• Specific Year
    Any

COMMONWEALTH ELECTORAL ACT 1918 - SECT 396 Modifications by legislative instrument in the event of an emergency

COMMONWEALTH ELECTORAL ACT 1918 - SECT 396

Modifications by legislative instrument in the event of an emergency

Scope

  (1)   This section applies if:

  (a)   an emergency is declared (however described) under a Commonwealth emergency law; and

  (b)   the Electoral Commissioner is satisfied on reasonable grounds that the emergency to which the declaration relates would interfere with the due conduct of an election in a geographical area to which the declaration applies (the emergency area ).

Electoral Commissioner may modify operation of this Act, or provisions of this Act, in certain circumstances

  (2)   If the Electoral Commissioner is satisfied on reasonable grounds that it is necessary or conducive to ensure the due conduct of the election in the emergency area, the Electoral Commissioner may, by legislative instrument, modify the operation of this Act, or specified provisions of this Act, in relation to any or all of the following:

  (a)   expanding the grounds on which a person in the emergency area may apply for a postal vote or a pre - poll vote (see sections   183 and 200A);

  (b)   extending the period during which applications for pre - poll votes may be made to a pre - poll voting officer (see section   200BA) at a place in the emergency area (but not so as to be earlier than 5 days after the declaration of nominations);

  (c)   amending the number of scrutineers a group of candidates is entitled (see section   264) to be represented by at a scrutiny under section   273A at a particular counting centre in the emergency area (but not so as to be less than one scrutineer per group of candidates per officer engaged in a scrutiny or counting of ballot papers at that centre).

Note:   For the meaning of group , see subsection   (10).

  (3)   The Electoral Commissioner may, by legislative instrument, modify the operation of this Act, or specified provisions of this Act, to allow a person to do either or both of the following:

  (a)   if the Electoral Commissioner is satisfied, on reasonable grounds, that the person being present for action that is to take place under the Act in the emergency area is necessary or conducive for the due conduct of the election in the emergency area--travel, or be present, for the action;

  (b)   conduct an activity mentioned in subsection   (4) within 100 metres of the entrance to a polling booth or pre - poll voting office in the emergency area, or travel for the purposes of conducting the activity;

despite a prescribed Commonwealth, State or Territory law, or a prescribed kind of Commonwealth, State or Territory law.

Note:   Paragraph   (a) may cover, for example:

(a)   permitting candidates, and agents for candidates, to be present at a place of nomination, in the emergency area, for the determination of the order of the names of the candidates or of groups in ballot papers to be used in an election; or

(b)   permitting scrutineers to be present at a counting centre, in the emergency area, for scrutiny.

  (4)   For the purposes of paragraph   (3)(b), the activities are the following:

  (a)   canvassing for votes in an election;

  (b)   supplying electoral matter to electors;

  (c)   soliciting the vote of an elector in an election;

  (d)   exhibiting a notice or sign (other than an official notice or sign) relating to an election.

  (5)   A legislative instrument made under subsection   (2) or (3) has effect according to its terms, despite any other provision of this Act.

Electoral Commissioner must notify the Prime Minister and Leader of the Opposition

  (6)   Before making an instrument under subsection   (2) or (3), the Electoral Commissioner must notify the Prime Minister and the Leader of the Opposition in the House of Representatives, in writing:

  (a)   that the Electoral Commissioner is considering making the instrument; and

  (b)   why the Electoral Commissioner considers it necessary to make the instrument; and

  (c)   how modifications to be made under the instrument will be limited to the emergency area and the period for which the relevant emergency declaration is in force.

Modification must be published on the Electoral Commission's website

  (7)   If the Electoral Commissioner makes a legislative instrument under subsection   (2) or (3), the Electoral Commissioner:

  (a)   must publish the legislative instrument on the Electoral Commission's website; and

  (b)   may publish the legislative instrument in any other way the Electoral Commissioner considers appropriate.

Commonwealth emergency law

  (8)   In this section, Commonwealth emergency law means the following:

  (a)   the Biosecurity Act 2015 ;

  (b)   the National Emergency Declaration Act 2020 ;

  (c)   the National Health Act 1953 ;

  (d)   the National Health Security Act 2007 ;

  (e)   any other Commonwealth law specified under subsection   (9).

  (9)   The Minister may, by legislative instrument, specify a law of the Commonwealth for the purposes of the definition of Commonwealth emergency law in subsection   (8).

Group of candidates

  (10)   In this section, group of candidates has the same meaning as in Part   XX.

Note:   See subsection   287(1).

Sunset

  (11)   A legislative instrument made under subsection   (2) or (3) ceases to have effect at the earlier of the following:

  (a)   when the emergency declaration referred to in subsection   (1) is revoked, repealed or otherwise ceases to have effect;

  (b)   when the writs for the election to which the legislative instrument relates are returned.

This Part deals with the funding of registered political parties, candidates and groups. It also deals with gifts and other financial matters relating to parties, candidates, groups, political campaigners, significant third parties, third parties and associated entities.

Registered political parties, candidates and groups must have agents. Significant third parties and associated entities must nominate financial controllers. Many of the obligations in this Part are imposed on those agents and financial controllers.

Registered political parties, candidates and groups may be entitled to election funding. The election funding is payable in relation to any candidate who received at least 4% of the total formal first preference votes cast in the election.

Generally, gifts of at least $1,000 to members of the House of Representatives, Senators, political entities (who are registered political parties, candidates and Senate groups) and significant third parties must not be made by foreign donors (that is, persons who, broadly, do not have a connection to Australia).

Broadly, gifts to members of the House of Representatives, Senators, political entities, significant third parties, associated entities or third parties must not be made by foreign donors for the purpose of incurring electoral expenditure or creating or communicating electoral matter.

There are obligations to disclose certain gifts made to:

  (a)   candidates and members of groups; and

  (b)   members of the House of Representatives, Senators, registered political parties, State branches and significant third parties.

Certain expenditure incurred by or with the authority of candidates and groups during an election period must also be disclosed.

Each financial year,   members of the House of Representatives, Senators, registered political parties, significant third parties, third parties and associated entities are required to disclose details relating to amounts received or paid or incurred by the members, Senators, parties, campaigners or entities during the year.

A significant third party or associated entity must be registered as such under this Division. A person or entity may be liable to a civil penalty if the person or entity incurs electoral expenditure without being appropriately registered.

Generally, whether a person or entity is a significant third party depends on the amount of electoral expenditure that the person or entity incurs.

Associated entities are entities that have some kind of connection with registered political parties (such as being controlled by or operating for the benefit of a registered political party).

The Electoral Commissioner maintains the Transparency Register under this Division.

The Transparency Register contains details reported to the Electoral Commission under this Part, and other public information.

Registered political parties, candidates and groups must have an agent. Significant third parties and associated entities must nominate a financial controller.

The Electoral Commissioner keeps a Register of Party Agents. Information about financial controllers for significant third parties and associated entities is kept in the Transparency Register under Division   1A.

The agents are responsible for making claims for election funding under Division   3. The agents and financial controllers are responsible for complying with Divisions   1A and 3A, and providing returns under Divisions   4 to 5A.

Election funding may be payable in relation to registered political parties, candidates and groups under this Division. The election funding is payable in relation to any candidate who received at least 4% of the total formal first preference votes cast in the election. Election funding of $10,000 (as indexed) is paid as soon as practicable after 20 days after the polling day for the election or elections. However, a claim must be made for election funding of more than that amount to be paid.

The amount of the election funding is worked out by reference to the number of formal first preference votes received by the candidate. However, for an amount of election funding that is more than $10,000 (as indexed), the amount is capped at the amount of actual expenditure incurred by the candidate or the registered political party endorsing the candidate.

This Division regulates gifts that are made to members of the House of Representatives, Senators, registered political parties, candidates, groups, significant third parties, associated entities and third parties.

Gifts of at least $1,000 to members of the House of Representatives, Senators, political entities (broadly, registered political parties, candidates and Senate groups), significant third parties or associated entities must not be made by foreign donors. A foreign donor is a person who does not have a connection to Australia, such as a person who is not an Australian citizen or an entity that does not have a significant business presence in Australia.

Broadly, gifts must not be made to a member of the House of Representatives, Senator, political entity, significant third party, associated entity or third party by a foreign donor for the purpose of incurring electoral expenditure or creating or communicating electoral matter.

Anti - avoidance provisions apply to strengthen these requirements.

A person or entity may commit an offence or be liable for a civil penalty if the person or entity contravenes the requirements. There are some exceptions, such as when a gift is made in a personal capacity.

Candidates and members of groups in an election who receive gifts must disclose the gifts by providing a return to the Electoral Commission. In addition, persons who make such gifts, where the value or amount of the gifts is more than the disclosure threshold, must also disclose the gifts.

Gifts totalling more than the disclosure threshold that are made by a single person to the same registered political party, State branch or significant third party during a financial year must also be disclosed in a return provided to the Electoral Commission. Gifts totalling more than the disclosure threshold that are made by a single person to the same member of the House of Representatives or the same Senator during a financial year for federal purposes must also be disclosed in a return provided to the Electoral Commission.

Returns provided under this Division are published by the Electoral Commissioner, on the Transparency Register, under section   320.

There are limitations on loans made to political parties, State branches, significant third parties, candidates or groups that are more than the disclosure threshold.

Gifts of more than the disclosure threshold to a political party, State branch, significant third party, candidate or group by a corporation that is wound up within a year of making the gift may be recovered from the recipient of the gift.

Expenditure incurred by or with the authority of a candidate or group in an election during the election period must be disclosed by providing a return to the Electoral Commission. The agent for the candidate or group is responsible for providing the return. (Expenditure incurred by registered political parties is provided each financial year under Division   5A.)

Secretaries of Commonwealth Departments and Agency Heads of Commonwealth Agencies must attach statements to annual reports setting out amounts of more than the disclosure threshold paid to advertising agencies, and market research, polling or other organisations.

Returns provided under this Division are published by the Electoral Commissioner, on the Transparency Register, under section   320.

Registered political parties, significant third parties and associated entities provide returns each financial year to the Electoral Commission setting out details relating to amounts received or paid or incurred by the parties, significant third parties or entities during the year. Third parties also provide annual returns setting out details relating to electoral expenditure incurred by the third parties during the year. Members of the House of Representatives and Senators also provide annual returns setting out details relating to gifts made for federal purposes that were received by them during the year.

Returns provided under this Division are published by the Electoral Commissioner, on the Transparency Register, under section   320.

This Division limits electoral expenditure and fundraising for electoral expenditure by foreign campaigners (that is, persons who, broadly, do not have a connection with Australia).

Electoral expenditure incurred by or with the authority of a foreign campaigner must not total $1,000 or more in a financial year. Amounts fundraised for that purpose must not total $1,000 or more in a financial year.

This Division deals with:

  (a)   the recovery of payments made by the Commonwealth; and

  (b)   the powers of the Electoral Commission in relation to investigating compliance with this Part; and

  (c)   general provisions relating to claims and returns (such as amending claims and returns, and record - keeping and publishing requirements).

(c) the name of the natural person responsible for giving effect to the authorisation

(b) the address of the person

(b) the address of the entity

(b) the address of the person

Note:   Violence, obscene or discriminatory abuse, property damage and harassment or stalking are examples of conduct that may be an offence under this subsection.

  (b)   a communication of electoral matter that includes a statement that it was authorised by a specified person is admissible as evidence of that fact.

Download

No downloadable files available