratic process distorted by,
the disproportionate expenditure on behalf of any candidate or party.'3
60. The electoral expenditure caps proposed in this Bill are necessary to address the
increasing amounts of electoral expenditure being spent in relation to federal
elections. Details of this increasing expenditure is included in the overview text
of Schedule 4 below.
61. The cap restricting the amount of electoral expenditure incurred by individuals
and entities is set at a level that supports the right to take part in public affairs
well as supporting a more level playing field for candidates standing for public
office. Further, electoral expenditure on candidate travel and accommodation
expenses and translation services has been exempted from the cap so as to not
disproportionately impact candidates in regional or remote electorates or
candidates in culturally and linguistically diverse electorates.
62. The limits on electoral expenditure created by the Bill are proportionate to the
benefit that will be gained by addressing extreme instances of electoral
expenditure creating a real, or perceived, sense that political participation is only
achievable for those backed by 'big money'.
Right of trade unions to function freely, subject only to limits prescribed by law
and which are necessary under Article 8 of the ICESCR
63. The right of trade unions to function freely, subject to no limitations other than
those prescribed by law and which are necessary in a democratic society in the
interests of national security or public order, or for the protection of the rights
and freedoms of others, is guaranteed under Article 8(c) of the ICESCR.
Limits on electoral expenditure and gifts
64. The caps on electoral expenditure and gifts for a 'federal purpose' (political
donations) contained in the Bill apply to individuals and entities engaged in the
Australian electoral system. This includes registered political parties, candidates,
significant third parties, nominated entities, associated entities and third parties.
65. Entities are required to be registered as associated entities with the AEC if they
meet certain criteria, which include where: the entity operates wholly, or to a
significant extent, for the benefit of one or more registered political parties; the
entity is a financial member of a registered political party; or the entity has voting
rights in a registered political party. Examples of entities that are currently
registered as 'associated entities' on the AEC Transparency Register include '500
clubs', 'think tanks', registered clubs, service companies, trade unions and
corporate party members.
66. To the extent that the Bill would engage the right of trade unions to function
freely, subject only to limits prescribed by law and which are necessary under
Article 8, the limitations are objective, as they apply equally to all kinds of
associated entities, as well as to other entities regulated by the Electoral Act, such
as significant third parties. Further, the limitations are reasonable as they would
only apply to trade unions that meet the requirement to be registered as
3
UN Human Rights Committee, General comment adopted by the Human Rights Committee under
Article 40, paragraph 4 of the International Covenant on Civil and Political Rights, UN Doc
CCPR/C/21/Rev.1/Add.7 (27 August 1996) annex V [19].
17
associated entities, and only relate to donations and expenditure that is for the
purpose of an election--it will not impact donations and expenditure for other
purposes.
67. As outlined in the text under the right to political participation under Article 25,
the restrictions are proportionate to the benefit gained from improved public
confidence in the political system resulting from the proportional limits on undue
influence on the political process.
Conclusion
The Bill is compatible with human rights because, to the extent that it may limit
human rights, those limitations are reasonable, necessary and proportionate to the end
sought.
18
ELECTORAL LEGISLATION AMENDMENT (ELECTORAL REFORM)
BILL 2024
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 (Electoral Reform) Act 2024 (the Act).
Clause 2--Commencement
2. Subclause 2(1) provides that the provisions in column 1 of the table
(Commencement table) commence at the time set out in column 2 of the table.
3. Item 1 of the Commencement table commences the day the Act receives the
Royal Assent.
4. Items 2, 7, 12, 14 and 15 of the Commencement table commence on the day after
the Act receives Royal Assent.
5. Items 3, 4, 5, 6, 8, 9, 10, 11 and 13 of the Commencement table commence on
1 July 2026.
6. It is noted that item 10 of the table does not commences at all if Item 43 of
Schedule 1 to the Act commences on or before 1 July 2026.
7. It is also noted that item 11 of the table does not commence at all if Item 44 of
Schedule 1 to the Act commences on or before 1 July 2026.
8. 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.
9. 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
10. This clause provides that legislation specified in a Schedule to the Act is
amended or repealed as set out in the applicable items in the Schedule concerns,
and any other items in a Schedule to the Act has effect according to its items.
Clause 4--Review of operation of amendments
11. This clause requires the JSCEM, or any other parliamentary committee
determined by the Minister, to review the operation of the amendments made by
this Act before the end of 12 months after the first general election that is held
after 1 July 2026. The Minister is to report the Committee's comments and
recommendations to each House of the Parliament.
19
Schedule 1--Key Definitions
12. Schedule 1 (Part 1) amends a number of key definitions in the Electoral Act that
relate to the operation of funding and disclosure obligations under Part XX.
Additionally, the Schedule includes minor consequential amendments to
equivalent definitions in the Referendum Act.
13. The Schedule implements recommendations from the JSCEM Interim Report and
the JSCEM Final Report, including consideration of changes to the definition of
'gift', lowering the 'disclosure threshold' and inserting a new definition of 'third
party threshold' to reduce any reporting burden on smaller spending organisations
and individuals.
14. Further, the Schedule clarifies registration and deregistration requirements of
significant third parties and associated entities.
15. Schedule 1 (Part 2) inserts the new category of entity, a 'nominated entity' into
the Electoral Act. A registered political party can apply to register an entity as the
nominated entity of the party, provided that both the party and the entity satisfy
the eligibility requirements, and the entity has consented. A registered political
party may only register one nominated entity, and a nominated entity may only
be registered to one party.
Part 1--Meaning of gift and other miscellaneous amendments
Commonwealth Electoral Act 1918
Division 1--Amendments commencing day after Royal Assent
16. Item 1 updates the simplified outline for Division 1A of Part XX--Registration
of significant third parties and associated entities to reflect changes made by
Items 2-7.
17. Item 2 omits 'subsection (4)' from subsection 287L(1) and substitutes
'subsections (2), (3) and (4)'. This is a consequential amendment to reflect
changes inserted by Item 3 below.
18. Item 3 repeals existing subsection 287L(2), which provides that the Electoral
Commissioner may register a person or entity in accordance with their
application to be a significant third party or associated entity, whether or not they
are required to be registered as such. Item 3 replaces this with new subsections
287L(2) and (3), which provide that the Electoral Commissioner must refuse to
register a person or entity as a significant third party or associated entity if they
are not required to be so registered under sections 287F or 287H respectively.
Item 7 applies these changes to applications for registration made after
commencement of Item 3.
19. This amendment supports the integrity of the Transparency Register as the public
record of entities that hold these statuses and are subject to obligations under the
Electoral Act. Ensuring that relevant registration status accurately reflects
whether or not an entity meets the relevant criteria for registration has increased
importance due to the operation of existing section 287R, which provides that an
entry on the Transparency Register is prima facie evidence of the information
contained in that entry.
20
20. Items 4 and 5 are consequential changes to the heading structure of subsection
287L, to reflect the amendments made by Item 3 above.
21. Item 6 inserts new section 287LA, which establishes a process whereby the
Electoral Commissioner must deregister a person or entity as a significant third
party or associated entity if they are not required to be registered under
section 287F or 287H respectively. New subsections 287LA(1) and (2) provide
that the Electoral Commissioner may review the Transparency Register under
subsection 287LA(1) at any time other than during the writ period for an election
(the period starting the day the writs are issued and ending on the day the writ is
returned). New subsection 287LA(2) does not prohibit a person or entity from
making a request to have their information on the Transparency Register
amended during an election period.
22. These subsections provide certainty for registered entities regarding their
obligations in accordance with their registration status in the period shortly
before and after an election, including for expedited disclosure, gift caps and
expenditure caps. More broadly, new section 287LA supports the maintenance of
the Transparency Register so that it remains a current and an accurate record of
whether the listed entities meet the registration criteria.
23. New subsections 287LA(3)-(5) provide that the Electoral Commissioner may
issue a written notice to the financial controller of a registered significant third
party or registered associated entity to request further information for the purpose
of conducting a review of the Transparency Register under new section
287LA(1). These notices may request information in relation to the individual's
or entity's requirement to be registered and must specify a period for the financial
controller to respond, not longer than 30 days.
24. This timeframe is consistent with other reporting timeframes for significant third
parties and associated entities, including the new significant third party and new
associated entity return timeframes (Schedule 5 refers), and compliance and
enforcement notice timeframes (Schedule 9 refers). The financial controller must
comply with the notice within the specified period. The Electoral Commissioner
has discretion to extend the period within which the information must be
provided by the financial controller.
25. A Note is included under subsection 287LA(5) to direct the reader that if a
financial controller fails to comply with the notice requirements, an authorised
officer can give them a notice under new section 314AN (power of authorised
officers to obtain information - compliance) (discussed further in Schedule 9 -
Compliance and enforcement powers).
26. The notification process enables the Electoral Commissioner to request further
information and gives the financial controller the opportunity to respond to and
present their position in relation to the registration status.
27. New subsections 287LA(6)-(7) provide that the Electoral Commissioner must
deregister a person or entity as a significant third party or associated entity if they
are satisfied, on reasonable grounds, that a person or entity is not required to be
registered under sections 287F or 287H.
28. An example may be where the registered political party with which an associated
entity is associated, has been deregistered, and as a result the associated entity no
21
longer meets the requirement for registration under existing section 287H of the
Electoral Act.
29. New subsections 287LA(8) provides that before deregistering a person or entity
under subsection (6) or (7), the Electoral Commissioner must give the financial
controller of the person or entity written notice of the Electoral Commissioner's
intention to deregister the person or entity.
30. New subsection 287LA(9) applies the process for reviewing decisions in existing
section 141 of the Electoral Act to a decision by the Electoral Commissioner to
deregister a person or entity as a significant third party or as an associated entity.
31. Item 7 is an application provision related to Item 3 above. This provides that the
amendments to section 287L apply to applications for registration as a significant
third party or associated entity made after commencement of Item 3. This ensures
that applications that have been submitted prior to commencement, but which are
awaiting an outcome, can be progressed as per the status of the law when they
were submitted.
Division 2--Amendments commencing 1 July 2026
32. Item 8 updates the simplified outline of Part XX of the Electoral Act in section
286A to reflect the changes made to Part XX by Schedules 1-9 of this Bill.
33. Item 9 inserts a new definition of 'commercial interest rate' in the interpretation
provisions in subsection 287(1). This term is relevant to the amended definition
of 'gift' inserted by Item 18. Item 18 inserts section 287AAB, which provides
that a 'gift' is a disposition of property without adequate consideration (subject to
exceptions set out at new subsection 287AAB(3)). Loans can be provided on
terms agreed between the borrower and the recipient. The new definition of
'commercial interest rate' clarifies what is considered 'adequate consideration' in
relation to a loan. This provides greater certainty to participants for
understanding when interest not charged on loan is a gift for the purposes of the
Part XX obligations.
34. 'Commercial interest rate' in relation to a loan, means a rate of interest per
annum that is at least 1.5 percentage points above the cash rate target published
by the Reserve Bank of Australia in effect on the day the loan is made. In the
event the Reserve Bank no longer publishes an interest rate called the cash rate
target, 'commercial interest rate' in relation to a loan will mean the interest rate
published by the Reserve Bank that is substantively the same as the cash rate
target in effect on the day the loan is made.
35. The Note that follows the definition of 'commercial interest rate' refers readers to
the Reserve Bank website for the details of the cash rate target and other interest
rates published by the Reserve Bank.
36. Item 9 also inserts the definition of 'core member' of an expenditure group into
subsection 287(1). The meaning of this term is given in new section 302ALF,
inserted by Schedule 4 of the Bill.
37. Item 10 repeals the current definition of 'disclosure threshold' in subsection
287(1), including the Note, and substitutes this with a definition of 'disclosure
threshold' that means $1,000.
22
38. This will lower the current disclosure threshold value from $16,900 for the
2024-25 financial year to $1,000. The disclosure threshold value will be indexed
on 1 January after each general election, based on CPI data for the preceding
quarter. Indexation is provided for in new section 321AA, set out in Schedule 3
of this Bill. Lowering the threshold implements JSCEM recommendation 1 of the
JSCEM Interim Report that the Australian Government lower the donation
disclosure threshold to $1,000.4 Lowering the disclosure threshold to $1,000 was
also recommended in 2018 by the Senate Select Committee into the Political
Influence of Donations.5
39. The value of the disclosure threshold has been the subject of numerous
parliamentary inquiries since its insertion in 1992. Submissions to such inquiries
have recognised that lowering the disclosure threshold would have a number of
significant benefits, including:
• increasing transparency of who is funding political campaigns;
• reducing potential for persons and entities to seek to circumvent disclosure
obligations by making multiple donations below the disclosure threshold--
this is further addressed in the cumulative treatment of gifts for the purpose of
expedited disclosure (Schedule 2) and gift caps (Schedule 3); and
• more closely aligning federal electoral financial disclosure thresholds with
those in state and territory jurisdictions to provide consistent levels of
transparency.
40. Further, as raised in a number of submissions to these inquiries, this Bill
decouples the disclosure threshold from certain definitional terms including 'third
party' and 'significant third party' discussed below at Items 14 and 15.6 This
introduction of a 'third party threshold' will reduce the potential impact of the
lower disclosure threshold on smaller organisations and individuals that are
incurring smaller amounts of electoral expenditure.
41. Item 11 inserts the definition of 'expenditure group' into subsection 287(1). The
meaning of this term is given in new section 302ALF, inserted by Schedule 4 of
the Bill.
42. Item 11 also inserts the definition of 'financial institution' into subsection 287(1).
This means an authorised deposit-taking institution (within the meaning of the
Banking Act), a bank, a building society or a credit union.
43. Item 12 repeals the existing definition of 'gift' from subsection 287(1) and
replaces it with the meaning given by new section 287AAB, inserted by Item 18
(discussed below).
44. Item 13 inserts a new definition of 'Senate-only election', being a Senate
election that is not held concurrently with a 'general election' (defined in
4
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 65 [2.242].
5
Senate Select Committee into the Political Influence of Donations, Parliament of Australia, Political
Influence of Donations (Report, June 2018) 67 [5.44].
6
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Final Report, November 2023) 114 [5.27]-[5.28].
23
subsection 287(1) of the Electoral Act). This new definition supports the
operation of Schedules 3 and 4, which relate to gift caps and expenditure caps.
45. Item 14 repeals the current definition of 'third party' in subsection 287(1) of the
Electoral Act and substitutes an updated definition. This new definition means a
person or entity is a 'third party' if they incur electoral expenditure over the
'third party threshold' in a calendar year. This new definition clarifies a person is
a 'third party' if they are not required to be registered as a significant third party
or an associated entity and is not registered as a 'nominated entity'. This is
intended to help individuals and entities understand their obligations under the
funding and disclosure reforms introduced by the following Schedules.
46. The Note under the updated definition of third party alerts the reader to
subsections 287(8), 8A to 8D and section 287C, which may be relevant to third
parties with branches or unincorporated third parties.
47. Item 15 inserts a new a definition of 'third party threshold' into subsection
287(1). This term means $20,000. This amount is indexed annually under section
321A as amended by Schedule 3 of the Bill.
48. The new 'third party threshold' of $20,000, as the threshold of electoral
expenditure over which a person or entity will qualify as a third party, was
recommended by JSCEM in the JSCEM Final Report (recommendation 14
refers).7 This will reduce the reporting burden on smaller organisations and
individuals spending smaller amounts of money on local campaigning. For
example, a person or entity that incurs less than $20,000 in electoral expenditure
and does not meet the definition of third party, significant third party or
associated entity is not subject to financial disclosure obligations under Part XX,
including expedited disclosure (Schedule 2).
49. This addresses potential issues raised in JSCEM submissions that the new
reporting regime would be too burdensome on smaller community groups,
reducing participation.8 The new threshold targets any reporting burden on
persons and entities engaging in more substantial campaigning.
50. Consequential changes are made by Items 24, 27 and 45 to the definitions of
'significant third party' and 'referendum entity' to replace 'disclosure threshold'
with 'third party threshold' where those definitions rely on an electoral
expenditure or a fundraising threshold.
51. Item 16 inserts new subsections 287(8A), (8B), (8C) and (8D). These provisions
clarify the status of a person or entity that may hold dual status (for example,
where the person or entity is simultaneously registered as a significant third party
and an associated entity) or who may be related to another person or entity
through the operation of existing subsections 287(6) (related bodies corporate) or
287(8) (branches of significant third parties or third parties).
7
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Final Report, November 2023) 120 [5.59].
8
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 141 [2.127]-[2.136].
24
52. New subsection 287(8A) provides that, if an entity is registered as both a
significant third party and an associated entity, it is to be treated as if it were only
an associated entity.
Example--operation of subsection 287(8A)
Greater Bilby Pty Ltd is registered as both a significant third party and an
associated entity, because it meets the registration criteria at sections 287F and
287H.
Due to the operation of subsection 287(8A), for the purposes of Part XX of the
Electoral Act, Greater Bilby Pty Ltd is treated as if it were only an associated
entity.
This means that Greater Bilby Pty Ltd would be subject to the associated
entity gift caps and expenditure caps under Schedules 3 and 4.
53. New subsection 287(8B) provides that a branch of an associated entity that is
also registered as an associated entity is to be treated as a separate associated
entity.
Example--operation of subsection 287(8B)
The Axolotl Association ACT is a state branch of the Axolotl Association
Australia--both entities are registered as separate associated entities.
Due to the operation of subsection 287(8B), for the purposes of Part XX of the
Electoral Act, these are separate associated entities and must both meet the
requirements and obligations of this Part.
This means that the Axolotl Association ACT and the Axolotl Association
Australia would have separate gift caps and expenditure caps under Schedules
3 and 4.
54. New subsection 287(8C) clarifies that despite section 287(6) of the Electoral Act,
for the purposes of Part XX, an associated entity that is a body corporate and is
related to another body corporate is to be treated as a separate person from the
other body corporate.
25
Example--operation of subsection 287(8C)
The Lake Eyre Pelican Council is a body corporate registered as an associated
entity and is also related to the Pelican Council of Australia body corporate, as
determined under the Corporations Act 2001.
Due to the operation of subsection 287(8C), for the purposes of Part XX of the
Electoral Act, the Lake Eyre Pelican Council is to be treated as a separate legal
person from the Pelican Council of Australia. This means:
• Lake Eyre Pelican Council is treated as an associated entity; and
• Pelican Council of Australia and other related body corporates that are
not associated entities are treated as the same person under existing
subsection 287(6).
For example, this means that the Lake Eyre Pelican Council and the Pelican
Council of Australia will have separate gift caps and expenditure caps under
Schedules 3 and 4.
55. New subsection 287(8D) provides that despite section 287(8) of the Electoral
Act, for the purposes of Part XX, a branch of a significant third party or third
party that is an associated entity is to be treated as separate from the significant
third party or third party.
Example--operation of new subsection 287(8D)
The Busy Bee Workers Association (BBWA) and its branches are a significant
third party. The BBWA Queensland branch is also registered as an associated
entity.
Due to the operation of subsection 287(8D), for the purposes of Part XX of the
Electoral Act:
• BBWA QLD is an associated entity; and
• BBWA, and all other branches of the BBWA that are not associated
entities, are a single significant third party under existing subsection
287(8).
For example, this means that the BBWA QLD and the BBWA will have
separate gift caps and expenditure caps under Schedules 3 and 4.
56. Provisions that deal with the treatment of an associated entity that is also a
nominated entity are detailed in subsection 287MB(2), inserted by Item 53 of
Schedule 1 (Part 2) below.
26
57. Item 17 repeals subsection 287(9) of the Electoral Act, which sets out when a
candidate or group is taken to begin to be, and ceases to be, a candidate or group
for the purpose of Part XX. Item 17 inserts a new provision which includes
additional limbs for when a person begins to be a 'candidate', which are:
• the day the person receives a gift for a federal purpose in relation to the
person's campaign as a candidate that exceeds the disclosure threshold;
• the day the total amount or value of all gifts for a federal purpose received by
the person in relation to the person's campaign as a candidate, from the same
person or entity, exceeds the disclosure threshold (cumulative); or
• the day the person incurs electoral expenditure for the purposes of the
person's campaign as a candidate exceeds the disclosure threshold.
58. These limbs are in addition to the existing subsection 287(9) of the Electoral Act
which provides when a person is taken to be a 'candidate' for the purposes of the
Electoral Act, being public announcement of candidacy or nomination, in the
election. These additional limbs support candidates and donors to understand
when they will have obligations under Part XX, including expedited disclosure of
gifts, gift caps, expenditure caps and Commonwealth campaign accounts.
59. The updated definition of candidate also provides that a person ceases to be a
candidate 7 days after polling day, a reduction from the current 30 days.
60. Note 1 following amended subsection 287(9) supports this new definition with an
example of when a person may be considered a candidate, despite not having
announced they would be a candidate or nominated as a candidate in an
election.
61. Note 2 following amended subsection 287(9) summarises different obligations
that may apply to a candidate under Part XX of the Electoral Act (non-
exhaustive).
62. Item 18 inserts a new section 287AAB that defines the meaning of 'gift' for the
purposes of Part XX of the Electoral Act. In the JSCEM Interim Report, it was
recommended the Australian Government give consideration to amending the
definition of 'gift' to ensure it meets community expectations of transparency in
political donations (recommendation 3 refers).9
63. New subsection 287AAB(1) provides that a 'gift' means any disposition of
property made by a person or entity to another person or entity, being a
disposition made without consideration in money or money's worth, or with
inadequate consideration, and includes the provision of a service for no
consideration or for inadequate consideration.
64. The definition of 'gift' in determining 'adequate' or 'inadequate consideration' is
applied as an objective test based on an assessment of the market value of a good
or service received, and what a reasonable person would pay. This is consistent
9
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 66 [2.247].
27
with the interpretation of similar terms in relation to taxation laws considered by
the High Court of Australia, and state and territory electoral legislation. 10
65. A Note following new subsection 287AAB(1) directs the reader to the existing
definition of 'disposition of property' in section 287(1) of the Electoral Act.
66. New subsection 287AAB(2)(a) provides that a gift also includes an amount paid
by a person as a contribution, entry fee or other payment to attend, or otherwise
obtain a benefit from, a fundraising venture or function that forms part of the net
proceeds of the venture or function (receipt requirements for gifts under this
paragraph are included in new section 302CH, inserted by Schedule 3 of the
Bill). Additionally, new paragraph 287AAB(2)(b) also provides that a gift
includes uncharged interest on a loan.
67. Subsection 287AAB(3) sets out a number of types of amounts and services that
are not a 'gift' for the purpose of Part XX. This section interacts with the
Commonwealth campaign account provisions inserted by Schedule 6 of this Bill,
which specify what type of amounts can and cannot be credited to a federal
account. The following paragraphs outline the effect of some of these exclusions
(non-exhaustive).
68. New paragraphs 287AAB(3)(a), (c) and (f), provide that a gift does not include:
• a subscription paid to a political party, to a State branch of a political party or
to a division of a State branch of a political party, by a person or entity in
respect of the person or entity's membership of the party, branch or
division; or
• an amount paid to a political party, to a State branch of a political party or to
a division of a State branch of a political party, by a person or entity in
respect of the person or entity's affiliation with the party, branch or division;
or
• an annual levy paid to a registered political party or a State branch of a
political party by a person elected as a member of the House of
Representatives or as a Senator; a member of staff of a person elected as a
member of the House of Representatives or as a Senator; or an employee or
elected official of the registered political party.
69. As these types of payments (subscriptions, affiliation fees and annual levies) are
not gifts, they cannot be credited to the federal account of the receiving registered
political party (subsections 292FA(2) and (4), as amended in Schedule 6, refer).
70. New paragraph 287AAB(3)(e) provides that an amount paid by a political party
to another political party, is not a gift if:
• the parties are related to each other within the meaning of
paragraph 123(2)(a) because one party is a part of the other (while not being a
State branch of the other); and
• the other is a federal branch.
10
McGain v Federal Commissioner of Taxation (1966) 116 CLR 172 at [174], [176]; Harris v
Victorian Electoral Commission (2020) 62 VR 460 at [77] (Richards J).
28
71. New paragraph 287AAB(3)(g) provides that a disposition of property, including
the provision of a service, made between two core members of a registered
political party's expenditure group is not a 'gift'. 'Expenditure group' and 'core
member' have the meanings given to these terms by section 302ALF, inserted by
Schedule 4 of the Bill.
72. Registered political parties and nominated entities must provide separate annual
returns setting out the amounts received over the disclosure threshold by or on
behalf of the entity during the calendar year, supporting transparency of any
transactions (Schedule 5 refers).
73. New paragraph 287AAB(3)(s) provides that electoral expenditure incurred by a
person or entity for the benefit of another person or entity is not a gift. This
paragraph is intended to make clear that such amounts are 'electoral
expenditure', not a 'gift', avoiding the potential for amounts to be inadvertently
'double capped' by the electoral expenditure cap and the gift cap provisions.
74. Additional clarifications are discussed below at Item 20 which amends the
meaning of 'electoral expenditure' to include subsection 287AB(4) to provide
that certain amounts and gifts are not electoral expenditure.
75. Two Notes follow new subsection 287AAB(3) to direct the reader to relevant
definition of 'State or Territory electoral purpose' in subsection 287(1) and
relevant restrictions on the receipt of certain loans in section 306A of the
Electoral Act.
76. New subsection 287AAB(4) provides that, if any of the following is credited to a
federal account by a financial controller in relation to a significant third party, an
associated entity, or by a third party, it is considered a 'gift' for the purposes of
Part XX:
• subscription fees paid to a significant third party, associated entity or third
party in respect of a person's membership of that significant third party,
associated entity or third party;
• affiliation fees paid to a significant third party, associated entity or third party
in respect of a person's affiliation with that significant third party, associated
entity or third party;
• an annual levy paid to a significant third party, associated entity or third party
by an elected official or employee of that significant third party, associated
entity or third party.
77. A Note is included under subsection 287AAB(4) to clarify that unless this
subsection applies, an amount that is covered by paragraph 287AAB(3)(b) or (d)
(subscription in respect to associated entity membership or affiliation fee) is not a
gift. The Note also directs to subsection 292FA(6), which prevents the crediting
of these kinds of amounts to a federal account to the extent they exceed the
annual gift cap. The exception at 292FA(6) allows subscriptions, affiliation
payments and annual levies to significant third parties, third parties or associated
entities to be credited to the federal account and therefore used for electoral
expenditure.
78. It further provides that the financial controller of the person or entity must ensure
that, in relation to a particular member or affiliate, the sum of the relevant
29
payments credited to a federal account during a calendar year must not exceed
the annual gift cap. For example, this means that, if a person paid a $25,000
subscription fee to an associated entity, only $20,000 of that fee could be credited
to the federal account to be used for electoral expenditure.
79. Additionally, these amounts are subject to expedited disclosure obligations
introduced by Schedule 2 of this Bill. Once these amounts are credited into a
federal account, the financial controller for the significant third party, associated
entity or third party will be required to provide the AEC with a donation
disclosure notice. In most cases, an equivalent obligation does not apply for the
person to whom the affiliation fee, subscription fee or annual levy relates. This is
appropriate as the person making the payment for the subscription, affiliation fee
or annual levy may not be making that payment for a federal purpose and are
therefore not a 'donor'.
80. This flexibility ensures that significant third parties, third parties and associated
entities are not forced into a particular type of governance structure and allows
them to make decisions about the allocation of their resources towards electoral
expenditure. This recognises that such persons and entities often have more than
one purposes or goal, including those unrelated to politics and electoral
expenditure. This furthers the purpose of creating a fairer playing field for
elections.
81. Item 19 inserts a Note following the definition of 'electoral expenditure' in
287AB(3) to clarify that the definition relates to expenditure in relation to federal
elections, and not state or territory elections.
82. Item 20 inserts new subsection 287AB(4) to the definition of 'electoral
expenditure'. This subsection provides that despite anything else in section
287AB, none of the following is electoral expenditure:
• a gift to which a gift cap applies, as set out in Schedule 3 (a gift for a federal
purpose) (at new paragraph (a));
• a disposition of property made by a member of a registered political party's
expenditure group to another member of the expenditure group (at new
paragraph (b));
• a disposition of property made by a political party to a political party to
which it is related within the meaning of subsection 123(2) in Part XI of the
Electoral Act (at new paragraph (c)); and
• expenditure of a kind prescribed by the regulations (at new paragraph (d)).
83. This supports the operation of gift caps and expenditure caps introduced by
Schedules 3 and 4 of this Bill by providing greater clarity on when an amount is
to be counted towards the gift caps or electoral expenditure caps.
Example--operation of paragraph 287AB(4)(b)
The Quokka Australia Party (QAP) NSW Branch buys 15 printers to be used
by its endorsed candidates to print election materials for distribution in their
respective Divisions.
30
The initial purchase of the printers by the QAP is subject to the ordinary test of
whether the amount is 'electoral expenditure' within the meaning of section
287AB.
The sharing of the printers with the candidates, as a disposition of property
between members of the party's expenditure group, is not electoral expenditure
under the operation of paragraph 287AB(4)(b).
84. Item 21 inserts new section 287AD, which provides that Part XX does not have
the effect of making internal documents of a political party enforceable in an
Australian court. This includes the constitution, rules, resolutions or other
internal documents or decisions (however described) of a political party.
85. Items 22, 23, 25, 26, 28-30 and 33, 35-39 replace references to 'financial year'
with 'calendar year', reflecting the change for annual return reporting timeframes
from a financial year to a calendar year. This supports the amendments inserted
by this Bill, including annual gift caps and electoral expenditure caps, which
operate on a calendar year, rather than financial year basis.
86. Items 24 and 27 are consequential changes to omit references to 'disclosure
threshold' and substitute 'third party threshold', as introduced in Item 15 above.
87. Item 32 repeals paragraph 287H(1)(g) from the requirement to register as an
associated entity criterion. This means that a person or entity that operates wholly
or to a significant extent for the benefit of one or more 'disclosure entity' (within
the meaning of section 321B paragraphs (aa) or (c) to (f)) and the benefit relates
to one or more electoral activities, will no longer be required to register as an
associated entity. The relevant paragraphs of the meaning of 'disclosure entity'
include candidates (including Senate groups), members of the House of
Representatives and Senators.
88. Items 31, 34, 40 and 41 are consequential amendments to reflect the repeal of
paragraph 287H(1)(g) at Item 32 above.
89. Item 42 repeals the current simplified outline of Division 3A--Requirements
relating to donations and replaces this with an updated outline that reflects
changes made by this and other Schedules in this Bill.
90. Items 43 and 44 repeal current subsections 302D(5) and 302F(7) respectively,
including headings. These are consequential changes to reflect the updated
definition of 'candidate' introduced by Item 17 above.
Referendum (Machinery Provisions) Act 1984
91. Item 45 amends the definition of 'referendum entity' in subsection 3(1), omitting
the words 'disclosure threshold' and substituting 'third party threshold'.
92. Item 46 inserts into subsection 3(1) the definition of 'third party threshold',
which references the definition given by Part XX of the Electoral Act.
93. These items are consequential changes to the introduction of the new definition
of 'third party threshold' in Item 15 above.
31
Commonwealth Electoral Act 1918
Division 3--Application of amendments
94. Item 47 clarifies the application of repealing paragraph 287H(1)(g), at Item 32
above. Subitem (1) states that for the avoidance of doubt, the repeal of paragraph
287H(1)(g) has effect from the day the repeal commences, being 1 July 2026,
regardless of whether the entity was registered as an associated entity before that
day.
95. New subitem (2) provides that subitem (1) above, is subject to any rules made by
the Minister under Schedule 11 that affect the application of items.
Part 2--Nominated Entities
Commonwealth Electoral Act 1918
96. This Part inserts the new concept of a 'nominated entity' into the Electoral Act.
97. A registered political party can apply to register an entity as the nominated entity
of the party, provided that both the party and the entity satisfy the eligibility
requirements, and the entity has consented. A registered political party may only
have one nominated entity registered, and a nominated entity may only be
registered to one party.
98. A 'nominated entity' is an Australian entity that operates wholly or to a
significant extent for the benefit of a registered political party, and which has
been voluntarily registered as a 'nominated entity' by that party. This structure
provides flexibility for registered political parties in managing their campaign
finances. Additionally, nominated entities will be subject to disclosure
requirements included in Schedule 5, ensuring greater transparency of the
financial activities of nominated entities and their registered political parties.
99. Item 48 inserts a definition of 'nominated entity' into subsection 287(1) to
support the interpretation of the new concept throughout Part XX and Part XXA.
A 'nominated entity' is defined as an entity that is registered as the nominated
entity of a registered political party under new section 287MC, inserted by
Item 53 below.
100. Items 49-51 and 54-70 insert 'nominated entity' or 'nominated entities' into
various provisions throughout Parts XX and XXA that refer to 'associated entity'
or 'associated entities'. These amendments cause these provisions to apply to
nominated entities in an equivalent manner to how the provisions currently apply
to associated entities. This equivalency is because an entity that satisfies the
eligibility criteria to be a nominated entity will, by definition, also satisfy the
criteria that requires the entity be registered as an associated entity.
101. Item 52 amends section 287D to insert references to nominated entities in the
simplified outline in Division 1A of Part XX, which relates to registration of
entities on the Transparency Register. This provides that certain entities
incorporated in Australia may be registered as the nominated entity of a
registered political party. It also specifies that any exchanges made between a
32
registered political party and its nominated entity do not fall within the new
definition of 'gift' in new subsection 287AAB(3), as inserted by Item 18.
102. Item 53 inserts new Subdivision BA into Division 1A of Part XX to provide the
mechanisms for the registration of a nominated entity.
103. New section 287MA sets out the requirements for an application for registration
of an entity as the nominated entity of a registered political party.
104. A registered political party may apply to the Electoral Commissioner to register
an entity as the nominated entity of the party. New subsection 287MA(1)
provides that this entity cannot be a 'political entity' (as defined in subsection
4(1)), meaning that the entity cannot be a registered political party or a State
branch of a registered political party. This exclusion is to ensure that a nominated
entity, while closely associated with a registered political party, is not part of that
party. It is also consistent with the equivalent exclusion in the categories of
significant third party, associated entity and third party in existing sections 287F,
287H and 287 of the Electoral Act, respectively.
105. As provided by new subsection 287MA(2), the application must be in the
approved form and include the following details (non-exhaustive):
• state the name of the financial controller of the entity who is nominated to be
registered as the financial controller;
• include the entity's consent in the approved form, as specified in new
subsection 287MA(3); and
• include any other information as required by the regulations.
106. A Note after subsection 287MA(2) alerts the reader to section 292E in relation to
nominating a financial controller of a nominated entity. As amended by Item 59,
section 292E requires a nominated entity to nominate a financial controller for
the entity. Since paragraph 287MB(1)(a) requires a nominated entity to be
incorporated, its financial controller (as defined in subsection 287(1)) must be the
entity's company secretary, its trustee, or the person responsible for maintaining
the financial records of the entity (as the case may be)).
107. New subsection 287MA(3) provides that an entity, that is not a political entity,
may give its consent to be registered as the nominated entity of a registered
political party. This consent is to be given in an approved form and is required to
be included in a registered political party's application to register the entity as
their nominated entity under subparagraph 287MA(2)(b)(ii).
108. New section 287MB sets out the eligibility requirements for an entity's
registration as the nominated entity of a registered political party. These
eligibility requirements are met only if all of the following are satisfied:
• the entity is incorporated in Australia and has its head office and principal
place of activity in Australia(this requirement is to protect against a
nominated entity being used as a vehicle for foreign donations, which would
be contrary to the restrictions in Division 3A of Part XX);
• the entity operates wholly, or to a significant extent, for the benefit of the
applying party(this criterion can be met even if the entity also operates for the
33
benefit of other registered political parties, such as State branches related to
the applying party);
• the entity is not a political entity (consistent with new subsection 287MA(1));
• the entity has given its consent in an approved form in accordance with
subsection 287MA(3);
• the applying party has no other registered nominated entity; and
• the entity is not registered as the nominated entity for any other registered
political party.
109. A Note after new paragraph 287MB(1) alerts the reader to the operation of new
paragraphs 287MB(1)(f) and (g). These new paragraphs specify that a registered
political party cannot have more than one entity registered as its nominated entity
and, conversely, that a nominated entity cannot be registered as the nominated
entity of more than one registered political party. This reflects the intention that a
nominated entity be an entity with a uniquely close association with the applying
party.
110. New subsection 287MB(2) clarifies that an entity can be registered as both an
associated entity and a nominated entity simultaneously. A Note is included after
this subsection to direct the reader that new paragraphs 287MB(1)(c) and
287H(1)(b) require every nominated entity to be registered as an associated
entity. Paragraph 287MB(1)(c) specifies an entity is eligible to be a nominated
entity only if it operates wholly, or to a significant extent, for the benefit of a
registered political party. Paragraph 287H(1)(b) requires an entity that operates
wholly, or to a significantly extent, for the benefit of a registered political party
to register as an associated entity. As such, if an entity becomes registered as a
nominated entity, it will be in breach of existing subsection 287H(2) if it is not
registered as an associated entity within 90 days (if not earlier, since the
requirement to register as an associated entity can pre-date registration as a
nominated entity). This reflects the intention that nominated entities have a dual
status as an associated entity for the purposes of the Electoral Act.
111. New section 287MC sets out the procedure the Electoral Commissioner must
follow when deciding whether to register a nominated entity for a registered
political party.
112. The Electoral Commissioner must register an entity if the application has the
requisite content under new subsection 287MA(2)(discussed above), but must not
do so if the Commissioner is satisfied that:
• the entity and party do not satisfy the eligibility requirements in new
subsection 287MB(1);
• the entity's name does not comply with the naming restrictions outlined in
new paragraph 287MC(2)(b); or
• the entity's name does not comply with the naming restrictions in new
paragraph 287MC(2)(c).
113. An entity's name does not comply with the naming restrictions outlined in new
paragraph 287MC(2)(b) if, were the entity applying to be registered as a party
34
under Part XI, the entity's name would be such that the AEC would be required
to refuse the entity's party registration under any of the grounds in subsection
129(1) (except 129(1)(a)).
114. New paragraph 287MC(2)(b) supports the integrity of the Transparency Register
by preventing the registration of a proposed nominated entity where the entity's
name is obscene or so similar to an unconnected political party that the entity
could be confused with that party. This would be satisfied if the entity's name:
• is obscene, frivolous or vexatious; or
• is the name, or an abbreviation or acronym of the name, of a recognised
political party that is unrelated to the entity's applying party; or
• so nearly resembles the name, abbreviation or acronym of a recognised
political party unrelated to the applying party that the entity's name is likely
to be confused with or mistaken for that recognised political party's name,
abbreviation or acronym; or
• is one that a reasonable person would think suggests a connection between
the entity and a registered political party where no such connection exists; or
• comprises the words 'Independent Party' or 'Independent'; or
• contains the word 'Independent' with the name, abbreviation or acronym of a
recognised political party (or matter that so nearly resembles the party's
name, abbreviation or acronym that the matter is likely to be confused with or
mistaken for the name, abbreviation or acronym).
115. An entity's name also does not comply with the naming restrictions outlined in
paragraph 287MC(2)(c) if, were the entity applying to be registered as a party
under Part XI, the entity's name would be such that the AEC would be required
to refuse the entity's party registration under any of the grounds in subsection
129(3) (except subparagraph 129(3)(a)(ii)).
116. New paragraph 287MC(2)(c) also supports the integrity of the Transparency
Register by preventing the registration of a nominated entity where the entity's
name shares a word with the name or abbreviation of a registered political party,
without the written consent of that party. This would include other grammatical
versions or commonly accepted variants of the shared word in accordance with
subsection 129(6), but not the unrestricted words outlined in subsection 129(5).
117. For the avoidance of doubt, the similarity of the entity's name to another
nominated entity's name is not relevant to new paragraphs 287MC(2)(b)-(c).
118. New subsection 287MC(3) provides that the Electoral Commissioner must, as
soon as practicable after receiving an application to register a nominated entity,
decide to register or to refuse registration.
119. New subsections 287MC(4) and (5) provide that the Electoral Commissioner
must notify the applying party and the entity as soon as practicable after the
Electoral Commissioner makes their decision and must publish that notice on the
AEC website as soon as practicable after it is given to the party and the entity.
120. If the Electoral Commissioner refuses an application, new subsection 287MC(6)
provides for how a person affected by the decision can have the decision undergo
35
internal merits review. The person's review rights, and the internal review
process, are intended to be the same as the rights and process provided under
existing section 141 of the Electoral Act for Part XI decisions, as if:
• the refusal decision were a reviewable decision in subsection 141(2);
• a reference in section 141 to a person included a reference to the applying
party and the entity;
• a reference in existing subsections 141(2) and 141(8) to a delegate of the
Electoral Commission were a reference to a delegate of the Electoral
Commissioner;
• a reference in existing subsections 141(5) and 141(9) to the Electoral
Commission included a reference to the Electoral Commissioner, but not a
reference to a delegate of the Electoral Commissioner; and
• a reference to a written notice given under Part XI in relation to a reviewable
decision included a reference to a written notice given under new section
287MC in relation to a decision to refuse entity registration.
121. If the refusal decision was made by a delegate of the Electoral Commissioner,
then, in the first instance, the affected person can seek internal review by the
three-person Electoral Commission, in accordance with subsection 141(2). The
affected person may then also seek review of the three-person Electoral
Commission's decision by the Administrative Review Tribunal in accordance
with subsection 141(5).
122. If the Electoral Commissioner personally made the refusal decision, then, in the
first instance, the affected person can seek review by the Administrative Review
Tribunal in accordance with subsection 141(5). This is to avoid the Electoral
Commissioner, who is a member of the three-person Electoral Commission,
internally reviewing their own decision.
123. Consistent with the voluntary nature of registration as a nominated entity, new
section 287MD provides for the voluntary cancellation of registration as a
nominated entity. This section provides that the Electoral Commissioner must
cancel a nominated entity's registration if the Commissioner receives an
application to do so from either the entity or its registered political party. The
Electoral Commissioner must then give written notice of such cancellation to the
entity and the party as soon as practicable after cancelling the registration, and
must cause this notice to be published on the AEC's website as soon as
practicable after giving that notice.
124. New section 287ME provides for the mandatory cancellation of an entity's
registration as a nominated entity in certain circumstances.
125. The Electoral Commissioner must cancel a nominated entity's registration if the
Commissioner is satisfied as to any of the following:
• the party to which the nominated entity is registered becomes deregistered
(this being inconsistent with the eligibility requirement in new subsection
287MA(1));
36
• the nominated entity ceases to be incorporated in Australia, to have its head
office in Australia, or to have its principal place of activity in Australia (this
being inconsistent with the eligibility requirements in new paragraphs
287MB(1)(a) and (b));
• the nominated entity ceases to operate wholly, or to a significant extent, for
the benefit of the party to which it is registered (this being inconsistent with
the eligibility requirement in new paragraph 287MB(1)(c));
• the nominated entity has become a political entity (this being inconsistent
with the eligibility requirement in new paragraph 287MB(1)(d));
• the agent of the party to which the nominated entity is registered is convicted
of an offence under Part XX (this being inconsistent with the agent eligibility
requirement in subsection 292F(4)); or
• the financial controller of the nominated entity is convicted of an offence
under Part XX (this being inconsistent with the financial controller eligibility
requirement in subsection 292F(4)).
126. New subsections 287ME(2) and (3) require the Electoral Commissioner to give
written notice of the cancelled registration to the party and the entity as soon as
practicable after cancelling the registration, and to cause copies of the notice to
be published on the AEC's website, as soon as practicable after that notice is
given.
127. If the Electoral Commissioner cancels a registration and the cancellation was not
requested by the entity or its party, new subsection 287ME(4) provides for how a
person affected by the Electoral Commissioner's decision can have the decision
undergo internal merits review. The person's review rights, and the internal
review process, are intended to be the same as the rights and process provided
under existing section 141 of the Electoral Act for Part XI decisions.
128. If the cancellation decision was made by a delegate of the Electoral
Commissioner, then, in the first instance the affected person can seek internal
review by the three-person Electoral Commission in accordance with subsection
141(2). In the second instance, the affected person can seek merits review by the
Administrative Review Tribunal, in accordance with subsection 141(5).
129. If the Electoral Commissioner personally made the cancellation decision, then, in
the first instance, the affected person can seek review by the Administrative
Review Tribunal, in accordance with subsection 141(5). This is to avoid the
Electoral Commissioner, who is a member of the three-person Electoral
Commission, internally reviewing their own decision.
130. An entity is taken to be the nominated entity of a registered political party only
so long as its registered details as such an entity are on the Transparency
Register. New section 287MF provides that the registration of an entity as the
nominated entity of a registered political party comes into force when the
registration is recorded on the Transparency Register and ceases to be in force
when the registration is removed from the Transparency Register.
131. Items 49-51 and 54-70 specify how various parts of the Electoral Act are to
apply to nominated entities. Generally, these amendments specify that
requirements that apply to an 'associated entity' will also apply to a 'nominated
37
entity'. This reflects that a nominated entity will have a dual status as an
'associated entity'.
132. Item 49 amends the definition of a 'regulated entity' in subsection 287(1) to
specify that a nominated entity will also be a regulated entity for the purposes of
existing section 314B. This means that a nominated entity is not required to
disclose certain information about gifts, expenditure, payments, debts and
benefits that the nominated entity gives or receives for a federal purpose (that is,
incurring electoral expenditure, or creating or communicating electoral matter),
despite any State or Territory electoral law to the contrary.
133. Item 50 amends subsection 287AB(3) to specify that expenditure incurred by, or
with the authority of, a nominated entity in relation to an election is electoral
expenditure (subject to the exceptions in that subsection). This means that such
expenditure by a nominated entity will be subject to the expenditure caps inserted
by Schedule 4 of the Bill.
134. Item 51 amends the heading of Division 1A of Part XX to reflect that nominated
entities are registered under this Division.
135. Items 54-56 provide for the details of a nominated entity that are to be included
on the Transparency Register. These are the name of the nominated entity, the
name of the entity's registered political party, and the name of the financial
controller of the entity.
136. Items 57-58 amend the simplified outline of Division 2 of Part XX to reflect that
a nominated entity must nominate a financial controller, whose details are kept
on the Transparency Register.
137. Items 59-62 specify the requirements that apply to the registration of the
financial controller of a nominated entity. The entity must nominate a financial
controller, whose nomination must fulfil the requirements in existing section
292F.
138. Items 63-68 extend the existing restrictions on receiving foreign donations and
foreign gifts so that the restrictions apply to nominated entities.
139. Item 69 provides for the amendment of a return furnished by a nominated entity
in relevantly similar terms to the requirements for an associated entity.
140. Item 70 provides that a nominated entity is a 'disclosure entity' within the
meaning of the term in existing section 321B.
38
Schedule 2--Expedited disclosure of donations
141. Expedited disclosure will modernise the Commonwealth financial disclosure
regime by providing transparency of electoral funding activities in 'real-time', as
recommended by the JSCEM Interim Report (recommendation 2 refers).11
142. In recommending the introduction of 'real-time' disclosure, the JSCEM noted the
significant number of submissions that supported a 'real-time' disclosure
framework, recognising the benefits that more timely transparency would have to
the quality and integrity of Australia's democracy.12
143. Various models for implementation of expedited transparency and disclosure of
donation information have been considered by previous inquiries of JSCEM and
other parliamentary committees over recent decades. In 2018, the Senate Select
Committee into Political Influence of Donations released a report on Political
Influence of Donations, which recommended online, continuous real-time
disclosure of donation information (recommendation 5 and 6).13 The view of the
committee at that time is consistent with the recommendation of JSCEM
implemented by this Schedule, that:
Modern technological advances afford opportunities previously unavailable.
The timeliness of donations and their subsequent disclosure are key elements
in a transparent political finance regime. The current system, whereby
donations can potentially be undisclosed for up to 18 months, is
unacceptable. [ ... ] voters deserve to know who is funding the parties or
candidates when they walk into the polling booth.14
144. Expedited disclosure aims to meet community expectations for timely and
transparent information about the funding of electoral events, as highlighted in
parliamentary inquiry submissions. The new disclosure regime will:
• support voters to make informed decisions when casting their vote, instead of
waiting up to 24 weeks after polling day to find out who is funding elections
and providing political donations throughout the year;
• strengthen privacy protections for recipients and donors in relation to the
publication of personal details, particularly address information;
• seek to balance administrative demands of ongoing reporting timeframes and
election timeframes, where availability of information is more time critical;
• make federal disclosure obligations and reporting timeframes more consistent
with equivalent state and territory electoral disclosure laws;
• establish a reporting regime that reflects advancements in technological
capability and community expectations of timeliness; and
11
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 66 [2.245].
12
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 25 [2.55].
13
Select Committee into the Political Influence of Donations, Parliament of Australia, Political
Influence of Donations (Report, June 2018) 77 [5.90]-[5.91].
14
Select Committee into the Political Influence of Donations, Parliament of Australia, Political
Influence of Donations (Report, June 2018) 77 [5.88].
39
• streamline and manage reporting obligations and administrative requirements
of Part XX to remove duplicative reporting.
145. This includes complementary reforms to key definitions including 'gift',
'disclosure threshold' and 'third party' in Schedule 1, implementation of gift caps
in Schedule 3, and modernisations to annual return obligations in Schedule 5.
Part 1--Amendment of the Commonwealth Electoral Act 1918
Commonwealth Electoral Act 1918
146. Item 1 amends subsection 17(2A) to omit 'furnish a return under 305A(1) or
(1A) in relation to that election' and substitute 'give a notice under 303E in
relation to a gift given to a candidate in that election'. Current subsection 17(2)
requires the Electoral Commission to furnish the Minister with a report on the
operation of Part XX after each federal election and Senate-only election. Current
subsection 17(2A) requires this report to include a list of the names of all donors
to candidates and Senate groups required to submit an election return under
305A(1), as well as any persons required to furnish a return as prescribed under
section 305(1A). This amendment will ensure continuity of the relevant reporting
content by replacing the reference to 305A(1A) with the new donor disclosure
provisions inserted by Item 4 at new section 303E. In effect, these amendments
require the AEC to include in their report to the Minister on the operation of
Part XX for each election a list of the names of all donors who, in the opinion of
the Commission, are or may be required to furnish a 'donation disclosure notice'.
147. Item 2 amends subsection 287(1) to insert the definition 'donation disclosure
notice'. This means a notice under subsection 303A(1), 303E(1) or 303L(1),
inserted by Item 4. A 'donation disclosure notice' is the reporting mechanism for
recipient and donor expedited disclosure obligations implemented by this
Schedule.
148. Item 3 inserts a Note after the definition of 'election' in subsection 287(1) to
signpost the definition of 'election' used in Division 4 of Part XX (defined in
subsection 303. This is a technical Note to assist the reader to navigate the
different definitions of 'election' across Part XX. The meaning of 'election' is
fundamental to the operation of expedited disclosure as the reporting timeframes
vary based on proximity to an election.
Subdivision A--Preliminary
149. Item 4 repeals sections 302V, 303, 304, 305A, 305B and 306, and inserts
Subdivision A--Preliminary. This Item inserts replacement sections 302V
(simplified outline of this Division) and 303 (definitions) which have been
amended to remove references to Senate group donation requirements (amended
in Schedule 3) and to reflect expedited disclosure provisions.
150. New section 303 inserts three new definitional terms to support expedited
disclosure. These are 'election period', being the period from the issue of the writ
to the close of polls, 'expedited notice period', being the period beginning on the
Saturday before polling day and ending on the seventh day after polling day for
that election, and 'polling day', being the day fixed for polling in that election.
40
The existing subsection 303 definitions of 'by-election' and 'election' are
retained.
151. A Note is included under the existing definition of 'election' in subsection 303 to
clarify that for the purpose of Division 4, 'election' includes a 'Senate-only
election' as defined in subsection 287(1) (definition inserted by Item 13 of
Schedule 1).
152. Additionally, new subsection 303 inserts the definitional term 'acceptable action',
to have the same meaning as in current Division 3A of the Electoral Act. This
term is used in Subdivision D and Subdivision F of this Schedule, as they relate
to the Electoral Commissioner's requirement to publish statements provided by
donors and recipients in relation to when acceptable action has been taken in
relation to a gift.
153. Sections 304, 305A, 305B and 306 relate to candidate and donor return
obligations. These sections are repealed and replaced with expedited disclosure
obligations in new sections 303A and 303E in this Schedule, and with the revised
annual return requirements inserted by Schedule 5 of this Bill. The new expedited
disclosure and annual returns provisions will complement each other to create a
more consistent reporting framework. These reforms will standardise reporting
timeframes, clarify return content, and reduce duplication of reporting
requirements. For example, election donors (repealed section 305B) and annual
donors (repealed sections 305B and 306) will only have an expedited disclosure
obligation.
Subdivision B--Disclosure of donations by recipients of gifts made for a federal
purpose
154. New Subdivision B--Disclosure of donations by recipients of gifts made for a
federal purpose establishes the expedited disclosure obligations for persons or
entities that receive a gift for a federal purpose in a calendar year. Public
visibility of these gifts shortly after they have been made will support public
confidence in the integrity of Australian democracy by allowing the Australian
public to make informed decisions when engaging in political discourse and
when casting their vote, instead of waiting up to 24 weeks after polling day to
find out who is funding elections and providing gifts (political donations)
throughout the year.
155. New section 303A provides that a person or entity that receives a gift for a
'federal purpose' over the 'disclosure threshold' must provide a donation
disclosure notice. This obligation applies if the person or entity receives a single
gift greater than the disclosure threshold, or multiple gifts from the same donor in
a calendar year that, when taken together, are greater than the disclosure
threshold. The cumulative nature of this reporting obligation will increase
transparency of electoral financing and prevent the practice of 'donation
splitting', where entities may seek to circumvent their obligations by making
multiple donations under the disclosure threshold. Attempts to circumvent this
reporting requirement are further deterred by the compliance and enforcement
powers related to anti-avoidance in Schedule 9.
156. Expedited disclosure obligations under Subdivision B are confined to disclosure
of gifts for a 'federal purpose', which is defined in 287(1) to mean for 'the
purpose of incurring electoral expenditure or creating or communicating electoral
41
matter'. 'Federal purpose' exclusively refers to federal electoral expenditure. This
scope recognises and balances the need for transparency of gifts intended to
influence the way a person votes at an election, and the reality that persons and
entities that engage in election campaigning may have a range of non-political
roles and purposes. Gifts for purposes unrelated to a 'federal purpose' do not
need to be disclosed under the expedited disclosure obligations.
157. There is a civil penalty associated with failing to provide a donation disclosure
notice within the required timeframe. This is a maximum of 60 penalty units or 3
times the value of the relevant gift, whichever is higher.
158. The table in new subsection 303A(1) provides that this expedited disclosure
obligation applies to gifts received by members of the House of Representatives,
Senators, candidates, registered political parties, State branches of registered
political parties, significant third parties, associated entities, nominated entities
and third parties (column 1). It also establishes the person or entity who is
responsible for furnishing the donation disclosure donation, known as the
'responsible person' (column 2).
159. A Note is included under the table to direct the reader to section 289 of the
Electoral Act, which provides that the agent of a candidate in an election or
by-election is either the candidate or a person appointed by the candidate.
160. The table in new subsection 303A(2) sets out the timeframe for when a donation
disclosure notice must be given to the AEC. The timeframe for furnishing a
return is determined by when the gift is received, reflecting the need for greater
transparency of gifts during the election period.
161. Gifts received in the 'expedited notice period', as defined in section 303 to mean
the period spanning 7 days before and after polling day, must be disclosed within
24 hours of receipt.
162. Gifts received in the 'election period', as defined in section 303 to mean the
period starting on the issue of the writ until close of polls (but not in the
'expedited notice period'), must be disclosed within 7 days of receipt.
163. Gifts received outside the election period must be disclosed on the 21st day of
each month, in arrears. For example, gifts received in July must be disclosed by
21 August. For the purposes of this Subdivision, the timeframe for furnishing a
donation disclosure notice is calculated from the day the gift is received. This
obligation only applies where a recipient has received a relevant gift in the
applicable period.
164. Figure 1 below shows the applicable disclosure timeframe for gifts received
across the different time periods.
42
Figure 1. Disclosure timeframes may vary based on recipient type and when the gift is
received. For example, see discussion of alternate timeframes for significant third
parties and third parties that are registered under the ACNC Act below.
165. Table item 6 of new subsection 303A(2) provides that a person or entity that is a
significant third party or a third party and is registered under the ACNC Act,
subject to the rule in new subsection 303A(7) outlined below, must report
relevant gifts before the end of the 21st day of each month, in arrears. This
alternate timeframe for registered charities is appropriate to minimise the
resource and administrative burden on such organisations, addressing
observations made by the JSCEM and through inquiry submissions, that there is
a difference between registered charities and other political actors.15 These
entities are still required to ensure that all outstanding amounts are reported on or
before the Thursday immediately preceding polling for the election under new
subsection 303A(8).
166. Special provisions for significant third parties that are registered under the ACNC
Act are an existing part of the annual reporting provisions of the Electoral Act.
Table item 6 of new subsection 303A(2) recognises the special status of
registered charities.
167. New subsection 303A(3) provides that a donations disclosure notice must be in
the approved form and include the details required by new subsection 303B
(content of donation disclosure notices).
168. New subsection 303A(4) allows a person to provide a donation disclosure notice
on behalf of a member of the House of Representatives or Senator that is not a
member of a registered political party.
169. New subsection 303A(5) makes special provision to permit a registered political
party or State branch of a registered political party to submit a bulk donation
disclosure notice. This serves as a mechanism to ease the reporting burden on
political parties, which operate wholly for an electoral purpose and as a result are
likely to have a greater number of gifts to disclose.
170. The bulk donation disclosure provision is an administrative tool that does not
change the details of gifts required to be provided, ensuring that there is no
reduction in transparency of the information. New subsection 303A(6) requires
that the bulk notice must still set out the details of gifts received, consistent with
the content requirements at section 303B.
15
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 25 [2.127]-[2.136].
43
171. New subsection 303A(7) requires a recipient, other than a significant third party
or third party registered under the ACNC Act to ensure that any gifts received
before the start of the election period are disclosed on the earlier of the 21st of the
month (consistent with non-election period reporting) or 12 days before polling
day for the election. This ensures that all outstanding gifts are disclosed prior to
the commencement of polling so voters can cast an informed ballot.
172. During election periods, disclosure timeframes are shortened and notice periods
are expedited. This is because public engagement with the electoral process
peaks at this time, and it is crucial for voters to have access to information that
will support them in making informed decisions.
173. At other times, monthly reporting of gifts provides timely transparency in
balance with administrative processes required by recipients. This timeframe also
allows recipients to perform due diligence checks where relevant (such as
checking that the donor is not a foreign donor) and processing gifts received by
non-electronic means such as cheques.
174. New subsection 303A(8) provides for when a significant third party or third party
that is registered under the ACNC Act is required to disclose any gifts received
during the election period for an election or by-election. These gifts must be
disclosed on or before the earlier of the 21st of the month (consistent with
non-election period reporting) or the Thursday immediately preceding polling
day for the election or by-election.
175. Registered charities are not subject to the election period or expedited notice
period reporting timeframes as other recipient types in the table at subsection
303A(2). As such, this provision will ensure that all outstanding gifts are still
disclosed prior to the commencement of polling so voters can cast an informed
ballot.
176. New subsection 303A(9) clarifies subsections 303A(7) and (8) to provide that the
expedited disclosure timeframes for a by-election only apply if the recipient is
engaged in the by-election, either contesting, endorsing a candidate or incurring
electoral expenditure in relation to the by-election. For example, if a registered
political party is endorsing a candidate in a by-election, the election period and
expedited notice period obligations apply. If a registered political party is not
endorsing a candidate in a by-election, the registered political party continues to
report monthly. This ensures that persons or entities not involved in campaigning
for a by-election are not unduly burdened by unnecessary expedited timeframes
and have certainty about reporting requirements.
44
Example--operation of by-election disclosure timeframes
The Quokka Australia Party (QAP) is endorsing a candidate in a by-election
for the Division of Riverina.
Three days before polling day for the by-election, the QAP receives a gift for
the purpose of the by-election valued over the disclosure threshold. The QAP
must provide the AEC with a donation disclosure notice for that gift within 24
hours of the gift being received (table item (3)(a)(ii) of new subsection
303A(2) refers).
On the same day, the QAP also receives another relevant gift valued over the
disclosure threshold, not related to the by-election. As the gift is not in relation
to the by-election, the expedited notice period does not apply to that gift and
the QAP must provide the details of this gift before the end of the 21st day of
the calendar month that immediately follows the month in which the gift was
received (table item (3)(c) of new subsection 303A(2) refers).
177. New subsection 303A(10) inserts an exception to clarify that, if a recipient is
covered by one or more categories of person or entity in the table at 303A(1) at
the same time, they are only required to submit a single donation disclosure
notice in relation to that gift. This removes potential duplication of reporting by
persons or entities that may hold dual status at a point in time, for example an
entity registered both as an associated entity and a nominated entity, or a person
who is both a Senator and a candidate.
178. New section 303B outlines the details that must be provided by a recipient in the
donation disclosure notice. In summary, the donation disclosure notice for a
recipient requires:
• recipient details, including the recipient's name and the name of the person
submitting the notice;
• donor details, including the name and address of the donor;
• gift details, including the value of the gift, the date it was received, and the
total value of gifts from the same donor to the recipient over the calendar
year;
• if the recipient is a candidate, member of the House of Representatives or a
Senator, the name or the registered political party (if any) that the recipient is
related to (within the meaning of new subsections 302BA(4) and (5), inserted
by Schedule 3 of the Bill); and
• if the gift is for a by-election or Senate-only election, the name of the
Division or the State or Territory (as applicable) to which the election relates.
179. This will support compliance with the gift caps provisions inserted by Schedule 3
by requiring to recipient to keep track of and report the total amount or value of
all gifts so far received by the recipient from the same donor during the calendar
year.
180. New section 303C clarifies the relationship between the amendments in
Schedule 2 and the Acts Interpretation Act, with respect to calculating time. This
45
provision provides that for the purposes of calculating when a disclosure
donation notice is to be provided, subsection 36(2) of the Acts Interpretation Act
does not apply.
181. This means that, where the Bill requires a donation disclosure notice to be
provided to the AEC, and the last day for doing so falls on a weekend or a public
holiday, the notice must nevertheless be furnished within the timeframe set out in
303A(2). This disapplication is necessary to support the objective of providing
the public with transparency in a timely manner, particularly in the expedited
notice period. An equivalent rule for donor returns is at new section 303G.
Example--gift received in the 'expedited notice period'
Jill is a candidate in an election and receives a gift of $1,001 at 2pm on a
Friday that is during the 'expedited notice period' for the election.
Mark, the registered officer of the registered political party that is endorsing
Jill, must give a donation disclosure notice to the AEC within 24 hours
beginning at the time the relevant gift is received, which would be before 2pm
on Saturday.
182. New section 303D provides that subsection 93(2) of the Regulatory Powers Act
does not apply to an act mentioned in new Subdivision B. This means that there
are no continuing contraventions for the civil penalty attached to the donation
disclosure notice provision at subsection 303A(1). If a recipient does not give a
donation disclosure notice within the required time, the civil penalty is applied in
a singular instance. An equivalent rule for donor returns is at new section 303H.
183. This disapplication is appropriate as the initial penalty is considered a sufficient
deterrent to support compliance with this disclosure requirement and is consistent
with the current disapplication of this provision in relation to other returns
provided under Part XX of the Electoral Act.
Subdivision C--Disclosure of donations by donors of gifts made for a federal purpose
184. New Subdivision C--Disclosure of donations by donors of gifts made for a
federal purpose establishes the expedited disclosure obligations for persons or
entities that make a gift for a 'federal purpose' in a calendar year, referred to as
'donors'. For donors, expedited disclosure notices will replace annual and
election returns, which are repealed by Item 4 of this Schedule. This will support
donor participation by requiring donation reporting to be done
contemporaneously throughout the year, without the requirement to submit an
annual or election return potentially many months after having made the gift. For
example, a donor who makes a one-off gift to a candidate of $5,000 will
discharge their reporting obligation at that time, rather than having to supply
those details months later.
185. New section 303E establishes the requirements for donors of gifts.
186. A donor must provide a donation disclosure notice to the AEC if they make a gift
over the disclosure threshold to a recipient listed in the table at new subsection
303E(1) in a calendar year. This obligation applies where a donor makes a single
gift that is greater than the disclosure threshold, or multiple gifts to the same
recipient that, when taken together, is greater than the disclosure threshold. This
46
applies to any subsequent gifts made to that recipient once the disclosure
threshold has been exceeded, consistent with requirements for recipients set out
in section 303A above.
187. There is a civil penalty associated with failing to provide a donation disclosure
notice within the required timeframe. This is a maximum of 60 penalty units or 3
times the value of the relevant gift, whichever is higher.
188. The table in new subsection 303E(2) sets out the timeframe for when a donor
must give a donation disclosure notice to the AEC. The timeframe for furnishing
a notice is determined by when the gift is made, reflecting the need for greater
transparency of political donations during the election period.
189. A donor must provide the AEC with a donation disclosure notice within 7 days if
they make a relevant gift over the disclosure threshold between the day the writ is
issued for an election until 7 days after polling day. For gifts made outside this
period, a donor must provide a donation disclosure notice to the AEC on the 21st
day of each month, in arrears. For example, a gift made in July must be disclosed
by 21 August. This obligation only applies where a donor has made a gift in the
relevant month.
190. Donors are not subject to the 24 hour disclosure obligation for gifts made in the
expedited disclosure period. This recognises the difference between donors and
persons or entities actively campaigning in elections. Donors are often
individuals who may or may not be familiar with obligations under the Electoral
Act as they are not actively campaigning. It is appropriate to allow additional
time for these persons to report. There is no reduction in transparency, as the
recipient of the gift is still required to provide a donation disclosure notice within
24 hours (as applicable in the expedited notice period subject to subsection
303A(2)). For the purposes of this Subdivision, the timeframe for furnishing a
donation disclosure notice is calculated from the time the gift is made.
191. Figure 2 below shows the applicable disclosure timeframe for gifts made across
the different time periods.
Figure 2. Donor donation disclosure notice timeframes. Disclosure timeframes may vary
based on recipient type and when the gift is received.
192. Table item 6 of new subsection 303E(2) provides that, if a donor makes a
relevant gift to a person or entity that is a significant third party or a third party
that is registered under the ACNC Act, they must report relevant gifts before the
end of the 21st day of each month, in arrears.
47
193. New section 303F outlines the details that must be provided by a donor on the
donation disclosure notice. The donation disclosure notice requires:
• donor details, including the name and address of the donor;
• recipient details, including the recipient's name;
• gift details, including the value of the gift, the date it was made, and the total
value of gifts from the same donor to the recipient over the calendar year; and
• if the gift is for a by-election or Senate-only election, the name of the
Division or the State or Territory (as applicable) to which the election relates.
194. This mirrors the equivalent obligation for recipients in section 303B above. This
obligation replaces the existing election and annual return requirements for
donors which are repealed at Item 4. It is important the donor disclosure notice
retains an equivalent level of information and transparency to ensure that the
Australian people know who is funding elections and electoral participants.
195. This maintains appropriate levels of transparency while supporting the AEC to
conduct routine compliance checks and take enforcement action where
appropriate. The AEC is required to publish donation disclosure notice
information, other than information related to addresses (set out at new
section 303J). This will help protect the privacy of donors and is further
supported by the Electoral Commissioner's power to redact or remove personal
information from the Transparency Register if they are satisfied that the
publication of such information could put people's safety at risk, inserted by
Item 21 of Schedule 5.
196. New paragraph 303F(1)(i) and subsection (2) refer to the concept of an 'earlier
gift'. This provides that a donor must include the relevant details of any gift they
receive and use, wholly or partly, to enable them to make a gift or reimburse the
donor for making a gift. This obligation only applies to an earlier gift that is more
than the disclosure threshold. This will support the AEC to monitor compliance
with prohibitions on anti-avoidance of the gift caps by requiring the original
source of a gift to be disclosed. These details are not required to be published by
the AEC under section 303J, to protect the privacy of persons who may have
made a gift for a non-electoral purpose.
Example--operation of 'earlier gift' reporting
James gives Sophia $2,000 for her birthday. Sophia uses that $2,000 to make a
gift to Joshua, the endorsed candidate of the Quokka Australia Party.
As Sophia has wholly used this 'earlier gift' to make this gift and the value of
the gift was above the disclosure threshold, her donation disclosure notice
must include James' relevant details as required by subsection 303G(2).
James' details are not published on the Transparency Register by the AEC.
197. New section 303G clarifies the relationship between the provisions of this
Schedule and the Acts Interpretation Act, with respect to calculating time. This
provision provides that for the purposes of calculating when a disclosure
donation notice is to be provided under this Schedule, subsection 36(2) of the
Acts Interpretation Act does not apply.
48
198. This means that, where the Electoral Act requires a donation disclosure notice to
be provided to the AEC, and the last day for doing so falls on a weekend or a
public holiday, the notice must nevertheless be furnished within the timeframe set
out in subsection 303E(2). This disapplication is necessary to support the
objective of providing the public with transparency in a timely manner,
particularly in the election period which includes polling day, which must always
be on a Saturday. An equivalent rule for recipient returns is at new section 303C.
199. New section 303H provides that subsection 93(2) of the Regulatory Powers Act
does not apply to an act mentioned in this new Subdivision C. This means that
there are no continuing contraventions for the civil penalty attached to the
donation disclosure notice provision at subsection 303E(1).
Subdivision D--Publication of information about gifts made for a federal purpose
200. New Subdivision D--Publication of information about gifts made for a federal
purpose relates to the Electoral Commissioner's obligations to publish donation
disclosure notice information in accordance with the amendments in this Bill.
The Electoral Commissioner is currently required to publish donation
information provided on annual and election returns. Information disclosed to the
AEC and under this regime is collected and used consistently with the APPs. The
APPs set out the standards, rights and obligations that the AEC are bound by
when handling and maintaining personal information, including the collection,
storage, use, disclosure, quality assurance and security of personal information,
for primary and secondary purposes.
201. Reforms implemented by this Schedule will transition the publishing timeframes
to be more consistent with public expectations of timely transparency of
information, particularly in critical election periods. The timelier availability of
gift information is appropriately balanced with reforms to protect the privacy of
political participants, including donors, such as those amendments that exclude
publishing address information on the Transparency Register.
202. New subsection 303J requires the Electoral Commissioner to publish particular
information in donation disclosure notices on the Transparency Register. This
Bill clarifies that the Electoral Commissioner is to publish the information in the
donation disclosure notice, not the notice itself. Address information is
specifically excluded from the content required to be published, to support
privacy. This information remains a mandatory field on the donation disclosure
notice to support AEC compliance activities, however, its publication on the
Transparency Register is not reasonably necessary because there is sufficient
transparency from the publication of name and amount details. This is consistent
with the APPs, particularly that only information that is necessary to support the
operation and enforcement of the financial disclosure regime is disclosed.
203. The exclusion of address information is further supported by amendments to
subsection 320(1A) inserted by Item 21 of Schedule 5. This provision allows the
Electoral Commissioner to redact or remove personal information, as well as not
include certain information on the Transparency Register, if they are satisfied that
the publication of such information could put people's safety at risk.
204. New subsection 303J(2) requires the Electoral Commissioner to publish donation
disclosure notice information received in the election period and/or expedited
notice period within 24 hours. At all other times, the Electoral Commissioner
49
must publish donation disclosure notice information within 10 days of receipt
from a recipient or donor. The Note in new subsection 303J(2) directs the reader
to new section 303K below, which disapplies the Acts Interpretation Act for the
purposes of calculating time. This supports the purpose of expedited disclosure,
particularly in an election period, which is to ensure that donation information is
available to electors when casting their vote.
205. New subsection 303J(3) makes special provisions for gifts received by by-
election participants, consistent with new subsection 303A(10) above.
206. New subsection 303J(4) provides the Electoral Commissioner or an appointed
delegate, consistent with existing delegation provisions in section 16 of the
Electoral Act, with discretion to not publish information on the Transparency
Register where they believe that the information is false or misleading in a
material particular. This supports the integrity of the Transparency Register,
noting that existing section 287R provides that an entry in the Register is prima
facie evidence of the information contained in that entry.
207. Further to the expedited disclosure of gifts, recipients are subject to a number of
existing requirements under Part XX, such as foreign donor restrictions, and will
be subject to new requirements, including gift caps being inserted by Schedule 3
of this Bill. To support compliance with these additional requirements, new
subsection 303J(5) provides a mechanism for gift recipients to notify the
Electoral Commissioner where 'acceptable recipient action', 'acceptable donor
action' or 'acceptable action' has been taken in relation to a gift. The Electoral
Commissioner must annotate the relevant entry on the Transparency Register
within 24 hours of receiving a notice advising that that acceptable action
(including recipient or donor action as the case requires) has been taken in
relation to the gift.
Example--operation of notification of acceptable action provision
The Quokka Australia Party (QAP) receives a gift for a federal purpose from
the Marsupial Alliance valued at $10,000.
The QAP are required to provide a donation disclosure notice in relation to the
gift. The QAP provide the notice, however they have returned the amount to
the Marsupial Alliance, taking 'acceptable action'.
The QAP notifies the Electoral Commissioner that acceptable action has been
taken in relation to the amount and provide a statement to the Electoral
Commissioner.
The Electoral Commissioner is required to publish the statement provided by
the QAP with the relevant entry on the Transparency Register.
208. Publishing these details protects recipients who have undertaken due diligence
checks and, upon becoming aware that remedial action was required, have taken
the necessary acceptable recipient action. Requiring the Electoral Commissioner
to publish these additional annotations within 24 hours is important for the
integrity of the information on the Register as a source of accurate information
for the public.
50
209. New subparagraph 303J(5)(e) allows the Minister to make regulations to
prescribe other information to be published by the Electoral Commissioner in a
statement about such gifts.
210. New section 303K disapplies the Acts Interpretation Act provisions that relate to
calculating time, consistent with new sections 303C and 303G above, to ensure
information is available in timeframes more consistent with community
expectations for timeliness and transparency.
Subdivision E--Disclosure of donations by recipients of certain other gifts
211. New Subdivision E--Disclosure of donations by recipients of certain other gifts
establishes the expedited disclosure obligation for significant third parties,
associated entities and third parties that credit amounts paid as subscription fees,
affiliation fees or annual levies to the entity to their federal account. These
amounts are a 'gift' once credited into the entity's federal account by a financial
controller or third party (new subsection 287AAB(4) in Schedule 1 (Part 1) and
new subsection 292FA(6) in Schedule 6 refer).
212. New section 303L sets out the requirements for recipients of gifts to which
Subdivision E applies. New subsection 303L(1) provides that a donation
disclosure notice must be provided to the AEC if a relevant gift, being an amount
under subsection 287AAB(4), is credited to the federal account of a significant
third party, associated entity or third party. The obligation to provide a notice is
triggered if the amount or value of the gift is greater than the disclosure
threshold, or if the total amount or value of gifts credited to the federal account of
the recipient is more than the disclosure threshold in a calendar year. This means
that the obligation applies to the cumulative total amount or value of these gifts,
consistent with section 303A above.
213. Two Notes are included under subsection 303L(1) to direct the reader to
subsection 287AAB(4) and to prompt the reader that the notice must be given
before the end of the period worked out in accordance with the table in
subsection 303L(2), outlined below.
214. Failing to provide a donation disclosure notice under section 302L within the
required timeframe is subject to a civil penalty. This is a maximum of 60 penalty
units or three time the value of the relevant gift, whichever is higher.
215. Further, subsection 303L(1) inserts a table which sets out the responsible person
for a recipient under this section. Consistent with section 303A(1) above, the
responsible person for a significant third party, associated entity or third party is
the financial controller, or third party.
216. The table in new subsection 303L(2) sets out the timeframe in which the recipient
must provide the AEC with the donation discourse notice. These timeframes are
consistent with the reporting timeframe for gifts for a federal purpose, outlined
above under subsection 303A(2).
217. This provision recognises that these amounts are of public interest, particularly if
they are being credited in close proximity to an electoral event with the intention
of being used for a federal purpose. As such, it is appropriate that a donation
disclosure notice be provided within the same timeframes as gifts for a federal
purpose under section 303A(2).
51
218. A Note is included under the table to notify the reader that, under new
section 303N, for the purposes of calculating when a disclosure donation notice
is to be provided, subsection 36(2) of the Acts Interpretation Act does not apply.
This is consistent with equivalent provisions in sections 303C and 303G above.
219. New subsection 303L(3) provides that the donation disclosure notice must be in
the approved form, and must include the details required by new section 303M
(content of donation disclosure notices).
220. New subsections 303L(4) provides for when a donation disclosure notice is
required to be provided for a gift that is credited to a significant third party,
associated entity or a third party that is not registered under the ACNC Act before
the start of an election period in relation to an election or a by-election. This
subsection provides that despite the timeframes set out in the table in subsection
303L(2), the financial controller for the relevant person or entity must ensure that
a disclosure notice for gifts credited to the federal account shortly before the
beginning of the election or by-election period is provided to the AEC on or
before the earlier of the 21st of the month that immediately follows the calendar
month in which the gift was credited, or the day before the day that is 12 days
before polling day for the election or by-election.
221. New subsection 303L(5) provides for when a donations disclosure notice is
required to be provided for a gift that is credited to a significant third party or
third party that is a registered charity under the ACNC Act during an election
period in relation to an election or a by-election. This subsection provides that
despite the timeframes set out in the table in subsection 303L(2), the financial
controller of the relevant significant third party or third party must ensure that if a
gift is credited to the federal account after the start of the election period in
relation to an election or by-election, they must provide the AEC with a donation
disclosure notice on or before the earlier of the 21st of the calendar month that
immediately follows the calendar month in which the gift was credited, or the
Thursday that immediately precedes polling day for the election or by-election.
222. New subsection 303L(6) clarifies that a recipient is covered by this subsection in
relation to a by-election if the recipient is a significant third party, associated
entity or third party and the person or entity has incurred or intends to incur
electoral expenditure in relation to the by-election. This ensures that the shorter
reporting period obligations only apply to a person or entity engaged in
campaigning for a particular by-election.
223. New subsection 303L(7) makes special provision for where a recipient is more
than one kind of person or entity with a reporting obligation. This reduces
duplicative reporting obligations.
224. New section 303M inserts the content requirements for a donation disclosure
notice for these other types of gifts. The information requirements include:
• the name of the significant third party, associated entity or third party to
whom the gift is credited;
• the amount and value of the gift, and the date on which it was credited into
the federal account;
52
• the number of memberships, subscriptions or other persons in respect of
whom the gift was paid;
• the total amount or value of such gifts credited to the federal account during
the calendar year; and
• the name of the person providing the donation disclosure notice.
225. The content required by the donation disclosure notice relates only to the
significant third party, associated entity or third party that is crediting the amount
into their federal account, not the personal details of the member/person to whom
the original amount relates. This is appropriate as the person making the payment
for the subscription, affiliation fee or annual levy may not be making that
payment for a federal purpose and are therefore not a 'donor' in the same manner
as a person or entity expressly making a gift for a federal purpose.
226. The AEC retains the ability to request additional information to support
compliance with Part XX, as updated by Schedule 9 of this Bill. Requiring
details of the number of memberships, subscriptions or other persons from which
the gift transaction value was derived, provides a level of visibility of the
contribution these amounts make to an entity's electoral activities. Further,
transparency is supported by the operation of the federal account provisions in
new section 292FA(6) inserted by Schedule 6 of the Bill, which provide that the
sum of the amounts, as they relate to a particular person or entity, cannot exceed
the value of the annual gift cap in a calendar year.
227. Two Notes are included under subsection 303M to direct the reader to the civil
penalty provision in 303L, and to the existing provision in section 319A which
allows a donation disclosure notice to be amended under certain circumstances
after it has been provided to the AEC.
228. New section 303N provides that for the purposes of calculating time under
Subdivision E, subsection 36(2) of the Acts Interpretation Act does not apply.
This is consistent with sections 303C and 303G above.
229. New section 303P applies consistent with sections 303D and 303J above, to
provide that subsection 93(2) of the Regulatory Powers Act, does not apply to an
act mentioned in this new Subdivision E. This means that there are no continuing
contraventions for the civil penalty attached to the donation disclosure notice
provision at subsection 303L(1).
Subdivision F--Publication of information about certain other gifts
230. New Subdivision F--Publication of information about certain other gifts
establishes an obligation for the Electoral Commissioner to publish certain
information on the Transparency Register in relation to the donation disclosure
notice provided under subsection 303L(1).
231. New section 303Q requires that the Electoral Commissioner must publish
information contained on a donation disclosure notice provided under
subsection 303L(1) above. This section is equivalent to the Electoral
Commissioner publishing requirements set out in new section 303J above as it
relates to gifts for a federal purpose.
53
232. New subsection 303Q(1) provides that the Electoral Commissioner must publish
certain information including the name of the recipient, the date the gift was
credited, the amount of the gift, and the total amount or value of all gifts to which
Subdivision F applies that have been credited in the calendar year.
233. A Note is included under subsection 303Q(1) to clarify that, if a donation
disclosure notice relates to more than one gift (transaction amount credited to the
federal account), the Electoral Commissioner must publish the information in this
section in relation to each gift covered by the notice.
234. New subsection 303Q(2) requires the Electoral Commissioner to publish the
information within 24 hours if the notice is received in relation to a gift credited
in the election period or by-election period, or in any other case 10 days
beginning on the day the disclosure notice is received by the Electoral
Commissioner.
235. A Note is included under subsection 303Q(2) to direct the reader to new
subsection 303R which provides that for the purposes of calculating time under
Subdivision F, subsection 36(2) of the Acts Interpretation Act does not apply.
236. New subsection 303Q(3) provides that a recipient is covered by this section in
relation to a by-election if the significant third party, associated entity or third
party, and in the opinion of the Electoral Commissioner, the recipient has
incurred or intends to incur, electoral expenditure in relation to a by-election.
237. New subsection 303Q(4) provides that despite subsection 303Q(1) above, the
Electoral Commissioner is not required to publish information they reasonably
believe to be false or misleading in a material particular. This is consistent with
303J(4) above and serves as an important information integrity measure for the
AEC to preserve discretion to remove information that is potentially false or
misleading to the Australian public.
238. New subsection 303Q(5) inserts a provision consistent with 303J(5) above,
which provides that, if a significant third party, associated entity or third party
that takes 'acceptable action' in relation to a gift and notifies the Electoral
Commissioner, the Electoral Commissioner must publish the entry on the AEC
Transparency Register within 24 hours. This obligation applies to a statement that
the recipient has taken acceptable action, or any other such information (if any)
prescribed by regulation.
239. A Note is included under subsection 303Q(5) to direct the reader to new
section 303R.
240. New section 303R provides that for the purposes of calculating time under
Subdivision F, subsection 36(2) of the Acts Interpretation Act does not apply.
This is consistent with section 303C, 303G and 303N above.
Subdivision G--Loans and repayment of gifts
241. Item 5 inserts new Subdivision G--Loans and repayment of gifts etc. This is a
consequential amendment to reflect the new structure of Division 4 and the
retention of existing sections 306A and 306B relating to loans.
242. Item 6 amends paragraph 306A(3)(a) to insert '(including, without limitation, the
total amount of the loan, the term of the loan, and the rate at which the interest is
54
payable on the loan)'. This clarifies what details must be included regarding a
loan.
243. Items 7 and 8 repeal subsections 306A(7A), (7B), 306B(3) and (4). These
amendments are consequential to changes to the definition of 'candidate' made
by Schedule 1 and the treatment of Senate groups in Schedule 8 of the Bill.
244. Item 9 repeals section 307 to remove the requirement for candidates, groups and
donors to furnish 'nil returns' where they did not receive any gifts. The repeal of
this provision will streamline reporting obligations by removing unnecessary
regulation.
245. Items 10 and 11 apply the existing record keeping obligations to donation
disclosure notices in section 317 of the Electoral Act. Consistent with existing
return obligations, records related to a donation disclosure notice must be kept for
5 years after the gift to which the notice relates was made. These records are an
important source of information for the investigation and compliance functions of
the AEC.
246. Item 12 extends the existing safeguards with respect to the inability to complete
a return in section 318 of the Electoral Act to donation disclosure notices.
247. Items 13-21 insert references to donation disclosure notices throughout the text
of section 318. Where a donation disclosure notice is required but the person
considers it impossible to obtain particulars to complete the return, they may
provide the incomplete return with a notice to the Electoral Commission
outlining the details and reasons for the incomplete return. The Electoral
Commission may request in writing additional information from individuals
identified in a notice. Where a person has complied with section 318, the notice
will be taken to be complete.
248. Item 22 applies the existing provisions for processing amendment of claims and
returns provisions in section 319A to donation disclosure notices. This is an
important safeguard for donors and recipients to be able to make updates and
correct errors and is supported by the annotation provisions in new
section 303J(5) above.
249. Items 23-31 are consequential amendments to section 319A that insert
references to donation disclosure notice throughout the section.
250. Item 32 inserts a Note under the table at subsection 320(1) to direct the reader to
the publishing requirements set out under new sections 303J and 303Q.
251. Items 33 and 34 amend the definition of 'disclosure entity' at
subsection 321B(1)(g), and repeal the related Note, to reflect the repeal of the
donor return provisions at sections 305A, 305B and 306 in Item 4, and the
insertion of the equivalent donor provisions at section 303E.
55
Part 2--Amendment of the Referendum (Machinery Provisions) Act 1984
Referendum (Machinery Provisions) Act 1984
252. Item 35 inserts the terms 'donation disclosure notice' and 'Transparency
Register' into subsection 3(1) of the Referendum Act to support expedited
disclosure of donations received in the referendum context.
253. Item 35 also inserts the new definition 'referendum gift period' into
subsection 3(1) of the Referendum Act. 'Referendum gift period' means the
period starting on the day 6 months before the writ for a referendum is issued and
ceasing at the end of the seventh day after polling day for that referendum. This
is similar to the existing definition of 'referendum expenditure period', however,
the 'referendum gift period' is extended to 7 days after voting day to capture any
potential delay in receiving referendum related gifts.
254. Items 36 and 37 amend paragraphs 109E(4)(b) and (c) to reflect the repeal of
section 109F outlined below at Item 38.
255. Item 38 repeals section 109F which deals with returns relating to gifts received
by referendum entities for referendum expenditure. The return obligation in
existing section 190F is replaced by the expedited disclosure obligations set out
in this Schedule.
256. Items 39-41 omit 'referendum expenditure period' and substitute 'referendum
gift period'. This ensures that the donor return provisions for gifts to referendum
entities apply consistently with the referendum entity expedited disclosure
timeframes below, inclusive of referendum gifts received in the 7 days after
voting day.
Division 2A--Expedited disclosure of referendum gifts
257. Item 42 inserts new Division 2A--Expedited disclosure of referendum gifts.
This new division establishes obligations for referendum gift recipient equivalent
to those required in section 303A of the Electoral Act. For clarity, only
referendum entities have an expedited disclosure obligation. Referendum donors
continue to be subject to the donor return obligations at existing section 109G of
the Referendum Act.
258. New section 109GA requires a person or entity that is a referendum entity to
furnish a donation disclosure notice if they receive a gift over the disclosure
threshold during the referendum gift period from the same donor. This obligation
applies to gifts made for the purpose of incurring referendum expenditure or gifts
accepted by the recipient for the dominant purpose of incurring referendum
expenditure. The obligation to disclose the donations begins from the
commencement of the referendum period, which is the day of the issue of the
writ for the referendum.
259. This obligation applies if the person or entity receives a single gift greater than
the disclosure threshold, or multiple gifts from the same donor in the referendum
gift period that, when taken together, are greater than the disclosure threshold.
The cumulative nature of this reporting obligation will increase transparency of
referendum financing and prevent the practice of 'donation splitting', where
56
entities may seek to circumvent their obligations by making multiple donations
under the disclosure threshold. This is consistent with the treatment of gifts in the
electoral context at new section 303A above.
260. Failure to provide a donation disclosure notice within the required timeframe is
subject to a civil penalty. This is a maximum of 60 penalty units or 3 times the
value of the relevant gift, whichever is higher.
261. New subsection 109GA(3) outlines the timeframe for when a donation disclosure
notice must be provided to the Electoral Commission. Generally, beginning the
day the writ for the referendum is issued, disclosure is required within 7 days.
However, if the gift is received in the period starting on the Saturday preceding
voting day and ending on the seventh day after voting day, it must be disclosed
within 24 hours.
262. New section 109GB sets out the details required to be provided on a donation
disclosure notice, equivalent to the content required on a recipient donation
disclosure notice under section 303A of the Electoral Act.
263. New section 109GC requires the Electoral Commission to publish information
provided on donation disclosure notices (other than address details) on the
Transparency Register within 24 hours of receiving the notice. The Electoral
Commissioner retains the discretion to not publish information they reasonably
believe to be false or misleading, this protects the Australian public from the
potential misuse of the system.
264. New section 109GD disapplies the Acts Interpretation Act provisions that relate
to calculating time. This is consistent with new subsections 303C and 303G
related to recipient and donor notices.
265. Section 109GE disapplies subsection 93(2) of the Regulatory Powers Act.
266. Item 43 amends subsection 109M(1)(b) to omit the references to '109F, 109G'
repealed at Item 40 and substitute '109G, 109GA'. This applies the existing
anti-avoidance provisions at section 109M to expedited disclosure obligations
introduced by this Schedule.
267. Items 44-46 amend section 109U to repeal reference to section 109F (repealed at
Item 38) and apply the existing record keeping obligations in section 109U to
donation disclosure notices given under section 109GA. This means that a
referendum entity is required to keep records in relation to donation disclosure
notices for 5 years after the day the gift is made. This is consistent with treatment
of donation disclosure notices in the Electoral Act.
268. Items 47-58 amend section 109V to repeal references to section 109F (repealed
at Item 38) and apply the existing inability to complete returns provisions at
section 109V with equivalent references to section 109GA donation disclosure
notices.
269. Items 59-63 repeal references to section 109F (repealed at Item 38) and apply
the existing amendment of returns provisions at section 109X with equivalent
references to section 109GA donation disclosure notices.
57
270. Items 64 and 65 are consequential amendments to the definition of
'disclosure entity' at paragraph 110A(c) to reflect the repeal of section 305A and
305B of the Electoral Act in Item 4 above. This is consistent with amendment to
the meaning of 'disclosure entity' in section 321B of the Electoral Act (Items 33
and 34 of this Schedule).
58
Schedule 3--Gift caps
271. This Schedule amends the Electoral Act to establish an annual cap on 'gifts for a
federal purpose'. The Schedule also establishes an 'overall gift cap' and a 'State
and Territory gift cap' which will limit the total value of gifts for a federal
purpose an individual donor can make to certain persons or entities over a
calendar year. The annual gift cap, overall gift cap and State and Territory gift
cap operate concurrently.
272. The annual gift cap, overall gift cap and State and Territory gift cap will reset
after a general election for the remainder of the calendar year.
273. 'Gift' is defined in new section 287AAB, inserted by Schedule 1 of the Bill.
274. 'Federal purpose' is defined in existing section 287(1) of the Electoral Act to
mean for the purpose of incurring electoral expenditure or creating or
communicating electoral matter.
275. Broadly, and subject to various exceptions, 'electoral expenditure' is defined by
section 287AB to mean expenditure incurred for the dominant purpose of
creating or communicating electoral matter as well as expenditure incurred by or
with the authority of particular entities in relation to a federal election.
276. Broadly, 'electoral matter' is defined in section 4AA of the Electoral Act to mean
matter communicated or intended to be communicated for the dominant purpose
of influencing the way electors vote in a federal election.
277. This Schedule also establishes separate gift caps for by-elections and Senate-only
elections.
278. These changes will implement recommendations 4 and 6 of the JSCEM Interim
Report, relating to the introduction of donation caps ('gift caps') for federal
election donations.16 Gift caps are being introduced with the objectives of:
• preventing Australian elections from being unfairly skewed by organisations
or individuals with large amounts of money;
• promoting equal opportunity for all individuals and other entities to
participate in political debate; and
• minimising the risk or perception of undue influence in Australian federal
elections due to the corrupting influence of extreme financial power in
electoral financing.
279. The introduction of gift caps also implements part of commitment 7 of
Australia's Third Open Government Partnership National Action Plan 2024-
2025, relating to strengthening transparency of political donations.17
280. This Schedule seeks to achieve these objectives by limiting the value of a gift a
single donor can make to the same recipient (including 'related' persons or
entities within the meaning of subsection 302BA(4) below), to overall gift cap
16
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 66-67 [2.248], [2.254].
17
Open Government Partnership, Australian Government, Australia's Third Open Government
Partnership National Action Plan 2024-25 (Report, 19 December 2023) 26
.
59
entities (within the meaning of subsection 302CI(1)), and to persons or entities
connected to a State or Territory (within the meaning of subsection 302CJ(2)),
within a calendar year, or for the purposes of a by-election or a Senate-only
election.
281. Information published on the AEC Transparency Register demonstrates a
sustained increase in the value of annual donations (gifts) over recent electoral
cycles (Figure 3).
Total annual donations 2009-2023 (Indexed)
200
180
Donations ($million)
160
140
120
100
80
60
40
20
0
Financial year
Figure 3. Total declared annual donations 2009-10 to 2022-23, indexed to 2022-23
donation disclosure threshold values.
282. The total value of gifts disclosed in annual returns significantly increased in the
leadup to the 2019 and 2022 federal elections, mainly as a result of a small
number of very large donations.
283. Information published on the AEC Transparency Register shows the number of
declared donors increased in 2021-22 to 513, having been 367, 386, 399 and 389
in the four previous election years.18 Despite the increase in the number of
declared donors, gifts made by the top few donors as a proportion of total
donations has increased, and these large gifts now make up the majority of total
donation value.
284. In the JSCEM Interim Report, the JSCEM considered donations in the 2022
federal election and noted that one donor had donated approximately
$117 million to a single political party for the 2022 federal election.19 That donor
was Mineralogy Pty Ltd.20 This was an increase from Mineralogy Pty Ltd's
18
Australian Electoral Commission, '2009-2022 Annual Donor Returns', AEC Transparency Register
(Web Page, 31 July 2024) .
19
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 23 [2.50].
20
Australian Electoral Commission, '2021-2022 Annual Donor Returns: Mineralogy Pty Ltd', AEC
Transparency Register (Web Page, 31 July 2024)
.
60
approximately $83.7 million donation to a single registered political party for the
2019 federal election.21
285. The next biggest donor in the context of the 2022 federal election was Climate
200 Pty Ltd, with total donations of approximately $6 million to multiple
candidates22 and a further approximately $1.9 million (total) to registered
political parties, significant third parties and members of Parliament.23
286. Analysis of information published on the AEC Transparency Register shows that
donations to the United Australia Party (and its precursors, the Clive Palmer's
United Australia Party and the Palmer United Party) dominated annual donations
for 2013-14, 2018-19 and 2021-22 financial years, making up approximately
44%, 66% and 68% of annual donations in those financial years, respectively.
287. However, even if all donations to the United Australia Party (and its precursors
the Clive Palmer's United Australia Party and the Palmer United Party) are
excluded, AEC Transparency Register data shows that after adjusting for
inflation, there was still an approximate 23% increase in total donations in 2018-
19 (2019 federal election), and an approximate 51% increase in 2021-22 (2022
federal election) when compared to the average for the three previous federal
election cycles (2010-11, 2013-14 and 2015-16).
288. The increase in donations in the last two electoral cycles, particularly by a small
number of donors, demonstrates a clear risk that Australian elections may be
perceived to be unfairly skewed by organisations or individuals with large
amounts of money.
289. Information published on the AEC Transparency Register also shows the level of
total declared donations to specific candidates and Senate groups has increased
sharply in the last two election cycles (Figure 4).
21
Australian Electoral Commission, '2019-20 Annual Donor Returns: Mineralogy Pty Ltd', AEC
Transparency Register (Web Page, 31 July 2024)
.
22
Australian Electoral Commission, '2021-22 Election Donor Returns: Climate 200 Pty Limited', AEC
Transparency Register (Web Page, 31 July 2024)
.
23
Australian Electoral Commission, '2021-22 Annual Donor Returns: Climate 200 Pty Limited', AEC
Transparency Register (Web Page, 31 July 2024)
.
61
Candidate total donations 2010-2022 federal elections
(Indexed)
20
18
Donations ($ millions) 16
14
12
10
8
6
4
2
0
2010 2013 2016 2019 2022
Federal election
Figure 4. Total declared election donations to candidates and Senate groups 2010-22
federal elections, indexed to 2022-23 donation disclosure threshold values.
290. Disproportionately large donations also increase the risk of real and perceived
undue influence on the results of elections by organisations or individuals with
large amounts of money. Setting a cap on the value of a gift for a federal purpose
from a single donor to the same recipient will reduce this risk, as well as support
equality of opportunity to participate in Australian federal elections.
291. Donations caps are in place in other Australian jurisdictions and have been used
effectively to limit the growth of political donations. For example, the Victorian
Electoral Review Expert Panel's review of the operation of the political finance
and electronic assisted voting laws introduced in 2018, noted that '[g]enerally,
Victoria's political finance laws are working well and are achieving their
objectives, while not unduly interfering with the rights of Victorians. Those laws
have ensured political donations are transparent. They also support decision-
making processes to be, and seen to be, free of any improper influence.'24
292. Analysis by Transparency International of the 38 member countries of the
Organisation for Economic Cooperation and Development (OECD) found that
among these 38 OECD member countries, 20 have some form of established
restrictions on political donations.25
Commonwealth Electoral Act 1918
293. Item 1 inserts new definitional terms in section 302B to support the operation
and enforcement of gift cap obligations introduced by this Schedule. The new
terms are 'acceptable donor action', 'acceptable recipient action', 'annual gift',
24
Electoral Review Expert Panel, Parliament of Victoria, Report on Victoria's laws on political finance
and electronic assisted voting (Main Report, November 2023) 11
.
25
Transparency International Anti-Corruption Helpdesk, Limits on political donations: global practices
and its effectiveness on political integrity and equality (Answer, 21 November 2023) 6
.
62
'annual gift cap', 'by-election gift', 'by-election gift cap', 'connected', 'exceeds
the annual gift cap', 'exceeds the by-election gift cap', 'exceeds the Senate-only
election gift cap', 'exceeds the overall gift cap', 'exceeds the State and Territory
gift cap', 'overall gift cap', 'Senate-only election gift', 'Senate-only election gift
cap', and 'State and Territory gift cap'.
294. 'Acceptable donor action' in relation to a gift that exceeds a gift cap means a
donor requests, in writing, that the gift recipient return to the donor either the gift,
or an amount or value equal to the excess of the relevant gift cap. This concept is
applied in Division 3A of Part XX in determining whether a civil penalty for
exceeding a gift cap applies. This is an important safeguard for donors to be able
to take remedial action in relation to inadvertent or unknowing breaches of the
gift caps within the exception mechanisms available in the penalty provisions.
295. 'Acceptable recipient action' in relation to a gift that exceeds a gift cap means
either the gift, or an amount or value equal to the excess of the relevant gift cap,
is returned to the donor, or an amount equal to the amount or value of the gift
which has exceeded the relevant cap, or the amount of value by which the gift
exceeds the applicable cap, is transferred by or on behalf of the recipient to the
Commonwealth. Consistent with 'acceptable donor action' defined above,
'acceptable recipient action' protects recipients that inadvertently or unknowingly
breach a gift cap but take the specified remedial action within the relevant
exceptions available in the penalty provisions of Subdivision AA.
296. 'Annual gift', 'by-election gift' and 'Senate-only election gift' are gifts to which
new Subdivision AA applies under relevant subsections of new section 302CB.
These terms are used to differentiate between the type of gifts attributable to the
different gift caps (annual, by-election or Senate-only election), supporting their
operation as separate caps. The term 'annual gift' is also used in the civil penalty
provisions related to exceeding the 'overall gift cap' and 'State and Territory gift
cap' in Subdivision AC of Division 3A.
297. 'Annual gift cap' means $20,000 for a calendar year. Note 1 is included to direct
the reader to related indexation provision inserted by Item 9 of this Schedule.
Note 2 directs the reader to new section 302CG, which provides that the annual
gift cap is to reset if a general election is held during a calendar year.
298. Comparatively, NSW has the highest gift cap value for a state jurisdiction, being
a limit of $7,900 per financial year for contributions to a political party or group
of candidates (2024-25 value).26 The federal gift cap is set at a level significantly
higher than current state caps. This reflects the difference in size of electorates
and the differing costs associated with campaigning in a federal election.
Commonwealth electorates are generally significantly larger than state
electorates. For example, the average Commonwealth House of Representatives
electorate size in NSW is around 120,000 voters, while the average NSW State
26
NSW Electoral Commission, 'Caps on political donations', Funding and disclosure (Web page,
20 May 2024) .
63
Parliament Legislative Assembly electorate (House of Representatives
equivalent) is around 57,000 voters.27
299. The federal gift cap value aims to protect the quality of public discourse around
elections without undermining the purpose of the gift cap. This is supported by
the concurrent operation of the annual gift cap, overall gift cap and State and
Territory gift cap.
300. Item 1 also inserts the term 'overall gift cap' for a calendar year to mean 32 times
the annual gift cap for the calendar year. A Note is included under the definition
to direct the reader that the overall gift cap for a calendar year resets if a general
election is held in the calendar year, new section 302CK refers below.
301. The term 'State and Territory gift cap' is also included to mean 5 times the annual
gift cap. A Note is included under the definition to direct the reader that the State
and Territory gift cap resets if a general election is held in the calendar year, new
section 302CK refers.
302. 'By-election gift cap' and 'Senate-only gift cap' mean $20,000. Notes are
included under these definitions to direct the reader to related provisions.
303. Consistent with the expenditure cap model established in Schedule 4, specific
caps apply for special elections, in particular by-elections and Senate-only
elections. These additional caps are tied to participation in a specific election and
only apply for a defined period from the issue of the writ to the end of polling
day for that election. This aims to ensure that participants are able to fundraise in
relation to these events, but that these caps cannot be exploited as means to
circumvent the annual limits and, in practice, increase a person or entity's annual
gift cap.
304. Under each relevant definition, Note 1 refers the reader to new section 321A,
inserted at Item 9. This provides for the indexation of the gift cap values. Note 2
clarifies that the 'by-election gift cap' only has effect in the election period for
the by-election (new subsection 302CB(2)) and the 'Senate-only election gift
cap' only has effect during the period of a Senate-only election (new subsection
302CB(3)). Note 3 clarifies that 'by-election gifts' and 'Senate-only election
gifts' are not counted towards an 'annual gift cap', 'overall gift cap' or 'State and
Territory gift cap' and directs the reader to the relevant provisions in new section
302CB.
305. Item 1 also inserts the new definitional terms of 'exceeds the annual gift cap',
'exceeds the by-election gift cap', 'exceeds the Senate-only election gift cap', the
meanings of which are set out at new section 302BA, inserted by Item 2 below.
The new term 'exceeds the overall gift cap' is set out in subsections 302CI(2) and
(3). The new term 'exceeds the State and Territory gift cap' is set out in
subsection 302CJ(3) and (4), detailed below. Item 1 also inserts the definitional
term 'connected' as having meaning given by subsection 302CJ(2) (discussed
27
Australian Bureau of Statistics, '2082.0 - Discover Your Commonwealth Electoral Division,
Australia, 2019', Archived content (Web Page, 1 March 2019)
; NSW Electoral Commission, '2021 Redistribution: Current and projected enrolment data of
determined electoral districts', 2021 Redistribution (Web Page, 30 November 2023)
.
64
below). This term is relevant to determining when the State and Territory gift cap
has been exceeded.
306. Item 2 inserts new section 302BA. New subsection 302BA(1) sets out the
meaning of 'exceeds the annual gift cap'. The annual gift cap is exceeded if, in a
calendar year, the amount or value of an annual gift either alone, or when added
together with previous annual gifts from the same donor to the same recipient in
that year, results in a total amount over the annual gift cap ($20,000).
307. A donor may donate to multiple persons or entities in a calendar year, or in a
by-election or Senate-only election period, so long as the cumulative value
received by a recipient and any 'related' persons or entities (within the meaning
of new subsection 302BA(4)) does not exceed the value of the annual gift cap.
308. Similarly, a recipient may receive donations from an unlimited number of
donors, so long as, the cumulative value received by the recipient and any related
persons or entities from each individual donor does not exceed the value of the
annual gift gap.
309. A donor may donate to multiple persons or entities in a calendar year, or in a
by-election or Senate-only election period, to the value of the gift cap, subject to
the overall gift cap (new section 302CI) or the State and Territory gift cap (new
section 302CJ), and so long as the entities are not 'related' within the meaning of
the Schedule (see new subsection 302BA(4)) Similarly, a recipient may receive
donations from an unlimited number of donors, so long as those donors are not
'related'. This supports political communication by ensuring that electoral
participants are not unduly restricted from engaging in a broad range of political
communication if they have interests in a number of matters.
310. New paragraph 302BA(1)(c) inserts a specific provision for when the annual gift
cap for a registered political party, and persons and entities 'related' to that party,
is exceeded. The annual gift cap is exceeded if, in the calendar year, a donor
makes a gift valued over the annual gift cap, or if the cumulative total of annual
gifts for that calendar year made by that donor to the registered political party or
a person or entity 'related' to that party exceeds the annual gift cap ($20,000).
This is consistent with the meaning of 'exceeds the by-election gift cap' and
'exceeds the Senate-only election gift cap' set out below.
311. Notes are included to direct the reader to provisions which may affect whether
the annual gift cap has been exceeded within the meaning of this subsection.
Note 1 directs the reader to new subsection 302BA(4), which provides the
meaning of 'related' for the purpose of aggregating gifts to certain entities
received in a calendar year. Note 2 directs the reader to new section 302CG,
which provides for the 'annual gift cap' to reset after a general election.
312. New subsection 302BA(2) sets out the meaning of 'exceeds the by-election gift
cap'. The by-election gift cap will be exceeded if the amount or value of a by-
election gift either alone, or when added together with previous gifts related to
the by-election made by the same donor to the same recipient over the
by-election period, results in a total amount over the by-election gift cap
($20,000).
313. New paragraph 302BA(2)(c) inserts a specific provision for when the by-election
gift cap for a registered political party, and persons and entities 'related' to that
65
party, is exceeded. This is consistent with the treatment of registered political
parties, and their related persons and entities, for the annual and Senate-only
election gift caps. A Note follows the subsection to direct the reader to the
meaning of 'related' provided by new subsection 302BA(4), which may affect
whether the by-election gift cap has been exceeded.
314. New subsection 302BA(3) sets out the meaning of 'exceeds the Senate-only
election gift cap'. The Senate-only election gift cap will be exceeded if a Senate-
only election gift either alone, or when added together with previous gifts related
to the Senate-only election by the same donor to the same recipient over the
Senate-only election period, results in a total amount over the Senate-only
election gift cap ($20,000).
315. New paragraph 302BA(3)(c) inserts a specific provision for when the
Senate-only election gift cap for a registered political party, and persons and
entities 'related' to that party, is exceeded. This is consistent with the treatment of
registered political parties, and their related persons and entities, for the annual
and by-election gift caps. A Note follows the subsection to direct the reader to the
meaning of 'related' provided by new subsection 302BA(4), which may affect
whether the Senate-only election gift cap has been exceeded.
316. New subsection 302BA(4) provides the meaning of 'related' for the purpose of
when a person or entity is related to a registered political party, and when a gift
cap may be exceeded. For the purpose of paragraphs 302BA(1)(c), (2)(c) and
(3)(c), a person or entity is 'related' to a registered political party if they are: a
member of the House of Representatives or a Senator who is a member of that
registered political party; a candidate who is endorsed by that registered political
party; or the nominated entity of that registered political party (if applicable).
317. For clarity, State branches of a registered political party are not aggregated with
each other, nor the federal branch of the party. However, if a State branch is itself
a registered political party, the 'related' concept applies to the State branch and
any candidates in a federal election endorsed by the branch, any members of the
House of Representatives or Senators who are members of the branch for the
purpose of the gift caps and, if applicable, the nominated entity of the State
branch.
Example--operation of 'related' entity aggregation
Emma makes a $5,000 annual gift to the Quokka Australia Party (federal
branch), a registered political party. Emma also makes a $5,000 annual gift to
the NSW State branch, Quokka Australia Party (NSW) and $10,000 gift to
George, who is a candidate in a general election endorsed by the Quokka
Australia Party (NSW).
For the purpose of the annual gift cap, Emma's gifts to George and Quokka
Australia Party (NSW) are aggregated as a candidate and their endorsing party
are related. Accordingly, $15,000 of Emma's gifts is relevant to the gift cap as
it applies to Emma as donor and George and the Quokka Australia Party
(NSW) as related recipients.
The Quokka Australia Party (federal branch) is not related to George or
Quokka Australia Party (NSW). As such, Emma's $5,000 gift to the Quokka
66
Australia Party (federal branch) is only relevant to the gift cap as it applies to
Emma as a donor and the Quokka Australia Party (federal branch) as recipient.
Example--treatment of gifts to entities that are not 'related'
Li makes a $20,000 annual gift to the Quokka Australia Party. Li also makes a
$20,000 annual gift to the Bilby Party, also a registered political party. Li and
the two parties have not exceeded the annual gift cap.
318. The JSCEM Interim Report recommended that donation caps be developed with
consideration being given to the aggregation of donations across candidates and
parties (recommendation 4).28 The aggregation of related entities is an
anti-avoidance mechanism to prevent the practice of 'donation splitting' being
used to avoid the gift caps and circumvent the intention of the scheme. In effect,
a registered political party, and a person or entity that is related, share a common
gift cap ($20,000). This means that, if a donor makes a gift to any one of these
recipients, it is taken as counting towards the cumulative cap for all related
persons and entities.
319. Notes are included after new subsection 302BA(4) to direct the reader to relevant
provisions. Note 1 directs to the meaning of 'registered political party' in
subsection 4(1) of the Electoral Act.
320. Note 2 clarifies that the effect of subsection 302BA(4) is that a registered
political party is not 'related' to another registered political party for the purposes
of paragraph (1)(c), (2)(c) or (3)(c). The examples above demonstrate the
treatment of donations received by two registered political parties, included to
illustrate this point.
321. Note 3 refers the reader to subsections 287(6), and (8) to (8D), for the treatment
of related body corporates, and significant third parties, third parties, associated
entities and their branches for the purposes of Part XX. The operation of these
sections, including new subsections 287(8A), (8B), (8C) and (8D) are outlined in
detail in discussion of Item 16 to Schedule 1 (Part 1) above. These sections may
be relevant to how the gift cap applies to persons or entities, and whether they
share a gift cap.
322. New subsection 287(8B) provides that a branch of an associated entity that is
also registered as an associated entity is to be treated as a separate associated
entity. This clarifies that the same donor is able to donate $20,000 to each
associated entity, even if they are part of the same branch structure.
323. This is different to the treatment of significant third parties and third parties,
where section 287(8) of the Electoral Act provides that a significant third party or
third party that has branches is to be treated as a single significant third party or
third party. This means they will be a single recipient for the purposes of
receiving donations (subject to subsection 287(8D)).
324. Additionally, existing subsection 287(6) of the Electoral Act provides that a body
corporate and another related body corporate are deemed to be the same person
28
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 66 [2.250].
67
under Part XX. This means they will be a single recipient for the purposes of
receiving donations (subject to subsection 287(8C)).
325. The difference in treatment recognises that registered political parties, supported
by their associated entities, generally field candidates in multiple divisions in
states and territories.
326. In contrast, significant third parties or third parties do not field candidates, but
rather are aiming to influence elections. If the disaggregation applied in the same
way to these bodies, there would be opportunity for undue influence, or the
perception of undue influence, by entities with large amounts of money. As there
is no limit on the number of significant third parties or third parties that can be
politically active, aggregation of branches minimises the potential for a
proliferation of 'shell' significant third parties or third parties being able to funnel
additional donations to each other, and to candidates and parties.
327. Table 1 below shows how gifts for a federal purpose are aggregated by the
operation of the 'related' provisions, or because of the operation of
subsections 287(6) and (8) to (8D), highlighted in Note 3 above:
Table 1. Person or entity included in the same 'gift cap'
Person or entity included in Annual gift By-election Senate-only
the same 'gift caps' cap / per gift cap / per election gift
donor donor cap / per
donor
• registered political $20,000 $20,000 $20,000
party (including a State
branch of a party that is
itself a registered
political party)
• party endorsed
candidates
• party members of the
House of
Representatives and
Senators
• party registered
nominated entity (if
registered)
• State branch of a $20,000 $20,000 $20,000
registered political
party (not itself federally
registered)
• significant third party $20,000 $20,000 $20,000
and branches (if any)
(see subsections 287(6)-
(8D))
68
• related bodies $20,000 $20,000 $20,000
corporate, determined
under the Corporations
Act 2001 (see subsections
287(6)-(8D))
• associated entity(see $20,000 $20,000 $20,000
subsections 287(6)-(8D))
• third party and $20,000 $20,000 $20,000
branches (if any) (see
subsections 287(6)-(8D))
Table 1. Note that 'Annual gift cap', 'By-election gift cap', and 'Senate-only election gift
cap' values are indexed annually under new section 321A.
328. New subsection 302BA(5) inserts a tie-breaker provision for a person that, if not
for this subsection, would be taken to be 'related' to more than one registered
political party for the purposes of determining if the gift cap has been exceeded
under paragraphs 302BA(1)(c), (2)(c) and (3)(c).
329. Under new subsection 302BA(5):
• if the person is a candidate, the person is taken to only be related to the
registered political party that endorses the person; or
• if the person is a member of the House of Representatives or a Senator who is
not a candidate, the person is taken to only be related to:
o the registered political party that endorsed the person as a candidate in
the election that most recently resulted in that person becoming a
member of the House of Representatives or a Senator; or
o if the person is a Senator who became a Senator other than as a result
of an election, the registered political party that endorsed the
predecessor as a candidate for election to the Senate; or
• in any case, if the person has given the Electoral Commission a written notice
in the approved form specifying another of the registered political parties, the
person is taken to only be related to the party most recently specified.
330. This accommodates federalised political party structures. Additionally, it gives a
person discretion to ensure that they are appropriately grouped for the purposes
of aggregating the gift cap.
331. Item 3 repeals and replaces section 302C. New subsection 302C(1) states the
objectives of the Division as being:
• to prevent Australian elections from being unfairly skewed by organisations
or individuals with large amounts of money;
• to promote equal opportunity for all individuals and other entities to
participate in political debate; and
• to secure and promote the actual and perceived integrity of the Australian
electoral process by reducing the risk of persons and entities, including
foreign persons and entities from exerting or being perceived to exert undue
or improper influence in the outcomes of an election.
69
332. New subsection 302C(2) states Division 3A aims to achieve these objects by
capping the value of gifts for a federal purpose from a single donor to the same
recipient ((2)(a)), and by restricting gifts from foreign persons or entities that do
not have a legitimate connection to Australia ((2)(b)). Paragraph (2)(b) replicates
the existing text of 302C(2) as it applies to foreign donor provisions currently
operating in Part XX.
333. Gift caps are used in other Australian jurisdictions, and internationally by many
democracies similar to Australia, to limit the growth and influence of excessive
political donations ('gifts') that can negatively impact the actual or perceived
integrity of electoral systems by leading to real or perceived corruption, often
described in the form of 'undue influence' or 'clientelism'. The High Court of
Australia has considered these protective, anti-corruption purposes and found
them to be a legitimate purpose for burdening the implied freedom of political
communication in the context of state political donation caps.29
334. Gift caps will operate in concert with other provisions in this Bill--particularly
expenditure caps (Schedule 4) and increasing public election funding
(Schedule 7)--to achieve these objects.
335. Item 4 inserts new section 302CAA, which provides for the treatment of gifts
received by members of a Senate group. This treatment is determined by whether
these members are endorsed by a registered political party, and also by the
number of members in the group.
336. Where a gift is received by a group and all members are endorsed by the same
registered political party, the gift is taken to be received by the endorsing
registered political party. If the gift is made to a group that is jointly endorsed--
meaning that different members of the group are endorsed by different registered
political parties--the value of the gift is split evenly between the candidates for
both reporting and gift cap purposes. If the group is unendorsed, the value of the
gift is split evenly between the group members (candidates) for reporting and gift
cap purposes.
337. The value of the group member's share of the gift contributes to the candidate's
gift cap (or, if the case requires, the endorsing political party's gift cap, under the
meaning of 'related' rules in new subsection 302BA(4)). This must be reported
by the group member. A Note included after section 302CAA directs the reader to
the expedited disclosure obligations that may apply under new section 303A,
inserted by Schedule 2 of the Bill, as well as the aggregation rules for registered
political parties and persons or entities 'related' to that party in new section
302BA.
Example--single-party endorsed group
Members of a group are all endorsed by the same registered political party. A
donor makes a gift to the group. The donor's gift is taken to be received by the
endorsing registered political party.
See McCloy v New South Wales (2015) 257 CLR 178, 206 [42]-[43] (French CJ, Kiefel, Bell and
29
Keane JJ) and Senate Select Committee into the Political Influence of Donations, Parliament of
Australia, Political Influence of Donations (Report, June 2018) 41, 43 [3.93], [3.101].
70
Example--jointly endorsed group
Dakota, Eugenie and Liam are members of a group and are all endorsed by the
Quokka Australia Party. Amir is also a member of the group and is endorsed
by the Pademelon Party, which is in coalition with the Quokka Australia Party.
Anthony makes a gift of $6,000 to the group. The donation is taken to be
received in even split between each of the four candidates that are members of
the group ($1,500 each).
Under new subsection 302BA(4), endorsed candidates and the endorsing
registered political party are 'related' for the purpose of establishing whether a
gift cap has been exceeded. This would mean that $4,500 is aggregated with
any gifts for a federal purpose made by Anthony to the Quokka Australia
Party, and $1,500 is aggregated with any gifts for a federal purpose made by
Anthony to the Pademelon Party.
Example--unendorsed group
A donor makes a gift to a group where no members of the group are endorsed
by a registered political party ('unendorsed group').
The gift is taken to be received in even split between each of the candidates
that are members of the group. Each candidate or their agent is responsible for
reporting their portion of the gift to the group under the candidate expedited
disclosure and candidate annual return provisions.
Subdivision AA--Civil penalty provisions relating to annual gift cap, by-election gift
cap and Senate-only election gift cap
338. Item 5 inserts new Subdivision AA--Civil penalty provisions relating to gifts.
The gift caps apply only to gifts for a 'federal purpose'. This ensures that the cap
is appropriately focused on gifts that are intended to influence the way electors
vote in federal elections. This ensures that entities that engage in broader special
interest campaigns are not restricted from raising funds to support their non-
electoral business.
339. New subsection 302CB(1) provides that Subdivision AA of Division 3A of Part
XX, which imposes the gift caps, applies to gifts (other than gifts to which
subsection 302CB(2) or (3) applies) made for a 'federal purpose' by, or on behalf
of, a donor to a registered political party, State branch of a registered political
party, member of the House of Representatives, Senator, candidate, associated
entity, significant third party, nominated entity or third party.
340. A Note is included after subsection 302CB(1) to refer the reader to the meaning
of 'federal purpose', as defined in subsection 287(1) to mean 'the purpose of
incurring electoral expenditure or creating or communicating electoral matter'.
341. New subsection 302CB(2) provides that Subdivision AA applies to the type of
gifts that count toward the by-election cap which are gifts made to a person or
entity listed at 302CB(1) for a federal purpose that is also for the purpose of that
by-election, made during the election period for the by-election.
71
342. New subsection 302CB(3) provides that Subdivision AA applies to the type of
gifts that count toward the Senate-only election cap which are gifts made to a
person or entity listed at 302CB(1) for a federal purpose that are is also for the
purpose of a Senate-only election, made in during the election period for that
Senate-only election.
343. The three gift caps (annual, by-election and Senate-only election caps) operate
exclusively, meaning that a gift for a federal purpose can only be attributed to a
single cap. The separate gift caps for by-elections and Senate-only elections
allow participating persons and entities campaigning in those elections to raise
funds to support those campaigns. If a gift for a federal purpose is not a 'by-
election gift' or 'Senate-only election gift' within the meaning of new subsections
302CB(2) or (3), then it will be an 'annual gift', and count towards the annual
cap for that donor and recipient.
344. New section 302CC inserts a table which sets out who is the 'responsible person'
in relation to a 'recipient' of a gift. This may be the registered officer of the
registered political party, the agent or financial controller for a person or entity, or
the person themselves.
345. Liability is attached to the responsible person across a number of sections in the
existing Electoral Act and in the new Schedules of this Bill, including expedited
disclosure, expenditure caps and annual return obligations. This supports the
AEC's education and compliance activities regarding obligations under Part XX.
The registered officer, agent, financial controller or individual person is
sufficiently proximate to the financial operation of a person or entity to make
attributing liability to this person appropriate. Additionally, provisions in existing
Division 2--Agents and financial controllers of Part XX regulate some of these
positions and the other responsibilities required of these persons in complying
with obligations under this Part.
346. New section 303CD sets civil penalties for contravention of the annual gift cap
by either the responsible person for a recipient of a gift, or donors where an
annual gift cap is exceeded. It is necessary to provide penalties to act as a
deterrent and to support gift cap compliance as the caps are an important
mechanism for enhancing the integrity of the electoral process. The penalty is a
measured and proportionate response, aiming to ensure that the measures in the
Bill are complied with while preventing persons or entities from viewing the fine
as simply 'the cost of doing business'. Further, applying a civil penalty, rather
than criminal penalty is suitable to ensure that the penalty for a contravention of
the gift cap is proportionate and does not deter persons from engaging in political
communication.
347. New subsection 302CD(1) sets out the elements of the annual gift cap civil
penalty. The responsible person for a recipient, as set out in the table at 302CC,
contravenes this subsection if the recipient receives an annual gift, and at the time
the gift is made, the gift exceeds the annual gift cap.
348. Note 1 under new subsection 302CD(1) directs the reader to the definition of
'exceeds the annual gift cap' in new subsection 302BA(1), which is relevant to
the operation of paragraph 302CD(1)(c). Subsection 302BA(1) provides that the
annual gift cap is exceeded if the amount or value of an annual gift either alone,
or when added together with previous annual gifts from the same donor to the
72
same recipient in the same calendar year, results in a total amount over the annual
gift cap ($20,000). The amount or value that is in 'excess' of the cap is the
portion for which acceptable recipient action and acceptable donor action must be
taken, and on which the applicable civil penalty is calculated.
349. Note 1 under new subsection 302CD(1) also directs the reader to the aggregation
provisions in new subsection 302BA(4), which may affect whether a gift cap is
exceeded.
350. Note 2 clarifies that the amount or value of the excess of the annual gift cap may
be treated as a debt owed to the Commonwealth under section 302Q (as amended
by Items 7 and 8 of this Schedule).
351. Note 3 directs the reader to subsections 287(6) and (8) to (8D) for clarification on
the treatment of related body corporate, and significant third parties, third parties,
associated entities and their branches, for the purposes of Part XX.
352. New subsection 302CD(2) sets out the conditions for when a donor would
contravene the annual gift cap civil penalty provision. A donor contravenes this
subsection if they make an annual gift and, at the time the gift is made, the gift
'exceeds the annual gift cap' ($20,000).
353. Notes 1, 2 and 3 are inserted under 302CD(2). The Notes are consistent with
those outlined above under new subsection 302CD(1).
354. New subsection 302CD(3) provides an exception to a contravention of the annual
gift cap for the responsible person of a recipient. It provides that the responsible
person does not contravene subsection 302CD(1) if at the time the recipient
received the annual gift, the responsible person did not know, and could not
reasonably have known, that the gift exceeded the annual gift cap for the calendar
year, and also acceptable recipient action (definition inserted by Item 1 above)
was taken within 6 weeks of the responsible person becoming aware that the gift
exceeded the annual gift cap.
355. New subsection 302CD(4) inserts an equivalent exception for donors, as in
subsection 302CD(3) for recipients. 'Acceptable recipient action' and 'acceptable
donor action' are safeguards to ensure that people and entities can continue to
make donations to political actors of their choice up to the value of the applicable
gift cap. The intention is to avoid punishing reasonable and inadvertent breaches
of the gift cap, with a penalty only imposed for a breach of the gift cap if the
person exceeds the relevant cap and fails to take the specified remedial action
within the timeframe. Similarly, recipients can accept gifts without concern that
they will be penalised for inadvertently receiving amounts in excess of the
relevant cap. The cap is therefore calibrated to avoid discouraging individuals or
entities from making political donations.
356. The Note inserted after subsections 302CD(3) and (4) provides that a person who
wishes to rely on these exceptions bears an evidential burden (see section 96 of
the Regulatory Powers Act). It is appropriate to place the burden of proof on the
responsible person or the donor (as the case may be) because it will be
specifically within the knowledge of that person as to whether they knew the gift
cap had been breached, and they would be best able to produce evidence to this
point (for example, bank records). Conversely, it would be extremely difficult for
73
the plaintiff to produce proof that the defendant had no knowledge of a particular
gift.
357. New subsection 302CD(5) provides that a person or entity that contravenes
subsections (1) or (2) is liable for a civil penalty, being the higher of 200 penalty
units or 3 times the amount or value by which the annual gift exceeds the annual
gift cap for the calendar year. This is consistent with existing penalties in the
Electoral Act, and commensurate with the severity and potential impact of the
contravening conduct.
358. New section 302CE inserts civil penalties and exceptions for both the responsible
person for a recipient, and donors that breach the by-election gift cap. The
by-election civil penalty provision set out in this section is consistent with the
annual gift cap provisions set out at new section 302CD above and the Senate-
only election gift cap provisions at new section 302CF.
359. New section 302CF inserts the penalties and exceptions for both the responsible
person for a recipient, and donors that breach the Senate-only election gift cap.
The Senate-only election gift cap civil penalty provisions set out in this section is
consistent with the annual gift cap and by-election gift cap provisions outlined
above at new section 302CD and new section 302CE, respectively.
360. The by-election and Senate-only election gift caps are specific to an electoral
event. For example, this means that, if there are multiple by-elections held
concurrently in different Divisions, then each by-election will have its own by-
election gift cap of $20,000, that will apply from the issue of the writ for that by-
election until the end of polling day for that by-election.
Example--'Super Saturday 2018' multiple by-elections on the same day
On 28 July 2018, five separate by-elections were held to fill vacancies in the
House of Representative seats of the Division of Fremantle, Division of Perth,
Division of Mayo, Division of Braddon and Division of Longman.
If the 'by-election gift cap' had applied at this time, each by-election would
have had its own gift cap of $20,000. The by-election gift cap applies to gifts
made for the purpose of that by-election, in the by-election period--being the
period from the issue of the writ until the end of polling day for the by-
election.
361. New subsection 302CG(1) provides that the annual gift cap resets if a general
election is held in a calendar year. This effectively splits the calendar year into
two separate gift cap periods:
• the period beginning on 1 January and ending 30 days after the return
of the writs for the general election (paragraph (a)); and
• the period beginning immediately after the period above ends until the
end of the calendar year (paragraph (b)).
362. In determining if the annual gift cap has been exceeded, the two periods are
treated as distinct periods, essentially as if they are two different calendar years.
74
363. Subsection 302CG(2) provides that subsection 302CG(1) does not apply if the
period in paragraph 302CG(1)(a) ends after the end of the calendar year. In that
instance, the gift caps would not reset, and the end of the calendar year would
automatically cause a new cap period to begin.
364. Item 5 also inserts New Subdivision AB--Receipts for certain gifts.
Subdivision AB includes new section 302CH which sets out a receipt
requirement for recipients that receive a gift within the meaning of new
paragraph 287AAB(2)(a) (inserted in Item 18 of Schedule 1 (Part 1)).
365. New subsection 302CH(1) provides that the section applies in relation to
amounts paid by a person as a contribution, entry fee or other payment to attend,
or otherwise obtain a benefit from, a fundraising venture or function, if the
amount is, or can reasonably be assumed to be, a gift within the meaning to
paragraph 287AAB(2)(a) to which Subdivision AA applies. A Notes is included
to direct the reader to section 302CB to clarify gifts to which Subdivision AA
applies, being gifts to which the gift cap provisions apply.
366. New subsection 302CH(2) requires the responsible person for the recipient
(discussed above at new section 302CC), as soon as practicable after receiving
the gift, to provide the donor with a receipt specifying how much of the gift the
responsible person reasonably believes forms part of the net proceeds of the
venture or function.
367. A Note is included under subsection 302CH(2) to direct the reader that under
Subdivision B and C of Division 4, the donor and recipient may have an
expedited disclosure obligation in relation to the gift (Schedule 2 refers).
368. New subsection 302CH(3) requires that if the responsible person's reasonable
belief changes as to the portion of the amount that forms the net proceeds, the
responsible person must give the donor an updated receipt.
369. New subsection 302CH(4) provides that the donor is entitled to rely on a receipt
given under this section for the purposes of their donor disclosure obligations
under Subdivision C or Division 4 (Schedule 2 refers). This supports donors to
comply with new their expedited donation disclosure notice obligations under
section 303E with respect to a gift under new subsection 287AAB(2)(a).
370. Item 5 also inserts new Subdivision AC--Civil penalty provisions relating to
overall gift cap and State and Territory gift cap.
371. New section 302CI provides for a cap on the total value of annual gifts that an
individual donor can make in a calendar year to an 'overall gift cap entity', being
a registered political party, State branch of a registered political party, member of
the House of Representatives, Senator, candidate or nominated entity.
372. The 'overall gift cap', 'State and Territory gift cap' and 'annual gift cap'
provisions operate concurrently. These calendar year caps operate separately to
the 'by-election gift cap' and 'Senate-only election gift cap'.
373. New subsection 302CI(1) provides that a donor contravenes this subsection if at
any time in a calendar year, they make an annual gift to an overall gift cap entity
and at that time, the gift exceeds the overall gift cap for the calendar year. A Note
is included under subsection 302CI(1) to alert the reader that the overall gift cap
is 32 times the annual gift cap as defined in section 302B.
75
374. Annual gifts to associated entities, significant third parties and third parties are
not subject to the overall gift cap.
375. New subsection 302CI(2) provides that an annual gift exceeds the overall gift cap
for a calendar year if the amount or value of the gift is more than the overall gift
cap for the calendar year. For clarity, if a single annual gift exceeded to overall
gift cap, the donor would also have exceeded the annual gift cap ($20,000) and
may be liable for a separate civil penalty under subsection 302CD(2), discussed
above.
376. New subsection 302CI(3) provides that an annual gift also exceeds the overall
gift cap for a calendar year if the cumulative amount or value of the annual gifts
to overall gift cap entities in a calendar year is more than the overall gift cap.
This is consistent with the cumulative operation of the annual gift cap set out in
Subdivision AA above.
377. New subsection 302CI(4) provides that subsection 302CI(1) does not apply if, at
the time the annual gift was made, the donor did not know and could not
reasonably have been expected to know, that the gift exceeded the overall gift
cap, and the donor took acceptable donor action within 6 weeks of becoming
aware that the gift exceeded the overall gift cap for the calendar year.
378. A Note follows 302CI(4) to alert the reader that a person who wishes to rely on
this exception bears an evidential burden (see section 96 of the Regulatory
Powers Act). It is appropriate to place the burden of proof on the donor because it
will be specifically within the knowledge of that person as to whether they knew
the cap had been exceeded, and they would be best able to produce evidence to
this point (for example, bank records). Conversely, it would be extremely
difficult for the plaintiff to produce proof that the defendant had no knowledge of
a particular gift.
379. New subsection 302CI(5) provides that a person or entity that contravenes
subsection 302CI(1) is liable for a civil penalty, being the higher of 200 penalty
units or 3 times the amount or value by which the annual gift exceeds the overall
gift cap for the calendar year.
380. Item 5 also inserts new section 302CJ which sets a cap on the total value of
annual gifts that an individual donor can make to persons or entities 'connected'
to a State or Territory in a calendar year.
381. New subsection 302CJ(1) provides that a donor contravenes this subsection if in
a calendar year the donor makes an annual gift to a person or entity connected to
a State or Territory (within the meaning of subsection 302CJ(2) below), and at
the time the gift is made the gift exceeds the State and Territory gift cap for the
calendar year.
382. A Note is included under subsection 302CJ(1) to direct the reader to section
302B for the meaning of State and Territory gift cap, being 5 times the value of
the annual gift cap.
383. New subsection 302CJ(2) provides that a person or entity is 'connected' to a
State or Territory if the person is any of the following:
• a political party that is a State branch in the State or Territory (and their
nominated entity, if applicable);
76
• a member of the House of Representatives for Division in the State or
Territory;
• a Senator for the State or Territory;
• a candidate for a general election for a Division in the State or Territory; or
• a candidate in a Senate election for the State or Territory.
384. Annual gifts to associated entities, significant third parties and third parties are
not subject to the State and Territory gift cap.
385. New subsection 302CJ(3) and (4) provide for when an annual gift exceeds the
State and Territory gift cap.
386. Subsection 302CJ(3) provides that an annual gift made to a person or entity
connected to a State or Territory, exceeds the State and Territory gift cap for a
calendar year, in relation to the State or Territory is connected to, if the amount or
value of the gift is more than the State and Territory gift cap for the calendar year.
387. For clarity, if a single annual gift exceeded the State and Territory gift cap, the
donor would also have exceeded the annual gift cap ($20,000) and may be liable
for a separate civil penalty under subsection 302CD(2), discussed above.
388. Subsection 302CJ(4) provides that an annual gift made to a person or entity
connected to a State or Territory also exceeds the State and Territory gift cap for a
calendar year, in relation to the State or Territory the person or entity is connected
to, if the cumulative amount or value of annual gifts in that calendar year is more
than the State and Territory gift cap for the calendar year. This is consistent with
the cumulative operation of the annual gift cap set out in Subdivision AA above.
389. New subsection 302CJ(5) provides that subsection 302CJ(1) does not apply if at
the time the gift was made the donor did not know and could not reasonably have
been expected to know that the State and Territory gift cap for the calendar year
had been exceeded, and the donor took acceptable action in relation to the excess
gift value within 6 weeks of becoming aware.
390. A Note is included under subsection 302CJ(5) to alert the reader that a person
who wishes to rely on this exception bears an evidential burden in relation to
contravention, under section 96 of the Regulatory Powers Act. This is consistent
with other civil penalty exemptions provided for in this Schedule.
391. New subsection 302CJ(6) sets out that a person or entity is liable to a civil
penalty for contraventions of subsection 302CJ(1), being the higher of
200 penalty units or 3 times the amount of value of the gift that exceeded the
State and Territory cap.
392. New section 302CK establishes that the overall gift cap and the State and
Territory gift cap reset if a general election is held in a calendar year. This section
operates consistently with the reset of the annual gift cap outlined at section
302CG above.
393. Item 6 repeals the heading in Subdivision D of Division 3A of Part XX. This is a
minor technical amendment to the structure of the Division to group the existing
foreign donor provisions.
77
394. Item 7 omits all words after 'any other person' in paragraph 302Q(1)(b) and
substitutes new subparagraph (i), related to the gift cap provisions inserted by
sections 302CD, 302CE and 302CF, and new subparagraph (ii), which reinserts
references to the existing foreign donor offences and civil penalty provisions at
sections 302D to 302F.
395. Item 8 repeals subsection 302Q(2) and substitutes new subsections 302Q(2) and
(3) to reflect the insertion of gift cap provisions in paragraph 302Q(b)(1) above.
The new text of subsection 302Q(2) provides that the amount or value by which
the relevant gift cap has been exceeded is an amount payable to the
Commonwealth, and it may be recovered by the Commonwealth as a debt due to
the Commonwealth by a court of competent jurisdiction. This supports the
operation and enforcement of the gift cap provisions, to ensure that there is no
ongoing benefit to exceeding the gift caps. New subsection 302Q(3) reinserts the
Commonwealth debt recovery powers in relation to the foreign donor offences
and civil penalty provisions as repealed in existing 302Q(2).
396. Item 9 repeals existing section 321A of the Electoral Act and substitutes new
section 321A. This includes indexation provisions for the 'annual gift cap',
'by-election gift cap', 'Senate-only election gift cap' and 'third party threshold'
amounts. These amounts will be indexed to the CPI each calendar year using the
September quarter index number. This will ensure that the value of the cap
maintains relative value over time.
397. Item 9 also inserts new section 321AA which provides for the indexation of the
disclosure threshold value after a general election. This provision specifies that
the disclosure threshold value will index on 1 January following a general
election, based on CPI for the previous quarter. Further changes to the meaning
of 'disclosure threshold' are outlined in Item 10 of Schedule 1 of this Bill.
398. Item 10 is an application provision relating to the indexation provision as
inserted by Item 9, which provides that the indexation applies in relation to the
indexation year beginning on 1 January 2027 and each subsequent calendar year.
78
Schedule 4--Expenditure caps
399. This Schedule will establish caps on electoral expenditure over a calendar year.
Separate expenditure caps will apply for discrete periods, in relation to
expenditure incurred for the purpose of by-elections and Senate-only elections.
400. The JSCEM recommended that the Australian Government introduce expenditure
caps for federal elections in recommendation 5 of the JSCEM Interim Report and
recommended that these apply to third parties and associated entities in
recommendation 6 of the JSCEM Interim Report.30 The JSCEM outlined its
consideration of the case for establishing expenditure caps, based on evidence
and submissions made to JSCEM in its Interim Report.31
401. This Schedule implements these recommendations, as well as the Australia's
Open Government Forum National Action Plan commitment to strengthen
transparency in political donations (commitment 7 refers).32
402. Currently, registered political parties and associated entities do not report
electoral expenditure as distinct from their 'total payments' on their annual
return. Further, candidates endorsed by registered political parties can report their
expenditure as part of the bulk 'total payments' on the party's annual return. For
the 2022 federal election, approximately 60 per cent of candidates reported 'nil'
electoral expenditure.33
403. In the 2022 federal election, some independent candidates reported electoral
expenditure over $2 million.34 The reporting limitations highlighted above mean
that it is not possible for the Australian public to see if the increase in
independent candidate expenditure is equivalent to expenditure by endorsed
major party candidates in these high-spending seats. However, it may be
reasonably inferred, based on this increase in spending, that independent
candidate expenditure was, in part, a reaction to environmental factors including
major party expenditure on endorsed candidates.
404. Reforms to regulate federal electoral expenditure are necessary to provide
transparency of the amount and distribution of election spending being incurred
by those engaging in federal elections. Applying more consistent obligations
across entity types will generate a more accurate reflection of spending patterns
so that the Australian public will have a greater understanding of how election
campaigns are structured and funded.
405. The expenditure cap structure applies a tiered model that limits overall registered
political party and capped entity electoral expenditure, as well as their electoral
30
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 67 [2.251]-[2.254].
31
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 67 [2.137]-[2.188].
32
Open Government Partnership, Australian Government, Australia's Third Open Government
Partnership National Action Plan 2024-25 (Report, 19 December 2023) 26
.
34
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group returns',
AEC Transparency Register (Web Page, 31 July 2024) SPENDER, Allegra May ($2,124,058); RYAN,
Monique Marie ($2,122,231) .
79
expenditure that is targeted to specific Divisions, States or Territories. This
ensures that such persons or entities cannot funnel their entire expenditure cap
into a single electorate, undermining the intent of the caps as a measure to create
a more 'level playing field'. The expenditure caps established by this Schedule
will only apply to reasonably limit expenditure that is in relation to an election,
including expenditure intended to influence the way Australians vote in federal
elections.
406. The expenditure caps will be supported by the new annual return content
requirements that will improve the transparency of electoral expenditure being
incurred nationally, as well as at the Divisional, State and Territory Senate levels
(Schedule 5 refers).
407. Further complementary reforms include the requirement for persons and entities
that incur electoral expenditure to maintain a Commonwealth campaign account
(Schedule 6 refers), and strengthened AEC investigation and enforcement powers
to support compliance with the expenditure cap provisions (Schedule 9 refers).
Trends in federal electoral expenditure 2009--2023
408. Significantly disproportionate expenditure by individuals and organisations
participating in electoral debate has the potential to exert undue influence on the
voting preferences of electors by drowning out the voices of other political
actors.
409. Expenditure information available on the AEC Transparency Register shows that
political party expenditure, even when adjusted for inflation and allowing for
population growth, was higher surrounding the 2019 and 2022 federal elections
than at the three previous federal elections. This is partly a result of very high
spending relative to small vote share by the United Australia Party (UAP) at both
elections. The expenditure of approximately $123 million by the UAP in 2021-
22 is paralleled by the record gifts made by the donor Mineralogy Pty Ltd to the
UAP, the 2021-22 reported total for which was approximately $117 million.35
410. Analysis of political party 'total payments' reported on annual returns shows that,
when removing total reported payments by the UAP, expenditure is broadly
consistent with the traditional spending pattern of the major parties (Figure 5).
The peak in 2018-19 is broadly attributable to the unusual number of by-
elections in that year.
Australian Electoral Commission, '2021-22 Annual Donor Return: Mineralogy Pty Ltd',
35
AEC Transparency Register (Web Page, 31 July 2024)
.
80
Political party 'total payments' 2009-10 to 2022-23 (Indexed)
600
Reported 'total payments' ($ millions)
500
400
300
200
100
0
2009 2011 2013 2015 2017 2019 2021
Financial year
UAP Included UAP Excluded Or Zero
Figure 5. Political party annual 'total payments' indexed to 2022-23 levels, showing
UAP-included figures in blue where the UAP/PUP reported expenditure
('total payments').
411. Information available on the AEC Transparency Register shows that candidate-
specific spending has also increased for the 2019 and 2022 federal elections.
Independent candidates in some cases spent over $2 million (Figure 6).36
Candidate 'electoral expenditure' 2010-2022 federal elections
(Indexed)
25
Expenditure ($ millions)
20
15
10
5
0
2010 2012 2014 2016 2018 2020 2022
Federal election year
Figure 6. Total candidate electoral expenditure for the last five federal elections,
indexed to 2022-23 levels.
36
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group returns', AEC
Transparency Register (Web Page, 31 July 2024) SPENDER, Allegra May ($2,124,058); RYAN,
Monique Marie ($2,122,231) .
81
412. Further, when comparing the top 40 spending independent candidates for each
federal election between 2010 and 2022, not only was spending higher in the
2022 federal election, but the number of candidates spending at these higher
levels was also greater (Figure 7).
Top 40 spending independent candidates total 'electoral
expenditure' 2010-2022 federal elections (Indexed)
18.0
Millions
16.0
(Top 40 spending independent candidates)
14.0
Combined 'electoral expenditure'
12.0
10.0
8.0
6.0
4.0
2.0
0.0
2010 2013 2016 2019 2022
Federal election (Year)
Figure 7. Comparison of the top 40 highest reported spending independent candidates
(excluding unendorsed Senate groups) total electoral expenditure 2010-2022 federal
elections, indexed to 2022-23 levels.
413. In contrast to registered political parties and candidates, there has not been a
comparable sustained increase in spending by third parties from 2008 to 2022.
However, expenditure information available on the AEC Transparency Register
shows spending by significant third parties and third parties increases
significantly in election years. For example, expenditure by these entities was
approximately $51 million in the 2018-19 and 2021-22 financial years (when
adjusted for inflation), which featured federal elections, but less than $7 million
for the non-election 2019-20 and 2020-21 financial years. Similarly, the number
of entities reporting electoral expenditure decreased in these years with
approximately 88 per cent reporting electoral expenditure in 2018-19 and 2021-
22 compared to approximately 44 per cent in 2019-20 and 42 per cent in 2020-21
(note that entities that did not incur electoral expenditure in these years reported
'nil returns').
Concerns about existing and future electoral expenditure 'arms race'
414. Submissions to the JSCEM inquiry into the 2022 federal election, and other
historic JSCEM inquiries have expressed growing concern about an 'arms race'
approach to election spending.
82
415. Increasing electoral expenditure can lead to a perception that elections are not a
contest of ideas, but an 'arms race' where participants must spend increasing
amounts to remain electorally competitive. In 2019, election analyst Mr Antony
Green gave evidence in a JSCEM public hearing to the effect that:
[Expenditure caps force] parties to think a little bit more about what they're
spending money on. I think that sometimes there's a sense of a degree of
mutually assured destruction in election campaigning. You've got the money,
so you just keep spending. You keep sending more and more letters out to
candidates. We've seen that targeted advertising is more effective than
blanket advertising, but if there are no expenditure limits then you'll
continue to get blanket advertising as well.37
416. Additionally, in a submission to the JSCEM inquiry into the conduct of the 2019
federal election, the Democratic Audit of Australia (DAA) expressed concern at
the lack of electoral expenditure regulation in the context of the 'arms race'
thesis:
Presently, candidates and political parties are free to spend as much as they
want on election campaigning. This unregulated context is both to the
detriment of political equality and the perceived integrity of the electoral
process. It leads to an arms race in pursuit of political donations and
relentless negative advertising, with both of these contributing to the loss of
trust in political parties and electoral politics. A majority of voters now
believe that government is run primarily for the benefit of 'a few big
interests' and the latest Perceptions of Electoral Integrity survey places
Australia 26th out of 33 OECD countries on the campaign finance aspect of
electoral integrity.38
417. Concerns about the detrimental impact of unregulated expenditure on Australian
elections is reflected in analysis by the Australian Election Study for the 2022
Australian federal election which noted a long-term decline of political trust in
Australia,39 and, in relation to its findings from the 2022 Australian Election
Study:
[A] narrow majority of Australians (54 percent) believe that the government
is run for a few big interests while just 12 percent believe the government is
run for all the people, a figure that has remained reasonably stable over the
past 12 years. That so few people believe the government is run for the
Australian people presents a serious challenge for a representative
democracy.40
37
Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the conduct of
the 2019 federal election and matters thereto (Final Report, December 2020) 57 [4.29].
38
Joint Standing Committee on Electoral Matters, Parliament of Australia, Inquiry into the conduct of
the 2019 federal election and matters thereto (Final Report, December 2020) 57-58 [4.30].
39
Sarah Cameron et al, The 2022 Australian Federal Election (Report, Australian Election Study,
5 December 2022) 27.
40
Sarah Cameron et al, The 2022 Australian Federal Election (Report, Australian Election Study,
5 December 2022) 28.
83
418. In a submission to the JSCEM inquiry into the conduct of the 2022 federal
election, the Human Rights Law Centre noted:
Two-thirds of European countries limit the amount a candidate can spend on
an election campaign and overseas jurisdictions most similar to Australia -
the United Kingdom, Canada and New Zealand - all cap election spending.41
419. Electoral expenditure caps are already in place in the majority of Australian state
and territory jurisdictions. New South Wales, Queensland, South Australia, the
Northern Territory, the ACT, Tasmania and recently Western Australia have
legislated a form of electoral expenditure cap.
420. The Centre for Public Integrity (CPI), analysed the impact of the introduction of
caps in New South Wales, Queensland and the ACT (where caps have been in
place for over 10 years) and found that the 'expenditure cap regimes in New
South Wales, Queensland the ACT have shown that expenditure caps are an
efficient and achievable way of levelling the playing field'.42
421. In contrast, the CPI analysis found that electoral expenditure grew considerably
and consistently in Western Australia between the 2005 and 2021 elections43
during which time no expenditure cap was in place. This comparison supports the
effectiveness of electoral expenditure caps as a mechanism to curb excessive
electoral expenditure.
422. Legislative reform to implement a federal electoral expenditure cap is needed to
prevent further escalation of electoral expenditure and to address significantly
disproportionate levels of electoral expenditure in the lead up to electoral events.
423. Expenditure caps will act as a mechanism to limit an electoral expenditure 'arms
race', which can have a detrimental effect on political equality and public trust,
and 'level the playing field' by providing greater access for individuals and other
entities to participate in political debate. This Schedule gives effect to these
objects by:
• limiting the amount of electoral expenditure that can be incurred each
calendar year, both federally and in relation to Divisions (Divisional caps)
and States and Territories (Senate caps); and
• limiting the amount of electoral expenditure that can be incurred for the
purposes of a by-election or a Senate-only election.
41
Human Rights Law Centre, Submission No 418 to Joint Standing Committee on Electoral Matters,
Inquiry into the 2022 federal election (14 October 2022) 6-7.
42
The Centre for Public Integrity, A farewell to arms Part 2: Designing an effective Commonwealth
expenditure cap regime (Briefing paper, October 2022) 1 .
43
The Centre for Public Integrity, A farewell to arms Part 1: The case for Commonwealth expenditure
caps, (Briefing paper, October 2022) 16 .
84
Commonwealth Electoral Act 1918
424. Item 1 amends the object clause of Division 1A to insert new paragraph
287E(aa). The new paragraph indicates that one of the purposes of the Division
providing for the registration of certain persons and entities (which include
significant third parties, associated entities and nominated entities), is to support
the transparency of the electoral expenditure cap scheme established by
Division 3AB.
425. Item 2 inserts Division 3AB--Requirements relating to electoral expenditure.
This Division establishes electoral expenditure cap requirements for persons and
entities that incur electoral expenditure in a calendar year, as well as separate
expenditure caps apply for persons or entities that incur electoral expenditure in
relation to a by-election or Senate-only election.
Subdivision A--Preliminary
426. New section 302AKA inserts the simplified outline of Division 3AB. Electoral
expenditure caps introduced by this Schedule will apply to registered political
parties, State branches of registered political parties, candidates, members of the
House of Representatives, Senators, significant third parties, associated entities,
nominated entities and third parties.
427. New section 302AKB inserts the objects clause of Division 3AB. New
subsection 302AKB(1) states the objects of electoral expenditure caps are to
prevent the outcomes of Australian federal elections from being unfairly skewed
by organisations or individuals with large amounts of money, and to 'level the
playing field' by promoting equal opportunity for all individuals and other
entities to participate in political debate.
428. New subsection 302AKB(2)(a) provides that the Division aims to achieve these
objects by limiting the amount of electoral expenditure that can be incurred each
calendar year, both federally and in relation to Divisions, States and Territories.
Paragraph (2)(b) provides that the Division aims to achieve these objects by
limiting the amount of electoral expenditure that can be incurred for the purposes
of a by-election or a Senate-only election, which operate separately and in
addition to the annual caps identified in paragraph (a).
Subdivision B--Interpretation
429. The term 'electoral expenditure' is defined in section 287AB of the Electoral Act.
430. New section 302ALA inserts new definitional terms to support the operation and
enforcement of the electoral expenditure cap obligations in Division 3AB.
431. This includes the new definition of 'acceptable expenditure action', defined in
section 302ALE.
432. New definitions that clarify the time periods for when certain caps apply include:
• 'by-election period', meaning the period beginning on the day the writs for
the by-election are issued and ending on the polling day for the by-election;
and
• 'Senate-only election period', meaning the period beginning on the day the
writs for the election are issued and ending on polling day for the election.
85
433. New definitions relating to the meaning of particular categories of persons or
entities include:
• 'capped expenditure entity' ('capped entity'), which means a significant third
party, associated entity or third party. These entities are all subject to
expenditure caps as set out in new Subdivision F of this Schedule.
• 'Independent House candidate or member' is used in particular in new
Subdivision D -- Expenditure caps for Independent House candidates or
members. This means a person who is:
o a candidate for election to the House of Representatives, for a Division,
at any time while the candidate is not endorsed by a registered political
party; or
o a member of the House of Representatives, for a Division, at any time
while the member is not a member of a registered political party.
A Note is included with this definition to clarify that, if a person was not
endorsed by a registered political party when they were elected, but after
becoming elected becomes a member of a registered political party, they
cease to be an Independent House candidate or member and instead
become a member of the registered political party's 'expenditure group'
(definition discussed above).
• 'Independent Senate candidate or Senator' is used in particular in new
Subdivision E--Expenditure caps for Independent Senate candidates or
Senators. This means a person who is:
o a candidate for election to the Senate, for a State or Territory, at any time
while the candidate is not endorsed by a registered political party; or
o a Senator, for a State or Territory, at any time while the Senator is not a
member of a registered political party.
A Note is included with this definition to clarify that a person who was not
endorsed by a registered political party when they were elected but becomes a
member of a registered political party once elected, cease to be an
Independent Senate candidate or Senator and instead become a member of the
registered political party's 'expenditure group'. This is consistent with the
treatment for Independent House candidates and members.
• 'liable person' is defined to clarify the attribution of liability for breaches of
the expenditure caps applicable to registered political parties and members of
their 'expenditure group'. The term means:
o for a registered political party (other than a State branch)--the registered
officer of the party (at new paragraph (a));
o for a State branch of a registered political party--if the State branch is
also a registered political party, the registered officer of the party, or
otherwise the agent of the State branch (at new paragraph (b)); or
o for a political party not covered by paragraph (a) or (b)--the agent of the
party; or
86
o for a candidate who is endorsed by a registered political party--the
registered officer of the registered political party; or
o for a candidate who is not endorsed by a registered political party--the
agent of the candidate; or
o for a member or Senator who is a member of a registered political
party--the registered officer of the registered political party; or
o for a member or Senator who is not a member of a registered political
party--the member or Senator individually; or
o for a nominated entity--the financial controller of the nominated entity.
434. This Schedule provides for expenditure caps that operate at a federal, Divisional
and State or Territory level. These caps will apply annually, as well as separate
caps for special elections such as by-elections or Senate-only elections. The
values and formulas used to determine the applicable expenditure cap are defined
in section 302ALA below.
435. Cap values are defined in new section 302ALA. These defined amounts apply to
different persons and entities and are used to determine a person or entity's
expenditure cap under conditions set out in this Division. These are:
• 'Federal cap', which means $90 million (relevant to a registered political
party and members of its expenditure group);
• 'Divisional cap', which means $800,000 (relevant to a registered political
party and members of its expenditure group);
• 'Senate base amount', which means $200,000 (relevant to a registered
political party and members of its expenditure group);
• 'Capped entity cap', which means $11,250,000 (relevant to capped
expenditure entities);
• 'Capped entity Divisional cap', which means $100,000 (relevant to capped
expenditure entities); and
• 'Capped entity Senate base amount', which means $25,000 (relevant to
capped expenditure entities).
Notes are included under each of these terms to direct the reader to the indexation
provisions at new section 321AB, inserted at Item 5 of this Schedule.
436. 'Independent House of Representatives cap' means the 'Divisional cap'. This
means that an Independent House candidate or member has an annual cap of
$800,000 (indexed under new section 321AB, inserted by Item 5 of this
Schedule).
437. The following definitions set out the formulas relevant to calculating expenditure
caps applicable to electoral expenditure either targeted to a State or Territory (see
section 302ALC) or spent by an independent Senate candidate or Senator:
• 'Senate cap', for a State or Territory, means the 'Senate base amount'
multiplied by the number of Divisions in the State or Territory (relevant to a
registered political party and members of its expenditure group);
87
• 'capped entity Senate cap', for a State or Territory, means the 'capped entity
Senate base amount' multiplied by the number of Divisions in the State or
Territory (relevant to capped expenditure entities); and
• 'Independent Senate cap', for a State or Territory, means the 'Senate base
amount' multiplied by the number of Divisions in the State or Territory,
divided by 6 in a State or 2 in a Territory (relevant to independent Senate
candidates and Senators).
438. The following definitions set out the formulas relevant to calculating expenditure
caps as they relate to a by-election for a Division:
• 'by-election cap' means 120% of the 'Divisional cap' that applies on the day
the writ for the by-election is issued (relevant to a registered political party
and members of its expenditure group);
• 'capped entity by-election cap' means 120% of the 'capped entity Divisional
cap' that applies on the day the writ for the by-election is issued (relevant to
capped expenditure entities); and
• 'Independent House of Representatives by-election cap' means 120% of the
'Divisional cap' that applies on the day the writ for the by-election is issued
(relevant to Independent House candidates or members).
439. The following definitions set out the formulas relevant to calculating expenditure
caps as they relate to a Senate-only election for a State or Territory:
• 'Senate-only election cap' means 120% of the Senate cap for the State or
Territory (relevant to a registered political party and members of its
expenditure group);
• 'capped entity Senate-only election cap' means 120% of the capped entity
Senate cap for the State or Territory (relevant to capped expenditure entities);
and
• 'Senate-only election Independent Senate cap' means 120% of the
'Independent Senate cap' for the State or Territory (relevant to Independent
Senate candidates and Senators).
440. The following tables summarise the formulas and values of the: annual electoral
expenditure caps (Table 2), by-election expenditure caps (Table 3) and Senate-
only election expenditure caps (Table 4).
Table 2. Annual electoral expenditure caps
Divisional cap Total annual
Entity Senate cap value
value cap value
Registered political
See Table 6 at
party (and members
$800,000 section 302AMC, $90 million
of its expenditure
below
group)
88
See Table 10 at
Capped expenditure
$100,000 section 302APC, $11.25 million
entity
below
Independent House
candidate or N/A N/A $800,000
member
Independent Senate
See Table 8 at
candidate or N/A N/A
302AOA, below
Senator
Table 3. By-election expenditure caps
Entity Formula Value
Registered political
party (and
120% of the Divisional cap $960,000
members of its
expenditure group)
Capped expenditure
120% of the capped entity Divisional cap $120,000
entity
Independent House
120% of the Independent House of
candidate or $960,000
Representatives cap
member
Table 4. Senate-only election expenditure caps
Entity Formula Value
Registered political See Table 7 at
party (and 120% of the Senate cap for the State or section
members of its Territory 302AME,
expenditure group) below
See Table 11 at
Capped expenditure 120% of the capped entity Senate cap for
section
entity the State or Territory
302APE, below
Independent Senate See Table 9 at
120% of the Independent Senate cap for
candidate or section
the State or Territory
Senator 302AOB, below
441. Further, new section 302ALA also includes the definition of 'targeted', being the
definition provided in new section 302ALC. This definition is used to distinguish
the types of electoral expenditure that apply to the Divisional or State and
Territory caps, and is discussed further below.
89
442. New section 302ALB prescribes how electoral expenditure incurred by Senate
groups, or an agent on behalf of the group, is to be treated for the purposes of this
Division.
443. New subsection 302ALB(2) provides that for the purpose of Part XX if the
members of the group are all endorsed by a single registered political party, the
endorsing registered political party is taken to have incurred the expenditure.
If the group is a jointly endorsed group, meaning members are endorsed by more
than one registered political party, the expenditure is taken to have been incurred
in equal shares, proportionate to the number of group members endorsed by each
registered political party. If none of the group's members are endorsed by a
registered political party (an 'unendorsed group') then each member is taken to
have incurred an equal share of the expenditure.
444. Paragraph 302ALB(2)(d) provides that in all cases, including those outlined
above, the group is not taken to have incurred the expenditure, but rather the
individual candidates or endorsing registered political party or parties.
445. A Note is included under subsection 302ALB(2) to instruct the reader on the
application of paragraph 302ALB(2)(c) as it relates to unendorsed groups. The
individual members of the unendorsed group must report their portion of the
group expenditure incurred on their individual candidate returns (at new section
310A, Schedule 5 refers). Additionally, each member's portion of the unendorsed
group expenditure counts to their relevant candidate expenditure caps.
446. This is consistent with the manner in which 'gifts' are attributed to a candidate or
endorsing registered political party gift cap in Schedule 3 (new section 302CAA
refers). This supports clarity of how to attribute electoral expenditure to a
relevant expenditure cap in the case of jointly endorsed Senate groups and Senate
groups comprised of unendorsed candidates. This amendment is consequential to
broader changes to the treatment and obligations of Senate groups in Schedule 8
of this Bill, designed to reduce administrative burden and potentially duplicative
reporting by groups.
447. New section 302ALC sets out the circumstances in which electoral expenditure is
taken to be 'targeted' to a Division, State or Territory for the purposes of
Part XX. These concepts are used throughout the Division to determine electoral
expenditure that relates to particular Divisional and Senate expenditure caps.
448. New subsection 302ALC(1) provides that an amount of electoral expenditure
worked out under subsection 302ALC(2) is 'targeted' to a Division, State or
Territory if the expenditure is incurred for the dominant purpose of creating or
communicating electoral matter, and the electoral matter to which it relates is
'express coverage matter' (defined in new subsection 302ALC(3)) for the
Division, State or Territory and is not mainly communicated to:
• for a Division--electors enrolled outside Division(s) for which it is express
coverage matter; or
• for a State or Territory--electors enrolled outside States and/or Territories for
which it is express coverage matter.
449. New subsection 302ALC(2) provides that, if electoral matter to which the
expenditure relates is express coverage matter only for a single Division, State or
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Territory, all of the expenditure is targeted to that Division, State or Territory for
the purpose of calculating an amount under subsection 302ALC(1). If the
electoral matter to which the expenditure relates is express coverage matter for
multiple Divisions, States or Territories, the liable person or financial controller
for the entity is to attribute the expenditure in a manner that they are reasonably
satisfied reflects the distribution of the electoral matter in the Division, State or
Territory, and the attributed amounts are to be considered separately for the
purpose of applying subsection 302ALC(1).
450. New subsection 302ALC(3) sets out that matter is 'express coverage matter' for a
Division, State or Territory if it is communicated to electors enrolled in the
Division, State or Territory, and either or both:
• expressly mentions the name, or includes an image or likeness of, a candidate
for election to the House of Representatives for the Division, or the Senate
for the State or Territory;
• expressly mentions the Division, or the State or Territory for a Senate
election.
Example--operation of 'express coverage matter'
Express coverage matter
Pasha is the Quokka Australia Party (QAP) candidate for the Division of
Nicholls. The QAP spends $50,000 on billboards and flyers across the
Division of Nicholls that say, 'Vote 1 for Pasha and include an image of Pasha
smiling next to a Quokka.
This is express coverage matter, as it includes the candidate's name and
likeness and is communicated to electors in the candidates Division.
Not express coverage matter
The QAP is also running a series of television ads that include the party logo
and outline the broad policy platform that the party are taking to the election.
The television ad does not include the name, image or likeness of any
candidate, nor does it explicitly mention any Division or the Senate election for
any State or Territory.
This is not express coverage matter, and therefore not captured by the
definition of targeted to a Division, State or Territory under subsection
302ALC(1). Expenditure on these television ads would be captured by the
QAP Federal cap.
451. New subsection 302ALC(4) provides that despite subsection 302ALC(1),
electoral expenditure is not targeted to a Division, State or Territory if it is
incurred on a how-to-vote card (as defined in existing section 4(1) of the
Electoral Act). If the card contains additional matter that does not satisfy
paragraphs (a), (b) or (c) of the definition of a how-to-vote card, the exception in
subsection 302ALC(4) will only apply if the dominant purpose of the electoral
matter is to convey matter that satisfies paragraphs (a), (b) or (c) of the existing
definition of how-to-vote card.
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Example--operation of subsection 302ALC(4)
A how-to-vote card is circulated across the Division of Fenner.
The total cost to the Quokka Australia Party (QAP) of the production and
distribution of the card is $10,000.
The card depicts a ballot paper encouraging electors to vote for Mai, the
endorsed candidate of the QAP, a registered political party, in Fenner,
satisfying paragraph (a) of the definition of how-to-vote card.
The card also includes a photograph of Mai as well as the QAP's campaign
slogan. The dominant purpose, however, of the electoral matter is to convey
matter that satisfies paragraph (a) of the definition of how-to-vote card.
Subsection 302ALC(4) provides that electoral expenditure on how-to-vote
cards is not targeted to a Division, State or Territory. This means that the
QAP's expenditure on the how-to-vote card contributes only to the 'Federal
cap' of the registered political party and its expenditure group.
Example--operation of section 302ALC
The Quokka Australia Party (federal branch) spends $1 million on an electoral
advertisement circulated in NSW (excluding Jervis Bay) that does not reach
other states or territories, featuring the following candidates:
• Division of Dawson, QLD (Elizabeth)
• Division of Dobell, NSW (Patrick)
• Senate, NSW (Aarti)
The advertisement is not a how-to-vote card and therefore 302ALC(4) does not
apply.
Step 1--Determine whether the electoral matter is express coverage matter for
one or more Divisions, States or Territories (subsection 302ALC(3)).
• If, for any Division, State or Territory, the answer is 'YES' to both
tests, move to Step 2.
• If 'NO', the expenditure is allocated to the Federal cap.
Express mention test (paragraph 302ALC(3)(b))
• YES--The advertisement expressly mentions the name and features the
image of all listed candidates.
Communicated to relevant electors (paragraph 302ALC(3(a))
• YES--for candidates Division of Dobell (Patrick) and Senate, NSW
(Aarti)--as the advertisement was communicated to electors in NSW
only.
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• NO--for Division of Dawson (Elizabeth)--as the advertisement was not
communicated to electors in QLD.
Therefore, the electoral matter is express coverage matter for the Division of
Dobell and NSW - continue to Step 2.
Step 2--Apportion the expenditure to the Divisions, States or Territories for
which it is express coverage matter (if necessary) (subsection 302ALC(2)).
Is the electoral matter to which the expenditure relates, express coverage
matter for more than one Division, State and/or Territory?
• If 'YES', the liable person or financial controller is required to
apportion the expenditure on express coverage matter between the
Divisions, States and/or Territories to which it relates in the manner
they are reasonably satisfied reflects the distribution of the electoral
matter and continue to Step 3.
• If 'NO', continue straight to Step 3.
Express coverage matter for more than one Division, State and/or
Territory test (subsection 302ALC(2))
• YES--as identified at Step 1, the electoral matter is express coverage
matter for candidates Division of Dobell (Patrick) and NSW (Aarti).
The QAP registered officer is the liable person for the QAP. The registered
officer is now required to apportion the $1 million between the Division of
Dobell and the Senate cap for NSW. The apportionment must be in a manner
the registered officer is reasonably satisfied reflects the distribution of the
electoral matter in the Division of Dobell and NSW more broadly.
Based on the broadcast of the electoral matter, the registered officer apportions:
• 20% of the expenditure to the Division of Dobell ($200,000)--'Amount
A'; and
• 80% of the expenditure to the Senate cap for NSW ($800,000)--
'Amount B'.
Continue to Step 3 to determine if each of these amounts (A and B) of electoral
expenditure is targeted to a Division, State or Territory.
Step 3--Determine whether the electoral expenditure on the express coverage
matter is targeted to each Division, State or Territory? (subsection 302ALC(1)
• If 'YES' to all paragraphs of subsection 302ALC(1)
o dominant purpose test (paragraph (a));
o express coverage matter test (paragraph (b)); and
o not mainly communicated outside test (paragraph (c))
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the electoral expenditure is targeted to that Division, State or Territory
and the apportionment (Step 2) is allocated the relevant Divisional or
Senate caps (and the Federal cap).
• If 'NO' to any of the tests in subsection 302ALC(1)--the electoral
expenditure is not targeted to that Division, State or Territory and the
apportionment (Step 2) is allocated only to the Federal cap.
Division of Dobell (Patrick)--Amount A
Dominant purpose test (paragraph 302ALC(1)(a))
• YES--the expenditure was for the dominant purpose of creating or
communicating electoral matter.
Express coverage matter test (paragraph 302ALC(1)(b))
• YES--as identified at Step 1.
Not mainly communicated outside test (paragraph 302ALC(1)(c))
• NO--as the advertisement was distributed to all Divisions across the
State, the electoral matter was mainly communicated to electors outside
the Division of Dobell.
Therefore, the $200,000 (20%) spent on express coverage matter for the
Division of Dobell is not targeted to the Division of Dobell and is not counted
towards the Divisional cap for Dobell. However, it is counted towards the
Federal cap.
NSW (Aarti)--Amount B
Dominant purpose test (paragraph 302ALC(1)(a))
• YES--the expenditure was for the dominant purpose of creating or
communicating electoral matter.
Express coverage matter test (paragraph 302ALC(1)(b))
• YES--as identified at Step 1.
Not mainly communicated outside test (paragraph 302ALC(1)(c))
• NO--as the advertisement was not mainly communicated to electors
outside the State of NSW.
Therefore, the $800,000 (80%) spent on express coverage matter for NSW is
targeted to NSW and counted towards the Senate cap for NSW. It is also
counted towards the Federal cap.
Final apportionment
$1 million to the Federal cap for the QAP and its expenditure group, within
the Federal cap, the final apportionment as targeted electoral expenditure:
• $800,000 to the Senate cap for NSW
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Note: as the 20% apportioned to the Division of Dobell as express coverage
matter was not electoral expenditure targeted to the Division of Dobell under
the test in Step 3, the 20% ($200,000) only counts to the Federal cap.
452. New section 302ALD identifies the kind of expenditure to which the by-election
or Senate-only election caps apply, being electoral expenditure incurred by a
person or entity in the by-election period of a by-election, or the Senate-only
election period of a Senate election, for the purpose of that by-election or Senate-
only election.
453. A Note is included under section 302ALD to clarify that expenditure captured by
the by-election and Senate-only election caps does not count towards the calendar
year expenditure caps. This distinction is highlighted throughout the following
Subdivisions and in new section 302AQB, which clarifies this treatment further
through a specific exception from civil penalty provisions that apply for the
calendar year caps.
454. New section 302ALE inserts the substantive definition of 'acceptable expenditure
action', signposted in section 302ALA. Subsection 302ALE(1) provides that
acceptable expenditure action is taken in relation to an amount of electoral
expenditure if:
• the expenditure of the amount is cancelled or reversed; or
• the recipient of the expenditure repays an amount equivalent to the amount to
the person or entity that incurred the expenditure; or
• the person or entity that incurred the expenditure or if the person or entity is a
member of a registered political party's expenditure group, a member of that
group, transfers an equivalent amount to the Commonwealth.
455. This definition is important as it is linked to the exception to the civil penalty
provision for the expenditure caps (new section 302AQA refers).
456. New paragraph 302ALE(1)(c) allows the registered political party, or a member
of its expenditure group, to take action in relation to an amount of particular
expenditure by another member of the group for the purpose of taking acceptable
expenditure action in relation to a civil penalty provision in Subdivision C. The
acceptable expenditure action must be taken with respect to the excess amount,
not in relation to an earlier transaction. This is appropriate because a registered
political party and members of its expenditure group, share a common
expenditure cap and require flexibility for how they construct and manage their
campaigns.
Example--'acceptable expenditure action' taken by a registered political
party or connection
The Quokka Party NSW (QP NSW) is a State branch of the Quokka Australia
Party (QAP) registered political party. Sara is a House of Representatives
candidate endorsed by QP NSW in the Division of Newcastle.
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The QP NSW and Sara are members of the QAP's expenditure group and
therefore they all share a Divisional cap in relation to electoral expenditure
targeted to the Division of Newcastle.
Sara decides to purchase extra advertising space on local billboards to boost
her profile, the cost is $30,000. This expenditure meets the definition of
electoral expenditure targeted to a Division under 302ALC.
Prior to Sara incurring this expenditure, the total amount incurred by QAP and
its expenditure group members targeted the Division of Newcastle was
$790,000. Sara did not know (and could not reasonably have been expected to
know) that in purchasing the billboard space the Divisional cap will be
breached, and she purchases the space.
One week later the QP NSW party registered officer sees the invoice receipt
and becomes aware that Sara has caused the QAP's expenditure group to
exceed the Divisional cap by $20,000. The registered officer contacts Sara.
Sara and the registered officer of the QP NSW contact the registered officer of
the QAP (federal branch) and decide that the registered officer of the QP NSW
will take acceptable expenditure action in relation to the excess expenditure
($20,000) by cancelling $20,000 worth of the billboard advertising (which is
permitted under the terms of the agreement Sara has with the advertiser).
Acceptable expenditure action has been taken in relation to the excess amount
of electoral expenditure. The exception of acceptable expenditure action is
available as an exception to the civil penalty (section 302AQA refers).
No further electoral expenditure can be incurred targeted at the Division of
Newcastle by the QAP or its expenditure group.
457. For clarity, liability for breaches of expenditure caps still rests with the liable
person for the registered political party or the member of the expenditure group
that incurs the particular expenditure. Further information regarding the operation
of civil penalty contraventions in Subdivision C is included below.
458. New subsections 302ALE(2) and (3) clarify the effect of acceptable expenditure
action on calculating total expenditure. Subsection 302ALE(2) provides that
nothing in the Division prevents the taking of acceptable expenditure action in
relation to an amount that is not an excess amount.
459. New subsection 302ALE(3) clarifies that once an expenditure cap has been
exceeded, even if acceptable expenditure action is taken for an amount greater
than the excess, there is no way to subsequently reduce the total electoral
expenditure to an amount that is below the relevant expenditure cap. This ensures
that there is no ongoing incentive for a person or entity to use the acceptable
expenditure action mechanism to circumvent the expenditure cap by transferring
equivalent amounts to the Commonwealth as a 'cost of doing business.'
460. New section 302ALF sets out the definition of 'expenditure group', and the
meaning of the related term 'core member of an expenditure group'.
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461. New subsection 302ALF(1) provides that each registered political party, if it is
not a State branch of another registered political party nor related to another
registered political party in the way described in paragraph 302ALF(1)(b), has an
'expenditure group'. The registered political party that satisfies this subsection is
taken to be the 'group owner' of the expenditure group.
462. An expenditure group is made up of:
• the following, who are the 'core members' of the expenditure group:
o the group owner;
o any State branch of the group owner (whether or not the State branch
is itself a registered political party);
o any candidate endorsed by the group owner or by a State branch of the
group owner;
o any member of the House of Representatives or Senator who is a
member of the group owner or of a State branch of the group owner;
o any nominated entity of the group owner or State branch of the group
owner; and
• any registered political party that, while not a State branch of the group
owner, is related to the group owner within the meaning of paragraph
123(2)(a) of the Electoral Act because it is part of the group owner;
• any candidate endorsed by a registered political party that, while not being a
State branch of the group owner, is related to the group owner within the
meaning of paragraph 123(2)(a) of the Electoral Act because it is part of the
group owner;
• any member of the House of Representatives or Senator who is a member of
any registered political party that, while not being a State branch of the group
owner, is related to the group owner within the meaning of paragraph
123(2)(a) of the Electoral Act because it is part of the group owner; or
• any nominated entity of a registered political party that, while not being a
State branch of the group owner, is related to the group owner within the
meaning of paragraph 123(2)(a) of the Electoral Act because it is part of the
group owner.
463. This means that for the purpose of the expenditure cap, person or entities that fall
within the list at subsection 302ALF(1) are members of the same expenditure
group, and share a common expenditure cap.
464. A registered political party and members of its expenditure group are aggregated
because of the proximity of their relationship, in that they share an operational
structure and common objective, being the promotion of election to the Senate or
to the House of Representatives of a candidate or candidates endorsed by the
registered political party.
465. Note 1 included under subsection 302ALF(1) clarifies that associated entities,
significant third parties and third parties are not members of a registered political
party's expenditure group for the purposes of this Division.
97
466. Note 2 directs the reader to subsections 287(8) to (8D), which relate to the
treatment of branches of significant third parties, third parties and associated
entities for the purpose of Part XX.
467. New subsection 302ALF(2) provides that, if a person or entity is a member of
more than one expenditure group, then electoral expenditure incurred by the
person or entity is counted towards the total electoral expenditure of each
expenditure group. This applies for the purposes of the Divisional cap, the State
cap, and the Federal cap.
468. An example after subsection 302ALF(2) illustrates the operation of the
subsection. In the example, the Wombat-Quokka Party (SA) is a member of two
expenditure groups, and therefore its $50,000 of electoral expenditure is 'double-
counted' such that $50,000 is counted towards one group's expenditure caps and
$50,000 is counted towards the other group's expenditure caps.
Subdivision C--Expenditure caps for registered political party expenditure groups
469. New Subdivision C--Expenditure caps for registered political party expenditure
groups inserts expenditure cap civil penalty provisions that apply to registered
political parties and members of the party's expenditure group (as defined in
section 302ALF). Expenditure caps will apply annually, with additional caps for
special elections.
470. Annually, a registered political party and members of its expenditure group are
subject to an overall 'Federal cap' on electoral expenditure. Within the Federal
cap there is an annual 'Divisional cap' per House of Representatives Division,
and an annual 'Senate cap' for each State or Territory. The Divisional and Senate
caps apply to electoral expenditure 'targeted' to that particular Division, State or
Territory, within the meaning of new section 302ALC. For clarity, the Divisional
and Senate caps sit within the Federal cap. That is, expenditure counted towards
either of those caps is also counted towards the Federal cap (see figure 8 below).
471. Additionally, a registered political party and members of its expenditure group
are subject to a 'by-election cap' and 'Senate-only election cap'. Electoral
expenditure captured by these special election caps is outlined in new section
302ALD, discussed above. These caps are separate and in addition to the
calendar year caps, and expenditure counted towards these caps is not counted
towards the Federal cap.
Federal cap
Senate-only
By-election cap
election cap
Divisional cap(s) Senate cap(s) (If applicable)
Figure 8.
472. The operation of the expenditure cap civil penalty provisions contained in new
sections 302AMA--302AME are generally consistent. Common elements of the
expenditure caps include:
98
• if an expenditure cap is exceeded the person liable to a civil penalty is the
'liable person' for the registered political party or the member of the party's
expenditure group (as defined in new subsection 302ALA) that incurred the
particular electoral expenditure.
• the civil penalty for breaching an expenditure cap under these sections is the
higher of 1,000 penalty units or 3 times the excess amount of the particular
expenditure. The civil penalty for a contravention of these provisions applies
to the liable person.
• the value of the civil penalties in this Subdivision are an appropriate
deterrent, set at a level that reflects the potential impact that a breach of the
expenditure caps could have on the outcome of an election and the integrity
of electoral processes. The penalty of 1000 penalty units or 3 times the excess
amount of the particular expenditure is a maximum value, and judicial
discretion may be exercised by the courts subject to the specific
circumstances of a particular case. Additionally, the Schedule includes
appropriate exceptions to the civil penalty provisions for persons or entities
that inadvertently breach the expenditure caps and take acceptable
expenditure action within the prescribed times, this ensures that electoral
participation is not discouraged by the civil penalties.
• expenditure caps under these sections are exceeded if a member of a
registered political party's expenditure group incurs electoral expenditure that
when taken with the total value of expenditure incurred by the party's
expenditure group members for the calendar year (or by-election/Senate-only
election period as applicable) is in excess of the particular cap. An exception
to the civil penalty provision is available to a person who did not know and
could not reasonably have been expected to know that the cap had been
exceeded (new section 302AQA refers--see discussion below).
• the 'excess amount of the particular expenditure' (relevant to calculation of
the maximum civil penalty) is equal to the amount of the particular
expenditure, if prior to incurring the particular expenditure the total value of
electoral expenditure to date was already equal to or more than the cap. If the
particular expenditure itself brings the cumulative total expenditure into
excess of the particular cap, the 'excess amount of the particular expenditure'
is the portion of the particular expenditure that exceeds the cap.
• new section 302ARC provides that, if there is more than one general election
held in the same calendar year, on the issue of the writs for the subsequent
election the annual electoral expenditure caps reset (being, for Subdivision C,
the Federal cap, Divisional cap and Senate cap).
'Federal cap'
473. New section 302AMA provides for a person to be liable to a civil penalty for the
exceeding of the registered political party 'Federal cap' in a calendar year.
'Federal cap' is defined in subsection 302ALA to mean $90 million. This amount
is indexed under new subsection 321AB, inserted by Item 5 of this Schedule.
474. The $90 million Federal cap is set at a level that strikes an appropriate balance
between allowing a major party to run an effective national campaign and
implementing a reasonable ceiling on electoral expenditure.
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475. The value of the Federal cap is less than the total value of the sum of all
Divisional and Senate caps combined. This means that the Federal cap acts as an
upper limit on major party electoral expenditure. This is to balance the incidental
campaign benefits that may result from large scale national campaigning,
levelling the playing field between major parties and minor parties or
independent candidates running smaller campaigns with less incidental exposure.
476. Further, analysis of 'total payments' reported by registered political parties in
Political Party Annual Returns on the AEC Transparency Register shows that if
the Federal cap had been in place between 2009-10 and 2022-23, the Federal cap
would only have impacted the expenditure of the Australian Labor Party, the
Liberal Party of Australia, as well as the United Australia Party which incurred
significant electoral expenditure in the 2019 and 2022 federal elections,
disproportionate to the party's relative vote share.44
477. There are limitations in relation to this analysis as the amounts reported in annual
returns include expenditure that would not be electoral expenditure, and therefore
not subject to the expenditure cap. Further, by-election spending, which would be
subject to a separate cap, may be included, as may internal party transfers that
would be exempted from the cap. Certain electoral expenditure may also be
missing from these amounts, such as expenditure by endorsed candidates.
478. However, this analysis indicates that the Federal cap will operate as a constraint
on the spending behaviour of political parties as well as other political entities,
and only be likely to moderate the spending of the largest participants in federal
elections. This will serve to prevent the skewing of debate by large expenditures,
and better support other participants have a meaningful opportunity to participate.
Table 5. Application of the 'Federal cap' to registered political party
'total payments' 2009-10 to 2022-23 (indexed to 2022-23 disclosure threshold),
if cap value were back indexed in 2024-25 values (rounded to 2 decimal places),
and the percentage that is in excess of the cap.
Year Political party Total ($m) Excess ($m) % over cap
2010-11 Australian Labor Party 87.90 26.66 30.3
Liberal Party of
2010-11 109.09 47.85 43.9
Australia
2013-14 Australian Labor Party 79.30 13.26 16.7
Liberal Party of
2013-14 128.72 62.68 48.7
Australia
Liberal Party of
2014-15 77.31 9.14 11.8
Australia
44
Australian Electoral Commission, '2009-10 Annual Political Party Returns', AEC Transparency
Register (Web Page, 31 July 2024) ; Australian
Electoral Commission, '2022-23 Annual Political Party Returns', AEC Transparency Register
(Web Page, 31 July 2024) .
100
Liberal Party of
2016-17 99.27 28.97 29.2
Australia
2018-19 Australian Labor Party 121.76 48.27 39.6
Liberal Party of
2018-19 159.53 86.04 53.9
Australia
2018-19 United Australia Party 89.45 15.96 17.8
2021-22 Australian Labor Party 115.90 38.68 33.4
Liberal Party of
2021-22 117.29 40.10 34.2
Australia
2021-22 United Australia Party 123.49 46.27 37.5
Liberal Party of
2022-23 125.94 45.00 35.7
Australia
2022-23 Australian Labor Party 82.11 1.16 1.4
479. Under new subsection 302AMA(1), the Federal cap is exceeded if the registered
political party or a member of the party's expenditure group incurs electoral
expenditure in a calendar year and, at that point in time, including that particular
electoral expenditure, the total amount of electoral expenditure incurred by the
party's expenditure group combined exceeds the Federal cap. An exception
applies where the relevant person did not know and could not reasonably have
been expected to know that the cap had been exceeded.
480. New subsection 302AMA(2) clarifies how to determine what portion (if any) of a
particular expenditure is in excess of the Federal cap, for the purposes of this
section (in particular, for the purpose of subsection 302AMA(4)(b)). For a
particular amount of expenditure, it is the portion of the amount that is above the
cap that is the excess, and to which acceptable expenditure action may be taken if
section 302AQA (exception--acceptable expenditure action) is to be satisfied or
the liable person will generally have contravened the provision and may be
subject to a civil penalty.
481. New subsection 302AMA(3) clarifies, for the avoidance of doubt, that electoral
expenditure targeted to a Division, State or Territory, is also electoral expenditure
that counts towards the Federal cap.
482. A Note is included under subsection 302AMA(3) to distinguish that expenditure
incurred in relation to the by-election cap and Senate-only election cap does not
count towards the Federal cap. These special election amounts are capped
separately to the ongoing annual expenditure caps for a party and its expenditure
group.
483. New subsection 302AMA(4) sets the civil penalty for a contravention of the
Federal cap as the higher of 1,000 penalty units or 3 times the excess amount of
the particular expenditure. This penalty is proportionate to the expenditure cap
values to ensure that the value is sufficiently high to prevent entities from
viewing the fine as simply 'the cost of doing businesses, but not so burdensome
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as to place a disproportionate burden on political communication. Proportionality
is further supported by the ability for a person to take acceptable expenditure
action in certain instances of inadvertent breaches of the caps, as discussed
above. It is necessary to provide penalties to act as a deterrent and ensure the
measures in the Bill providing for the integrity of the electoral process and
promoting equality of opportunity are respected.
484. This deterrent to breaching an expenditure cap needs to apply to all persons and
entities participating in electoral campaigning, and accordingly, the same
maximum penalty value applies to contraventions of all expenditure caps.
'Divisional cap'
485. New section 302AMB provides for a person to be liable to a civil penalty for the
exceeding of the 'Divisional cap' in a calendar year. Divisional cap is defined in
new section 302ALA to mean $800,000. This amount is indexed annually under
new subsection 321AB.
486. The Divisional caps apply to electoral expenditure that is 'targeted' to a Division,
in accordance with new section 302ALC. This provides a calibrated mechanism
that is intended to 'level the playing field' for an election for an electoral
Division, within the context of a federal election, by preventing a political party
from drowning out the voices of other political participants in a particular
Division through disproportionally directing expenditure at a particular
Divisional contest.
487. Consistent with other expenditure cap contraventions under Subdivision C,
liability for breaches of a Divisional cap rest with the liable person for a member
of a registered political party's expenditure group, dependent upon which
member has incurred the particular expenditure that has exceeded the cap.
488. The Divisional cap is breached if a registered political party's expenditure group
incurs electoral expenditure targeted to a Division (as defined in new section
302ALC) and, at the time that particular expenditure was incurred, the total
electoral expenditure targeted to that Division (including the particular
expenditure) exceeds the Divisional cap. An exception applies where the relevant
person did not know and could not reasonably have been expected to know that
the cap had been exceeded (new section 302AQA refers below).
489. Note 1 under subsection 302AMB(1) directs the reader to Subdivision G of
Division 3AB for instances where expenditure does not count towards the cap for
the purpose of the application of the civil penalty provisions and the exception
for acceptable expenditure action. Further, this Note directs readers to section
95 of the Regulatory Powers Act that deals with mistakes of fact.
490. Note 2 directs the reader to the meaning of electoral expenditure 'targeted' to a
Division in section 302ALC, outlined above.
491. An example is included under subsection 302AMB(1) to illustrate the
relationship between the registered political party and members of its expenditure
group, and the nature of the Divisional cap as contributing to the Federal cap.
492. New subsection 302AMB(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the Divisional cap, consistent with
subsection 302AMA(2) above.
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493. New subsection 302AMB(3) sets the civil penalty for a contravention of the
Divisional cap as the higher of 1,000 penalty units or 3 times the excess amount
of the particular expenditure.
'Senate cap'
494. New section 302AMC provides for a person to be liable to a civil penalty for the
exceeding of the 'Senate cap' for a State or Territory in a calendar year. 'Senate
cap' is defined in new subsection 302ALA to mean the Senate base amount
(defined as $200,000, indexed under section 321AB) multiplied by the number of
Divisions in the relevant State or Territory. The Senate cap values, calculated as
they would apply at commencement of this Schedule, are included at Table 6
below.
Table 6. Registered political party (and expenditure group) Senate cap
State/Territory Formula Senate cap
(Senate base amount × number of
Divisions in a State or Territory)
NSW ($200,000 × 46) $9,200,000
VIC ($200,000 × 38) $7,600,000
QLD ($200,000 × 30) $6,000,000
WA ($200,000 × 16) $3,200,000
SA ($200,000 × 10) $2,000,000
TAS ($200,000 × 5) $1,000,000
ACT ($200,000 × 3) $600,000
NT ($200,000 × 2) $400,000
Table 6. Based on the number of Divisions each State and Territory is entitled to as on
1 November 2024. Note that the 'Senate base amount' which affects the 'Senate cap' and
'Senate-only election cap' is indexed under section 321AB.
495. The Senate caps apply to electoral expenditure that is 'targeted' to a Senate
election in a particular State of Territory, in accordance with new section
302ALC. As with the Divisional caps, this is a mechanism that recognises that
while electoral matter for political parties (particularly major political parties) is
often communicated on a national scale, electoral expenditure is only subject to
the Senate cap if it expressly mentions the name, or includes an image or likeness
of, a candidate for the Senate for the State or Territory, or expressly mentions a
Senate election for the State or Territory, and is substantially directed at electors
in that State or Territory.
496. This is intended to level the playing field for an election for a Senate election for
a particular State or Territory, within the context of a federal election, by
preventing a political party from drowning out the voices of other political
participants in particular States or Territories through disproportionally directing
expenditure at a particular State or Territory.
497. Consistent with other expenditure cap contraventions under Subdivision C,
liability for breaches of a Senate cap rest with the liable person for a member of a
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registered political party's expenditure group, dependent upon which member has
incurred the particular expenditure that has exceeded the cap.
498. The Senate cap is breached if a registered political party's expenditure group
incurs electoral expenditure targeted to a State or Territory (as defined in new
section 302ALC) and at the time that particular expenditure was incurred, the
total electoral expenditure targeted to that State or Territory (including the
particular expenditure) exceeds the 'Senate cap' for that State or Territory. An
exception applies where the relevant person did not know and could not
reasonably have been expected to know that the cap had been exceeded (new
section 302AQA refers below).
499. Note 1 and Note 2 included under new subsection 302AMC(1) are consistent
with the Notes included under new subsection 302AMB(1) outlined above, as
applied to expenditure targeted to a State or Territory.
500. New subsection 302AMC(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the Senate cap, consistent with
subsection 302AMA(2) above.
501. New subsection 302AMC(3) sets the civil penalty for a contravention of the
Senate cap as the higher of 1,000 penalty units or 3 times the excess amount of
the particular expenditure.
'By-election cap'
502. New section 302AMD sets out the by-election expenditure cap for a registered
political party and members of its expenditure group. The by-election cap applies
to electoral expenditure incurred for the purpose of the by-election, in the by-
election period--being the period from the issue of the writ until the end of
polling day for the election. This cap is separate and in addition to the Federal
cap, outlined above at section 302AMA.
503. 'By-election cap' is defined in new subsection 302ALA to mean 120% of the
Divisional cap. The by-election cap value, calculated as it would apply for a
by-election held in the calendar year in which this Schedule commences, would
be $960,000 (120% × $800,000). This is consistent with the 20% uplift applied to
Independent House of Representatives candidates and members, and to capped
expenditure entities, for a by-election, provided for respectively in new sections
302ANB and 302APD below.
504. New section 302AMD provides for a person to be liable to a civil penalty for the
exceeding of the by-election cap consistent with the other contravention
provisions in Subdivision C.
505. The by-election cap is breached if a registered political party's expenditure group
incurs electoral expenditure for the purposes of the by-election, and at the time
that particular expenditure was incurred, the total expenditure incurred in the by-
election period, for the purpose of the by-election by the party's expenditure
group (including the particular expenditure) is in excess of the by-election cap.
An exception applies where the relevant person did not know and could not
reasonably have been expected to know that the cap had been exceeded (new
section 302AQA refers below).
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506. Note 1 under subsection 302AMD(1) directs the reader to Subdivision G of
Division 3AB for instances where expenditure does not count towards the cap for
the purpose of the application of the civil penalty provisions and the exception
for acceptable expenditure action. Further, this Note directs readers to section 95
of the Regulatory Powers Act, which deals with mistakes of fact.
507. Note 2 directs the reader to the meaning of 'by-election period' as defined in new
subsection 302ALA. Note 3 clarifies that the by-election cap is separate, and in
addition to, the Federal cap, Divisional cap and Senate cap outlined above.
508. New subsection 302AMD(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the by-election cap, consistent with
subsection 302AMA(2) above.
509. New subsection 302AMD(3) sets the civil penalty for a contravention of the
by-election cap as the higher of 1,000 penalty units or 3 times the excess amount
of the particular expenditure.
'Senate-only election cap'
510. New section 302AME sets out the Senate-only election cap for a registered
political party and members of its expenditure group. The Senate-only election
cap applies to electoral expenditure incurred for the purpose of the Senate-only
election in the Senate-only election period--being the period from the issue of
the writ until the end of polling day for the election.
511. 'Senate-only election cap' is defined in new subsection 302ALA to mean
120% of the Senate cap for the relevant State or Territory. This is consistent with
the 20% uplift applied to Independent Senate candidates and Senators, and to
capped expenditure entities, for a Senate-only election, provided for in new
sections 302AOB and 302APE below. The Senate-only election cap values,
calculated as they would apply at commencement of this Schedule, are included
at Table 7 below.
Table 7. Registered political party (and expenditure group) Senate-only election
cap
State/Territory Formula Senate-only
(120% of the Senate cap) election cap
NSW ($200,000 × 46) × 120% $11,040,000
VIC ($200,000 × 38) × 120% $9,120,000
QLD ($200,000 × 30) × 120% $7,200,000
WA ($200,000 × 16) × 120% $3,840,000
SA ($200,000 × 10) × 120% $2,400,000
TAS ($200,000 × 5) × 120% $1,200,000
ACT ($200,000 × 3) × 120% $720,000
NT ($200,000 × 2) × 120% $480,000
Table 7. Based on the number of Divisions each State and Territory is entitled to as on
1 November 2024. Note that the 'Senate base amount' which affects the 'Senate cap' and
'Senate-only election cap' is indexed under section 321AB.
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512. New section 302AME provides for a person to be liable to a civil penalty for the
exceeding of the Senate-only election cap, consistent with the other civil penalty
provisions in Subdivision C.
513. The Senate-only election cap is breached if a member of the registered political
party's expenditure group, incurs electoral expenditure for the purposes of the
Senate-only election and, at the time that particular expenditure was incurred, the
total expenditure incurred by the party's expenditure group (including the
particular expenditure) in the Senate-only election period, for the purpose of the
Senate-only election, is in excess of the Senate-only election cap. An exception
applies where the relevant person did not know and could not reasonably have
been expected to know that the cap had been exceeded.
514. Note 1 under subsection 302AME(1) directs the reader to Subdivision G of
Division 3AB for instances where expenditure does not count towards the cap for
the purpose of the application of the civil penalty provisions and an exception for
acceptable expenditure action. Further, this Note directs to section 95 of the
Regulatory Powers Act that deals with mistakes of fact.
515. Note 2 directs the reader to the meaning of 'Senate-only election period' as
defined in new subsection 302ALA. Note 3 clarifies that the Senate-only election
cap is separate, and in addition to, the Federal cap, Divisional cap and Senate cap
outlined above.
516. New subsection 302AME(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the Senate-only election cap, consistent
with subsection 302AMD(2) above.
517. New subsection 302AME(3) sets the civil penalty for a contravention of the
Senate-only election cap as the higher of 1,000 penalty units or 3 times the excess
amount of the particular expenditure.
Subdivision D--Expenditure caps for Independent House of Representatives
candidates or members
518. New Subdivision D inserts expenditure cap civil penalty provisions for
Independent House of Representatives candidates and members (as defined in
new subsection 302ALA). The expenditure cap applies for a calendar year, and a
separate expenditure cap applies for a by-election.
519. The annual expenditure cap applies to all electoral expenditure incurred by an
Independent House candidate or member in a calendar year (other than certain
expenditure for a by-election). In effect, this operates as the 'Federal cap' at new
section 302AMA does for a registered political party. For the avoidance of doubt,
this cap includes targeted and non-targeted electoral expenditure.
520. Liability for contraventions of the expenditure caps in this Subdivision apply to
the member or candidate. The value and justification of the civil penalty for
contraventions in this Subdivision are consistent with the discussion of civil
penalties in relation to Subdivision C above.
521. As the expenditure cap applies over a calendar year, if a person changes status in
a calendar year, there is no change to their expenditure cap for the year. For
example, if an Independent House candidate is elected and becomes a sitting
member in a calendar year there is no change to their expenditure cap for year.
106
'Independent House of Representatives cap'
522. New subsection 302ANA provides for an Independent House candidate or
member to be liable to a civil penalty for exceeding the 'Independent House of
Representatives cap'. This cap is defined in new subsection 302ALA to mean the
Divisional cap, which is defined to mean $800,000. This amount is indexed
annually under new section 321AB, inserted by Item 5 of this Schedule.
523. It is noted that the maximum expenditure cap available to an independent
candidate for the Legislative Assembly running in the 2027 NSW State election
is $225,800.45 This is not, however, directly comparable as the NSW cap applies
over an approximately 6 month capped expenditure period, to a smaller
geographic area, and due to different definitions of 'electoral expenditure'
between jurisdictions.
524. Analysis of electoral expenditure reported by independent candidates in election
returns on the AEC Transparency Register shows that if the Independent House
of Representatives cap had been in place for the 2022 and 2019 federal elections,
and the value of the cap was back-indexed for 2024-25 values, eight independent
candidates would have exceeded the cap,46and one candidate would have
exceeded the cap for the 2019 federal election.47 Consistent with the application
to registered political parties discussed above, the expenditure caps would only
be likely to moderate the spending of those at the upper range of spending.
525. Expenditure information available on the AEC Transparency Register from both
the 2016 and 2022 previous federal elections shows that Independents have run
successful campaigns for less than the cap of $800,000 (when back-indexed).
Notably, in the 2022 federal election (figures not back-indexed):
• Helen Haines (incumbent) reported $341,870 in total electoral expenditure; 48
• Dai Le reported $161,131 in total electoral expenditure;49
• Andrew Wilkie (incumbent) reported $103,301 in total electoral
expenditure.50
45
NSW Electoral Commission, 'What are the expenditure caps for state elections?', Caps on electoral
expenditure (Web Page, 14 May 2024) .
46
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns', AEC
Transparency Register (Web Page, 31 July 2024) SPENDER, Allegra May ($2,124,058); RYAN,
Monique Marie ($2,122,231), DANIEL, Zoe ($973,224), SCAMPS, Sophie Anna ($1,558,960), TINK,
Kylea Jane ($1,379,196), CHANEY, Katherine Ella ($973,224), STEGGALL, Zali ($768,323),
PRIESTLY, Robert Anthony ($702,286) .
47
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns', AEC
Transparency Register (Web Page, 31 July 2024) STEGGALL, Zali ($910,893)
.
48
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024) HAINES, Helen Mary
.
49
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024) LE, Dai Trang
.
50
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024) WILKIE, Andrew Damien
.
107
526. Under new subsection 302ANA(1), the Independent House of Representatives
cap is breached if in a calendar year an Independent House candidate or member
incurs electoral expenditure that, when taken with the total expenditure of that
candidate or member, is in excess of the cap. An exception applies where the
candidate or member did not know and could not reasonably have been expected
to know that the cap had been exceeded (new section 302AQA refers below).
527. The Note under subsection 302ANA(1) directs the reader to Subdivision G of
Division 3AB for instances where expenditure does not count towards the cap for
the purpose of the application of the civil penalty provisions and an exception for
acceptable expenditure action. Further, this Note directs to section 95 of the
Regulatory Powers Act that deals with mistakes of fact.
528. New subsection 302ANA(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the Independent House of
Representatives cap, consistent with subsection 302AMA(2) above.
529. New subsection 302ANA(3) sets the civil penalty for a contravention of the
Independent House of Representatives cap as the higher of 1,000 penalty units or
3 times the excess amount of the particular expenditure.
530. Consistent with the calendar year caps for all persons and entities, new section
302ARC provides that, if there is more than one general election held in the same
calendar year, on the issue of the writs for the subsequent election, the annual
electoral expenditure caps reset. The operation of this section is discussed in
detail below.
'Independent House of Representatives by-election cap'
531. New subsection 302ANB provides for a person to be liable to a civil penalty for
the exceeding of the 'Independent House of Representatives by-election cap'.
This cap is defined in new subsection 302ALA to mean 120% of the
'Independent House of Representatives cap'. The calculated value as it would
apply for a by-election held in the calendar year in which this Schedule
commences would be $960,000 (120% × $800,000). This is consistent with the
20% uplift applied to the registered political party by-election cap and to the
capped entity by-election cap, provided for respectively in new section 302AMB
above and new section 302APD below.
532. The cap applies to expenditure for the purpose of the by-election, incurred during
the by-election period, being from the issue of the writ until the end of polling
day for the election. 'Independent House of Representatives by-election cap' as
defined in 302ALA above, sets the value of the cap for a by-election, as 120% of
the Divisional cap that applies on the day the writ for the by-election is issued.
This means that, if a by-election period crosses over two calendar years, the cap
does not reset, it remains set at the value from the issue of the writ. This provides
necessary consistency for candidates contesting by-elections.
Example--operation of the 'Independent House of Representatives
by-election cap' across calendar years
Louise is an Independent House of Representatives candidate running in a
by-election for the Division of Gilmore.
108
The writ for the by-election is issued on 9 December 2024. The polling date
for the by-election is fixed for 11 January 2025.
The Independent House of Representatives by-election cap applies to all
electoral expenditure incurred by Louise in relation to that by-election, in the
by-election period between the 9 December 2024 and the 11 January 2025.
Unlike annual caps, the value of the cap for that by-election does not reset on
1 January 2025.
533. The civil penalty for a contravention of section 302ANB is consistent with the
Independent House of Representatives cap at 302ANA above.
534. For clarity, the Independent House of Representatives by-election cap is separate
and in addition to the annual Independent House of Representatives cap at
section 302ANA above.
535. New section 302ANC clarifies the application of expenditure caps under
Subdivision D. New subsection 302ANC(1) provides that this section applies to
references of electoral expenditure incurred by an Independent House candidate
or member in a period.
536. New subsections 302ANC(2) and (3) clarify, for the avoidance of doubt, that
electoral expenditure incurred by an Independent House candidate or member is
only counted once, even if a person is both a candidate and sitting member at the
same time in a year and even if the person changes from being a candidate to
being a sitting member.
Subdivision E--Expenditure caps for Independent Senate candidates or Senators
537. New Subdivision E inserts expenditure cap civil penalty provisions for
Independent Senate candidates and Senators (as defined in new subsection
302ALA). The expenditure cap applies for a calendar year, and a separate
expenditure cap applies for a Senate-only election.
538. The annual expenditure cap applies to all electoral expenditure incurred by an
Independent Senate candidate or Senator in a calendar year (other than certain
expenditure for a Senate-only election). In effect, this operates as the 'Federal
cap' at new section 302AMA does for a registered political party. For the
avoidance of doubt, this cap includes targeted and non-targeted electoral
expenditure.
539. Liability for contraventions of the expenditure caps in this Subdivision apply to
the Senator or candidate. The value and justification of the civil penalty for
contraventions in this Subdivision are consistent with the discussion of civil
penalties in relation to Subdivision C above.
540. If an Independent Senate candidate changes 'status' during a calendar year, for
example, where they are elected and become a Senator, there is no change to their
expenditure cap.
'Independent Senate cap'
541. New section 302AOA imposes the 'Independent Senate cap' for an Independent
Senate candidate or Senator for a calendar year. The 'Independent Senate cap' is
109
defined in new subsection 302ALA to mean, for a particular State or Territory,
the Senate base amount (defined as $200,000, indexed under section 321AB)
multiplied by the number of Divisions in that State or Territory, divided by 6 for a
State, or 2 for a Territory.
542. The values of 6 for a State and 2 for a Territory, reflect the number of seats
available in a half-Senate election. The Independent Senate cap values, calculated
as they would apply at commencement of this Schedule, are included at Table 8
below.
Table 8. Independent Senate cap
State/Territory Formula Expenditure cap
(Senate base amount × number of
Divisions in a State or Territory,
divided by 6 for a State and 2 for
a Territory)
NSW ($200,000 × 46) ÷ 6 $1,533,333
VIC ($200,000 × 38) ÷ 6 $1,266,667
QLD ($200,000 × 30) ÷ 6 $1,000,000
WA ($200,000 × 16) ÷ 6 $533,333
SA ($200,000 × 10) ÷ 6 $333,333
TAS ($200,000 × 5) ÷ 6 $166,667
ACT ($200,000 × 3) ÷ 2 $300,000
NT ($200,000 × 2) ÷ 2 $200,000
Table 8. Based on the number of Divisions each State and Territory is entitled to as on
1 November 2024. Note that the 'Senate base amount' which affects the 'Independent
Senate cap' and 'Senate-only election Independent Senate cap' is indexed under section
321AB.
543. It is noted that the maximum expenditure cap available to an independent
candidate for the Legislative Council running in the 2027 NSW State election is
$225,800.51 This is not, however, directly comparable as the NSW cap applies
over an approximately 6-month capped expenditure period and due to different
definitions of 'electoral expenditure' between jurisdictions.
544. The Independent Senate cap formula applies a proportional limitation on
Independent candidates when compared to the registered political party Senate
cap values (new section 302AMC, discussed above). This reflects that an
Independent candidate is only seeking election to 1 of the 6 Senate seats for a
half-Senate election (or 1 of 2 in a Territory), but a registered political party is
potentially fielding a full number of candidates in the Senate election.
545. New subsection 302AOA(1) provides for an Independent Senate candidate or
Senator to be liable to a civil penalty for exceeding the Independent Senate cap.
51
NSW Electoral Commission, 'What are the expenditure caps for state elections? Ungrouped
Legislative Council candidate at a general election', Caps on electoral expenditure (Web Page, 14 May
2024) .
110
The cap is breached if the Independent Senate candidate or Senator incurs
electoral expenditure in a calendar year which, when taken with the total
expenditure of that candidate or Senator is in excess of the cap. An exception
applies where the candidate or Senator did not know and could not reasonably
have been expected to know that the cap had been exceeded (new section
302AQA refers below).
546. A Note under subsection 302AOA(1) directs the reader to Subdivision G of
Division 3AB for instances where expenditure does not count towards the cap for
the purpose of the application of the civil penalty provisions and the exception
for acceptable expenditure action. Further, this Note directs to section 95 of the
Regulatory Powers Act that deals with mistakes of fact.
547. New subsection 302AOA(2) clarifies what portion of particular electoral
expenditure (if any) may be in excess of the Independent Senate cap, consistent
with subsection 302AMA(2) above.
548. New subsection 302AOA(3) sets the civil penalty for a contravention of the
Independent Senate cap as the higher of 1,000 penalty units or 3 times the excess
amount of the particular expenditure.
549. New section 302ARC provides that, if there is more than one general election
held in the same calendar year, on the issue of the writs for the subsequent
election, the annual electoral expenditure caps reset.
'Senate-only election Independent Senate cap'
550. New subsection 302AOB provides for a person to be liable to a civil penalty for
exceeding the 'Senate-only election Independent Senate cap'. This cap applies to
electoral expenditure for the purpose of a Senate-only election incurred during
the Senate-only election period--being the period from the issue of the writ for
the election until the end of polling day. This means that, if a Senate-only election
period crosses over two calendar years, the cap does not reset and remains set at
the value from the issue of the writ. This provides consistency for candidates
contesting Senate-only elections.
551. The term 'Senate-only election Independent Senate cap' is inserted by new
section 302ALA, discussed above. The term means, for a particular State or
Territory, 120% of the Independent Senate cap for that State or Territory. This is
consistent with the 20% uplift applied to other Senate-only election caps in this
Division. The Senate-only election Independent Senate cap values, calculated as
they would apply at commencement of this Schedule, are included at Table 9
below.
111
Table 9. Senate-only election Independent Senate cap
State/Territory Formula Expenditure cap
(120% of Independent Senate cap
for a State or Territory)
NSW $1,533,333 × 120% $1,840,000
VIC $1,266,667 × 120% $1,520,000
QLD $1,000,000 × 120% $1,200,000
WA $533,333 × 120% $640,000
SA $333,333 × 120% $400,000
TAS $166,667 × 120% $200,000
ACT $300,000 × 120% $360,000
NT $200,000 × 120% $240,000
Table 9. Based on the number of Divisions each State and Territory is entitled to as on 1
November 2024. Note that the 'Senate base amount' which affects the 'Independent
Senate cap' and 'Senate-only election Independent Senate cap' is indexed under section
321AB.
552. The civil penalty for contraventions of the Senate-only election Independent
Senate cap is consistent with the penalty for contravention of the annual
Independent Senate cap in 302AOA, discussed above.
553. Note 1 under subsection 302AOB(1) directs the reader to Subdivision G for
instances where expenditure does not count towards the cap for the purpose of
the application of the civil penalty provisions and an exception for acceptable
expenditure action. Further, this Note directs to section 95 of the Regulatory
Powers Act, which deals with mistakes of fact. Additionally, Note 2 directs to the
meaning of 'Senate-only election period' in section 302ALA. Note 3 clarifies that
the Senate-only election Independent Senate cap is separate and in addition to the
Independent Senate cap in section 302AOA.
554. New section 302AOC clarifies the application of expenditure caps in
Subdivision E. Consistent with the treatment of Independent House candidates or
members outlined in new section 302ANC above, expenditure incurred by an
Independent Senate candidate or Senator is only counted once, even if the person
is both a candidate and Senator at the same time, and even if the person changes
from being a candidate to being a sitting Senator.
Subdivision F--Expenditure caps for significant third parties, associated entities and
third parties
555. New Subdivision F establishes annual and special election expenditure caps for
'capped expenditure entities', defined in new subsection 302ALA to mean
significant third parties, associated entities and third parties. The structure of the
capped entity expenditure caps mirrors the structure of the registered political
party caps in Subdivision C, with differing values.
556. Annually, a capped entity is subject to an overall 'capped entity cap' on electoral
expenditure. Within the capped entity cap there is a 'capped entity Divisional
112
cap' per House of Representatives Division and 'capped entity Senate cap' for
each State or Territory. The capped entity Divisional and Senate caps apply to
electoral expenditure 'targeted' to that particular Division, State or Territory,
within the meaning of new section 302ALC. For clarity, the capped entity
Divisional and capped entity Senate caps sit within the capped entity cap. That is,
expenditure counted towards either of those caps is also counted towards the
overall 'capped entity cap' (see Figure 9 below).
557. Additionally, a capped entity is subject to a 'capped entity by-election cap' and a
'capped entity Senate-only election cap'. Electoral expenditure captured by these
special election caps is outlined in new section 302ALD, discussed above. These
caps are separate and in addition to the calendar year caps, and expenditure
counted towards these caps is not counted towards the capped entity cap.
Capped entity cap
Capped entity
Capped entity
Senate-only
by-election cap
election cap
Capped entity Capped entity
Divisional cap(s) Senate cap(s) (If applicable)
Figure 9.
558. The capped entity electoral expenditure caps inserted by sections 302APA--
302APE share the following commonalities:
• The financial controller for a capped expenditure entity is liable for breaches
of the expenditure cap by that capped expenditure entity.
• the civil penalty for breaching an expenditure cap under these sections is the
higher of 1,000 penalty units or 3 times the excess amount of the particular
expenditure. The civil penalty for a contravention of these provisions applies
to the liable person. The value and justification of the civil penalty for
contraventions in this Subdivision are consistent with the discussion of civil
penalties in Subdivision C above.
• expenditure caps under these sections are exceeded if a capped entity incurs
electoral expenditure, that when taken with the total value of expenditure
incurred by the entity for the calendar year (or by-election/Senate-only
election period as applicable) is in excess of the particular cap. An exception
to the civil penalty provision is available to a person who did not know and
could not reasonably have been expected to know that the cap had been
exceeded (new section 302AQA refers - see discussion below).
• the 'excess amount of particular expenditure' (relevant to calculation of the
maximum civil penalty) is equal to the amount of the particular expenditure,
if prior to incurring the particular expenditure the total value of electoral
expenditure to date was already equal to or more than the cap. If the
particular expenditure itself brings the cumulative total expenditure into
excess of the particular cap, the 'excess amount of the particular expenditure'
is the portion of the particular expenditure that exceeds the cap.
• New section 302ARC provides that if there is more than one general election
held in the same calendar year, on the issue of the writs for the subsequent
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election the annual electoral expenditure caps reset (being, for Subdivision F,
the capped entity cap, capped entity Divisional cap and capped entity Senate
cap).
'Capped entity cap'
559. New section 302APA provides for a person to be liable to a civil penalty for the
exceeding of the 'capped entity cap'. This applies to the financial controller of a
significant third party, associated entity or third party. Incurring electoral
expenditure in excess of the capped entity cap ($11,250,000 as defined in new
subsection 302ALA above, and indexed under section 321AB), attracts a civil
penalty of the higher of 1,000 penalty units or 3 times the value the cap was
exceeded by.
560. It is noted that the maximum expenditure cap available to a Third Party
campaigning in the 2027 NSW State election is $1,464,200.52 This is not,
however, directly comparable as the NSW cap applies over an approximately 6-
month capped expenditure period, to a smaller geographic area, and due to
different definitions of 'electoral expenditure' between jurisdictions.
561. Expenditure caps for capped expenditure entities are set at 1/8th the value of an
equivalent cap imposed on a registered political party. This is an amount intended
to strike an appropriate balance between ensuring that these entities can continue
to fully and effectively participate in the political process, while also preventing
elections from being unfairly skewed by organisations or individuals with large
amounts of money in a way that prevents electors from receiving communication
from candidates by distorting the flow of political communication and drowning
out the candidate's message.
562. The cap values apply a proportional value relative to the registered political party
Divisional and Senate caps. Additionally, subject to the operation of the
definition of 'targeted' to a Division, State or Territory, as set out in new section
302ALC above, generic or issues-based campaign materials would likely be
captured by the capped entity cap.
'Capped entity Divisional cap'
563. New section 302APB provides for contraventions of the 'capped entity
Divisional cap', defined in new subsection 302ALA above to mean $100,000 for
a calendar year. The financial controller of a capped entity is liable for a civil
penalty consistent with new section 302APA, discussed above.
'Capped entity Senate cap'
564. New section 302APC provides for contraventions of the 'capped entity Senate
cap', defined in new section 302ALA above to mean the capped entity Senate
base amount (defined as $25,000, indexed under section 321AB) multiplied by
the number of Divisions in the relevant State or Territory. Capped entity Senate
cap values, calculated as they would apply at commencement of this Schedule,
are included at Table 10 below.
52
NSW Electoral Commission, 'What are the expenditure caps for state elections?', Caps on electoral
expenditure (Web Page, 14 May 2024) .
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Table 10. Capped entity Senate caps
State/Territory Formula Capped entity
(Capped entity Senate base Senate cap
amount × number of Divisions in
a State or Territory)
NSW ($25,000 × 46) $1,150,000
VIC ($25,000 × 38) $950,000
QLD ($25,000 × 30) $750,000
WA ($25,000 × 16) $400,000
SA ($25,000 × 10) $250,000
TAS ($25,000 × 5) $125,000
ACT ($25,000 × 3) $75,000
NT ($25,000 × 2) $50,000
Table 10. Based on the number of Divisions each State and Territory is entitled to as on
1 November 2024. Note that the 'capped entity Senate base amount' which affects the
'capped entity Senate cap' and 'capped entity Senate-only election cap' is indexed under
section 321AB.
565. New section 302APC provides that the financial controller of a capped entity is
liable for a civil penalty if the Senate-only election cap is breached by the capped
entity, consistent with new section 302APB, discussed above.
'Capped entity by-election cap'
566. New section 302APD provides for the financial controller of a capped
expenditure entity to be liable to a civil penalty for contraventions of the 'capped
entity by-election cap', defined in new subsection 302ALA above to mean 120%
of the 'capped entity Divisional cap' (defined as $100,000, indexed under section
321AB). Applying this formula the capped entity by-election cap for a by-
election held in the year of commencement of this Schedule is $120,000. This
expenditure cap applies to electoral expenditure incurred for the purpose of the
by-election, during the by-election period, being from the issue of the writ to the
end of polling day for the election.
'Capped entity Senate-only election cap'
567. New section 302APE provides for contraventions of the 'capped entity Senate-
only election cap', defined in new subsection 302ALA to mean 120% of the
capped entity Senate cap for a State or Territory. Capped entity Senate-only
election cap values calculated as they would apply at commencement of this
Schedule are included at Table 11 below:
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Table 11. Capped entity Senate-only election cap
State/Territory Formula Capped entity
(120% of the capped entity Senate-only
Senate cap for a State or election cap
Territory)
NSW $1,150,000 × 120% $1,380,000
VIC $950,000 × 120% $1,140,000
QLD $750,000 × 120% $900,000
WA $400,000 × 120% $480,000
SA $250,000 × 120% $300,000
TAS $125,000 × 120% $150,000
ACT $75,000 × 120% $90,000
NT $50,000 × 120% $60,000
Table 11. Based on the number of Divisions each State and Territory is entitled to as on
1 November 2024. Note that the 'Senate base amount' which affects the 'capped entity
Senate cap' and 'capped entity Senate-only election cap' is indexed under section
321AB.
568. New section 302APF clarifies the application of expenditure caps in
Subdivision F in relation to electoral expenditure incurred by a capped
expenditure entity in a period. New subsection 302APF(3) provides that electoral
expenditure incurred by these persons or entities during the period of the year
before they are registered contributes to the capped entity cap, capped entity
Divisional caps and capped entity Senate caps. New subsection 302APF(4),
however, provides that Subdivision F does not apply in relation to electoral
expenditure incurred by a capped expenditure entity at any time while the entity
is a nominated entity of a registered political party. This clarification is necessary
as a nominated entity is also an associated entity.
Subdivision G--Exceptions
569. New section 302AQA provides an exception to the civil penalty provisions in
Subdivision C, D, E or F if;
• at the time the electoral expenditure in excess of the cap was incurred, the
person did not know, and could not reasonably have been expected to know,
that the total expenditure concerned exceeded the cap concerned; and
• within 6 weeks of the relevant person becoming aware that total electoral
expenditure exceeded the expenditure cap, acceptable expenditure action is
taken in relation to the excess amount.
570. This is an important safeguard for political participants to be able to take
remedial action in relation to genuine instances of inadvertent or unknowing
breaches of the expenditure caps.
571. New section 302AQB clarifies that electoral expenditure that counts towards
annual expenditure caps is separate to electoral expenditure that counts towards
the by-election and Senate-only election caps. This provides certainty for persons
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and entities subject to expenditure caps, they are able to fully participate in
federal election campaigning, without being restricted by the potential for
unforeseeable by-election and Senate-only elections, which would otherwise
prejudice their capacity to meaningfully engage in such events.
572. New sections 302AQC--302AQF exclude certain types of electoral expenditure
from counting towards the expenditure caps.
573. New subsections 302AQC(1) and (2) provide that the civil penalty provisions in
Subdivisions C, D and E do not apply in relation to electoral expenditure on
certain travel, and on translation and interpretation services, for the dominant
purpose of a candidate's campaign. This is an important safeguard to ensure that
the expenditure caps do not disproportionately impact candidates in regional or
remote electorates or culturally and linguistically diverse electorates. This
exception assists electors in engaging with candidates and political materials, in
their preferred language, consequentially assisting these electors to participate in
political processes, enhancing the quality of meaningful engagement with
culturally and linguistically diverse electors and the unique issues that affect
these communities.
574. New subsection 302AQC(3) provides that this exception does not apply to
expenditure incurred in connection with a vessel, aircraft or vehicle which
displays advertising or electoral matter for a candidate or registered political
party.
Example--exception for travel for dominant purpose of a candidate's
campaign
Katherine is an unendorsed candidate for the Division of Lingiari in a general
election.
Katherine spends $1,000 on a hire car to travel with her staff to attend
community events for the purpose of campaigning for Katherine's candidacy.
This expenditure is exempt from the Katherine's Independent House of
Representatives cap.
Example--exception for translation and interpretation services for the
dominant purpose of a candidate's campaign
Francesca is running as a candidate for the House of Representatives. As part
of their campaign, she spends the following amounts -
A. $10,000 on the design and printing of a leaflet outlining Francesca's
policy platform as a candidate;
• This expenditure is not exempt under section 302AQC.
B. $1,000 engaging a translation service to translate the content of the
pamphlet into Mandarin and Arabic;
• This expenditure is exempt under section 302AQC.
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575. New section 302AQD provides that the civil penalty provisions in Subdivisions
C, D and E of Division 3AB do not apply in relation to electoral expenditure on
salaries or allowances paid to members of the Parliament or a member of staff of
a member of Parliament. This is clarified through paragraphs (a)-(c) to include
an amount of salary, remuneration, allowance or expense payable under the
Constitution, the Parliamentary Business Resources Act 2017 or an agreement
for employment or engagement referred to in the Members of Parliament (Staff)
Act 1984. This exception ensures that existing members of Parliament are able to
continue to meet their obligations and responsibilities to their constituents in their
capacity as a serving parliamentarian, without prejudicing their ability to
campaign for re-election while being subject to the expenditure caps.
576. Two Notes are included under this section to direct the reader to section 96 of the
Regulatory Powers Act which deals with evidential burden. Note 2 clarifies that
the exception does not apply in relation to contraventions of provisions in
Subdivision F, which provides the expenditure caps for capped entities.
577. New subsection 302AQE(1) establishes an exception for expenditure on
campaign offices for members of a registered political party's expenditure group.
The exception applies to a maximum of $20,000 in relation to a national party
campaign headquarters, and $20,000 for campaign offices in each Division, State
or Territory.
578. New subsection 302AQE(2) includes an avoidance of doubt provision, that the
$20,000 applies in regardless of how many campaign offices are in a Division,
State or Territory. This means that regardless of how a registered political party
or members of its expenditure group decide to structure their campaign, such has
having multiple campaign offices in a Division, a maximum of $20,000 is
claimable per Division.
579. New subsection 302AQE(3) extends the same exception from the expenditure
caps for electoral expenditure of up to $20,000 on a campaign office for each
Independent House candidate and member, and each Independent Senate
candidate and Senator.
580. Two Notes follow both subsections 302AQE(1) and 302AQE(3) that alert the
reader to section 96 of the Regulatory Powers Act, which relevantly provides that
a person who wishes to rely on an exception to a civil penalty provision bears an
evidential burden in relation to that matter, as well as the fact that the amount of
the exception is indexed under new section 321AB.
581. New subsection 302AQF sets out an exemption for expenditure on the design and
printing costs for how-to-vote cards, to the value of $20,000 (indexed). This
exemption applies to the caps for Independent House candidates and members in
Subdivision D, and Independent Senate candidates and Senators in
Subdivision E.
582. Consistent with the Notes outlined above under subsections in 302AQE, Notes
are included under this subsection to direct the reader to section 96 of the
Regulatory Powers Act, and to indexation provisions in section 321AB.
Additionally, Note 3 included under this subsection clarifies that this exemption
does not apply to the civil penalty provisions in Subdivision C (registered
political party expenditure groups) or Subdivision F (capped expenditure
entities).
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Subdivision H--Miscellaneous
583. New section 302ARA is a notification provision. It requires a liable person to
advise the Electoral Commissioner if total electoral expenditure for the relevant
person, entity or expenditure group in a period has reached a relevant cap for the
period. The notice must be in the approved form and must be provided as soon as
practicable after the person becomes aware that total electoral expenditure has
reached the cap. This will support the AEC's compliance activities relating to the
expenditure caps. There is a civil penalty of 60 penalty units for failing to comply
with this notification obligation.
584. New section 302ARB requires the Electoral Commissioner to publish the
indexed expenditure cap values for all entities as soon as reasonably practicable
after the start of a new calendar year on the AEC website. The value of amounts
of electoral expenditure that are exceptions from the expenditure caps under
section 302AQE and section 302AQF must also be published. These amounts are
indexed under section 321AB, inserted by Item 5 of this Schedule. Publication
will ensure timely and accurate availability of indexed values for persons and
entities subject to expenditure caps.
585. New section 302ARC operates so that if there is more than one general election
held in the same calendar year, on the issue of the writs for the subsequent
election the annual electoral expenditure caps reset. This will provide for
instances where a person or entity has incurred expenditure in relation to a
general election and would otherwise be unable to incur further, or adequate
electoral expenditure, in a subsequent general election. This provision is an
important safeguard to ensure that the caps do not impermissibly burden the
implied freedom of political communication in the subsequent election.
586. Items 3 and 4 amend existing section 319 of the Electoral Act, which provides
that non-compliance with Part XX in relation to an election does not invalidate
the election. Items 3 and 4 would carve out from this general exemption for Part
XX compliance, compliance with the expenditure cap obligation (Division 3AB).
This carve-out would ensure that section 319 does not prevent the Court of
Disputed Returns from voiding an election in the event that a political actor
exceeded the expenditure caps.
587. Section 360 of the Electoral Act empowers the Court of Disputed Returns to
'declare that any person who was returned as elected was not duly elected, or to
declare an election absolutely void'. That power 'may be exercised on the ground
that illegal practices were committed in connexion with the election'. The Court
may exercise its powers 'on such grounds as the Court in its discretion thinks just
and sufficient'.
588. Item 5 inserts new section 321AB to increase the value of the expenditure cap
values inserted by this Schedule annually, on 1 January, using the September
quarter index number. This will enable the base values to maintain their relative
value over time. This is consistent with the treatment of values across the
Schedules in this Bill, including gift caps introduced in Schedule 3.
589. Item 6 is an application provision relating to the indexation provision as inserted
by Item 5, which provides that the indexation applies in relation to the indexation
year beginning on 1 January 2027 and each subsequent calendar year.
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Schedule 5--Returns
590. The financial disclosure returns provisions in this Schedule consolidate existing
annual and election return obligations in Part XX of the Electoral Act.
Transparency of financial information through the new annual return obligations
will support compliance with Part XX, the real and perceived integrity of the
electoral system, and will provide electors with more timely information to
inform their electoral choices.
591. Registered political parties, State branches of registered political parties,
significant third parties and associated entities will continue to disclose total
amounts paid and total amounts received, along with details of amounts received
over the disclosure threshold. Reporting obligations for nominated entities will
mirror associated entities.
592. The disclosure of amounts received over the disclosure threshold supports the
integrity of the electoral system by providing transparency to voters about the
financing of more significant and active political actors seeking to influence
electoral outcomes.
593. The annual reporting content will be largely standardised across political actors
of a similar type to the extent practicable. Having more consistent content across
the return types will allow for enhanced transparency and comparison across
these entities.
594. In addition to the existing returns requirements, this Schedule requires all entities
to report electoral expenditure to support the operation and enforcement of
electoral expenditure cap provisions inserted by Schedule 4 of this Bill.
595. Registered political parties, members of the House of Representatives and
Senators that incur administrative expenditure and received administrative
assistance funding at any point in a calendar year will be required to provide
relevant details on their return and an audit certificate. This information is
designed to support compliance with the reforms introduced by Schedule 7 of
this Bill.
596. The Schedule provides for instances where a person or entity may change status
in a calendar year or hold dual status. For example, a significant third party that
becomes an associated entity, or vice versa. To the extent possible, the reforms
allow a person or entity to provide a single return, so long as this identifies the
statuses held in the year and the necessary information required under the return
content for that entity type. In some instances, however, separate returns may still
be required. For example, if a person receives donations as both a candidate and a
member of the House of Representatives or a Senator in a calendar year.
597. Additionally, where information is reported elsewhere, or is not related to
electoral matters, it has been exempted to the extent possible. For example, State
branches of registered political parties that are not themselves federally registered
political parties will only need to report on amounts for a federal purpose. They
will not need to report amounts related to state, territory or local government
elections, which are generally required to be reported under state and territory
legislation.
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598. Similarly, existing reporting exceptions for significant third parties have also
been replicated by this Schedule. These existing exceptions include that a
significant third party that is an individual (a natural person) is not required to
report any amounts received or made in a purely personal capacity.
599. Further, a significant third party that is a registered charity under the ACNC Act
does not need to report amounts that are not used to incur electoral expenditure,
or to create or communicate electoral matter.
Part 1--Main amendments
Commonwealth Electoral Act 1918
600. Items 1 and 2 are consequential amendments to remove references to
Division 5A in subsection 287A(1) and paragraph 287E(b). Division 5A is
repealed by Item 11 of this Schedule and replaced by new Division 5 of this
Schedule.
601. Items 3 and 4 are consequential amendments to the Transparency Register
content requirements at subparagraph 287N(2)(a)(iii). This technical change
reflects the new third party annual return provisions inserted by new section
313F, and retains the existing operation of the provision, that the Transparency
Register must include the name of each person or entity that has provided a third
party annual return for any of the previous three calendar years.
602. Consistent with existing reporting arrangements in the Electoral Act, third parties
are not required to register under Part XX. Their status, and the subsequent
obligations, are activated if and when they meet the definition of 'third party' in
subsection 287(1), as amended by Item 14 of Schedule 1. As a result, a person or
entity may not be required to provide an annual return each year if, for that
calendar year, they do not meet the definition. Requiring the name to be
published for the preceding 3 years (approximately a federal election cycle)
provides public awareness of the recent status of a person or entity as a third
party.
603. Items 5 and 6 are consequential amendments to section 287V and
paragraph 292B(a) to omit the references to Division '5A' and substitute '5',
consistent with the amendments in Items 1 and 2 of this Schedule.
604. Item 7 repeals the heading of Division 5 of Part XX and replaces it with a new
heading: Division 5--Annual disclosure of donations and electoral expenditure
etc.
605. Item 8 repeals existing sections 307A and 309 and replaces these with the new
annual return requirements set out in Subdivisions A-D, detailed below.
606. New Subdivision A--Preliminary contains a simplified outline for new
Division 5 at new section 307A. This Division details the annual return
obligation for registered political parties, State branches of registered political
parties, candidates, members of the House of Representatives, Senators,
significant third parties, associated entities, nominated entities and third parties.
The return is to include information pertaining to the amounts of monies
received, paid or incurred by the person or entity, including electoral expenditure,
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in a calendar year. This information is published by the Electoral Commissioner
on the Transparency Register.
607. New section 308 inserts the interpretation provisions for new Division 5. This
includes a definition of 'amount' to clarify that this includes the value of a gift
(within the ordinary meaning of that expression) or loan. A Note follows the
definition to clarify that, for the purposes of amounts reported under Division 5,
'gift' has its ordinary meaning and is not limited to gifts as defined in section
287AAB.
608. New section 308 also inserts the definitional terms 'by-election period' and
'Senate-only election period'. These are defined as having the same meaning as
in the expenditure cap provisions in new Division 3AB, being the period between
the issue of the writ and polling day for that election. The definition of 'targeted'
is also inserted, which has the same meaning as in new Division 3AB. These
three definitions support the reporting of details related to electoral expenditure
under new section 310M, inserted by this Schedule.
609. Further, new section 308 inserts a definition of 'discretionary benefit'. This
means a benefit (including a grant, a benefit under a contract, or any other kind of
benefit) that is not a statutory entitlement. Disclosure of discretionary benefits is
a category of information required to be disclosed in existing return requirements
(including as an existing requirement for candidates, registered political parties,
significant third parties and associated entities). This definition is included to
provide greater clarity about what is required to be disclosed under this reporting
category. Statutory entitlements, such as election funding, are excluded from the
definition as such payments are provided automatically where specified criteria
are met and therefore do not involve discretionary decision-making.
610. New subsection 309(1) clarifies that, where an amount paid, incurred or received
is required to be reported on an annual return under Division 5, and the relevant
person or entity did not pay, incur or receive such an amount, the annual return
must include a statement that there is no such amount to be disclosed. This means
that registered political parties, State branches of registered political parties,
significant third parties, associated entities, nominated entities and third parties
may have what is known as a 'nil' return requirement under the current
Electoral Act.
611. New subsection 309(2) clarifies that there is no nil return requirement for a
candidate, member of the House of Representatives or a Senator, due to the
operation of subsections 310A(5) or 310B(1) outlined below.
Subdivision B--Annual disclosure obligations
Registered political party and State branch returns
612. New section 310(1) establishes that the agent of a registered political party or
State branch of a registered political party must provide a return to the AEC in
relation to a calendar year. This obligation applies if the entity held this status at
any point in the calendar year.
613. Two Notes are included under subsection 310(1). Note 1 directs the reader to new
section 309, which requires a return to be provided even if no amounts were
received, paid or incurred. Note 2 refers to the operation of section 292B of the
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Electoral Act. This clarifies that, where applicable under section 292B, if a party
does not have an agent, obligations imposed on the agent will apply to each
member of the executive committee of the registered political party, or State
branch, as applicable.
614. This subsection also provides the agent of a registered political party or State
branch that contravenes new section 310 is liable for a civil penalty, being the
higher of 120 penalty units or 3 times the amount not disclosed.
615. New subsection 310(2) requires returns by registered political parties or State
branches of a registered political party be provided to the AEC in the approved
form within 8 weeks of the end of the calendar year. This is approximately the
last week of February each year, depending on whether weekends and public
holidays fall on the final day for providing returns. This will halve the existing
16 week reporting timeframe to deliver more timely transparency of registered
political party financial information. Administration of these new timeframes is
supported by ongoing expedited disclosure of gifts for a federal purpose under
Schedule 2 and the requirement to maintain a Commonwealth campaign account
under Schedule 6.
616. New subsection 310(3) sets out the information required to be disclosed on the
return. This includes information currently required to be disclosed on an annual
return (total amounts received, total amount of gifts received, total amount paid
and outstanding amounts). New subsection 310(3) includes a further requirement
to report the following information:
• total amount of gifts for a federal purpose during the calendar year, together
with details of those gifts required under new section 310K;
• total amount of electoral expenditure incurred during a calendar year, together
with details of expenditure by Division, State or Territory, as required under
new section 310M;
• details of administrative expenditure under new section 310P; and
• if the registered political party had a nominated entity during the calendar
year, the name of the nominated entity.
617. These new reporting requirements will support compliance and enforcement of
the gift cap, expenditure cap and administrative assistance funding reforms
established in other Schedules.
618. Two Notes are included under subsection 310(3) to direct the reader to the
meaning of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of Part XX, inserted by Schedule 2 of the Bill.
619. New subsection 310(4) provides that for a State branch of a registered political
party that has not itself been a registered political party at any point during the
year, the references to amounts in paragraphs 310(3)(a), (c) and (e) are taken to
be references to amounts for a federal purpose. Federal purpose is defined in
existing section 287(1) of the Electoral Act to mean for the purpose of incurring
electoral expenditure or creating or communicating electoral matter. This ensures
the information reported by a State branch of a registered political party, that has
not itself been a registered political party, is limited to information in relation to
federal elections.
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620. New subsection 310(5) requires the annual return of a registered political party
that is paid administrative assistance funding under new Division 3AA during a
calendar year, to include a certificate that meets the new audit requirements at
section 311.
621. New subsection 310(6) provides that a return is taken to not have been provided
to the Electoral Commission unless it includes the audit certificate required by
subsection 310(5) above, subject to existing section 318 of the Electoral Act. This
is necessary to support the operation of administrative assistance funding
provisions in Schedule 7. This provision is necessary to inform the investigation
and recovery of amounts under provisions in Subdivision D of new Division
3AA.
622. New subsection 310(6) is subject to existing section 318, as the latter provides
for circumstances wherein a person is unable to obtain certain details that are
required to be provided in a return. Section 318 may allow that person to provide
the return to the extent possible and give the AEC a written statement specifying
the missing details and why they are missing. This may, for example, allow a
political party that is genuinely unable to obtain a certificate that meets the new
audit requirements at section 311 within the applicable timeframe to still meet
their return obligations.
623. New subsection 310(7) provides that a State branch of a registered political party
is not required to provide a return under new section 310 if a registered political
party provides a return that sets out the details that would be required to be
disclosed by the State branch under new subsection 310(3). This facilitates a
level of flexibility for registered political parties that have a federalised structure
to satisfy the reporting obligations in a centralised manner, should they choose.
There is no reduction in transparency as the return is still required to identify the
relevant amounts required by subsection 310(3) as they relate to the State branch.
624. New subsection 310(8) provides that subsection 93(2) of the Regulatory Powers
Act does not apply in relation to a contravention of subsection 310(1). This
means that there are no continuing contraventions for the civil penalty attached to
the return provision.
Candidate returns
625. New subsection 310A(1) establishes that, where a person was a candidate at any
point during a calendar year, the agent of that candidate (or the candidate
themselves) must provide the AEC with a return for the period. There are certain
exceptions to this requirement contained in new sections 310A(4) and (5).
Existing subsection 289(2) provides that, where a candidate does not appoint an
agent, the candidate is taken to be their own agent in relation to an election.
626. New subsection 310A(1) also provides the agent of a candidate that contravenes
section 310A is liable for a civil penalty, being the higher of 120 penalty units or
3 times the amount not disclosed.
627. Two Notes are included to direct the reader to the meaning of candidate in
subsection 287(9), and to alert the reader to the return requirements for members
of the House of Representatives and Senators under new section 310B. It is
possible that a person may be required to provide an annual report as both a
candidate and as either a member of the House of Representatives or a Senator,
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for the same year, if they hold a status as both of those kinds of persons during a
calendar year.
628. New subsection 310A(2) requires the return to be in the approved form and
provided to the AEC within 8 weeks of the end of the calendar year. This will
change the reporting timeframe for candidates from a requirement to submit an
election return 15 weeks after the polling day for an election, to a requirement to
submit an annual return within 8 weeks of the end of the calendar year, for each
calendar year in which the person was a candidate. This makes the candidate
return timeframe consistent with the annual reporting timeframe across all
entities.
629. New subsection 310A(3) sets out the information required to be disclosed on the
return. This includes:
• the name of the candidate as it appeared on the ballot paper;
• the total amount of gifts for a federal purpose received by the candidate
during the calendar year, together with the details required under new
section 310K;
• the total amount of electoral expenditure incurred by the candidate during the
calendar year, together with details of expenditure by Division, State or
Territory (as relevant) under new section 310M; and
• details of any discretionary benefits received by or on behalf of the candidate
from the Commonwealth during the calendar year.
630. The new return information requirements will support compliance and
enforcement of the gift cap and expenditure cap regimes included in other
Schedules.
631. Two Notes are included under subsection 310A(3) to direct the reader to the
meaning of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of Part XX, inserted by Schedule 2 of the Bill.
632. Reporting the details of the sources of gifts for a federal purpose over the
disclosure threshold is no longer required in the candidate return as these details
are disclosed under the expedited disclosure timeframes throughout the year
(Schedule 2 refers). This ensures that there is no duplicative reporting obligation
for candidates, while ensuring there is ongoing transparency of campaign funding
throughout the calendar year.
633. New subsection 310A(4) provides that the agent of a candidate does not have a
return obligation if the information required to be disclosed under new subsection
310A(3) is disclosed in a return under new section 310 by the registered political
party that has endorsed the candidate. This reflects the relationship between an
endorsed candidate and the endorsing registered political party, recognising that it
is common for the agent of the candidate to also be the agent of the party. This
may reduce the administrative burden on the agent with no reduction in
transparency, as the return is still required to identify the relevant candidate
information required by 310A(3).
634. New subsection 310A(5) provides that, if a candidate does not receive a gift for a
federal purpose, does not incur electoral expenditure, or receive discretionary
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benefits from the Commonwealth during the calendar year, the agent of the
candidate is not required to provide a return. There is no nil return requirement,
as highlighted in new subsection 309(2) above.
635. New subsection 310A(6) requires that, if a person ceases to be a candidate before
the end of a calendar year, the person who was the agent for the candidate
immediately before they ceased to be a candidate is still required to provide a
return under subsection 310A(1). For example, under the new definition of
candidate at subsection 287(9) (Schedule 1 refers), a person ceases to be a
candidate 7 days after polling day for the election. If the election is held in May,
the agent for the candidate is still required to provide the return under subsection
310A(1) within 8 weeks of the end of the calendar year.
636. New subsection 310A(7) provides that subsection 93(2) of the Regulatory
Powers Act, does not apply in relation to a contravention of subsection 310A(1).
This means that there are no continuing contraventions for the civil penalty
attached to the return provision.
Members of the House of Representatives and Senator returns
637. New section 310B(1) requires a person who is a member of the House of
Representatives or a Senator for any period of time in a calendar year, to provide
the AEC with a return for that period if the person received a gift made for a
federal purpose, incurred electoral expenditure or was paid administrative
assistance funding in that year. There is no nil return requirement, as highlighted
by new subsection 309(2) above.
638. A Note is included to alert the reader to the return requirements for candidates
under new section 310A. It is possible that a person may be required to provide
an annual report as both a candidate and as a member House of Representatives
or a Senator, for the same year, if they hold a status as both those kinds of person
during a calendar year.
639. This subsection also provides that a person who contravenes section 310B is
liable for a civil penalty, being the higher of 120 penalty units or 3 times the
amount not disclosed. This is consistent with existing penalties in the Electoral
Act and commensurate with the severity and potential impact of the offence.
640. New subsection 310B(2) requires that the return provided to the AEC under
subsection 310B(1) must be in the approved form and furnished within 8 weeks
of the end of the calendar year.
641. New subsection 310B(3) sets out the information required to be disclosed on the
return. This includes:
• the total amount of gifts for a federal purpose that were received by the
member or Senator during the calendar year, together with the details
required under new section 310K;
• the total amount of electoral expenditure incurred by the member or Senator
during the calendar year, together with details of expenditure by Division,
State or Territory (as relevant) under new section 310M; and
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• the details required by section 310P, if the member or Senator is paid
administrative assistance funding under Division 3AA during the calendar
year.
642. Two Notes are included under subsection 310B(3) to direct the reader to the
meaning of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of Part XX, inserted by Schedule 2 of the Bill.
643. Reporting the details of the sources of gifts for a federal purpose over the
disclosure threshold is no longer required in the member and Senator annual
returns as these details are disclosed under the expedited disclosure timeframes
throughout the year (Schedule 2 refers). This ensures that there is no duplicative
reporting obligation, while ensuring there is ongoing transparency of political
financing throughout the calendar year.
644. New subsection 310B(4) requires that, if a member or Senator is paid
administrative assistance funding in a calendar year, the return must include a
certificate that meets the audit requirements in new section 311.
645. New subsection 310B(5) provides that a return is taken to not have been provided
to the Electoral Commission unless it includes the audit certificate required by
subsection 310B(4) above, subject to the provision related to the inability to
complete returns in section 318 of the Electoral Act. This is consistent with the
registered political party provisions at section 310(5) above.
646. New subsection 310B(6) provides that a member of the House of Representatives
or a Senator does not have a return obligation under new section 310B if the
agent of the registered political party of which the member or Senator is a
member submits a return under new section 310 that includes the details required
by subsection 310B(3). This is consistent with the treatment of endorsed
candidates in new subsection 310A(4) above and reflects the nature of the
relationship between a member or Senator and their registered political party.
647. New subsection 310B(7) provides that subsection 93(2) of the Regulatory Powers
Act does not apply to a contravention of subsection 310B(1). This means that
there are no continuing contraventions for the civil penalty attached to the return
provision.
Significant third party returns
648. New section 310C(1) requires that the financial controller for a person or entity
that is a significant third party at any time during a calendar year must provide
the AEC with a return. This subsection also provides that a financial controller
who contravenes section 310C is liable for a civil penalty, being the higher of
120 penalty units or 3 times the amount not disclosed.
649. A Note is included under subsection 310C(1) to direct the reader to the new
significant third party return provisions that may apply under new section 310G.
A second Note is included to alert the reader to new section 309, which requires a
return to be provided even if no amounts were received, paid or incurred.
650. New subsection 310C(2) requires the return provided to the AEC under
subsection 310C(1) to be in the approved form and furnished within 8 weeks of
the end of the calendar year. This will halve the existing 16 week reporting
timeframe.
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651. New subsection 310C(3) sets out the information required to be disclosed on the
return. This includes information currently required to be disclosed by significant
third parties (total amounts received, total amount paid, total outstanding amount
and details of discretionary benefits) during a calendar year. It includes a further
requirement to report:
• the total amount of gifts for a federal purpose together during the calendar
year, together with details of those gifts required under new section 310K;
and
• the total amount of electoral expenditure incurred by the person or entity
during the calendar year, together with details of expenditure by a Division,
State or Territory under new section 310M.
652. These new reporting requirements will support compliance and enforcement of
the gift cap and expenditure cap reforms established in Schedules 3 and 4,
respectively. Notes are included consistent with new subsection 310(3) above.
653. New subsection 310C(4) replicates existing subsection 314AB(3) of the Electoral
Act. It clarifies the interaction between the annual return requirements and the
deeming rule in section 287J, which operates to ensure that a failure to register
does not absolve a person or entity of other obligations under Part XX.
Subsection 310C(4) provides that, if a significant third party was required to
register in the previous calendar year, but did not, the financial controller must
still provide a return for that calendar year, as well as a separate return for the
current calendar year. This ensures transparency and clear records when
registration requirements cross calendar years.
654. New subsection 310C(5) provides that, if a significant third party is deregistered
before the end of the period for providing the return, the obligation to submit a
return under subsection 310C(1) applies to the person who was the financial
controller of the significant third party immediately before that deregistration.
This will support AEC compliance and enforcement of reporting obligations
under this Part by identifying who is responsible for fulfilling this requirement at
the end of the calendar year.
655. New subsections 310C(6) and (7) provide that certain information is not required
to be included in a return. New subsection 310C(6) provides that, if the
significant third party is a person, they do not need to disclose amounts received,
amounts paid, details of any discretionary benefits, or debts made or received, in
a purely personal capacity. This replicates an existing exclusion for reporting
such amounts in 314AB(3C) in the Electoral Act. This reduces reporting burdens
for these entities.
656. New subsection 310C(7) provides that, if the significant third party is a registered
charity under the ACNC Act, they do not need to disclose amounts or details of
amounts received by or on behalf of the significant third party where no part of
the amount was used to enable the entity to incur electoral expenditure or
reimburse the significant third party for electoral expenditure. This replicates an
existing exclusion for reporting such amounts in subsection 314AC(4) of the
Electoral Act.
657. New subsection 310C(8) provides that section 310C does not apply if the
financial controller for that significant third party is also required to provide a
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return as an associated entity under section 310D, or as a nominated entity under
section 310E, and:
• in completing the return under the other section, the financial controller states
that the entity was also a significant third party in the year; and
• includes the details required by section 310C in relation to the time they were
a significant third party on that return.
658. This provision streamlines reporting obligations where a person or entity holds
dual status as a significant third party and an associated entity or nominated
entity for a period during the calendar year, reducing duplication by allowing the
person or entity to provide all information on one return.
659. New subsection 310C(9) provides that subsection 93(2) of the Regulatory Powers
Act does not apply in relation to a contravention of subsection 310C(1). This
means that there are no continuing contraventions for the civil penalty attached to
the return provision.
Associated entity returns
660. New subsection 310D(1) provides that the financial controller for an entity that is
registered as an associated entity at any time during a calendar year must provide
a return to the AEC. The civil penalty for contravening this section is consistent
with the significant third party and nominated entity provisions.
661. Three Notes are included in subsection 310D(1) to direct the reader to relevant
provisions, including that:
• all nominated entities are required to be registered as associated entities
(Note 1);
• new section 310H requires additional disclosure obligations for 'new'
associated entities (Note 2); and
• new section 309 means a return must be provided even if no amounts were
received, paid or incurred (Note 3).
662. New subsection 310D(2) requires that the return provided to the AEC under
subsection 310D(1) must be in the approved form and provided within 8 weeks
of the end of the calendar year. This will halve the existing 16 week reporting
timeframe to enable more timely transparency.
663. New subsection 310D(3) sets out the information required to be disclosed on the
return. This is consistent with the details required by a significant third party
under subsection 310C(3) above, with the addition of requiring information
prescribed in new section 310L. New section 310L relates to details of capital
contributions, which replicates information required in associated entity returns
by existing subsection 314AEA(3) of the Electoral Act.
664. Two Notes are included under subsection 310D(3) to direct the reader to the
meaning of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of this Part XX, inserted by Schedule 2 of the Bill.
665. New subsection 310D(4) provides that, if an associated entity is deregistered
before the end of the period for providing the return, the obligation to provide the
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return applies to the person who was the financial controller of the associated
entity immediately before that deregistration. This will support AEC compliance
and enforcement of reporting obligations under Part XX by clearly identifying
who is responsible for fulfilling this requirement at the end of the calendar year.
666. New subsection 310D(5) provides that new section 310D does not apply if the
associated entity is also a nominated entity at a time during the calendar year, and
the financial controller for the entity provides a return under new section 310E
(nominated entity returns). The return provided under new section 310E must
include the details required by section 310D for the period that the nominated
entity was an associated entity, specify the period in the year during which the
entity was an associated entity and not also a nominated entity, and make clear
which information relates to the period when the entity was only an associated
entity.
667. This reduces duplication by allowing the entity to provide all information on one
return. It is important that a return distinguishes the period for which an entity is
not a nominated entity as different exceptions to the definition of 'gift'
(subsection 287AAB(3) refers, inserted by Item 18 in Schedule 1 (Part 1)) and
gift cap aggregation rules apply. For example, a nominated entity is aggregated
with its registered political party for the purpose of the gift cap provisions,
whereas an associated entity is not aggregated (subsection 302BA(4) inserted by
Item 2, Schedule 3 refers)
668. New subsection 310D(6) provides that subsection 93(2) of the Regulatory
Powers Act does not apply in relation to a contravention of subsection 310D(1).
This means that there are no continuing contraventions for the civil penalty
attached to the return provision.
Nominated entity returns
669. New section 310E(1) provides that the financial controller for an entity that is
registered as a nominated entity at any time during a calendar year must provide
a return to the AEC. The civil penalty for contravening this section is consistent
with the significant third party and associated entity provisions.
670. New subsection 310E(2) requires the return to be provided to the AEC under
subsection 310E(1) in the approved form and furnished within 8 weeks of the end
of the calendar year. This is consistent with the return reporting timeframe across
all entities.
671. New subsection 310E(3) is consistent with the return requirements for associated
entities outlined above in new section 310D (associated entity returns).
672. Two Notes are included under subsection 310E(3) to direct the reader to the
meaning of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of Part XX, inserted by Schedule 2 of the Bill.
673. New subsection 310E(4) provides that, if the registration of a nominated entity is
cancelled before the end of the period for providing the return, the return
obligation applies to the person who was the financial controller of the entity
immediately before that cancellation.
674. New subsection 310E(5) provides that subsection 93(2) of the Regulatory Powers
Act does not apply in relation to a contravention of subsection 310E(1). This
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means that there are no continuing contraventions for the civil penalty attached to
the return provision.
Third party returns
675. New subsection 310F(1) sets out the annual return obligations for a person or
entity that is a third party at any time in a calendar year. The civil penalty for
contravening this section is consistent with the significant third party, associated
entity and nominated entity provisions above.
676. New subsection 310F(2) requires the third party to provide a return in the
approved form to the Electoral Commission within 8 weeks of the end of the
calendar year. This is consistent with the return reporting timeframe across all
entities.
677. New subsection 310F(3) sets out the content required to be detailed on the annual
return. A third party is required to disclose:
• the total amount of gifts made for a federal purpose that were received by the
third party in the calendar year, together with details required by new section
310K; and
• the total electoral expenditure incurred by the third party during the calendar
year, together with details required by new section 310M.
678. Notes are included under subsection 310F(3) to direct the reader to the meaning
of 'federal purpose' in subsection 287(1) and to the expedited disclosure
obligations in new Division 4 of Part XX, inserted by Schedule 2 of the Bill.
Additionally, Note 3 directs the reader that, for the avoidance of doubt, a
registered charity under the ACNC Act does not need to report amounts that were
not received, paid or incurred for a federal purpose.
679. Reporting the details of the sources of gifts for a federal purpose over the
disclosure threshold is no longer required in the third party annual return as these
details are disclosed under the expedited disclosure timeframes throughout the
year (Schedule 2 refers). This ensures that there is no duplicative reporting
obligation, while ensuring there is ongoing transparency of political financing
throughout the calendar year.
680. New subsection 310F(4) exempts a person or entity that is a third party from their
third party annual return obligation if the person or entity provides a return for
the calendar year under section 310C (significant third party returns), section
310D (associated entity returns) or section 310E (nominated entity returns). This
reduces duplication by allowing the entity to provide all information in one
return.
681. New subsection 310F(5) provides that subsection 93(2) of the Regulatory Powers
Act does not apply in relation to a contravention of subsection 310F(1). This
means that there are no continuing contraventions for the civil penalty attached to
the return provision.
Subdivision C--Disclosure obligations for new significant third parties and
associated entities
682. New subsections 310G(1)-(3) replicates existing section 314AB(3A) of the
Electoral Act by providing that the financial controller of a newly registered
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significant third party must submit a return in relation to the calendar year before
it was required to be registered within 30 days of becoming registered. This
ensures appropriate transparency about the financial affairs of an entity in the
calendar year immediately prior to its transition to significant third party status,
because its subsequent political activities may be financed using previously
accumulated funds.
683. The civil penalty for contravening this section is the higher of 120 penalty units
or 3 times the amount not disclosed on the return.
684. The information required in a new significant third party return under new
subsection 310G(4) is the same as that required in an annual return under new
subsection 310C(3). Equivalent Notes are also included to direct the reader to the
definition of 'federal purpose' (Note 1), expedited disclosure obligations that may
apply under Division 4 of Part XX (Note 2) and the nil return requirement at
section 309 (Note 3).
685. New subsection 310G(5) provides that there are no continuing contraventions for
the civil penalty attached to the return provision.
686. New subsections 310H(1)-(3) inserts a return requirement for newly registered
associated entities. This replicates existing section 314AEA(2) of the Electoral
Act to provide that the financial controller of a newly registered associated entity
must submit a return in relation to the calendar year before it was required to be
registered within 30 days of becoming registered. This supports appropriate
financial transparency in the years prior to its transition to associated entity status
as its subsequent political activities may be financed using funds accumulated
during those years.
687. The civil penalty for contravening this section is the higher of 120 penalty units
or 3 times the amount not disclosed on the return.
688. The information required in a new associated entity return under new subsection
310H(4) is the same as that required in an annual return under subsection
310D(3), with equivalent Notes.
689. New subsection 310H(5) provides that, despite subsection 310H(4), the return is
not required to set out information that has already been set out in a return
provided under Subdivision B or section 310G in relation to the entity for the
previous calendar year. This is to avoid duplication where the associated entity
was a significant third party for the relevant previous calendar year.
690. New subsection 310H(6) provides that there are no continuing contraventions for
the civil penalty attached to the return provision.
Subdivision D--Details required etc.
691. New section 310J sets out the details of amounts received required to be included
in annual returns. This provision is a modified version of current section 314AC,
repealed at Item 2 above. The new provision removes the operation of existing
section 314AC(2), which provides that amounts of less than the disclosure
threshold need not be counted in calculating the sum of amounts received. The
removal of this exception will reduce the potential for persons or entities to seek
to circumvent reporting obligations by making multiple transactions below the
disclosure threshold.
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692. A Note follows new subsection 310J(1) to remind the reader that amounts may be
received in different ways, including as gifts in kind (the definition of 'amount' is
included in new section 308).
693. New subsection 310J(2) provides that the details set out in subsection 310J(3) are
required if the sum of all amounts received by or on behalf of the entity during
the calendar year is more than the disclosure threshold.
694. The details set out in new subsection 310J(3) include the name and address of the
person or organisation that gave the 'amount received' and, if the amount
received is the result of a loan, the information required to be kept under
subsection 306A(3) of the Electoral Act.
Example--application of details of amounts received provisions
Over a calendar year, the Quokka Party Australia (a registered political party)
receives the following amounts from the Quokka Conservation Trust:
a) $800;
b) $1,100;
c) $100; and
d) $10,000.
The total sum of amounts received is $12,000. That is more than the disclosure
threshold ($1,000).
The Quokka Party Australia must include all four amounts, and the details for
the Quokka Conservation Trust as required under subparagraph 310J(3)(b).
695. New section 310K sets out the details required when reporting gifts made for a
federal purpose received by a person or entity during a calendar year, being the
portion of amounts received that relate specifically to:
• the total amount of gifts that are not required to be disclosed under new
section 303A (expedited disclosure requirements for recipients of gifts,
Schedule 2 refers);
• the total amount for those gifts received during a by-election for a
by-election; and
• the total amount of those gifts received during a Senate-only election period
for a Senate-only election.
696. Requiring this information supports an understanding of what proportion of gifts
made for a federal purpose come from donations valued under the threshold. For
example, if a person or entity receives a number of smaller gifts for a federal
purpose below the disclosure threshold from different donors, these amounts do
not need to be disclosed under the expedited disclosure provisions in Schedule 2.
However, given the potential influence of these smaller amounts when taken at
their cumulative value, disclosure of the total value of gifts under the threshold is
an important metric for informing the broader transparency of political financing.
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697. New section 310L sets out the details required to be reported relating to amounts
paid out of funds generated from capital. This replicates the current requirements
at subsection 314AEA(3), and applies to associated entity and nominated entity
returns.
698. New section 310M sets out the details required when reporting on electoral
expenditure incurred during a calendar year. These details will support
monitoring of compliance with the electoral expenditure caps in Schedule 4.
699. Details required to be reported include total electoral expenditure that counts
towards the relevant person or entity's annual electoral expenditure cap, as well
as any electoral expenditure targeted to a Division, State or Territory.
700. Electoral expenditure in relation to a by-election or Senate-only election is also
required to be reported separate to the annual totals on the return, as they are
subject to individual caps.
701. Additionally, total electoral expenditure covered by the expenditure cap
exceptions at section 302AQC (travel and translation expenses), section 302AQE
(campaign office accommodation) and section 302AQF (design and printing for
certain how-to-vote card, if applicable) must be detailed on the return. This is
electoral expenditure that is exempt from the expenditure cap provisions but
which must still be reported on the return to ensure transparency.
702. Two Notes follow subsection 310M(2) to clarify that electoral expenditure does
not count towards a particular expenditure cap if it is covered by an exception for
the cap under Subdivision G of Division 3AB, and to direct the reader to the
meaning of electoral expenditure 'targeted' to a Division, or on a State or
Territory, as defined in new section 302AD, inserted by Schedule 4 of the Bill.
703. New section 310N sets out details of outstanding amounts. This section reinserts
the current section 314AE reporting requirements repealed at Item 2 above,
modified to apply to the new disclosure regime.
704. New section 310P sets out the details required on annual returns when reporting
on administrative expenditure in a calendar year. Subsection 310P(2) requires a
statement specifying whether the individual or entity incurred administrative
expenditure during the calendar year that is less than, equal to, or more than the
administrative assistance funding paid. If the individual or entity incurred less
administrative expenditure than the amount of administrative assistance funding
paid to them, they must report the difference between the amounts. Schedule 7 of
this Bill sets out the circumstances under which administrative assistance funding
can be recovered (see Division 3AA, Subdivision D--Recovery of amounts).
705. New section 311 details the audit requirements in relation to administrative
expenditure. Subsection 311(1) specifies that this section applies for annual
returns that require a certificate to be provided in relation to administrative
assistance funding paid to a person or entity during a calendar year.
706. New subsection 311(2) sets out the audit certificate requirements including that
the certificate must be issued by a registered company auditor, that the auditor
has audited any administrative expenditure incurred in the calendar year, and
state that the audit was conducted in accordance with any applicable Auditing
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Standards. Additionally, the certificate must testify to the conduct of the audit,
including the auditor's access to information.
Subdivision E--Commonwealth annual reports: statement of amounts paid
707. Item 9 amends section 311A(2) to omit 'disclosure threshold' and substitute
'third party threshold'. This means that Commonwealth Departments are required
to include details in their annual report of expenditure on advertising agencies,
market research organisations, polling organisations, direct mail organisations
and media advertising organisations where the value of the payment is more than
the 'third party threshold'.
Subdivision F--Miscellaneous
708. Item 10 repeals and replaces existing sections 313 and 314 with new sections
312 and 313.
709. New section 312 replicates existing section 314AF, which clarifies, for the
avoidance of doubt, that returns must not include lists of party membership.
710. New section 313 provides that regulations may prescribe additional information
to be set out in the returns, or additional details for information already required
to be set out in the returns. This regulation power replaces the current regulation
making power in existing section 314AG of the Electoral Act, repealed at Item 2
above.
711. Item 11 repeals Division 5A of Part XX. Equivalent annual return obligations in
Division 5A have been replicated in Division 5 as modified by this Schedule.
712. Item 12 repeals table items 4, 5 and 6 from subsection 320(1), and inserts new
items 4, 5, 5A and 6.
713. New table item 4 requires the Electoral Commissioner to publish return
information, other than an address, provided under Subdivision B of Division 5
before the end of 10 weeks after the end of the calendar year to which the return
relates.
714. New table item 5 requires the Electoral Commissioner to publish return
information, other than an address, provided under section 310G (new significant
third party returns) within 10 weeks after the day the entity is registered as a
significant third party.
715. New table item 5A requires the Electoral Commissioner to publish return
information, other than an address, provided under section 310H (new associated
entities returns) within 10 weeks after the day the entity is registered as an
associated entity.
716. New table item 6 requires the Electoral Commissioner to publish referendum
return information, other than an address, provided under Division 2 of Part
VIIIA of the Referendum Act, by the end of 10 weeks after voting day for the
referendum to which the return relates. This applies consistent publishing
timeframes across the Electoral Act and Referendum Act return provisions.
717. The new publishing timeframes will improve the timeliness and transparency of
information by requiring the returns be publicly available in 10 weeks, compared
to the current 24 weeks. The provisions also apply consistent publishing
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timeframes across the specified Electoral Act and Referendum Act return
provisions and strengthens safeguards for recipient and donor privacy by
explicitly excluding the publishing of addresses.
Referendum (Machinery Provisions) Act 1984
718. Item 13 amends the Note at subsection 109E(1) to omit 'Returns' and substitute
'Return information'. This is a consequential amendment to reflect the
amendments to section 320 of the Electoral Act (Schedule 5, Part 2 refers).
719. Items 14 and 15 omit '15 weeks' and substitute '28 days' in paragraph
109E(4)(a) and subsection 109G(2). This brings forward the return timeframe for
'referendum entities' from 15 weeks after referendum voting day to 28 days after,
providing the public with timelier transparency of referendum financing. This is
complemented by the shortened AEC publishing timeframe for returns at Item 12
above.
720. Item 16 amends the Note at subsection 109G(3) to omit 'Returns' and substitute
'Return information'. This is consistent with the change at Item 13 and
equivalent references in the Electoral Act.
Part 2--Amendments relating to publication of personal information
Commonwealth Electoral Act 1918
721. Item 17 amends paragraph 287N(2)(d) to read as 'return information'. This is a
consequential amendment to allow the AEC to publish return information, rather
than the return itself, on the Transparency Register. This is an important
safeguard to protect the privacy of persons and entities that provide details
published in the Register.
722. Items 18 and 19 omit references to 'returns' and substitute 'return information' in
the headings of section 320 and the table in subsection 320(1).
723. Item 20 repeals table items 4, 5 and 6 from subsection 320(1), and substitutes
new items 4, 5 and 6. The new items are equivalent to the existing provisions,
with amended language reflecting the change to publishing return 'information'.
This is consistent with other amendments in this Schedule.
724. Item 21 inserts new subsection 320(1A). This provision allows the Electoral
Commissioner to redact or remove personal information, as well as not include
certain information on the Transparency Register, if they are satisfied that the
publication of such information could put a person's safety at risk.
725. Item 22 inserts 'information' after references to 'return' throughout
subsection 320(2), wherever occurring. This is a consequential amendment
consistent with the amendments in Items 18 and 19 above.
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Schedule 6--Commonwealth campaign accounts
Commonwealth Electoral Act 1918
726. This Schedule inserts new Division 2A into Part XX of the Electoral Act, which
expands on existing obligations in sections 302CA and 314B of the Electoral Act.
Currently, political actors may be provided certain immunities to State or
Territory electoral laws where they use a federal account solely for a federal
purpose. Nevertheless, however, having a federal account is currently optional.
These amendments require certain actors to use a federal account for particular
financial activities.
727. New Division 2A broadly requires candidates, registered political parties, State
branches of registered political parties, members of the House of Representatives,
Senators, significant third parties, associated entities, nominated entities and third
parties to use a federal account. During the period in which they are politically
active, these persons and entities must use their federal account for all their
electoral expenditure and for receiving all monetary gifts made for a federal
purpose. The period for which the person or entity is required to maintain a
federal account will vary according to which category of person or regulated
entity they come under.
728. The new arrangements are consistent with those which apply in the States and
Territories. For example, in New South Wales, political parties, elected members,
candidates, groups of candidates, third-party campaigners and associated entities
are required to use a 'campaign account' in certain circumstances, enabling
election campaign finances to be more easily identified when a disclosure is
audited by the New South Wales Electoral Commission.53
729. Similarly, in Victoria, registered political parties, candidates, groups, elected
members, nominated entities, associated entities and third-party campaigners are
required to keep at least one 'State campaign account'. All these entities' public
funding from the Victorian Electoral Commission and political donations
received for Victorian state elections must be paid into their State campaign
account, and all these entities' political expenditure for Victorian state elections
must be paid from their State campaign account.54
730. In Queensland, all registered political parties and state election candidates must
establish a 'state campaign bank' account to pay for all electoral expenditure and
receive all political donations. An associated entity of a party or candidate must
also use the party or candidate's state campaign bank account for the same
purposes.55
53
New South Wales Electoral Commission, 'What is a campaign account?', Funding and disclosure
(Web page, 10 September 2024) .
54
Victorian Electoral Commission, 'State campaign account', Candidates & Parties, (Web page)
.
55
Electoral Commission of Queensland, 'State fact sheet 11 - State campaign bank accounts for RPPs',
Handbooks, fact sheets and forms, (Web page, July 2024)
; Electoral Commission of Queensland, 'State fact sheet 16 - State
campaign bank accounts for candidates', Handbooks, fact sheets and forms, (Web page, July 2024)
https://www.ecq.qld.gov.au/__data/assets/pdf_file/0028/76654/State-fact-sheet-16-State-campaign-
bank-accounts-for-candidates.pdf>.
137
731. New Division 2A gives effect to recommendation 7 in the JSCEM Interim Report
to introduce a requirement for all disclosure entities to establish a
Commonwealth Campaign Account for the purpose of federal elections, to better
allow for disclosure and monitoring.
732. Items 1 and 3 insert new paragraphs 126(2)(da) and 287K(2)(c), respectively.
These paragraphs establish the requirement for registered political parties,
significant third parties, associated entities and nominated entities to provide the
details of their federal account to the AEC as part of their application for
registration. These details will allow the AEC to more easily audit federal
accounts, including by requesting associated information about the accounts
(such as bank statements) pursuant to powers under new section 314AN, inserted
by Schedule 9 of the Bill.
733. While Items 1 and 3 are not relevant to candidates, a candidate (acting as their
own agent in accordance with section 289(2)), or their agent, must provide the
details of their federal account to the AEC within seven days after their first
expenditure is incurred or their first gift of money is received, in accordance with
new section 292FC, inserted by Item 4. In accordance with subsection 287(9), a
person can become a candidate before being nominated as a candidate in an
election. The notification requirement in relation to candidates ensures that
details of relevant federal accounts are disclosed to the AEC prior to their
nomination where relevant. This supports compliance with amendments made by
Schedule 2 of the Bill.
734. Item 2 amends the existing definition of 'federal account' in subsection 287(1) to
provide that this account must be maintained with an authorised deposit-taking
institution within the meaning of the Banking Act and kept in Australia. This is
consistent with existing requirements for deposits of election funding in
subsection 299A(2). It ensures that money is paid to a legitimate account with a
financial institution that is licensed by the Australian Prudential Regulation
Authority to accept deposits from the public.
Division 2A--Use of federal accounts
735. Item 4 inserts new Division 2A in Part XX, comprised of new sections 292FA,
292FB and 292FC.
736. New section 292FA deals with the use of federal accounts. New subsection
292FA(1) requires that all electoral expenditure incurred by a regulated entity
must be paid from a federal account. The requirement supports compliance with
expenditure cap amendments made by Schedule 4 of the Bill. Electoral
expenditure is defined in existing section 287AB of the Electoral Act. For
political entities, it includes all expenditure in relation to an election (refer to
287AB(3) of the Electoral Act).
737. Under existing subsections 302CA(4)-(4A) of the Electoral Act, once a gift of
money is deposited in a federal account it is used only for a 'federal purpose' (as
defined in section 287) or transferred to another federal account.
738. For the avoidance of doubt, in new Division 2A and new section 302CB inserted
by Schedule 3 of the Bill, a gift 'made' or 'used' for a federal purpose includes a
gift of money made or used for a federal purpose, even if the gift was originally
made for a federal election but was not used until a subsequent federal election.
138
The provisions are not intended to require a gift of money made for a specific
federal election (whether a by-election, Senate election, or general election) to be
used exclusively for that election.
739. The table in new subsection 292FA(1) specifies, among other things: the person
or entity subject to the obligations under section 292FA, and the relevant period
in which the person or entity is subject to the obligation.
740. Item 1 of the table provides that the agent of a candidate in an election is subject
to the obligations for the period in which the candidate is a candidate in an
election. This period is defined in subsection 287(9), as repealed and substituted
by Schedule 1 of the Bill, as commencing on the earlier of: the day the person
announced they would be a candidate in the election; the day the person
nominated as a candidate in the election; the day the person received a gift for a
federal purpose in relation to the person's campaign as a candidate that exceeds
the disclosure threshold; or the day that the person incurred electoral expenditure
for the purposes of the person's campaign as a candidate that exceeds the
disclosure threshold. The period ends seven days after polling day in the election.
741. While the table in new subsection 292FA(1) does not expressly make candidates
subject to the obligation, a candidate will be subject to the obligations if they do
not appoint an agent, as they will be taken to be their own agent under existing
subsection 289(2).
742. Item 2 of the table provides that the agent of a registered political party is subject
to the obligations during the period that the party is a registered political party.
743. Item 3 of the table provides that the agent of a State branch of a registered
political party is subject to the obligation for the period the State branch is a State
branch of the registered political party.
744. Item 4 of the table provides that a member of the House of Representatives or a
Senator is subject to the obligation during the period commencing when the
member or Senator becomes such a member or Senator and concluding at the end
of their parliamentary term.
745. Items 5 to 7 of the table provides that the financial controller of a significant
third party, associated entity or nominated entity is subject to the obligation from
the day the significant third party, associated entity or nominated entity (as the
case may be) is registered as such, until the day they are deregistered from the
relevant status.
746. This period is complemented by the requirement in existing subsections 287F(3)
and 287H(3) that an entity that meets the criteria of a significant third party or
associated entity must not incur electoral expenditure or fundraise any amounts
for the purpose of incurring electoral expenditure (e.g. receive gifts) until they
are so registered.
747. Item 8 of the table provides that a third party is subject to the obligation from the
day in a calendar year that they incur electoral expenditure over the disclosure
threshold (definition of 'third party' in section 287 refers) until the end of the
calendar year.
748. New subsection 292FA(2) requires the persons and entities subject to the
obligation, as detailed in the table in 292FA(1), to take all reasonable steps to
139
ensure that gifts for a federal purpose received during the relevant period by a
person or entity in column 2 are credited to the recipient's federal account during
the relevant period. This requirement must be met for the gift of money to be
exclusively covered by federal electoral law.
749. The requirement for gifts of money to be credited to a federal account ensures
that the money is used only for a federal purpose as intended. It also enables the
AEC to more easily identify gifts of money when auditing disclosures for
compliance with legislative requirements.
750. The obligation in subsection 292FA(2) builds upon the existing requirement in
paragraph 302CA(4)(a) for a regulated entity (as defined in section 287) to credit
a gift of money into a federal account as soon as practicable after the money is
received.
751. New subsection 292FA(3) establishes an additional obligation for an agent of a
registered political party that receives an amount paid under section 298D or
298E from the Electoral Commission by cheque payable to a registered political
party. The agent must ensure that amount is credited to the party's federal
account within 7 days of receiving the cheque. The requirement to credit these
amounts to a federal account is consistent with arrangements that apply to
payments made by the AEC via direct credit. The requirement is appropriate
given the purpose of the public election funding regime to reimburse electoral
expenditure from federal accounts.
752. New subsection 292FA(4) provides that a person or entity subject to the
obligation in the table in 292FA(1) must take all reasonable steps to ensure that
no amount, except a gift of money for a federal purpose or the amount of an
election funding cheque is credited to a federal account. This requirement is
subject to the exceptions in new subsection 292FA(5)-(6).
753. New subsection 292FA(5) provides limited exceptions to the requirement in new
292FA(4). It provides that the requirement does not apply to money that is
required or permitted to be credited to a federal account by any other provision of
the Electoral Act, interest earned on money in a federal account, loans, bequests,
or any other amount of a kind prescribed by the regulations.
754. New paragraph 292FA(5)(e) further specifies that the requirement in subsection
292FA(4) does not apply to an amount paid from a federal account by a core
member of a registered political party's expenditure group (as defined in new
section 302ALF, inserted by Schedule 4) to another core member of that same
expenditure group.
755. New paragraph 292FA(5)(f) specifies the requirement in subsection 292FA(4)
does not apply to an amount paid from a federal account by one political party to
another political party, if
• the parties are related to each other within the meaning of paragraph
123(2)(a) because one party is part of the other (while not being a State
branch of the other); and
• the party that is part of the other is a registered political party.
756. New paragraph 292FA(5)(g) specifies that the requirement in subsection
292FA(4) does not apply to an amount of administrative assistance funding that
140
is to be used to incur electoral expenditure. This is to allow a recipient of
administrative assistance funding to transfer such funding to their federal account
for the purpose of spending it on electoral expenditure that does not contravene
section 302AG.
757. Note 1 under subsection 292FA(5) alerts the reader that paragraph 292FA(5)(c)
allows all loans to be paid into the federal account, regardless of whether they are
commercial or non-commercial loans. Note 2 directs the reader to paragraph
287AAB(3)(r) for instances where certain loans are not gifts. Note 3 alerts the
reader, in the context of paragraph 292FA(5)(g), that expenditure can
simultaneously be administrative expenditure and electoral expenditure.
758. New subsection 292FA(6) provides that subsection 292FA(4) does not apply to
certain payments made to a significant third party, associated entity or third party,
being subscriptions and amounts paid in respect of a person or entity's
membership or affiliation with the entity, and annual levies paid by elected
officials or employees of the entity. These payments are exempt from the
definition of gift under new section 287AAB, inserted by Item 18 of Schedule 1.
759. Where a significant third party, associated entity or third party relies on new
subsection 292FA(6) to credit these payments to their federal account, the
financial controller of that entity must ensure that, in relation to a particular
person or entity, the sum of the membership subscription, affiliation payment and
annual levy credited to the federal account throughout the calendar year does not
exceed the new annual gift cap of $20,000 in section 302B (Item 1 of Schedule 3
refers). This amount is indexed annually under section 321A, as amended by
Item 9 of Schedule 3 of the Bill.
760. A Note is included under subsection 292FA(6) to direct the reader that amounts
covered by paragraphs 292FA(6)(a)-(c) that are credited to a federal account by
the financial controller, are gifts under subsection 287AAB(4) (Schedule 1 refers)
and are subject to expedited disclosure obligations under Division 4, inserted by
Schedule 2 of the Bill.
761. New subsection 292FA(7) prescribes the actions required if amounts are
incorrectly credited to a federal account. If a person or entity subject to the
obligation becomes aware that an amount has been credited to a federal account
that is not permitted to be credited to a federal account, they must ensure that an
equivalent amount is withdrawn or transferred from the account within 6 weeks
of becoming so aware. The subsection recognises that it may not be possible in
all cases for a person or entity to control payments to a federal account.
762. New subsection 292FA(8) creates a civil penalty provision for where a person or
entity fails to comply with an obligation that applies to them under section
292FA. This new civil penalty provision carries a penalty of 200 penalty units.
For clarity, as provided in new subsections 292FA(2) and (4), a person or entity
does not contravene new Division 2A if they have taken all reasonable steps to
ensure compliance.
763. The AEC will have new powers to assist in ensuring compliance with the
obligations in Part XX. These are provided for in new section 314AN, as inserted
by Schedule 9 of the Bill.
141
764. New section 292FB specifies the kinds of federal accounts to be used by each
person or entity subject to the obligation in section 292FA(1). Contravention is
subject to a civil penalty of 200 penalty units. Additionally, regulations may be
made to prescribe other kinds of federal accounts to be used by each person or
entity subject to the obligation.
765. Section 292FB provides the flexibility for each person or entity to structure their
financial affairs and federal accounts in a way that meets their business and
operational needs while still meeting their obligations under Part XX. It also
allows the continued use of existing accounts kept for the purposes of Part XX
recognition of the requirement for federal accounts having been in place since
2018. If an existing account is used as a federal account, it must have been in
existence immediately before the commencement of this section and must have
been kept for the purposes of Part XX in relation to the relevant entity. A person
or entity can have more than one federal account and there is no requirement to
establish an extra federal account upon commencement of this Schedule.
766. The agent of an unendorsed candidate in an election (including a candidate acting
as his or her own agent) must use a new federal account, opened for the purposes
of Part XX, in relation to the candidate. In the case of a candidate who is
endorsed by a registered political party, the party's agent must use either a new or
an existing federal account kept for the purposes of Part XX in relation to that
registered political party.
767. The agent of a registered political party must use: a federal account that was in
existence immediately before commencement of the section and kept for the
purposes of Part XX in relation to the party; or a new federal account opened for
the purposes of Part XX in relation to the registered political party. Under the
new section, a similar requirement applies to the agent of a State branch of a
registered political party.
768. A person who is a member of the House of Representatives or a Senator must
use: a federal account that is kept for the purposes of Part XX in relation to a
registered political party; a federal account that was kept for the purposes of Part
XX while they were a candidate in the election that resulted in them becoming a
member of the House of Representatives or a Senator; or a new federal account
that is opened for the purposes of Part XX in relation to the member or Senator.
769. The financial controller in relation to a significant third party, associated entity or
nominated entity must use: a federal account in existence immediately before the
commencement of this section that was kept for the purposes of Part XX in
relation to the significant third party, associated entity or nominated entity (in the
nominated entity's capacity as an associated entity), as relevant; or a new federal
account opened for the purposes of Part XX in relation to the significant third
party, associated entity or nominated entity, as relevant.
770. Similarly, a third party must use: a federal account that was in existence
immediately before the commencement of the section that was kept for the
purposes of Part XX in relation to the third party; or a new federal account
opened for the purposes of Part XX in relation to the third party.
771. New section 292FC requires persons and entities to provide a written notice to
the AEC following the first relevant use of a federal account. New
subsection 292FC(1) creates a civil penalty provisions requiring each person or
142
entity who is the subject of the obligation in subsection 292FA(1) to provide such
a written notification to the AEC within a 7-day period commencing on the
earlier of the first day on which expenditure incurred by the person or entity is
paid for with money from a federal account, or the first day on which a gift of
money received by the person or entity is credited to a federal account.
Contravention is subject to a civil penalty of 200 penalty units.
772. New subsection 292FC(2) provides that the notice must set out the details of that
federal account. If the federal account was opened on or after the day on which
this section commences and, on the day before the notice is given, the account
has a balance of $20,000 or more, then the notice must also include a statement to
that effect.
773. Transition and application rules may apply to subsections 292FC(1) and (2)
under rules provided for by Schedule 11.
774. Subsection 292FC(3) provides that, if a notice is received by the AEC stating that
a federal account has been opened on or after the day on which this section
commences and, on the day before the notice is given, the account has a balance
of more than $20,000, then one or more authorised officers (as defined in new
Division 5C) must conduct an investigation in relation to that federal account. A
Note is included after subsection 292FC(3) to direct readers to new section
314AN for the powers available to an authorised officer conducting investigation.
775. Item 5 inserts a new paragraph (ca) in existing section 298A, which deals with
the form of a claim for election funding. The new paragraph requires such a
claim to specify the federal account to which the election funding is to be paid
(except of the claim is made by the agency of a registered political party). This is
because existing section 299A already deals with the nomination of a bank
account for the purposes of a party receiving payments of election funding. As
provided by the amendment in Item 11 below, a bank account nominated for the
purposes of section 299A must be a federal account kept for the purposes of Part
XX.
776. Item 6 inserts a Note at the end of section 298A to direct the reader to section
299A for if the election funding amount is payable to the agent of a registered
political party.
777. Items 7 and 9 make minor drafting amendments to subsections 298D(2) and
298E(2) respectively that are consequential to the insertion of paragraph 298A(c)
by Item 5
778. Items 8 and 10 repeal Note 1 at existing subsections 298D(2) and 298E(2),
which relate to payments made following the acceptance of an interim claim and
final claim respectively. A new Note 1 is included after both subsections, alerting
the reader that section 298A deals with matters to be specified in claims,
including the federal account into which the election funding is to be paid, except
where the claim is made by the agent of a registered political party.
779. Item 11 repeals existing paragraphs 299A(2)(b) and (c), which specify the
requirements that apply to a bank account nominated by a party for the purposes
of receiving payments of election funding, and inserts new paragraph
299A(2)(b). This new paragraph requires the nominated bank account be a
federal account kept for the purposes of Part XX.
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Schedule 7--Administrative assistance funding and election funding
Part 1--Administrative assistance funding
Commonwealth Electoral Act 1918
780. This Schedule inserts a new Division 3AA into Part XX of the Electoral Act,
which establishes a framework for registered political parties, independent
members of the House of Representations and independent Senators to receive
quarterly payments of administrative assistance funding. This funding cannot be
used on campaign advertising in any election, whether federal or state.
Administrative assistance funding that is not spent in the calendar year it is
received must be returned to the Commonwealth the following year.
781. A registered political party's quarterly entitlement to administrative assistance
funding is calculated in proportion to how many members of the House of
Representatives and Senators were members of the party in the preceding quarter.
Generally, in a quarter, a registered political party will be entitled to $7,500 for
each party member in the House of Representatives and $3,750 for each party
member in the Senate. These dollar amounts are indexed to inflation each year on
1 July. A member of the House of Representatives or a Senator who is a member
of more than one registered political party must nominate the party to which they
wish their entitlement to accrue.
782. An independent member's, or an independent Senator's, quarterly entitlement to
administrative assistance funding is calculated by reference to the number of days
that they were an independent member or Senator in the preceding quarter.
Generally, an independent member of the House of Representatives will be
entitled to $7,500 each quarter and an independent Senator will be entitled to
$3,750 each quarter. These dollar amounts are indexed each year on 1 July to
inflation each year on 1 July.
783. This framework will be subject to compliance and auditing controls, including
the AEC's strengthened investigative powers provided by Schedule 9 of the Bill.
If a recipient provides the AEC with incorrect or incomplete information about
the recipient's administrative expenditure in its annual return and subsequently
refuses to provide further information on request, the AEC will have powers to
reduce future payments of administrative assistance funding or recover amounts
paid.
784. This Schedule gives effect to recommendation 8 in the JSCEM Interim Report to
'introduce a new system of administrative funding'.56 It also gives effect to
recommendation 16 of the Senate Legal and Constitutional Affairs References
Committee's Nationhood, national identity and democracy report to introduce
'administrative funding for political parties and elected independents'.57
785. This system is consistent with existing administrative funding frameworks in
Victoria, NSW, South Australia and the ACT. For example, the NSW and
Victorian state frameworks also provide funding for specified categories of
administrative expenses, paid quarterly in advance to independent members of
56
Joint Standing Committee on Electoral Matters, Parliament of Australia, Conduct of the 2022 federal
election and other matters (Interim Report, June 2023) 68 [2.256].
57
Senate Standing Committee on Legal and Constitutional Affairs, Parliament of Australia,
Nationhood, national identity and democracy (Report, February 2021) 179 [6.87].
144
their State Parliaments and to political parties based on their representation in
those Parliaments.
786. Item 1 inserts new definitions in subsection 287(1) to support the interpretation
of new Division 3AA.
787. The definition of 'administrative expenditure', set out in new section 287AAA,
establishes the categories of payments for which that administrative assistance
funding can be used.
788. The definition of 'independent member' is used to refer to a person who is a
member of the House or Representatives or a Senator and who is not a member
of a registered political party. These independent members are still entitled to
receive administrative assistance funding, which they receive directly instead of
through a party.
789. Administrative assistance funding amounts are calculated and paid at the
beginning of each quarter in a calendar year. A 'quarter' is defined as a three-
month period beginning on 1 January, 1 April, 1 July or 1 October.
790. The quantity of a registered political party's quarterly entitlement is calculated by
reference to how many members of the House of Representatives and Senators
were a member of the party in the preceding quarter. The new definitions of
'House of Representatives qualifying day' and 'Senate qualifying day' set out in
new section 302AB enable these calculations to be made pro-rata if the number
of members or Senators in the party, or the party's registration, changed
throughout that preceding quarter.
791. Item 2 inserts new section 287AAA to establish the definition of 'administrative
expenditure'. A registered political party or independent member who receives
administrative assistance funding must disclose details of their administrative
expenditure as part of their annual return obligations in new sections 310 and
310B inserted by Schedule 5 of the Bill. This administrative expenditure is
relevant to the recovery of administrative assistance funding in new sections
302AI and 302AJ.
792. New subsection 287AAA(1) sets out the categories of 'administrative
expenditure' by a registered political party or an independent member, subject to
the exceptions in new subsection 287AAA(2).
793. Expenditure that falls within one of the categories set out in new paragraphs
287AAA(1)(a)-(j) will only be 'administrative expenditure' to the extent that it
relates, either directly or indirectly, to a matter under the Electoral Act. The
categories are types of administrative expenses incurred in preparing for and
participating in electoral activities apart from campaigning.
794. The category of expenditure in new paragraph 287AAA(1)(a) is expenditure for
the administration or management of the Electoral Act activities of the registered
political party or independent member. Such expenditure could, for example, be:
• expenditure in relation to the party or member receiving, storing and using
Electoral Roll information in accordance with paragraphs 91A(1)(a)-(b),
91A(2)(a)-(b), and section 91B;
145
• expenditure in relation to the party or member engaging in public
consultation of proposed redistributions under Part IV;
• expenditure in relation to the party or member submitting objections or
seeking internal review of party registration under Part XI; or
• expenditure in relation to the party appointing a registered agent under Part
XX.
795. The category of expenditure set out in new paragraph 287AAA(1)(b) is
expenditure for functions at which the party or member's policies related to
Electoral Act matters are discussed or formulated. Such policies could, for
example, include:
• internal policies as to how the party or member intends to engage in the
Electoral Act activities covered in paragraph 287AAA(1)(a); or
• public policies that the party or member is considering taking to a federal
election.
796. The category of expenditure set out in new paragraph 287AAA(1)(c) is
expenditure on the auditing of financial accounts of the party or member related
to Electoral Act matters, or on the auditing in connection with claims or
disclosures under Part XX in relation to the party or member. Such financial
accounts could include a financial account that records the party's or member's
electoral expenditure and administrative expenditure incurred over the calendar
year.
797. The categories of expenditure in new paragraphs 287AAA(1)(d)-(g) are
expenditure in relation to staff who are engaged in one or more of the Electoral
Act matters specified in new paragraphs (a)-(c) for the party or member. These
categories are as follows:
• expenditure on that staff's remuneration for the time engaged in such
matter(s);
• expenditure on that staff's training relating to engaging in such matter(s);
• expenditure on the equipment or vehicles used by that staff to engage in the
matter(s), to the extent that the expenditure relates to that use; and
• expenditure on office accommodation for that staff and equipment.
798. As the definition of 'administrative expenditure' includes a number of
intermittent functions under the Electoral Act, for the purposes of new
paragraphs 287AAA(1)(d)-(g), 'staff' is intended to include consultants and other
people otherwise engaged by the member or party to undertake work.
799. The category of expenditure set out in new paragraph 287AAA(1)(h) refers to
expenditure on interest payments on loans, to the extent that those loans are in
connection with one or more of the categories of expenditure set out in new
paragraphs 287AAA(1)(a)-(g). This is to ensure that the total expenditure
associated with a particular category of administrative expenditure is covered,
including where a party or member must take out a loan to cover such expenses.
146
800. The category of expenditure set out in new paragraph 287AAA(1)(i) refers to
expenditure in relation to complying with obligations arising under the Electoral
Act. This is intended to include such expenditure not already covered by the
categories in paragraphs 287AAA(1)(a)-(h).
801. The category of expenditure set out in new paragraph 287AAA(1)(j) refers to
expenditure of a kind prescribed by regulations made for the purposes of new
section 287AAA. This enables the definition of 'administrative expenditure' to be
expanded over time as necessary. This allows the administrative assistance
funding framework to adapt to future changes to the administrative structures of
parties and independent members, and any future developments to the Electoral
Act.
802. Note 1 is included after subsection 287AAA(1) to alert the reader that
expenditure that is only partially in relation to a category (or categories) of
expenditure set out in subsection 287AAA(1) is administrative expenditure to
that (partial) extent. This remains subject to the exceptions in new subsection
287AAA(2).
803. Note 2 alerts the reader that an amount of administrative expenditure, including
remuneration paid to staff, can also be electoral expenditure. In such cases,
provisions in relation to electoral expenditure will also apply. For example, the
requirement that electoral expenditure be paid with money from a federal account
will apply, and may also contribute to the expenditure caps in Division 3AB.
804. Note 3 alerts the reader that the sharing of staff between the core members of a
registered political party's expenditure group will not be considered a 'gift', in
accordance with subparagraph 287AAB(3)(m)(i).
805. New subsection 287AAA(2) specifies that 'administrative expenditure' does not
include the following types of expenditure:
• expenditure incurred for the dominant purpose of creating or communicating
particular electoral matter;
• any expenditure to the extent that it is of a kind that is payable or
reimbursable by the Commonwealth to, or in relation to, a person, due to their
status as a member of the House of Representatives, a Senator or a Minister;
• expenditure incurred for a 'State or Territory electoral purpose', as defined in
section 287(1) to mean a purpose relating to a State, Territory or local
government election; and
• expenditure of a kind prescribed by the regulations.
806. The exclusions in new subsection 287AAA(2) are to make clear that, under new
section 302AG, administrative assistance funding cannot be used for such
excluded expenditure. Further, such expenditure cannot count towards a party or
individual's amount of administrative expenditure disclosed in their annual
return, which is relevant as to whether the AEC is to recover any administrative
assistance funding from the party or individual under new section 302AI.
807. The exclusion of electoral expenditure by new paragraph 287AAA(2)(a)
recognises that such expenditure is already appropriately reimbursed by election
funding under Division 3 of Part XX and by private gifts regulated under
147
Division 3A of Part XX. This also reflects the intention that a party or member
may use administrative assistance funding for expenses in relation to an election
(existing subsection 287AB(3)) apart from campaign material (electoral matter).
808. New paragraph 287AAA(2)(b) provides that administrative expenditure does not
include expenditure to the extent that it is of a kind that is payable or
reimbursable by the Commonwealth (except under Division 3AA) to, or in
relation to, a person who is or was a member of Parliament (including a Minister)
because that person is or was such a member or Minister. The application of this
paragraph is modified by new subsection 287AAA(3).
809. This exclusion means that administrative assistance funding does not duplicate or
overlap with other Commonwealth public funding for similar kinds of
administrative expenses, such as funding provided by the Parliamentary Business
Resources Act 2017 or the Members of Parliament (Staff) Act 1984. An item of
expenditure will be excluded from 'administrative expenditure' if it falls within
the category (or categories) of expenditure that those other Commonwealth
schemes fund, even if those other schemes have not reimbursed that specific item
of expenditure. The exception of Division 3AA from the exclusion is because
paragraph 287AAA(2)(b) would otherwise create a circular exclusion that wholly
nullifies the scope of 'administrative expenditure'.
810. The exclusion of expenditure for a 'State or Territory electoral purpose' by new
paragraph 287AAA(2)(c) is to ensure that administrative assistance funding is
not used for campaigning in a State or Territory or local government election, or
used for the small number of matters in the Electoral Act that concern such
elections (for example, using Electoral Roll information or postal voting statistics
in connection with a State, Territory or local government election in accordance
with sections 91A and 189B respectively).
811. The exclusion of expenditure of a kind prescribed by regulations under new
paragraph 287AAA(2)(d) is intended to enable the exceptions to 'administrative
expenditure' to be expanded over time through electoral regulations as necessary.
This will allow the administrative assistance funding framework to adapt to
future changes to the Electoral Act, other public funding frameworks, and the
administrative structures of parties and independent members.
812. A Note after new paragraph 287AAA(2)(d) directs the reader to section 287 for
the definition of 'State or Territory electoral purpose'.
813. New subsection 287AAA(3) provides that, insofar as new paragraph
287AAA(2)(b) excludes electoral expenditure (which is reimbursable by the
Commonwealth under Division 3), the paragraph only excludes expenditure
incurred for the dominant purpose of creating or communicating particular
electoral matter. This modified application is to ensure that new paragraph
287AAA(2)(b) does not supersede new paragraph 287AAA(2)(a) with a broader
exclusion of electoral expenditure than new paragraph 287AAA(2)(a) itself.
Division 3AA--Administrative assistance funding
814. Item 3 inserts new Division 3AA to provide the framework for administrative
assistance funding.
148
Subdivision A--Simplified outline of this Division
815. New section 302AA provides a simplified outline of new Division 3AA and the
operation of administrative assistance funding.
Subdivision B--Entitlement to administrative assistance funding
816. New section 302AB provides for when a registered political party is entitled to
administrative assistance funding, and how the amount of the party's entitlement
is to be calculated.
817. New subsection 302AB(1) provides that a registered political party is entitled to
administrative assistance funding for a quarter if the party was simultaneously a
registered political party and a Parliamentary party (within the meaning of
section 123) for the whole or a part of the immediately preceding quarter.
818. New subsection 302AB(2) outlines how a registered political party's entitlement
amount for a quarter is to be calculated. This amount is in proportion to how
many days in the immediately preceding quarter the party satisfied the
entitlement requirements in new subsection 302AB(1) and how many members
of the House of Representatives or Senators were in the party during those days.
819. The amount of a registered political party's entitlement is the sum of the
following:
• $7,500 for each person for whom every day in the immediately preceding
quarter was a 'House of Representatives qualifying day' for the person and
the party;
• the pro-rata proportion of $7,500 for each person for whom some, but not all,
days in the immediately preceding quarter were a 'House of Representatives
qualifying day' for the person and the party (pro-rata for how many of the
days in the immediately preceding quarter that were such days);
• $3,750 for each person for whom every day in the immediately preceding
quarter was a 'Senate qualifying day' for the person and the party; and
• the pro-rata proportion of $3,750 for each person for whom some, but not all,
days in the immediately preceding quarter were a 'Senate qualifying day' for
the person and the party (pro-rata for how many of the days in the
immediately preceding quarter that were such days).
820. The pro-rata calculations provide a mechanism for calculating a party's
entitlement where the party's entitlement status changed part-way through the
immediately preceding quarter. This change of entitlement status could occur
because, for example:
• a member of the House of Representatives or a Senator joined or left the
party during the preceding quarter;
• a member of the party joined or left the House of Representatives or Senate
during the preceding quarter; and/or
• the party became registered during the preceding quarter.
821. A new Note after new subparagraph 302AB(2)(d)(ii) alerts the reader that the
$7,500 and $3,750 amounts specified in new subsection 302AB(2) are indexed
149
each 1 July in accordance with new section 321AC. As this Schedule commences
on 1 July 2026, the first indexation will be on 1 July 2027.
822. New subsection 302AB(3) provides that the dollar amounts worked out under
new subsection 302AB(2) are to be rounded to the nearest whole dollar, with a
result ending in 50 cents being rounded up to the next whole dollar. A whole
dollar amount is more easily administered by the AEC and understood by
stakeholders, rather than cents or fractions of cents.
823. New subsections 302AB(4) and (5) provide the definition of 'House of
Representatives qualifying day' and 'Senate qualifying day' respectively. These
definitions are necessary to calculate the amount of a party's entitlement in
subsection 302AB(2), as that calculation is based on the number of days in a
quarter that were 'House of Representative qualifying days' or 'Senate qualifying
days' for the party and its members in Parliament.
824. New subsection 302AB(4) provides that a day in a quarter is a 'House of
Representatives qualifying day' for a person and their party if all of the following
were the case on the day:
• the party was a registered political party;
• the person was a member of the party; and
• the person was a member of the House of Representatives.
825. New subsection 302AB(5) provides that a day in a quarter is a 'Senate qualifying
day' for a person and their party if all of the following were the case on the day:
• the party was a registered political party;
• the person was a member of the party; and
• the person was a Senator.
826. A person is taken to have ceased to be a member of a party at the end of the day
in which the membership cessation occurred in accordance with the process for
calculating time under the items 3 and 4 of the table in subsection 36(1) of the
Acts Interpretation Act.
827. If a member of the House of Representatives or a Senator changes registered
political party during the immediately preceding quarter, the effect of new
subsections 302AB(1)-(5) is that the amounts accrued in respect of that
member's 'House of Representative qualifying days' or that Senator's 'Senate
qualifying days' in that quarter is shared pro-rata between the registered political
parties.
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Example--registered political party entitlement calculation
Jay is elected as a Senator on 1 July as a member of the Star Party. Jay is the
first elected member of the party, which has been a registered political party
for over a year.
Following a by-election, Bevan -- another member of the Star Party -- is
elected as a member of the House of Representatives on 1 September.
For the quarter commencing on 1 October, the amount of administrative
assistance funding the Star Party is entitled to is as follows (assuming no
indexation):
$7,500 ∗ 𝑥 $3,750 ∗ 𝑧
+
𝑦 𝑦
where x = the number of 'House of Representatives qualifying days' for the Star
Party in the immediately preceding quarter = 30 (1 September to 30 September)
where z = the number of 'Senate qualifying days' for the Star Party in the
immediately preceding quarter = 92 (1 July to 30 September)
where y = the number of days in the immediately preceding quarter = 92 (1 July to 30
September)
This calculation results in $6,195.65. As such, with rounding, the Star Party is
entitled to be paid $6,196 in administrative assistance funding on or before 7
October.
828. Under Part XI, State branches of a party can be registered separately to the
federal branch. If this is done, the Electoral Act treats the State branches and the
federal branch to be individual, but related, registered political parties within a
federated party structure.
829. New subsection 302AB(6) provides that a registered political party that is a State
branch of a federal party is not entitled to administrative assistance funding under
new section 302AB. Instead, for the purposes of administrative assistance
funding, a member of the House of Representatives or a Senator who is a
member of the State branch is taken to be a member of the federal party. This
means the federal party, not the State branch, receives the party's entitlement to
administrative assistance funding.
830. An example after new subsection 302AB(6) demonstrates the operation of the
new subsection. As illustrated by this example, where there are two registered
political parties, one of which is the State branch of the other (such as the Federal
Quokka Party and the Quokka Party (NSW)), only the federal branch (the Federal
Quokka Party) is entitled to administrative assistance funding in respect of
Parliamentary members of the State branch.
831. New subsection 302AB(7) clarifies that if an individual is a member of more than
one registered political party, then, for the purposes of subsection 302AB(1), only
the party nominated by the individual may rely on the individual as a member for
the purposes of administrative assistance funding. New paragraph 302AB(7)(b)
specifies that no party may rely on the individual as a member if, after the
Electoral Commission has given the individual at least 30 days to do so, the
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individual has not nominated a party for the purposes of administrative assistance
funding. For the avoidance of doubt, 'member' in new subsection 302AB(7)
refers to a person's membership of a party.
832. New subsections 302AB(6) and (7) ensure that a member of the House of
Representatives or Senator who is a member of multiple registered political
parties, such as a federal branch and a State branch, or multiple federal parties, is
not double-counted when calculating those parties' entitlement to administrative
assistance funding. This will also streamline the AEC's administration of the
funding framework, by ensuring that the AEC need only deal with the federal
branch of a federated party structure, and only one such federal branch per
member of the House of Representatives or Senator.
833. New section 302AC sets out the calculation of an independent member's
entitlement to administrative assistance funding.
834. New subsection 302AC(1) provides that an individual is entitled to
administrative assistance funding for a quarter if the individual was an
independent member for the whole or a part of the immediately preceding
quarter.
835. New subsection 302AC(2) specifies the amount of administrative assistance
funding to which an independent member is entitled for a particular quarter. Their
entitlement for a quarter is calculated by whichever of the following is
applicable:
• $7,500, if the individual was an independent member of the House of
Representatives for the whole of the immediately preceding quarter; or
• the pro-rata proportion of $7,500, if the individual was an independent
member of the House of Representatives for only some of the immediately
preceding quarter (pro-rata at the number of days in the immediately
preceding quarter that this was the case); or
• $3,750, if the individual was an independent Senator for the whole of the
immediately preceding quarter; or
• the pro-rata proportion of $3,750, if the individual was an independent
Senator for only some of the immediately preceding quarter (pro-rata at the
number of days in the immediately preceding quarter that this was the case).
836. The pro-rata calculations provide a mechanism for calculating an individual's
entitlement where the individual's independent member status changed part-way
through the immediately preceding quarter. This change of entitlement status
could occur because, for example:
• the individual joined or left a registered political party during the preceding
quarter;
• the individual joined or left the House of Representatives or Senate during the
preceding quarter; or
• the individual was a member of a party that became registered or deregistered
during the preceding quarter.
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837. A Note after new subparagraph 302AC(2)(d)(ii) alerts the reader that the $7,500
and $3,750 amounts specified in new subsection 302AC(2) are indexed each 1
July in accordance with new section 321AC. As this Schedule commences on 1
July 2026, the first indexation will be on 1 July 2027.
838. New subsection 302AC(3) provides that the dollar amounts worked out under
new subsection 302AC(2) are to be rounded to the nearest whole dollar, with a
result ending in 50 cents being rounded up to the next whole dollar. A whole
dollar amount is more easily administered by the AEC and understood by
stakeholders, rather than cents or fractions of cents.
Example--independent member entitlement calculation
Sean is elected to the Senate as an independent on 20 September. The amount
of funding he would be entitled to for the quarter commencing
1 October is calculated as below (assuming no indexation):
$3,750 ∗ 𝑥
𝑦
where x = the number of days Apolline was an independent member in the
immediately preceding quarter = 11 (20 September to 30 September)
where y = the number of days in the immediately preceding quarter = 92 (1 July to 30
September)
This calculation results in $448.37. As such, with rounding, Sean is entitled to
be paid $448 in administrative assistance funding on or before
7 October.
839. New section 302AD specifies that the period an individual is a member of the
House of Representatives or a Senator for the purposes of new Division 3AA is
the period the individual is to be paid remuneration as a member of the House of
Representatives or a Senator in accordance with sections 14 and 49 of the
Parliamentary Business Resources Act 2017.
840. The intention of new section 302AD is to ensure that the periods that an
individual (or their party) accrues administrative assistance funding entitlement is
the same as the periods that the individual is entitled to remuneration under the
Parliamentary Business Resources Act 2017. This is to enhance compliance and
understanding, by ensuring the period for both forms of Commonwealth public
funding is consistent.
Subdivision C--Payment and spending of administrative assistance funding
841. New section 302AE provides for the payment of administrative assistance
funding to registered political parties.
842. New subsection 302AE(1) provides that, if a registered political party is entitled
to administrative assistance funding under new section 302AB for a quarter, the
AEC must pay the amount of funding the party is entitled to before the end of the
seventh day in that quarter. This is subject to new subsections 302AE(5) and (10),
which apply if the party becomes deregistered before it is paid the payment.
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843. A payment to a registered political party must be made to the bank account
nominated by the party for the purposes of section 302AE. This account must:
• be maintained by the registered political party;
• be with an ADI within the meaning of the Banking Act;
• be kept in Australia; and
• not be a federal account kept for the purposes of Part XX.
844. New subsection 302AE(5) provides for the payment of administrative assistance
funding to a member of the House of Representatives or a Senator if they were a
member of a registered political party during the immediately preceding quarter
but that party became deregistered before the administrative assistance funding
was paid for the new quarter.
845. In such a situation, the amount of administrative assistance funding that the party
would have been paid for the new quarter is instead paid to all the members of
the House of Representatives and Senators who were a parliamentary member of
the registered political party in the immediately preceding quarter and who are
still in Parliament at the time of payment. This amount is paid to those sitting
members and Senators in equal shares, regardless of how long they were
members of the party when it was registered, whether they are in the House of
Representatives or Senate, or whether they have since joined a new registered
political party.
846. If a member of the House of Representatives or a Senator receives an amount of
administrative assistance funding in this way, new subsection 302AE(6) provides
that such an amount is treated as if the member or Senator were originally
entitled to it. This means that the member or Senator is responsible for the
amount being spent in accordance with new section 302AG, and the amount is
counted against that member or Senator's administrative expenditure (not the
party's administrative expenditure) for the purposes of new section 302AI.
847. New subsections 302AE(7)-(9) set out the procedural requirements that must be
followed when the AEC is paying a deregistered party's entitlement, or an equal
share of that entitlement, to an individual under new subsection 302AE(5). The
payment must be made to a bank account nominated by the individual for the
purposes of new section 302AE. This account must:
• be maintained by the individual;
• be with an ADI within the meaning of the Banking Act;
• be kept in Australia; and
• not be a federal account kept for the purposes of Part XX.
848. If, at the time of the proposed payment, there are no sitting members of the
House of Representatives or Senators left who were a parliamentary member of
the party when it held registration in the immediately preceding quarter, new
subsection 302AE(10) provides that the party's entitlement to payment in the
new quarter is extinguished.
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Example--party deregisters prior to receiving payment
On 1 February, Ricardo, Rosie and Florence are elected to the House of
Representatives as the only three members of the House of Representatives or
Senators of the Beach Party, a registered political party.
At the end of 31 May, the Beach Party deregisters and Ricardo retires from
Parliament.
For the quarter commencing 1 July, the payment that the Beach Party would
have received would be calculated as below (assuming no indexation):
$7,500 ∗ 𝑥
3∗
𝑦
where x = the number of days in the immediately preceding quarter that were 'House of
Representatives qualifying days' for the members and the Beach Party = 61 (1 April
to 31 May)
where y = the number of days in the immediately preceding quarter = 91 (1 April to 30
June)
This calculation results in $15,082.42. Therefore, with rounding, the Beach
Party would have been entitled to be paid $15,082 on or before 7 July.
As the Beach Party is no longer registered and Ricardo is no longer in
Parliament, the amount is to be paid to Rosie and Florence in equal shares.
Accordingly, the AEC is to pay $7,541 each to Rosie and Florence on or
before 7 July.
On 1 August, Rosie joins a new registered political party, of which she stays a
member for the rest of the calendar year. If she incurs less than $7,541 in
administrative expenditure during her period as an independent member
(1 June to 1 August), the AEC will be able to recover the shortfall from her
under section 302AI.
Florence remains an independent in the House of Representatives for the rest
of the calendar year. If she incurs less than $15,041 in administrative
expenditure (being equivalent to the sum of $7,541 on 7 July and $7,500 on
7 October that she would be paid), the AEC will be able to recover the
shortfall from her under section 302AI.
849. New section 302AF provides for the payment of administrative assistance
funding to independent members.
850. If an individual is entitled to administrative assistance funding because the
individual was an independent member for all or some of the immediately
preceding quarter, new subsection 302AF(1) provides that the AEC must pay the
individual's entitlement amount before the end of the seventh day in the new
quarter.
851. New subsection 302AF(1) requires this payment to be made even if the
individual is no longer an independent member at the time the AEC proposes to
pay the amount. This ensures that payment can still be made if, for example, the
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person left Parliament or joined a registered political party part-way through the
immediately preceding quarter.
852. New subsections 302AF(2)-(4) set out the mechanism requirements that must be
followed when the AEC is paying the individual. The payment must be made to a
bank account nominated by the individual for the purposes of new section
302AF. This account must:
• be maintained by the individual;
• be with an ADI within the meaning of the Banking Act;
• be kept in Australia; and
• not be a federal account kept for the purposes of Part XX.
853. If a member of the House of Representatives or a Senator leaves or joins a
registered political party (or their party becomes registered) during the
immediately preceding quarter, the combined effect of new sections 302AE and
302AF is that that individual's entitlement to payment in the new quarter is
shared pro-rata between the individual and their new/old registered political
party. The amount relating to the period that the member or Senator was an
independent member in the immediately preceding quarter will be paid to the
individual, whereas the amount relating to the period that the member or Senator
was a member of the registered political party in the immediately preceding
quarter will be paid to that party.
Example--Senator becomes an independent
At the beginning of 1 October, Caroline is a Senator and a member of the
registered political party called the Politics Party. On 12 November, Caroline
leaves the Politics Party to become an independent Senator.
For the new quarter commencing 1 January, the Politics Party's entitlement to
administrative assistance funding because of Caroline is as follows (assuming
no indexation):
$3,750 ∗ 𝑥
𝑦
where x = the number of days in the immediately preceding quarter that were 'Senate
qualifying days' for Caroline and the Politics Party = 43 (1 October to 12 November)
where y = the number of days in the immediately preceding quarter = 92 (1 October
to 31 December)
This calculation results in $1,752.72. Therefore, with rounding, the Politics
Party is entitled to be paid $1,753 in administrative assistance funding on or
before 7 January in relation to Caroline's time as a party Senator. The agent of
the Politics Party will be responsible for the spending of the amount under new
section 302AG, and the amount could potentially be recovered from the
Politics Party under new sections 302AI-302AJ.
For that same new January quarter, Caroline's entitlement to administrative
assistance funding as an independent member is calculated as below (assuming
no indexation):
156
$3,750 ∗ 𝑥
𝑦
where x = the number of days Caroline was an independent member in the
immediately preceding quarter = 49 (13 November to 31 December)
where y = the number of days in the immediately preceding quarter = 92 (1 October
to 31 December)
This calculation results in $1,997.28. Therefore, with rounding, Caroline is
entitled to be paid $1,997 in administrative assistance funding on or before
7 January as an independent member. Caroline will be responsible for the
spending of the amount under new section 302AG, and the amount could
potentially be recovered from Caroline under new sections 302AI-302AJ.
854. New section 302AG provides that administrative assistance funding can only be
spent on or attributed to administrative expenditure. This reflects the intention of
the new framework to assist registered political parties and independent members
with their administrative expenses, and no other forms of expenditure.
855. New subsection 302AG(1) provides that, where a registered political party is paid
administrative assistance funding, the agent of the party must ensure that the paid
amounts are used only to incur administrative expenditure. If the party becomes
deregistered after receiving payment, this obligation falls to the person who was
the agent of the party at the time of deregistration.
856. The AEC can notify the former party agent if the AEC is satisfied that, in the
calendar year when deregistration occurred, the party incurred as much (or more)
administrative expenditure as the party received in administrative assistance
funding. If the AEC does this, new subsections 302AG(2) and (3) provide that
the former agent's obligation in new subsection 302AG(1) ceases in relation to
any administrative assistance funding that the party was yet to spend at
deregistration. Instead, the former agent must ensure that any such unspent
amounts are not used to incur expenditure of a kind outlined in new subsection
287AAA(2).
857. An agent or former agent who contravenes new subsection 302AG(1) or (3) is
liable to a civil penalty of 200 penalty units.
858. New subsections 302AG(4) to (6) provide equivalent provisions with respect to
individuals who have been paid administrative assistance funding because they
are or were independent members, or because they are or were a member of a
recently-deregistered party.
Subdivision D--Recovery of amounts
859. New Subdivision D provides mechanisms for the recovery of administrative
assistance funding payments in certain circumstances.
860. If a registered political party or an individual was paid an amount of
administrative assistance funding that was not payable to that party or individual,
new section 302AH provides a mechanism for the AEC to recover the erroneous
excess. The AEC can recover the excess either:
157
• by reducing one or more future administrative assistance funding payment(s)
to the recipient by the excess amount, as an offset; or
• if the AEC is unable to off-set some or all of the excess amount using the
above offset method (for example, if the recipient is not entitled to any more
payments or their future payments will be too small), the amount that cannot
be offset becomes a debt due by the recipient to the Commonwealth.
861. If the AEC is satisfied that a recipient incurred less administrative expenditure in
a calendar year than the total amount of administrative assistance funding that
was payable to the recipient in that year, new section 302AI provides a
mechanism for the AEC to recover the surplus. The AEC can recover the surplus
either:
• by reducing one or more future administrative assistance funding payment(s)
to the recipient by the excess amount, as an offset; or
• if the AEC is unable to offset some or all of the excess amount using the
above offset method (for example, if the recipient is not entitled to any more
payments or their future payments will be too small), the amount that cannot
be offset becomes a debt due by the recipient to the Commonwealth.
862. The amount of administrative assistance funding referred to in section 302AI is
the total amount that the recipient was correctly paid ('was payable') in the
calendar year. It does not include any erroneous overpayment (recovery of which
is provided for under new section 302AH) or any entitlement accrued over the
last quarter of the calendar year (as that is not paid until the first week of the next
calendar year).
863. For the avoidance of doubt, the amount of administrative expenditure referred to
in section 302AI is:
• in relation to a registered political party, the total amount of administrative
expenditure the party incurred while the party was registered in the calendar
year (therefore excluding expenditure while deregistered); and
• in relation to an individual, the total amount of administrative expenditure the
individual incurred while an independent member in the calendar year
(therefore excluding expenditure while a member of a registered political
party or while not a member of the House of Representatives or a Senator).
864. If the AEC reasonably believes that a recipient of administrative assistance
funding has provided incorrect or incomplete information about the recipient's
administrative expenditure in the recipient's annual return under Part XX, new
subsections 302AJ(1) and (5) provide a mechanism for the AEC to seek further
information from the auditor who certified the annual return. The AEC may issue
a written notice to the auditor, requesting that the auditor provide specified
information to the AEC before the end of the period of 14 days beginning on the
day the notice is given.
865. If the auditor does not comply with the AEC's request, new subsections 302AJ(2)
and (6) provide a mechanism for the AEC to seek further information from the
recipient. The AEC may issue a written notice to the party's agent or the
independent member (or former agent or former independent member, as the case
158
may be), requesting the provision of specified information to the AEC before the
end of the period of 14 days beginning on the day the notice is given. For the
avoidance of doubt, this specified information need not be the same as the
information specified in the notice to the auditor.
866. If the party's agent or the individual does not comply with the AEC's further
request, new subsections 302AJ(3)-(4) and (7)-(8) provide a mechanism for the
AEC to recover an amount equal to all of the administrative assistance funding
that the recipient received in the relevant calendar year. The AEC can recover this
total amount either:
• by reducing one or more future administrative assistance funding payment(s)
to the recipient, as an offset; or
• if the AEC is unable to offset some or all of the total amount using the above
offset method (for example, if the recipient is not entitled to any more
payments or their future payments will be too small), the amount that cannot
be offset becomes a debt due to the Commonwealth.
867. For the avoidance of doubt, new sections 302AI and 302AJ can apply even where
the party becomes deregistered after a payment or the individual leaves
Parliament after a payment, due to the continued obligation regarding annual
returns in new sections 310 and 310B as inserted by Schedule 5 of the Bill. If the
independent member joins a registered political party and their annual return is
lodged on their behalf by the party in accordance with new subsection 310B(6)
inserted by Schedule 5 of the Bill, the auditor referred to in new subsections
302AJ(5)-(6) may be the party's auditor.
Indexation of administrative assistance funding amounts
868. Item 4 inserts new section 321AC, which provides the calculations for indexing
the $7,500 and $3,750 figures used in new Division 3AA (the 'indexable
amounts') to take account of increases in the CPI. The new section is drafted on
similar terms to existing sections 321 and 321A.
869. If there has been an increase in the CPI in the previous year, new subsections
321AC(1) and (3) provide the formula for calculating the increased dollar
amounts.
870. New subsection 321AC(2) provides that the newly-increased dollar amounts are
to be rounded to the nearest whole dollar (with 50 cents being rounded up). A
whole dollar amount is more easily administered by the AEC and understood by
stakeholders, rather than cents or fractions of cents.
871. New subsection 321AC(4) provides that the calculation of the change in the CPI
is to be worked out to three decimal places. If the fourth decimal place is five or
more, then the third decimal place it is rounded up.
872. New subsection 321AC(5) provides how amounts in new section 321AC are to
be worked out when there are changes to the CPI index reference period and
substituted index numbers. This will accommodate for any future update to the
index reference period, by ensuring consistency between indexation amounts
calculated before any republications and those calculated afterwards.
159
873. New subsection 321AC(6) provides the definitions relevant to the calculations in
new section 321AC.
Part 2--Election Funding
Commonwealth Electoral Act 1918
874. Part 2 of Schedule 7 provides an uplift to the dollar rate used to calculate the
amount of election funding paid to eligible recipients under Part XX. This will
commence on 1 July 2026.
875. As at 1 July 2024, the nominal dollar rate of $2.801 in subsection 287(1),
subparagraph 293(2)(a)(i), and paragraphs 294(2)(a) and 295(2)(a) has been
indexed to $3.346.
876. Items 5-8 amend subsection 287(1), subparagraph 293(2)(a)(i), and paragraphs
294(2)(a) and 295(2)(a) to substitute the existing dollar rate with the new amount
of $5. This amount will index under section 321A.
Part 3--Advance payment of election funding
Commonwealth Electoral Act 1918
877. Part 3 of Schedule 7 provides for the advance payment of election funding
payable under Division 3 of Part XX of the Electoral Act.
878. Division 3 of Part XX of the Electoral Act provides that election funding is
payable in relation to any candidate who received at least 4% of the total formal
first preference votes cast in the election. Election funding of $10,000 (as
indexed) is paid as soon as practicable after 20 days after the polling day for the
election or elections. However, a claim must be made for election funding of
more than that amount to be paid.
879. Part 3 of Schedule 7 provides that regulations may also provide for an amount of
election funding to be paid as an advance on funding that may be payable in
respect of a future election.
880. Item 9 inserts the definition of 'qualifying election' into subsection 287(1). This
provides that 'qualifying election' has the meaning given by new subsection
298J(2).
881. Item 10 inserts amends section 292G of the Electoral Act. Amended section
292G updates the simplified outcome of Division 3 to include the operation of
advance election funding.
882. Item 11 inserts new subdivision CA of Division 3 of Part XX--Advance
payment of election funding.
883. New subsection 298J(1) provides that the regulations may provide for an amount
to be paid, after a qualifying election is held, as an advance on election funding
that may become payable under the following sections (a future entitlement):
• section 293, in relation to a registered political party for an election to be held
in the future; or
160
• section 294 in relation to an unendorsed candidate for an election to be held
in the future. This includes members of Senate groups as provided by
subsection 298J(4)(ii).
884. New subsection 298J(2) provides that a 'qualifying election' is a general election
or a Senate election for all States and Territories. It does not include by-elections
or a Senate election for a single State or Territory.
885. New subsection 298J(3) provides that the regulations made under subsection
298J(1) must not provide for an amount to be paid as an advance on a future
entitlement under section 293 in relation to a registered political party unless:
• an amount was payable to the registered political party under section 293 for
the qualifying election, and the advance amount does not exceed that amount;
and
• a claim is made in respect of the registered political party in accordance with
the regulations.
886. New subsection 298J(4) provides that the regulations must not provide for an
amount to be paid as an advance on a future entitlement under section 294 in
relation to a candidate unless:
• either:
o an amount was payable to the candidate under section 294 as a candidate
in the qualifying election and the advance amount does not exceed that
amount; or
o an amount was payable to a group in the qualifying election under
section 295 and the candidate was a member of the group and the
advance amount does not exceed the amount determined under
subsection 298J(5); and
• a claim is made in respect of the candidate in accordance with the regulations.
887. New subsection 298J(5) provides that for the purpose of subparagraph 4(b)(ii),
the amount is the lower of:
• the amount payable to the group in the qualifying election as mentioned in the
subparagraph; and
• proportion of that amount prescribed by or worked out in accordance with the
regulations.
888. New subsection 298J(6) provides the regulations must not provide for more than
one amount to be paid as an advance on any particular future entitlement. This
does not provide the regulations from providing an amount to be paid in
instalments. This clarifies that only one claim can be made for advance funding
by a registered political party or a candidate.
889. New subsection 298J(7) provides that if an amount paid as an advance on a
future entitlement exceeds the future entitlement, the regulations must have the
effect that the excess may be recovered by the Commonwealth as a debt against
the recipient in a court of competent jurisdiction.
161
890. New subsection 298(8) provides that the regulations must require the Electoral
Commissioner to publish determinations made by the Electoral Commissioner of
claims for advance amounts.
891. New subsection 298J(9) provides that the regulations may make provision for
any or all of the following matters:
• the making of claims for advance amounts;
• the amount, or methods to work out the amount, of advance amounts;
• when and how advance amounts are payable;
• how recipients are to deal with advance amounts;
• the reduction of amounts to be paid in respect of any future entitlement, in
recognition of an amount having been paid as an advance on the entitlement;
• reporting obligations in relation to advance amounts; and
• any other matters necessary or convenient to be prescribed for carrying out or
giving effect to advance amounts provided for in accordance with subsection
298J(1).
892. New subsection 298J(10) extends the application of existing sections 299 and
302 and Division 6 of Part XX to advance amounts paid and claims made in
accordance with section 298J and its regulations.
893. New subsection 298J(11) extends the application of section 314AN (inserted by
Schedule 9 of the Bill) to regulations made under section 298J, in the same
manner that section 314AN applies to Part XX.
162
Schedule 8--Senate groups
894. Schedule 8 streamlines reporting and disclosure obligations in Part XX for
members of Senate groups.
895. A member of a Senate group currently has a dual status under the definition of
'political entity', as both a candidate and as a Senate group member. Disclosures
published on the Transparency Register under Part XX indicate that most
expenditure and donations are made in relation to a party or individual
candidates, not to the group itself.
896. Data published on the Transparency Register indicates that for the 2019 and 2022
federal elections, all endorsed Senate groups reported nil returns, with amounts of
donations and expenditure being disclosed in the annual returns of the relevant
registered political parties.58 In the 2022 federal election, there were 13
unendorsed Senate groups, each with two candidates.59 Of the resulting 39
disclosures furnished to the AEC in relation to these unendorsed Senate groups
(comprising 26 candidate disclosures and 13 group disclosures), only one return
disclosed any donations or expenditure unique to the Senate group itself.60
897. Schedule 8 removes the duplicative obligation to report by group. This will
reduce the regulatory burden for Senate groups and to support streamlined AEC
administration of Part XX.
Part 1--Main amendments
Commonwealth Electoral Act 1918
898. Part 1 of Schedule 8 amends various provisions in Part XX of the Electoral Act to
streamline and simplify reporting obligations for Senate groups.
899. Item 1 repeals and substitutes the definition of 'political entity' (including the
Note) in subsection 4(1) to remove references to members of a Senate group.
900. For the avoidance of doubt, the new definition of 'political entity' is not intended
to narrow the scope of 'electoral matter' in section 4AA. Instead, a member of a
Senate group remains in that scope due to being a candidate, a parliamentarian,
and/or a part of a registered political party or State branch.
901. Item 2 repeals the Note under the definition of 'group' in 287(1). This is
consequential to the repeal and substitution of new subsection 287(9) made by
Schedule 1 of the Bill.
58
Australian Electoral Commission, '2019 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024)
; Australian Electoral Commission,
'2022 Federal election Candidate and Senate Group Returns', AEC Transparency Register (Web Page,
31 July 2024) .
59
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024)
.
60
Australian Electoral Commission, '2022 Federal election Candidate and Senate Group Returns',
AEC Transparency Register (Web Page, 31 July 2024)
.
163
902. Item 3 inserts a Note after the definition of 'electoral expenditure' in subsection
287AB(1). This alerts the reader to the operation of new section 302ALB as
inserted by Schedule 4 of the Bill, which relates to a Senate group's electoral
expenditure.
903. Item 4 repeals and substitutes paragraph 298(3)(a) to remove the reference to
electoral expenditure being incurred by a Senate group. This is an amendment
consequential to the insertion of new section 302ALB by Schedule 4 of the Bill.
904. Item 5 repeals and substitutes a new definition of 'acceptable action period' in
section 302B.
905. The new definition no longer refers to a member of a Senate group being a
political entity. This removal reflects that members of a Senate group no longer
come within the definition of 'political entity' inserted by Item 1.
906. The new definition also no longer refers to a gift being made to or for the benefit
of a member of a Senate group (paragraph (c) of the repealed definition). This
removal reflects the insertion of new section 302CAA by Schedule 3 of the Bill,
which provides that a gift made to a Senate group or their agent is taken to be
received by the group's candidates or parties (depending on the circumstances),
not by the group itself.
907. Item 6 omits 'Senate groups' from the heading of section 302D. This is an
amendment consequential to the insertion of new section 302CAA by Schedule 3
of the Bill.
908. Items 7 and 8 repeal subsections 302D(6) and 302F(8) respectively. These
repeals are consequential to the repeal and substitution of new subsection 287(9)
made by Schedule 1 of the Bill.
Part 2--Contingent amendments
Commonwealth Electoral Act 1918
909. Part 2 of Schedule 8 includes contingent amendments to give effect to the
amendments made in Part 1. These amendments commence 1 July 2026 (subject
to the commencement of item 43 or 44 of Schedule 1 to this Act.
910. Items 9 and 10 are amendments to the subheadings in subsections 302D(5) and
302F(7) that are contingent upon Items 43 and 44 of Schedule 1 not
commencing. If those Items in Schedule 1 do not commence (and thus the
subheadings are not repealed) on or before 1 January 2026, Items 9 and 10
remove 'and groups' from the subheadings, to reflect the repeal of subsections
302D(6) and 302F(8) by Items 7 and 8 of this Schedule.
164
Schedule 9--Compliance and enforcement powers
911. Part XX sets out obligations relating to election funding and disclosure, including
expenditure caps, gift caps, funding transparency and foreign donation
restrictions. Schedule 9 inserts new Division 5C into Part XX, which outlines the
AEC's enforcement and compliance powers for ensuring that these Part XX
obligations are upheld by those who engage in the electoral process.
912. Part 1 of Schedule 9 amends investigative powers for authorised AEC officers to
ensure compliance with Part XX. These authorised officers may issue
information-gathering notices and may seek and execute search warrants from a
magistrate, in relation to information or documents relevant to enforcing Part
XX.
913. Information-gathering notices from an authorised officer can require a person to
produce documents, give information, or appear before the officer to answer
questions. Search warrants can empower an authorised officer to enter a specified
location to seize and retain any documents of a kind described in the warrant.
914. Part 2 of Schedule 9 enhances the AEC's powers to prevent persons engaging in
schemes that avoid the application of Part XX obligations, including the new
obligations regarding expenditure caps and gift caps inserted by Schedules 3 and
4 to the Bill. It establishes criminal and civil penalties for engaging in such an
avoidance scheme and increases the penalties for failing to comply with an AEC
notice to cease engaging in a scheme that the AEC reasonably suspects is to
avoid Part XX obligations.
915. Part 2 of this Schedule will commence on 1 July 2026, consistent with the
commencement of the expenditure caps and gift caps inserted by Schedules 3 and
4 to the Bill.
Part 1--Compliance and enforcement powers
Commonwealth Electoral Act 1918
916. Items 1 and 2 repeal and substitutes subsections 17(2C) and 17A(1) respectively.
These amendments are consequential to new section 314AN at Item 3 by
removing from subsections 17(2C) and 17A(1) references to repealed subsection
316(2A).
917. Item 3 inserts new Division 5C in Part XX. This replaces the existing
compliance and enforcement powers given to the AEC in section 316, which is
repealed by Item 4. The new powers are a streamlined, modernised amendment
of the repealed powers in section 316.
918. New section 314AKA provides a simplified outline of new Subdivision A of
Division 5C of Part XX.
919. New section 314AL provides the definition of 'authorised officer' for new
Division 5C. This means a person authorised by the AEC under new section
314AM. This replaces the existing definition in repealed section 316 and
complements other amendments included in this Schedule, including new section
314AM.
165
920. New section 314AM provides for the appointment of authorised officers. The
AEC may appoint such persons in writing to exercise powers under new
Subdivision B, provided that the AEC has first considered whether the persons or
class of persons have appropriate expertise.
921. New section 314AN outlines the powers of an authorised officer to obtain
information, documents or other things that are relevant for the purposes of
ensuring compliance with Part XX (or the Criminal Code to the extent that it
relates to Part XX).
922. If an authorised officer has a reasonable belief that a person is capable of giving
such relevant information or producing such relevant documentation, an
authorised officer may issue a written notice requiring the person to do any or all
of the following:
• give the officer any such information in a specified manner and form;
• produce to the officer any such document or other thing in a specified manner
and form; and
• answer questions (either orally or in writing) from the officer, at a specified
date and time and under oath or affirmation.
923. An authorised officer's written notice must specify the period within which the
person must comply. This period must be at least 14 days after the notice is
given, but be no more than 30 days afterwards if it is for the giving of relevant
information, documentation or things. The notice must also set out the penalties
for failure to comply and the person's right to request internal review.
924. Upon receipt of a notice, the person may request that the AEC review the
authorised officer's decision to issue the notice. The person must give their
request to the AEC in writing before the latest date the person is due to comply
with the notice.
925. Once the person makes their request, the person is not required to comply with
the authorised officer's notice unless and until the AEC affirms or varies the
authorised officer's decision. This is so the person does not become in breach of
compliance simply because they are awaiting the completion of the AEC's
review.
926. If a person requests review, the AEC must review the authorised officer's
decision as soon as practicable. The AEC must notify the person of the review
decision.
927. In its internal review, if the AEC has decided to affirm or vary the authorised
officer's decision (and therefore the person's obligation to give information,
documents and/or answers has been reinstated), the AEC must notify the person
of the new date by which the person must comply. This new date for compliance
must be at least 14 days after the AEC gives notice of its review decision (but no
more than 30 days if it is for the giving of relevant information, documentation or
things). This minimum is to ensure that the person does not lose time to comply
because they were awaiting the completion of the AEC's review.
928. If a person fails to comply with an authorised officer's notice or a notice from the
AEC, the person:
166
• commits a fault-based offence, the maximum penalty for which is 6 months'
imprisonment or 30 penalty units, or both;
• commits a strict liability offence, the penalty for which is 10 penalty units;
and
• is liable to a civil penalty of 60 penalty units.
929. For the purposes of applying Chapter 2 of the Criminal Code to the fault-based
offence and the strict liability offence, section 314AU provides that the physical
elements of these offences are set out in new subsection 314AN(13). Chapter 2 of
the Criminal Code sets out general principles of criminal responsibility.
930. For the purposes of applying the Electoral Act and the Regulatory Powers Act,
section 314AV provides that a reference to a contravention of new subsections
314AN(14), (15) and (16) includes a reference to a contravention of new
subsection 314AN(13).
931. New section 314AO permits the agent of a political party, or the financial
controller of a significant third party, third party, associated entity or nominated
entity, to attend (or nominate a person to attend) a proceeding where another
officer of the political party, significant third party, third party, associated entity
or nominated entity (as the case may be) has been issued with an authorised
officer's notice to appear.
932. New section 314AP permits an authorised officer to inspect and copy, and retain
such copies of, a document produced under new section 314AN. It is intended to
operate in a similar manner to existing section 321G in Part XXA.
933. New section 314AQ provides the mechanism for an authorised officer to obtain a
search warrant relevant to ensuring compliance with Part XX of the Electoral
Act.
934. An authorised officer may apply to a magistrate for a search warrant if both of
the following are satisfied:
• the authorised officer has reasonable grounds for suspecting that there may
be, at any time within the following 24 hours and in any location, a document
or other thing that may provide evidence relating to a contravention of a civil
penalty provision or offence in Part XX; and
• the authorised officer has reasonable grounds to believe that, if a notice were
issued under new section 314AN for the production of the document or other
thing, the document or other thing might be concealed, lost, mutilated or
destroyed.
935. Upon application, the magistrate may issue a search warrant that authorises the
authorised officer (or any other person) to:
• enter and search a location for documents or other things that may provide
evidence relating to a contravention of Part XX; and
• seize any such documents or other things.
936. In executing the warrant, the authorised officer may use such force against
objects and things, such as locks, as they think reasonably necessary. The
167
authorised officer (and any other person authorised by the warrant) may also use
such assistance as they think reasonably necessary.
937. A magistrate can grant a search warrant only if they have been given an affidavit
setting out all necessary information about the grounds for a warrant, and the
magistrate is satisfied that there are reasonable grounds for issuing the search
warrant.
938. To ensure that a search warrant is specifically targeted and transparent, an issued
search warrant must:
• describe the location to which the warrant relates;
• state the purposes for which the warrant is issued, including a reference to the
alleged contravention to which the warrant relates;
• state the name of the executing officer of the warrant;
• state whether entry is authorised at any time of the day or night;
• describe the kind of documents or other things authorised to be seized; and
• state the day that the warrant ceases to be in force, which cannot be more than
seven days after issue.
939. If, at the time of executing a search warrant that relates to land or a premises, the
occupier of the land or premises is present, the executing officer must give a copy
of the warrant to that person. If another person is present at the land or premises
and apparently represents the occupier, the officer must provide a copy of the
warrant to that person.
940. Where, at the time of executing a search warrant that relates to a vessel, aircraft
or vehicle, the owner of the vessel, aircraft or vehicle is present, the executing
officer must give a copy of the warrant to that person. If another person is present
who apparently represents that owner, the officer must provide a copy of the
warrant to that person.
941. When executing the warrant, the executing officer must identify themselves to
the person present at the land, premises, vessel, aircraft or vehicle being
searched.
942. New section 314AR provides for the AEC to take possession of and use
documents and other things that have been produced or seized under new
sections 314AN or 314AQ.
943. An authorised officer may take possession of documents or other things that were
produced under a notice issued under section 314AN, or that were seized under a
search warrant issued under section 314AQ. The authorised officer may retain
these documents or other things for as long as is reasonably necessary after
taking possession, but for no longer than 60 days unless as evidence in
proceedings.
944. If an authorised officer so retains a document, the person otherwise entitled to
possession of the document (such as the document's owner) is entitled to be
supplied by the authorised officer, as soon as practicable after the person so
requests, with a certified copy of the document. This certified copy is acceptable
168
in all courts and tribunals as if it were the original. This is intended to ensure that
the person is not prevented from relying on that document in court or tribunal
proceedings merely because the AEC has possession of the original.
945. If an authorised officer retains a document and has not provided the person with a
certified copy, the authorised officer must permit the person (or another person
authorised by that person) to inspect and make copies of the document at such
times and places as the officer thinks appropriate.
946. Authorised officers may use documents or other things produced or seized if the
document or other thing is necessary for:
• investigating a contravention of a Part XX offence or civil penalty; and/or
• proceedings in relation to a contravention of a Part XX offence or civil
penalty, including deciding whether to institute such proceedings.
Repeal of existing Part XX investigation powers
947. Item 4 repeals existing section 316.
Part 2--Anti-avoidance
Commonwealth Electoral Act 1918
948. Part 2 of Schedule 9 consolidates existing anti-avoidance provisions in Part XX
and extends their application to the provisions inserted by Schedule 3 and
Schedule 4 of the Bill. Schedule 9 also introduces penalty provisions for
engaging in a scheme to avoid obligations under Part XX.
949. Items 5-8 repeal and remove references to the existing anti-avoidance provisions
in the Electoral Act, being sections 287S, 302H and 314AK. This removal is
consequential to the insertion by Item 9 of new consolidated anti-avoidance
provisions.
950. Item 9 provides a simplified outline of Subdivision C of new Division 5C of
Part XX.
951. Item 10 inserts new Subdivision C at the end of new Division 5C of Part XX.
952. New section 314AS prohibits a person entering into, beginning to carry out or
carrying out a scheme for the sole or dominant purpose of avoiding the
application of certain Part XX obligations to the person or another person or
entity. This is applicable whether the person is acting alone or with others, and is
applicable regardless of the location where the scheme is entered into, begun or
carried out.
953. These Part XX obligations are any of the following:
• the requirement to register as a significant third party or an associated entity
under existing sections 287F and 287H respectively;
• the expenditure cap civil penalty provisions in Division 3AB of Part XX, as
inserted by Schedule 4 of the Bill. These provisions are new sections 302AG,
302AGA, 302AGB, 302AE, 302AF, 302AK, 302AL, 302AM, 302AN,
302AQ, 302AQA, 302AQB, 302AO and 302AP;
169
• the gift cap civil penalty provisions in Subdivisions AA and AC of Division
3A of Part XX, inserted by Schedule 3 of the Bill. These provisions are new
sections 302CD, 302CE, 302CF and 302CI;
• the prohibitions on donations by foreign donors under existing sections 302D,
302E and 302F; and
• the prohibitions on electoral expenditure or fundraising by foreign
campaigners under section 314AJ.
954. A Note after new subsection 314AS(1) alerts the reader to the existing definition
of 'scheme' in subsection 287(1). This is an expansive definition covering any
form of agreement, arrangement, understanding, promise, scheme, plan, proposal,
action or course of conduct.
955. It is necessary and appropriate for the section to have operation in respect of
conduct done outside of Australia, as a foreign anti-avoidance scheme could have
a significant impact on an Australian election. This also complements the
extended geographical application provided in existing section 321E.
956. If a person engages in such an avoidance scheme, the person:
• commits a fault-based offence if the contravention is with intention or
recklessness (see subsection 5.4(4) and section 5.6 of the Criminal Code).
The maximum penalty for this offence is three years' imprisonment or 180
penalty units, or both; and
• is liable to a civil penalty. The penalty for this civil penalty provision is
identical to the amount of the penalty to which the person (or the other person
or entity) would have been liable under the Part XX obligations they sought
to avoid. If their scheme sought to avoid multiple Part XX obligations with
differing penalty amounts, the civil penalty for the avoidance scheme is the
higher of the different amounts.
957. The higher penalty amount for the civil penalty provision is commensurate with
the penalties for the applicable Part XX obligations. The penalty unit amount for
the offence provision is lower, in recognition that the penalties related to the
applicable Part XX obligations do not provide for imprisonment.
958. For the purposes of applying Chapter 2 of the Criminal Code to the fault-based
offence, section 314AU provides that the physical elements of the offences are
set out in new subsection 314AS(1). Chapter 2 of the Criminal Code sets out
general principles of criminal responsibility.
959. For the purposes of applying the Electoral Act and the Regulatory Powers Act,
section 314AV provides that a reference to a contravention of new subsection
314AS(2) or (3) includes a reference to a contravention of new subsection
314AS(1).
960. New section 314AT empowers the Electoral Commissioner to issue a notice
requiring the recipient to not enter, begin or continue (as the case may be) a
scheme that the Electoral Commissioner has reasonable grounds to conclude is an
avoidance scheme in contravention of new section 314AS. Consistent with new
section 314AS, this is applicable whether the person is acting alone or with
170
others and is applicable regardless of the location where the scheme is entered
into, begun or carried out.
961. An anti-avoidance notice from the Electoral Commissioner must specify the
conduct constituting the scheme and must require the recipient not to enter into,
begin or continue to carry out the scheme.
962. As with new section 314AS, it is necessary and appropriate for this section to
have operation in respect of conduct done outside of Australia, as a foreign anti-
avoidance scheme could have a significant impact on an Australian election. This
also complements the extended geographical application provided in existing
section 321E.
963. If the person contravenes or fails to comply with the Electoral Commissioner's
anti-avoidance notice, the person:
• commits a fault-based offence if the contravention is with intention or
recklessness (see subsection 5.4(4) and section 5.6 of the Criminal Code).
The maximum penalty for this offence is three years imprisonment or 180
penalty units, or both; and
• is liable to a civil penalty. The amount of the penalty for this civil penalty
provision is the same as to what the person (or the other person or entity)
would have been liable under the Part XX obligations they sought to avoid. If
their scheme sought to avoid multiple Part XX obligations with differing
penalty amounts, the civil penalty for the avoidance scheme is the higher of
the different amounts.
964. The higher penalty amount for the civil penalty provision is commensurate with
the penalties for the applicable Part XX obligations. The penalty unit amount for
the offence provision is lower, in recognition that the penalties related to the
applicable Part XX obligations do not provide for imprisonment.
965. For the purposes of applying Chapter 2 of the Criminal Code to the fault-based
offence, section 314AU provides that the physical elements of the offences are
set out in new subsection 314AT(3). Chapter 2 of the Criminal Code sets out
general principles of criminal responsibility.
966. For the purposes of applying the Electoral Act and the Regulatory Powers Act,
section 314AV provides that a reference to a contravention of new subsection
314AT(4) or (5) includes a reference to a contravention of new subsection
314AT(3).
967. Note 1 informs the reader that a decision to give an anti-avoidance notice can be
subject to internal review by the Electoral Commissioner under section 120. This
is consequential to the amendment of section 120 by Item 5.
968. Note 2 directs the reader to the existing definition of 'scheme' in subsection
287(1). This is an expansive definition covering any form of agreement,
arrangement, understanding, promise, scheme, plan, proposal, action or course of
conduct.
969. The notice power in new section 314AT is intended to be a consolidated,
expanded replacement of the Electoral Commissioner's power in existing
sections 287S, 302H and 314AK, which are repealed by Items 6-8.
171
Schedule 10--Machinery amendments
Commonwealth Electoral Act 1918
970. Items 1, 5, 7 and 8 make amendments to section 55A and subsection 68(1) that
are consequential to Items 3, 4 and 6.
971. Items 2-4, 6 and 9-11 amend sections 64, 68 and 69 to modernise how the AEC
must provide for public inspection or exhibition of certain documents related to
proposed redistributions of Divisions. These amendments remove the
requirement for the documents to be made publicly available for physical
inspection or exhibition at AEC offices and replace it with a requirement for the
documents to be published on the AEC website. The Redistribution Committee or
Electoral Commission (as the case may be) may cause the documents to be
published in any other additional manner that they consider appropriate.
972. Items 9 and 10 amend subsections 69(2) and (4) to also clarify that the Electoral
Commission does not need to wait until the 5th Monday and 7th Monday after
gazettal to cause the relevant publication to occur.
973. Items 12 and 13 amend paragraph 93(8)(a) and subsection 118(4) to replace the
expressions 'being of unsound mind' and 'unsoundness of mind' with the
expression 'cognitive impairment'. This is intended to be a language
modernisation without changing the scope of either provision.
974. Item 14 inserts new subsection 125(1A) to require the Register of Political
Parties to be published on the AEC website and in any other additional manner
that the Electoral Commissioner considers appropriate. Item 15 repeals section
139 to remove the requirement for the Register of Political Parties to be made
available for physical inspection. These Items make a digitisation amendment
equivalent to Items 9 and 10.
975. For the avoidance of doubt, Items 2-11 and 14-15 are not intended to prevent the
Redistribution Committee, Electoral Commission or Electoral Commissioner (as
the case may be) from determining that physical inspection or exhibition at AEC
offices is an appropriate method in the circumstances.
976. Item 16 inserts new paragraphs 184A(2)(caa) and (cab) to expand the grounds
upon which an elector can apply to be registered as a general postal voter. The
two new grounds relate to persons with disability and their carers and are as
follows:
• due to being a person with disability, the applicant is unable to travel from the
place where the applicant lives to a polling place; or
• due to caring for a person with disability at a place (other than a hospital), the
applicant is unable to travel from that place to a polling place.
977. For the avoidance of doubt, 'disability' is not intended to be limited to physical
disability. New paragraphs 184A(2)(caa) and (cab) are also not intended to limit
the scope of any of the existing grounds in subsection 184A(2).
978. Item 17 is an amendment consequential to Item 18.
979. Item 18 repeals subsections 185(1A) and (1B). This allows the AEC to process a
general postal voter application from a defence member, defence civilian, AFP
172
officer or AFP staff member who will shortly be (but is not yet) serving outside
Australia. This is intended to reduce the administrative burden of voting overseas
for those personnel, particularly if they are posted overseas shortly before or
during voting.
980. Items 19, 21-24 and 28-33 remove the requirement for a voter's ballot paper to
be folded after they have marked their vote on the ballot paper.
981. For the avoidance of doubt, these amendments are not intended to prohibit a
voter from voluntarily folding their ballot paper after marking their vote. These
amendments are also not intended to change any existing prohibition or authority
regarding the unfolding of a folded ballot paper.
982. Item 20 inserts new section 199A to provide a process for a DRO, or an AEC
officer acting at the direction of a DRO, to follow if they receive a postal vote
envelope that the voter has incorrectly packaged such that the DRO or officer
cannot view the voter's name and Electoral Division from the exterior of the
envelope. This is intended to avoid a postal vote having to be discarded merely
because the voter's name and Electoral Division are not visible from the exterior
of the postal vote envelope.
983. Consistent with sections 195A-200, this process is intended to be available to the
DRO or officer at the stage when they first receive the envelope, prior to the
postal vote undergoing forwarding under subsection 227(10) or section 228 or
undergoing preliminary scrutiny under subsection 266(3).
984. New subsection 199A(1) provides the two limbs that must be satisfied for the
section to apply.
985. The first limb, in new paragraph 199A(1)(a), is satisfied if the DRO or officer
receives an envelope that purports to contain a postal ballot paper on which a
vote has been recorded.
986. The second limb, in new paragraph 199A(1)(b), is satisfied if the DRO or officer
is satisfied that it is reasonably necessary to open the envelope in order for the
DRO or officer to record the voter's name and Electoral Division as shown in the
postal vote certificate.
987. New subsection 199A(2) provides that, if the above two limbs are satisfied, the
DRO or officer may open the envelope to make the record referred to in new
paragraph 199A(1)(b).
988. New subsection 199A(3) specifies that, if a DRO or officer opens an envelope in
accordance with new subsection 199A(2), the DRO or officer must, as soon as
practicable after making the record referred to in new paragraph 199A(1)(b),
place the postal vote certificate and ballot paper back into the postal vote
envelope and fasten the envelope.
989. Items 25 and 27 amend subsection 226(5) and paragraph 227(8)(e) to clarify that
new subsection 341(1) inserted by Item 35 extends to hospital polling under
section 224 and mobile polling under section 227.
990. Item 26 repeals and replaces subsection 226(7) to make a digitisation amendment
equivalent to Items 14 and 15 in relation to notices specifying the location and
times of hospital polling in an Electoral Division. The amendment removes the
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requirement for the DRO to physically display such a notice at their office and
replaces it with a requirement for the DRO to cause the notice to be published on
the AEC website. Item 26 also inserts new subsection 226(7A), which retains the
same timeframe for publication as currently exists for physical display, being not
later than 4 pm on the day before polling day.
991. Item 34 repeals and replaces subsection 266(2) to make an equivalent digitisation
amendment in relation to notices specifying the location and time of the
commencement of a preliminary scrutiny. The amendment removes the
requirement for the DRO to physically display such a notice at their office and
replaces it with a requirement for the DRO to cause the notice to be published on
the AEC website. Item 34 also inserts new subsection 266(2A), which retains the
same timeframe for publication as currently exists for physical display, being not
later than 4 pm on the day before the day of commencement of the preliminary
scrutiny.
992. For the avoidance of doubt, Items 26 and 34 are not intended to prevent the DRO
from determining that physical display of the notice at their office is an
appropriate method in the circumstances.
993. Item 35 repeals and replaces subsection 341(1) to clarify the prohibition on
officers or scrutineers wearing or displaying any badge or emblem of a candidate
or political party when in a polling booth or a pre-poll voting office. The
amendment clarifies that the prohibition extends to pre-polling and adjourned
polling, not just polling day.
994. Item 36 inserts a Note under paragraph 348(1)(c). This Note specifies that
making an audio or video recording in the premises without the permission of the
person in charge of the premises is an example of conduct that may be
'misconduct' under paragraph 348(1)(a). The 'premises' is a reference to the
applicable premises listed in subsection 348(2) and 'the person in charge of the
premises' is a reference to the applicable person listed in subsection 348(4).
995. This Note is not intended to provide that all video or audio recording without
permission is necessarily 'misconduct' under paragraph 348(1)(a). For the
paragraph to be satisfied, the person's conduct while making the recording in the
premises must still constitute 'misconduct' within the existing scope of paragraph
348(1)(a).
996. For the avoidance of doubt:
• 'permission' is intended to include permission given in writing, verbally, non-
verbally, explicitly, implicitly, proactively or retrospectively; and
• 'in the premises' is intended to limit the Note to recordings made by the
person while the person is in the premises, as opposed to recordings made of
the premises by a person outside the premises (e.g. satellite photography).
997. Item 37 inserts new subsection 348(1A) to create a new offence relating to the
publication of recordings that are made in contravention of paragraph 348(1)(a).
New subsection 348(1A) specifies that a person commits an offence if they
satisfy the four limbs contained in new paragraphs 348(1A)(a)-(d). The new
offence carries a penalty of 5 penalty units.
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998. New paragraph 348(1A)(a) specifies the first limb of the new offence, which is
that a person makes an audio or video recording in a premises referred to in
subsection 348(2).
999. New paragraph 348(1A)(b) specifies the second limb of the new offence, which
is that the person who makes the recording in the premises does so without the
permission of the person in charge of the premises. For the avoidance of doubt,
this can include when recording and publication are simultaneous, such as 'live-
streaming' that keeps a record.
1000. New paragraph 348(1A)(c) specifies the third limb of the new offence, which
is that the making of the recording constitutes a contravention of paragraph
348(1)(a).
1001. New paragraph 348(1A)(d) specifies the fourth limb of the new offence, which
is that the person who made (or is making) the recording publishes, or causes to
be published, the whole or a part of the recording. For the avoidance of doubt,
this can include:
• publication where the person does not retain a copy of the recording, such as
unrecorded 'live-streaming'; and
• publication that is carried out by the person when they are no longer in the
premises.
1002. Item 38 is an amendment consequential to Item 37. It amends subsection
348(5) to include a person who contravenes new subsection 348(1A) as a person
who may be removed from the premises by a police officer or an 'authorised
person' (as defined in subsection 348(6)).
1003. Item 39 repeals and replaces paragraphs 4 and 5 of Schedule 2 to expand the
grounds upon which an elector can apply for a postal vote or pre-poll vote. The
two new grounds relate to persons with disability and their carers and are as
follows:
• the elector will be unable to attend a polling booth on polling day because the
elector is a person of disability; or
• the elector will be unable to attend a polling booth on polling day because the
elector will be caring for a person with disability at a place other than a
hospital.
1004. Item 39 also makes minor terminology and formatting updates so that
paragraphs 4 and 5 of Schedule 2 are consistent with one another and with
paragraphs 4 and 5 of Schedule 3 to the Referendum Act (for example, consistent
use of 'expected shortly' to give birth, not 'approaching').
1005. Items 40-42 amend Schedule 3 to streamline preliminary scrutiny of certain
declaration vote envelopes where the voter has already had their signature
witnessed at the time of voting and enrolment correctly verified through the use
of an approved list.
1006. Item 40 inserts new paragraph 6AA into Schedule 3. It provides that, if the
DRO is satisfied of all the limbs in subparagraphs 6AA(a)-(d) in relation to a
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pre-poll declaration vote envelope or an absent vote envelope, the DRO may take
the envelope as having met the requirements of paragraph 6 (signature check).
1007. This means that, if so satisfied, the DRO does not need to conduct duplicative
checks to additionally satisfy themselves of the grounds in subparagraph 6(b) and
(c) in relation to the envelope. Operational benefits from this change will be more
fully realised for elections held after 1 January 2026 given the lead-time required
for legacy system changes.
1008. New subparagraph 6AA(a) of Schedule 3 specifies the first limb, which is that
the DRO is satisfied that the envelope purports to contain either:
• a pre-poll vote ballot paper for an elector who, were pre-poll ordinary voting
available to voters from the elector's Division at the pre-poll voting office
where the elector voted (in accordance with section 200BA and paragraph
200DG(1)(c)), would have been entitled to vote by pre-poll ordinary vote; or
• an absent vote ballot paper.
1009. The terms 'pre-poll vote ballot paper' and 'absent vote ballot paper' are
intended to have the same meaning as in subparagraphs 6(b) and (c) of Schedule
3.
1010. This first limb is intended to prevent the streamlined process applying to
postal votes, provisional votes, or a pre-poll declaration vote from an elector who
was not entitled to a pre-poll ordinary vote because of subsection 200DG(2). The
exclusion of these declaration vote categories from the streamlining means that
the grounds in subparagraphs 6(a), (ca), (cb) and (e) are not relevant to new
paragraph 6AA.
1011. New subparagraph 6AA(b) specifies the second limb, which is that the DRO is
satisfied that the pre-poll vote ballot paper or absent vote ballot paper (as the case
may be) in the envelope was issued to the elector referred to in subparagraph
6AA(a) by a voting officer who was correctly using an approved list of voters for
the elector's Division.
1012. For the avoidance of doubt, 'voting officer' is intended to include a 'pre-poll
voting officer' as defined in section 4, an 'issuing officer' for the purposes of
section 200E, or a 'presiding officer or polling official' for the purposes of
section 231 (as applicable).
1013. This second limb is intended to prevent the streamlined process applying to an
elector's vote if the voting officer used a paper-based copy of a certified list of
voters or Electoral Roll (as opposed to an approved list of voters, which is
electronic) to verify the elector's entitlement to vote.
1014. New subparagraph 6AA(c) specifies the third limb, which is that the DRO is
satisfied that the elector referred to in subparagraph 6AA(a) is neither a
designated elector nor a person whose address has been excluded or deleted from
a Roll under section 104 (that is, a silent elector).
1015. This third limb is intended to prevent the streamlined process applying to
votes cast by designated electors and silent electors.
1016. New subparagraph 6AA(d) specifies the fourth limb, which is that the DRO is
satisfied that it is appropriate for the envelope to be taken to meet the
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requirements of paragraph 6. This limb is intended to provide additional
discretion for the DRO to choose not to apply the streamlined process for an
envelope if, for whatever reason, it would not be appropriate for the integrity or
efficiency of the preliminary scrutiny.
1017. Item 41 inserts new sub-subparagraph 10(a)(ia) into Schedule 3, which relates
to the grouping of envelopes to which the DRO has applied new paragraph 6AA
in a preliminary scrutiny for a general election (or stand-alone Senate election).
This means that, if a DRO decides to take the envelope as having satisfied the
requirements of paragraph 6 in accordance with new paragraph 6AA, the DRO
must place that envelope into the group referred to in subparagraph 10(a).
1018. Item 42 inserts new sub-subparagraph 11(a)(ia) in equivalent terms to Item 41
for a House of Representatives election not held concurrently with a Senate
election (that is, a by-election).
1019. Items 41 and 42 are intended to relieve the DRO of the need to conduct the
enrolment checks in paragraphs 10 and 11 that would otherwise be required for
the DRO to determine which group is appropriate for the envelope.
1020. Since the DRO would already be satisfied under new paragraph 6AA that the
declaration vote was correctly issued using an approved list (with the enrolment
verification that this process entails), it would be duplicative for the DRO to be
required to conduct the enrolment verification again.
1021. For the avoidance of doubt, the amendments in Items 40-42 are not intended
to change the preliminary scrutiny process outside of paragraphs 6, 10 and 11 of
Schedule 3.
1022. Item 43 repeals paragraph 21 of Schedule 3. This removes the requirement for
the DRO to provide a written explanation to a declaration voter whose vote is
finally excluded from further scrutiny.
1023. For the avoidance of doubt, the repeal of paragraph 21 is intended to enhance
the AEC's flexibility in how it provides educative and explanatory information to
voters in accordance with its functions under section 7 of the Electoral Act. The
repeal is not intended to limit the AEC's ability to perform these functions or to
prevent the AEC providing written explanations to voters.
Referendum (Machinery Provisions) Act 1984
1024. Item 44 amends paragraph 35(a) for conformity with drafting convention and
to make clear that the voter must follow all the requirements of section 35.
1025. Items 45-51, 55 and 57-60 remove the requirement for a voter's ballot paper
to be folded after they have marked their vote on the ballot paper. This is
intended to be equivalent to the amendments made to the Electoral Act by Items
19, 21-24 and 28-33.
1026. Items 52 and 54 amend subsection 50(4) and paragraph 51(8)(e) to clarify that
new subsection 132(1) inserted by Item 62 extends to hospital polling under
section 48 and mobile polling under section 51. This is intended to be equivalent
to the amendments made to the Electoral Act by Items 25 and 27.
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1027. Item 53 amends section 50 to digitise the notices specifying the location and
times of hospital polling in an Electoral Division. It is intended to be equivalent
to the amendments made to the Electoral Act in Item 26.
1028. Item 56 inserts new section 71AAA. This is intended to be equivalent to new
section 199A of the Electoral Act inserted by Item 20.
1029. Item 61 amends section 89A to digitise the notices specifying the location and
time of the commencement of a preliminary scrutiny. It is intended to be
equivalent to the amendments made to the Electoral Act in Item 34.
1030. Item 62 repeals and replaces subsection 132(1) to clarify the prohibition on
officers or scrutineers wearing or displaying any badge or emblem of a candidate
or political party when in a polling booth or a pre-poll voting office. This
amendment is intended to be equivalent to the amendment made to the Electoral
Act by Item 35.
1031. Item 63 inserts a Note under paragraph 135(1)(c) that specifies that making an
audio or video recording in the premises without the permission of the person in
charge of the premises is an example of conduct that may be 'misconduct' under
paragraph 135(1)(a). This is intended to be equivalent to the amendment made to
the Electoral Act by Item 36.
1032. Item 64 inserts new subsection 135(1A). This new subsection is intended to be
equivalent to the amendment made to the Electoral Act by Item 37.
1033. Item 65 is an amendment consequential to Item 64. It is intended to be
equivalent to the amendment made to the Electoral Act by Item 38.
1034. Item 66 repeals and replaces paragraphs 4 and 5 of Schedule 3. The expansion
of the grounds for pre-poll and postal voting is intended to be equivalent to the
expansion of the grounds in paragraphs 4 and 5 of Schedule 2 to the Electoral Act
in Item 39.
1035. Items 67 and 68 amend Schedule 4 to streamline preliminary scrutiny of
certain declaration vote envelopes where the voter has already had their signature
witnessed and their enrolment correctly verified, using an approved list, at the
time of voting. These amendments are intended to be equivalent to the
amendments to the Electoral Act in Items 40-42.
1036. Item 69 repeals paragraph 18 of Schedule 4. This is intended to be equivalent
to the repeal of paragraph 21 of Schedule 3 to the Electoral Act by Item 43.
1037. Item 70 is an amendment consequential to Item 69.
1038. Item 71 provides for the application of the new offence provisions made by
Items 35, 37, 62 and 64. These new offence provisions will apply only in relation
to acts or omissions that occur on or after the commencement of Schedule 10. For
acts or omissions that occur prior to the commencement of Schedule 10, the
existing offence provisions apply.
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Schedule 11--Transitional rules
Commonwealth Electoral Act 1918
1039. Subitem 1 of Item 1 inserts an instrument making power that enables the
Minister to make a legislative instrument prescribing matters of a transitional,
application or saving nature relating to amendments or repeals made by this Bill.
This instrument would be subject to scrutiny by both Houses of Parliament and
subject to disallowance.
1040. Subitem 2 of Item 1 clarifies that the rules may provide that where an item that
amends, inserts, substitutes or repeals a provision of an Act, the provision as
amended, inserted or substituted does not apply generally, or in relation to any
specified matters or classes of matters, for a specified period after that
commencement.
1041. This makes it clear that the rules can defer operation of an item in this Bill
after its commencement.
1042. This supports the application of various obligations, by providing a
mechanism for obligations under Part XX of the Electoral Act to transition from
a financial year basis to a calendar year basis.
1043. Subitem 3 clarifies that an instrument made under this power must not specify
an application date that ends later than 30 June 2027.
1044. Subitem 4 makes it clear that these rules cannot create an offence of a civil
penalty, provide powers for arrest, detention, entry, search or seizure, impose a
tax or set an amount to be appropriated from the Consolidated Revenue Fund
under an appropriation.
1045. The rules also cannot directly amend the Act, including transitional and
application provisions included for specific Schedules.
1046. Subitem 5 provides that, other than as outlined in subitems 3 and 4 above, the
Act does not limit the rules that may be made under this item.
1047. The power to make instruments commences the day after Royal Assent. An
instrument made pursuant to this item would not have a retrospective application,
as this instrument power is subject to subsection 12(2) of the Legislation Act.
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