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2008-2009
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES)
BILL 2009
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Special Minister of State,
Senator the Hon John Faulkner)
COMMONWEALTH ELECTORAL AMENDMENT (POLITICAL DONATIONS AND OTHER MEASURES)
BILL 2009
OUTLINE
The Commonwealth Electoral Amendment (Political Donations and Other
Measures) Bill 2009 (the Bill) primarily amends the funding and disclosure
provisions of the Commonwealth Electoral Act 1918 (the Electoral Act). The
Bill contains measures implementing commitments made in the 2007 federal
election campaign as well as addressing recommendations made by the Joint
Standing Committee on Electoral Matters (JSCEM) following its inquiry into
the Commonwealth Electoral Amendment (Political Donations and Other
Measures) Bill 2008 (the 2008 Bill). Following JSCEM's inquiry, on 23
October 2008 the Advisory Report on the Commonwealth Electoral Amendment
(Political Donations and Other Measures) Bill 2008 (the Advisory Report)
was presented to the House of Representatives. JSCEM made eight
recommendations in the Advisory Report, two of which called for changes to
the 2008 Bill.
The Bill contains provisions that will:
. reduce the disclosure threshold from 'more than $10,000' (indexed to the
Consumer Price Index annually) to $1,000 (non-indexed);
. require people who make gifts above the threshold to candidates and
members of groups during the election disclosure period to furnish a
return within 8 weeks after polling day. Agents of candidates and groups
have a similar timeframe to furnish a return in relation to gifts
received during the disclosure period;
. if they fall within the relevant provision, require people who make
gifts, agents of registered political parties, the financial controller
of an associated entity, or people who have incurred political
expenditure to furnish a return within 8 weeks after 31 December and 30
June each year rather than following the end of each financial year;
. ensure that for the purposes of the $1,000 threshold and the disclosure
of gifts, related political parties are treated as the one entity;
. make unlawful the receipt of a gift of foreign property by political
parties, candidates and members of a Senate group. It will also be
unlawful in some situations for associated entities and people incurring
political expenditure to receive a gift of foreign property;
. extend the current prohibition on the receipt of anonymous gifts above
the threshold to prohibit the receipt of all anonymous gifts above $50 by
registered political parties, candidates and members of a Senate group.
It will also be unlawful in some situations for people and candidates to
incur political expenditure if an anonymous gift above $50 enabled that
political expenditure. The receipt of an anonymous gift of $50 or less
may only be received in two specified situations;
. provide that public funding of election campaigning is limited to
declared expenditure incurred by the eligible political party, candidate
or Senate group, or the sum payable calculated on the number of first
preference votes received where they have satisfied the 4% threshold,
whichever is the lesser;
. add, with specified restrictions, five additional categories of electoral
expenditure. These additional categories are the rental of premises, the
payment of additional staff, the purchase and hire of office equipment,
consumables and running costs for that equipment and travel and
accommodation;
. prevent sitting members of Parliament from claiming electoral expenditure
if allowances, entitlements or benefits received by a member of
Parliament in his or her capacity as a member are used to meet that
expenditure;
. exempt unendorsed candidates and unendorsed members of Senate groups from
reporting against the four new categories of electoral expenditure;
. provide for the recovery of gifts of foreign property that are not
returned, anonymous gifts that are not returned and undisclosed gifts;
and
. introduce new offences and penalties related to the new measures and
increase the penalties for existing offence provisions.
FINANCIAL IMPACT STATEMENT
There may be additional costs for the Australian Electoral Commission,
however the exact magnitude is difficult to quantify. It is possible that
public funding for elections may be reduced due to the operation of the
payment of the lesser amount between election expenditure and the 4%
threshold. There may be increased revenue as a result of recovering
unlawful gifts or undisclosed gifts.
NOTES ON CLAUSES
Clause 1 - Short title
1. This clause provides for the Act to be cited as the Commonwealth
Electoral Amendment (Political Donations and Other Measures) Act 2009.
Clause 2 - Commencement
2. This clause provides that sections 1 to 3 commence upon Royal Assent
and all items in Schedule 1 commence on 1 July 2009.
Clause 3 - Schedule(s)
3. This clause provides that each Act specified in a Schedule to this Act
is amended or repealed as set out in the applicable items in the
Schedule, and any other item in a Schedule to this Act has effect
according to its terms.
Schedule 1 - Amendment of the Commonwealth Electoral Act 1918
Part 1 - Amendments
Commonwealth Electoral Act 1918
Item 1 - Subsection 4(1)
4. This item inserts a definition of 'related' into the Interpretation
section of the Electoral Act. The definition of 'related' is based on
subsection 123(2) of the Electoral Act which is repealed by item 4.
The concept of related parties is now relevant for Part XI and Part XX
of the Electoral Act. In the application of this definition to Part XX
of the Act, it applies so that the total value of the gifts made by
donors to 'related' parts of a political party will be subject to the
$1,000 disclosure threshold.
Item 2 - Subsection 4(1)
5. This item inserts a definition of 'reporting period' into the
Interpretation section of the Electoral Act. A definition of
'reporting period' is required due to the amendments made by items 46,
67 to 70, 74, 76, 78 to 81, 84 to 88, 90, 91 and 94. The definition
applies for Divisions 4 and 5A of Part XX. The 'reporting period'
relies on the existing financial year reporting obligations (that
reflect existing reporting periods for income tax and corporate
reporting) and overlays the new six-monthly reporting obligations. The
application of this definition to Part XX of the Electoral Act will
result in a compounding of information within a financial year to be
included in the reports.
Item 3 - Subsection 17A(1)
6. Section 17 of the Electoral Act requires the Electoral Commission to
publish various reports, including reports about the operation of Part
XX of the Act. Section 17A provides that those reports must not
contain certain particulars of any information obtained from the notice
to produce powers contained in subsection 316(2A). This item extends
the application of subsection 17A(1) so that it now also applies to
additional categories of persons who are required to furnish returns
under section 305A, 305B, 314AEB, 314AEC, including persons acting on
their behalf and their officers. Persons acting on behalf of a
'prescribed person' have also been brought within the section for
consistency with amended subsection 316(2A).
Item 4 - Subsection 123(2)
7. This item repeals subsection 123(2) which provided for a definition of
related parties only for the purposes of the registration of political
parties in Part XI of the Electoral Act. The definition of related
parties has been moved to subsection 4(1) by item 1 and applies to the
whole Act.
Item 5 - Subsection 287(1)
8. This item inserts a definition of 'electoral expenditure' into
subsection 287(1) of the Electoral Act, the subsection that defines
many of the terms used in Part XX of the Electoral Act. This
definition sets out the categories of electoral expenditure relating to
an election that may be the subject of a claim for election funding.
The entitlement to election funding is discussed under item 21. This
definition is an exhaustive list of the types of expenditure that can
be claimed to obtain election funding.
9. Paragraph (a) of this definition is almost the same as the existing
definition of 'electoral expenditure' in subsection 308(1) of the
Electoral Act that is used for the basis of the returns of electoral
expenditure by candidates and groups under section 309. The difference
between existing subsection 308(1) and paragraph (a) is that the
reference to section 332 in paragraph 308(1)(e) has been omitted as
this section has been repealed. Expenditure may be incurred on the
categories specified in paragraph (a) at any time, but the activity
must take place during the election period. The 'election period' is
defined by subsection 287(1) as the period from the issuing of the writ
to 6.00pm on polling day.
10. Paragraphs (b) and (c) of this definition provide for additional
categories of electoral expenditure that may be the subject of a claim
for election funding. These amendments are partly in response to the
second recommendation in JSCEM's Advisory Report that the categories of
electoral expenditure set out in the 2008 Bill be expanded to include
'reasonable costs incurred for the rental of dedicated campaign
premises, the hiring and payment of dedicated campaign staff, and
office administration'.
11. To encourage transparency and to maintain the nexus between public
funding and legitimate campaign expenses, limitations are imposed on
these new categories of electoral expenditure. This is because unlike
'How to Vote Cards', for example, these new categories of electoral
expenditure may be used for many more purposes than conducting an
election campaign.
12. The first limitation is that each additional category is restricted to
expenditure incurred during the election period. In this way the
relationship between election campaigning and the new categories of
electoral expenditure is made clearer.
13. For the rental of dedicated campaign premises, the premises are limited
to any house, building or premises used for the primary purpose of
conducting an election campaign. The rent of premises that were, for
example, leased before the issue of a writ could come within the
definition of electoral expenditure if the premises were leased for
that primary purpose. Only the rent that was incurred during the
election period may be claimed.
14. The payment of dedicated campaign staff will be limited to those
additional staff employed or contracted for the primary purpose of
conducting an election campaign. Staff employed under the Members of
Parliament (Staff) Act 1984 cannot be the subject of a claim for
electoral expenditure.
15. General office administration will be limited to the purchase, lease,
hire or hire purchase of office equipment for the primary purpose of
conducting an election campaign. The costs of running and maintaining
the equipment may also be claimed as electoral expenditure. To provide
some level of administrative certainty and to prevent an endless
variety of equipment being claimed, item 10 defines 'office equipment'
to include telephones, faxes, computers, personal digital assistants,
personal organisers, photocopiers and printers and other equipment that
can be used for the purposes of communication.
16. Travel, or travel and accommodation in connection with travel, may also
be the subject of a claim for electoral expenditure. This category is
limited to the extent that the expenditure could reasonably be expected
to have been incurred for the primary purpose of conducting an election
campaign.
17. Paragraphs (d) and (e) introduce provisions to clarify that if
allowances, entitlements or benefits received by a member of Parliament
in his or her capacity as a member are used to meet electoral
expenditure, then that electoral expenditure cannot be claimed.
Allowances relating to remuneration are not covered by this provision
so that a sitting member may use what could be thought of as his or her
'salary' to contribute to election campaigns.
18. This 'double dipping' provision is necessary due to the introduction of
a public funding scheme that pays the lesser of funding under the 4%
rule or the claimed electoral expenditure. As sitting members of
Parliament may be able to meet some electoral expenditure by way of
allowances, entitlements or benefits paid by the Commonwealth in some
circumstances, it is not appropriate that this electoral expenditure is
claimed for public funding purposes. While clarifying that electoral
expenditure incurred using these allowances and benefits may not be
claimed for public funding purposes, the amendment does not affect the
legitimate use of these allowances, entitlements and benefits.
Item 6 - Subsection 287(1) (definition of eligible vote)
19. This item repeals the definition of 'eligible vote' in subsection
287(1) of the Electoral Act. This definition is redundant as the new
entitlement provisions in item 21 refer eligibility to formal first
preference votes of at least 4% as the basis for part of the
calculation of any entitlement to receive election funding.
Item 7 - Subsection 287(1) (definition of entitlement)
20. This item repeals the definition of 'entitlement' in subsection 287(1)
of the Electoral Act. This definition is redundant as the new
entitlement provisions in item 21 refer eligibility to formal first
preference votes of at least 4% as the basis for part of the
calculation of any entitlement to receive election funding.
Item 8 - Subsection 287(1)
21. This Amendment inserts into subsection 287(1) of the Electoral Act a
reference to 'general public activity'. The concept of 'general public
activity' is used to distinguish one of two situations when a permitted
anonymous gift may be received. The definition refers to subsection
306AF(3) which is discussed under item 49.
Item 9 - Subsection 287(1)
22. This item inserts a definition of 'group vote' into subsection 287(1).
This definition is necessary for part of the calculation of the
entitlement to election funding in new section 295 for Senate groups
consisting of members which have not been endorsed by a registered
political party and which has been the subject of a request to be
grouped on the ballot paper, at the time of nomination, to the
Australian Electoral Officer under section 168 of the Electoral Act.
23. This definition specifies that a 'group vote' means a first preference
vote given to a candidate who is a member of the group and which has
been counted for the purposes of section 273 of the Electoral Act.
Section 273 sets out the rules for the scrutiny of Senate votes,
determining which of those votes are formal and the counting of Senate
votes.
Item 10 - Subsection 287(1)
24. This item inserts a definition of 'office equipment' into subsection
287(1) for the purposes of one of the additional categories of
electoral expenditure that may be claimed. Office equipment is
discussed under item 5.
Item 11 - Subsection 287(1)
Item 12 - Subsection 287(1)
25. These items insert into subsection 287(1) of the Electoral Act
references to 'permitted anonymous gift' and 'private event'. A
'permitted anonymous gift' is an anonymous gift that is received in the
circumstances set out in section 306AF and is discussed under item 49.
The concept of 'private event' is used to distinguish one of two
situations when a permitted anonymous gift may be received. The
definition refers to subsection 306AF(6) which is discussed under item
49.
Item 13 - Subsection 287(1)
26. Item 13 inserts into subsection 287(1) of the Electoral Act a
definition of 'single claim'. A 'single claim' is one means of making
a claim for electoral expenditure under new section 297. A single
claim may cover the electoral expenditure of the federal branch of the
registered political party and one or more related State branches of
the registered political party. In this way, the electoral expenditure
of the federal branch may be included in a claim for electoral
expenditure even though it might not have endorsed any candidates.
Item 14 - Subsection 287(2)
27. This item repeals the existing subsection 287(2) of the Electoral Act
and inserts a new subsection 287(2). The substance of the subsection
has not changed. The new subsection 287(2) requires that a thing that
is required to be lodged under Part XX of the Electoral Act must be
lodged at the principal office of the Electoral Commission in Canberra.
28. This subsection makes it clear that compliance with the requirements of
Part XX can only be met by lodging the claim, return or other thing
with the Electoral Commission at Canberra. The lodging of such claims,
returns and other things at a Divisional or State Office of the
Electoral Commission will not satisfy the requirements of the Part.
Item 15 - Subsection 287(4)
29. This item makes an exception for the purposes of section 305B to the
operation of the subsection. Existing subsection 287(4) operates so
that, for the purposes of all of Part XX, a reference to 'political
party' (other than a reference to the endorsement of a candidate or
group in an election) does not include a reference to a part of the
political party. Item 15 amends subsection 287(4) to make it clear
that, for the purposes of the reporting of gifts made to political
parties (section 305B amended by item 46), the donor is required to
disclose the total value of the gifts made to 'related' parts of a
political party where the total is $1,000 or more. Accordingly,
section 305B is required to be specifically exempted from the operation
of subsection 287(4).
Item 16 - After subsection 287(4A)
30. This item inserts a new subsection 287(4B) into the Electoral Act.
This new subsection is similar to existing section 309 of the Electoral
Act and makes it clear that electoral expenditure incurred by, or on
behalf of, a division of a State branch of a political party is to be
regarded as having been incurred by the State branch.
31. This provision enables State branches of political parties to lodge
returns and claims for election funding based on the expenditure that
has been incurred by their various divisions or by other persons who
have the authority to incur expenditure on their behalf. This
facilitates the lodging of a single claim from a State branch of a
political party.
Item 17 - After subsection 287(6)
32. This item makes it clear that subsection 287(6) does not apply to a
political party that is a body corporate. New subsection 287(6A)
operates so that the new concept of 'related' parties in item 1 is not
altered by the principles contained in the Corporations Act 2001.
Item 18 - Subsection 287A(1)
33. This item provides that subsection 287A(1) applies to the new
requirements of Division 4A dealing with the receipt of gifts of
foreign property and receipt of anonymous gifts. Subsection 287A(1)
now provides that Division 4, 4A, 5 and 5A apply as if the campaign
committee of an endorsed candidate or endorsed group were a division of
the relevant State branch of the political party that endorsed the
candidate or members of the group.
Item 19 - At the end of Division 1 of Part XX
34. This item inserts a new section 287C in the Electoral Act. New
provisions in relation to gifts of foreign property, anonymous gifts or
undisclosed gifts give the Commonwealth the power to recover the amount
or value of certain unlawful gifts under several provisions. For
example, a gift might be a gift of foreign property and also anonymous
and so both would be recoverable by the Commonwealth. This item
ensures that the Commonwealth may only recover the amount or value of
the gift once.
Item 20 - Paragraph 292B(a)
35. This item provides that section 292B applies to the new Division 4A
dealing with the receipt of gifts of foreign property and receipt of
anonymous gifts. Section 292B ensures that where an obligation is
imposed on an agent of a political party or a State branch of the
party, and there is no agent, the obligation rests on each member of
the executive committee of the party or branch.
Item 21 - Sections 294 and 297
36. Item 21 contains measures that give effect to the Government's
announcement that it was planning to legislate to tie election funding
to reported and verified electoral expenditure. In other words,
election funding will only be paid for electoral expenditure directly
incurred by a candidate or a party in an election where the 4% first
preference vote threshold is reached. This will stop any candidate, or
any party, making a financial gain from the electoral public funding
system.
37. Concerns with the payment of election funding following the November
2007 general election has caused the Government to address concerns
that candidates and parties received payments of election funding that
were not related to the actual costs incurred. The policy intention
behind the new provisions is that candidates and parties should only
receive the lesser amount of the electoral expenditure that was
actually incurred or the amount calculated based on the amount per vote
where they have satisfied the 4% threshold.
38. This item repeals sections 294 and 297 of the Electoral Act and inserts
new sections 293 to 298H. Existing section 294 establishes the
entitlement to election funding under the existing scheme. New
sections 293 to 298H contain provisions that establish the entitlement
to election funding, the making of claims, the determination of claims
and a review process.
Subdivision A - Entitlement to election funding
39. This subdivision sets out how any entitlement to election funding is to
be calculated.
Section 293 - Entitlement to election funding - registered political
parties
40. This new section sets out the entitlement to election funding for
registered political parties. One of the requirements for applying for
registration of a political party under section 126 of the Electoral
Act is that the application must state whether or not the party wishes
to receive election funding.
41. Subsection 293(1) provides that a registered political party is
entitled to election funding for elections where the total number of
formal first preference votes for endorsed candidates is at least 4% of
the overall total of formal first preference votes cast in the election
for either the House of Representatives or the Senate.
42. Subsection 293(2) provides that once a registered political party meets
the threshold requirements in subsection 293(1), the amount of the
election funding that can be paid is the lesser of $2.24851 for each
formal first preference vote received and the amount of 'electoral
expenditure' that has been claimed and accepted by the Electoral
Commission.
43. Items 114, 115 and 120 ensure that the rate at which public funding is
paid per formal first preference vote given to a candidate or group
will be correct on and from 1 July 2009. There will be no change to
the rate of public funding that applies to each vote from the amount
that has been increased every six months by the indexation formula
contained in section 321 of the Electoral Act since the $1.50 amount
was inserted in the Electoral Act in 1995.
44. Subsection 293(3) provides for the entitlement to election funding for
related registered political parties making a single claim. Modelled
on subsection 293(2), the entitlement to election funding for
registered political parties making a single claim is the lesser of the
dollar amount for each formal first preference vote given to a
candidate endorsed by any of the parties and the amount of electoral
expenditure claimed in respect of the parties covered by the claim.
45. A note following new subsection 293(3) draws attention to the operation
of new section 296 which provides for how formal first preference group
votes are divided between two or more registered political parties that
have endorsed candidates who are members of a Senate group.
Section 294 - Entitlement to election funding - unendorsed candidates
46. An unendorsed candidate is a candidate who has lodged a nomination with
either the Australian Electoral Officer or the Divisional Returning
Officer under Part XIV of the Electoral Act and the nomination form
does not include the required notification of the party endorsement and
the verification of this endorsement under sections 169 and 169B of the
Electoral Act. An unendorsed candidate includes a candidate who has
requested the word "Independent" to be printed on the ballot papers
next to his or her name under section 169A of the Electoral Act. An
unendorsed candidate does not include a candidate who is a member a
group of unendorsed Senate candidates who have made a joint request, at
the time of nomination, to the Australian Electoral Officer under
section 168 of the Electoral Act. Applications from a Senate group
with no members endorsed by a registered political party are dealt with
in new section 295.
47. Subsection 294(1) provides that a candidate is entitled to election
funding for all elections where the total number of formal first
preference votes for the candidate is at least 4% of the overall total
of formal first preference votes cast in the election for either the
House of Representatives or the Senate.
48. Subsection 294(2) provides that once a candidate meets the threshold
requirements in subsection 294(1), the amount of the election funding
that can be paid is the lesser of $2.24851 for each formal first
preference vote received and the amount of 'electoral expenditure' that
has been claimed and accepted by the Electoral Commission.
Section 295 - Entitlement to election funding - unendorsed groups
49. An unendorsed group is a grouping of unendorsed Senate candidates who
have made a joint request, at the time of nomination, to the Australian
Electoral Officer under section 168 of the Electoral Act and who are
not endorsed by any registered political party. This enables such a
group to have a box above the line on the Senate ballot paper.
50. Subsection 295(1) provides that an unendorsed group is entitled to
election funding for all elections where the total number of formal
first preference votes for the group is at least 4% of the overall
total of formal first preference votes cast in the election for the
Senate.
51. Subsection 295(2) provides that once an unendorsed group meets the
threshold requirements in subsection 295(1), the amount of the election
funding that can be paid is the lesser of $2.24851 for each formal
first preference vote received and the amount of 'electoral
expenditure' that has been claimed and accepted by the Electoral
Commission.
Section 296 - Entitlement to election funding - special rule for joint
Senate groups
52. A joint Senate group is a grouping of candidates for the Senate who are
endorsed by different registered political parties and who have made a
joint request, at the time of nomination, to the Australian Electoral
Officer under section 168 of the Electoral Act. This enables such a
group to have a box above the line on the Senate ballot paper.
53. Subsection 296(1) provides for the candidates who are to be regarded as
members of a joint Senate group.
54. Subsection 296(2) provides that an agent of one of the registered
political parties which have endorsed the candidates under sections 169
and 169B must give to the Electoral Commission a copy of the agreement
as to how the parties have agreed to the division of the first
preference votes received by the joint Senate group. This agreement is
necessary for the Electoral Commission to calculate the amount of any
election funding that may be payable to the agent of the registered
political party in accordance with the requirements of subsections
293(2) and 293(3).
55. Subsection 296(3) requires that each party agent of the registered
political parties which have endorsed the candidates who are members of
the joint Senate group must sign the original agreement.
56. Subsection 296(4) requires that a copy of the agreement for the
division of first preference votes must be given to the Electoral
Commission before polling day.
57. Subsection 296(5) provides the Commission with the discretion to
determine the division of the first preference votes between the
registered political parties in the absence of any written agreement
having been given to the Commission before polling day. This
subsection reflects a number of provisions in existing
subsection 299(4) of the Electoral Act that require the Commission to
determine the shares of electoral funding in the absence of any
agreement.
Subdivision B - Claims for election funding
58. This subdivision sets out how claims for election funding can be made
to the Commission.
Section 297 - Need for a claim
59. One of the major changes that is introduced by this Bill is the need
for claims to be made to the Commission for any payment of election
funding entitlement. The new process for tying such funding to the
lesser of $2.24851 for each formal first preference vote received and
the amount of incurred 'electoral expenditure' requires claims to be
lodged with details of the electoral expenditure that has been
incurred.
60. Subsection 297(1) requires that, in order to be entitled to be paid an
amount of election funding, the agent of the party, candidate or group
must make a claim. The party agents are persons who are appointed in
accordance with the processes and requirements contained in sections
288 to 290 of the Electoral Act. Paragraph 297(1)(b) provides that if
a single claim is made, an agent of one of the registered political
parties covered by the claim must make the claim.
61. Subsection 297(2) provides that an agent may make an interim claim, or
both an interim claim and a final claim, or a final claim. Interim
claims are dealt with in subsection 298B(1) and a final claim in
subsection 298B(2).
62. Subsection 297(3) provides that a final claim for election funding must
specify all of the electoral expenditure against which the claim is to
be assessed, even if it has been included in an interim claim.
63. Subsection 297(4) provides that a final claim is able to incorporate,
by reference, electoral expenditure that has been included in the
interim claim. Subsection 298E(2) makes it clear that the electoral
expenditure that is claimed twice in an interim and a final claim does
not result in two entitlements based on the same expenditure.
64. Subsection 297(5) provides that only one interim claim and one final
claim for election funding can be made.
Section 298 - Electoral expenditure incurred
65. This provision sets out what is required to be part of a claim for
election funding. The various categories of registered political
parties, candidates and Senate groups must specify in their claims
'electoral expenditure' that falls within the scope of the definition
in subsection 287(1). The agent is not required to specify all
electoral expenditure that may have been incurred, only that
expenditure that is to be claimed against which the entitlement to
election funding is to be calculated. The six-monthly returns that
are required to be lodged under other provisions in Part XX of the
Electoral Act address the need to have transparency and accountability
in total amount of relevant expenditure incurred by candidates and
registered political parties.
66. Subject to subsection 298(2), subsection 298(1) provides that a claim
for election funding made by the agent of a registered political party
must specify the electoral expenditure incurred by the party and its
endorsed candidates in relation to the election for which election
funding is sought.
67. Subsection 298(2) provides that if a single claim is made, the claim
must specify electoral expenditure incurred by the party, or by
candidates endorsed by the party, in relation to all elections held on
the same day and for which election funding is sought. In this way,
for example, the electoral expenditure of the federal branch may be
included in a claim for electoral expenditure even though it might not
have endorsed any candidates.
68. Subsection 298(3) provides that a claim for election funding made by
the agent of a candidate must specify the electoral expenditure
incurred by the candidate in relation to the election for which
election funding is sought.
69. Subsection 298(3) provides that a claim for election funding made by
the agent of a Senate group must specify the electoral expenditure
incurred by the group or the candidates who are members of the group
for which election funding is sought.
Section 298A - Form of claim
70. Section 298A requires that any claim for election funding must be made
on the 'approved form'. The 'approved forms' are required to be made
by the Electoral Commission and published in the Gazette (see
subsection 4(1) of the Electoral Act). This process is similar to all
other approved forms made under the Act.
71. The form will specify the categories of 'electoral expenditure'
included in the definition of this term in subsection 287(1). The form
will also specify whether the claim is an interim or a final claim.
The agent is required to specify whether the claim is an interim or a
final claim. Details of the types of expenditure, the
companies/persons to whom the payments were made or the liability
incurred and the basis on which the amounts are calculated will be
required to be specified.
72. Sufficient information will need to be provided to enable the Electoral
Commission to verify the amount claimed and to conduct compliance
audits into the accuracy of the amounts claimed. Some documents may be
required to be provided to the Electoral Commission to support the
amount of electoral expenditure that has been claimed to have been
incurred.
Section 298B - Lodging of claim
73. Section 298B sets out the two types of claims for election funding that
are able to be lodged with the Commission and the timing for lodging
these claims.
74. Subsection 298B(1) provides for the lodging of an interim claim. Such
a claim can be made commencing on the 20th day after polling day. Any
claim for interim funding must be received by the Commission within six
months of polling day. Subsection 298D(2) makes it clear that an
interim claim is to be assessed by the Commission against the known
vote count as at the 20th day after polling day. The intent of this
provision is similar to the entitlement to the early payment of
election funding contained in existing subsection 299(5D) of the
Electoral Act.
75. Subsection 298B(2) provides for the lodging of a final claim. Such a
claim can be made commencing on the day on which the writ or the last
writs for the election are returned. Any final claim for funding must
be received by the Commission within six months of polling day. At the
time of the return of the writs, the majority of the votes will have
been counted. Following the November 2007 general election, the final
counting of the votes took place by a period of 14 days after the
return of the last writ on 21 December 2007 to enable the final payment
of election funding to be made on 9 January 2008.
76. Subsection 298B(3) makes it clear that any claim lodged outside the
periods specified in subsections 298B(1) and (2) will not be valid and
will not be processed by the Commission or attract any election
funding.
Section 298C - Determination of claim
77. The intention of this section is to provide some certainty in the
processing of claims for election funding that have been validly
lodged. Existing subsection 299(5D) of the Electoral Act contains the
requirement for the Electoral Commission to make the two payments of
election funding 'as soon as possible after' the 20th day after polling
day, or after the full amount of entitlement is known. While the
Electoral Commission will still be aiming to make a similar commitment
to the timely payment of election funding, with the added complexity of
needing to verify electoral expenditure, an end date for the Electoral
Commission's consideration of a claim has been included to enable
candidates and political parties to properly plan their financial
affairs in relation to the receipt of election funding.
78. Subsection 298C(1) provides that any claim for election funding must be
decided by the Commission within 20 days of receipt. This time period
includes the actual making of the payment.
79. Subsection 298C(2) provides that, in deciding whether or not to accept
the claim, the Electoral Commission must only have regard to whether an
amount claimed is 'electoral expenditure' and whether the claimed
expenditure was actually incurred. With the possibility of confusion
arising over what expenditure is claimed by which registered political
party when a single claim is made, the Electoral Commission may also
have regard to whether electoral expenditure has been specified in a
claim made by another agent.
80. Subsection 298C(3) deals with the situation where an interim claim is
lodged under subsection 298B(1) and no final claim is lodged under
subsection 298B(2). In this situation, the interim claim will be
deemed to be the final claim. This process will finalise any claim for
election funding. It also enables the Commission to rely on the
variation power in amended section 301 of the Electoral Act to vary the
decision, based on the results of compliance audits and monitoring
activities in relation to claims for election funding.
Section 298D - Accepting an interim claim
81. The intention of this provision is similar to the entitlement to the
early payment of election funding contained in existing subsection
299(5D) of the Electoral Act. Under that subsection, the payment of
election funding to a person with an entitlement is made in two stages.
The first payment of 95% of the entitlement is made as soon as
possible after the 20th day after polling day. The remaining 5% of the
entitlement is paid as soon as possible after the full entitlement is
known. This is usually within a period of weeks after the return of
the writs.
82. Subsection 298D(1) provides that this provision applies where an
interim claim for election funding has been made under subsection
298B(1) and the Electoral Commission has accepted that claim as
complying with the requirements of the Electoral Act and the 'approved
form' in relation to the provision of information about the incurring
of 'electoral expenditure'.
83. Subsection 298D(2) provides that, in relation to an interim claim, the
Commission must pay the lesser amount of 95% of the relevant amount for
each formal first preference vote based on the vote count as at day 20
after polling day and the amount of 'electoral expenditure' that the
Commission has accepted to have been incurred.
Section 298E - Accepting a final claim
84. This provision deals with the payment of a final claim for election
funding. A final claim can be made at any time after the return of the
writ and up to six months after polling day. A final claim can be made
on its own or after the making of an interim claim. The intention of
this provision is to set out how the final claim amounts are to be
calculated, with any amount that has been paid pursuant to an interim
claim being deducted from that final amount.
85. Subsection 298E(1) provides that this provision applies where a final
claim for election funding has been made under subsection 298B(2) and
the Electoral Commission has accepted that claim as complying with the
requirements of the Electoral Act and the 'approved form' in relation
to the provision of information about the incurring of 'electoral
expenditure'.
86. Subsection 298E(2) provides that, in relation to a final claim, the
Commission must pay the lesser amount of 100% of the relevant amount
for each formal first preference vote based, on the final vote count
and the amount of 'electoral expenditure' that the Electoral Commission
has accepted to have been incurred. If any amount has been paid by the
Electoral Commission under section 298D after determining an interim
claim, that amount is to be deducted from the overall amount to which a
person is entitled as part of the final claim.
Section 298F - Refusing a final claim
87. This section provides that if a final claim is refused, in whole or in
part, the Electoral Commission must notify the agent that the claim has
been refused and provide reasons for the refusal to the agent.
88. The intention of this provision is to ensure that it is the decision on
a final claim that is the operative decision that attracts review
rights and that the Commission is required to provide reasons for any
decision refusing the payment of amounts claimed in a final claim. As
a final claim is able to incorporate amounts of 'electoral expenditure'
contained in the interim claim (see subsection 297(4)), it is the
decision on the final claim that is effectively the reviewable
decision. The timeframes between the lodging of an interim claim and a
final claim are likely to be relatively short, given both past practice
and the desire to obtain speedy payments of any entitlement to election
funding.
Section 298G - Application for reconsideration of decision refusing a final
claim
89. This section provides for the reconsideration of decisions made by
delegates of the Electoral Commission on a final claim for election
funding. Reconsideration will be undertaken by the full Commission in
a review process that is similar for the review of other administrative
decisions made under the Electoral Act.
90. Subsection 298G(1) provides that where a final claim has been refused,
the agent may apply to the Electoral Commission for a reconsideration
of the delegate's decision.
91. Subsection 298G(2) provides that an application for a reconsideration
of a decision on a final claim must be in writing and set out the
reasons for the application.
92. Subsection 298G(3) provides that an application for reconsideration
must be made within 28 days of the agent being notified of the
delegate's decision, or any extension of that time that has been
granted by the Electoral Commission. In deciding whether or not to
grant an extension of time, the Electoral Commission would have regard
to the principles outlined in the case of Hunter Valley Developments v
Cohen [1984] FCA 176.
Section 298H - Reconsideration by Electoral Commission
93. This section sets out how the Commission is to deal with an application
for the reconsideration of a decision on a final claim.
94. Subsection 298H(1) provides that the Commission is to reconsider the
delegate's decision that refused all or part of a final claim for
election funding and has the power to affirm, vary, set aside and
replace that decision with another decision.
95. Subsection 298H(2) provides that the Commission is required to give the
agent written reasons for its decision on the reconsideration
application.
96. Subsection 298H(3) provides that if the Commission's decision results
in any additional payment of election funding, that payment is to be
made within 20 days of its decision.
97. Subsection 298H(4) provides that the Commission is unable to delegate
its power to undertake a reconsideration of a final claim for election
funding where it has received a reconsideration application.
Subdivision C - Payments of election funding
98. Item 21 also inserts this new heading in the Electoral Act dealing with
the payment processes for any payment of election funding.
Item 22 - Subsection 299(1)
99. This item amends subsection 299(1) to reflect the new structure of Part
XX of the Electoral Act by omitting the previous reference to 'this
Division' and replacing this with the wording that reflects the new
claims process.
Item 23 - Subsections 299(2) to (5)
100. These amendments repeal subsections 299(2) to (5) to reflect the new
claims process and make clear to whom any payment of the election
funding is to be made.
101. Subsection 299(2) provides that if any amount of election funding is
payable in respect of a single claim, the Electoral Commission must pay
the amount to the agent who makes the single claim.
102. Subsection 299(3) provides that any payment of election funding in
respect of an unendorsed candidate is to be made to the candidate's
agent.
103. Subsection 299(4) provides that any payment of election funding in
respect of a Senate group is to be paid to the group's agent.
Item 24 - Subsections 299(5D) and (6)
104. Item 24 repeals subsections 299(5D) and (6) to reflect the new claims
process and remove redundant provisions.
Item 25 - Sections 300 and 301
105. Item 25 repeals sections 300 and 301 and substitutes new sections to
reflect the new claims process and simplify the process for dealing
with the situation where there has been a death of a candidate or a
member of a group.
106. New section 300 reflects the existing provisions in sections 300 and
301 of the Electoral Act that deal with the death of a candidate.
There has been no change to the substantive operation of the existing
provisions.
107. New section 301 provides the Commission with a post-payment variation
power to vary the previous decision, based on the results of compliance
audits and monitoring activities in relation to claims for election
funding. With the repeal of existing subsection 299(6) of the
Electoral Act (item 24) new section 301 contains the power for the
recovery of any over-payment.
Subdivision D - Miscellaneous
108. Item 25 also inserts this new heading in the Electoral Act dealing
with miscellaneous matters relating to the payment of election funding.
Section 300 - Death of candidates or group members
109. Subsection 300(1) provides that a payment of election funding may be
made even if the candidate dies.
110. Subsection 300(2) provides that where a candidate was his or her own
agent (for example because he or she was not endorsed by a political
party and not a member of a group), the payment of election funding may
be made to the candidate's legal personal representative. In most
situations this would be the Executor to the deceased candidate's
estate.
111. Subsection 300(3) provides that where a candidate who is a member of a
Senate group dies, a payment of election funding may be made for the
group.
112. Subsection 300(4) provides that where the candidate who died was the
agent of the unendorsed Senate group, the payment of election funding
may be made to another member of the group.
Section 301 - Varying decisions accepting claims
113. New section 301 provides the Commission with a post-payment variation
power to vary the previous decision, based on the results of compliance
audits and monitoring activities in relation to claims for election
funding. With the repeal of existing subsection 299(6) of the
Electoral Act (item 24) new section 301 contains the power for the
recovery of any overpayment.
114. Subsection 301(1) provides that the Commission is able to vary
decisions previously made on claims for election funding. Given the
timeframes specified in the Act for the making of decisions and
payments of election funding, it is highly likely that situations will
arise where the basis of claims will be questioned due to a lack of
supporting documentary evidence. Accordingly, the Commission (and its
delegates) is given a specific power to be able to revisit previous
decisions and to vary the amount of payments that had previously been
approved.
115. Subsection 301(2) provides that where the Commission makes a decision
to vary the amount of election funding under subsection 301(1), the
agent is able to make a reconsideration application to have that
decision reviewed by the full Commission.
116. Subsection 301(3) provides that where the decision under subsection
301(1) results in a decrease in the amount of the entitlement to
election funding, the amount of the previous overpayment can be
recovered as a debt due to the Commonwealth.
117. Subsection 301(4) provides that where an amount previously paid for an
interim claim is to be taken into account in the variation decision.
This means that the varied decision will in effect be the decision on
the final claim.
Section 301A - Reference to the agent of a registered political party if
single claim made
118. Item 25 also clarifies that, if a single claim has been made, a
reference to an agent in sections 298D, 298E, 298F and 298G includes a
reference to the agent who makes the single claim.
Item 26 - After section 303
119. This item inserts a new section 303A into the Electoral Act to provide
that while generally gifts that are returned within 6 weeks of receipt
do not have to be disclosed, all gifts of foreign property (as defined)
and anonymous gifts (as defined) have to be disclosed. The disclosure
of information about attempts to make unlawful gifts to political
parties and others involved in the political process is an important
part of the transparency and accountability measures of this Bill.
Item 27 - Subsection 304(2)
120. This item reduces the period from 15 weeks to 8 weeks in which a
return must be made under this subsection. Subsection 304(2) provides
for returns by agents of candidates and members of groups to be made
disclosing, amongst other things, the total amount or value of all
gifts received by the candidate or member during the disclosure period.
The disclosure period is defined in subsection 287(1) and varies
depending upon the circumstances of the candidate, member or group.
Item 28 - Subsection 304(2)
121. Item 28 introduces a new disclosure requirement under subsection
304(2) of the Electoral Act for the agents of candidates, including
members of a group, to provide details of anonymous gifts received by
candidates and members of a group during the disclosure period for the
election.
Item 29 - Subsection 304(3)
122. This item reduces the period from 15 weeks to 8 weeks in which a
return must be made under this subsection. Subsection 304(3) provides
for returns by agents of groups to be made disclosing, amongst other
things, the total amount or value of all gifts received by the group
during the disclosure period
Item 30 - Subsection 304(3)
123. Item 30 inserts a similar requirement into subsection 304(3) of the
Electoral Act for agents of groups as that inserted by item 28 for the
agents of candidates.
Item 31 - Subsection 304(4)
124. With the recasting of subsection 304(2) and (3), it is no longer
necessary to have 304(4) apply to the whole section. This is
especially the case as the details required to be disclosed in relation
to anonymous gifts are set out at paragraphs 304(2)(c) and 304(3)(c).
Accordingly, item 31 would amend subsection 304(4) of the Electoral Act
so that it only applies to new paragraphs (2)(b) and 3(b).
Item 32 - Subparagraph 304(5)(b)(ii)
Item 33 - Paragraph 304(5)(c)
Item 34 - Subsection 304(5) (note)
125. These items amend the threshold at which an agent of a candidate or
group is required to disclose a gift. A gift does not have to be
disclosed under subsections 304(2) or (3) if it is less than $1,000.
Previously, gifts of $10,000 (indexed under section 321A) or less did
not have to be disclosed. As the threshold figure is no longer
indexed, following the repeal of section 321A by item 116, the note is
also repealed.
Item 35 - Paragraph 304(6)(b)
Item 36 - Paragraph 304(6)(c)
Item 37 - Subsection 304(6) (note)
126. These items amend the threshold for the total amount of gifts made by
one person to a candidate or a group which can be made during the
period to which the return relates without disclosure. A gift does not
have to be disclosed under subsection 304(6) if the sum of the gifts is
less than $1,000. Previously, gifts totalling $10,000 (indexed under
section 321A) or less did not have to be disclosed. As the threshold
figure is no longer indexed, following the repeal of section 321A by
item 116, the note is also repealed.
Item 38 - At the end of section 304
127. This item inserts new subsections 304(9) and 304(10) to provide for
nil returns under the subsection. These new subsections are
essentially a relocation of existing section 307 with minor wording
changes to subsection (10). Due to the creation of a new Division 4A,
dealing with unlawful gifts and other gifts and loans, the section
providing for nil returns is better placed with section 304. Section
307 is repealed by item 56.
Item 39 - Subparagraph 305A(1)(b)(ii)
Item 40 - Subsection 305A(1) (note)
Item 41 - Subparagraph 305A(1A)(b)(ii)
Item 42 - Subsection 305A(1A) (note)
Item 43 - Paragraph 305A(2)(b)
Item 44 - Subsection 305A(2) (note)
128. These items amend the threshold at which gifts must be disclosed. A
gift does not have to be disclosed under subparagraphs 305A(1)(b)(ii)
and 305A(1A)(b)(ii), or paragraph 305A(2)(b) if the sum of the gifts is
less than $1,000. Previously, gifts totalling $10,000 (indexed under
section 321A) or less did not have to be disclosed. As the threshold
figure is no longer indexed, following the repeal of section 321A by
item 116, the note is also repealed.
Item 45 - Paragraph 305A(3)(a)
129. This item amends the time from 15 weeks to 8 weeks in which a return
under section 305A must be provided to the Electoral Commission.
Item 46 - Subsections 305B(1) and (2)
130. This item repeals subsections 305B(1) and (2) and substitutes new
subsections 305B(1), (1A), (2), (2A) and (2B). The recasting of these
provisions is to allow for rules about related parties and changes to
the reporting period for when returns must be made and the information
that must be included in those returns.
Subsection 305B(1)
131. New subsection 305B(1) imposes an obligation on a person to furnish a
return to the Electoral Commission disclosing all gifts if, in a
reporting period, the person makes gifts totalling $1,000 or more to
the same registered political party. The 'reporting period' is defined
at item 2 to be the first six months of a financial year or a full
financial year. The return must be lodged eight weeks after the
reporting period.
Subsection 305B(1A)
132. Using the definition of 'related' at item 1, new subsection 305B(1A)
operates so that if a person makes a gift to a number of related
parties, one of which is a registered political party, the gifts are
deemed to be made to the single registered political party. The
intention of this subsection is to prevent a person giving multiple
gifts under the new $1,000 threshold to various divisions or branches
of the same political party which are then not required to be disclosed
by the donor.
Subsection 305B(2)
133. Similar to 305B(1A), new subsection 305B(2) operates so that, if a
person makes a gift to any person or body with the intention of
benefiting a political party, subsection 305B(2) deems the gift to have
been made directly to that political party for the purposes of the
section. The intent of the provision is to ensure that donors cannot
avoid disclosure obligations by using intermediaries.
Subsection 305B(2A)
134. To reduce any unnecessary duplication of reporting by donors, new
subsections 305B(2A) and (2B) operate as exceptions to the requirement
imposed by 305B(1). New subsection 305B(2A) provides that if a person
has furnished a return disclosing gifts to a registered political party
in the first six months of a financial year, and makes no further gifts
to that registered political party during the remainder of the
financial year, the person does not have to furnish a return in respect
of the second reporting period that finishes at the end of the full
financial year.
Subsection 305B(2B)
135. New subsection 305B(2B) provides that if a person making a gift
furnishes a return for the second reporting period that finishes at the
end of the full financial year, the person does not have to disclose
any gift made by the person that has already been disclosed in a return
for the first six months of that financial year.
Item 47 - Paragraph 305B(3)(c)
136. This item amends what is required to be disclosed by a person who made
a gift to a political party. Due to the operation of the related party
provisions in subsections 4(1) and 305B(1A), a donor is also required
to furnish details of gifts made to all political parties, not just
registered political parties. A political party is defined in
subsection 4(1) to mean, in short, an organisation of which the object
or activity is the promotion of the election of candidates endorsed by
it to the Senate or House of Representatives.
Item 48 - Subsection 305B(3A)
137. This item recasts subsection 305B(3A) to clarify the operation of the
provision and substitute the new threshold of '$1,000 or more' in place
of the references to 'more than $10,000' and 'exceeds $10,000'. To
prevent the use of intermediaries to avoid disclosure obligations under
305B(1), the provision also requires a donor to include in a return
details of gifts which enable a person to make a gift to a political
party to be disclosed. The intention of this new subsection is to
ensure that donors are not able to use intermediaries to circumvent the
operation of the new reporting obligations.
Item 49 - Section 306
138. This item repeals section 306 and inserts a new Division 4A into the
Electoral Act made up of Subdivisions A, B and C. Subdivision A
generally prohibits gifts of foreign property and is a new provision
for the Electoral Act. Subdivision B generally prohibits anonymous
gifts and is an extension of the existing prohibition in previous
section 306. Subdivision C relates to other gifts and loans, and is
essentially unchanged from existing provisions.
Subdivision A - Gifts of foreign property
Section 306 - Interpretation
139. New section 306 defines a number of words and terms for the purposes
of Subdivision A. This interpretive section is required due to the new
provisions dealing with gifts of foreign property which are specific to
this subdivision.
Section 306AA - Subdivision does not apply to gifts that are returned
within 6 weeks
140. This section clarifies that the subdivision does not apply to a gift
that is returned within six weeks after its receipt. This provision
ensures that if a person receives a gift of foreign property and
returns it within six weeks, no offence or penalty would apply for the
purposes of sections 306AC or 306AD.
Section 306AB - Determining whether a gift or transfer is of Australian or
foreign property
141. Taking into account the definitions of 'Australian property' and
'foreign property' in section 306, subsection 306AB(1) establishes what
is Australian property, and what is foreign property, for the purposes
of the Subdivision.
142. To ensure that Subdivision A is not avoided by using intermediaries,
subsection 306AB(2) deems gifts of foreign property to include gifts
made using foreign property where the original donor's main purpose is
to enable a person to make a gift to another person or entity.
Similarly, subsection 306AB(3) deems certain transfers or gifts to be
transfers or gifts of foreign property.
Section 306AC - Gifts of foreign property: when unlawful for political
party, candidate etc. to receive gift
143. Subsection 306AC(1) provides that it is unlawful for a registered
political party, a State branch of a registered political party, a
candidate or a member of a group to receive a gift of foreign property.
It is also unlawful for a person to receive a gift acting on behalf of
one of these political parties or persons.
144. For candidates and members of groups, the prohibition only applies
during the candidacy or group period. These periods are defined in new
section 306. The 'candidacy period' is the period from when a
candidate announces that he or she will be a candidate in an election
or when the person nominates as a candidate, and ending 30 days after
polling day. The 'group period' is the period from the time when a
request to be grouped is made under section 168 of the Electoral Act
and ending 30 days after polling day.
145. Subsection 306AC(2) provides that if a person or entity receives a
gift that is unlawful under subsection 306AC(1), an amount equal to the
amount or value of the gift is payable to the Commonwealth. A table in
subsection 306AC(2) sets out who is liable to pay the amount.
146. Subsection 306AC(3) provides that if, under subsection 306AC(2), an
amount is payable to the Commonwealth by two or more persons, these
persons are jointly and severally liable for payment of the amount.
This means that while all persons are individually responsible for the
debt, just one person may satisfy the debt by paying the amount.
147. Subsection 306AC(4) provides that if the amount under subsection
306AC(2) is not paid, the Commonwealth may recover the amount as a debt
due to the Commonwealth in a court of competent jurisdiction. The
Commonwealth may take action against one person, or if two or more are
liable, any one or more of those persons.
Section 306AD - Gifts of foreign property made to enable incurring of
political expenditure: when unlawful to use or receive gift
148. Unlike section 306AC that places a prohibition on some people or
entities simply receiving a gift of foreign property, section 306AD is
directed towards the use of gifts of foreign property for political
expenditure or the purpose behind such gifts. 'Political expenditure'
is defined in subsection 306(1) as expenditure incurred for any of the
purposes specified in paragraph 314AEB(1)(a).
149. Subsection 306AD(1) provides that it is unlawful for a person to incur
political expenditure when four circumstances apply. The first of
these is that the person is not a candidate, a member of a group or an
associated entity. These are excluded as separate provisions apply,
including to persons who at any time have been a candidate or a member
of a group. The second circumstance is that the foreign property
enabled the person to incur the expenditure. The third is that the
purpose of the person who made the gift was to enable the political
expenditure.
150. The fourth circumstance is that the recipient of the gift is required
by section 314AEB to provide a return to the Electoral Commission
setting out the details of the expenditure. Section 314AEB operates so
that a person is not required to make a return unless the total amount
of political expenditure incurred by the person during the reporting
period was $1,000 or more.
151. Subsection 306AD(2) applies to persons who at any time have been a
candidate or a member of a group. This subsection makes it unlawful
for such a person to incur political expenditure if a gift of foreign
property enabled the person to incur political expenditure and the main
purpose of making the gift was to enable the recipient to incur
political expenditure.
152. Subsection 306AD(3) applies to associated entities. An 'associated
entity' is defined in subsection 287(1) and generally means an entity
that has a close relationship with a registered political party. This
subsection makes it unlawful for an associated entity to receive a gift
of foreign property if the main purpose of making the gift was to
enable the associated entity to incur political expenditure.
153. Some associated entities are bodies corporate and can receive gifts or
incur political expenditure in their own right. To address situations
where an associated entity is not a legal person, subsection 306AD(4)
deems that a person receives the gift or incurs the expenditure on
behalf of the entity.
154. Subsection 306AD(5) provides that if a person incurs an amount of
political expenditure that is unlawful under subsections 306AD(1) or
(2), an amount equal to the amount or value of the gift is payable to
the Commonwealth. Subsection 306AD(7) provides that if the amount
under subsection 306AD(5) is not paid, the Commonwealth may recover the
amount from the person as a debt due to the Commonwealth in a court of
competent jurisdiction.
155. In the situation where an associated entity receives a gift that under
subsection 306AD(3) it is unlawful to receive, subsection 306AD(6)
provides for two persons that might be liable to pay to the
Commonwealth an amount equal to the amount or value of the gift. This
caters for the possibility that the associated entity is not a legal
person. Paragraph 306AD(6)(a) provides that if the associated entity
is a body corporate or the trustee of a trust, the amount is payable by
the associated entity. Paragraph 306AD(6)(b) provides that if the
associated entity is not a body corporate, the amount is payable by the
financial controller of the associated entity. The financial
controller is defined in section 287 as the person responsible for
maintaining the financial records of the entity.
156. Subsection 306AD(7) provides that if the amount under subsection
306AD(6) is not paid, the Commonwealth may recover the amount from the
person as a debt due to the Commonwealth in a court of competent
jurisdiction.
Subdivision B - Anonymous gifts
Section 306AE - Interpretation
157. New section 306AE defines a number of words and terms for the purposes
of Subdivision B. This interpretive section is required due to the new
provisions dealing with anonymous gifts which are specific to this
subdivision.
Section 306AF - Meaning of permitted anonymous gift
158. In its Advisory Report on the 2008 Bill, JSCEM recommended
(Recommendation 6) that anonymous donations below a threshold of $50
may be given without a disclosure obligation and received without
having to forfeit the donation to the Commonwealth. The basis for its
recommendation was to remove a perceived onerous recordkeeping burden
on fundraisers where only small amounts of money might be donated, for
example, by 'passing a hat' around.
159. Item 49 inserts new section 306AF to allow for the receipt of
anonymous donations by the full range of political participants. To
ensure, however, that such an amendment does lead to a flood of
donations which are not disclosed, subsections 306AF(1) and (4) provide
that a 'permitted anonymous gift' may only be received in two
situations. The first of these is at some general public activity,
such as a fete, where people passing by might, for example, place a
donation into a tin. The second situation is at a private event, such
as a trivia night, where attendees might donate small sums of money.
At both general public activities and private events, a gift would not
be a 'permitted anonymous gift' unless records specified at paragraphs
306AF(1)(c) and 306AF(4)(c) were kept of the activity or event.
160. For both general public activities and private events, paragraphs
306AF(1)(a) and (4)(a) provide that single donations of more than $50
may not be received. In addition, subsections 306AF(2) and (5) provide
that collectors of gifts cannot knowingly receive more than $50 from
the same person. A further requirement imposed upon private events by
paragraph 306AF(4)(d) is the total amount of anonymous gifts collected
may not be more than an amount calculated by multiplying $50 by the
number of people who attended the event. If the total collected
exceeds the amount calculated by this formula, the excess has to be
returned or, if not possible or practicable to return the excess, it
has to be paid to the Commonwealth. For greater administrative
simplicity, subsection 306AF(7) limits the operation of the section to
gifts of money.
Section 306AG - Subdivision does not apply to gifts that are returned
within 6 weeks
161. This section clarifies that the subdivision does not apply to a gift
that is returned within six weeks after its receipt. This provision
ensures that if a person receives an anonymous gift and returns it
within six weeks, no offence or penalty would apply for the purposes of
sections 306AH, 306AI or 306AJ. Where it is not possible or
practicable to return the gift, the amount or value of the gift can be
paid to the Commonwealth.
Section 306AH - Anonymous gifts: when unlawful for political party,
candidate etc. to receive gift
162. Subsection 306AH(1) provides that it is unlawful for a registered
political party, a State branch of a registered political party, a
candidate or a member of a group to receive an anonymous gift that is
not a permitted anonymous gift. It is also unlawful for a person to
receive an anonymous gift acting on behalf of one of these political
parties or persons.
163. For candidates and members of groups, the prohibition only applies
during the candidacy or group period. These periods are defined in new
section 306AE. The 'candidacy period' is the period from when a
candidate announces that he or she will be a candidate in an election
or when the person nominates as a candidate, and ending 30 days after
polling day. The 'group period' is the period from the time when a
request to be grouped is made under section 168 of the Electoral Act
and ending 30 days after polling day.
164. Subsection 306AH(2) provides that if a person or entity receives a
gift that is unlawful under subsection 306AG(1), an amount equal to the
amount or value of the gift is payable to the Commonwealth. A table in
subsection 306AH(2) sets out who is liable to pay the amount.
165. Subsection 306AH(3) provides that if, under subsection 306AH(2), an
amount is payable to the Commonwealth by two or more persons, these
persons are jointly and severally liable for payment of the amount.
This means that while all persons are individually responsible for the
debt, just one person may satisfy the debt by paying the amount.
166. Subsection 306AH(4) provides that if the amount under subsection
306AH(2) is not paid, the Commonwealth may recover the amount as a debt
due to the Commonwealth in a court of competent jurisdiction. The
Commonwealth may take action against one person, or if two or more are
liable, any one or more of those persons.
Section 306AI - Anonymous gifts: when unlawful for political party,
candidate etc. to receive gift made using anonymous gift
167. Section 306AI seeks to prevent the use of intermediaries to avoid the
prohibition in 306AH. Similar to subsection 306AB(2) in relation to
gifts of foreign property, subsection 306AI(1) provides that it is
unlawful for a registered political party, State branch of a registered
political party, a candidate or member of a group to receive a gift if
an anonymous gift (that is not a permitted anonymous gift) enabled a
donor to make the gift.
168. Subsection 306AI(2) provides that if a person or entity receives a
gift that is unlawful under subsection 306AI(1), an amount equal to the
amount or value of the gift is payable to the Commonwealth. A table in
subsection 306AI(2) sets out who is liable to pay the amount.
169. Subsection 306AI(3) provides that if, under subsection 306AI(2), an
amount is payable to the Commonwealth by two or more persons, these
persons are jointly and severally liable for payment of the amount.
This means that while all persons are individually responsible for the
debt, just one person may satisfy the debt by paying the amount.
170. Subsection 306AI(4) provides that if the amount under subsection
306AH(2) is not paid, the Commonwealth may recover the amount as a debt
due to the Commonwealth in a court of competent jurisdiction. The
Commonwealth may take action against one person, or if two or more are
liable, any one or more of those persons.
Section 306AJ - Anonymous gifts: when unlawful for person to incur
political expenditure using anonymous gift
171. Unlike section 306AH that places a prohibition on some people or
entities simply receiving an anonymous gift, section 306AJ is directed
towards the use of anonymous gifts for political expenditure.
'Political expenditure' is defined in subsection 306AE(1) as
expenditure incurred for any of the purposes specified in paragraph
314AEB(1)(a).
172. Subsection 306AJ(1) provides that it is unlawful for a person to incur
political expenditure when four circumstances apply. The first of
these is that the person is not a candidate or a member of a group.
These are excluded as separate provisions apply to persons who at any
time have been a candidate or a member of a group. The second
circumstance is that the anonymous gift received by the person enabled
the person to incur the expenditure. The third is that the anonymous
gift is not a permitted anonymous gift. The fourth is that the
recipient of the gift is required by section 314AEB to provide a return
to the Electoral Commission setting out the details of the expenditure.
Section 314AEB operates so that a person is not required to make a
return unless the total amount of political expenditure incurred by the
person during the reporting period was $1,000 or more.
173. Subsection 306AJ(2) applies to persons who at any time have been a
candidate or a member of a group. This subsection makes it unlawful
for such a person to incur political expenditure if an anonymous gift
(that is not a permitted anonymous gift) enabled the person to incur
political expenditure.
174. Subsection 306AJ(3) provides that if a person incurs an amount of
political expenditure that is unlawful under subsections 306AJ(1) or
(2), an amount equal to the amount or value of the gift is payable to
the Commonwealth. Subsection 306AJ(4) provides that if the amount
under subsection 306AJ(3) is not paid, the Commonwealth may recover the
amount from the person as a debt due to the Commonwealth in a court of
competent jurisdiction.
Subdivision C - Other gifts and loans
Item 50 - Subsection 306A(1)
Item 51 - Subsection 306A(1) (note)
Item 52 - Subsection 306A(2)
Item 53 - Subsection 306A(2) (note)
175. These items amend the threshold at which it becomes unlawful for a
loan to be received unless it is disclosed. A loan is unlawful above
the threshold unless details required by subsection 306A(3) of the loan
are recorded. Previously, loans totalling $10,000 (indexed under
section 321A) or less did not have to be disclosed. As the threshold
figure is no longer indexed, following the repeal of section 321A by
item 116, the notes are also repealed.
Item 54 - Paragraph 306B(a)
Item 55 - Section 306B (note 3)
176. Item 54 amends the threshold at which a gift by a corporation that is
wound up within a year of making the gift may be recovered by a
liquidator from gifts exceeding $10,000 to a gift of $1,000 or more.
As the threshold figure is no longer indexed, following the repeal of
section 321A by item 116, the note is also repealed by item 55.
Item 56 - Section 307
177. Section 307 provided for nil returns under Division 4. With the
creation of new Division 4A and the fact that nil returns were only
applicable to section 304, item 38 relocates the substance of section
307 to subsections 304(9) and (10).
Item 57 - Section 308
178. As the provisions relating to 'electoral expenditure' have now been
placed in subsection 287(1), item 57 repeals section 308 as it is
redundant.
Item 58 - Subsections 309(1A)
179. Section 309 of the Electoral Act requires candidates and members of a
Senate group that are not endorsed by the same registered political
party to furnish a return to the Electoral Commission setting out
details of all electoral expenditure in relation to an election. As
item 5 expands the categories of electoral expenditure, without a
consequential amendment to subsection 309(1A) of the Electoral Act, the
provision would cover the four new categories of electoral expenditure.
Accordingly, item 58 would amend subsection 309(1A) of the Electoral
Act to limit the provision to electoral expenditure specified at
paragraph (a) of the definition in subsection 287(1).
Item 59 - Subsection 309(2)
180. This item reduces the period from 15 weeks to 8 weeks in which a
return must be made under subsection 309(2). Subsection 309(2)
provides for returns by agents of candidates to be made disclosing
details of all electoral expenditure incurred by or with the authority
of the candidate.
Item 60 - Subsection 309(2)
181. Similar to item 58, items 60 would limit a return furnished under
subsection 309(2) of the Electoral Act to details of electoral
expenditure specified at paragraph (a) of the definition in subsection
287(1).
Item 61 - Subsection 309(3)
182. Similar to item 59, item 61 reduces the period from 15 weeks to 8
weeks in which a return must be made under subsection 309(3).
Subsection 309(3) provides for returns by agents of groups to be made
disclosing details of all electoral expenditure incurred by or with the
authority of members of the group.
Item 62 - Subsection 309(3)
183. Similar to items 58 and 60, item 62 would limit a return furnished
under subsection 309(3) of the Electoral Act to details of electoral
expenditure specified at paragraph (a) of the definition in subsection
287(1).
Item 63 - Subsection 311A(2)
Item 64 - Subsection 311A(2) (note)
184. Item 63 reduces the threshold from '$10,000 or less' to 'less than
$1,000' at which particulars of a payment by a Commonwealth Department
in a financial year to advertising agencies, market research
organisations, polling organisations, direct mail organisations and
media advertising organisations must be included in the Department's
annual report. As the threshold figure is no longer indexed, following
the repeal of section 321A by item 116, the note is also repealed by
item 64.
Item 65 - Division 5A of Part XX (heading)
185. The heading to Division 5A of Part XX refers to 'annual returns'.
This item amends the heading to Division 5A due to the amendments by
the following items that change the requirement for annual returns to
returns on a six-month and full financial year basis.
Item 66 - After section 314AA
186. This item inserts a new section 314AAA into the Electoral Act to
require the disclosure of gifts of foreign property that are returned
within six weeks after their receipt or, in the case of anonymous
gifts, returned or the amount or value of the gift is paid to the
Commonwealth within six weeks after receipt. The disclosure of
information about attempts to make unlawful gifts to political parties
and others involved in the political process is an important part of
the transparency and accountability measures of this Bill.
Item 67 - Subsection 314AB(1)
187. This item amends the timeframe in which agents of registered political
parties or agents of State branches of registered political parties
must submit a return to the Electoral Commission setting out the total
amount received and paid by the party and the total of outstanding
debts. Previously, such a return had to be submitted within 16 weeks
after the end of each financial year. The item amends the subsection
so that a return must be furnished within 8 weeks after the end of each
reporting period. 'Reporting period' is defined in subsection 4(1) to
mean the first six months of a financial year or a full financial year.
Item 68 - Paragraph 314AB(1)(b)
Item 69 - Subsection 314AB(2)
188. These items are consequential to the change from annual to six-monthly
reporting and amend the terminology from 'annual' or 'financial year'
to reporting period.
Item 70 - Subsection 314AC(1)
Item 71 - Subsection 314AC(1) (note)
189. Item 70 amends both the reporting period and the threshold amount.
Previously, particulars of all sums had to be included in a return if
the party received more than $10,000 from one person or organisation
during a financial year. The amendments made by the item will require
particulars of all sums to be included in a return if the party
received $1,000 or more from one person or organisation during a
reporting period. As the threshold figure is no longer indexed,
following the repeal of section 321A by item 116, the note is also
repealed by item 71.
Item 72 - Subsection 314AC(2)
190. By repealing subsection 314AC(2), this item requires all gifts to be
included when calculating, for the purposes of 314AC(1), whether
particulars of gifts must be disclosed. Subsection 314AC(2) provided
that only particulars of gifts above $10,000 would need to be
disclosed.
Item 73 - At the end of section 314AC
191. Similar to the requirement introduced by items 28 and 30 for
candidates, members of a Senate group and Senate groups to disclose
anonymous gifts, item 73 would amend section 314AC of the Electoral Act
to require registered political parties to include in its annual return
furnished to the Electoral Commission specified details in relation to
the receipt of anonymous gifts if a permitted anonymous gift was
received during a reporting period.
Item 74 - Subsection 314AE(1)
Item 75 - Subsection 314AE(1) (note)
192. Item 74 amends both the reporting period and the threshold amount.
Previously, particulars of all sums had to be included in a return if a
party had outstanding debts of more than $10,000 to a person or an
organisation during a financial year. The amendments made by the item
will require particulars of all sums to be included in a return if a
party had outstanding debts of $1,000 or more during a reporting
period. As the threshold figure is no longer indexed, following the
repeal of section 321A by item 116, the note is also repealed by item
75.
Item 76 - Subsection 314AEA(1)
193. This item is consequential to the change from annual to six-monthly
reporting and amends the terminology from 'financial year' to reporting
period in relation to returns by associated entities.
Item 77 - Subsection 314AEA(1)
194. This item amends the timeframe in which the financial controller of an
associated entity must submit a return to the Electoral Commission
setting out the total amount received and paid by the associated entity
and the total of outstanding debts. Previously, such a return had to
be submitted within 16 weeks after the end of each financial year.
This item and item 76 above amend the subsection so that a return must
be furnished within 8 weeks after the end of each reporting period.
'Reporting period' is defined in subsection 4(1) to mean the first six
months of a financial year or a full financial year.
Item 78 - Paragraph 314AEA(3)(d)
Item 79 - Subsection 314AEB(1)
Item 80 - Paragraph 314AEB(1)(a)
195. These items are consequential to the change from annual to six-monthly
reporting and amend the terminology from 'financial year' or 'year' to
reporting period in relation to returns by associated entities and
persons incurring political expenditure.
Item 81 - Paragraphs 314AEB(1)(b) and (c)
Item 82 - Subsection 314AEB(1) (note)
196. Item 81 repeals paragraphs 314AEB(1)(b) and (c) and substitutes a new
paragraph 314AEB(1)(b) that provides a return must be furnished to the
Electoral Commission if a total of $1,000 or more was incurred on the
kinds of expenditure set out in paragraph 314AEB(1)(a). The previous
threshold for where a return was required was 'more than $10,000'. The
substance of existing paragraph 314AEB(1)(c) is moved to new subsection
314AEB(1A) by item 83. As the threshold figure is no longer indexed,
following the repeal of section 321A by item 116, the note is also
repealed by item 82.
Item 83 - After subsection 314AEB(1)
197. This item inserts new subsection 314AEB(1A) which essentially
duplicates paragraph 314AEB(1)(c) that was repealed by item 81. The
new subsection provides that 314AEB(1) does not apply to expenditure
incurred by a registered political party, a State branch of a
registered political party, the Commonwealth, a member of the House of
Representatives or the Senate, a candidate or a member of a group.
Item 84 - Subsection 314AEB(2)
198. This item is consequential to the change from annual to six-monthly
reporting and amends the terminology from 'financial year' to reporting
period in relation to returns by persons incurring political
expenditure.
Item 85 - Paragraph 314AEB(3)(a)
199. This item amends the timeframe in which a return under 314AEB(1) must
be provided to the Electoral Commission. Previously, such a return had
to be submitted within 20 weeks after the end of the financial year.
This item amends the subsection so that a return must be furnished
within 8 weeks after the end of the reporting period. 'Reporting
period' is defined in subsection 4(1) to mean the first six months of a
financial year or a full financial year.
Item 86 - Subsection 314AEC(1)
Item 87 - Paragraphs 314AEC(1)(a) and (b)
200. These items are consequential to the change from annual to six-monthly
reporting and amend the terminology from 'financial year' and 'year' to
reporting period in relation to returns detailing gifts that enabled
political expenditure.
Item 88 - Paragraph 314AEC(1)(c)
Item 89 - Subsection 314AEC(1) (note)
Item 90 - After subsection 314AEC(1)
201. Item 88 repeals paragraph 314AEC(1)(c) which operated so that, if a
person must provide a return to the Electoral Commission under section
314AEB, and the person received a gift of more than $10,000 which
enabled the political expenditure, the person must also provide a
return under section 314AEC. Item 88 substitutes a new paragraph
314AEC(1)(c) to provide that, if a person must provide a return to the
Electoral Commission under section 314AEB, a person must also provide a
return under section 314AEC if there is at least one major donor in
relation to the person and the reporting period.
202. A major donor is defined by new subsection 314AEC(1A), which is
inserted by item 90. A major donor is a person who provides gifts
totalling $1,000 or more in a reporting period.
203. As the threshold figure is no longer indexed, following the repeal of
section 321A by item 116, the note is also repealed by item 89.
Item 91 - Subsection 314AEC(2)
Item 92 - Subsection 314AEC(2) (note)
204. Item 91 is consequential to the change from annual to six-monthly
reporting and amends the terminology from 'financial year' to reporting
period in relation to returns by persons receiving gifts enabling
political expenditure. Item 91 also amends subsection 314AEC(2) as a
consequence of introducing the new $1,000 threshold. Rather than
providing details of each gift of more than $10,000, the item amends
314AEC(2) to require that details of each gift made by a major donor in
a reporting period are provided. A major donor is defined by new
subsection 314AEC(1A).
205. As the threshold figure is no longer indexed, following the repeal of
section 321A by item 116, the note is also repealed by item 92.
Item 93 - After subsection 314AEC(2)
206. Similar to items 28, 30 and 73 item 93 provides for the disclosure of
the receipt of anonymous gifts by persons incurring political
expenditure. The details of the receipt of anonymous gifts will be
disclosed in a two step process. First, a person must have incurred
electoral expenditure of a kind specified in paragraph 314AEB(1)(a) and
that expenditure must be above the proposed $1,000 threshold. If that
step is satisfied, a return under 314AEC must include specified details
of permitted anonymous gifts if any permitted anonymous gifts were
received during a reporting period.
Item 94 - Paragraph 314AEC(3)(a)
207. This item amends the timeframe in which a return under 314AEC(1) must
be provided to the Electoral Commission. Previously, such a return had
to be submitted within 20 weeks after the end of the financial year.
This item amends the subsection so that a return must be furnished
within 8 weeks after the end of the reporting period. 'Reporting
period' is defined in subsection 4(1) to mean the first six months of a
financial year or a full financial year.
Item 95 - Subsection 314AEC(4)
208. This item repeals subsection 314AEC(4) which is redundant following
the amendments made to subsections 314AEC(1) and 314AEC(2). This is
because details of all gifts made by a major donor are now required.
Item 96 - Subsections 315(1) to (4)
209. This item repeals subsections 315(1) to (4) and substitutes new
offence and penalty provisions. The offence and penalty provisions of
Part XX have generally not been revised since before 1983, with the
penalties inadequate to reflect the level of public money involved.
The penalty levels have been set to encourage appropriate transparency
in the political process.
Subsection 315(1)
210. This subsection provides that a person commits an offence if the
person is required to furnish a return under Division 4, 5 or 5A and
the person fails to furnish the return by the time required by the
applicable Division. The maximum penalty is 120 penalty units.
Section 4AA of the Crimes Act 1914 currently provides that one penalty
unit equates to $110.
211. While this offence is based on the previous offence in subsection
315(1), the repeal of subsection 315(1A) by item 96 means that
subsection 315(1) is no longer an offence of strict liability. This
means that all elements of the offence have to be proven.
Subsection 315(2)
212. This subsection provides that a person commits an offence if the
person is required to furnish a return under Division 4, 5 or 5A, the
person furnishes a return which purports to be a return under the
applicable Division and the return is incomplete. The maximum penalty
is 120 penalty units.
213. While this offence is based on the previous offence in subsection
315(2), the repeal of subsection 315(2A) means that subsection 315(2)
is no longer an offence of strict liability. This means that all
elements of the offence have to be proven.
Subsection 315(3)
214. This subsection provides an interpretation of 'incomplete' for the
purposes of subsection 315(2). A return will be incomplete if it does
not contain all the information that is required to be included in the
return by the relevant Division, or by the form produced by the
Electoral Commission that must be used for the return.
Subsection 315(4)
215. This subsection provides that a person commits an offence if the
person is required by section 317 to retain records and the person
fails to retain the records as required by that section. The maximum
penalty is 120 penalty units.
216. This subsection is based upon repealed subsection 315(2), however it
is now located in its own subsection rather than combined with the
offence of furnishing an incomplete return. The offence of furnishing
an incomplete return is located in subsection 315(2). The repeal of
subsection 315(2A) by item 96 means that the failure to keep records is
no longer an offence of strict liability. This means that all elements
of the offence have to be proven.
Subsection 315(4A)
217. This subsection provides that a person commits an offence if the
person lodges a purported claim under Division 3 and the person knows
that the claim is false or misleading in a material particular or the
claim omits a matter or thing without which the claim is misleading in
a material particular. The maximum penalty is imprisonment for 2 years
or 240 penalty units, or both.
218. This offence is based upon repealed subsections 315(3) and (4),
however the penalty has been significantly increased to reflect the
large amount of public money involved with claims under Division 3.
The requirement for the person to have knowledge that the claim is
false or misleading is a higher fault element than, for example,
recklessness.
Subsection 315(4B)
219. This subsection provides that a person commits an offence if the
person lodges a purported return under Division 4, 5 or 5A and the
person knows that the return is false or misleading in a material
particular or the claim omits a matter or thing without which the
return is misleading in a material particular. The maximum penalty is
imprisonment for 12 months or 120 penalty units, or both.
220. This offence is based upon repealed subsections 315(3) and (4),
however the penalty has been increased to reflect the importance of a
transparent political process. The requirement for the person to have
knowledge that the claim is false or misleading is a higher fault
element than, for example, recklessness.
Subsection 314(4C)
221. This subsection provides for a new offence of making a record that is
required to be kept for the purposes of receiving a permitted anonymous
gift that is false or misleading in a material particular. The maximum
penalty for breaching this offence is imprisonment for 12 months or 120
penalty units, or both. The proposed penalty is the same as for the
offence at subsection 315(4B).
Item 97 - Subsection 315(5)
222. This amendment repeals references in subsection 315(5) to subsections
315(3) and (4) and inserts a reference to subsection 315(4A). This
amendment is a consequence of new subsection 315(4A) dealing solely
with claims under Division 3. Repealed subsections 315(3) and (4) both
contained provisions dealing with Division 3 claims.
Item 98 - Subsection 315(6A) (penalty)
223. As this provision relates to claims under Division 3, this amendment
increases the penalty so that it is consistent with the offence under
subsection 315(4A).
Item 99 - Subsection 315(7) (penalty)
224. As this provision relates to returns under Division 4, 5 and 5A, this
amendment increases the penalty so that it is consistent with the
offence under subsection 315(4B).
Item 100 - After subsection 315(10)
225. This item inserts new offences into section 315 to provide offences
for the new provisions dealing with gifts of foreign property and
anonymous gifts.
Subsection 315(10A)
226. This subsection provides for an offence when a gift of foreign
property or an anonymous gift is received by specified legal entities.
The maximum penalty is imprisonment for 12 months or 240 penalty units,
or both.
Subsection 315(10B)
227. This subsection provides for an offence when a gift of foreign
property or an anonymous gift is received by specified non-legal
entities. The maximum penalty is imprisonment for 12 months or 240
penalty units, or both.
228. As the gift is received by a non-legal entity, a table in subsection
315(10B) sets out who is liable for the offence if a particular entity
receives the gift.
Subsection 315(10C)
229. As subsection 315(10B) deems a person or persons liable for an offence
by a non-legal entity, subsection 315(10C) provides that a person does
not commit an offence against subsection 315(10B) in two situations.
These are if the person does not know of the circumstances because of
which the receipt of the gift is unlawful, or the person takes all
reasonable steps to avoid those circumstances occurring.
Subsection 315(10D)
230. Subsection 315(10A) excludes from its operation a person acting on
behalf of a group as subsection 315(10D) specifically addresses such
people. Subsection 315(10D) provides for an offence when a person
acting on behalf of a group receives specified unlawful gifts of
foreign property or specified unlawful anonymous gifts. The maximum
penalty is 12 months imprisonment or 240 penalty units, or both.
Subsection 315(10E)
231. Subsection 315(10E) provides for an offence when a person incurs
expenditure and the expenditure is unlawful because it was enabled by a
specified unlawful gift of foreign property or specified unlawful
anonymous gift. The maximum penalty is 12 months imprisonment or 240
penalty units, or both.
Item 101 - After section 315
232. This item inserts a new subsection 315AA to provide for the recovery
of undisclosed gifts. An undisclosed gift is defined for the purposes
of the section as a gift whose details should be included in a return
under subsection 304(2) or (3), section 314AC, section 314AC as it
applies for the purpose of section 314AEA, and section 314AEC, and the
return was not furnished or the details of the gift were not included.
233. Subsection 315AA(2) provides for a method of extending the period in
which details may be provided, and if those details are provided before
the end of the extension period, it is as if the details were provided
in the return.
234. Subsection 315AA(3) provides that for each disclosure provision
specified in the table, an amount equal to the amount or value of the
gift is payable to the Commonwealth by the person or persons specified
in the table.
235. Subsection 315AA(4) provides that if the amount under subsection
315AA(3) is not paid, the Commonwealth may recover the amount as a debt
due to the Commonwealth in a court of competent jurisdiction.
Item 102 - Subsection 315A(1)
236. This item repeals subsection 315A(1) and substitutes a new subsection
which refers to recovery of amounts under Part XX, rather than the two
previously specified subsections. This is because there are now
several provisions in Part XX that provide for an amount to be
recovered by the Commonwealth.
Item 103 - Subsection 316(2A)
237. This item repeals subsection 316(2A) and substitutes a reworked
provision that expands the range of persons or entities that may be
asked to produce documents or appear to give evidence to determine
compliance with Part XX or if something has been done that is unlawful
under Part XX.
238. New subsection 316(2AA) is based on repealed subsection 315(2A) and
provides that a notice to a person under subsection (2A) is to be
served personally or by post on the person. New subsection 316(2AB)
clarifies that for the people identified at item 6 of the table in
subsection 316(2A), compliance is not limited to that return or the
period to which that return relates.
Item 104 - Subsection 316(2B)
239. This item amends subsection 316(2B) to refer to a political party or
branch due to the extension of 316(2A) to include State branches of
registered political parties.
Item 105 - Subsection 316(5) (penalty)
Item 106 - Subsection 316(5A) (penalty)
Item 107 - Subsections 316(5B) and (5C)
240. Items 105 and 106 increase the penalties under subsections 316(5) and
316(5A) from $1,000 to imprisonment for 12 months or 60 penalty units,
or both.
241. Item 107 repeals subsection 316(5B) to remove strict liability from an
offence against 316(5A) and repeals 316(5C) which provided that
subsections 316(5) and (5A) do not apply if the person has a reasonable
excuse. The Commonwealth Criminal Code will now govern the application
of the offence provisions.
Item 108 - Subsection 316(6) (penalty)
242. Consistent with subsections 316(5) and (5A), this item increases the
penalty under subsection 316(6) from $1,000 or imprisonment for 6
months, or both, to imprisonment for 12 months or 60 penalty units, or
both.
Item 109 - Subsection 319A(1)
243. This item amends the existing power in section 319A of the Electoral
Act that deals with the amendment of claims and returns. The proposed
amendment makes it clear that it is only the final claim for election
funding that can be amended under section 319A, as the final claim
itself is able to vary the interim claim for election funding (see
subsection 297(4)).
Item 110 - Subsection 319A(2)
244. This amendment makes it clear that it is only the final claim for
election funding that can be amended under section 319A as the final
claim itself is able to vary the interim claim for election funding
(see subsection 297(4)).
Item 111 - After subsection 319A(4)
245. New subsection 319A(4A) makes it clear that any amendment or variation
of a claim for election funding that is made under this section is not
able to result in an increase in the payment. This subsection links
back to the requirements of new subsection 297(5) that only one interim
and one final claim may be made. The intention of this subsection is
that candidates and political parties should be able to correct any
formal errors and mistakes but not so that they can obtain an increase
in election funding payments. This process is to assist in the
transparency and accountability of candidates and political parties but
not to allow repeated amendments of claims for election funding to
attempt to increase those payments.
Item 112 - Subsection 319A(9)
246. Due to the substitution of new offence provisions in section 315, this
item corrects the references to the relevant offences in section 315.
Item 113 - Subsections 320(4) and (5)
247. This item amends subsections 320(4) and (5) to provide that a claim or
return may be available for inspection or perusal as soon as
practicable after it is lodged. It is anticipated that advances in
technology might enable claims or returns to be available sooner than
the fixed time of 24 weeks after polling day for Division 4 or 5 claims
(with the exception on section 305B) or February in the calendar year
after the return is furnished under Division 5A or section 305B.
Item 114 - Subsection 321(1) (definition of relevant amount)
248. Section 321 is the indexation section. It applies to the amount per
vote that can be paid as part of election funding once a political
party, candidate or Senate group obtains at least 4% of the first
preference votes in an election. The amount per vote of $2.24851
specified in sections 293, 294 and 295 is based on the existing amount
contained in the current section 294 of the Electoral Act that has been
indexed since 1995. The amendment will ensure that the amount per vote
that can be used in the calculation of election funding will continue
to be indexed.
Item 115 - Subsection 321(1) (definition of relevant period)
249. This item amends the definition of 'relevant period' in subsection
321(1) so that the indexation of the current $2.24851 amount per vote
commences from 1 July 2009. This is a mechanical provision that is
necessary given the amendments to the above amount to reflect the
current value resulting from the indexation of the previous $1.50
amount since 1995.
Item 116 - Section 321A
250. Section 321A provided for the indexation of the previous threshold of
'more than $10,000'. This item repeals section 321A as the threshold
amount of $1,000 for Part XX is no longer indexed.
Item 117 - Section 384
251. This item repeals section 384 which specified two offences as
indictable offences and provided that a court of summary jurisdiction
may determine the matter in specified circumstances. By repealing
section 384, sections 4G, 4H, 4J and 4JA of the Crimes Act 1914 will
provide for indictable offence proceedings.
Part 2 - Application and savings provisions
Item 118 - Amendments applying to reporting periods starting on or after
1 July 2009
252. This item provides that the amendments made by items 46 to 48
(obligation to furnish returns disclosing gifts made during a reporting
period) and items 67 to 91 (Division 5A returns for reporting periods
by registered political parties and other persons) apply to reporting
periods that start on or after 1 July 2009.
Item 119 - Amendments applying to financial years starting on or after
1 July 2009
253. This item provides that amendments made by items 63 and 64 (disclosure
of expenditure by Commonwealth Departments) apply in relation to
financial years that start on or after 1 July 2009.
Item 120 - Amendments applying to elections the writs for which are issued
on or after 1 July 2009
254. This item provides that amendments made by the listed items relating
to election funding apply to elections the writs for which are issued
on or after 1 July 2009.
Item 121 - Amendments applying to gifts etc made on or after 1 July 2009
255. This item provides that the amendments made by the listed items apply
to gifts, transfers or loans made or received, or expenditure incurred
on or after 1 July 2009.
Item 122 - Amendments applying to acts or omissions occurring on or after
1 July 2009
256. This item provides that the amendments made by the listed items apply
to acts or omissions after 1 July 2009.
Item 123 - Amendment applying to returns a person becomes required to
furnish on or after 1 July 2009
257. This item provides that the amendment made by item 101 of this
Schedule applies in relation to returns a person becomes required to
furnish on or after 1 July 2009.
Item 124 - Saving of notices under subsection 316(2A)
258. This item ensures that a notice given before 1 July 2009 under
subsection 316(2A) as then in force has effect after that commencement
as if it had been given under that subsection as amended by item 103.