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COMMONWEALTH ELECTORAL ACT 1918 - SECT 302H Anti - avoidance

COMMONWEALTH ELECTORAL ACT 1918 - SECT 302H

Anti - avoidance

  (1)   The Electoral Commissioner may give a person or entity (the relevant person ) a written notice if:

  (a)   the relevant person, whether alone or together with one or more other persons or entities, enters into, begins to carry out or carries out a scheme; and

  (b)   there are reasonable grounds to conclude that the relevant person did so for the sole or dominant purpose of avoiding section   302D, 302E or 302F prohibiting, in particular circumstances:

  (i)   a gift being made to or for the benefit of a member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party (whether or not the relevant person) by or on behalf of a foreign donor; or

  (ii)   a gift made by or on behalf of a foreign donor being received, retained or used by or on behalf of a member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party (whether or not the relevant person); and

  (c)   as a result of the scheme or part of the scheme:

  (i)   the foreign donor engages in a course of conduct of giving the gift, and one or more other gifts, to or for the benefit of the member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party in those circumstances, where the amount or value of each of those gifts is below the amount specified in the provision but the total amount or value of the gifts is more than that amount; or

  (ii)   the foreign donor forms, or participates in the formation of, a body corporate in Australia; or

  (iii)   the making of the gift to or for the benefit of the member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party by or on behalf of the foreign donor in those circumstances is otherwise facilitated; and

  (d)   as a result of the scheme or part, the provision does not prohibit the making, receipt, retention or use of the gift in those circumstances.

Note 1:   A decision to give a notice is a reviewable decision (see section   120).

Note 2:   For the definition of scheme , see subsection   287(1).

  (2)   The notice must:

  (a)   specify the conduct constituting the scheme; and

  (b)   require the relevant person:

  (i)   not to enter into the scheme; or

  (ii)   not to begin to carry out the scheme; or

  (iii)   not to continue to carry out the scheme.

Offence

  (3)   A person or entity commits an offence if:

  (a)   the person or entity is given a notice under subsection   (1); and

  (b)   the person or entity engages in conduct; and

  (c)   the conduct contravenes the notice.

Penalty:   200 penalty units.

  (4)   Section   15.4 of the Criminal Code (extended geographical jurisdiction--category D) applies to an offence against subsection   (3).

Civil penalty

  (5)   A person or entity is liable to a civil penalty if:

  (a)   the person or entity is given a notice under subsection   (1); and

  (b)   the person or entity engages in conduct; and

  (c)   the conduct contravenes the notice.

Civil penalty:

The higher of the following amounts:

  (a)   200 penalty units;

  (b)   if there is sufficient evidence for the court to determine the amount or value, or an estimate of the amount or value, of the gift--3 times that amount or value.

  (6)   Subsection   (5) applies:

  (a)   whether or not the conduct constituting the contravention of subsection   (1) occurs in Australia; and

  (b)   whether or not a result of the conduct constituting the alleged contravention of subsection   (1) occurs in Australia.

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